Trump’s Exclusion of Immigrants from Specific Countries Is Not Legal

President Trump issued an executive order on Friday that includes a ban on the entry of virtually all nationals from several countries. The same day, the New York Times published my argument that the portion of the ban that bars immigrants or legal permanent residents violates the law, which bans discrimination against immigrants based on national origin.

Andrew McCarthy of National Review Online was kind enough to take the time to publish a response (“Trump’s Exclusion of Aliens from Specific Countries Is Legal”). Because Mr. McCarthy’s article demonstrates significant confusion over my argument, the facts, and the laws at issue, it surprised me to see National Review editor Rich Lowry also cite it favorably. Despite the weakness of its analysis, the piece provides me an opportunity to clarify and reinforce some aspects of my argument that brevity required me to excise from the Times.

1. The Constitution gives the power to make immigration laws to Congress. Mr. McCarthy writes:

Under the Constitution, as Thomas Jefferson wrote shortly after its adoption, “the transaction of business with foreign nations is Executive altogether.” … In the international arena, then, if there is arguable conflict between a presidential policy and a congressional statute, the president’s policy will take precedence in the absence of some clear constitutional commitment of the subject matter to legislative resolution.

In other words, the president can ignore congressional limits in this area. He cites case law in which courts describe the president’s foreign affairs powers with respect to relations with foreign governments as expansive, but cites no case that concludes the president can ignore Congress to exclude immigrants. It is reminiscent of President Nixon’s famous argument that “when the president does it, that means it is not illegal.” It is Congress, not the president, that makes immigration law. “[O]ver no conceivable subject is the legislative power of Congress more complete than it is over… the admission of aliens,” ruled the Supreme Court in Oceanic Steam Navigation Co. v. Stranahan.

Mr. McCarthy had no problem defending this view when the actions at issue were President Obama’s, which were also justified based on “security,” but now adopts it to defend President Trump’s. As my Cato colleagues wrote at the time, “it is not for the president alone to make foundational changes to immigration law—in conflict with the laws passed by Congress and in ways that go beyond constitutionally authorized executive power.”

2. President Trump cannot use the supposed “purpose” of a statute to override its plain meaning. Mr. McCarthy quotes the relevant portion of the Immigration Act of 1965 (8 U.S.C. 1152(a)) that amended the Immigration and Nationality Act of 1952, which clearly prohibits discrimination in the issuance of an immigrant visa based on national origin. But Mr. McCarthy states:

…the purpose of the anti-discrimination provision (signed by President Lyndon Johnson in 1965) was to end the racially and ethnically discriminatory “national origins” immigration practice that was skewed in favor of Western Europe. Trump’s executive order, to the contrary, is in no way an effort to affect the racial or ethnic composition of the nation or its incoming immigrants.

Mr. McCarthy gives no citation for this claim—which contradicts everything the president and his advisors have been saying about the intent being to ban Muslims—but regardless of Mr. Trump’s intention, the result of his actions does affect the ethnic composition of the country, which was indeed one of the actions that Congress in 1965 thought it was banning.

But Mr. McCarthy is again claiming that the president can ignore the plain meaning of the laws of Congress, this time based on its supposed “purpose.” But as my colleagues at the Cato Institute put it, “Unenacted legislative intentions are not law under the Constitution.” It is the text on the page that makes law. Mr. McCarthy condemned this type of legal reasoning as a “post-law” argument when President Obama reasoned this same way in the Obamacare case, King v. Burwell, yet he eagerly adopts it now to defend President Trump.

3. President Trump cannot just pick and choose which statutes to enforce. Mr. McCarthy cites the relevant portion of the Immigration and Nationality Act of 1952 (8 U.S.C. 1182(f)) that grants authority to the president to suspend “any class of aliens” he deems “detrimental to the interests of the United States.” He states that this provision allows President Trump to simply ignore the ban on discriminating based on national origin. But a basic rule of statutory construction holds that in the case of a conflict, the statute enacted most recently wins. In this case, that would be the 1965 amendments banning discrimination in the 1952 Act.

Moreover, as the Supreme Court said in Beals v. Hale, “statutes which apparently conflict with each other are to be reconciled, as far as may be, on any fair hypothesis, and validity given to each.” My view treats the 1952 Act as a general authority subject to a specific limitation by the amendments of 1965—the statutes are reconciled, and both still have validity—but adopting Mr. McCarthy’s view would void the restriction from 1965 act’s amendments. If President Trump can legally ban a nationality by vaguely deeming them a “detriment,” then the authority in the 1965 act would have no power at all to prevent discrimination.

4. President Trump cannot remake the immigration system by executive order. The Immigration Act of 1965 was more than just a single provision prohibiting discrimination. As Justice Scalia has written, statutory construction “is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme.” Turning to the rest of the Immigration Act of 1965 makes clear that Congress intended and did create an entire system—or statutory scheme—of unbiased immigration. The rest of 8 U.S.C. 1152 is intended to give each country an equal shot at the number of visas issued each year. This entire system cannot be undone by the actions of this president.

5. Congress never authorized discrimination based on national origin. Mr. McCarthy also notes that the president’s order draws its list of seven countries from a list drawn up by Congress and the president in 2015. That law required that temporary visitors who are nationals of these countries be interviewed and receive a visa before travelling to the United States.

This is certainly discriminatory, but this provision did not create a new rule that, as Mr. McCarthy infers, “expressly authorized discrimination on the basis of national origin when concerns over international terrorism are involved.” This law dealt with temporary visitor visas, so it had no impact whatsoever on the bar on discrimination in the issuance of permanent immigrant visas for people from these countries. Just to reiterate, the bar on national origin discrimination only applies to immigrants–people who are coming to the United States for permanent residency.

His confusion over this issue reappears when he discusses President Carter’s visa restrictions on temporary visas for Iranian nationals, and in any case, President Carter’s order is simply not comparable to President Trump’s. Mr. McCarthy claims that President Carter imposed the restrictions based on “terrorism.” This is just not true. “Militants occupying the embassy had been using a visa machine there to issue and validate visas,” reported the New York Times in 1980. “Henceforth no Iranians would be allowed to enter this country unless they had their visas revalidated by the State Department in consular offices.” This is nothing even remotely similar to what President Trump is doing: creating a presumptive ban on all immigrants based on their nationality even when there was no doubt about the legitimacy of their visas.

6. President Trump cannot ignore court precedent based on national security. Mr. McCarthy waves off the D.C. Court of Appeals opinion in U.S. Department of State v. Legal Assistance for Vietnamese Asylum Seekers that enforced the ban on national origin discrimination by claiming that it “was unrelated to national security, and thus problematic.” But the 1952 act only requires that the entries be “detrimental.” There is no requirement that they be a “threat.” Either this power is unfettered by the 1965 amendments or it is not. Mr. McCarthy wants to have it both ways.

Moreover, the government used this exact defense in the Vietnamese case. “This case involves the power to exclude aliens from the Nation, a power that is integrally related to the conduct of foreign relations,” it wrote. The discriminatory policy was adopted, it said, “for important reasons of foreign policy.” Yet the D.C. Court of Appeals rejected the argument. “The appellees’ proffered statutory interpretation,” it found, “leaving it fully possessed of all its constitutional power to make nationality-based distinctions, would render 8 U.S.C. § 1152(a) a virtual nullity.”

Of course, this makes hash of Mr. McCarthy’s assertion that the president has no limits on his ability to restrict or regulate immigration.