And the US citizen being unlawfully detained is an alarming example of how CBP is discriminating against Muslims, whether they are citizens or not and whether they are actually even Muslim or not due to their last names. Clearly CBP is out of control, but I believe the EO has emboldened them to target Muslims.

Thanks for the reply. I apologize I attributed the wrong D.C. case to you. I must have gotten your site confused with another that indeed tried to use this overturned case.

As far as the nondiscrimination clause, I’ll just post this article that also states it limits the delegated authority of 1182(f). http://yalejreg.com/nc/see-the-sights-of-terminal-4-a-reply-to-section-1182f-enthusiasts-by-ian-samuel/ . “The explicit instructions in a State Department cable stated clearly that “visas may not be issued” to nationals of the seven listed countries, and indeed directed the revocation of existing, previously-issued visas. ” They did very plainly try to revoke and restrict visa issuance based on nationality. Your interpretation renders 1152 inoperable and useless. The exception swallows up the rule. That just isn’t logical nor consistent. What’s the point of the nondiscrimination clause if its so easily circumvented? LAVAS is on point regarding the interplay between the clauses. They are not independent of each other. In any case, we have to wait and see if a court decides to go down this path and decide.

And low blow to Chemerinksy. He is one of the nation’s top constitutional scholars, and his opinions are highly regarded, even by SCOTUS. Not a valid argument to claim he is follows the “liberal agenda.” That actually discredits your argument.

Congress indeed can discriminate when passing immigration laws, but that ability lies within their plenary power explicitly granted by the Constitution. To say that POTUS can, when specifically the INA was amended to remove discrimination, does not logically follow. There is no nexus. Congress did not delegate absolute authority. I also want to reiterate the SCOTUS has held the use of the word “may” proves delegated authority is limited. See cite in previous post. However, even Congress is limited to a rational basis in its discrimination. Mathews v. Diaz, 426 U.S. 67, 82-83 (1976). Again the 9th Circuit pointed out the government gave no facts or evidence to support its position even a rational basis. The failure to include countries that were actually implicated with terrorist ties, such as Saudi Arabia, shows there is not real rational basis. It further shows his motiviation was personal and to enhance business ties with certain countries, such as Saudi Arabia, which is an abuse of power and a violation of the Emoluments Clauses, if is business relations indeed are continuing. Which eff if we know since he won’t release his records to Congress. I see a case overlap here.

Regarding the Establishment Clause violation, the 9th Cir. rightfully considered Trump’s words, just as the 5th Cir. rightfully considered Obama’s words when he issued his unconstitutitional immigration EO. The violation does not have to be in plain text, as the precedent has held. Intent and impact are enough, which is the same for all types of discrimination cases. Its rare sophisticated companies, for example, are stupid enough to actually put their discriminatory intent in writing.

Lastly, the comparison to Obama’s restriction is improper. They are extremely different. I don’t have to bother to create arguments, as it has been done many times already as to why the two are inherently and fundamentally different. Of important note is an actual terrorist situation materialized before Obama instituted his restrictions, and he never targeted LPRs. He enhanced the vetting process. http://www.businessinsider.com/big-differences-between-trumps-immigration-ban-obamas-2011-policy-2017-2/#scope-1

http://www.politifact.com/truth-o-meter/statements/2017/jan/30/donald-trump/why-comparing-trumps-and-obamas-immigration-restri/

https://www.washingtonpost.com/news/fact-checker/wp/2017/01/29/trumps-facile-claim-that-his-refugee-policy-is-similar-to-obama-in-2011/?utm_term=.6bdaa733da34

I could keep going with the citations, but its overkill.

What a wonderfully detailed response! Thank you! You should blog yourself.

At the time I wrote this, it was unclear whether the EO applied to lawful permanent residents. I concluded it did not, and so left them out of the analysis. The Trump Administration turned out to be less prudent than that. I agree with you (and with the courts) that the EO is unlawful as applied to LPRs, for at least some of the reasons you stated.

