The Government’s Bad Arguments in Defense of Discriminating Against Immigrants Based on Nationality

A federal judge in Seattle paused enforcement of President Trump’s executive order banning almost all immigration from seven countries in the State of Washington v. Donald Trump. The same judge will also hear a lawsuit brought by American Immigration Council (AIC), which makes the argument that I have made here and in the New York Times that the order is illegal as applied to immigrants coming to live in the U.S. permanently.

Washington’s main claims were constitutional, and it sought to have the entire order overturned. Nonetheless, the government did partially respond to the main argument in the AIC complaint, which is:

Section 202(a)(1) of the Immigration and Nationality Act [INA]…expressly provides for the non-discriminatory issuance of immigrant visas; it mandates that, with limited exceptions not relevant here, “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.”

[INA section 202(a)(1)] was intended to protect the interests of both U.S. citizen and lawful permanent resident immigrant visa petitioners as well as immigrant visa applicants or holders. The EO discriminates against immigrant visa applicants or holders on the basis of their “nationality, place of birth, or place or residence,” and therefore is discriminatory and violates [INA section 202(a)(1)].

The government responded to these points by pointing to section 212(f) of the Immigration and Nationality Act, which reads:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

Resolution of Conflict

There is an apparent conflict between the statutes. In the case of conflict, the rule of construction is 1) “to give effect to each but 2) to allow a later enacted 3) more specific statute to amend an earlier, more general statute,” Smith v. Robinson (1984).

On point 1, the government provided no argument that the section 202(a)(1) would still have “effect” as a prohibition if the president could choose to waive it at any time that he felt that a nationality was a detriment. It merely stated that it applies “in the absence of action by the President.” Judge Robart should have asked whether there is any circumstance in which the executive branch chooses to discriminate against a certain nationality in which they would describe those excluded nationals as not “detrimental” to the United States. Of course, no such case exists, meaning that the government’s argument would effectively nullify section 202(a)(1), which is naturally its intention.

On point 2, the government neglects to mention that 8 U.S.C. 1182(f) was enacted in the Immigration and Nationality Act of 1952, which was amended by 8 U.S.C. 1152(a)(1) in the Immigration Act of 1965. Judge Robart at oral arguments considered this point important, stating that this “Congress had to be aware of” 212(f) but chose to enact the sweeping prohibition anyway. On point 3, the government provides the following argument:

Section 212(f) is easily reconciled with section 1152(a)(1)(A): the latter sets forth the general default rule that applies in the absence of action by the President, whereas section 212(f) governs the specific instance in which the President proclaims that the entry of a “class of aliens” would be “detrimental the interests of the United States.”

This analysis cannot be taken seriously. Section 212(f) allows the authority to the president to ban any class of alien for any reason. 202(a)(1) limits this authority only for one small category of aliens, immigrant visa applicants. Moreover, 212(f) is in a general section of the law dealing with inadmissibility for all aliens, not just immigrants, whereas section 202(a)(1) is a section dealing only with immigrants. This argument from the government almost becomes humorous in light of its argument in the very next paragraph, that there is no general prohibition on discriminating based on nationality.

Section [202] generally establishes a uniform annual numerical limit on immigrant visas for nationals of each foreign country. Had Congress intended to enact a general bar against nationality-based discrimination, it would have enacted such a bar as a general provision of the INA, rather than as a subpart of a subsection speaking to the implementation of nationality-based numerical limitation for the issuance of immigrant visas. (Emphasis added)

In other words, the government is using the exact opposite argument here: that section 202(a)(1) is so specific that it cannot apply to the general authority to exclude aliens in section 212(f). The U.S. attorney at oral arguments repeated this line, stating that “we think [202(a)(1) is] a narrow section of the statute” as opposed to the “broader authority” under section 212(f). In other words, section 202 is both too general and specific. The government would like to have its discriminatory cake and eat it too.

The government also ignores a fourth rule applicable here. Inclusion implies exclusion. As Judge Robart said, section 202(a)(1) “makes a number of exceptions, but it doesn’t except” section 212(f). Section 202(a), which was enacted 13 years after 212(f), states that the government may not discriminate against immigrant visa applicants based on their nationality, place of birth, or place of residence “Except as specifically provided in paragraph (2) [allocating visas on equal per country basis] and in sections 101(a)(27) [special immigrants], 201(b)(2)(A)(i) [preferences for immediate family members], and 203 [visa distribution based on family and employment criteria]” (my emphasis). Section 212(f) was specifically left out of the exceptions, which demonstrates that Congress did not want to include it as an exception to the rule (whether the government wants it to be a “general” rule or a “specific” one).

