Constitutional Law

White House Adviser Revises History in Defense of Trump's Travel Ban

Stephen Miller falsely claims "legal permanent residents were not subject to the travel restrictions."

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ABC News

On ABC's This Week yesterday, George Stephanopoulos asked Stephen Miller, a senior adviser to Donald Trump, about the possibility that the president will issue a revised version of his travel ban aimed at addressing some of the legal concerns it has raised. In response, Miller revised history to brush over the chaos and confusion caused by the half-baked executive order as well as a lingering question about its scope that has played an important part in the legal case against it:

Stephanopoulos: A lot of your allies think the best move would be to replace the current executive order with a new one that exempts legal permanent residents and visa holders who have already been admitted to the country. Are you thinking along these lines?

Miller: Well, the existing order does exempt legal permanent residents, and legal permanent residents were not subject to the travel restrictions.

Stephanopoulos: Well, that was the guidance put out by the White House counsel….It wasn't formally—

Miller: Well, it was the guidance put out by the White House counsel because that was the meaning of the executive order. And that was the same fact that caused the Boston judge to issue the positive ruling that they issued.

Trump's executive order, which he issued on Friday, January 27, suspends the admission of refugees and imposes a 90-day ban on travelers from seven overwhelmingly Muslim countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Contrary to Miller's claim that "legal permanent residents were not subject to the travel restrictions," green-card holders initially were prevented from boarding flights to the United States, detained after arriving in U.S. airports, and in some cases sent back to the countries from which they had traveled.

"The Department of Homeland Security said that the order also barred green card holders from those countries from re-entering the United States," The New York Times reported that Saturday. "In a briefing for reporters, White House officials said that green card holders from the seven affected countries who are outside the United States would need a case-by-case waiver to return."

The fact that the government was preventing legal permanent residents from returning to their homes (and discouraging others from leaving the United States lest they be stuck abroad) was the biggest objection raised by Republican critics of the order. Given the formidable process required to obtain a green card, legal permanent residents, many of whom will shortly become citizens, can hardly be deemed unvetted, so the security rationale for excluding them was rather mysterious. Criticism of the ban on green-card holders quickly led to a reversal of the policy. "The order is not affecting green-card holders moving forward," Trump's chief of staff, Reince Priebus, declared on Meet the Press two days after the order was issued.

That same day, Secretary of Homeland Security John Kelly announced a blanket waiver for legal permanent residents returning to the United States. "I hereby deem the entry of lawful permanent residents to be in the national interest," he said. "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." In other words, green-card holders from the seven banned countries were covered by the terms of the order, but they would generally be admitted anyway, under a provision allowing "case-by-case" waivers "in the national interest."

On February 1—three days after Kelly's announcement and five days after Trump's order was published—White House Counsel Donald F. McGahn II issued the memo mentioned by Stephanopoulos in his interview with Miller. "I understand that there has been reasonable uncertainty about whether those provisions apply to lawful permanent residents of the United States," McGahn said. "Accordingly, to remove any confusion, I now clarify that Sections 3(c) and 3(e) do not apply to such individuals."

As Miller noted, Nathaniel Gorton, a federal judge in Boston who upheld Trump's order on February 3, agreed with McGahn's reading of the order. The travel ban deals with "entry into the United States," Gorton noted. "Upon returning to the United States, lawful permanent residents do not, however, typically 'enter' the country for purposes of the [Immigration and Nationality Act]. Therefore, the use of the term 'entry' in Section 3(c) indicates that the suspension was not intended to be applied to lawful permanent residents."

By contrast, the U.S. Court of Appeals for the 9th Circuit, which last week declined to overturn another judge's temporary restraining order against the travel ban, questioned the authority of McGahn's memo:

We cannot rely upon the Government's contention that the Executive Order no longer applies to lawful permanent residents. The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order signed by the President and now challenged by the States, and that proposition seems unlikely. Nor has the Government established that the White House counsel's interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order. The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments. Moreover, in light of the Government's shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings.

Since McGahn himself called uncertainty about the scope of the travel ban "reasonable," and since the Trump administration initially said that it did cover green-card holders, it seems fair to say the order's meaning remains unclear. It is questionable whether Miller is right that "the existing order does exempt legal permanent residents," and it is clear that he is wrong in saying "legal permanent residents were not subject to the travel restrictions."

