In his signing message on October 3, 1965, Lyndon Baines Johnson explained that the immigration law of the United States, mired in our preference for “good” immigrants from Western Europe, would no longer be based upon what kind of people we “liked.” Those days were done.
This bill says simply that from this day forth those wishing to immigrate to America shall be admitted on the basis of their skills and their close relationship to those already here.
This is a simple test, and it is a fair test. Those who can contribute most to this country–to its growth, to its strength, to its spirit–will be the first that are admitted to this land.
The fairness of this standard is so self-evident that we may well wonder that it has not always been applied. Yet the fact is that for over four decades the immigration policy of the United States has been twisted and has been distorted by the harsh injustice of the national origins quota system.
Are they back? So it would seem. While many argue policy and fallacy, because it’s so much easier to spew feelings, whether supported or passionate, Cato’s David Bier does the unthinkable. He argues law.
But the order is illegal. More than 50 years ago, Congress outlawed such discrimination against immigrants based on national origin.
That decision came after a long and shameful history in this country of barring immigrants based on where they came from. Starting in the late 19th century, laws excluded all Chinese, almost all Japanese, then all Asians in the so-called Asiatic Barred Zone. Finally, in 1924, Congress created a comprehensive “national-origins system,” skewing immigration quotas to benefit Western Europeans and to exclude most Eastern Europeans, almost all Asians, and Africans.
The issue is not despite how strongly you disagree, whether we should suspend immigration from seven middle east countries, or facilitate immigrants of one religion rather than another. Whether you believe so or not is a fine way to spend a cocktail party, but a president is bound by law.
Mr. Trump appears to want to reinstate a new type of Asiatic Barred Zone by executive order, but there is just one problem: The Immigration and Nationality Act of 1965 banned all discrimination against immigrants on the basis of national origin, replacing the old prejudicial system and giving each country an equal shot at the quotas. In signing the new law, President Lyndon B. Johnson said that “the harsh injustice” of the national-origins quota system had been “abolished.”
Since 1965, the only permissible criteria for immigration preference are immediate family members and specialized skillsets. But, as seems to always be the case in law, there is a safety valve to be found for the executive. Despite the foregoing, 8 U.S.C. § 1182(f) provides:
(f) Suspension of entry or imposition of restrictions by President
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.
And President Trump, in reliance upon this authority, has suspended entry for 90 days, with the possibility of further suspension. Bier argues that this safety valve can’t be used for discriminatory purposes, as the subsequent 1965 statute made clear.
But the president ignores the fact that Congress then restricted this power in 1965, stating plainly that no person could 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.” The only exceptions are those provided for by Congress (such as the preference for Cuban asylum seekers).
The text of the 1952 law fails to provide much by way of restriction on its exercise. It defers to the president to decide what may be “detrimental to the interests of the United States,” as vague a condition as there can be. But then, don’t we trust our president to make tough calls? If we didn’t, why would we elect him?
But the good news is that there is an indication that courts won’t permit the Executive to flex his muscle without rational basis.
While courts rarely interfere in immigration matters, they have affirmed the discrimination ban. In the 1990s, for example, the government created a policy that required Vietnamese who had fled to Hong Kong to return to Vietnam if they wanted to apply for United States immigrant visas, while it allowed applicants from other countries to apply for visas wherever they wanted. A federal appeals court blocked the policy.
The government in that case did not even bother arguing that the 1952 law permitted discrimination. The court rejected its defense that a “rational link” with a temporary foreign policy measure could justify ignoring the law — an argument the Trump administration is sure to make. The court wrote, “We cannot rewrite a statutory provision which by its own terms provides no exceptions or qualifications.”
But Congress, in its wisdom, sought to circumvent the underlying problem:
To resolve this case, Congress amended the law in 1996 to state that “procedures” and “locations” for processing immigration applications cannot count as discrimination.
However, that bit of shenanigans doesn’t apply to the problem created by this Executive Order.
Even if courts do find wiggle room here, discretion can be taken too far. If Mr. Trump can legally ban an entire region of the world, he would render Congress’s vision of unbiased legal immigration a dead letter. An appeals court stopped President Barack Obama’s executive actions to spare millions of undocumented immigrants from deportations for the similar reason that he was circumventing Congress. Some discretion? Sure. Discretion to rewrite the law? Not in America’s constitutional system.
There are messages here. The first is that the same legal incapacity to circumvent law that prevented President Obama from changing immigration policy should similarly prevent Trump from doing so in the opposite direction. Double-edged sword and all.
The second is that handing too much power and discretion to the Executive may thrill you when he ignores law and creates faux executive law you like, but will come back to bite you in the butt when he’s “not your president” and does something you hate.
And finally, writing law is hard, far harder than advocates of a law want you to believe. Their concern is that the law accomplish their goal. But the societal concern is what else the law does, the unintended consequences, the collateral damage, the potential for abuse. These are the things advocates disingenuously deny, but the rest of us can’t ignore.
Is Trump’s Executive Order unlawful? That will likely be left to the courts to decide, whether it passes muster under the rational basis test and whether it violates the anti-discrimination provisions of the Immigration and Nationality Act of 1965. It’s hardly clear what will come of it, but it’s very clear that if you didn’t like President Obama’s exercise of unilateral fiat, then you shouldn’t like President Trump’s either. And vice versa. Hard as it may be to appreciate, the sword swings both ways and it will come back to chop your preferred immigrant policy, and any other policy, eventually.