February 14, 2017 11:25AM

The Statutory Illegality of Trump’s Executive Order on Immigration

I have previously reviewed the ineffective arguments that the Trump administration has used to rebut the statutory argument against its nearly complete ban on immigration from seven majority Muslim countries in State of Washington v. Donald Trump. This argument will have a more direct bearing on two other cases, one by the American Immigration Council in Washington (Ali V. Trump) and another by the American Civil Liberties Union in Maryland (IRAP v. Donald Trump). The formidable Josh Blackman, Cato adjunct scholar and Associate Professor of Law at the South Texas College of Law, thinks he may have found a couple of ways to save the statutory (as opposed to constitutional) case for the government. He explains them in a series of posts on his blog (see 1, 2, 3, and 4).

An Apparent Conflict

My argument has rested on section 202(a)(1)(A) of the Immigration and Nationality Act (INA), as amended in 1965 (8 U.S.C. 1152(a)(1)(A)):

Except as specifically provided in paragraph (2) and in sections 101(a)(27), 201(b)(2)(A)(i), and 203 of this title, 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.

The Trump administration has insisted that it nonetheless has the authority to discriminate under section 212(f) of the INA (8 U.S.C. 1182(f)), as originally enacted in 1952:

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.

I have previously noted in more detail that in the case of such a conflict, the rules of construction dictate that section 202 must be seen as limiting (not repealing) section 212 because 1) it was enacted later in time, 2) it is a more specific restriction on a general authority in 212, 3) it would cease to have effect if 212 could be invoked to discriminate at any time, 4) it specifies with added emphasis (“specifically”) the only statutory exceptions to the non discrimination rule (leaving out 212(f)), and 5) it fits into a statutory scheme that was intended to produce a legal immigration system in which each nationality was allotted an equal share of the annual visa quotas, which compose the remainder of section 202.

If section 202 does limit section 212, then banning a nationality from the United States would not be a “facially legitimate” reason for denying the visa (see Kerry v. Din).

Entry v. Visa Issuance

Professor Blackman does not appear to dispute this analysis. Rather, he argues that the sections are actually not in conflict at all because 212 refers to “entry,” while 202 refers only to the “issuance of an immigrant visa.” Because an immigrant visa does not guarantee the right of entry under section 221(h), he argues that the government could deny entry, even if it was unbiased in visa issuance. To begin with, this interpretation would mean that the government could discriminate in adjustment of status adjudications of immigrants inside the United States, even without a presidential proclamation that these immigrants are detrimental to the United States. Is the government really prepared to argue that Congress specifically made this option available to the administration? 

Of course, it did not. As I explained in my last post, the use of section 212(f) imposes a ground of “inadmissibility” that applies equally to entry and visa issuance. While denial of entry and denial of a visa are indeed two separate activities, the imposition of a ground of inadmissibility is not. It automatically applies to both, which is why all 212(f) proclamations are also added immediately to the Foreign Affairs Manual that governs visa adjudications. Thus, the government cannot discriminate under 212(f) without violating 202(a)(1)(A). This is why the executive order admits that the Secretary of State will be enforcing it at consulates abroad to the same extent as the Secretary of Homeland Security in the United States and why the department immediately suspended visa issuances.

The professor responded to this point by stating that section 212(f) “is not a simple admissibility policy, but a far broader power to exclude those who are detrimental to American interests.” I have never heard of simple (or complex) admissibility policies. One requirement for admission is that a person be eligible to enter the United States legally. This is no different or more complex than the many other types of inadmissibilities listed in section 212. If a person is inadmissible because they cannot lawfully enter, they are inadmissible to the same extent and in the same way as if they had a dangerous communicable disease.

