Well, that’s quite a headline!

My left-wing readers may have smiled at it, pleased I’ve come around, perhaps even developing a Strange New Respect for me. So let’s start this off by making sure this post makes nobody happy:

I can hardly stand my left-wing friends right now.

They want President Trump’s head on a pike—for Ukraine, for Justice Kavanaugh, for being a pillock, whatever gets an impeachment through. I sympathize! President Trump stinks! He’s leagues better than I expected, but that isn’t a high bar… and I speak as someone who agrees with a lot of Trump’s agenda.

But my left-wing friends are unable to admit, to even the tiniest degree, that Trump is the victim of a double standard. I pointed it out in my last piece, and the only response I got to that piece from anyone on the left was spin so hard a whirling dervish couldn’t keep up.

President Clinton’s perjury? “Well, that was just a blow job.” Never mind the clear-cut federal crime!

President Obama lied to the nation and abused his interpretive authority (in pretty much the same way Trump did with his “emergency powers” declaration) so that he could fork over millions of dollars in ransom money to an adversarial terrorist state. He also violated the plain text of the Constitution and stomped all over the separation of powers to satisfy—by openly tyrannical means—the policy demands of his political base. “Well, he was just doing what he thought best for the nation,” my left-wing friends reply, “His heart was in the right place!” as though good intentions (even if Obama really had them) undid one jot of the lasting damage Obama’s imperial will did to the Constitution.

How about that illegal war in Libya? “Well… but… well… Iran-Contra!” Never mind the tu quoque (which is called “whataboutism” only when the Left dislikes it), never mind the fact Reagan would’ve been impeached had his involvement been proved. Never mind that Reagan would’ve deserved it! The holy name of Saint Obama the “Scandal-Free” must be protected unsullied, so the fact that he was guilty as sin of half a dozen impeachable offenses must be explained away by whatever means are at hand.

It is one thing to say that President Trump should be impeached for obstruction of justice. It is quite another thing to say that Trump should be convicted of obstruction while simultaneously maintaining—even after all these years—that President Clinton’s impeachment for obstruction was just a partisan witch hunt. But that’s where my friends on the Left are at right now.

They’re hardly alone. I usually listen to NPR in the car, because I maintain a scrupulously left-oriented media diet. But, as of this week, I can’t do it anymore. Their blindingly intense double standard, presented as simple objective reporting, sends my blood pressure through the roof. For example, last week I was listening to 1A while they dissected the Ukraine story. They rambled about the “take care” clause for a while in discussing whether President Trump had authority to withhold funds appropriated by Congress, contending that a violation of the “take care” clause is an impeachable offense—without even acknowledging the fact that President Obama was headed to the Supreme Court for their first “take care” case in decades (the one he couldn’t escape via “standing” loophole) when Trump won the election (and mooted the case). The folks at 1A went on in this and various other veins for a while, charging Trump with various crimes without acknowledging, even with a passing dismissal, that several of the same crimes were committed by several of Trump’s predecessors.

I finally slammed the power button when the analyst offhandedly noted, “Of course, the United States Congress would never appropriate money to an adversary.” True! It wouldn’t! So that time President Obama took money from the Treasury in contravention of Congress’s clear will, lied to everyone about it, and sent it as a ransom payment to the Ayatollah? Despite that bit where the Constitution says “No Money shall be drawn from the Treasury but in Consequence of Appropriations made by Law?” Straight down the memory hole.

This is true across the board. To a man, all the folks I know on the Left–including the people I really like and respect on the Left–have become the basest partisans, desperate to convince themselves that President Trump’s abuses of power are singularly deserving of impeachment while closing their eyes to the sins of their own heroes. They’ve become a thousand little Breitbarts, lying to everyone—especially themselves—with the intensity of a teenager trying to persuade his girlfriend that they won’t get pregnant if they skip the condom just this once.

When this all got started, I had hoped that impeaching and convicting President Trump might help heal the wounds of hyperpartisanship. Just as Democrats’ refusal to convict a guilty-as-sin President in 1999 drove wedges into American politics that have only gotten deeper, perhaps Republicans, if they were willing to convict, could take the first step toward pulling some of the wedges out again.

Impeachment could also, I hoped, lay the foundation for a new era of tamer, less imperial presidencies. After all, if Trump could be impeached and removed for relatively routine abuses of office, surely Democrats would be more circumspect about committing the same abuses of office next time they’re in power.

These were stupid hopes. America is long past the possibility of healing its partisan rifts through political goodwill. America is very nearly past the ability of partisans to share the same reality. The Trump impeachment process has become the latest in a line of increasingly potent scissor statements. Even I, the blue-state ex-Republican compassionate conservative who prides himself on an ability to see all sides, see my left-wing opponents as scurrilous liars and hypocrites on this one. God knows how they see it.

I’m certain of this: if we support Trump’s conviction, we will get absolutely zero credit (and no quarter) from the Left for doing so. It would not establish a new bipartisan standard for presidential misconduct. It would not bring about reconciliation in America’s cold civil war. It would not restore the slightest degree of executive restraint. The next Lois Lerner would make a clean getaway down the memory hole, just like last time. Conviction would not reverse the slow war on religion one jot. The same people screaming bloody murder over emoluments would applaud—indeed already are applauding—Beto O’Rourke’s promise to disembowel the First and Second Amendments. They don’t give a damn about the Constitution; all they want is the scalp of Donald J. Trump.

