Tag Archives: executive order

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Why the Government Cannot Ban All Immigrants from a Certain Country – Article by David Bier

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Categories: Justice, Politics, Tags: , , , , , , , , , , ,

The New Renaissance Hat
David Bier
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I previously reviewed the exceptionally poor arguments that the Trump administration used to defend its blanket ban on immigration from seven majority Muslim countries in the State of Washington v. Donald Trump. Now, in its appeal of the district court’s temporary restraining order to the 9th Circuit Court of Appeals, the government has added a new argument in favor of its position that is still fatally flawed. It claims:

The State continues to argue that Section 3(c)’s temporary suspension of the entry of aliens from seven countries contravenes the restriction on nationality based distinctions in [section 202(a)(1)(A) of the Immigration and Nationality Act (INA)]. But that restriction applies only to “the issuance of an immigrant visa,” Id., not to the President’s restrictions on the right of entry [under section 212(f)].

The government was right not to attempt this argument initially. Their argument is that a visa does not entitle the recipient to entry in the United States, but merely to travel to the United States. Therefore, they are free to discriminate at the border. To bolster the argument, INA 101(a)(4) does specifically distinguish between admission and visa issuance.  Essentially, they are defining “visa” in section 202 to include only the visa document that permits travel to the border, but does not grant status in the United States. And status is what grants a person the legal right to reside inside the country.

The problem is that the definition of a “visa” in section 202 includes “status” that grants a right to enter and reside in the United States. The State Department’s regulations define visa in section 202 to mean visa or status and have for as long as the INA has been around. Eligibility for status is either determined by an adjustment of status application for immigrants residing inside the United States or at the border for immigrants entering the United States on an immigrant visa for the first time. It is the act of granting entry that confers legal permanent residency status.

Thus, the government would be violating the prohibition on discrimination in section 202(a)(1)(A) just as much by denying entry as by denying visas. An immigration officer cannot deny entry based on nationality without also discriminating in the issuance of status to an immigrant at a port of entry.

Why “visa” cannot be interpreted narrowly

Not only is this interpretation based on the government’s own longstanding regulations, the interpretation of section 202 that the government offered during appeal would require it to adopt a variety of other positions that are at odds with the statute and regulations.

If “visa” in section 202 was interpreted to mean only the visa document, then adjustments of status applications for persons inside the United States would be exempt from the numerical limitations on visas in that section and in section 203. The clear intent of Congress was to control the number of persons who are entering the United States, not visa documents issued, and so the department has always held this view. Thus, the U.S. attorney in oral arguments before the district court admitted that per-country limits were about allocating how many people the United States allows “to come into the country.”

If the person is determined ineligible to enter, the visa is revoked at this point, and the State Department considers it not to have been issued at all. In other words, the department only counts “status” determinations against the visa caps, despite the fact that the section never mentions status. It is interesting to note on this point that the original version of the Immigration and Nationality Act of 1952 actually had consular officers grant immigrants “status” abroad, which could be revoked at entry if they were deemed ineligible.

Why the government cannot be biased in entry but not in visa issuance

This interpretation does not undermine the distinction between visa issuance and admission in section 101(a)(4) because a determination of inadmissibility under section 212 applies equally to admission at the border as it does to visa issuance abroad. Immigration officers inside the country rely on the same criteria to determine eligibility to enter that consular officials use to determine eligibility for an immigrant visa. A person granted an immigrant visa in an unbiased manner would not be entitled to enter at the border. He would just be entitled to similar unbiased treatment.

This proves that the law forecloses the idea that the government could be unbiased in visa issuance but not in entry. This is also why all presidential proclamations under 212(f) are immediately printed in the State Department’s Foreign Affairs Manual. The manual explains, “Aliens who have engaged in conduct covered by a Presidential Proclamation issued under the authority of section 212(f) may also be inadmissible under other sections of the INA or other statutes. These statutory inadmissibilities are to be considered prior to determining whether a Presidential Proclamation applies.”

The executive order itself admits that the State Department will be enforcing it by suspending visa issuance just as much as the Department of Homeland Security by suspending entry, and indeed, it has suspended visa issuance to nationals of those seven countries.