Moreover, as I have also pointed out last year and in my recent post, it is inaccurate to understand “visa” in section 202 to mean only the visa document that grants the right to travel to and request entry at a port. “Visa” is defined to include “status” in section 202. Thus, section 202(a)(1)(A) actually means “no person shall be discriminated against in the issuance of an immigrant visa or legal permanent residency status.” The determination of eligibility to enter is the determination of whether to issue legal permanent residency status to the alien (note how the INA creates an equivalency between being granted entry and otherwise being granted status). Because denying entry to certain nationalities would discriminate in the issuance of status, the government would be in violation of 202(a)(1)(A) just as much by denying entry or status as by denying visas. 

The fact that sections 202 and 203 include “status” becomes especially clear in the text when, in subsection (d) of section 203, it describes spouses and children of primary applicants as “entitled to an immigrant status and the immediate issuance of a visa.” More importantly, if the government defined “visa” to mean only the visa document allowing the person to come to the United States to request entry, then Congress’s carefully constructed “visa” quotas in sections 202 and 203 would not include status determinations for individuals residing inside the United States on temporary visas. This would be at odds with the State Department’s own regulations requiring not only that the visa caps include status determinations, but that they essentially only include them. Section 245 clearly instructs Secretary of State to treat "status" determinations against the cap. 

While I personally would welcome this change, as it would surge immigration levels to heights not seen since the early 20th century, it is at odds with nearly every possible detail of the legislative history or publicly understood meaning of the text for over 6 decades. This argument would require the government to argue that Congress really wanted to limit the number of documents, not the number of actual persons entering and residing in the country. As the Supreme Court put it in Davis v. Michigan Dept. of Treasury, “It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” The statutory scheme is about limiting immigrants, not travel documents.

This does not mean that a person with a visa would be entitled to enter, but rather that each nationality (as well as race or gender) would simply be entitled to equal treatment at a port of entry. Notice the wording of section 221(h): 

Nothing in this chapter shall be construed to entitle any alien, to whom a visa or other documentation has been issued, to be admitted the United States, if, upon arrival at a port of entry in the United States, he is found to be inadmissible...

Each applicant could still be excluded based on other grounds of inadmissibility. Section 202(a)(1)(A) simply removes the power to declare someone inadmissible based on their nationality.

Moreover, as Justice Scalia once wrote, “it is a venerable principle that a law will not be interpreted to produce absurd results.” A system under which the government is required to issue visas (or statuses) that it has no intent to honor, I submit, is indeed absurd. Ian Samuel highlights the absurdity to nice effect: 

When it passed the no-discrimination rule, the Section [212] enthusiasts imagine, Congress was perfectly fine with excluding people from the United States on the basis of national origin. It simply wanted that exclusion to happen at the border, rather than at the foreign consular office. “No Irish shall be admitted,” the President (on this view) may say; “but of course you are absolutely entitled to come and see the sights of Terminal 4.”

I suspect that if presented with these facts, only a judge with no sympathy whatsoever for the view that Congress can constitutionally restrict the authority of the president in this area, as Professor Blackman seems also to believe, would adopt this opinion.  

Visa Revocation v. Visa Issuance

Professor Blackman, however, reasons that, even if this is true, the administration still possesses the authority to revoke visas under section 221(i). But this is just word games. Revocation is nothing more than “the reversal of an act.” Thus, to revoke an issued visa is to un-issue the visa. But the text is clear that decisions over issuance cannot consider nationality. The professor’s uber-literalist reading would mean that section 202(a)(1)(A) would not protect against discrimination in the denial of a visa either, only in its issuance.

Moreover, think about this scheme that the government asserts Congress created. Congress mandated that each nationality receive an equal share of the annual immigration quotas and that the administration maintain waiting lists for each nationality. It required that after any waiting period, immigrants’ nationality not be taken into account in the issuance of visas or status. Yet at the same time, it allowed discrimination against immigrants after they received their visas or statuses. Apparently, Congress was very concerned about rooting out bias in paperwork, but not in actual practice.

This proposed scheme defies the Supreme Court’s requirement that courts must “fit, if possible, all parts [of the statute] into an harmonious whole.” Moreover, this system is no less "absurd" than the one in which the immigrants are allowed to land at Dulles International Airport only to be turned back. Issuing visas with the intention to revoke them amounts to governmental deception. It would be very much like if a court ordered railroads to issue tickets to people without regard for race, and the companies complied, only to revoke them seconds later. 