This has pretty much killed the EO for the time being, and I’m fine with that. Our argument is now entirely academic — at least until a new EO is issued.

“I also just found that a U.S. citizen was detained and illegally denied entry based on the travel ban due to discrimiation based on his last name. The agents told him he was seeking admission. Now try to tell me that’s constitutional.”

I won’t! But I don’t see what it has to do with the EO, since Mr. Bikkannavar was traveling from Chile to the United States and is a citizen.

“The admin did not follow the necessary statutory scheme for visas revocation as laid out in the United States Code.”

Yes, this also happened after I wrote my post, and I condemn any violations of the proper procedures as well. Indeed, I do not believe Sec. 1182(f) grants the Administration the *authority* to permanently revoke visas (rather than temporarily bar entry), as the Administration appeared to be trying, but I have not studied the procedure in detail and am not certain.

On several other matters, I think you are mistaken. You cite Charles Tiefer to the effect that:

“But, as a matter of substantive law and the national immigration agenda, it makes little sense that Congress would enact a breathtakingly sweeping principle of not discriminating on national origins in one law, and not caring if that principle is completely gutted by the ‘visa-entry’ procedural distinction.”

On the contrary, I think my epidemic example makes a good case for why Congress might want to make *precisely* that distinction. Charles Tiefer may not be able to find a rational basis for the procedural distinction, but the rational basis nevertheless exists. And Charles Tiefer must meet a very high bar indeed — much higher than “I can’t see why Congress would want to do that” — if he wants a court to buy into an implied-repeal theory of Sec. 1182(f).

“Even Erwin Chemerinksy stated in the LA Times that the nondiscrimination clause applies”

“Even” Erwin Chemerinsky? Of course Chemerinsky believes that: he believes whatever the Democratic National Committee tells him to believe, changing that belief whenever he wants. See, for example, his flip-flops on judicial filibusters and the advice and consent clause, or, for that matter, his defense of the Obama Administration’s immigration executive actions (a defense that is plainly incompatible with the one he presented in the Times. I am incapable of taking Chemerinsky seriously as an authority on anything.

“Also the D.C. Cir. case you cited has a negative reporting history on Westlaw due to the 1996 Amendments to the INA.”

I didn’t cite that case. *Opponents* of the EO (the Cato Institute) cited it, and I merely responded to their citation. So if it’s been gutted anyway, so much the better for me. 🙂

“The examples you where immigrants from certain areas were restricted are red herrings. The reasoning is not based on national origin, but on some other extenuating circumstances, such as health hazards. Don’t conflate the issues.”

I didn’t! Congress has concluded that Iraq and Syria are “countries of concern,” meaning any or all of:

* (1) the aliens from those countries have an elevated likelihood of posing a credible threat to the United States

* (2) a foreign terrorist organization (such as ISIS) has a significant presence in the country

* (3) the country is a safe haven for terrorists.

Secretary of Homeland Security Jeh Johnson (an Obama appointee) made the same determination about the other countries in the EO, using authority granted under 1187(a)(12)(D)(ii). The United States government, using both direct and delegated authority from Congress, *explicitly* authorized discrimination against aliens from such “countries or areas of concern” based on rationally and legally cognizable facts about the elevated terrorism threat in those nations, which the Secretary of Homeland Security documented at the time.

“‘The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.’ Washington v. Trump”

Whether any alien from any of the countries named in the order has *actually perpetrated* an attack in the United States is irrelevant, any more than it is relevant whether a resident of Madagascar has *actually infected* a person in the United States with ebola. It suffices, for the purposes of the law, that there is an elevated risk.

“The claim Trump banned aliens from these specific countries due to terror threats is not grounded in any fact.”

If you believe this is true, then Sec. 1187 and Jeh Johnson are at fault, not President Trump. President Trump made no findings of fact in the EO; he merely acted on findings of fact already made by the previous administration. (Those findings were, incidentally, made within the “within 60 days” window you cite.)

