The order applies across the entire country, Judge Robart wrote, because a patchwork order—in which Customs and Border Protection enforced the order at some airports but not others “would undermine the constitutional imperative of ‘a uniform Rule of Naturalization.’”’ The quotes are from a 2015 opinion by Fifth Circuit Judge Jerry Smith, ruling on then-President Obama’s “deferred action” program for some undocumented immigrants. Conservatives adored that ruling; they are less enthusiastic about this one. But sauce for the nativist goose, Judge Robart implies, must be sauce for the immigrant gander. The same logic goes for his decision to find that the states of Washington and Minnesota have “standing to sue.” The states claim that they are injured by the order because it injures their people and in-state corporations by separating families and preventing the entrance of skilled workers. “State standing” was pioneered by Texas in its challenge to Obama; that chicken may not be all the way home to roost yet, but it is flapping homeward.
Monday’s preliminary hearing will address scope and standing again. Then the argument will turn to the merits—that is, is the executive order warranted by the immigration laws, and if so, is it constitutional?
The administration really might draw some comfort from the Massachusetts opinion. Judge Robart in Washington thinks the order violates the statute and the Constitution; Judge Gorton in Massachusetts thinks it doesn’t. Both are smart judges confronting a new issue.
We don’t and can’t know how the case will come out. Both sides have strong arguments.
First, the statutory issue. It arises because of possible conflict between two provisions of the Immigration and Nationality Act. The first, 8 U.S.C. § 1182(f) was adopted in 1952. It provides that the president may find “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,” and “suspend the entry” of those aliens. The second, § 1152(1)(A), was added in 1965. It provides 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.”
Combining these two suggests that the President can choose “classes” to exclude—as long as the “classes” aren’t based on “race, sex, nationality, place of birth, or place of residence”—which the travel ban order definitely is. That’s especially convincing since the anti-discrimination language was added after the “classes” language. But a court could say that the “any class” language limits the anti-discrimination language, instead of vice-versa.
The statutory language doesn’t ban discrimination based on religion, though. That’s a command drawn from the Equal Protection principle of the Fifth Amendment, as well as the Free Exercise and Establishment Clauses of the First Amendment. So does the “travel ban” discriminate against Muslims? Here again, the government says no: it is, they say, a total ban on refugee admissions, coupled with a geographic ban on visa applicants from seven Middle East nations––Iraq, Iran, Syria, Yemen, Sudan, Libya and Somalia. No religious discrimination there, right? (Especially, the argument goes, since there are plenty of predominantly Muslim nations not covered by the visa ban.)