Update on the Immigration Executive Order

 

As reported in the WSJ, this weekend proved to be a legal chaos for people attempting to enter the United States who are citizens of the seven countries named in President Donald Trump’s executive order:

Over the weekend, federal judges in three states issued separate rulings that blocked the deportation of those detained at airports. But the rulings differed. The Brooklyn judge issued a nationwide injunction on deportations but stopped short of allowing the travelers into the country and didn’t address the constitutionality of Mr. Trump’s measures. A Boston judge said officials at Logan International Airport could not detain those with valid visas. That prompted lawyers to advise green-card holders to reroute their trips so they enter the U.S. in Boston.

But while the confusion may have been great, the scale of the order’s reach was more modest than media reports often suggested. Over on the Corner, Rich Lowry pointed to figures from USA Today (that are in line with those in the WSJ piece above) that indicated that the order affected only a few hundred people:

The Department of Homeland Security said that by Saturday evening, its agents had stopped 109 foreigners at U.S. airports based on Trump’s order and prevented another 173 people from boarding flights headed for the U.S. […]

The official said the order allowed legal permanent residents — known as green-card holders — and foreigners who were granted special visas for Iraqi and Afghan interpreters, to enter after undergoing a full background check and in-person interview. The official said 81 people made it through that process and were allowed to enter the country. The official said Homeland Security’s legal team was reviewing the New York federal judge’s Saturday ruling and that the department would adjust its practices in line with the order.

Elsewhere on NRO, Andrew McCarthy argues that, if — has been alleged — the executive is in conflict with the 1965 Immigration and Nationality Act, the courts should side with the president on the grounds that his powers in international affairs are stronger (McCarthy rejects that there is such a conflict)*:

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. And quite apart from the president’s presumptive supremacy in foreign affairs, we must also adhere to a settled doctrine of constitutional law: Where it is possible, congressional statutes should be construed in a manner that avoids constitutional conflicts.

On the Volokh Conspiracy, Jonathan Adler discusses reports that the administration intentionally kept the order away from attorneys from several cabinet departments who are normally asked to evaluate and comment on such measures before their implementation:

Under normal circumstances, I believe that the policy embodied in the Trump EO is lawful under existing precedent and would survive judicial review. That is, I believe the executive branch may decide to identify specific countries from which immigrants and others seeking entry into the country must receive “extreme vetting” and that the President may order a suspension of refugees from particular places (as Obama did with Iraq in 2011). Despite some of the President’s comments during the campaign about wanting a “Muslim ban,” this EO does not come anywhere close to effectuating such a ban, as it largely focuses on countries that were previously identified as sources of potential terror threats.

I stress  “under normal circumstances” because these are not normal circumstances. The cavalier and reckless manner in which this specific EO was developed and implemented will likely give judges pause — and with good reason. Courts typically give a degree of deference to executive branch actions under the assumption that polices are implemented after serious consideration of relevant legal and policy questions. Indeed, the more serious the government interest allegedly being served, the more serious one expects the government’s internal review to be (unless, of course, there are exigent circumstances necessitating immediate action, but that was not the case here).

* This sentence originally read “Andrew McCarthy argues that the executive order trumps any legislation, such as the 1965 Immigration and Nationality Act.” This was an inaccurate description and it has been corrected above.

Published in Domestic Policy, Immigration
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  1. Umbra Fractus Inactive
    Umbra Fractus
    @UmbraFractus

    Tom Meyer, Ed.:Elsewhere on NRO, Andrew McCarthy argues that the executive order trumps any legislation, such as the 1965 Immigration and Nationality Act:

    Er, no. The President cannot override legislation unless the law itself is unconstitutional. By this logic Obama was perfectly justified in refusing to enforce immigration laws. After all, immigration is an international issue, right?

    • #1
  2. MarciN Member
    MarciN
    @MarciN

    Tom Meyer, Ed.: The Department of Homeland Security said that by Saturday evening, its agents had stopped 109 foreigners at U.S. airports based on Trump’s order and prevented another 173 people from boarding flights headed for the U.S. […]

    This is the piece of information that is missing from the other stories that I’ve read concerning the “ban.” That is a very small number of people affected by the president’s order.

     

     

    • #2
  3. Snirtler Inactive
    Snirtler
    @Snirtler

    The backpedaling on legal residents, the lack of internal review to craft an order that will stand up in court, the sudden disruptions to the lives and business of ordinary people, the failure to give direction to those tasked with implementing the order — it’s amateur hour at the White House.

    • #3
  4. Umbra Fractus Inactive
    Umbra Fractus
    @UmbraFractus

    MarciN (View Comment):
    This is the piece of information that is missing from the other stories that I’ve read concerning the “ban.” That is a very small number of people affected by the president’s order.

     

    To be fair: It doesn’t matter if it’s only one, if a legal resident’s rights are being violated, it needs to be fixed.

    • #4
  5. Chuck Enfield Inactive
    Chuck Enfield
    @ChuckEnfield

    Tom Meyer, Ed.: The cavalier and reckless manner in which this specific EO was developed and implemented will likely give judges pause — and with good reason. Courts typically give a degree of deference to executive branch actions under the assumption that polices are implemented after serious consideration of relevant legal and policy questions.

