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In Hawaii v. Trump, the court reasoned that “Any reasonable, objective observer would conclude, as does the Court for purposes of the instant Motion for TRO, that the stated secular purpose of the Executive Order is, at the very least, ‘secondary to a religious objective’ of temporarily suspending the entry of Muslims.” The entire construct of the “reasonable, objective observer” is, of course, a fiction. In no sense does the court ever go on the street and ask random people what they think. Rather, as designed, the judge puts himself in the shoes of the “reasonable, objective observer.” Judges, who will usually view themselves as fair-minded individuals, no doubt consider themselves in all aspects of their jobs to be reasonable and object. If, for whatever reason, they couldn’t be reasonable and objective on a case, the remedy is recusal. Indeed, the court’s analysis admits as much: both the “reasonable, objective observe” and “the Court” reach the same conclusion!

Once we understand that the “reasonable, objective observer” standard is but a mere proxy for the judge’s own rule of reason, the wide-ranging debate over Hawaii v. Trump becomes clear. Two people, who both consider themselves reasonable, can look at the same record, and reach very different conclusions. To put a finer point on this conclusion, two people, who both consider themselves reasonable, can look at the same record, and vote for Donald Trump or Hillary Clinton, respectively. Whichever camp you find yourself in, in all likelihood, you think the voter in the other camp was unreasonable. (I won’t bother rehashing the merits of the election here).

In Politico, I attempted to capture this mentality by applying deference based on what cable news channel you watch.

Courts need not be blind to Trump’s awful past statements (call it Fox News deference). Judges can and should ask if there is a plausible reason why those seeking admission from these six war-torn countries should undergo heightened review. However, courts should not uncharitably read every piece of evidence in the most negative possible light (call it MSNBC deference). . . . Rather—and despite his own egregious and inexcusable attacks against the courts—judges should treat the 45th president like any other (call it C-SPAN deference).

A “reasonable, objective observer” could have drawn this conclusion, applying C-SPAN deference:

1. On the campaign trail, Donald Trump proposed a ban on immigration of a billion Muslims from every nation in the world.
2. A few months later, Trump said he abandoned that plan, and wanted to focus on “extreme vetting” for all aliens–regardless of religion–from certain dangerous “territories.”
3. In several interviews, Donald Trump reiterated his support for the “territories” policy.
4. After he is inaugurated, he expresses a preference for admitting persecuted Christians in majority-Muslim nations, such as Syria.
5. The first executive order halted immigration from seven nations, subject to narrow exceptions. The order also provides a preference for members of persecuted religious minorities.
6. Though the order applies to all aliens from those countries regardless of religion, each country is a majority Muslim nations, so this order will predominantly affect muslim.
7. Only a handful of aliens from those nations have successfully engaged in successful terrorist attacks in the United States (In October 2016, an Iraqi refugee in Houston pleaded guilty of providing support to ISIS. One month later, a Somalian refugee engaged in a terror attack at Ohio State University with his car and a knife).
8. One of his former advisers said: “So when he first announced it he said “Muslim ban.” He called me up, he said, “Put a commission together. Show me the right way to do it legally.” I put a commission together with judge Mukasey [Michael Mukasey, a former federal judge and Attorney General], with congressman McCaul [Texas Rep. Michael McCaul, chairman of the Homeland Security Committee], Pete King [New York Rep. Peter King, former chair of the Homeland Security Committee], a whole group of other very expert lawyers on this, and what we did is we focused on, instead of religion, danger—areas of the world that create danger for us. Which is a factual basis, not a religious basis. Perfectly legal, perfectly sensible. And that’s what the ban is based on. It’s not based on religion, it’s based on places where there are substantial evidence that people are sending terrorists into our country.
9. A federal court in Washington enjoined the order. The Ninth Circuit affirmed, and suggested that the order had Establishment Clause problems, but ruled that the order as drafted violates the Due Process Clause.
10. In response to this order, the government drafts a new order that eliminates all references to religion, including the preference for members of persecuted religion minorities. The order also creates a systems of exemptions and waivers to ensure that those with interests to the United States should be allowed to enter. At bottom, the only people who would be affected are aliens who have never had an interest in the United States, or refugees.
11. The rationale for the new order is that the six nations do not adequately cooperate with the United States on counterterrorism policies. Three of those nations are state sponsors of terrorism, and the other three have been impacted by war and terrorism.  None assist the United States with counter-terrorism measures. As a result, the government needs a pause to reassess screening procedures for aliens from those countries.
12. The new order is challenged in court.

