Herring’s Intervention in Executive Order Lawsuit is Election Year Grandstanding

When you hear that the Attorney General of Virginia is going to make an announcement involving a “major legal action” in a year ending in an odd number, you can pretty much guarantee you’re about to see some worthless partisan grandstanding.

Attorney General Mark Herring didn’t disappoint my cynical nature yesterday, when he announced that Virginia would be intervening in a lawsuit filed on behalf of two Yemeni permanent resident aliens who were denied entry into the United States as a result of the President’s temporary travel ban impacting seven Middle Eastern nations with ties to international terror.

Normally, Virginia wouldn’t get involved in an immigration issue like this.  After all, as Democrats are usually quick to remind you, immigration is a federal responsibility, and the enforcement of immigration laws isn’t something Virginia can directly impact or influence.  That’s the standard response any time Republicans try to find creative ways to deal with illegal immigration, or want to use state resources to aid the federal government in enforcing our immigration laws.  “That’s not our job” is the reflex response. That reflex is apparently suspended in election years, especially when there’s a chance to generate some headlines by trying to intervene in a lawsuit on an issue that has largely become moot.

That’s what happened when Department of Homeland Security Secretary John Kelly determined that allowing the entry of permanent resident aliens – green card holders – was in the national interest.  Had the two Yemeni young men entered the country today, they would be allowed in.  There are other facts specific to that case that need to be weighed, including the claim that Customs and Border Protection agents bullied the two men into surrendering their green cards, but the main issue has been resolved.

That didn’t matter to Attorney General Herring or Governor McAuliffe.  They wanted their headlines, so they had to concoct a reason to intervene.  The one they came up with doesn’t pass the laugh test.

According to the brief supporting the Motion to Intervene Herring has filed, the reason the Commonwealth of Virginia must stick our nose into a federal responsibility is … our colleges.  Virginia Tech, for instance, has staff who are here on H1-B visas.  Some 100-150 Virginia Commonwealth University students would be “unable to reenter the United States to continue their education (or, alternatively, leave to visit their families)” and the brief mentions VCU has a Qatar campus, although the brief fails to note that Qatar isn’t on the list of seven states that the Executive Order applies to.  Herring goes on to argue that foreign professors may be barred from traveling, and could lose grant money, and students who couldn’t travel may decide to end their studies, costing Virginia tuition money.

The entire premise is, frankly, absurd.  The travel ban is a temporary ban – 90 days for entry, 120 days for refugee resettlement – of three months from the date it began, last weekend.  At worst, some Virginia students may miss their Spring Break – assuming they wanted to head back to one of these seven countries for Spring Break, which sounds insane, honestly – and a professor may have to cancel their spring trip abroad.  No one is permanently banned from entering the country, although Syrian refugee resettlement has been paused indefinitely.  To claim that the Executive Order has an impact on Virginia because of our colleges is to take credulity and stretch it so far that it’s thinner than the hair on Joe Biden’s scalp.

The rest of the claims made by Herring and McAuliffe are the same claims you’ll hear from every Democrat these days about this Executive Order.  It’s “unlawful,” it’s “discriminatory,” and it’s “unconstitutional.”  None of those things has been litigated, however, and the only portion of the EO that was suspended by court order over the weekend was where it impacted green card holders, an issue that, as I noted before, has been dealt with.  The rest of the order has yet to be argued, and given the President’s blanket authority under the Immigration and Naturalization Act (INA), 8 U.S.C. § 1182(f), to exclude any aliens, immigrant or non-immigrant, including permanent resident aliens, if he deems it to be “in the national interest,” it’s unlikely that a court is going to find the EO unlawful or unconstitutional.  Non-citizens who are not on US soil do not have Constitutional rights, and while the INA bars discrimination in immigration actions based on a variety of factors, the text of the EO isn’t discriminatory and is based on the President’s view that the pause is necessary to ensure proper screenings of individuals coming from high risk areas of the world.

The Democrats, including Herring and McAuliffe, are doing their best to try to paint this Executive Order as an attack on Islam, which is, oddly enough, exactly what ISIS and the rest of the radical islamic terrorist community want. Yet there can be no argument that the seven states listed in the ban include the most likely loci of international terror right now.  The two men involved in this very lawsuit are citizens of the same country where Chief Petty Officer Ryan Owens, of Virginia Beach-based Seal Team Six, was killed in a raid against Al Qaeda in the Arabian Peninsula last weekend, the first American killed in action during the Trump Administration.

Whether you support the Executive Order or you oppose it (and I strongly oppose the refugee pause, especially the indefinite Syrian refugee pause), there is no legitimate reason for Virginia to try to interject herself into a federal lawsuit about the federal government’s implementation of a federal responsibility.  Herring and McAuliffe have been more than happy to ignore the federal government’s failed immigration policies when it was convenient to them in the past, and now they’re changing their tune solely because of the political calculation that this order is unpopular with Democrats in Virginia, who are screaming at their elected officials to “resist” President Trump, regardless of whether there’s any legitimate reason to use Virginia taxpayer dollars to do so.

Bottom line – this lawsuit is nothing more than election year grandstanding from an overly political Attorney General who never hesitates to wade into areas that aren’t his concern, yet is quick about refusing to do his actual job if he doesn’t feel like it.

Did you expect something more?



  • H G

    Damn, Brian. Excellent article. Excellent work.

    Making it tough for a guy who had pretty much written you off.

