Andrew C. McCarthy has written a long piece at NRO’s The Corner responding to my critique of his column supporting the legality of Trump’s immigration order. I thank McCarthy for taking the time to respond, and I think his post helps clarify our areas of disagreement.
I neglected to make my respect for McCarthy as clear as I should have in my previous piece, which was written in my usual … energetic style. Let me rectify that now. McCarthy is truly one of the good guys — and this disagreement aside, I remain an admirer of his. He’s smart, thorough, principled, and an excellent writer.
However, his rebuttal does not convince me.
I’ll give you the same warning McCarthy gives his readers: “Readers with little or no interest in the legal esoterica underlying the president’s executive order” should go to the next post on this blog. Also, like McCarthy, I will assume that you are familiar with our previous back and forth linked above, as well as based on David Bier’s original New York Times op-ed that sparked the discussion.
McCarthy makes two arguments, one constitutional, and one statutory.
The statutory debate centers around whether Congress’s prohibition against discrimination in immigration based on nationality in 8 U.S.C. section 1152(a) conflicts with, and alters, the President’s powers to restrict immigration for public safety reasons under an earlier provision, 8 U.S.C. section 1182(f). McCarthy argues that the provisions are directed at different concerns; section 1182(f), by its text, “refers to threats to the nation’s security, not the nation’s racial or ethnic composition,” while section 1152(a) bars discrimination based on “the person’s race, sex, nationality, place of birth, or place of residence.” McCarthy concludes:
By my interpretation, they can easily be read in harmony: Congress has prohibited discrimination by classification based solely on racial or nationality grounds, but it has maintained discrimination by classification – including nationality grounds – if the president judges that it is temporarily necessary for the country’s protection. I would agree with Patterico that this construction would be problematic if I were pulling congressional intent out of my hat; but, again, I am relying on what Congress itself has said — and not in vaporous legislative history but in the text of the statutes in question.
Focusing on the sentences containing bold type, McCarthy here asserts that Congress has prohibited discrimination by classification based “solely” on nationality grounds, but “has maintained” discrimination by classification on nationality grounds … if the president judges it necessary for national security.
One notices two things: 1) McCarthy has imported the word “solely” into that analysis, when that word is not in the statute, and 2) this looks a lot like a conflict as applied to Trump’s actions, unless McCarthy can convince us that section 1182(f) authority functions as an exception to the 1152(a) nondiscrimination provision. Let me take these observations in turn.
First, by saying that discrimination “solely” on the basis of nationality is illegal, McCarthy suggests that the statute allows discrimination on the basis of nationality when coupled with another statutory provision (such as section 1182(f), for example). But neither the word “solely” nor its synonym appear in the nondiscrimination provision of section 1152(a):
(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.
(B) Nothing in this paragraph shall be construed to limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications or the locations where such applications will be processed.
That doesn’t say it’s illegal to discriminate “solely” on the listed grounds. It says it is illegal to discriminate on the listed grounds. (Yes, there are exceptions, but they are not applicable here — although the statute’s reference to those exceptions supports my case, as I’ll show in a moment.) If you both deny entry because of the immigrant’s nationality or place of residence and rely on another provision such as section 1182(f) as a justification for doing so, you’re still denying entry because of the immigrant’s nationality or place of residence.
So if you take out the word “solely” — a word that McCarthy imported into the discussion without any statutory basis — there is an evident conflict that can be resolved only if section 1182(f) is somehow an exception to the application of section 1152(a). This is the only way for the two provisions not to be in conflict in a case where a President seeks to exercise his 1182(f) authority in a manner that discriminates based on nationality, as President Trump did in his executive order on immigration.