Already, we see this playing out in microcosm, thanks to Mitt Romney’s recent flirtation with a vote to convict. Romney’s choice is not being understood, on the Left, as evidence of Romney’s fundamental decency and fair-mindedness, nor to the slightest degree as evidence that maybe Romney was an earnest guy who didn’t deserve to be smeared as a racist, sexist monster when he ran against Saint Obama. Instead, it is being understood as further evidence of how bad Trump is. After all, the logic goes, if even a spineless, immoral monster like Mitt Romney is considering abandoning the President, Trump must be the devil himself! (Not that anyone on the Left believes in the devil anymore; Trump is far more hated and feared than Lucifer in progressive circles.) Of course, there is a bit of Strange New Respect, but that never lasts more than one millisecond longer than it needs to for political advantage. Just ask media darling John McCain, who was suddenly accused of “veering right” and becoming evil once his mavericky maverickness stopped being targeted at other Republicans and started getting in the way of Saint Obama’s Oval Office.

Since we cannot expect one iota of reciprocity from the Left, the case for impeaching President Trump is difficult. Impeachment is a legal process, but with a huge built-in political component. Why would a partisan official ever vote to convict a President of his own party, especially when the phrase “high crimes and misdemeanors” is so vague? (EDIT: Here’s a valuable history of the term and its meaning.) Traditionally, the strongest answer is fairness. You want to throw out your guy when he does crimes, so that the other side will throw out their guy when he does crimes. That isn’t going to happen here; the other side’s “standard” is that Republicans deserve impeachment and Democrats do not, and any rationalization that justifies this in particular instances is valid.

We should impeach President Trump anyway.

On the legal side, there’s a pretty decent case. Trump’s Ukraine scandal has only deepened since my last post about it. Indeed, it’s deepened significantly in the couple of days since I started writing this one! It looks more and more like President Trump’s investigation into Hunter Biden cannot be passed off, even pretextually, as an anti-corruption investigation. Instead, evidence is mounting that Trump was violating the law of the land by impounding security assistance for Ukraine… and worse, that he did it in order to extort the Ukrainian government into making damaging statements about the Bidens. It’s a very bad thing to condition aid on an investigation into a political opponent; it’s an order of magnitude worse to condition aid on that investigation being announced on CNN. (See page 12.)  I’m not sure this is “launching an unconstitutional war in Libya” bad, but it’s pretty bad. In a perfect world, we would impeach for this alone.

Meanwhile, Trump’s response to the scandal has been, itself, scandalous. Remember that time President Trump called for Rep. Adam Schiff (who is, in fairness, a massive tool) to be “questioned” and possibly charged with the capital crime of treason? (Twice?) He did that because of something Rep. Schiff said on the floor of the House. Schiff’s comments (dishonest as they were) are not only protected by the First Amendment, but also by the Speech Or Debate Clause of the Constitution. Furthermore, President Trump’s definition of “treason” diverges yugely from the Constitution’s Treason Clause. What the President called for, via an official U.S. government channel (his Twitter feed, God help us), was a flagrantly unconstitutional arrest and potentially the execution of a political opponent whose speech was doubly protected under our Constitution. It is my considered opinion that, when a President calls for the Constitution to be broken, we do not need to wait for him to actually do it to remove him from office.

The Founders would probably also take a pretty dim view of the President’s other recent tweet, wherein he misquoted Robert Jeffress in a prediction-cum-encouragement of civil war. “Fomenting revolution” is certainly protected speech for First Amendment purposes, so Trump could not be jailed for it, but it is such a disgraceful abuse of the presidential office that I’ve no doubt every Founder would agree it constitutes a “high crime and misdemeanor.”

It is no defense to say that we shouldn’t take Trump’s tweets seriously, because this is just how he is. He’s the President of the United States! We have given him truly awesome powers, and those powers come with certain responsibilities that the rest of us do not share. One of them is to “preserve, protect, and defend the Constitution,” not openly call for it to be trampled!

On top of all that, Trump has announced a blanket refusal to turn over documents related to the investigation. This is the exact same reason a bipartisan coalition held Eric Holder in contempt of Congress… but Trump’s resistance is even more extreme. Holder should’ve been impeached. And, as Jim Geraghty reminds us, if Holder should’ve faced consequences, so should Trump.

So much the worse for him, President Trump has left himself open to impeachment on several other fronts. While I’ve been broadly supportive of his right to retain ownership over his businesses while President, the Emoluments Clause does not have a “…unless you are a billionaire” clause, and President Trump’s hinky finances and open self-dealing have reached appalling levels. The Emoluments Clause, forbidding such things, is incredibly broad.

And then there was that whole Russia thing. Of course, the Russia investigation was ludicrously overblown (by these same desperate partisans), but President Trump, through malice or ignorance, did his best to throw up obstacles to the investigation. I doubt he technically violated the federal obstruction statute, because it mostly does not apply to the president… but one big reason it doesn’t is so the House and Senate can judge for themselves what counts as presidential obstruction. It’s ludicrous to suggest the President is, uniquely among Americans, free to obstruct justice however he wants. And, while Volume I of the Mueller report (about collusion) did largely exonerate President Trump, Volume II (about obstruction) was a very bad look for the President. (It starts on page 209 here.) What we saw the President do during the Russia investigation sure feels to me like something the Founders would recognize, broadly, as obstruction of justice amounting to “high crimes and misdemeanors.”

