The convention is that a news article has to treat legality as a matter of opinion….
A recent edition of “The Interpreter” (1/30/17), a New York Times column by Amanda Taub and Max Fisher aimed at “exploring the ideas and context behind major world events,” was devoted to Donald Trump’s immigration ban—and one of the questions it attempted to answer, appropriately enough, is “Is the Order Legal?” Its conclusion:
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 But that was superseded by the 1965 statute.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.)
…whereas an opinion piece can state that the law is being broken as a matter of fact.
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.
You can send a message to the New York Times at letters@nytimes.com, or write to public editor Liz Spayd at public@nytimes.com (Twitter:@NYTimes or @SpaydL). Please remember that respectful communication is the most effective.
A grasp of reality (not to mention a sense of decency)
Stuck in neutral
For sure we need an easy to access website that will enumerate any and all rule of law transgressions.
And another page for lies.
Really? Really? Mr. Naureckas writes of “the Trump regime’s cavalier attitude toward the rule of law,” less than a month after the Obama administration, led by that paragon of Constitutional Law, B. H. Obama, moved to their new lives of Legacy. Obama’s Attorney General, Eric Holder, justified the planned murder of anyone, including U.S. citizens, when the President, in his or her wisdom, deems it necessary for national security reasons. The President, her/himself, was the source of due process as s/he decides whom to order killed, acting only with “robust oversight.” [Bingo! It’s Constitutional!]
On behalf of the administration, Holder famously said that “due process” and “judicial process” are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process. In 41 years of practicing law, I had never heard anyone argue that interesting interpretation of the Constitution, but then we didn’t have drones last century. What did we know?
Did anyone think things were going to get better with either Trump or Clinton? Really? Really?
hey steve,
So the 2 wrongs make what?
Also do you really think FAIR has never been critical of Obama and Holder specifically?
Most FAIR readers are plenty aware of Obama’s abuses, including those of Holder.
Holder hasn’t been AG in 4 years, and Obama left office.
hey jay
No two wrongs don’t make a right.
I didn’t mean to suggest that FAIR wasn’t critical of Obama and Holder or that FAIR readers weren’t aware of the history.
It’s really my own despair that I was relating. Whether our Ozymandias turns out to be Donald Trump or the next one or the one after that, the die seems to be cast.
I apologize if my comments offended you or others.
I won’t post again, but please note that Holder left office April 27, 2015; he served six years.
You can give thanks to the Bush W. (Who did what ever he pleased, without any regard for US law) for just about everything that followed as far as Presidents doing what-ever they feel like, regardless of US laws and the Constitution of the United States. Stay tuned, it will only get worse…
Which makes me wonder why isn’t he in jail where he belongs? When an individual makes a shambles out of integrity due to his lack of character that’s on him. When he makes a shamble out of the office of the president he needs to be held to account for having bastardized the office. From day 1 Obama protected the criminals of the Bush gang and then proceeded to follow in his footsteps. He was the black george bush. We Americans need to turn back the clock and to reset our governmental offices back to the way they were before that dastardly criminal trio of bush, cheney, and rumsfield totally perverted our constitution and made a mockery of our democratic republic. We must stop this criminal elite before they lead us into Armageddon.
Bluntly: Ms Taub of the NY Times is really not a very smart person.
She’s either so stupid that she can’t discover the law passed in 1965, or she’s an idiot who she thinks she can lie about that law in a public form.
It’s a pattern with her, this kind of thing.
Mr. Fisher I’m less clear about, but of course this stupidity of Ms Taub’s doesn’t commend him or the section editor. If he were a smart person, he’d have refused to have his name associated with this column.
Sorry, I disparage Taub because this is not the first time she’s pulled BS like this. (I’m not familiar Fisher’s record–and too lazy to read his earlier Times essays.)
The press doing the right thing where the US government, or any other government (state, local) in this country is concerned?
You’re kidding right.
The press are mostly “scum” just like President Trump said when he was President elect during the campaign.
People (Press) who wouldn’t know the truth (let alone report it) if it weighted 1,000 lbs. and fell on them!!
“Media Need to Treat Presidential Lawbreaking as a Matter of Fact”
Yeah and just what were you doing “Fair” and reporter Jim Naureckas when former President Bush W. started all the b u l l s h i t??????????????
Can the president actually “do” anything just cause he wants to? I think not. At best the president would be part of a group of people who were sworn to uphold the constitution and to serve the public interest to the best of their ability. Under such an administration we could all look towards a climate of ever increasing prosperity and justice. At worst (and much more likely) he is told what to do by a group of very powerful business interests who would rather remain behind the scenes. If the pres is an upstanding individual with great character he would be able to hold his own against these forces. On the other hand if he has anything to hide he is susceptible to an FBI Hoover attack and quickly begins towing the line. As a consequence of this type we wind up with the illusion of democracy which is what we see today. Corprotocracy.