Insofar as Sec. 1187 contradicts Sec. 1152, Sec. 1187 is the more recent law, Sec. 1187 controls, and Sec. 1152 poses no obstacle to the EO (or to Pres. Obama’s immigration actions involving the same countries).

On the other hand, insofar as Secretary Jeh Johnson’s determination that the “countries of concern” are terror threats was “not grounded in any fact,” the Obama Administration’s suspension of the visa waiver program in those countries was unlawful to the same extent as Trump’s EO. As far as I know, no one is actually making this contention, but, if you plan to argue that Trump’s EO unlawfully discriminates on the basis of national origin, you have to make the same argument about the Obama Administration’s visa waiver program. If you’d like to go there, I will gladly dig up the evidence to defend the Obama Administration’s actions here.

“If he is concerned, why didn’t he ban aliens from Saudi Arabia?”

Among other reasons, because his authority to do so was much less clear than for the countries actually affected. Sec. 1187 gave Trump clear authority under Sec. 1182(f) to bar aliens from the Sec. 1187 “countries of concern,” with Sec. 1152 notwithstanding because the ban is on grounds unrelated to national origin. If Trump tried to incorporate Saudi Arabia into the EO, without a proper finding of fact by the Secretary of Homeland Security (or Congress), then Trump would risk exceeding his authority.

“has personal ulterior motives in violation of the Emoluments Clauses.”

This is not how the Emoluments Clause works. Trump flirts daily with violating the Emoluments Clause, a very dangerous situation for him legally, but “ulterior motives” is most certainly beyond the clause’s reach.

As for the Establishment Clause, I agree (obviously) that no officer of the United States may violate it, but I do not believe that it is violated by the text of this EO. You appear to agree with that, since none of your Establishment Clause arguments are related to the text of the EO. You argue instead that there was an anti-Muslim discriminatory intent in the EO. This is, I admit, a justiciable question under current U.S. precedent, but it quickly becomes a dispute over evidence rather than a dispute over law. I, at least, don’t think there is sufficient evidence to show a discriminatory intent the EO, or at least not a discriminatory intent that vitiates the rational non-discriminatory intent that justify the EO — but we are now in territory that is perhaps best left to a jury.

I also just found that a U.S. citizen was detained and illegally denied entry based on the travel ban due to discrimiation based on his last name. The agents told him he was seeking admission. Now try to tell me that’s constitutional. http://www.theverge.com/2017/2/12/14583124/nasa-sidd-bikkannavar-detained-cbp-phone-search-trump-travel-ban

First and foremost, the ban unconstitutionally targets and deprives legal permanent residents (LPRs) of their rights. The fact is LPRs were already targeted and detained. The 9th Cir. was unpersuaded by the government’s fallacious assertion that LPRs would not be targeted because they indeed were targeted and detained, The EO has not been rescinded nor amended as it stands.

LPRs have a staturory right to re enter the country. The 1996 IIRIRA amendment to the INA very specifically states in 8 USC § 1101(a)(13), aka INA 101(a)(13), “An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws” (with exceptions and limitations not applicable here because this is a blanket ban). Permanent residents are automatically admitted to the U.S. if none of the enumerated circumstances apply. “In IIRIRA, Congress abolished the distinction between exclusion and deportation procedures and created a uniform proceeding known as ‘removal.’ See 8 U. S. C. §§1229, 1229a; (citation omitted). Congress made ‘admission’ the key word, and defined ‘admission’ to mean ‘the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.’ §1101(a)(13)(A).” Vartelas v. Holder, 132 S.Ct. 1479, 1484 (2012). (The IIRIRA incorporated and expanded upon the Fleuti doctrine). Also note 212(f), also codified at 8 U.S. Code § 1182(f), is NOT a listed exception to INA 101. The EO facially violates LPRs statutory right to travel abroad and not be subject to “entry” under the IIRIRA.