So we have ample legal reason to impeach.

But, as I’ve argued, there’s been ample legal reason to impeach and convict plenty of recent presidents. Impeachment is both a legal and a political process–as everyone defending a scoundrel President (whether a Trump or a Clinton) will constantly remind you. The most important political reason for impeaching Trump, “holding presidents of both parties to a fair standard,” is off the table; Democrats are being wildly unfair to Trump, they were wildly unfair about the scrutiny of Obama, and, when the time comes, they will be wildly unfair about the treatment of President Ocasio-Cortez. But I think there are other sound political reasons to impeach.

First, the progressives are being base hypocrites, but conservatives don’t have to respond in kind. Indeed, there’s a lot of political value in being the party that, when the rubber hits the road, isn’t completely hypocritical. If we impeach Trump, conservatives will be able to present ourselves to the voters as the team that recognized what our guy was doing wrong and threw him out, while the progressives will forever be the movement that acquitted a perjured rapist. It’d make conservatives look good with independent voters for a long time.

Second, the conservative movement politically benefits when it is able to look itself in the mirror in the morning. Remember how we spent years taking desperate action because we said–correctly–that the government was spending way too much money and needed to cut back, even in the teeth of a recession? And then Republicans took power and… immediately started trying to spend even more money? Even though the recession was over and countercyclical policy demanded that we should cut back even more sharply? Instead, Trump and our “Tea Party” Congress broke the $4 trillion barrier for the first time. Our peacetime budget deficit is now locked on a course to break the debt record set during World War II. Until the Obama years, no peacetime budget ever approached this level of irresponsibility. And now any Republican or conservative who ever complains about big-spending Democrats, ever again, will–rightly–get openly laughed at. Conservatives betrayed their principles, on the theory that the Democrats were just as bad… and now we’ve lost not just a powerful short-term political issue, but a key policy argument with an impact that will last for decades.

Abandoning our principles about the imperial presidency would be like that, but much worse. The budget deficit, in the end, comes down to money. We can borrow, tax, cut, and perhaps even print our way out of it, albeit at tremendous cost to Millennials, Zoomers, and their children. But if Republicans ratify the Obama precedent that Presidents can pretty much do whatever the hell they want, damn the Constitution… then we will become co-authors of the Constitution’s final unraveling. I don’t think most people realize how close we already are to the brink. The Constitution in practice bears almost no resemblance to the Constitution in theory, or even to the practice of the Constitution as recently as a century ago. (No, seriously, read that Thomas H. Crown thread I just linked.)

We all act as though our system has an infinite amount of give in it, that it can tolerate excess and abuse and excess and abuse year after year, term after term, without limit… but a lot of our domestic politics right now looks like the Roman Republic in the second and first centuries B.C., as the Republic teetered toward dysfunction, civil strife, and, ultimately, the Principate. The Principate, started by Caesar Augustus, was a system in which everyone pretended that the Senate still controlled Rome, while actually allowing Augustus to rule (variously) as “consul,” “princeps senatus,” and “tribune.” The legislative branch of Roman government became essentially ornamental. Augustus went to great lengths to maintain the fiction that the Republic still existed, but, with the hindsight of history, we all recognize what he really was: the first Roman Emperor.

I’m frankly not convinced, at this point, that the American slide from Republic into Empire can be stopped. We’ve dismantled so many guardrails, both unwritten and written. But surely one of our last, best hopes is that Congress will begin to stand up to presidential abuses of power, from both parties’ presidents, using its impeachment power. While the prospects look grim from where I’m sitting–just reread the first half of this article–we won’t have a prayer if Republicans ratify the Democrats’ position that constitutional violations don’t matter if they come from your own party.

Finally, let’s zoom in on the near-term politics of the situation. There’s a presidential election next year. President Trump is pretty likely to lose it. Last time out, Trump was enormously blessed to be running against the second-least-popular person in America, Hillary Clinton. (The least popular person was President Trump, which is how he lost the popular vote.) That won’t be happening next year. Trump’s opponents are some of the most popular politicians in America.

People say, “Oh, the polls got it all wrong in 2016,” but, actually, the polls did fine. (The pundits, especially certain pundits who fancied themselves pollsters, bungled it horribly.) One year before the 2016 election, the polls were predicting a close race between Clinton and Trump, with Clinton holding a slight popular-vote edge but the electoral college a tossup. They were still predicting that on election night. They were right.

Today? Head-to-head polls show Trump losing to, uh, everyone, typically by large margins. In much-needed Minnesota, he’s losing to Biden by 12 and Warren by 11. It is certainly true that general election polls a year from the election are messy, often pretty far off from the final result. But it’s also true that these numbers are unusually bad for a president hoping to win re-election, the crosstabs reveal problems that have no obvious solutions for the President, and his approval ratings are mired in the low 40’s. They could recover (Obama’s did), but, if they don’t, Trump has very little chance at winning a presidential election.

Worse: these are Trump’s numbers in the middle of a booming economy. What happens if there’s a recession? A recession right now is pretty close to a tossup… and, as the indicators slowly flip, one by one, from green to red (which has been happening for months now), as China continues to escalate its antics and Brexit bleeds Europe’s resilience in the face of Eurozone dysfunction and a global trade war, I’m becoming more pessimistic than the consensus.