Finally, for good measure, a fifth principle of construction states, as Justice Antonin Scalia stated in United Savings Association of Texas v. Timbers of Inwood Forest Associates, “Statutory construction, however, is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme.” In this case, as the government admits, the statutory scheme is to create a system of immigration that is unbiased, in which every country receives an equal apportionment of the visas for each year. Indeed, the entire 1965 act was written for that express purpose, which President Trump has now undone.

Other Authorities

Perhaps believing their argument on this point insufficient, the government turns to other statutes as providing the president the authority to discriminate against immigrant visa applicants:

Section 202(a)(1)(B) clarifies that subsection (A) is not to be “construed to limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications or the locations where such applications will be processed.” The clarification suggests that the Executive Order, in part or in whole, may not be covered by the restrictions of subsection (A) because the Executive Order governs the procedures for pausing then resuming visa applications.

Even the government could not get this argument out with a definitive “it is not covered” but rather a “suggest that maybe.” Subparagraph (A) pertains to, if nothing else, the decision to issue or not issue a visa, and the decision to not issue is at the heart of this executive order. If subparagraph (B) is read to allow the president the ability to not issue or to revoke a visa based on nationality, then subparagraph (A) has no effect. Aside from ignoring the first rule of construction, this obviously cannot be the case because subparagraph (B) was added to allow President Clinton to require Vietnamese asylum seekers to apply for immigrant visas in Vietnam. Congress specifically chose to leave subparagraph (A) rather than repeal it, demonstrating its intent to have it constrain the executive.

The government further claims that the last Congress’s visa waiver program changes requiring that nonimmigrant nationals of these seven countries travel to the United States only with a visa proves that Congress has approved this discrimination.

The 2015 amendment to the INA…has drawn the exact same nationality-based distinctions as the Executive Order. 

First of all, this is simply incorrect. The amendment specifically included people who had visited those countries. Thus, it was broader than simply nationality. Second of all, these procedures had no impact on immigrant visa applicants who are protected from discrimination. Moreover, the fact that barely a year before the executive order Congress specifically created procedures under which these nationals can enter the country shows that Congress does not agree with the president that these nationals are a “detriment” to the United States. Indeed, it shows just the opposite: that Congress wanted them to have an opportunity to come if they obtained a valid visa.

Finally, the government turns as a last gasp toward its inherent national security powers:

Indeed, under the State’s view, the United States could not suspend entry of a country with which the United States is at war. The INA plainly does not require that result. 

The United States is not at war with any of these countries, so the court need not reach a conclusion about how the INA would impact such a case. But it goes without saying that the government would not be relying on its statutory authority in such a case, and so the question would be irrelevant to such a situation. This is likely what provoked Judge Robart’s eye-rolling response, “You’ve shaken those bones just about as much as you can get out of them.”

Moreover, the Executive Order does not label these immigrants actual threats to the United States. Rather, it claims that the inability to vet them makes them a “detriment,” a seemingly much lower threshold, and the argument is that the INA makes an exception for “detrimental” aliens. This is nowhere expressed in the INA itself and, as previously demonstrated, flies in the face of the plain language of section 202(a)(1)(A), which specifically lists the only exceptions to it.

Importantly, the discriminatory pre-1965 act system was justified partially on this exact claim, that immigrants from certain countries may be threats and thus discriminated against. As Rep. Fisher said on the House floor in 1965:

There is a serious security threat which would result in the expected substantial increase in Asiatic migration to these shores. At the present time, the flow of Asiatics to this country is checked by the simple device of quota limitation to which all Asiatics are chargeable. With a substantial increase in immigration of Asiatics, coming not only from the Orient, but from every country in which they reside, the problem of procuring background information to screen out subversives becomes increasingly difficult.

Moreover, most of the background information regarding Communist activities would be located in oriental Communist countries; and hence unavailable to our security officials. Furthermore, the language barriers, with the many dialects unfamiliar to our immigration officers, would only compound the danger inherent in an attempt to screen out security threats; and I have no doubt that the international Communist conspiracy will avail itself of the opportunity to increase its penetration of our country.

The passage of this bill will present an inviting opportunity. It has been argued that because some European countries now have a larger annual quota than others, this country regards the people of the larger quota nations as being better people than those in countries with the lower quotas. That is a ridiculous argument. Immigration laws, like trade laws and the like, come under the normal exercise of sovereign power. (My emphasis).

Rep. Celler, the bill’s author, responded to this concern:

There can be no fear of Communists or subversives entering this country. The same safeguards that are in the law with reference to internal security are maintained. They are not changed one iota; therefore, there should be no fear in that connection.

The idea that President Johnson could have signed the act and then, on the basis the government asserts here, ban all Asian immigrants to the United States flies in the face of the letter of the law and its intent. Yet that is exactly what is being asserted here. The passage of time and the change in the targets of discrimination does not make what would have been illegal then legal now. President Trump is violating the law, and Judge Robart was clearheaded enough to see it.