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by ANDREW C. MCCARTHY <\/span><\/p>\n This is a very long post responding to Patterico\u2019s lengthy disagreement<\/a> (at Red State<\/em>) with my column<\/a> affirming the lawfulness of President Trump\u2019s temporary ban on entry into the United States by various classes of aliens \u2014 a column in which I rebutted David Bier\u2019s attack<\/a> on the ban\u2019s lawfulness in a New York Times<\/em> op-ed. Readers interested in the topic should understand that this post assumes familiarity with the competing positions of Mr. Bier and yours truly. Readers with little or no interest in the legal esoterica underlying the president\u2019s executive order (EO) should go read the G-File, the Morning Jolt, Ed Whelan\u2019s Bench Memos take on Judge Gorsuch, or something else immensely more enjoyable than what follows.<\/p>\n I am a Patterico fan. Still, for all its detail, his critique is underwhelming. We have a deep disagreement about executive power, which is par for the course. Some of his other charges, though, are odd.<\/p>\n He accuses me, for example, of \u201cdismissing textualism\u201d in the interpretation of statutes \u2013 specifically, the two relevant provisions of immigration law: Section 1152(a)<\/a>, which, as Patterico and Bier correctly assert, prohibits certain forms of discrimination in immigration matters; and Section 1182(f)<\/a>, the basis of Trump\u2019s executive order, which permits temporary bans on classes of immigrants. This is dismaying because I have a long record (including as a long-time prosecutor and appellate advocate) of arguing that laws have to be interpreted as they are written, not according to parol evidence and extra-sensory perception of what legislatures were supposedly trying to accomplish.<\/p>\n With no shortage of snark, Patterico says I\u2019ve essentially erased the text of 1152(a)\u2019s prohibition against discrimination based on country of origin and invited readers to substitute my allegedly text-free speculation about the \u201cthe hearts of the legislators<\/strong>\u201d; that way, we get to imagine that the statute applies only to \u201cnasty and mean discrimination<\/strong> by racist types\u201d; riding this flight of fancy then frees us to distinguish 1152(a) from 1182(f), which I\u2019m said to portray \u2014 with similar disregard for text \u2013 as \u201cgood<\/em> discrimination based on a desire to protect the country\u201d (bold and italics in original).<\/p>\n This is a specious contention. It\u2019s not atextual statutory interpretation to rely on what Congress has actually said. In Section 1152(a), which is entitled \u201cnon-discrimination,\u201d lawmakers expressly announced their intention to bar discrimination based on \u201cthe person\u2019s race, sex, nationality, place of birth, or place of residence\u201d \u2014 or, if scorn is your thing, the kind of nasty and mean discrimination engaged in by racist types.<\/p>\n By contrast, in Section 1182(f) (entitled \u201cSuspension of Entry or Imposition of Restrictions by President\u201d), Congress affirms the president\u2019s power to ban temporarily any class of immigrants whose entry \u201cwould be detrimental to the interests of the United States.\u201d The plain language of the statute shows that \u201cdetrimental\u201d refers to threats to the nation\u2019s security, not the nation\u2019s racial or ethnic composition.<\/p>\n Is this just my imagination? No. Congress explicitly indicates that it is addressing temporary measures<\/em>: Under 1182(f), the president may \u201csuspend\u201d entry \u201cfor such a period as he shall deem necessary,\u201d and impose other conditions that are warranted by the situation that has prompted the ban (\u201che may\u00a0.\u00a0.\u00a0.\u00a0impose on the entry of aliens any restrictions he may deem appropriate\u201d). In addition, 1182(f) is one subsection of a statutory scheme, the provisions of which prescribe other bases for excluding aliens that are patently related to national security \u2014 e.g., serious diseases, convictions of serious crimes, espionage, sedition involving violent overthrow of the government, terrorism, adverse foreign policy consequences, membership in Communist or other totalitarian parties or organizations, and the like.<\/p>\n I am not reading Congress\u2019s mind. I am reading Congress\u2019s words \u2014 words Patterico ironically ignores while accusing me of \u201cdismissing text.\u201d<\/p>\n Note that the argument against which Patterico\u2019s makes his textual objection was not my main one. Its significance was to call into question whether there is actual conflict between 1152(a) and Trump\u2019s EO based on Section 1182. Like Bier, Patterico assumes the conflict is manifest. Thus, he ignores a fundamental rule of construction: When two laws are claimed to be inconsistent, and when Congress has not expressed a clear intention to repeal the former by the latter, courts will indulge any plausible interpretation that reads them in harmony rather than conflict.<\/p>\n By my interpretation, they can easily be read in harmony: Congress has prohibited discrimination by classification based solely on racial or nationality grounds, but it has maintained discrimination by classification \u2013 including nationality grounds \u2013 if the president judges that it is temporarily necessary for the country\u2019s protection. I would agree with Patterico that this construction would be problematic if I were pulling congressional intent out of my hat; but, again, I am relying on what Congress itself has said \u2014 and not in vaporous legislative history but in the text of the statutes in question.