If President Trump were removed, it would give us President Mike Pence. Better: the Senate, in convicting Trump, could (and should) bar him from holding future office, thereby making it impossible for him to run again. Leave aside the fairly obvious fact that Mike Pence would be a better President than Trump (because he would do all the good things Trump does but with way less of the bad and none of the erratic insanity). Instead, notice his favorability score and compare it to Trump’s. True, Pence is not quite as popular as Joe Biden. But he’s a lot less unpopular than Donald Trump.

In a race where Republicans look set to get beat and beat pretty good, it seems like good sense, not just for the good of the country but for the good of the party, to change horses, as fast as possible. I can’t promise Pence would win, nor can I deny the impeachment dynamic introduces big risks… heck, I think there’s still a solid one-in-three chance Trump could win in 2020… but, overall, I think the odds that conservatives retain influence in the White House are considerably better with Candidate Pence than with Candidate Trump. With the next Supreme Court justice on the line, shouldn’t we do everything we can to maximize our odds… even if it means throwing the current president under the bus?

Heck, given the fact that Vice President Pence doesn’t share the President’s talent for shotgunning himself in the foot, maybe, if Pence were President, we might even get some policy through Congress before the election. How ’bout that infrastructure bill we keep hearing about?

Yes, conviction means the insufferable Bob Garfield of NPR’s On The Media and millions like him get to notch a huge win, at a discount, without a jot of introspection, and thus will learn nothing. But, given everything, I think that’s a price worth paying.

So, yeah, okay. Let’s impeach the President.

Reagan’s recovered sharply over the course of the election year, and he was comfortably over 50% when he faced Mondale.

Obama didn’t really recover, but he managed to pump his approval rating up to about 47% during much of the campaign, and squeezed it up to 49% during the last days of his re-election campaign, which got him narrowly re-elected.

Back in 2013, ISIS didn’t really exist in Syria yet; the major rebel group was the al-Nusra Front, affiliated with al-Qaeda. The President was still Obama. Syrian President Bashar al-Assad had just launched illegal and immoral chemical attacks against his own people, which crossed what President Obama had called a “red line.” The President had already waged an illegal war in Libya, but he had painted himself into a corner on Syria, he did not want to upset negotiations with Iran, and so he decided to submit the question of Syrian war to Congress (which the Constitution requires anyway). Following my blog post, Congress declined the invitation to war, and here we are today.

Thing is, not that much has actually changed in Syria, so my post then holds up pretty well today. You can read the whole thing here, but here’s a short excerpt:

There is a just cause here.  Those who argue that U.S. security interests are not at stake are, in my opinion, mistaken — and irrelevantly mistaken, since U.S. security interests do not need to be at stake in order for there to be a just cause for at least limited forms of military involvement.  But, at this time, there appears to be no way to act on that just cause without making things even worse.  War proponents reply that failing to act in Syria carries very dangerous consequences, as well — perhaps even more dangerous than the potential repercussions of intervention.  They are correct.  Failing to punish Bashar al-Assad for his chemical weapons use sets a terrible precedent, and there is good reason to fear that other petty tyrants will see our inaction here and draw the conclusion that they can use sarin without facing serious repercussions.  Failing to intervene in Syria condemns thousands more to die in the ongoing war there.  Failing to secure Syria’s chemical weapons caches risks having them fall into al-Qaeda’s hands, with terrible consequences throughout the world.  These are all real risks, and I’m dismayed to see that many Americans opposed to intervention do not acknowledge them, and are instead satisfied to smugly condemn the whole idea as petty adventurism.

[…However,] We have posed a question of proportionality: would intervening in Syria cure more evils than it creates?  In order to consider intervention just, we must be able to reply, not with tepid “maybes” or “probablies,” but with a single, confident, “Yes!”  I gave that answer before the Iraq War, which I expected would be a “cakewalk.”  I can’t give that answer today.  The Just War Theory wisely requires that, where doubts exist, we err on the side of non-violence.

So here is the Catch-22 of Syrian intervention: limited strikes are probably limited enough to meet the Just War theory’s proportionality requirement, but they are nevertheless unjust because they do not have “serious prospects of success.”  A broader involvement, wherein we directly armed the rebels, or invaded the country ourselves, bringing about the fall of Assad, would very definitely have “serious prospects of success”… but it would nevertheless be unjust, because there is a substantial probability that such involvement would provoke greater evils than it would solve…

The trouble is that effective intervention, wherein we ensure Assad’s downfall by invasion or massive rebel armament, is also extremely risky, and, indeed, many of the risks are precisely the same.  We must err, then, on the side of non-intervention.  There are still projects humanitarian and pseudo-military we can undertake to minimize the damage in Syria.

As a legal matter, President Trump is basically in the clear for 60 days, under the War Powers Resolution. But, morally, it is difficult to see, at first blush, how tonight’s actions accord with the Just War Theory.

UPDATE: It is worth noting that, according to reports still coming out, tonight’s missile strikes were not against human targets. NBCNews reports:

The Pentagon said people were not targeted, and there was no immediate word on casualties. U.S. officials told NBC News that aircraft and infrastructure at the site were hit, including the runway and gas fuel pumps.