Another problem for the government’s view is that it implies that Congress intended to create a system in which it required non-discrimination for applicants abroad, but not applicants at ports of entry or inside the United States. Indeed, their argument would free the government to discriminate based on nationality in adjustment of status applications for immigrants who are residing inside the United States right now, even without a presidential determination that they are a “detriment.”

Not only is this plainly absurd, this would create the bizarre result that immigrants adjusting in the United States would have fewer protections against discrimination than immigrant applicants abroad. This leaves the government arguing that immigrants abroad have fewer constitutional rights than immigrants in the United States, while somehow also having more statutory rights.

This obviously cannot have been what Congress intended. In fact, as I have previously explained, Congress debated this very question of whether ending discrimination would allow unvetted individuals to enter the United States from certain countries where information is difficult to obtain. They rejected this argument. No member of Congress in 1965—whether they were for the bill or against it—believed that President Johnson could then have immediately undone their work with a presidential proclamation.

David_BierDavid Bier

David Bier is an immigration policy analyst at the Cato Institute’s Center for Global Liberty and Prosperity.

This work by Cato Institute is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 3.0 Unported License.

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Will No One Challenge Obama’s Executive Orders? – Article by Ron Paul

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Categories: Politics, Tags: , , , , , , , , , , , ,

The New Renaissance Hat
Ron Paul
February 11, 2014
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President Obama’s state of the union pledge to “act with or without Congress” marks a milestone in presidential usurpation of Congressional authority.  Most modern presidents have used executive orders to change and even create laws without Congressional approval. However President Obama is unusually brazen, in that most presidents do not brag about their plans to rule by executive order in state of the union speeches.

Sadly, his pledge to use his pen to implement laws and policies without the consent of Congress not only received thunderous applause from representatives of the president’s party, some representatives have even pledged to help Obama get around Congress by providing him with ideas for executive orders. The Constitution’s authors would be horrified to see legislators actively aiding and abetting a president taking power away from the legislature.

Executive orders are perfectly legitimate and even necessary if, in the words of leading Constitutional Scholar Judge Andrew Napolitano, they “….  guide the executive branch on how to enforce a law or…complement and supplement what Congress has already done.” The problem is that most modern presidents have abused this power to issue orders that, as Judge Napolitano puts it, “restates federal law, or contradicts federal law, or does the opposite of what the federal law is supposed to do.”

Political opponents of the president rightly condemned Obama for disregarding the Constitution. However, it was not that long ago that many of the same politicians were labeling as “unpatriotic” or worse anyone who dared question President Bush’s assertions that he had the “inherent” authority to launch wars, spy on Americans, and even indefinitely detain American citizens.

Partisan considerations also make some members of the opposition party hesitate to rein in the president. These members are reluctant to set a precedent of “tying the president’s hands” that could be used against a future president of their own party.

The concentration of power in the office of the president is yet one more negative consequence of our interventionist foreign policy. A foreign policy based on interventionism requires a strong and energetic executive, unfettered by Constitutional niceties such as waiting for Congress to pass laws or declare war.  So it simply was natural, as America abandoned the traditional foreign policy of non-interventionism, for presidents to act “without waiting for Congress.” After all, the president is “commander-in-chief” and he needs to protect “national security,” they argued. Once it became accepted practice for the president to disregard Congress in foreign affairs, it was only a matter of time before presidents would begin usurping Congressional authority in domestic matters.

It should not be surprising that some of the biggest promoters of an “energetic” executive are the neoconservatives. They are also enthusiastic promoters of the warfare state. Sadly, they have misled many constitutionalists into believing that one can consistently support unchecked presidential authority in foreign policy, but limit presidential authority in domestic matters. Until it is fully understood that virtually limitless presidential authority in foreign affairs cannot coexist with strict limits on Presidential authority in domestic matters, we will never limit the power of the Presidency.

The people must also insist that politicians stop viewing issues concerning the separation of powers through a partisan lens and instead be willing to act against any president who exceeds his constitutional limitations. Thankfully we have scholars such as Louis Fisher, who has just published an important new book on presidential power, to help us better understand the Founders’ intent with regard to separation of powers. The key to achieving this goal is to make sure the people understand that any president of any party who would exceed constitutional limitations is a threat to liberty, and any member of Congress who ignores or facilitates presidential usurpation is being derelict in his Constitutional duty.

