This guest post comes from Ian Samuel, a Climenko Fellow and Lecturer on Law at Harvard Law School. His areas of scholarly interest focus on cyberlaw, especially as it intersects with criminal law, security, and intellectual property. He has clerked for Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit, and for Justice Antonin Scalia on the Supreme Court of the United States.
Since 1965, United States immigration law has provided that “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.” Although I’m hardly the first to say so, I wrote on Twitter a couple of days ago that this plainly worded provision makes President Trump’s Executive Order forbidding travel to the United States by nationals of seven Muslim-majority countries straightforwardly illegal. (I was also talking about a new proposal to require nationals of those countries to hand over various Internet account passwords before they can travel here. For the purposes of this post, I’ll focus on the former, because it actually exists.)
Relying on this exact provision, the D.C. Circuit invalidated in 1995 an attempt by the government to treat Vietnamese visa-seekers differently than everyone else. In an opinion written by Judge Sentelle (a leading and often strident conservative jurist), the court of appeals thought that the no-discrimination rule easily resolved whether this was acceptable:
Congress could hardly have chosen more explicit language. While we need not decide in the case before us whether the State Department could never justify an exception under the provision, such a justification, if possible at all, must be most compelling–perhaps a national emergency. We cannot rewrite a statutory provision which by its own terms provides no exceptions or qualifications simply on a preferred “rational basis.” Cf. Haitian Refugee Ctr. v. Civiletti, 503 F.Supp. 442, 453 (S.D.Fla.1980) (under 8 U.S.C. Sec. 1152(a), INS has no authority to discriminate on the basis of national origin, except perhaps by promulgating regulations in a time of national emergency).
(Incidentally, Judge Sentelle was present last week to watch his old law clerk, Neil Gorsuch, get nominated to the Supreme Court.)
Two years later, a federal district court (adjudicating a wrongful-termination claim by a Foreign Service officer who refused to go along with orders to discriminate on the basis of national origin) reached the same conclusion:
The Immigration Act of 1924 established quotas based on nationalities, resulting in a disproportionate exclusion of Africans and Asians. See Immigration Act of 1924, ch. 190, 43 Stat. 153 (amended 1952). Throughout the latter half of the Twentieth Century, Congress moved away from such discriminatory policies. The most profound change was the Immigration and Nationality Act Amendments of 1965. See Pub.L. 89-236, 79 Stat. 911. That Act eliminated discrimination on the basis of race and national origin. Pursuant to 8 U.S.C. 1152(a)(1)(A), “[N]o 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 legislative history surrounding the 1965 Act is replete with the bold anti-discriminatory principles of the Civil Rights Era. Indeed, the 1965 Act was passed alongside the Civil Rights Act of 1964 and the Voting Rights Act of 1965.
Despite this seemingly plain text and the judicial authority in accord, I received, on Twitter and elsewhere, a great deal of pushback based on the President’s separate statutory authority to restrict the entry of aliens when he deems them not to be in the national interest. It’s the interaction of these two provisions that I want to now address at greater length, because I think there have been some profound misunderstandings about (1) the extent to which they really regulate different things, and (2) the extent to which each are relevant to the Executive Order as actually written and implemented.
To begin, this is what 8 U.S.C. 1182(f) says:
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.
It is impossible to spend very long discussing this issue without someone quoting this provision at you. The typical argument goes that while you cannot discriminate in the issuance of visas, Section 1182(f) grants a separate power to restrict entry. The theory, therefore, is that while the United States cannot discriminate on the basis of national origin when issuing visas in advance of travel, it remains perfectly free to do so at the border itself—and (the Section 1182 enthusiasts imagine) this is what the Executive Order does.
To choose a representative example, Josh Blackman, in the first of several posts on this subject, embraces this explicitly: uninformed “pundits,” he says, have “conflated” the “distinct questions of when visas may be granted” and “the decision to allow someone to enter the United States.” But these are not the same, he says, noting that a person with a communicable disease might be denied entry at the border despite having a valid travel visa. (That example, unfortunately, demonstrates absolutely nothing, as there is no comparable statutory provision preventing discrimination against the bearers of Ebola.) The no-discrimination rule, says Josh, “controls the issuance of a visa,” whereas the Executive Order “controls admission.” The two statutes simply address different subjects, and that is that.
Before I dive into the details, take a step back and contemplate what a profoundly strange (even absurd) world this would result in. On this view, immigrant visas must be issued to nationals of Iran, despite the travel ban—just as required by the no-discrimination rule. (Or, at least, they may not be denied to an Iranian simply because that person is Iranian.) But when those visa-holders arrive at JFK, they will be unable to clear customs, pursuant to the President’s valid exercise of his Section 1182(f) power. When it passed the no-discrimination rule, the Section 1182 enthusiasts imagine, Congress was perfectly fine with excluding people from the United States on the basis of national origin. It simply wanted that exclusion to happen at the border, rather than at the foreign consular office. “No Irish shall be admitted,” the President (on this view) may say; “but of course you are absolutely entitled to come and see the sights of Terminal 4.” Enjoy the duty-free shopping, and don’t forget to buy a frame for your commemorative visa!
I have yet to hear anyone explain why Congress would conceivably have wanted that state of affairs. But immigration law is admittedly complicated. And although I have practiced in the area, I am not a specialist. So in the spirit of epistemic humility, let’s develop what a software engineer might call a test suite. If the Section 1182 enthusiasts are right, what else should we expect to be true? And are those things in fact true?