New York Magazine and Breitbart are both reporting that Russia, and possibly other countries, were notified of the strikes ahead of time, in an attempt to prevent casualties. Neither source is highly credible, but they are on opposite sides, so, if they agree about something, it is likely true.

If there were (thanks to U.S. precautions) no human casualties in this strike, and there is no intent to follow up on the strike with further military action, then tonight’s actions become far more defensible under Just War Theory. The mere destruction of a runway and some gas tanks is a long way from the human carnage that makes war such a horrifying enterprise.

However, a great many people have already weighed in on the substance of Trump’s Executive Order, and I don’t have much to add to the global conversation. On the other hand, a friend asked me the other day whether Trump’s EO is legal, and I think that that discussion has been badly neglected by almost everyone.

Those who are talking about the law are largely talking nonsense. While protesters chant that the order is “unconstitutional” simply because it “advances prejudice” (as one Facebook commenter put it to me), a surprising amount of the discussion by the Great and Wise has revolved around loose comments by private citizen Rudy Giuliani about a so-called “Muslim ban,” which critics have tried to tie to the EO and thus to the Establishment Clause. Even if they succeeded in this, it’s a thin case against the EO’s legality, since potential immigrants (who are not persons under U.S. jurisdiction) have very few constitutional rights in the first place. In light of the fact that many of President Trump’s harshest critics positively applauded President Obama’s actually unconstitutional orders on immigration and health care, one suspects there may be some motivated thinking at work here.

Right-wing defenses of the EO, by contrast, have relied (in my opinion) far too heavily on the President’s constitutional foreign-affairs power, which does give the President broad authority to act in the national interest, but with the caveat that Congress can severely limit it by statute.

Congress has done just that. The legality of the EO is not primarily a constitutional issue, but a statutory one. The best attack on the EO so far, proposed by David Bier for the New York Times and expanded on by Patterico at RedState, revolves around the statutes in question, and attacks the EO solely on the basis of those statutes. My favorite Congressman, Justin Amash, has endorsed these attacks.

However, those attacks are mistaken. Solely on the basis of the statutes in question, it is clear that the EO is perfectly legal.

Before getting started, I want to quote the start of Patterico’s article, because his disclaimer applies equally to me:

I am not an immigration lawyer [nor indeed a lawyer of any kind] and do not claim any expertise in this area, but I’m capable of reading a statute and a legal argument, and I thought a post that analyzed the arguments… might be useful to people interested in the topic.

So, with my layman’s credentials established, what are the statutes in question here?

In 1952, Congress passed a law, the Immigration and Nationality Act, that contained a provision now enshrined in the US Code at 8 USC 1182(f). That provision says, in relevant part:

(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.

This is, as you can see, an extraordinarily broad grant of unilateral power to the President to suspend immigration by anyone for any reason at any time. As we’ve seen, some people contend that the President has that power anyway, under Article II, I think that’s questionable; to suspend immigration, the President should receive authorization from Congress. But Congress gave the President that power anyway, in this very provision. Was that a good idea? Debatable. In the age of Trump? Definitely not. But it’s still the law. Plenty of bad ideas are still law.

Unsurprisingly, 1182(f) is the very provision President Trump’s EO relies on for its authority. The Executive Order (full text here) specifically proclaims, in Sec. 3(c), that entry from the seven involved countries “would be detrimental to the interests of the United States” in order to meet the precise verbal requirements of this statute, and it provides an explicity citation to 1182(f).

Opponents of the EO point to a later law, the Immigration and Naturalization Act of 1965, which ended the American quota-based immigration system that was set up originally under the Chinese Exclusion Act of 1882.* The INA includes this provision, enshrined in the US Code at 8 USC 1152 (a)(1)(A):

(1) Nondiscrimination

(a) Except as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title, no person shall receive any preference or priority or 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 argument by EO opponents is that 8 USC 1152(a)(1)(A) repealed 8 USC 1182(f) by implication, because the two laws contradict and 1152(a)(1)(A) is the newer law. The President did have the authority to “ban” aliens from certain countries from 1952 to 1965, but does no longer, because 1152(a)(1)(A) bans discrimination by nationality and residence. The EO discriminates based on both, so, despite the broad grant of authority under 1182(f), it violates 1152(a)(1)(A) and is therefore illegal.

It’s an interesting argument. But there are a whole lot of problems with it:

(1) The two laws simply don’t conflict. § 1152(a)(1)(A) deals with visa issuance. § 1182(f) deals with entry. These are separate categories. A restriction placed by Congress on visa issuance does not place restrictions on the President’s power (also granted by Congress) to suspend entry. It’s entirely reasonable that the U.S. would, under some circumstances, continue to recognize visas and process visa applications for the residents of certain countries while temporarily suspending their actual right to enter the United States.

Importantly, that’s exactly what the EO does. The EO doesn’t revoke anybody’s visa. It suspends entry for 90 days, pending a review of visa requirements and reciprocity agreements. It is not plausible to read a temporary, 90-day suspension of entry rights, with no revocation of existing visas, as discrimination “in the issuance of visas”. Even an indefinite suspension of entry would only questionably interact with 1152(a)(1)(A)… and the only indefinite suspension in the EO is the Syrian refugee program, which all agree is not even covered by 1152(a)(1)(A). EO opponents’ arguments fail primarily because they rely on a supposed conflict between two laws that do not interact at all.

