The one word never addressed in the court’s nullification act last night was “statute.” The reason they failed to mention statute is because they wanted the public to view this as an attack on Trump’s executive order and not on five core statutes that they surreptitiously nullified: 8 U.S. Code § 1735, 8 U.S.C. § 1184(a)(1), 8 U.S.C. §1157(a)(2), 8 U.S.C. § 1182(f), and 8 U.S.C. § 1185(a)(1).
Let’s examine the most sweeping of these statutes (8 U.S.C. § 1182(f)), which delegates authority to the president to shut down both immigrant and non-immigrant visas from any place at any time subject to nothing more than his own determination:
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.
There is no stronger language Congress can use to delegate authority to a president than they did with 1182(f). As House Committee Report 1365 wrote about that section at the time it passed Congress, “The bill vests in the President the authority to suspend the entry of all aliens if he finds that their entry would be detrimental to the interests of the United States, for such period as he shall deem necessary.” [emphasis added]
Yet, the courts, without directly citing this statute, nullified it by suggesting that the president must produce evidence that satisfied the determination of the courts to show that the shutoff is necessary! Remember, 1182f is not qualified or limited by any condition of “unless,” “until” or “if”. It grants the president full authority to shut off any immigration “when” “the president finds …” Moreover, it doesn’t require a determination of terrorism concerns, but any “national interests.”
Now, let’s contrast this statute to another one on the books [8 U.S. Code § 1735], which actually requires the action taken by Trump to shut off at least non-immigrant visas from five of the seven countries (at the time it passed in 2002):
No nonimmigrant visa under section 1101(a)(15) of this title shall be issued to any alien from a country that is a state sponsor of international terrorism unless the Secretary of State determines, in consultation with the Attorney General and the heads of other appropriate United States agencies, that such alien does not pose a threat to the safety or national security of the United States. In making a determination under this subsection, the Secretary of State shall apply standards developed by the Secretary of State, in consultation with the Attorney General and the heads of other appropriate United States agencies, that are applicable to the nationals of such states. [emphasis added]
This statute, which passed the House 411-0 and the Senate 97-0, actually requires the president as a default position not to allow in non-immigrants from countries on the state-sponsor terrorist list. Yet, Presidents Bush (during his second term) and Obama utilized the discretionary language to admit visitors from those countries against the baseline letter and spirit of the law. As you can see, their discretion in §1735 to NOT shut off visas from these countries is more nuanced that Trump’s 100% authority under 1182f to affirmatively shut off immigrant and non-immigrant visas from anywhere.
The default language of §1735 is that visas must be shut off “unless” the secretary of state in consultation with the attorney general determines that they (each individual alien) do not threaten the safety of America. The statute also spells out somewhat specific criteria for that determination. Yet Bush and Obama were able to waive that prohibition indefinitely without any lawsuits and without showing how it was not a problem. Meanwhile, at least 40 Somalis in the Minneapolis community have been charged on terrorism related activities in the intervening years.
Contrast that to Trump following the dictates of §1735 and using the unqualified delegation of authority in 1182f to merely temporarily shut off one category of immigration and all immigration from seven countries — and the courts get to demand specific evidence of a national security (as opposed to national interest) determination!
If conservatives were smart they’d get red state attorneys general to sue the Trump administration for NOT cutting off visas to Sudan, Syria, and Iran by following the court’s temporary restraining order. If the courts were consistent with their “jurisprudence,” they would allow states to demand that the administration produce evidence showing why admission of Syrians (Syria is on the state sponsor list) do not pose a national security risk. And they would have a STRONGER case than Washington and Minnesota in demanding evidence to the contrary.
Then again, the only consistency in the courts is producing any outcome that immutably codifies the Democrat Party platform into law.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.