On Sunday, February 5, 2017 at 7:24:16 AM UTC-8, W. Wesley Groleau wrote:
Wes -- extra credit for you and me. I pulled the TRO briefs filed in the USDC WD Washington case and extracted some of the arguments. The States cited and relied on 8 USC 1152(a)(1)(A), and the Trump administration responded with a long version of my short-hand conclusion (bad cut and paste from OCR PDF):
"More fundamentally, however, the State misreads 8 U.S.C. § 1152(a)(1)(A) as
constraining the broad delegation of authority to the President in Section 212(f) of the Act. “[I]t is a well established axiom of statutory construction that, whenever possible, a court should interpret two seemingly inconsistent statutes to avoid a potential conflict.” California ex rel.
Sacramento Metro. Air Quality Mgmt. Dist. v. United States, 215 F.3d 1005, 1012 (9th Cir. 2000).
Likewise, it is a “well established canon of statutory interpretation . . . that the specific governs the general.” RadLAX Gateway Hotel v. Amalgamated Bank, 132 S. Ct. 2065, 2070-71 (2012). In light of these principles, Section 212(f) is easily reconciled with § 1152(a)(1)(A): the latter sets forth the general default rule that applies in the absence of action by the President,
whereas Section 212(f) governs the specific instance in which the President proclaims that entry of a “class of aliens” would be “detrimental to the interests of the United States.” Here, as the challenged Executive Order involves “detrimental” findings, Section 212(f) controls. That is
precisely why (as discussed above) prior Presidents have drawn nationality-based distinctions when exercising their authority under Section 212(f). And it is likewise why the 2015 Amendment to the INA, as implemented by the Executive Branch over the past year, has drawn the exact same nationality-based distinctions as the Executive Order. Indeed, under the State’s view, the United States could not suspend entry of nationals of a country with which the United States is at war. The INA plainly does not require that result.
The placement of the anti-discrimination rule within Section 1152 further indicates that the rule is not intended to curb the President’s authority under Section 212(f) to suspend or impose restrictions upon entry. Section 1152 generally establishes a uniform annual numerical limit on immigrant visas for nationals of each foreign country. Had Congress intended to enact a general bar against nationality-based distinctions, it would have enacted such a bar as a general provision of the INA, rather than as a subpart of a subsection speaking to the implementation ofnati onality-based numerical limitations for the issuance of immigrant visas.
Finally, the State mischaracterizes the Executive Order as “tak[ing] us back to a period in our history when distinctions based on national origin were accepted . . . rather than outlawed.” TRO Mot. at 20. As an initial matter, the State repeatedly characterizes the Executive Order as discriminating on the basis of “national origin.” See TRO Mot. at 1, 6. But the Executive Order does not distinguish on the basis of national origin insofar as that term implicates ethnic heritage; rather, discrimination on the basis of nationality implicates whether “a person ow[es] permanent allegiance to a state.” 8 U.S.C. § 1101(a)(21) (defining “national”). In any event, in 2015, Congress amended the INA to single out nationals of Iraq, Syria, and other to-be-designated countries for exclusion from the Visa Waiver Program. See Background, Section II.B. It is that same group of countries that is covered by Section 3(c) of the Executive Order, which expressly cross-references 8 U.S.C. § 1187(a)(12). And Section 5(c)
of the Executive Order applies to nationals of Syria, one of the countries Congress expressly identified. Accordingly, the President has joined with Congress in selecting the seven countries whose nationals warrant different treatment on the basis of national security and foreign policy . . . "
Seems pretty convincing to me, but then again, the judge granted the TRO, finding that there was a substantial likelihood that the states would prevail on the merits. You can watch the argument here.
http://www.wawd.uscourts.gov/news/state-washington-vs-donald-j-trump-et-al-video-posted (argument at 33:04/44:51).
The states raised the usual equal protection, establishment, due process arguments that didn't make much headway in Louhghalam v. Trump. It also had other claims in their complaint, but it doesn't look like they got briefed or argued in the TRO. The states relied most heavily on due process and the establishment cause.
I think the judge granted the TRO based on the argument that the EO applied to people who were already in the the country -- not green card holders, but people who were here and who were entitled to due process and equal protection under the constitution or people who were here and working for the UW (for example) and then left and want to come back. The judge does suggest that there is no factual basis for the order at 39:00. Hmmmmm. He should avoid that. Libtard! At 52:30 states' counsel also cited to the two orders from other courts where it was held that the EO violated due process, at least in part.
http://www.cnn.com/2017/01/29/politics/ny-immigration-order-stay/ So, the Washington case is not alone.
If anything, the judge should be impeached for wearing a bow-tie. The shame!
-- Jay Beattie.