[ubernostrum]

8 USC § 1152(a)(1)(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.

Paragraph 2 does not provide grounds for Trump's order. It sets a cap on the percentage of visas which can go to any foreign state in a given year, but does not allow blanket bans on a particular state.

1101(a)(27) does not provide grounds for Trump's order (it defines a class of "special immigrants" for reference elsewhere).

1151(b)(2)(A)(i) does not provide grounds for Trump's order (it provides a definition for "immediate relatives").

1153 does not provide grounds for Trump's order (it defines an allowable scheme of preferential treatment to certain classes of immigrants, such as the highly-skilled).

So Trump did not have the legal authority to suspend issuance of visas on the basis of national origin. Attempting to do saw was a violation of applicable federal immigration law. His executive order was thus unlawful, and it was correct to refuse enforcement.

[camiller]

8 USC §1182(f) which states in part: "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."

§1152 and §1182 would seem to be at odds with each other.

But no

Section 1182(f) plainly and sweepingly authorizes the president to issue temporary bans on the entry of classes of aliens for national-security purposes. This is precisely what President Trump has done. In fact, in doing so, he expressly cites Section 1182(f), and his executive order tracks the language of the statute (finding the entry of aliens from these countries at this time “would be detrimental to the interests of the United States”).

Read more at: http://www.nationalreview.com/article/444371/donald-trump-ex...

[ubernostrum]

The National Review's article basically boils down to "well, we found this section that allows suspending entry of some people, and even though there's another section explicitly forbidding doing this stuff based on national origin we're going to say he has essentially unlimited power to do whatever he wants".

Meanwhile the federal judge who ordered the stay thinks theress a strong likelihood that the order is either unlawful or even unconstitutional, and a senior Justice official thought it was illegal or unconstitutional.

I'm going to side with the judge and the Justice official over the law firm of Trump and Bannon, LLP.

[cookiecaper]

Your personal opinion is fine, but if there's a legitimate interpretative question here, is it not the duty of the DoJ to allow the judiciary to do its job and support the chief executive until he/she loses in court, fair and square? Such accommodations were afforded by Mr. Obama's DoJ, of which Ms. Yates was a part, in light of his actually-decided-by-SCOTUS-to-be-illegal set of EOs. Ms. Yates is refusing to allow the DoJ to compile arguments in favor of Mr. Trump's order.

The oath of office should only be invoked for the most facially plain constitutional violations. If there's a question, we have a judicial system established to settle that. We can't just have random people arbitrarily declaring their opinion that X and Y are "probably invalid" and then redirecting the nation's legal apparatus based on that.

[nikdaheratik]

The Department of Justice's job is not to "support the chief executive". In fact, Yate's was asked directly by then Senator, and current Attorney General nominee, Sessions at her confirmation hearing whether she thought "the attorney general has the responsibility to say no to the President if he asks for something that's improper?"

She did exactly what she said she would and what Congress asked her to do. In this case, I'm going to go with someone who has been in the job for years over the self-serving justifications of an administration that hasn't been in office for two weeks.

[cookiecaper]

Oh yeah, ok, found this comment.

No, among the DoJ's jobs, the task to represent the USG before the judiciary is literally and explicitly given.

There's a special role in the DoJ dedicated to representing the government before the Supreme Court (Solicitor General), but other employees of the DoJ represent the executive branch before other courts.

See Executive Order 6166 (from FDR) [0], Section 5, which states in part "the functions of prosecuting in the courts of the United States claims and demands by, and offsenses against, the Government of the United States, and of defending claims and demands against the Government [...] are transferred to the Department of Justice."

From my reading, the act of Congress that created the Department of Justice in 1870 [1] had a similar purpose, and FDR's order was primarily to remove ambiguity and centralize, not to substantially change the DoJ's function. But I'm neither a lawyer nor a legal historian, so I could definitely be wrong about that.

In any case, yes, the thing that former acting AG Yates did does directly interfere with the DoJ's actual and real legal obligations to represent the executive branch. She instructed all DoJ attorneys to stop preparing/presenting legal defenses for Mr. Trump's Executive Order.

My reading of Sessions' line of questioning is a "Do you think you'd be able to function in a scenario when you need to tell the President that he is wrong", not "Are you prepared to assume for yourself the functions of the judiciary to satisfy your personal, ethereal sense of justice when a legal challenge against the president's orders is filed?"

[0] https://www.archives.gov/federal-register/codification/execu... [1] http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=01...

[defen]

So if hypothetically we went to war with country X tomorrow, the president would not be able to suspend entry of X nationals without an act of Congress?

[cookiecaper]

Hypothetically, wouldn't the Act of Congress constitutionally required to declare war probably include a suspension of immigration itself? ;)

[defen]

Yeah, I guess I was using war in the colloquial term (I don't believe the US has issued a formal declaration of war since World War II)

FWIW I think banning green card holders was stupid (both legally and politically - predictability is good for a legal system, and we already made a promise to green card holders. Politically he had to have known this backlash would happen).

It's just that...I don't know, it seems so polarized right now that you have to support one of two sides, and both are insane. The natural end game of "the right" is that no one else is allowed to come to America, ever. The natural end game of "the left" is that anyone who wants to come to America can, and the magical institutions of America will transform them into Americans, regardless of what they presently believe or how many of them there are. And there is a ratchet effect on both sides, where if you don't believe the most extreme version, you either hate America and its historic population, or you're a racist xenophobe.