LPRs also have certain due process rights under SCOTUS precedent in Chew and its progeny. “[A] resident alien returning from a brief trip “could not be excluded without the procedural due process to which he would have been entitled had he never left the country. ” Kwong Hai Chew v. Colding. 344 U. S. 590 (1953); Landon v. Plasencia, 459 U.S. 21 (1982). “Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206–in which an alien was indefinitely detained as he attempted to reenter the country–does not support the Government’s argument that alien status itself can justify indefinite detention. Once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all persons within the United States, including aliens, whether their presence is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678 (2001). SCOTUS ruled in INS v. St. Cyr that the IIRIRA does not deny LPRs ability to motion for habeas corpus relief pursuant to 28 USC §2241 in removal proceedings (which includes exclusion for LPRs), with some extra restrictions at the border. As stated in the above paragraph, exclusions are not distinguishable from removals as applied to LPRs. LPRs are entitled to due process of the law under the 14th and 5th Amendments. See Yick Wo v. US ad Wong Wing v. US. The EO unconstitutionally and indiscriminately strips all LPRs of these due process hearings with a blanket ban and detention because LPRs are still entitled to the same rights as if they are US soil, with certain exceptions applied on ad hoc bases, pursuant to the INA, federal law, and SCOTUS precedent.

The invalidation and nullity of sec, 1152 is relevant. “But, as a matter of substantive law and the national immigration agenda, it makes little sense that Congress would enact a breathtakingly sweeping principle of not discriminating on national origins in one law, and not caring if that principle is completely gutted by the “visa-entry” procedural distinction.” Charles Tiefer. Even Erwin Chemerinksy stated in the LA Times that the nondiscrimination clause applies and supercedes the 1952 INA clauses (namely 1182 is indeed limited by 1152). He further states, “[T]he 1952 law does not allow the president to remove those who are lawfully present (such as visa holders at airports).” Again, exclusion and deportation of LPRs fall under the same proceeding in which LPRs must be provided hearings.

The examples you where immigrants from certain areas were restricted are red herrings. The reasoning is not based on national origin, but on some other extenuating circumstances, such as health hazards. Don’t conflate the issues. There must still be a fact based, nondiscriminatory reason for a country to be targeted. “The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.” Washington v. Trump, too lazy to look up full cite (9th Cir. 2017),

Under sec. 1187, Congress exercised its plenary power and decided to be discriminatory in the vetting process for visas from specified countries. The nondiscrimination clause of sec. 1152 is still in effect and applicable with the narrow exceptions provided in 1187. Sec. 1187(a)(12)(D) requires specific considerations, including aliens from other areas “of concern” to present a “credible threat.” To quote the 9th Cir: “The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.” POTUS does not have the power to change or extend the scope of the law due to separation of powers. The EO fails the 1187 requirements, and Congress’s ability to discriminate was not conferred upon the executive. And again, this does not apply to LPRs, but the EO certainly does and has.

The claim Trump banned aliens from these specific countries due to terror threats is not grounded in any fact. If he is concerned, why didn’t he ban aliens from Saudia Arabia? If an actual threat materialized based on real facts and evidence, then perhaps the EO would be legal as applied to nonimmigrant visa holders and refugees, but not to LPRs absent evidence to the contrary and hearings. To quote Chemerinksy again, “The order is also nonsensical in that foreigners from the seven listed nations killed exactly zero Americans in terrorist attacks on U.S. soil between 1975 and the end of 2015, according to the Cato Institute. None of the terrorists from the 9/11 attacks or the Boston Marathon bombing or the San Bernardino shooting or the Orlando, Fla., massacre came from the seven countries listed. The home countries of those responsible were not included.” Again, the government offered no evidence. Its also important to point out that many outlets propounded Trump does business in the exempted countries, and, therefore, has personal ulterior motives in violation of the Emoluments Clauses.

