I expected a lot of flack over Curious Positions on “The Law”: Reflections on “A Pile of Crap” but received surprisingly little.
Several pointed out that my abortion arguments have nothing to do with the debate. They are technically correct. However, my point was not to make a legal argument, but rather to point out the blatant hypocrisy.
Given that it is primarily conservatives who support Trump on immigration (citing “The Law”), and given that is primarily conservatives who are against abortion (despite “The Law” being not only clear but upheld in the Supreme Court), the hypocrisy is enormous.
Several readers understood, thanking me, while still others pressed on with “The Law”. So let’s take one more look at the law. More specifically, let’s investigate how Trump broke the law.
The law everyone keeps citing is 8 U.S. Code § 1182 – Inadmissible aliens.
That law was written in 1952. However, Trump’s Immigration Ban Is Illegal under newer laws that supersede 8 U.S. Code § 1182.
President Trump signed an executive order on Friday [January 27] that purports to bar for at least 90 days almost all permanent immigration from seven majority-Muslim countries, including Syria and Iraq, and asserts the power to extend the ban indefinitely.
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.
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.”
Nonetheless, Mr. Trump asserts that he still has the power to discriminate, pointing to a 1952 law that allows the president the ability to “suspend the entry” of “any class of aliens” that he finds are detrimental to the interest of the United States.
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).
When Congress passed the 1965 law, it wished to protect not just immigrants, but also American citizens, who should have the right to sponsor their family members or to marry a foreign-born spouse without being subject to pointless discrimination.
LBJ on Signing the Law
Here are President Lyndon B. Johnson’s Remarks at the Signing of the Immigration Bill, Liberty Island, New York, October 3, 1965.
Immigration and Nationalization Act of 1965
Here is an image snip of Public Law 89-236 (79 Stat. 911)
The pertinent portion reads: “No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of his race, sex, nationality, place of birth, or place of residence.”
That’s pretty clear. There are exceptions: section 101 (a) (27), section 201 (b), and section 203.
Those exceptions, in the Immigration and Nationality Act of 1962 all pertain to special provisions for giving some immigrants preference, not for keeping anyone out.
In Favor of the 1965 Modification
The Immigration and Nationality Act of 1965 had broad bipartisan support.
The House of Representatives voted 320 to 70 in favor of the act, while the Senate passed the bill by a vote of 76 to 18. In the Senate, 52 Democrats voted yes, 14 no, and 1 abstained. Of the Republicans, 24 voted yes, 3 voted no, and 1 abstained. In the House, 202 Democrats voted yes, 60 voted no and 12 abstained, 117 Republicans voted yes, 10 voted no and 11 abstained. One unknown representative voted yes. In total, 74% of Democrats and 85% of Republicans voted for passage of this bill. Most of the no votes were from the American South, which was then still strongly Democratic.
It’s pretty clear the Immigration and Nationality Act of 1965 is “The Law” of the land. It’s equally clear, Trump’s executive order is in violation of “The law”.
Those are the facts. In addition, there is debate regarding due process for permanent residents. So not only was Trump’s order illegal under the Immigration and Nationality Act of 1965, the order was badly executed and poorly thought out from every perspective.
The deeper one digs into this mess, the more foolish Trump appears.
If Trump had wanted to change the Immigration and Nationality Act of 1965, he might have been able to do so. However, there is no way the Senate would now undo the act totally, especially in regards to legal residents.
Finally, it is highly debatable if the Supreme Court would uphold any portion of the order as originally executed.
Mike “Mish” Shedlock