Ron Paul, MD, is a former three-time Republican candidate for U. S. President and Congressman from Texas.

This article is reprinted with permission from the Ron Paul Institute for Peace and Prosperity.

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Is Serfdom an Executive Order Away? – Article by Sheldon Richman

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Categories: Politics, Tags: , , , , , , , , , , , , , , , , , ,

The New Renaissance Hat
Sheldon Richman
July 7, 2012
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Sometimes a step back helps to provide perspective on a matter. President Obama provided such a step with his March 16 Executive Order, National Defense Resources Preparedness. In it we see in detail how completely the government may control our lives—euphemistically called the “industrial and technological base”—if the president were to declare a national emergency. It is instructive, if tedious, reading.

President Obama claims this authority under the Constitution and, vaguely, “the laws of the United States,” but he specifically names the Defense Production Act of 1950. As Freeman columnist and Independent Institute Senior Fellow Robert Higgs observed, “Under this statute, the president has lawful authority to control virtually the whole of the U.S. economy whenever he chooses to do so and states that the national defense requires such a government takeover.”

We shouldn’t assume this is merely an academic exercise or that a third world war would need to break out. In the last decade, under circumstances representing no “existential threat” to our society, the executive branch has exercised extraordinary powers.

Reading the Executive Order, I was reminded of a quotation of Leonard Read’s: “[A]nyone who even presumes an interest in economic affairs cannot let the subject of war, or the moral breakdown which underlies it, go untouched. To do so would be as absurd—indeed, as dishonest—as a cleric to avoid the Commandment ‘Thou shalt not steal’ simply because his parishioners had legalized and were practicing theft.”

The Executive Order begins by authorizing executive-branch officers to “assess on an ongoing basis the capability of the domestic industrial and technological base to satisfy requirements in peacetime [!] and times of national emergency, specifically evaluating the availability of the most critical resource and production sources, including subcontractors and suppliers, materials, skilled labor, and professional and technical personnel.”

But these officials are to do more than assess. They are to be prepared to “ensure the availability of adequate resources and production capability,” to “improve the efficiency and responsiveness of the domestic industrial base to support national defense requirements,” and to “foster cooperation between the defense and commercial sectors. . . .”

Further, the President’s order notes his authority to “require acceptance and priority performance of contracts or orders (other than contracts of employment) to promote the national defense over performance of any other contracts or orders, and to allocate materials, services, and facilities as deemed necessary or appropriate to promote the national defense” (emphasis added).

That is, the executive branch is first in line for whatever it wants (except civilian labor—perhaps).

Under the section titled “EXPANSION OF PRODUCTIVE CAPACITY AND SUPPLY,” the heads of agencies engaged in procurement are authorized to “guarantee loans by private institutions,” “make loans,” and “make provision for purchases of, or commitments to purchase, an industrial resource or a critical technology item for Government use or resale, and to make provision for the development of production capabilities, and for the increased use of emerging technologies in security program applications, and to enable rapid transition of emerging technologies.”

Think of the potential for corporatist rent-seeking.

In the section on personnel we learn that the secretary of labor shall “collect and maintain data necessary to make a continuing appraisal of the Nation’s workforce needs for purposes of national defense and upon request by the Director of Selective Service, and in coordination with the Secretary of Defense, assist the Director of Selective Service in development of policies regulating the induction and deferment of persons for duty in the armed services.”

So along with the commandeering of private resources, there will be a draft, the commandeering of military (and other?) labor—that is, slavery by another name.

Advocates of the freedom philosophy have a dual concern: that the executive has virtually unchecked authority to declare an emergency and that in an emergency the private economy would be commandeered by government officers. The Executive Order is a breathtaking reminder that, as Higgs put it, “private control of economic life in the United States, to the extent that it survives, exists solely at the president’s pleasure and sufferance.”

Sheldon Richman is the editor of The Freeman and TheFreemanOnline.org, and a contributor to The Concise Encyclopedia of Economics. He is the author of Separating School and State: How to Liberate America’s Families.

This article was published by The Foundation for Economic Education and may be freely distributed, subject to a Creative Commons Attribution United States License, which requires that credit be given to the author.