With that C-SPAN style recitation of facts, could a “reasonable, objective observer” conclude, in the words of McCreary County that “the secular purpose [is] genuine, not a sham, and not merely secondary to a religious objective.” Of course. There is more than enough to show in this “sequence” that there is a legitimate interest behind this policy. As for his adviser’s statements, one could conclude that the President was trying to find a legal way to keep terrorists from entering the country, and he abandoned a religious test, focusing on certain dangerous areas.

Whether you agree with it, or think it is wise, is a separate question from whether a “reasonable, objective observer” would find the stated purpose is a sham. A “reasonable, objective observer,” watching C-SPAN, would not conclude this is a sham. Hawaii v. Trump applied MSNBC deference to the executive order.

In this segment, Rush echoes many of my points about the dangers of judges attempting to read the President’s mind, and anoint him with a forever taint of bigotry.

So a lot of people are wondering, people who don’t follow these things and to whom legal maneuverings are also of a foreign language, why does this keep happening? As he attempts to freeze immigration from refugees and immigrants from predominantly Islamic countries, why does this keep happening? When the federal courts, local courts, they’re federal district courts, in this case in Hawaii and Maryland, the judges said that the record of statements by the president and his advisers mean that, in their view, the real purpose of the executive order is to discriminate against Muslims, and that violates the Constitution’s ban on favoring or disfavoring an election. Establishment clause of the First Amendment.

The only problem with this is, it is completely illegal and totally against all judicial practice to decide on the merits of a law or executive order based on what you think the author’s motivations are. And this conclusion — you know, I read a piece here by a guy named Josh Blackman at a website called Lawfare, which I find myself consulting more and more.

He said, “This conclusion will infect every establishment clause challenge ever brought against the president concerning Islam. Perhaps the president’s decision to use military force against a predominantly Muslim nation could violate the establishment clause. In other words, nothing Trump can do would ever eliminate that taint.” So his problem here is that if America’s courts are now holding that congressional action in areas of enumerated, exclusive authority, meaning the statute that allows Trump unilaterally and by proclamation to issue this ban, if America’s courts are holding that that authority is subject to noncitizens being given the rights of our constitution, then judicial review will have been extended to absolutely everything up to and including the decision to declare war.

Imagine that if Trump decides to send, let’s say to Yemen, on a military action and some leftist goes back to this Hawaii judge or any other favorable liberal judge and says, “Trump can’t do this because he’s a bigot. Trump said during the campaign he didn’t want Muslims coming into the country. He’s prejudiced, he’s biased against Muslims and this constitutes murder,” and the judge would say, “We think that’s right,” and the president therefore can’t send troops.

While today most economic liberty cases are civil in nature, the grandaddy of them all, Lochner v. the People of New York, was a criminal case. As Justice Peckham recounted, after a trial, Lochner “was convicted of misdemeanor, second offense, as indicted, and sentenced to pay a fine of $50 and to stand committed until paid, not to exceed fifty days in the Oneida County jail.” Yes, the punishment for violating the hour law was a $50 fine, and if he refused up to 50 days in jail!

In 2017, the idea of throwing bakers in jail for running an effective business may seem like the subplot of an Ayn Rand novel. Alas, in Venezuela, truth is stranger than fiction.

Facing a bread shortage that is spawning massive lines and souring the national mood, the Venezuelan government is responding this week by detaining bakers and seizing establishments. In a press release, the National Superintendent for the Defense of Socioeconomic Rights said it had charged four people and temporarily seized two bakeries as the socialist administration accused bakers of being part of a broad “economic war” aimed at destabilizing the country.

In a statement, the government said the bakers had been selling underweight bread and were using price-regulated flour to illegally make specialty items, like sweet rolls and croissants. The government said bakeries are only allowed to produce French bread and white loaves, or pan canilla, with government-imported flour. However, in a tweet on Thursday, price control czar William Contreras said only 90 percent of baked goods had to be price-controlled products. Two bakeries were also seized for 90 days for breaking a number of rules, including selling overpriced bread.

