Update: good analysis by the
Cato Institute
I feel it is only fair that I weigh in on this issue because I published three posts (
1,
2,
3) that indicated I agreed with Judge Andrew Hanen in
United States v. Texas that the Executive Branch does not have an unfettered right to say who enters or does not enter the country. Judge Hanen issued an injunction on February 16, 2015, blocking Obama administration policies directed at allowing 108,000 illegal immigrants to stay in the U.S. and be issued work permits.
My discussion here is not on the merits of whether the Obama administration's policies and Trump's executive order do actually stop immigration practices that would be detrimental to the U.S. Rather it is based on the issue of whether the Executive Branch has the sole right to determine what is in the national interest.
The Constitution gives the Executive Branch no powers in this area. The only mention of immigration is via naturalization which is given to the Legislative Branch (Article I, Section 8).
True, the President is the Commander in Chief of the Army and Navy (Article II, Section 2), but only Congress has the right to declare war (Article I, Section 8). So, Commander in Chief is not as powerful as it may seem since he can't use the armed forces for even a defensive war unless Congress allows it.
Patterico gives an excellent overview of the problem with President Trump's executive order. And with the
discrimination aspect in particular. Congress has given the Executive Branch authority over immigration but with certain provisos under the Nationality Act of 1965. Under
Section 1152 of the U.S. Code.
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.
National defense (U.S.C. 1182 f*) is not cited in any of the sections mentioned above.
Further, if the assertion of something being "detrimental to the interests of the United States" would allow a president to allow people in or not, Judge Andrew Hanen could not have imposed an injunction on the Obama administration allowing 108,000 illegal aliens to stay and be issued work permits.
Patterico:
Indeed, Obama tried to justify DAPA, his sweeping unconstitutional amnesty, in terms of our national security. In the United States’s brief in United States v. Texas, at pages 11-12, the Solicitor General wrote:
Deferring action for these individuals, the Secretary continued, would support “this Nation’s security and economic interests and make[s] common sense, because [it] encourage[s] these people to come out of the shadows, submit to background checks, pay fees, apply for work authorization (which by separate authority I may grant), and be counted.”
See what I mean? Presidents cite national security for literally everything. If you let them, they will run completely amok — and tell you they have to, so you can be safe.
A second issue is whether Washington state has standing to bring the case. Certainly if Texas did in
United States v. Texas, Washington state does too. One of the key injuries Texas asserted was that it would have to subsidize driver's licenses issued to illegal immigrants. (I'm not kidding.) From Judge Hanen's opinion:
1. Article III Standing
a. Injury
The States allege that the DHS Directive will directly cause significant economic injury
to their fiscal interests. Specifically, Texas argues that the DHS Directive will create a new class of individuals eligible to apply for driver’s licenses,14 the processing of which will impose substantial costs on its budget. Plaintiffs rely on Texas’ driver’s license program to demonstrate how the costs associated with processing a wave of additional driver’s licenses will impact a state’s budget. Texas’ undocumented population is approximately 1.6 million, and Plaintiffs’ evidence suggests that at least 500,000 of these individuals will be eligible for deferred action through DAPA. Doc. No. 64, Pl. Ex. 14 ¶ 33; Pl. Ex. 24 ¶ 6. Under current Texas law, applicants pay $24.00 to obtain a driver’s license, leaving any remaining costs to be absorbed by the state. See Tex. Transp. Code Ann. § 521.421. If the majority of DAPA beneficiaries currently residing in Texas apply for a driver’s license, it will cost the state $198.73 to process and issue each license, for a net loss of $174.73 per license. Doc. No. 64, Pl. Ex. 24 ¶ 8. Even if only 25,000 of these individuals apply for a driver’s license—approximately 5% of the population estimated to benefit from the DHS Directive in Texas—Texas will still bear a net loss of $130.89 per license, with total losses in excess of several million dollars. Id.
Okay, so if driver's license subsidies (which a state does not have to give) afford standing to ask for an injunction, pretty much anything that proves probable loss of income or probable need for more spending will do.
My bet is that if the case goes to the Supreme Court, the same thing will happen as with
United States v. Texas. The Court will
split 4-4, and the lower court judgment will stand as happened to Judge Hanen's injunction (which was upheld by the U.S. 5th Circuit Court of Appeals).
_____
*U.S.C. 1182(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. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.
This is what passes for "diversity" in Multnomah County. And notice the slightly slanted colored letters (all of the same font and same size) that cleverly make the point.
