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insisted that it nonetheless has the authority to discriminate under section 212(f) of the INA (8 U.S.C. 1182(f)), as originally enacted in 1952:

Nuclear Apocalypse Likely Farther than Doomsday Clock’s Hands Claim

It’s been a busy time for nuclear weapons-related news—between President Trump’s alleged confusion about and denouncement of the New START arms reduction treaty with Russia on Friday, the White House’s subsequent assurances that the president understands the treaty, and North Korea’s missile launch test over the weekend.

The people behind the “Doomsday Clock,” have declared that the world is “two and a half minutes to midnight.” That’s the closest we’ve allegedly been to Armageddon since 1953, when both the U.S. and Soviet Union first possessed thermonuclear weapons.

A graph from HumanProgress.org might help put the current fearful commotion in perspective.

The U.S. has 4,000 nuclear warheads stockpiled and Russia has 4,490, according to the Federation of American Scientists, a group devoted to arms reduction, as of their latest data update on January 31st of this year. 

Washington Should Reassess, not Reassure, U.S. Allies

Donald Trump’s comments about U.S. foreign policy during the 2016 election campaign offered some promise of a policy bright spot in what was otherwise likely to be a dismal, if not alarming administration. Trump condemned the Iraq War for the folly it was and he displayed a distinct lack of enthusiasm for the entire concept of nation building. He also subjected Washington’s long-standing alliances in Europe and East Asia to withering criticism. Trump quite accurately termed NATO “obsolete,” and he took allies in both regions (as well as countries such as Saudi Arabia) to task for shamelessly free riding on America’s security exertions. Such comments continued even when he became president-elect.

Unfortunately, hopes for a more focused and enlightened U.S. foreign policy are fading fast. Trump administration officials had barely arranged the personal photos in their new offices before adopting a belligerent policy toward Iran. The imposition of new sanctions on Tehran threatens to derail a bilateral relationship that had shown cautious signs of improvement under Barack Obama. Trump seems even to be backing away from his call for improved relations with Russia. Expectations for an easing of sanctions against Moscow are at least on hold, and the president’s initial telephone conversation with Vladimir Putin apparently included comments sharply criticizing the New Start Treaty on nuclear weapons as unfairly limiting Washington’s ability to modernize and possibly expand its nuclear arsenal. That’s not a very astute way to begin a process of rapprochement.

Worse yet, as I discuss in a new article in the National Interest Online, Trump and his advisers are beating a rapid retreat from his critical comments about Washington’s alliances. One of his first actions as president was to reassure German Chancellor Angela Merkel and other European leaders that he regarded NATO as having “the utmost importance.” Why an alliance that he had repeatedly termed obsolete now possessed such importance Trump did not explain.

The president also dispatched Secretary of Defense James Mattis on a trip to East Asia to reassure both Japan and South Korea of America’s undying devotion to their security. Trump himself did the same during his just-completed summit meeting at the White House with Japanese Prime Minister Shinzo Abe.

Don’t Block the Education Secretary, End the Department of Education

Newly sworn-in Secretary of Education Betsy DeVos tried, and eventually succeeded, to visit a Washington, D.C., public school Friday morning. As warned by her opponents after she was confirmed by a razor-thin margin on Tuesday, she was met by protesters who intended to make good on the threat to block her at every turn. In this case, literally: according to videos like this, they physically tried to prevent her from entering the building.

The opposition to DeVos, as I’ve suggested over the last several weeks, has been over the top and, frankly, unfair. It also hasn’t done much to improve the sick state of the national political dialogue.

That said, there may be no one more sympathetic to objections to federal education meddling than me. Indeed, if the school refused to let DeVos visit because it did not want the disruption or political theater, I’d have been all for it.

But there is a way more constructive way to solve the problem of dangerous or unwanted federal intervention than blocking schoolhouse doors: work to end the federal Department of Education.

This does not, by the way, mean ending the federal role in keeping states and districts from discriminating in their provision of education, but that is much more properly a Justice Department responsibility.

The vast majority of what the Education Department does is collect taxpayer money, burn a bunch off in bureaucracy, then bundle the remainder into programs that tell states, districts and schools how to run education, all with little evidence of meaningful academic effects. This situation will likely improve a bit with the Every Student Succeeds Act, which does return some control to states, but a little better is still awfully bad.

The good news is that a window has opened for the protestors and anyone else worried about federal power — or maybe just interested in seeing the Constitution obeyed — to end the education department.

Rep. Thomas Massie, R-Ky., has just introduced legislation to end the Education Department. The text of the bill is simple: “The Department of Education shall terminate on December 31, 2018.” That’s it. I’d like to see what would happen to all the programs the department runs — they’re the meat of the problem — but the simple bill is a major step in the right direction.

I hope DeVos’ opponents would agree that ending most federal education intervention would be a good thing. But if not, don’t worry: I won’t try to visit your school.

Trump’s Executive Orders on Crime

Yesterday, President Trump’s pick for Attorney General, Jeff Sessions, was sworn into his office. Trump used the occasion to sign three executive orders relating to crime.  In this post, I want to briefly scrutinize these orders and explain what impact they may have on our criminal justice system.

One order calls for the creation of a task force on crime reduction.  The new Attorney General will appoint people to the task force and they will meet and discuss ideas and make recommendations for Trump. A second order is titled “Preventing Violence Against Federal, State, Tribal, and Local Law Enforcement Officers.” This order is also about exploring new ideas and strategies to “enhance the protection and safety” of law enforcement officers.  The third order concerns enforcing federal law against transnational criminal organizations that employ violence and derive revenue “through widespread illegal conduct.”  Working groups will be established to discuss ideas and make recommendations to Attorney General Sessions and President Trump.

Police Executive Order Invites Overfederalization

Yesterday, President Trump signed three executive orders to focus federal resources on fighting drug cartels, increasing overall public safety, and preventing violence against law enforcement officers.

Perhaps the most worrisome of these is the directive to “pursue appropriate legislation…that will define new Federal crimes, and increase penalties for existing Federal crimes, in order to prevent violence against Federal, State, tribal, and local law enforcement officers.”

While law enforcement officer safety is important, there is no evidence that local or state officials have been reluctant to capture and punish those who commit violence against police. Moreover, there is little empirical evidence that more punitive sentences deter crime generally.

Court Ruling on Executive Order: Bad Legal Work All Around

This is a dog’s breakfast of a ruling on a dog’s lunch of an executive order. Somehow the Ninth Circuit judges manage to write 29 pages without discussing the heart of the matter: whether the Immigration and Naturalization Act, specifically section 1182, gives the president the power to do what he did. Nebulous discussions of due process may be nice (or not) but they’re superfluous if the president went beyond his statutory authority. But apparently the court didn’t care about that. 
 
And of course this whole mess could’ve been avoided if the executive order had gone through proper interagency review in the first place, as well as being more narrowly tailored. As it stands, it’s both over- and under-inclusive. It’s over-inclusive because it sweeps in green card and other visa holders who’ve already gone through “extreme vetting,” as well as non-threatening graduate students and sick kids. It’s under-inclusive because it doesn’t even attempt to target the actually risky pool of nationals from non-covered countries (including European ones) who may have become radicalized—and doesn’t offer any concrete reforms to the visa- or refugee-vetting systems that could actually diminish the risk of terrorism on U.S. soil.
 
In short, this is a judicial failure that compounds an executive one. Perhaps it’s time for the legislative branch (Congress) to step in and fix our broken immigration system once and for all. 
 
The second paragraph was edited to clarify the over/under-inclusivity point.