I found this article by David Bier on the Cato website that points to the 1965 amendment to the Immigration and Nationality Act in order to claim that Trump’s executive order to refuse entry to citizens of seven nations in the Middle East is illegal on the basis that it constitutes discrimination. The link provided in the article doesn’t point to the amendment to which is referring (I found it here), or spell out which section to which is referred. But it is probably the following:
SEC 2. Section 202 (66 Stat. 175; 8 U.S.C. 1152) (a) “No person shall receive preference or priority or be discriminated against in the issuance of an immigration visa because of his race, sex, nationality, place of birth, or place of residence, except as specifically provided in section 101 (a)(27), section 201 (b), and section 203: Provided that the total number of immigrant visas and the number of conditional entries made available to natives of any single foreign state… shall not exceed 20,000 in any fiscal year: Provided further, that the foregoing proviso shall not operate to reduce the number of immigrant who may be admitted under the quota of any quota area before June 30, 1968.
Mr. Bier, in his sort of lax style of documenting his claim, made me follow two links before I found and read the entire amendment to the Act, gave me an idea to look at 8 U.S.C as it stands today to be sure that what he pointed me in the direction of reading hasn’t been further amended.
And take a look at what I found:
(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 a section to itself in 8 U.S. Code § 1182. I can’t say from when or where it came, but it is most definitely there. Moreover, the airlines themselves can be sanctioned for bringing the people subject of such a ban into the US.
The pertinent parts of 8 U.S. Code § 1152 are now:
(a) Per country level
(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.
So now, let’s talk about what Obama had been doing with refugees, because their treatment is covered in an entirely different section of Chapter 8. He had made liberal use of 8 U.S. Code § 1157 that provides wide discretion to the President for admitting refugees, with a limit of 50,000 per year established for FY 1980-82 that expired in 1992.
(a) Maximum number of admissions; increases for humanitarian concerns; allocations
(1) Except as provided in subsection (b), the number of refugees who may be admitted under this section in fiscal year 1980, 1981, or 1982, may not exceed fifty thousand unless the President determines, before the beginning of the fiscal year and after appropriate consultation (as defined in subsection (e)), that admission of a specific number of refugees in excess of such number is justified by humanitarian concerns or is otherwise in the national interest.
(2) Except as provided in subsection (b), the number of refugees who may be admitted under this section in any fiscal year after fiscal year 1982 shall be such number as the President determines, before the beginning of the fiscal year and after appropriate consultation, is justified by humanitarian concerns or is otherwise in the national interest.
(3) Admissions under this subsection shall be allocated among refugees of special humanitarian concern to the United States in accordance with a determination made by the President after appropriate consultation.
(4) In the determination made under this subsection for each fiscal year (beginning with fiscal year 1992), the President shall enumerate, with the respective number of refugees so determined, the number of aliens who were granted asylum in the previous year.
(b) Determinations by President respecting number of admissions for humanitarian concerns
If the President determines, after appropriate consultation, that (1) an unforeseen emergency refugee situation exists, (2) the admission of certain refugees in response to the emergency refugee situation is justified by grave humanitarian concerns or is otherwise in the national interest, and (3) the admission to the United States of these refugees cannot be accomplished under subsection (a), the President may fix a number of refugees to be admitted to the United States during the succeeding period (not to exceed twelve months) in response to the emergency refugee situation and such admissions shall be allocated among refugees of special humanitarian concern to the United States in accordance with a determination made by the President after the appropriate consultation provided under this subsection.
But look at what sub section ‘c’ says:
(c) Admission by Attorney General of refugees; criteria; admission status of spouse or child; applicability of other statutory requirements; termination of refugee status of alien, spouse or child
(1) Subject to the numerical limitations established pursuant to subsections (a) and (b), the Attorney General may, in the Attorney General’s discretion and pursuant to such regulations as the Attorney General may prescribe, admit any refugee who is not firmly resettled in any foreign country, is determined to be of special humanitarian concern to the United States, and is admissible (except as otherwise provided under paragraph (3)) as an immigrant under this chapter.
We can boil the legality of the refugee question down to what “firmly settled” actually means. Syrians who are resettled in other countries do not qualify. Syrians on the island off Australia do not qualify.
The additional point here is that in addition to Presidential discretion, there is also Attorney General discretion here too in the word “may.” The press likes to talk about the acting Attorney General having been fired for challenging the legality of the refugee ban. But if she thought that it was illegal for Trump to ban refugees, considering that she was the top law enforcement official in the country at the time, she was rightly fired. It may have also been an issue that she was trying to hurry the refugees along, fearing that they would not be admitted once Jeff Sessions was sworn in.