Note that this is an “as applied” conflict, and not an “as written” conflict. McCarthy argues that the provisions are harmonious and do not contradict one another, invoking familiar canons of statutory interpretation, such as the admonition to read two separate statutes in harmony when possible, and the related principle that later statutes are not assumed to repeal earlier ones by implication. I agree with these principles. And, as written, he is right: the statutes as written can be harmonious with one another . . . as long as a President respects the nondiscrimination ban in invoking his 1182(f) powers. In other words, Congress may well have assumed that a President would indeed respect the nondiscrimination provision, as required by section 1152(a) — and if the President does so, there is no conflict. Put another way, one way to interpret the statutes as harmonious is to assume that both provisions apply, but that the later-enacted section 1152(a) creates an exception to the authority granted in the earlier-enacted section 1182(f). This would not be a “repeal” by implication, but rather a condition added to the earlier provision.
But if a President decides to exercise his 1182(f) authority by discriminating on the basis of nationality, as President Trump did in his order, then there is an evident conflict, which can be resolved only by arguing that section 1182(f) authority operates as an exception to the section 1152(a) nondiscrimination provision.
But section 1182(f) can’t be an exception to section 1152(a) — because section 1152(a) lists specific exceptions, and section 1182(f) is not one of them. Section 1152(a) says the nondiscrimination provision applies “[e]xcept as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title.” Guess what’s not listed there as an exception? If you said “section 1182(f),” you get the kewpie doll.
Since McCarthy cites canons of construction, the reader will hopefully forgive me if I cite one of my own: “Expressio unius est exclusio alterius” — a Latin phrase that means “the expression of one thing is the exclusion of the other.” By explicitly listing certain provisions as exceptions to the ban on discrimination by nationality or place of residence, section 1152(a) shows a Congressional intent to exclude any other contrary provision as an exception.
Thus, I take issue with McCarthy when he says:
Though Patterico says he prefers textualism to psychoanalysis, he offers no textual evidence that, in enacting 1152(a), Congress intended to repeal the allegedly inconsistent 1182(f) — no doubt because there is no such evidence to be had.
The textual analysis I just offered was contained in an update to my post — an update that I added at noon on January 29, three days before McCarthy’s piece was published. He may have missed it, of course, if he read it before I added the update. But McCarthy asserts that there is no textual analysis showing that section 1152(a) limits section 1182(f) authority in any way, and clearly such a textual analysis does exist: a clear statement that section 1152(a) applies “except as specifically provided in” other provisions, none of which is section 1182(f).
To sum up, I have shown that: 1) the two provisions are indeed in conflict when a President issues an order discriminating against immigrants on the basis of nationality or place of residence; 2) the only way to resolve this conflict is to view the President’s power to suspend entry under section 1182(f) as an exception to section 1152(a); and 3) Congress foreclosed the possibility that section 1182(f) functions as such an exception, by listing other exceptions but pointedly refusing to list 1182(f) as one.
This is enough, I think, to dispose of the statutory argument. The only other way to argue against this is to say that Congress, by passing 1152(a), didn’t “intend” to affect executive authority to suspend entry, which (in McCarthy’s words) “refers to threats to the nation’s security, not the nation’s racial or ethnic composition.”
This is what I was getting at when I said McCarthy’s argument flies in the face of textualism. I don’t doubt the sincerity of McCarthy’s devotion to textualism, and I’m sure he believes he is following the text here. But I don’t believe he actually is respecting the text here, his good and sincere intentions notwithstanding. Section 1152(a) says in relevant part that “no person shall . . . be discriminated against in the issuance of an immigrant visa because of the person’s nationality . . . or place of residence.” It doesn’t add “unless the discrimination is not invidious” or “unless there is a good reason for the discrimination” or anything of the sort. Yet McCarthy seems to be reading in an implied provision along these lines.
This reminds me of the Halbig/King v. Burwell litigation, where the Supreme Court found that “established by the state” meant “established by the state or the Secretary of Health and Human Services.” The Court reached this astonishing result by transmogifying the plain language of the statute based on the Court’s idiosyncratic view of the overall structure of the ACA. Like McCarthy, the King v. Burwell majority purported to reach its conclusions based on explicit statutory language, and not based on legislative history or “psychoanalysis” or “extra-sensory perception,” all of which McCarthy says he rejects as a basis for interpretation. And I believe him, but call me old-fashioned: just as I think “established by the state” means “established by the state,” I also think that “no person shall . . . be discriminated against” on a specified ground means “no person shall . . . be discriminated against” on that ground. This is what I mean when I say that textualism commands the result I argue for here.
