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insisted that it nonetheless has the authority to discriminate under section 212(f) of the INA (8 U.S.C. 1182(f)), as originally enacted in 1952: