re: Open Invitation: Explain How the Immigration EO is Unconstitutional

The Cato Institute makes an argument:

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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....

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The rest here.

I think the one thing the administration did right with it was to not put "Muslim ban" in the EO. I don't think Yates argument about surrounding comments making it unconstitutional are valid, though the courts do use legislative intent. I don't have a problem temporarily halting new visas, and I've spoken to a few liberals (including a Con law professor)who disagree with halting them but don't think it's unconstitutional.

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Why? It's the Christians and other religious minorities who are getting hacked to death and their little girl sold in to slavery - the textbook example of a refugee who needs asylum.

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I think ISIS murders far more Muslims (obviously more to murder) than any other religion.

Regardless, it's irrelevant to the constitutionality anyways.

(no message)

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If you went to LSU I guarantee you Cohen could come in here and prob drop some serious scholarly knowledge on your particular issue.

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Never took Cohen. I'd imagine there are 1st amendment religious cases regarding executive orders somewhere, but I'm not going to research it. I want a dissenter to tell me!

Eta: just read the CAIR lawsuit. Only one case cited. Catholic League for Religious & Civ. Rights v. City & County of San Francisco, 567 F.3d 595 (9th Cir. 2009). Will check it out.

Eta2: LOL, much bluster from the 9th circuit en banc, but affirmed the dismissal of plaintiffs' claims that the government singled out their religion.

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I'd imagine there are 1st amendment religious cases regarding executive orders somewhere,

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Not my area at all but I would guess the case law is pretty slim because very few EO's invoke 1st Amendment religious issues.

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According to tigerlaff, the first amendment doesn't apply to the president's actions and there is apparently no constitutional basis under the first amendment to bring a case against a president, and specifically an EO.

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I'm not saying that definitively. I'm asking you to prove me wrong. It's the very purpose of this whole thread. I've done more than my fair share of heavy lifting here. I've made my argument and given you the textual basis thereof.

If you can find me an example of an EO being challenged successfully via the First Amendment, throw it up there.

Put more plainly, if there has never been a successful free exercise or establishment clause challenge to an EO before, then your claim about the 1st amendment fails. You might think it's unconstitutional, but that's nothing more than a twinkle in your eye.

Cash me owwside how bough dat

I promise that I will review what you posted and respond.

Cato's argument isn't about individual immigrant right but about the legal authority of the president to issue this particular EO.