This issue is legally important because of all the people covered (or potentially covered) by the executive order, legal permanent residents have the strongest legal claims against it. The Supreme Court has said lawful permanent residents have a right to due process, for instance, when the government tries to stop them from returning to the United States. The issue is politically important because the ban on green-card holders aroused strong objections from members of both major parties, and it is important as a matter of policy because it shows how little thought went into a measure that is supposedly aimed at protecting Americans from terrorists.

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  1. The ban was such an incoherent mess, he could be right. That may be what he was told, because nobody really knew what it did.

  2. The order was so obviously a violation of green card holders’ due process rights, that some of us here speculated that the Trump administration was hedging their bet by giving the courts something obvious to strike down. The idea being, when you know the courts are going to pare down an immigration order in some way, if you don’t give them anything obvious and unimportant to take away, they’re liable to take away something more important.

    Regardless, now what’s obvious is that the Trump administration would love to dial back that part of the order that pertains to people who have already achieved legal residency and already have green cards. What is also obvious, to me anyway, is that there are a lot of people on the left who care more about embarrassing Trump on this issue than they do about clearing up the status of green card holders.

    In other words, the left doesn’t want to give Trump the room to declare victory and retreat if it means they can’t embarrass him on this issue anymore. No new president wants to walk in the door admitting he was wrong, and if the left played their cards like they cared more about helping legal residents than they do about exploiting Trump’s mistake for political points, the Trump administration would probably have this issue worked out to the benefit of green card holders already.

    1. The order was so obviously a violation of green card holders’ due process rights, that some of us here speculated that the Trump administration was hedging their bet by giving the courts something obvious to strike down.

      Or, it could have been not at all obvious to a bunch of people who either haven’t read the Constitution or else don’t take it seriously, since Trump ran and won on a long bucket list of seemingly obvious violations of said document, and then didn’t have the common courtesy to break those campaign promises that violated the oath of office.

      1. From assassinating American citizens to violating the Fourth Amendment rights of 350 million Americans, the Bush and Obama administrations successfully defended just as bad or worse using the same arguments Trump is using against green card holders.

        It still isn’t clear to me that the Supreme Court will do the right thing on due process. I hope they do, but they might defer to the president and his powers as Commander-in-Chief. Whether they should or shouldn’t is one question; whether they will is another.

        1. 350 million AmericansIncluding deceased from what cutoff time?

          1. It was a reference to mass surveillance and mass data collection. It was a round number.

            Does it really matter if was actually only 274.3 million?

            It was a forest–even if we’re not sure about the number of trees.

    2. “Trump administration was hedging their bet by giving the courts something obvious to strike down.”

      Well, he is a master negotiator.

      1. This wouldn’t be a good example of that.

        So far, he appears to have lost this negotiation.

        Even if he wins in court, the political capital he’s spent on this was probably too much if he played it like that on purpose.

    3. No new president wants to walk in the door admitting he was wrong, and if the left played their cards like they cared more about helping legal residents than they do about exploiting Trump’s mistake for political points, the Trump administration would probably have this issue worked out to the benefit of green card holders already.

      You’re using a lot of words to try and somehow blame Trump’s opponent’s for Trump’s fuckup. Not buying it.

      1. I don’t deny Trump screwed up.

        What’s that Tolstoy wrote about attacking a retreating Napoleon when you want him to retreat?

        We want to pressure Trump on his order being unconstitutional in its violation of due process rights.

        Expecting him to go on TV and admit he was wrong is counterproductive.

        The more we exploit this to hurt Trump’s personal approval ratings, the less likely he is to change the policy.

        The more changing the policy is exploited as an admission of defeat, the less likely Trump is to change it.

        I care more about the Constitution than I do about hurting Trump’s personal approval ratings. I doubt many of Trump’s critics on the left can say that and mean it–judging by their behavior.

    4. Or, as at least one of us keeps saying, the green card ban was so obviously not going to fly – and the White House knew it – that they issued this EO late on a Friday afternoon knowing that the frontline troops wanting to get clarifications and guidance on implementing the thing would be unable to reach any higher-ups, the higher-ups all having left their offices for the weekend. The “chaos and confusion” surrounding the meaning of the EO was a feature, not a bug. The EO damn sure did apply to green card holders and Trump knew* damn well he didn’t have that authority, only the power. You might beat the rap but you can’t beat the ride, and Trump’s a vicious little troll.