Throwing people in jail for selling “underweight bread!” How dystopian! While most lawyers know about Lochner, few know about a related bakery case, Jay Burns Baking Co v. Nebraska. In that case, the Cornhusker State criminalized selling underweight bread!

An act of the Legislature of Nebraska, approved March 31, 1921 (Laws 1921, c. 2, p. 56)¹ provides that every loaf of bread made for the purpose of sale, or offered for sale, or sold, shall be one-half pound, one pound, a pound and a half, or exact multiples of one pound, and prohibits loaves of other weights. It allows a tolerance in excess of the specified standard weights at the rate of two ounces per pound and no more, and requires that the specified weight shall be the average weight of not less than 25 loaves, and that such average shall not be more than the maximum nor less than the minimum prescribed. Violations of the act are punishable by a fine or imprisonment.

Plaintiffs challenged the law as “unnecessary, unreasonable and arbitrary.” The Court, finding that the permitted tolerance–only half an ounce or say–was unreasonable, and unconstitutional:

For the reasons stated, we conclude that the provision, that the average weights shall not exceed the maximums fixed, is not necessary for the protection of purchasers against imposition and fraud by short weights and is not calculated to effectuate that purpose, and that it subjects bakers and sellers of bread to restrictions which are essentially unreasonable and arbitrary, and is therefore repugnant to the Fourteenth Amendment.

Though similar to Lochner in facts, the case was not cited.

Justice Brandeis, joined by Justice Holmes, dissented. They would have upheld the criminal prohibition.

Venezuela could certainly use some Lochnerism!

When discussing the travel ban, it is vey important not to lose the forest for the trees. I have blogged at some length about the statutory nuances of the INA, the applicability of the Establishment Clause to immigration laws, and what sorts of due process rights non-resident aliens have. But there is something very, very significant going on. I addressed it in the concluding portions of my Politico piece:

A common trope among the chattering class is that our polity must resist “normalizing” Trump as president. Courts should not take the bait. When judges treat this president as anything other than normal, it sends a signal to the public that the chief executive is not as legitimate as his predecessors. For example, when Justice Ruth Bader Ginsburg suddenly skips Trump’s joint address—whom she inappropriately criticized—after years of giving President Barack Obama warm hugs, it sends a signal. Such behavior is par for the course on cable news, but should not infest the judiciary. Trump was elected through the same constitutional process by which judges received their lifetime commissions. He should be treated as such.

Courts need not be blind to Trump’s awful past statements (call it Fox News deference). Judges can and should ask if there is a plausible reason why those seeking admission from these six war-torn countries should undergo heightened review. However, courts should not uncharitably read every piece of evidence in the most negative possible light (call it MSNBC deference). It is insane to think that the president’s signature policy so far—on which he campaigned and was elected to the highest office in the land—ostensibly boils down to how Giuliani framed an impromptu answer on cable news. I don’t think it does. Consider a counterfactual where Giuliani skipped Fox that day. Would the policy now be ruled constitutional? I suspect the courts would still have struck down the orders, meaning Giuliani’s statement is “mere surplusage”—an irrelevant distraction that carries no legal weight. What matters to these judges is Trump, and Trump alone.

Rather—and despite his own egregious and inexcusable attacks against the courts—judges should treat the 45th president like any other (call it C-SPAN deference). It is true that Trump consistently disrupts all political norms. The courts should not respond in kind by disrupting judicial norms. Trump’s presidency will come to an end sooner or later. But the precedents set during this period will linger far, far longer.

BLACKMAN: Trump has been egregious towards the courts. He has been very critical of them. And he’s made comments about their race, ethnicity that are beyond the pale. But I’m troubled of the courts replying in kind. Even if Trump is disrupting all political norms, I am not comfortable that the courts are disrupting judicial norms.

But maybe I am wrong to assume precedent applies to Trump. In a must-read post, Ben Wittes and Quinta Jurecic assert that because courts think Trump is unable to follow his oath of office, the usual rules do not apply to him. We are witnessing, they note, a “revolt of the judges.”

To put the matter bluntly: why are so many judges being so aggressive here? The legal disputes are both interesting and important. But this meta-legal question strikes us, at least, as far more important and far-reaching. And we think the answer lies in judicial suspicion of Trump’s oath. The question goes to the manner in which we can expect the judiciary to interact with President Trump on this and other issues throughout his presidency. It goes, not to put too fine a point on it, to the question of whether the judiciary means to actually treat Trump as a real president or, conversely, as some kind of accident—a person who somehow ended up in the office but is not quite the President of the United States in the sense that we would previously have recognized.