(2) Even if you could plausibly read the two laws to be in conflict, the argument that 1152(a)(1)(A) implicitly repeals 1182(f), in whole or in part, is likely to run aground in court, because it is not the only possible reading of the two laws. Courts hate implied repeal, because it creates deep uncertainty in the law as a whole. You never know for sure whether a statute on the books is in force or has been repealed by implication by some later statute you haven’t seen.

The general rule in courts is that, if a legislature intended to repeal or limit a law, they’d repeal or limit the law. If both laws are still on the books–and, in this case, they are–courts will do everything they can to reconcile them, favoring a reading where they do not conflict. Implied repeal is a last-resort method used only when laws absolutely contradict… and it more often arises when some state discovers they have on the books 1796 statute banning petticoats that everyone forgot about, not so much with major and well-known provisions of the U.S. Code. So courts are going to avoid the conflicted reading between 1182(f) and 1152(a)(1)(A) if at all possible. And rightly so: verba cum effectu accipienda sunt, folks. Since avoiding the conflicted reading is possible (more than possible, actually), 1182(f) stands as written, and the EO is legal.

(3) Even if you are, for some reason, convinced that the two statutes must be read as conflicting, 1152(a)(1)(A) still can’t be read as wholly repealing 1182(f). The most you can say is that 1152(a)(1)(A) creates a limitation: it prevents the President from suspending entry for classes of aliens on the sole basis of their nationality. But the rest of 1182(f) stands, and the President retains the authority to suspend entry for classes of aliens not covered by 1152(a)(1)(A). So, even if 1152(a)(1)(A) limits 1182(f) when it comes to nationality, 1182(f) still gives the President the right to suspend entry for, say, communists, or for people who were recently exposed to ebola. (People who have ebola are already excluded under §1182(a), but 1182(f) grants the President very broad discretion to respond to evolving health crises.)

Importantly, under 1182(f), the President may suspend entry for a class of aliens even if the class of aliens happens to bear a rationally-based relation to a nation or group of nations. That’s a dense sentence, so let me illustrate with an example. Suppose there were an ebola outbreak in Madagascar. It reaches epidemic proportions in Madagascar, causing a total breakdown in the social order, including the health care and records systems. However, being an island nation, the international community is able to contain the disease enough that it spread nowhere else. The President, fearing the spread of the infection because (with Madagascar’s government in chaos) we are unable to verify whether someone is carrying or has recently been exposed to the disease, issues a blanket proclamation under 1182(f), just like the one we suggested above: no one who has recently been in an area suffering from an ebola outbreak may enter the United States. Because of the way this breakout played out, however, this ban happens to be exactly equivalent to a ban on people from Madagascar. Nevertheless, it seems clear that the President is well within his rights, under 1182(f), to enact this suspension anyway. The ebola “ban”, while accidentally corresponding with nationality, has a rational basis quite apart from nationality. If the epidemic spreads beyond Madagascar to other regions, the President’s suspension will expand accordingly; if the epidemic in Madagascar ends, the suspension will evaporate on its own. Clearly, 1182(f) permits this, and 1152(a)(1)(A) poses no obstacle. It would be a strange thing indeed if 1152(a)(1)(A) forbade us to respond to an ebola epidemic in Madagascar (because it is a country), but suddenly permitted us to respond if the epidemic shrank to just a two or three provinces of Madagascar!

By the same token, the U.S. discriminated against visa applicants from Warsaw Pact countries during the Cold War, applying additional scrutiny and screening if not outright blocking entry. This was not because the U.S. had a problem with ethnic Russians or Latvian nationals, but because the U.S. had a problem with communist espionage, which tended to originate in those territories. I am unaware of any attempt to use 1152(a)(1)(A) to prevent enhanced scrutiny in these cases, because this was not discrimination on the basis of nationality.

Likewise, Trump’s EO does not suspend entry on the basis of nationality. It has a perfectly rational basis that has nothing to do with nationality: the EO simply suspends entry from areas that have been designated by Congress and the Secretary of Homeland Security as “areas of concern” due to an elevated risk from terrorist infiltration. The current list of “areas of concern” happens to include the entirety of seven countries: Iraq, Iran, Syria, Yemen, Sudan, Libya and Somalia, and so alien entry from those nations is temporarily suspended.

There is no prejudice against, say, Iraqis implied by this order. If Iraq is able to get its terrorism problem under control to the point where Congress agrees to remove them from that list, the EO will automatically cease to apply to them. If the reach of terrorist migration expands, so too will the list, and so too will the countries covered by the EO, whether that means temporarily barring aliens from Lebanon or from Canada. The terror threat the President is responding to is, legally speaking, no different from the ebola threat we considered above, and it is not a nationality.

Some have suggested this argument renders 1152(a)(1)(A) a “virtual nullity.” This is silly. 1152(a)(1)(A) was designed to bar the executive from decreeing, “The U.S. is revoking all Chinese visas, because we have too much Chinese labor, they are overwhelming our colleges with their smart kids, and their culture is too different from ours.” It has accomplished this goal. If President Trump issued an EO that said that or anything like it, it would be illegal. That this is unimaginable today is a sign of how completely 1152(a)(1)(A) and the rest of the 1965 Act has succeeded in overthrowing our old model of immigration based on racial quotas. That this law has succeeded as written, however, is not an excuse to adopt a new, radically broader meaning for it that bars the President from acting to protect the nation from actual foreign threats under 1182(f) just because those threats happen to coincide with somebody’s national borders.