Further, Trump cannot violate the blanket prohibition of the First Amendment’s Establishment Clause… ever. To quote Chemerinksy again, “Under the 1st Amendment, the government may not favor one religion over others. Although Trump’s executive order does not expressly exclude Muslims, that is obviously its purpose and its effect as it bars entry to individuals from predominantly Muslim countries. It also instructs Homeland Security, after the 120-day period, to prioritize refugee claims ‘made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.’ ” Trump’s very own words and promises were to instate a Muslim ban and the EO makes clear he is promoting Christianity. It does not matter whether the INA specifically lists religion in its nondiscrimination clause. Under the Supremacy Clause, the Constitution is the supreme law of the land, and no statute can contravene it.

From the 9th Cir: “It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993) (“The Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination. . . . Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality.”); Larson, 456 U.S. at 254-55 (holding that a facially neutral statute violated the Establishment Clause in light of legislative history demonstrating an intent to apply regulations only to minority religions); Village of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 266- 68 (1977) (explaining that circumstantial evidence of intent, including the historical background of the decision and statements by decisionmakers, may be considered in evaluating whether a governmental action was motivated by a discriminatory purpose).”

LPRs also have certain due process rights under SCOTUS precedent in Chew, Plasencia, etc. The EO is absolutely and inarguably unconstitutional as applied to LPRs. “Thus, an “innocent, casual, and brief excursion” by a resident alien outside this country’s borders would not subject him to the consequences of an “entry” on his return.” Landon v. Plasencia, 459 U.S. 21, 29 (1982). “[A] resident alien returning from a brief trip “could not be excluded without the procedural due process to which he would have been entitled had he never left the country. ” Id. at 30-31 (citing Kwong Hai Chew v. Colding. 344 U. S. 590 (1953)). Again, they were targeted and detained, and the EO has not been withdrawn nor amended.

Further, the invalidation and nullity of 1152 is relevant. “But, as a matter of substantive law and the national immigration agenda, it makes little sense that Congress would enact a breathtakingly sweeping principle of not discriminating on national origins in one law, and not caring if that principle is completely gutted by the “visa-entry” procedural distinction.” Charles Tiefer (too lazy to do full cite. Google for yourself). Even Erwin Chemerinksy stated in the LA Times that the nondiscrimination clause applies and supercedes the 1952 INA clauses (namely 1182 is indeed limited by 1152). He further states, “[T]he 1952 law does not allow the president to remove those who are lawfully present (such as visa holders at airports).” The examples you where immigrants from certain areas were restricted are red herrings. The reasoning is not based on national origin, but on some other extenuating circumstances, such as health hazards. Don’t conflate the issues.

The claim Trump banned aliens from these specific countries due to terror threats is not grounded in any fact. If he is concerned, why didn’t he ban aliens from Saudia Arabia? If an actual threat materialized based on real facts and evidence, then perhaps the EO would be legal as applied to nonimmigrant visa holders and refugees, but not to LPRs or other lawful aliens who took short trips (of which BOTH classes were indeed targeted). But that simply is not the case. To quote Chemerinksy again, “The order is also nonsensical in that foreigners from the seven listed nations killed exactly zero Americans in terrorist attacks on U.S. soil between 1975 and the end of 2015, according to the Cato Institute. None of the terrorists from the 9/11 attacks or the Boston Marathon bombing or the San Bernardino shooting or the Orlando, Fla., massacre came from the seven countries listed. The home countries of those responsible were not included.” Its also important to point out that many oulets propounded Trump does business in the exempted countries, and, therefore, has personal ulterior motives in violation of the Emoluments Clauses.

Further, Trump cannot violate the blanket prohibition of the First Amendment’s Establishment Clause… ever. To quote Chemerinksy again, “Under the 1st Amendment, the government may not favor one religion over others. Although Trump’s executive order does not expressly exclude Muslims, that is obviously its purpose and its effect as it bars entry to individuals from predominantly Muslim countries. It also instructs Homeland Security, after the 120-day period, to prioritize refugee claims ‘made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.’ ” Trump’s very own words and promises were to instate a Muslim ban. It does not matter whether the INA specifically lists religion in its nondiscrimination clause. Under the Supremacy Clause, the Constitution is the supreme law of the land, and no statute can contravene it.