The authors acknowledge that my arguments about the Establishment Clause may be correct under current law, but none of that may matter here:

But also there is a third possibility, and we should be candid about it: Perhaps everything Blackman and Margulies and Bybee are saying is right as a matter of law in the regular order, but there’s an unexpressed legal principle functionally at work here: That President Trump is a crazy person whose oath of office large numbers of judges simply don’t trust and to whom, therefore, a whole lot of normal rules of judicial conduct do not apply.

In this scenario, the underlying law is not actually moving much, or moving or at all, but the normal rules of deference and presumption of regularity in presidential conduct—the rules that underlie norms like not looking behind a facially valid purpose for a visa issuance decision—simply don’t apply to Trump. As we’ve argued, these norms are a function of the president’s oath of office and the working assumption that the President is bound by the Take Care Clause. If the judiciary doesn’t trust the sincerity of the president’s oath and doesn’t have any presumption that the president will take care that the laws are faithfully executed, why on earth would it assume that a facially valid purpose of the executive is its actual purpose?

Descriptively, I think the authors are right on point. Whether these judges realize it or not–motivated reasoning is a powerful force–they are not treating Trump like a normal President.

The authors explain that my approach, like that of Judge Bybee, is that of a “traditional judicial posture.” (I will gladly assume that mantle). Will the higher-ups agree with us, or will the revolting judges prevail?

The other question is whether the higher courts—including, ultimately, a majority of the Supreme Court—will share Brinkema’s sensibility or Blackman’s on the matter. There is no doubt that Blackman’s and Bybee’s approach represents the traditional judicial posture. It is a posture in which the judiciary has certain institutional obligations to the executive branch; in which those obligations exist independent of the person who embodies the executive branch at any given moment in time; in which the deference and respect owed the president exist largely in abstraction from the President’s fidelity to his oath or to the Take Care clause; in which that fidelity is non-judiciable in any event; and in which presidential misconduct does not warrant judicial action outside of the agreed-upon judicial function.

Tragically, I suspect my view will not prevail.

For those who are concerned about judicial independence, history suggests that judges have an opportunity to do something about it, besides complain. It is not too much for us to look in the mirror and ask whether some criticisms are fair. As Justice Harlan explained in his famous dissent in Plessy, “[T]he courts best discharge their duty by executing the will of the law-making power, constitutionally ex- pressed, leaving the results of legislation to be dealt with by the people through their representatives.” Perhaps, even today, we sometimes fail in that limited and critical duty. Alexander Hamilton explained in The Federalist No. 78 that judges exercise “neither FORCE nor WILL but merely judgment.” Hamilton’s point was that we must depend on the persuasiveness of our written opinions to command the respect of our fellow citizens. In that way, we have the foremost responsibility of safeguarding our independence.

And for good measure, fast-forward to 6:35 with my interview on Lou Dobbs tonight. I make a very similar point.

Judges don’t exist in vacuums. They, as Alexander Hamilton said, have neither the power of the sword or the power of the purse. The validity their judgments depend on their legitimacy. And, when courts betray the legitimacy with these sorts of decisions, they become less reliable as an institution. So there is a distinct cost when judges go out on a limb like this, and treat Trump differently then they would treat any other President, because who Donald Trumps is.

This demise of judicial neutrality is truly regrettable. Our Constitution already has a safety valve in the case of a crazy President: the 25th Amendment. Courts should not twist and turn established law as a form of self-help. As I wrote in Politico, “The judiciary should not abandon its traditional role simply because the president has abandoned his.”

The district court in Maryland should be commended for actually engaging with the Immigration and Nationality Act. Alas, its analysis in International Refugee Assistance Project v. Trump is incomplete.

To begin, the court cites a D.C. Circuit Decision from 1995 to establish that the parties have standing.