The Cato Institute points at a 1995 case, Legal Assistance for Vietnamese Asylum Seekers v. Department of State, in which the government tried to allege a rational basis for discriminating in the issuance of visas on the basis of nationality and was swatted down by the D.C. Circuit Court of Appeals. But that case is clearly distinguishable from the Trump EO: in LAVAS v. State, the government was explicitly discriminating on the basis of nationality and claimed a rational basis for doing so. In this case, the issuance of visas is not implicated, but, even if it were, the government is claiming authority to discriminate against a class of immigrants on a rational basis that is established independent of and unrelated to nationality, which only coincides with a set of nations because of other decisions made by Congress and the Secretary of Homeland Security, and which could change to a different set of nations (or, indeed, non-nations) at any time. LAVAS has no bearing here.

(4) Even if you decide that all of the above is so much sophistry dedicated to hiding an act of discrimination on the sole basis of nationality (and I’d be awfully interested in hearing a legal argument that gets you there**), the argument that the EO is illegal still falls apart. It fell apart as soon as the EO’s opponent embraced the doctrine of implied repeal, way back at the beginning. See, the whole case against the 1952 law (§ 1182(f)) depends on saying that the 1965 law (§ 1152(a)(1)(A)) supersedes it and bars nationality-based discrimination.

But, in 2015, Congress passed a law (the Consolidated Appropriations Act) that expressly created discrimination in the visa issuance process for residents of Iraq and Syria (by name) and the other “countries of concern” (by incorporation). The text of this provision is at 8 USC 1187(a)(12). That this discrimination did not bar issuance of visas, but merely created new visa-based barriers to entry for residents of the countries in question, is immaterial, at least under the legal theory advanced by EO opponents: § 1187(a)(12) is discriminatory in the same way, and against the same targets, as the supposedly illegal EO itself. So if the 1965 law repealed the relevant parts of the 1952 law to make discrimination on the basis of nationality (even coincidentally) illegal, as the EO’s opponents contend, then the 2015 law surely repealed the relevant parts of the 1965 law, and discrimination on the basis of nationality — at least against those countries — is legal again!

Patterico attempts to distinguish 1187(a)(12) from the EO itself by saying that Congress has the authority to create an exception to its own rule in 1152(a)(1)(A), but the President does not have that authority under 1182(f). This argument would be much more persuasive if it were not prefaced by an extremely broad version of implied repeal. Patterico first contends (with 1152(a)(1)(A)) that a new provision can limit an unconnected existing provision of law and eviscerate the use of the existing provision–even when the use has a rational basis that is independent of the putatively repealing statute. If implied repeal is that broad, then I think it’s hard to keep 1152(a)(1)(A) alive in the face of the newer 1187(a)(12). I don’t doubt Patterico’s motives, but I also don’t think it’s consistent for his theory of implied repeal to be hugely, super-textually broad with respect to 1152(a)(1)(A) and then suddenly narrow with respect to 1187(a)(12).

In conclusion, in order to hold that the EO exceeds the President’s authority, you have to contort 1152(a)(1)(A) to void the President’s plainly-granted power under 1182(f), you have to somehow convince a court that this is the only possible interpretation of the two laws, you have to contort your interpretation of the EO to read it as discrimination on the sole basis of nationality rather than on the perfectly justifiable rational basis of preventing terrorist infiltration from areas (nations or not) where the threat is higher, and you have to preserve 1152(a)(1)(A) from being voided by 1187(a)(12) the same way you just had 1152(a)(1)(A) void 1182(f). There are legal theories that can do one of these, maybe two. (I disagree with those theories, but they exist.) But to do all four, I think you have to contradict yourself at some point.

The President’s power to limit immigration is absolutely sweeping. (His power to expand it, conversely, is severely limited.) People are free to say that President Trump’s EO is a stupid, terrible idea that should be rescinded, in whole or in part, immediately–and Congress, incidentally, could cancel the EO by passing a law that explicitly takes this power away from Trump–but saying that the EO is currently unlawful is, I think, mistaken. I base this judgment solely on the statutes involved, not any inferences about presidential power drawn from Article II or elsewhere.

For the time being, the EO’s enforcement has been partially stayed by multiple courts. This is a correct decision. Given the great harm this EO could inflict on plaintiffs, they are entitled to judicial review of the action taken against them. Judicial review takes time, and that requires a stay of the EO. However, I am confident that the EO will ultimately be upheld by the federal judiciary, because the statutory authorization for the President is clear.

Certainly the President’s claim to be able to enact this EO is infinitely stronger than President Obama’s claim to be able to enact his unlawful DACA/DAPA programs, yet many people protesting the EO were staunch defenders of President Obama’s way-less-legal executive actions. It is a serious and growing problem in our Republic that people increasingly believe that strongly disagreeing with a law or policy makes it “illegal” or “unconstitutional.” It does not. In a Republic, our duty is not to delegitimize bad laws; that places us on a short road to the end of the rule of law and the dawn of rule by men. Our duty, rather, is exercise our rights to vote and petition the government so that bad laws are changed.

