By Dan Calabrese —— Bio and Archives February 6, 2017
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Watch federal judge James Robart's #BlackLivesMatter declaration, plus his challenge to Seattle's police union. pic.twitter.com/UDgQl2XCiu
— Ansel Herz (@Ansel) August 23, 2016
Federal immigration law also includes Section 1182(f), which states: “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate” (emphasis added). Section 1182(f) plainly and sweepingly authorizes the president to issue temporary bans on the entry of classes of aliens for national-security purposes. This is precisely what President Trump has done. In fact, in doing so, he expressly cites Section 1182(f), and his executive order tracks the language of the statute (finding the entry of aliens from these countries at this time “would be detrimental to the interests of the United States”). While Bier ignores the president’s constitutional foreign-affairs authority (although Trump expressly relies on it in the first line of his executive order), he concedes that Trump is relying on a statute. He theorizes, nevertheless, that because Section 1182(f) was enacted in 1952, whereas the non-discrimination provision (Section 1152(a)) was enacted years afterward, the latter must be deemed to have amended the former – thus removing the president’s authority to impose class restrictions based on the aliens’ country of origin.
Nice try. Put aside that Trump is principally relying on his inherent constitutional authority, and that the class restriction he has directed is based on national-security, not racial or ethnic considerations. 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. Under this provision, Congress provides that an alien is eligible for the waiver only if he or she has not been present (a) in Iraq or Syria any time after March 1, 2011; (b) in any country whose government is designated by the State Department as “repeatedly provid[ing] support for acts of international terrorism”; or (c) in any country that has been designated by the Department of Homeland Security as a country “of concern.” Trump is principally relying on his inherent constitutional authority. 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.Remember, the legal argument here is not about whether this person or that person likes or agrees with the ban. That's the argument that got Sally Yates fired as acting attorney general. The argument is whether the law gives Trump the legal authority to do what he did. That is not even arguable. It clearly does. Give the ban's opponents credit for shopping for the right judge. Had they not done so, the ban would surely still be in effect. Trump used typically clumsy language in complaining that the judge's order was a matter of "second-guessing the president." Judges are allowed to second-guess the president. But they have to have a legal basis on which to do so, and Judge Robart didn't.
Dan Calabrese’s column is distributed by HermanCain.com, which can be found at HermanCain
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