      *Perhaps “should have known”, if you assume he doesn’t listen to any advice other than what comes out of his very good brain and whatever the voices in his head tell him is what he sincerely believes is the truth. Trump may sincerely believe that statutory law supersedes the Constitution and his authority outweighs the authority of the Supreme Court so he dismissed any nonsense that “due process” applies to anybody he thinks it shouldn’t apply to.

      1. I’m somewhat convinced by the idea that the chaos and cruelty were intended by Trump and Bannon, as a message to Muslims that they ain’t wanted here, a new sheriff’s in town with a new policy, your life will be harder if you try to come here, etc.

        1. Or as a splashy headline for his base voters to absorb.

    5. The order was so obviously a violation of green card holders’ due process rights, that some of us here speculated that the Trump administration was hedging their bet by giving the courts something obvious to strike down. The idea being, when you know the courts are going to pare down an immigration order in some way, if you don’t give them anything obvious and unimportant to take away, they’re liable to take away something more important.

      Ah, yes, the latest example of the old “the president is a 3-D chess master and his critics are just too stupid to see what he’s doing” argument. That argument got old and stale when the Progs used to explain away Obama’s various bungles. It’s not any more convincing now. As with Obama before, I think Occam’s Razor applies here too: they really are just that stupid.

      1. Watching Trump make a mistake like that isn’t suggesting that he’s a master of 3-D chess. What we’re seeing from the president seems to suggest that even he thinks it was a mistake.

        Pointing out the reasons why somebody may have done something doesn’t necessarily imply that it was a good reason or that it wasn’t a mistake.

  3. Steve Miller is taking some kind of youth tonic that is extremely effective, but unfortunately it make him look like a skinny dork in the process. Was it worth it?

    1. I believe Miller is only 31 years old, which, if true, indicates that his youth serum is in need of some serious additional testing.

      1. So he’s kinds like Ben Rhodes, sent out there to tell whatever whoppers the President wants to tell, knowing that no matter what you say the lie is at least going to get dutifully reported, and then the story is going to shift to “the controversy surrounding two competing statements” and nobody gives a crap any more about what it is they’re accusing each other of lying about.

        It’s like the Boy Who Cried Wolf – the moral of the story isn’t that if you keep lying nobody’s going to believe you even when you tell the truth, the moral of the story is all the townspeople’s sheep got eaten by wolves and they all starved to death in the freezing cold without any mutton or warm wool sweaters because they were too stupid to either beat the shit out of the liar when he lied to them or hire somebody else who’s not a liar to safeguard the sheep.

        I mean, how damn stupid were the townspeople that they gave this troll a second chance to be the one in charge of protecting the sheep? As stupid as people who don’t understand that the press’ job isn’t to be a watchdog safeguarding their liberty but to provide advertisers with an audience – that they’re not the consumers, they’re the product?

  4. Ignorant, liar, or both?

    1. Profoundly stupid imbecile whose foresight ends at the tip of his nose.

  5. “from seven overwhelmingly Muslim countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. ”

    He also met with a Prime Minister from an overwhelmingly Shinto/Buddhist country. Don’t forget to classify every country by its primary religion in all of your articles.

  6. The Trump Administration: Making Incompetence Great Again!

    1. OTOH, maybe Trump recalls a certain massive piece of rushed-through healthcare legislation that the Supreme Court twice rescued through interpretation — often interpreting it in a manner directly contrary to what it sponsors claimed the law said at the time they were enacting it — and was counting on similar kindness from the courts.

  7. Bringing you the news that Reason won’t:

    Study Reveals 72 Terrorists Came From Countries Covered by Trump Vetting Order

    Quotes (but read the whole article):
    The United States has admitted terrorists from all of the seven dangerous countries… at least 17 individuals entered as refugees from these terror-prone countries.

    Thirty-three of the 72 individuals from the seven terror-associated countries were convicted of very serious terror-related crimes, and were sentenced to at least three years imprisonment.