Visa Procedures v. Visa Issuance

Professor Blackman still provides one final “out” for the administration, citing the exception to the subparagraph (A) of section 202(a)(1) in subparagraph (B):

(B) Nothing in this paragraph shall 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.

This provision was adopted in 1996 to allow the Clinton administration to require Vietnamese living illegally in Hong Kong to travel back to Vietnam to apply for immigrant visas. The administration argued that it was already permitted to take these actions as part of its inherent foreign affairs powers (the government's constitutional argument), but in 1995, the D.C. Circuit found the administration in violation of the discrimination prohibition in section 202(a)(1), stating that “Congress could hardly have chosen more explicit language.” Congress implemented subparagraph (B) in 1996. The Supreme Court vacated the earlier decision in light of the change, and the D.C. Circuit reversed, holding, “the State Department policy is unreviewable” because this “section grants to the Secretary discretion to prescribe the place at which aliens apply for immigrant visas…” In any case, the original 1995 decision provides a reason to believe that courts can enforce section 202(a)(1)(A).

Professor Blackman argues that a permissible construction of the amendment would allow the administration to implement the immigration ban as “procedure” for processing applications. Even the government had trouble getting out this argument with any certitude. Its brief merely stated that it “suggests that maybe” the ban could be viewed as  “procedure.” It was hesitant with good reason. This interpretation would completely neuter subparagraph (A)’s prohibition on discrimination, which Congress consciously chose to leave in place rather than repeal in 1996. Subparagraph (A) bars discrimination in visa issuance. The executive order is about discriminating in the issuance or non-issuance of visas or statuses. Defining the refusal to issue a visa as a “procedure” renders subparagraph (A) a nullity, and as the Supreme Court stated in Smith v. Robinson (1984), statutes "should be interpreted so as to give effect to each." Taking the word “issuance” seriously demands that it at least refer to the decision over whether to issue a visa.

How Congress understood the law 

While textualists like Professor Blackman disfavor the unenacted intentions of Congress, the legislative history can enlighten us to the publicly understood meaning of the law at the time it was enacted (such as whether the visa limitations were interpreted to mean limitations on documents or limitations on persons). It is clear from the debate over the Immigration Act of 1965, particularly section 202, that the entire purpose of the Immigration Act of 1965 was to end the earlier system of immigration based on national origin.  

President Johnson’s Message to Congress: The principal reform called for is the elimination of the national origins quota system. That system is incompatible with our basic American tradition. … The procedures imply that men and women from some countries are, just because of where they come from, more desirable citizens than others. …In addition, the bill would… eliminate the discriminatory “Asia-Pacific triangle” provisions of the existing law.

Senate Committee Report: The principal purpose of the bill, as amended, is to repeal the national origin quota[s]. …The new selection system is based upon a first-come, first-served principle, without regard to place of birth, within the preference categories, subject to specified limitations designed to prevent an unreasonable allocation of visa numbers to any one foreign state.

House Committee Report: The purpose of the bill is the elimination of the national origins system as the basis for the selection of immigrants to the United States. …[quoting President Truman] The greatest vice of the present quota system, however, is that it discriminates, deliberately and intentionally, against many of the peoples of the world. …By this legislation… the last vestige of discrimination against Asian persons is removed from the immigration laws. …The rationale for the abolition of the national origins quota system is that it deliberately discriminates against many of the peoples of the world.

President Johnson’s Signing Statement: [O]ver four decades the immigration policy of the United States has been twisted and has been distorted by the harsh injustice of the national origins quota system. … Today, with my signature, this system is abolished. We can now believe that it will never again shadow the gate to the American Nation with the twin barriers of prejudice and privilege.

