Responding to Andrew McCarthy on the Legality of Trump's Immigration Order

Yesterday morning I linked and discussed an op-ed in the New York Times by David J. Bier, arguing that President Trump’s immigration order signed yesterday is illegal. Bier is described as “an immigration policy analyst at the Cato Institute’s Center for Global Liberty and Prosperity.” Andrew McCarthy at National Review responded to Bier with a piece that purports to rebut Bier’s analysis. I am not an immigration lawyer and do not claim any expertise in this area, but I’m capable of reading a statute and a legal argument, and I thought a post that analyzed the arguments of Bier and McCarthy might be useful to people interested in the topic.


Before I get into the weeds, let me make a couple of general observations.

First, as Bier concedes, to the extent that Trump’s order purports to suspend refugee status for refugees from Syria, Iraq, and other places, I believe it can do so — at least to the extent that no determination has yet been made with respect to a particular refugee. The controversy is not over refugee status but a more general suspension of immigration (the details of which I will discuss below.)

Second, Bier’s argument is not that the United States has no control over its borders, but that decisions to deny immigration to everyone from a particular country is a decision that must be made by Congress, not the President. Nothing in Bier’s argument says the U.S. is helpless in the face of developments in another country.

Third, this post does not address a judge’s decision last night granting a stay of certain actions pursuant to Trump’s executive order. The analysis of this post may be relevant to the litigation of that case, but we don’t know yet, as the judge has not yet released a written explanation of her reasoning.

Now, to the details. Bier argues: “The Immigration and Nationality Act of 1965 banned all discrimination against immigrants on the basis of national origin.” At issue is this section of Trump’s order:

I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).

Bier argues that suspending entry of people from specific countries, as Trump’s order does, amounts to discriminating on the basis of nationality or place of residence, in violation of 8 U.S.C. § 1152:

Except as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 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.

Bier says: “Mr. Trump may want to revive discrimination based on national origin by asserting a distinction between ‘the issuance of a visa’ and the ‘entry’ of the immigrant. But this is nonsense. Immigrants cannot legally be issued a visa if they are barred from entry.”


Bier notes that Trump relies in part on a 1952 law “that allows the president the ability to ‘suspend the entry’ of ‘any class of aliens’ that he finds are detrimental to the interest of the United States.” But, Bier argues, this provision was overruled by the later 1965 amendments present in section 1152 quoted above.

McCarthy responds to this argument in several ways. His arguments are dismissive of textualism, and give excessive deference to executive power.


McCarthy argues that Trump’s order and Congress’s statute (section 1152) are not in conflict, and casts textualism to the wind as he does so:

[T]his provision is not as clearly in conflict with Trump’s executive order as Bier suggests. As he correctly points out, 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.

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. Remember the Halbig case, which went to the Supreme Court in the companion case of King v. Burwell? There was a clear textual provision (“established by the State”) which the Supreme Court read out of the law based on their personal interpretation of Congress’s intent. I don’t like this sort of analysis when the left uses it, and so I don’t like it when the right uses it either.


McCarthy also argues that the Constitution empowers the President to protect citizens: “the president’s clear constitutional authority to protect the United States would take precedence over Congress’s dubious authority to limit the president’s denial of entry to foreign nationals.” In other words, 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.


This argument goes to the heart of how citizens feel about executive power. The argument that we should read all kinds of implied authority into the President’s Article II powers reminds me of the debate over Bush’s wiretapping. As I explained in 2013:

I never bought into Bush’s Article II justifications, which struck me as too much of an assertion of kingly powers, but for a while, I bought the argument that FISA authorized Bush to conduct the wiretaps. I ultimately changed my mind in 2008, because FISA explicitly provided for a declaration of war, meaning the AUMF could not implicitly authorize what the statute had already expressly prohibited.

My views changed because of my interpretation of the statute passed by Congress. But folks like McCarthy, who is of a rather more authoritarian bent when it comes to fighting the scourge of Islamic terrorism, always argued that what Congress said in this area didn’t much matter. McCarthy argued that Bush had the inherent power under the Constitution to conduct the wiretapping, and if Congress tried to pass a law like FISA to the contrary, it had no business doing so.

That sort of analysis flies in the face of the analysis of the Youngstown Sheet & Tube case relating to Harry Truman’s illegal seizure of steel plants, ostensibly for the purposes of national security. Presidents will always cite national security as a reason to overstep their bounds, and there will always be authoritarians there to applaud. But in the Youngstown case, Justice Jackson’s famous concurring opinion set the standard for how sweeping claims of executive power are to be analyzed, and this quote is vitally relevant:

When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

In other words, when the President acts against a law passed by Congress, he had better be exercising a power clearly given to him and him alone by the Constitution. But McCarthy’s attempts to establish an Article II power in this area, like the Bush wiretapping, fall flat. He cites Thomas Jefferson speaking about the President’s authority in “the transaction of business with foreign nations.” But in the very next paragraph McCarthy is forced to concede that Congress has constitutional authority “to establish the qualifications for the naturalization of citizens.”


What this means is that, as already noted, granting legal status to aliens is a matter for Congress, not the President. And when a President takes measures that are incompatible with the provisions of a statute passed by Congress regarding immigration, his powers are at their “lowest ebb” and his actions cannot be sustained.

The contrary view, resting on the President’s national security authority, can be taken to absurd lengths. I have already noted that Presidents always rely on national security or emergencies to stomp on the Constitution, whether they are locking citizens in internment camps, seizing steel mills or railroads, or grabbing citizens’ gold. And once you extend this authority into the area of immigration, you’re essentially giving up any argument that Congress has a say in deciding who comes into the country and who doesn’t. Once we concede that the President can say who comes in and who stays out as a matter of national security, we give up our ability to argue against almost any immigration order issued by a President — including President Obama.