<\/p>\n The rule of construction I\u2019ve just discussed relates to another rule that is similarly basic: Congress is presumed not to repeal statutes by implication; there must be a clear expression of legislative intent. Though Patterico says he prefers textualism to psychoanalysis, he offers no textual evidence that, in enacting 1152(a), Congress intended to repeal the allegedly inconsistent 1182(f) \u2014 no doubt because there is no such evidence to be had. Instead, he accepts Bier\u2019s claim that Congress simply must have intended, in silence, to remove a critical national-security authority it had granted the president. That seems farfetched, especially when it is so easy to give force to the non-discriminatory objectives of 1152(a) without divesting the president of authority to take temporary action in a crisis.<\/p>\n Patterico exaggerates my views on the scope of executive powers \u2014 and in some instances, whether they are my <\/em>views as opposed to my reliance on judicial decisions<\/em>. Furthermore, he exaggerates the \u201cplenary\u201d constitutional power of Congress to exclude aliens.<\/p>\n For what it\u2019s worth, I believe, as the Framers held, that the president\u2019s constitutional authority is at its height in matters involving foreign threats to the United States; but domestically, the president must generally defer to Congress. Contrary to Patterico\u2019s suggestion, my views on the extent of the president\u2019s power are not make-it-up-as-you-go-along, exploiting the convenience that Article II does not define executive power with the exactitude of Article I\u2019s prescription of legislative power. They are rooted in precedent.<\/p>\n That is especially so with respect to the Foreign Intelligence Surveillance Act (FISA, which I had to litigate extensively as a prosecutor, and in the debates over which I have been enmeshed ever since). I believe the president has inherent authority to collect foreign intelligence outside the limits Congress sought to impose in FISA because the courts have said so<\/em>. Before FISA was enacted in 1978, they said foreign intelligence gathering was an inherent constitutional power (which means it cannot be repealed by a mere statute \u2013 repeal would require a constitutional amendment). When FISA was enacted and later amended, the Carter and Clinton administrations, respectively, maintained in congressional testimony \u2013 even as they worked with Congress to draft the legislation \u2014 that FISA did not and could not vitiate the president\u2019s inherent authority (i.e., they were reserving the power, at least in the event of an emergency, to conduct warrantless surveillance and searches of foreign agents). And even after 9\/11 (while President Bush\u2019s controversial warrantless surveillance program was ongoing), the Foreign Intelligence Surveillance Court of Review (the highest specialized court created by Congress in FISA precisely to interpret surveillance law) assumed that foreign intelligence collection is an inherent executive power that neither FISA nor any other statute could take it away. (As the Court of Review put it<\/a>: \u201cThe Truong <\/em>court [i.e., the Fourth Circuit\u2019s in the 1980 case of United States v. Truong Dinh Hung<\/em>], as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. [Footnote omitted] It was incumbent upon the [lower FISA] court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President\u2019s constitutional power.\u201d)<\/p>\n Similarly, with respect to the president\u2019s near plenary authority over foreign relations, and specific authority to repel foreign threats to national security, I rely on judicial precedent and observations of the Founders contemporaneous with the adoption of the Constitution \u2014 such as the remarks by Jefferson (the nation\u2019s first Secretary of State) cited in my column: The president is supreme in foreign affairs other than the Constitution\u2019s express exceptions (e.g., the Senate\u2019s treaty approval power). In the Civil War-era Prize Cases<\/em>, for example, the Supreme Court held that the president has not only the power but the duty to put down imminent threats to national security, regardless of whether Congress has authorized the use of force. As I\u2019ve repeatedly argued, this power is not limitless \u2014 it requires an actual threat. I opposed President Obama\u2019s intervention in Libya, for example, because there was no threat to American national security, so I believed the president needed to defer to Congress\u2019s authority to declare war; but I supported Obama\u2019s drone strikes against terrorists in nations against which the U.S. is not at war and under circumstances that were only arguably covered by Congress\u2019s Authorization for the Use of Military Force.<\/p>\n Patterico, by contrast, comes close to contending that presidential power has no independent Article II basis and\u00a0is subject to whatever limitations Congress chooses to legislate. With due respect, this flies in the face of our jurisprudence, and of statutory law in which Congress, by granting sweeping presidential authority, implicitly (and sometimes explicitly) recognizes the executive\u2019s wide constitutional berth in the areas of foreign affairs and foreign threats to national security.<\/p>\n