Media Need to Treat Presidential Lawbreaking as a Matter of Fact

The president has broad legal authority to restrict immigration. Under the Immigration and Nationality Act, he can restrict any class of aliens he deems “detrimental to the interests of the United States” without needing legislation or congressional approval.

That’s certainly not the conclusion of Erwin Chemerinsky, a UC/Irvine law professor and constitutional scholar who is the nation’s No. 2 most-cited legal analyst. In a Los Angeles Times op-ed (1/29/17), Chemerinsky stated flatly:

To start, it’s illegal to bar individuals from entering the country based on nationality. The Immigration and Nationality Act of 1965 explicitly says that no person can 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.” This act was adopted to eliminate the prior practice of immigration quotas from specific countries. Indeed, in signing the legislation, President Lyndon Johnson said that “the harsh injustice” of the national-origins quota system had been “abolished.”

Absent a specific authorization by Congress, the government cannot discriminate based on nationality or place of residence, which is exactly what Trump ordered.

What about the Immigration and Nationality Act cited by Taub and Fisher?  Chemerinsky went on to say:

Trump supporters point to an earlier law, adopted in 1952, that allows the president to “suspend the entry” of “any class of aliens” that he finds are detrimental to the interest of the United States. But that was superseded by the 1965 statute. Besides, the 1952 law does not allow the president to remove those who are lawfully present (such as visa holders at airports).

In other words, the way the “Interpreter” column interpreted the Immigration and Nationality Act—citing the 1952 language without noting that it had been amended in 1965 specifically to prohibit discrimination by “race, sex, nationality, place of birth or place of residence”—is a bogus argument made by “Trump supporters.”

(Before concluding that the Immigration and Nationality Act lets presidents bar whoever they want, Taub and Fisher did write that the UN refugee convention “prohibits discrimination against refugees on the basis of religion,” and that “the Immigration and Nationality Act also prohibits such discrimination in the issuance of visas.” Not only is this less relevant than the prohibition of national discrimination, since the Trump administration denies that its ban is based on religion, but the Immigration and Nationality Act does not actually prohibit discrimination based on religion.)

But you don’t need to go to the LA Times to see the legal interpretation of “The Interpreter” contradicted; in an earlier op-ed piece in the New York Times (1/27/17), Cato Institute immigration analyst David Bier had much the same analysis as Chemerinsky:

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).

Law is famously complicated; no doubt you could find legal scholars to argue that the 1965 amendment doesn’t apply, for whatever reason, to Trump’s immigration order. But to simply ignore the parts of the law that appear to make Trump’s order illegal isn’t kosher.

It’s striking that the more complete analyses offered by experts (Bier, though not a lawyer, has drafted immigration legislation as a congressional aide) were presented as opinion, while the more fragmentary explanation provided by non-specialists was presented as fact-based analysis. One suspects a hesitation to put a judgment that the president is breaking the law into the realm of “objective” journalism; that feels like taking sides, whereas asserting that “the president has broad legal authority to restrict immigration” seems like the kind of thing a “neutral” journalist would say. (It always feels more neutral to side with power than to oppose it.)

But just as having a president who is a habitual liar has changed the way the New York Times labels presidential deception, the Trump regime’s cavalier attitude toward the rule of law may force a rethinking of how establishment news outlets address the question of legality in regard to executive policies. If the White House is determined to push forward policies without regard to whether they’re legal or not, then media urgently need to stop treating what the law says as strictly a matter of opinion.

Jim Naureckas is the editor of FAIR.org. You can find him on Twitter at @JNaureckas.