The Unintended Irony of the Trump Immigration EO

By Paul Rosenzweig
Monday, January 30, 2017, 11:40 AM

The President's new Executive Order on immigration has caused significant confusion at the nation's borders -- and that is an understatement. One of the most controversial and most confusing aspects of the order has been the question of whether or not the restrictions apply to green card holders -- that is individuals who are lawful permanent residents of the United States, but who remain citizens of one of the seven countries identified in the order as subject to new restrictions. Reports suggest that, initially, DHS was of the view that green card holders were NOT included in the order -- that is, that they could enter the country as they normally might without any change in their status. Public reports suggest that this initial decision was overruled in the White House, which directed that green card holders be included in the new limitations. That seemed to me self-evidently wrong (and was the ground for opposition even from Republican lawmakers like Barbara Comstock). Today, we now find that the position has again been reversed and that green card holders will now be allowed admittance to the US.

Since, however, the Executive Order has not been withdrawn, and since the original determination to exclude green card holders was made by the White House, the Secretary of DHS, General Kelly, had only limited maneuvering room within which to achieve this (correct!) result. Here is the full text of his public statement on the matter, issued late yesterday:

In applying the provisions of the president's executive order, I hereby deem the entry of lawful permanent residents to be in the national interest.

Accordingly, absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.

And therein lies the irony. Since the Secretary could not make a categorical determination to admit green card holders (because doing so would contravene the White House's directive) he had to instead say that being a lawful permanent resident would (absent derogatory information) be a "dispositive" factor in a case-by-case analysis. In other words, he preserved the fiction that every case would be handled individually, but announced a blanket rule that would apply to almost everyone in the class of affected individuals.

Sound familiar? It should. This was, of course, exactly how President Obama moved to executively enact his deferred action for the illegal aliens under the DAPA and DACA programs. He had the Secretary of DHS announce a presumptive rule about how to apply discretionary case-by-case judgments. To be sure there are distinctions to be drawn between the two instances -- DAPA and DACA were, for one thing, much larger in scale. But make no mistake -- the precise mechanism now being deployed by Secretary Kelly is the one that Republicans condemned Secretary Johnson for using.

If it weren't in service of the manifestly right result the irony would be delicious. As it is, it is simply laughable.