Over and over again, in the congressional record, we hear comments about replacing “insensitivity and discrimination with concern and equity” or sweeping away “any discrimination on account of race” or overturning “discrimination in past years against friendly nations and friendly people” or ending “discrimination and implied favoritism for the nationals of some countries against the nationals of other countries” or discarding “our outdated and discriminatory immigration laws.”  On section 202 in particular, Sen. James Easterland commented:

The President said: ‘The principal reform called for is the elimination of the national origins quota system.’ … In an attempt to carry out the request of the President, we find that section 2 of the bill has amended section 202 of the Immigration and Nationality Act to provide as follows: (a) No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of his race, sex, nationality, place of birth, or place of residence…

At the very least, we can say that no member of Congress was interpreting "visa issuance" to mean that the 1965 act might not actually change the composition of legal immigration or that the president could clarify that these detrimental Asians were still unwelcome "at entry."

Professor Blackman notes that under section 202(a)(2), applicants from countries with more applicants are, in fact, still discriminated against based on nationality. Because each country—no matter how large or small—receives an equal share of the visas, applicants from populous countries with large numbers of visa applicants are disadvantaged, as I have written about repeatedly. This was an unfortunate concession in 1965, but it has no impact on section 202(a)(1)(A) because this type of discrimination is one of the specific exceptions to the rule. Indeed, the mere existence of such specific exceptions proves that Congress considered when to allow discrimination and chose not to allow it under section 212(f).

Despite this concession, the new quota system—even if it still accounts for birth in a way—still means, as the professor himself puts it, that every national from “each country has the same opportunity to petition for a visa and receive a visa up to the limitation.” This is exactly the opportunity being denied to nationals of the seven barred countries. (On this point, Peter Margulies has interesting argument that the mere existence of the INA's complex edifice of numerous “specific and detailed provisions" itself provides a reason to view the executive order as unlawful—an argument that he, Blackman, and Cato’s Ilya Shapiro used to great effect in Cato’s amicus brief in U.S. v. Texas.)

No exception for difficult to screen individuals

Nor did Congress intend for there to be an exception to the rule for countries where it is difficult to screen immigrants. During the hearings on the bill, the Judiciary Committee heard testimony against the bill, arguing this point:

It is virtually impossible, according to security officers, to screen out Communists among refugees from Iron Curtain countries for the excellent reason that there is no way to substantiate or refute biographical evidence which they submit. An increase in immigration from the countries of Eastern Europe or Red China, both of which are dominated by Communists, could only increase this danger.


It is an impossibility—and I think you can get the Immigration Service to verify this—to set up a sufficient screening process to be sure that China would not send to this country literally thousands of persons who have as their first and foremost idea espionage operations against the United States—Communist plants. I do not think it is possible under the present setup in the Immigration Service to screen these people… it is inconceivable for me to believe that every one of these refugees is an anti-Communist.

And in the most Trump-like language:

Our proposed policy under S. 500 would seem to invite a reenactment of the chronicle of the Trojan Horse wherein the enemies of our way of life are willingly brought within our walls.

Congress debated this exact point of whether the Immigration Act of 1965 would result in the entry of unvetted immigrants. As Rep. O.C. Fisher said on the House floor during this debate:

Mr. Chairman, 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).

The congressman’s entire argument here is the Trump administration’s case. An unbiased immigration system will allow into the country people who are difficult to screen. In this way, he argues that discrimination is not malevolent, but merely a matter of national security under “the normal exercise of sovereign power.” Congress determined that this concern was not a valid reason for banning (or nearly banning) certain nationalities. Judiciary Chairman Rep. Emanuel Celler, the bill’s main author, dispatched with it as follows:

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.

Over in the Senate, Senator Everett Dirksen, the Republican Minority Leader, responded:

It has been said that we shall get a great number of undesirables. None of the screening process which has been carried in existing law has been forfeited in the pending bill. Applicants still have to be screened.

Congress considered Donald Trump’s argument and rejected it. The idea that President Johnson could have signed the law and used section 212(f) to undo Congress’s work to implement the exact type of discrimination that it had repealed is preposterous. The Trump administration is violating both the spirit and the letter of the law.