Indeed, Obama tried to justify DAPA, his sweeping unconstitutional amnesty, in terms of our national security. In the United States’s brief in United States v. Texas, at pages 11-12, the Solicitor General wrote:

Deferring action for these individuals, the Secretary continued, would support “this Nation’s security and economic interests and make[s] common sense, because [it] encourage[s] these people to come out of the shadows, submit to background checks, pay fees, apply for work authorization (which by separate authority I may grant), and be counted.”

See what I mean? Presidents cite national security for literally everything. If you let them, they will run completely amok — and tell you they have to, so you can be safe.


McCarthy also argues as follows:

Trump’s executive order also expressly relies on an Obama-era provision of the immigration law, Section 1187(a)(12), which governs the Visa Waiver Program. This statute empowers the executive branch to waive the documentation requirements for certain aliens. In it, Congress itself expressly discriminates based on country of origin.

. . . .

So, not only has Congress never repealed the president’s sweeping statutory power to exclude classes of aliens from entry on national-security grounds; decades after the 1965 anti-discrimination provision touted by Bier, Congress expressly authorized discrimination on the basis of national origin when concerns over international terrorism are involved. Consequently, by Bier’s own logic, the 1965 statute must be deemed amended by the much more recent statute.


McCarthy says the executive order “relies on” section 1187(a)(12) . . . but the only citation of that provision is the language I already quoted above, which, as a reminder, is here:

I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order . . .

It’s not clear to me precisely what McCarthy is arguing here. He says section 1187(a)(12) allows the executive to waive certain visa requirements — but that’s not what Trump is doing here. He says Trump “relies on” that provision, but it reads to me like Trump is citing it merely as a reference to a list of countries. Interpreting McCarthy’s argument as charitably as I can, I interpret it as an analogy: Congress itself has discriminated against certain countries, so therefore Trump can do so here as well.

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.

Yes, Congress can change its mind, and if McCarthy is right that Congress has carved out an exception to the discrimination ban by virtue of the provisions in section 1187(a)(12), that would indeed amend the 1965 amendments embodied in 8 U.S.C. section 1152 cited above.

But I don’t see how that provides authority to discriminate against these countries in ways unrelated to the waiver of certain visa requirements, which is what section 1187(a)(12) actually seems to cover.

In other words, just because Congress has changed its mind in one area does not mean Trump can in another.


I’m also puzzled by this argument from McCarthy:

Bier concedes that, despite the 1965 anti-discrimination statute, President Jimmy Carter barred entry by Iranian nationals in 1980, after the Khomeini revolution led to the U.S.-hostage crisis. But he treats Carter’s restriction based on national origin as an aberration.

That’s not what Bier says. McCarthy makes it sound as though the Carter action provided a clear precedent against the non-discrimination law, but Bier argues that, to the contrary, it was not:

Jimmy Carter barred certain Iranians during the 1980 hostage crisis, but the targets were mainly students, tourists and temporary visitors. Even then, the policy had many humanitarian exceptions. Immigrants continued to be admitted in 1980.


This is important because, as Bier has already explained earlier in the op-ed, the discrimination ban does not apply to students, tourists, or other temporary visitors:

Note that the discrimination ban applies only to immigrants. Legally speaking, immigrants are those who are given permanent United States residency. By contrast, temporary visitors like guest workers, students and tourists, as well as refugees, could still be barred.

Bier is not saying the Carter order was a mere aberration. He is saying it does not violate the discrimination ban passed by Congress in 1965. That is a very different argument.

Ultimately, McCarthy’s piece, praised by many who support Trump’s order on a policy level, is revealed to be overly deferential to the executive. It applies a legal framework for interpreting legislative texts that rejects textualism and would make lefties smile. It appears to misunderstand the difference between Congress’s authority to change its mind on an immigration matter, and a President’s ability to reject Congress’s judgment in this area. And finally, it misstates the arguments of Bier, the target of his criticism.

It could be that Bier is ultimately wrong and that Trump’s order is legal. But not, I think, for the weak reasons offered by Andrew McCarthy.

UPDATE: At the risk of making a long post even longer and harder to get through, I think that the best argument for the legality of the executive order is the argument (made by my commenter shipwreckedcrew) that the 1965 non-discrimination provision (section 1152(a)) did not explicitly amend the language of the 1952 broad grant of authority to suspend entry pursuant to section 1182(f). Bier argues that, because the 1965 provision came later, it limits the broad grant of authority given in 1952, and did not have to do so explicitly.

I think Bier’s argument is even more persuasive when you note that the non-discrimination provision in section 1152(a) says it applies “[e]xcept as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title.” In other words, Congress carved out specific exceptions to the general nondiscrimination rule, and section 1182(f) was not one of the listed exceptions. That analysis strongly indicates that the rule of section 1182(f) is not an exception to the nondiscrimination rule in section 1152(a).

The counterargument is that if Congress wanted to change the broad grant of authority in section 1182(f), they would have rewritten section 1182(f). I think this is wrong, because lawmakers enact broad principles all the time without specifically rewriting every other previous law to which the broad provision might apply. If Congress says: “the federal government will from this point forward no longer use race as a factor in employment decisions” then Congress doesn’t have to rewrite or repeal every previous provision in law that might have conflicted with this new and broad provision. It would be better practice to do so, but they don’t have to.


The same analysis applies here: the later, broader provision, not carving out an exception for the President’s previous broad grant of authority, limits that broad grant.

Until, that is, Congress says otherwise.

UPDATED to correct the name of the Youngstown Sheet & Tube v. Sawyer case.




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