    This is dangerous thinking.  It opens the door to rulings akin to, “This policy makes no sense to me, thus is must not have been carefully considered, thus it’s illegal.”  Either POTUS has the authority or he does not.  I’d very much prefer if this order had been thought through a little more, but I don’t want judges second guessing that.  It’s the proper role of the political process.

    • #5
  6. MarciN Member
    MarciN
    @MarciN

    Umbra Fractus (View Comment):

    MarciN (View Comment):
    This is the piece of information that is missing from the other stories that I’ve read concerning the “ban.” That is a very small number of people affected by the president’s order.

    To be fair: It doesn’t matter if it’s only one, if a legal resident’s rights are being violated, it needs to be fixed.

    That is true.

     

    • #6
  7. Tom Meyer, Ed. Member
    Tom Meyer, Ed.
    @tommeyer

    Umbra Fractus (View Comment):

    Tom Meyer, Ed.:Elsewhere on NRO, Andrew McCarthy argues that the executive order trumps any legislation, such as the 1965 Immigration and Nationality Act:

    Er, no. The President cannot override legislation unless the law itself is unconstitutional. By this logic Obama was perfectly justified in refusing to enforce immigration laws. After all, immigration is an international issue, right?

    On second reading, I misstated McCarthy’s argument. His point is that if there is an conflict between Congress and the president on matters of international affairs when it comes to interpretation, then the courts should be disposed to rule in favor of the president, whose powers in this realm are stronger than the legislature’s:

    Even on its face, this 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. The directive is an effort to protect national security from a terrorist threat, which, as we shall see, Congress itself has found to have roots in specified Muslim-majority countries.

    Because of the national-security distinction between Trump’s 2017 order and Congress’s 1965 objective, it is not necessary to construe them as contradictory, and principles of constitutional interpretation counsel against doing so.

    Nevertheless, let’s concede for argument’s sake that there is conflict. At issue is a matter related to the conduct of foreign affairs – a matter of the highest order of importance since it involves foreign threats to national security. If there were a conflict here, 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.

    But there is no conflict.

    This does not mean that the president can ignore legislation. My mistake; mea culpa.

    • #7
  8. Snirtler Inactive
    Snirtler
    @Snirtler

    MarciN:

    That is a very small number of people affected by the president’s order.

    Thankfully, but probably understated, though who knows by how much or how little.

    Also looking at the numbers alone obscures the gravity of the order’s impact on individuals. This NYT feature lists examples of people–some seeking to enter on non-immigrant visas, others on immigrant visas–who were en route and turned back.

    In the case of a few travelers with green cards, such as the mother of a former Iraqi translator now living in the US and in the Army, the cost has been tears, humiliation, anxiety, and delay.

    For others who were turned back or barred from departing, the cost has been separation from loved ones and giving up their livelihoods. People gave up their jobs and businesses thinking their visas would enable them to enter the US legally.

    I recognize having a visa is no guarantee of entry, but the sudden and slipshod implementation of the order comes at a steep cost to many of these people. Their treatment has been shameful.

    • #8
  9. Richard Hanchett Inactive
    Richard Hanchett
    @iDad

    Snirtler (View Comment):

    MarciN:

    That is a very small number of people affected by the president’s order.

    Thankfully, but probably understated, though who knows by how much or how little.

    Also looking at the numbers alone obscures the gravity of the order’s impact on individuals. This NYT feature lists examples of people–some seeking to enter on non-immigrant visas, others on immigrant visas–who were en route and turned back.

    In the case of a few travelers with green cards, such as the mother of a former Iraqi translator now living in the US and in the Army, the cost has been tears, humiliation, anxiety, and delay.

    For others who were turned back or barred from departing, the cost has been separation from loved ones and giving up their livelihoods. People gave up their jobs and businesses thinking their visas would enable them to enter the US legally.

    I recognize having a visa is no guarantee of entry, but the sudden and slipshod implementation of the order comes at a steep cost to many of these people. Their treatment has been shameful.

    Any understatement of the numbers is far outweighed by the overstatement of the anecdotes.

    • #9
  10. Snirtler Inactive
    Snirtler
    @Snirtler

    iDad (View Comment):
    Any understatement of the numbers is far outweighed by the overstatement of the anecdotes.

    Because selling your business and giving up your job to move to another country and being told the same day or a few days before your flight you cannot go is no big deal.

    May you never be the object of government caprice or lack of forethought.

    • #10
  11. MarciN Member
    MarciN
    @MarciN

    Snirtler (View Comment):

    iDad (View Comment):
    Any understatement of the numbers is far outweighed by the overstatement of the anecdotes.

    Because selling your business and giving up your job to move to another country and being told the same day or a few days before your flight you cannot go is no big deal.

    May you never be the object of government caprice or lack of forethought.

    You make such a good point. The reason we are considered trustworthy throughout the world is that we can usually be counted on to keep our word and honor our deals. Someone trusted us enough to proceed with rearranging his or her life according to that trust in us.

    I cannot picture my three favorite Republicans–Bush 41, Bush 43, and Romney–imposing this travel ban suddenly without extreme cause.

