Immigration Bans and Executive Authority

Late last week, President Trump signed an executive order which blocks entry of aliens, regardless of visa status (i.e. student visas, tourist visas, etc), from seven countries for 60 days. It also blocks all refugees from coming to the United States for 120 days. There was some confusion for green card holders, many of whom were detained but ultimately allowed through customs. However, a federal judge forced the administration to cease deportations of visa holders already in the United States. Visa holders from the seven countries who have not made it to U.S. soil are still unable to board flights to America.

Obviously Trump’s ban on immigrants from certain countries is terrible politics and a terrible policy. The stories, like many from government interventions, write themselves:

For the president, who limited his comments on the ban to his Saturday afternoon remarks, the optics were not good. One of the first people detained, Hameed Khalid Darweesh, was an Iraqi interpreter who served the U.S. military for over a decade. (“What I do for this country? They put the cuffs on,” a tearful Darweesh told reporters at JFK after his release.) One Iranian woman barred from the United States, Samira Asgari, was coming to Harvard Medical School to work on a cure for tuberculosis. (“I was pretty excited to join @soumya_boston’s lab but denied boarding due to my Iranian nationality,” she tweeted. “Feeling safer?”) The media was flooded all day with tales of shocked families finding themselves locked out of the United States; if any of them were terrorists, they were awfully well-disguised.

Beyond the anecdotes, the policy doesn’t stand up to the simplest of critiques. The most obvious of which is that no terrorists from these countries have ever carried out a lethal attack in the United States. More generally, the policies we have put in place to fight terrorism are often worse than the imagined terrorist threat; the TSA is worthless and wastes tens of billions of dollars a year, the NSA has never stopped a single terrorist plot with its vast trove of data on Americans collected without a warrant, and the Iraq and Aghanistan wars cost trillions of dollars, thousands of lives, and we are still involved in these countries seven years after the death of Osama bin Laden. This isn’t even counting the fact that in the last 20 years, you were over 150 times more likely to die in a car accident, and eight times more like to be shot by a police officer than you were to be killed by a terrorist. David Bier goes into more reasons here, namely that this order helps the Islamic State and repudiates America’s history of taking refugees (not to mention immigration resrictions are bad for the economy!).

If we lived in parliamentary system, this would be about as far as we could take the argument, and if an irresponsible head of state wanted to enact terrible policy no matter the criticism, he or she could do that, as indeed, for example, the U.K. has done again and again.   However, in our supposedly constitutionally limited government, the next biggest issue is whether his ban is even legal.

Most of the work on this argument has already been done by David Bier of the Cato Institute (and a recent NY Times article) arguing against it and Andrew McCarthy at the National Review arguing for the executive order’s legality. Patterico at Redstate has a good follow-up but it’s fairly detailed and I’ll try to summarize it here.  8 U.S. Code § 1182 (f) gives the President sweeping powers to halt immigration in almost any form from almost any country for almost any reason. That law was passed in 1952, and is a perfect example of the problems of executive authority and Congressional deferral. However, in the Immigration and Nationality Act of 1965, Congress explicitly banned immigration discrimination on the basis of nationality, place of birth, and place of residence. As Bier writes, this legislation was passed explicitly as a rebuke to prior immigration policy, and thus it seems illegal for Trump to make sweeping bans on all immigrants from a specific country.

McCarthy makes a weird argument about executive authority that I find highly unconvincing, most of which is based on a quote by Thomas Jefferson (who was not at the 1787 Constitutional Convention), and which talks about “foreign business”, not immigration. Upon this quote, McCarthy seems to assume all immigration authority comes from the president, which is obviously untrue given all the statutory law passed by Congress that was discussed in the previous paragraph. As Patterico notes:

McCarthy also argues …it doesn’t matter what Congress says about who comes into the country because that’s up to the President.

This argument fails as an initial matter because (as Dan McLaughlin has pointed out) it is Congress, not the President, which has plenary power under the Constitution “to exclude aliens or prescribe the conditions for their entry into this country.” It can delegate a conditional exercise of that power, but if it prohibits that power from being exercised in a certain manner, the President cannot overrule Congress.

Getting back to those laws, McCarthy makes the case that the 1952 law empowering the president still remains, citing the 1980 revocation of Iranian visas. Bier has countered that there were many exceptions to this order, specifically humanitarian reasons, and many people continued to come into the country that year. Interestingly, Bier also points out that in the 1990s, there was litigation about country of origin bans concerning Vietnamese citizens. A law stating that Vietnamese who had fled to Hong Kong had to return before applying for American immigration visas was struck down (due to the ban on discrimination due to place of residence). McCarthy also argues that this is irrelevant because the Iranian ban and the current ban are national security concerns while the Vietnam law was not. Again to Patterico’s piece:

In essence, McCarthy is saying: even if the text says the President can’t discriminate on the basis of nationality or place of residence, that was designed to address nasty and mean discrimination by racist types, not good discrimination based on a desire to protect the country. McCarthy is asking us to ignore the text and look at the hearts of the legislators.

This is the same mushy and standardless sort of textual interpretation that leftists love to use when there is a clear textual provision they don’t like

Obviously, if we allow national security exceptions to a law, then all expansions of executive power are simply justified via national security, just as they always are.

Finally, McCarthy makes probably his best point on an Obama era immigration law, Section 1187 (a) (12), which governs the Visa Waiver program. In this law, Congress singled out certain countries where a person meeting certain nation of origin or residence requirements could have their documentation waived by the executive branch. Now Trump isn’t implementing this law, but McCarthy’s point is that Congress has passed a law that discriminates in ways prohibited by the 1965 statute. From Patterico again:

But that begs the question to be decided: does the President have authority to do this on his own? Please understand: I’m not saying Congress couldn’t undertake the actions Trump took in this order. I’m saying Congress could — but that the President can’t, alone, if Congress has already told him he can’t.

To add: McCarthy says that Congress never explicitly revoked the 1952 authority giving the president the power to ban any immigrants he wanted…but they also didn’t revoke the 1965 law stating there can be no discrimination on the basis of country. Congress can change it’s mind on these things, but the President can’t. If Trump’s power from the 1952 law remains in place, then his reduction of power from the 1965 law also remains in place, no matter what limited discrimination Congress made under Obama.

So what’s the bottom line? For one, there are too many laws in the United States. The U.S. Code is ridiculously complex, and we never repeal old laws. Authority that Congress passes to the President seems to just collect over time, leading to more and more dangerous powers that the President has, made even more dangerous when put in hands as dangerous and tiny as Trump’s. Additionally, this argument from Bier and Patterico looks good to me now, but it’ll ultimately come down to the ACLU and the government’s arguments in federal court. Hopefully, if the courts strike down Trump’s order he’ll cede defeat and not trigger a constitutional crisis. It’s both good that the system worked to check a badly made policy so quickly and terrifying that it only took 8 days for Trump’s executive reach to clash with a federal judge.