I’ve spent a lot of time on the statutory argument, but McCarthy says that the statutory argument is merely a backstop to his main argument: that the President has Article II authority to protect the nation, which includes the authority “to put down imminent threats to national security.” McCarthy emphasizes that these are not just his personal beliefs, but legal opinions based on precedent. Exercise of these powers requires a threat, McCarthy explains. What’s more, McCarthy argues, my citation of the Youngstown concurrence by Justice Jackson — an opinion that indicates that a President may not ignore specific Congressional directives that Congress has the power to make — is just that: a citation of a concurrence, not of a majority opinion.
As to Justice Jackson’s opinion being a concurrence, I know that McCarthy, with his extensive background in constitutional law in general, and the law applicable to terrorism prosecutions in particular (and this is not snark; anyone who knows about Andrew McCarthy’s background knows this is true), must be aware that the opinion of the Court in Hamdan v. Rumsfeld cited Justice Jackson’s concurrence in footnote 23 to this effect:
Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring). The Government does not argue otherwise.
Justice Jackson’s concurrence may be a mere concurrence, but today it carries the force of law. So let’s not quibble over whether Jackson’s statement is the law. Let’s apply it to this case.
McCarthy says that, if we do, my position is still a losing one. Contrasting Trump’s actions with President Truman’s seizure of steel mills in the Youngstown case, McCarthy says:
Unlike Truman, Trump has acted in an area where presidential authority is at its peak – namely, directly against aliens potentially threatening the homeland, not against domestic corporations and their workforces whose connection to a wartime threat overseas was attenuated. And unlike Truman, Trump acted completely consistently with a sweeping statutory grant of authority by Congress. That is why he was on such solid ground.
Note that the statutory interpretation argument I spent so much time on becomes part of the constitutional argument here, as it must. This is because, as I argued in my previous post:
[I]t is Congress, not the President, which has plenary power under the Constitution “to exclude aliens or prescribe the conditions for their entry into this country.” It can delegate a conditional exercise of that power, but if it prohibits that power from being exercised in a certain manner, the President cannot overrule Congress.
If you follow the hyperlink under the phrase “plenary power” in that quote, you’ll see a link to the Supreme Court case of Kleindienst v. Mandel, 408 U.S. 753 (1972). Here is a quote from that case:
The Court, without exception, has sustained Congress’ “plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.” Boutilier v. Immigration and Naturalization Service, 387 U. S. 118, 387 U. S. 123 (1967). “[O]ver no conceivable subject is the legislative power of Congress more complete than it is over” the admission of aliens.
This, by the way, is why we argued that Obama had no authority to make broad executive orders setting the conditions under which aliens would be admitted or excluded — because this is a Congressional matter. McCarthy says I “exaggerate the ‘plenary’ constitutional power of Congress to exclude aliens,” but in light of the language I just quoted you, I submit it’s hard to exaggerate that power. This is why McCarthy has to rely on his statutory arguments even in the constitutional context — because, to remain within the framework of Justice Jackson’s concurrence, McCarthy has to argue that Congress delegated some of this power to the President. Otherwise, it becomes tough to argue that the President can openly defy an explicit Congressional directive regarding immigration such as Congress set forth in the nondiscrimination provision of section 1152(a). This becomes a place where, as with Truman’s illegal seizure of the steel mills in the Youngstown case, presidential authority is at its lowest ebb.
I doubt anyone who already had a strong opinion about this topic will much have their minds changed by this back and forth, and I don’t necessarily expect that McCarthy will be excited to do yet another lengthy response (though I would certainly welcome it). At this point, I think our relative positions have been thoroughly argued, and — with the permission of Mr. McCarthy — I think I will paraphrase the Chief Justice’s line at the end of oral arguments and say, at this point:
The matter is submitted.