    And if one of them had done this, I would have believed he had a really good reason since those three play by the same rule book I do.

    As you point out, we are only as good as our word, as GW said over and over and over again. Trust in the United States is our greatest strength, here and abroad.

    I don’t know what to think of Trump’s travel restriction, really. I want to give Trump et al. the benefit of the doubt, to say perhaps he knows of some brewing situation in Yemen that I don’t. I hope we will get more information this week.

     

    • #11
  12. Brian Watt Inactive
    Brian Watt
    @BrianWatt

    Umbra Fractus (View Comment):

    MarciN (View Comment):
    This is the piece of information that is missing from the other stories that I’ve read concerning the “ban.” That is a very small number of people affected by the president’s order.

    To be fair: It doesn’t matter if it’s only one, if a legal resident’s rights are being violated, it needs to be fixed.

    Not to be too argumentative but clearly US Customs and other federal law enforcement officials do have the discretion to detain or subject American citizens or green card holders for more questioning if their travel itinerary includes stopovers and especially multiple stopovers in countries that have been labeled as high risk for terrorism, wouldn’t you agree? If a traveler, whether an American citizen or green card holder has visited Yemen or Sudan or Libya several times, I would hope he or she would be questioned about his or her activities in these countries. I can’t see as how that’s a violation of anyone’s rights.

    • #12
  13. Umbra Fractus Inactive
    Umbra Fractus
    @UmbraFractus

    Brian Watt (View Comment):

    Not to be too argumentative but clearly US Customs and other federal law enforcement officials do have the discretion to detain or subject American citizens or green card holders for more questioning if their travel itinerary includes stopovers and especially multiple stopovers in countries that have been labeled as high risk for terrorism, wouldn’t you agree? If a traveler, whether an American citizen or green card holder has visited Yemen or Sudan or Libya several times, I would hope he or she would be questioned about his or her activities in these countries. I can’t see as how that’s a violation of anyone’s rights.

    There’s a wide gulf between what you describe and being told, “You can’t come back in at all.”

    Thankfully they appear to have corrected that, but it never should have happened in the first place. This is why precision matters.

    • #13
  14. Brian Watt Inactive
    Brian Watt
    @BrianWatt

    Umbra Fractus (View Comment):

    Brian Watt (View Comment):

    Not to be too argumentative but clearly US Customs and other federal law enforcement officials do have the discretion to detain or subject American citizens or green card holders for more questioning if their travel itinerary includes stopovers and especially multiple stopovers in countries that have been labeled as high risk for terrorism, wouldn’t you agree? If a traveler, whether an American citizen or green card holder has visited Yemen or Sudan or Libya several times, I would hope he or she would be questioned about his or her activities in these countries. I can’t see as how that’s a violation of anyone’s rights.

    There’s a wide gulf between what you describe and being told, “You can’t come back in at all.”

    Thankfully they appear to have corrected that, but it never should have happened in the first place. This is why precision matters.

    I agree that the EO was poorly communicated down the chain.

    Your original remark, unless I’m mistaken, was meant to convey that green card holders’ rights would be violated if they were sent back to their home countries which doesn’t seem to have happened since the Executive Order was announced. A few may have been detained longer than normal for some questioning before officials found them to be green card holders in good standing. Whether their rights to be detained for questioning were violated may be harder to prove. Is their a method to show that between green card renewals that a green card holder has been behaving lawfully and not communicating or engaging with terrorist organizations, apart from their own testimony? Are Americans rights violated if they are searched or questioned at length by TSA or US Customs officials particularly if their travel originated from one of the designated countries in the EO?

    • #14
  15. Western Chauvinist Member
    Western Chauvinist
    @WesternChauvinist

    Tom Meyer, Ed.: I stress “under normal circumstances” because these are not normal circumstances.

    This is rich. When leftists react with a mental breakdown, inconveniencing passengers on international flights, because of a perfectly legal EO with precedents in the previous administration(s) which temporarily detained 109 people and left another 173 “stranded”, this isn’t a “normal circumstance.” And, therefore, judges should nullify the executive action. Nuts.

    Just who are these “protesters”, btw, and how did they get into the airport without tickets?? Honest to Pete, what normal person does this??

    Does anyone believe there wouldn’t have been this reaction with a similar directive a month from now? Six months? A year? Nonsense.

    We have to stop being so easily manipulated by the Left. This will require awareness of the ends-justifies-the-means enemy and courage.

    • #15
  16. Western Chauvinist Member
    Western Chauvinist
    @WesternChauvinist

    Snirtler (View Comment):
    May you never be the object of government caprice or lack of forethought.

    To demand that government never inconvenience its citizens (let alone non-citizens) is wishful thinking. As conservatives, we know that all of life is a matter of trade-offs. If it weren’t for the Left’s hostage-taking of airport terminals, this temporary policy shift would totally be worth it.

    The Left has a death wish. If they just wanted to commit collective suicide, that would be one thing. But, they have every intention of taking us with them. @docjay is right (and is echoing Dennis Prager). It’s a civil war.

    We need to keep our powder dry.

    • #16
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