As always, I welcome rebuttals from anyone–especially actual lawyers.

*SIDEBAR: if I were a Congressman, I would occasionally name my bills with the wrong year, just to mess with people. “Vote for the Internet Neutrality Act of 1741, fellow Congressthings!”

**Conor Friedersdorf has a good argument for why the voters should regard the EO as potentially racially motivated. He’s right. But his argument is political, not legal. Courts cannot read racial animus into an Executive Order without strong evidence from within the text that there is no other justification for it.

I’d like to try an alternative approach, and so we at the James J Heaney Institute are rolling out a new fact-checking apparatus, which we are dubbing Just the Facts, Ma’am.  From time to time, we’ll grab a quote that is making the rounds.  Then we will tell you whether the quote is true, false, or neither true nor false, aka “debatable“.  (Things which might fall into that last category are opinions, non-assertions, vague claims, predictions, semantic arguments, and unclear assertions.)  No tricks, no context, no mercy.

Everyone says things that are false from time to time.  Sometimes the error is legitimate; other times it’s deliberate, or at least blameworthy. Just The Facts, Ma’am will make no attempt to distinguish between these different sorts of errors.  We won’t distinguish between statements that are the honest-to-God truth and merely misleadingly true, either.  PolitiFact has shown us what an ugly, worthless business fact-checking becomes when we try to act as both fact-checker and moral scold.  We will give you Just the Facts, Ma’am (with apologies to our male readers). Certain subjective judgments are unavoidable in fact-checking, because we have to choose which facts to check, but we’re hopeful that we can redeem this sad cottage industry while retaining its punchy bottom-line judgments.  It’s a great experiment, and we hope you’re wishing us luck.

And here is our first fact-check: allegations have been making the rounds on the web lately that the Obama Administration is closing the U.S. diplomatic mission to the Holy See.  The specific statement we’ll fact-check is the National Republican Senatorial Committee’s succinct summary:

The media is reporting that President Obama plans to close the U.S. Embassy to the Vatican. (Source [Cached])

While it is true that some media reported that the Vatican embassy was being closed, including the Washington Times and (reportedly) The Drudge Report (whose fast-changing headlines are notoriously hard to link), these minor sources are hardly “the media.”  Even among right-wing and Catholic media, most outlets reported that the U.S. Embassy to the Vatican is being relocated to share a building with the U.S. Embassy to Italy.  Those sources include Breitbart, CatholicVote, the National Catholic Register, the Fishwrap, and even, after their inflammatory headline, the Washington Times.

The U.S. mission to the Vatican is not being closed.  It is being relocated.  Its distance from the Vatican will remain approximately the same (the new building is a tenth of a mile
closer).  It will retain its full staff and services, as well as the separate street address required for all Vatican embassies.  It will continue to be the fully-functioning U.S. Embassy to the Holy See without institutional interruption.  The NRSC’s claim is FALSE.

Whether this move is on balance a good thing or a bad thing, whether it is a downgrade or an upgrade, and whether it is a signal of President Obama’s disdain for Catholics or merely a signal of security worries in the wake of Benghazi, are of course DEBATABLE propositions, into which this column dares not wade.  The State Department also alleges that the new building is more architecturally attractive than the old one.  Though we are tempted to rate this claim True, we admit that debate is theoretically possible and leave it untouched.

One other claim making the rounds is that this isn’t even Pres. Obama’s idea, but Pres. Bush’s.  PolitiFactmakes this claim concretely while passing judgement on Gov. Jeb Bush’s Nov. 27th Tweet about the move.  (We avoided fact-checking Gov. Bush’s tweet because it was in the form of a question.)  To wit:

In addition, the move didn’t originate with Obama. It has been in the works since George W. Bush — Jeb Bush’s brother — was president. (Source)

The origin of this claim is a 2008 Inspector General report which discusses the possibility.  (The ambassador at the time was Mary Ann Glendon, who may be familiar to Catholic readers.)

The U.S. government could realize significant savings if Embassy Vatican relocated to the compound on which Embassy Rome now stands and where the U.S. Mission to the UN Agencies in Rome soon will move. In addition to cost savings, security would be improved. The possibility of relocating Embassy Vatican was raised in 2005 after the addition of the spacious Sembler Building to the Embassy Rome compound. The Embassy Vatican ambassador at the time opposed the move citing “policy grounds” that included anticipated strong objection by the host government and Congressional support for physically separate missions to Italy and the Holy See. In June 2006, the Department authorized Embassy Vatican to remain at its current location based on these considerations. [REDACTED] In addition, significant cost savings and improved functionality would be achieved by a move to the Embassy Rome compound into a building that would preserve Embassy Vatican’s identity.

The report goes on to recommend that Embassy Vatican “develop and implement a plan to relocate to the Embassy Rome compound, as soon as possible.”  Recommendations of the Inspector General are typically followed, so it is likely that planning work, at least, began.  Some readers may argue that, if George W. Bush’s ambassadors were still in the Vatican Embassy, the project never would have actually been implemented, but this is speculation.  Work on the project began under President Bush, so the PolitiFact claim is TRUE.

That’s all, folks.

Image Credit: Red, yellow, and green “traffic light” rating images are licensed for attributed use by Wikimedia Commons user 1RadicalOne.