    1. Excellent work. Sadly, no amounts of facts will ever stop Nick Gillespie from repeating his favorite lie.

      1. Excellent work. Sadly, no amounts of facts will ever stop Dick Spellesbian from repeating his favorite lie.

    2. Only two of those people actually attacked anyone in the US with no one actually killed and one of those, at least, is not for sure. The rest were primarily other offenses (such as fraud) found in the course of the investigations or subjects of FBI sting operations who *thought* they had been talked into supporting actual terrorist organizations when it was really just a setup.

      Here’s the list of majority Muslim countries whose people have actually killed Americans in terror attacks: Egypt, Saudi Arabia, the UAE, Lebanon, Pakistan and Kyrgyzstan.

      None of these countries is on the list.

  8. “Steve Miller”

    obligatory “great band name”.

    1. They’ve been successful for a long time, but I’m not sure they rank as “great”.

  9. This past Sunday’s news shows provided my first opportunity to see and hear Stephen Miller. What an arrogant and odious little lickspittle!

  10. It’s not completely on topic, but my reaction to Miller when I saw/heard him on the Sunday shows was “my God, what a prick”. It’s like he’s straight out of Hollywood central casting for the evil Republican. His delivery was arrogant and robotic. Trump doesn’t have anybody more appealing for this sort of work?

    1. Trump is in sales. Thats how obnoxious some sales oriented guys are in the NJ-NY area. Their motto is to keep repeating the same thing and deflect when you are caught in a lie. Or just double down and repeat that lie till you wear out the customer.

  11. I’m actually surprised that these bumbling assclowns are making themselves look THIS bad.

  12. Kellyanne Conway must be in the penalty box over the Nordstrom’s thing.

    I saw that guy on FOX. He’s an angry little man.

  13. HOw tough would it have been for the idiots in Trump’s circle to make it clear that Permanent Residents and visa holders would not be subject to such a ban? Who was in charge of writing that EO?

    I personally supported the temporary hiatus on refugees, though it is inconceivable that Pakistan was not included on that. And I would have been fine with extra scrutiny on even the legal immigrants, but not at the customs control. You can check into their backgrounds even after they return and if they discover something, you can always take steps to send them back.

  14. Sullum, are you arguing that green cards holders from those countries cannot possibly be terrorists? We have US citizens from those countries who have been terrorists. I would suggest holding up anyone, citizen or not, who comes and goes from those countries.

    Even the increased vetting is more porous than the Mexican/US border wall. Those who want waivers for all sorts of categories should take responsibility when attacks occur here. It’s always better to err on the side of caution than caprice.

    1. He is arguing for Freedom. Anybody can be a “terrorist”. Since when do we ban whole groups of people for the actions of individuals in their group? If we practiced that consistently, we would all be in lock-up.
      Besides that, Islamophobia is an artificial creation of those who need support for their overseas Imperialism. Read these to get a picture of some of the real reasons that the Power Elite want to meddle with the Middle East:
      http://www.activistpost.com/20…..rency.html
      http://www.zerohedge.com/contr…..al-banking

      1. Here’s another:
        http://whowhatwhy.org/2012/09/…..fghan-war/

        1. I know all the academic types will scream when they hear the word ‘isolationist’, but I think we need more isolation. Let’s close the borders for a while as Trump suggests and let’s stop messing around in other people’s countries. Let’s focus on ourselves first. Ok some things can’t be prevented but we see what happened under the previous regime. The Middle East was a thousand times more stable and peaceful before Obama and Clinton. They intervened plenty and just made it much worse. Let’s pull back a little, not get engaged everywhere, and can someone please stop accepting opinion pieces from Jacob Sullum please…

  15. The real issue here is that the President was never given the Constitutional Power to create Laws, even if the Congress has usurped their law-making Power to the President. No Congress can give away their Constitutional Law-Making Power to a President without an appropriate Constitutional amendment.

  16. The fact that the government was preventing legal permanent residents from returning to their homes (and discouraging others from leaving the United States lest they be stuck abroad) was the biggest objection raised by Republican critics of the order. Given the formidable process required to obtain a green card, legal permanent residents, many of whom will shortly become citizens, ???? ?????? ?????? ????? ???? can hardly be deemed unvetted, so the security rationale for excluding them was rather mysterious. Criticism of the ban on green-card holders quickly led to a reversal of the policy. “The order is not affecting green-card holders moving forward,” Trump’s chief of staff, Reince Priebus, declared on Meet the Press two days after the order was issued.

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