The United States Court of Appeals for the District of Columbia Circuit has found that U.S. citizens and residents have standing to challenge the denial of visas to individuals in whose entry to the United States they have an interest. See Abourezk, 785 F.2d at 1050 (finding that U.S. citizens and residents had standing to challenge the denial of visas to foreigners whom they had invited to “attend meetings or address audiences” in the United States); Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State, Bureau of Consular Affairs, 45 F.3d 469, 471 (D.C. Cir. 1995), vacated on other grounds, 519 U.S. 1 (1996). In Legal Assistance, the court specifically held that U.S. resident sponsors had standing to assert that the State Department’s failure to process visa applications of Vietnamese citizens in Hong Kong violated the provision at issue here, 8 U.S.C. S1152. Id. at 471. The court articulated the cognizable injury to the plaintiffs as the prolonged “separation of immediate family members” resulting from the State Department’s inaction. Id.

The court notes that it was “vacated on other grounds,” but those other grounds are really, really relevant to the Trump executive order. For reasons I discuss here, Congress responded to the 1995 decision by amending the Immigration and Nationality Act.  Specifically, it added subparagraph (B) to Section 1152(a)(1), an anti-discrimination provision that has been on the books since 1965.

(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.

(B) Nothing in this paragraph shall be construed to limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications or the locations where such applications will be processed.

Peter Marguiles offers more background:

The Maryland court interpreted the INA provision in a parched and parsimonious fashion wholly contrary to its text and purpose. The provision at issue gives the Secretary of State latitude in determining “procedures for the processing of immigrant visa applications” and the suitable venues for visa processing. Congress passed this provision in 1996 (see Josh Blackman’s post here) to override a 1995 D.C. Circuit decision that struck down a State Department policy barring the filing of Vietnamese asylum applications in Hong Kong.

The State Department had made the change after it concluded that the Hong Kong venue was encouraging unmanageable migration patterns and frivolous asylum claims. The 1995 D.C. Circuit decision held that the venue change had violated 8 U.S.C. 1152(a)(1)(A), which bars discrimination in the issuance of immigrant visas. The State Department measure clearly singled out Vietnamese asylum applicants for more rigorous procedures, which almost certainly resulted in a greater risk of repatriation to Vietnam but also encouraged manageable migration and promoted orderly asylum adjudication. In response to the D.C. Circuit’s ruling, Congress in 1996 enacted subsection (B), which gave the State Department flexibility in visa processing to counter courts’ unduly broad readings of subsection (A). The Supreme Court then remanded the case to the D.C. Circuit, which upheld the venue change as a processing decision that Congress had delegated to the executive branch.  See Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State, 104 F.3d 1349 (D.C. Cir. 1997).

The Maryland court’s statutory interpretation analysis focuses almost exclusively on subparagraph (a) and how it interacts with Section 1182(f). Specifically, it recognizes that 1182(f) concerns entry while 1152(a) concerns visa issuance.

Accordingly, an executive order barring entry to the United States based on nationality pursuant to the President’s authority under S 1I82(f) does not appear to run afoul of the provision in S 1I52(a) barring discrimination in the issuance of immigrant visas. . . .  Under the plain language of the statute, the barring of immigrant visas on that basis would run contrary to S1I52(a). Just as S 1I52(a) does not intrude upon the President’s S 1I82(f) authority to bar entry to the United States, the converse is also true: the S 1182(f) authority to bar entry does not extend to the issuance of immigrant visas.

This conclusion, which echoes my position from the outset, conflicts with other scholars who have maintained that entry and visas are a bundled whole.

The second executive order, unlike the first, expressly countenances the denial of visas.

Although the Second Executive Order does not explicitly bar citizens of the Designated Countries from receiving a visa, the Government acknowledged at oral argument that as a result of the Second Executive Order, any individual not deemed to fall within one of the exempt categories, or to be eligible for a waiver, will be denied a visa. Thus, although the Second Executive Order speaks only of barring entry, it would have the specific effect of halting the issuance of visas to nationals of the Designated Countries.

As a result, 1152 is implicated. The court relies on the canon that the specific controls the general, and thus any conflict between 1152(a) and 1182(f), the former controls.