The first question is easy: have people from the listed countries in fact been issued visas and permitted to travel to the United States, only to be turned back at the border by CBP? Was the Trump Administration indeed handing out “visas,” but simply restricting “entry?” If what Blackman argues is right, the answer should be “yes.” But the answer, in fact, is no (except for people who were already in flight when the ban was announced). For this reason, the New York Times referred (without correction) to the ban as a “visa crackdown”, precisely because of what was actually happening in consular offices (and airports) the world over. To choose just a few examples, the American embassies in Paris, Berlin, and London all made perfectly clear that the EO would affect the issuance of visas, not just entry at the border.
But perhaps our Ambassador to the Court of St James’s also lacked the appropriately nuanced understanding of immigration law, baffled by the “strikingly complicated” provisions discussed above. So, a second test for the suite: what did the State Department tell its embassies to do? If the Blackman view is the right one, the Secretary of State should presumably have directed his Foreign Service officers to continue issuing visas as normal, but (perhaps) to warn travelers that they would be refused at the border. But that turns out to be wrong also. 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. The embassies were directed to halt visa interviews and appointments immediately, and to refuse visas for existing applicants who had already been interviewed. As if that were not clear enough, the State Department cable also informed embassies that a “red banner message” was to be placed on all embassy websites, reading: “Per U.S. Presidential Executive Order signed on January 27, 2017, visa issuance to aliens from the countries of Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen has been suspended effective immediately until further notification.” You would be forgiven for thinking that sounded like discrimination in the “issuance of an immigrant visa because of the person’s … nationality, place of birth, or place of residence,” as the statute unambiguously forbids.
But perhaps the State Department, too, misunderstood—after all, immigration is a tricky area, and Rex Tillerson’s still new to the job. So a third test for proponents of the President’s Section 1182(f) authority: does the text of the Executive Order itself support their understanding of it? If they are right, the relevant portions should not speak of “visas” at all, but simply restrictions on “entry.” But again the test fails, as the Executive Order turns out to use the word “visa” no fewer than 27 times. The first of these mentions comes in the first sentence of the first section (which describes the “Purpose” of the Order): “The visa-issuance process plays a crucial role in detecting individuals with terrorist ties and stopping them from entering the United States.” (So there is some connection between visas and entry!) Section 3 of the Order (the one that imposes the travel ban on nationals of the seven listed countries) is then entitled “Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern.” And the order then goes on to use the concept of entry and visa issuance interchangeably: Section 3(c) suspends the “entry” of nationals of the seven listed countries, and Section 3(g) then says that “notwithstanding” that suspension, the Secretaries of State and Homeland Security may “issue visas” in certain circumstances to “nationals of countries for which visas and benefits are otherwise blocked.” Hmm. Otherwise blocked? So Section 3 does block visas to nationals of those countries, just as our ambassadors believed?
There are indeed many fine distinctions in the immigration laws. But it is entirely wrong to suggest (as Blackman does in the aforelinked post) that it is only “pundits” who have “conflated” the issues of admissibility and visa issuance. “Permission to travel and remain, for some period, in the United States” (a visa) and “crossing the border into the United States” (entry) are treated as intimately related by the drafters of the Executive Order themselves, the Trump Administration’s State Department, our embassies around the world, and (as a consequence) just about everyone else. What the Executive Order directed, resulted in, and logically requires is the precise thing that has been forbidden by United States law since 1965: discrimination in the issuance of visas based on national origin.
The question is then what to make of the President’s authority under Section 1182(f). After all, it must mean something. But it is a question with an easy answer. That section was enacted in 1952; thirteen years later, Congress qualified the President’s power by enacting the no-discrimination rule. It is commonsense statutory construction that the latter restriction on the earlier power should be given effect as the later-in-time enactment. Moreover, the President’s authority to restrict entry is a very generally stated one, whereas the no-discrimination rule is very specific in what it prohibits—and in such a situation, the specific prohibition prevails over the general permission. (Generalia specialibus non derogant, as my old boss, Justice Scalia, would put it.) Just as important, what force would the no-discrimination rule have if the President could simply direct that it be essentially ignored? Good statutory construction does not leave any provision meaningless if it can be avoided. And so it is a far more sensible harmonization of the two sections to say “the President may suspend the entry of certain classes of aliens, except X, Y, and Z classes” than to say “no discrimination may happen on the basis of X, Y, or Z, unless the President wants to.”
If I may channel my inner Justice Kagan for a moment, allow me to close with a hypothetical designed to illustrate the commonsense textualism at work in the conclusions above. Imagine you are a parent, and you tell your daughter, “whenever you’re visiting my office, feel free to use the various equipment there to do your schoolwork as you see fit.” Then imagine that some time passes, and you also say (concerned about rising toner costs, maybe): “Taylor, unless I specifically tell you to, please don’t touch the photocopiers at my office.” Now, do you think your daughter has your permission to use the photocopiers? Surely not. Would you be persuaded if she asked someone else to “touch” the photocopier for her, to comply with the literal instruction while plainly contravening the fairest interpretation of your words? I bet you wouldn’t. And would you be convinced if she replied “but you told me I could use the equipment as I saw fit, Mom, and that’s a very broad delegation of authority, and actually doesn’t seem to contemplate any role for anyone’s judgment but mine?”
If your answer to that question is no, then good news. You understand precisely why this travel ban is illegal, and are a natural textualist, too.