I have no problem with that principle of statutory interpretation. Where I part company with the court, is on whether 1152(a) is actually being violated, which turns on the construction of subparagraph (B). The court writes:

The Government further argues that the President may nevertheless engage in discrimination on the basis of nationality in the issuance of immigrant visas based on 8 U.S.C. s 1152(a)(1)(B), which states that “[n]othing in [s 1152(a)] shall be construed to limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications or the locations where such applications will be processed.” As that statutory provision expressly applies to the Secretary of State, it does not provide a basis to uphold an otherwise discriminatory action by the President in an Executive Order. Even if the Court were to construe Plaintiffs’ claim to be that the State Department’s anticipated denial of immigrant visas based on nationality for a period of 90 days would run contrary to S 1152(a), the text of S 1152(a)(l)(B) does not comfortably establish that such a delay falls within this exception. Although S1152(a)(l)(B) specifically allows the Secretary to vary “locations” and “procedures” without running afoul of the non-discrimination provision, it does not include within the exception any authority to make temporal adjustments. Because time, place, and manner are different concepts, and S1152(a)(l)(B) addresses only place and manner, the Court cannot readily conclude that S1152(a)(l)(B) permits the imminent 90-day ban on immigrant visas based on nationality despite its apparent violation of the non-discrimination provision of S 1152(a)(1)(A).

Here, the court advances two new arguments that I’ve not seen elsewhere–even from scholars who disagree with me on the statutory framework.

First, the court finds that because the provision is addressed to the “Secretary of State,” and not the President, it “does not provide a basis to uphold an otherwise discriminatory action by the President in an Executive Order.” This argument is perplexing. The President’s order told the Secretary of State to implement a new policy. The Secretary of State will implement that policy. This argument fails to account for the fact that the Secretary of State at all times serves as the President’s pleasure. Anything the Secretary does is under the direction, if not the order, of the President. I don’t think the court actually buys this argument, because in the next sentence it introduces the real argument distinction: subparagraph (b) does not authorize a 90 day pause.

This argument is certainly new. As euphonic as time-place-manner is to my constitutional ear, I’m afraid it doesn’t hold water. Why on earth must Congress in an immigration separate time, place, and manner into separate elements? Even in constitutional law, the place and manner prongs often collide. There is absolutely nothing in the text or history of the statute suggesting that “procedures” should be so narrowly confined. This is a broad, broad, power, that embraces the power of the government to decide to readjust the process, and put a temporary pause on adjudications. The capaciousness with which the court considers statements made by the President to ascertain purpose stands in stark contrast with the court’s miserly approach to statutory interpretation in an area where the President has wide-ranging authority.

Peter Margulies adds:

Instead of viewing 8 U.S.C. 1152(a)(1)(B) as a limit on judicial intrusion into visa processing, the Maryland court read the statute in a strained fashion that failed to heed its text or purpose. The court viewed subsection (B) as not permitting “temporal adjustments” to visa processing, such as the pauses required under the revised EO. According to the court, subsection (B) allowed executive modification of visa processing “place and manner,” but not “time.” This limit is painfully artificial. Courts routinely view incidental restrictions on time, place, and manner as appropriate in other contexts, including free speech. The authority to speed up or slow down visa processing is an integral part of decisions on visas. Country conditions, such as the intensity of an armed conflict within a state’s territory, can and frequently do slow down visa processing, as the government noted to the Supreme Court in the Vietnamese Asylum case. To be sure, a permanent and pronounced slowdown in visa processing could be tantamount to a visa denial, thus triggering concerns about discrimination barred by subsection (B)’s statutory companion, subsection (A). However, a relatively brief pause in visa grants does not rise to that level.

For further support of my reading, listen to stalwart Deputy SG Edwin S. Kneedler explain the issue to Justice O’Connor back in 1996, with repeated references to “procedures” that countenance wide-ranging classifications based on nationality (13:50).

Alas, DOJ did itself no favors, and devoted only one sentence to subparagraph (b) in its brief:

Even where Section 1152(a)(1)(A) applies, moreover, Congress made clear that it does not “limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications,” id. § 1152(a)(1)(B), which at most is all the Order’s temporary pause does.

For reasons I don’t fully understand, the United States did not push the subparagraph (b) argument further. During Chad Readler’s colloquy with Judge Robart, starting around 30:00, he does not mention subparagraph (b).

On appeal, the government should focus much more on subparagraph (b). If the government wins on subparagraph (b), the government wins the statutory case, regardless of what the canons of construction dictate. Solicitor General Days’s brief (p. 17) in Vietnamese Asylum Seekers is directly on point.

In any event, Section 1152 only applies to immigrant visas. Refugees and other aliens do not enter on immigrant visas, so this issue is not conclusive.