  • Stephen Spiker

    There is absolutely no reason to believe this is a just temporary ban. Your flippant line about “missing Spring Break” is undeserved.

    Moreover, your pinning the ban as a win for ISIS on those *protesting* the ban than the actual ban itself is completely shameful.

    • The primary reason to believe that the ban is temporary is because…the ban is temporary. It sunsets in 90 days. The president has the authority to make the ban unlimited, but he didn’t do that. I am not going to assume anything until it happens.

      The point about ISIS claiming a victory here because of the ban is relevant – they are, which us one of the reasons why I think the ban is ill-advised, albeit legal. But pointing out that ISIS and Herring are making the same arguments out of convenience isn’t shameful, it’s true.

      There is nothing inherently anti-Muslim about this ban, because we all know that the vast majority of muslims do not live in these seven countries and aren’t terrorist threats. Those who want to turn this into a muslim ban are playing right into the hands of islamic terrorists who are desperate to pretend this is evidence that the United States wants to declare war on Islam. That’s not true and nobody should be making arguments that bolster their case.

      If you don’t like the ban, focus on the legitimate, fair reasons why it wasn’t a good idea – it’s unnecessary, it won’t do what it’s supposed to do, it delivers a PR coup for the terrorists, and it was poorly implemeneted.

      • Stephen Spiker

        You don’t want to assume anything until it happens, yet you ASSUME the only negative impact on students will be they miss a Spring Break. The ban hasn’t sunset yet, and the EO explicitly lays the groundwork for extending the ban and to other countries as well.

        Furthermore, all visas from those 7 countries have already been revoked: http://www.politico.com/blogs/under-the-radar/2017/01/trump-visas-state-department-234454 (this wasn’t reported on Friday; it came out recently. It’s not a “claim” or a “rumor”; its policy).

        There is nothing inherently “anti-Muslim” about the ban, except that the President who signed it said “I think Islam hates us”, the Senior Counselor who wrote it said we’re in a global existential war against Islam, and the President campaigned on a total ban of Muslims entering the country, which he never once retracted or rescinded (in fact, the press release is still on his website).

        • I am not assuming about the impact – unless the order is renewed, and we have no reason to believe it will be, that is the likely only impact.

          Yes, the visas have been revoked – that was in the order, too. What’s the issue with that? There’s a process for waivers for folks who are here, and it largely impacts those who aren’t.

          The ban itself is what I am concerned with, and it appears to have been implemented in a non-discriminatory way in regards to religion. This isn’t a muslim ban, or close to what the President advocated during the campaign and was criticized for, especially here.

          We can go round freaking out about everything that is said and looking for bogeymen, or we can focus on what is done and concern ourselves with that. That’s what I’m doing.

          • Stephen Spiker

            On what basis do you believe it the ban is “likely” not to be extended, expanded, renewed, or added to?

          • That they could have made it longer if they chose, and they didn’t.

            I haven’t seen anybody from within the administration expecting it would will be extended, expanded, renewed or added to. They’ve basically being trying to explain what it isn’t.

            At this point, there’s so much disinformation out there about what this does that I don’t want to add any more by assuming that it’s going to last longer than 90 days.

          • Turtles Run

            Brian – if the X.O. had been vetting through people who know how things work, it probably would have been a minor story. Stop new green cards from being issued into people in those countries – that may be unnecessary and upsetting. Bar green card holders from returning to their homes? That’s some messed up stuff.

            That’s the sort of thing that communicates to all of us that no legal or moral norms will limit this man’s actions.

            Matt Suarez

          • Like I said, criticisms that the implementation was screwed up are valid. It was.

          • Turtles Run

            No Brian, it is beyond screwed up. Peoples lives were affected for the worse. People that came here and did things the right way but still treated like they were threats to the nation.

            Spicer said their was no known immediate threat but still for the chance to score political points Trump whipped this action out and people are suffering because of it. I am sorry Brian but Trump deserves the fall out and I have no sympathy for him especially after his comments on CBN regarding the a religious preference he would like to institute.

            Matt Suarez

          • Like I said, the implementation was screwed up.

          • H G

            Don’t get yourself to worked up. It was a hoax.

          • MD Russ

            So the exception proves the rule? Or is all this banning of LPR’s returning to the United States just “fake news?”

          • H G

            Be specific. How many returning LPR’s have been banned from returning?

          • Turtles Run

            Well according to White House chief of staff Reince Priebus “of course” it affects green card holders from Iran, Iraq, Syria, Sudan?

            Like MD Russ said its just “fake news”.

          • H G

            And yet you cannot specify how it affects them. You cannot point to, or you refuse to point to, a single LPR banned from returning.
            Probably because LPR’s are allowed to return but may be subject to additional questioning.
            Sounds horrible, doesn’t it?

          • Turtles Run

            So you are denying that at one point the ban included green card holders. Even though Priebus said it included them.

            There was no reason to act on Trump’s part because as Spicer claimed there was not immediate threat. Trump could have worked with the state department and the other departments to come up with a better plan and a way to implement it. But no, instead he pulled it out of his arse to appease the trumpanzees.

            Matt Suarez

          • H G

            I’m refuting your claim… try and keep up.
            You failed, miserably, to back up your claim.

            You’d do yourself a YUGE favor if you’d turn and face reality.

          • MD Russ

            No one knows because CBP refuses to release that information.

          • H G

            Then their is no evidence they are not being allowed to return. Yeah, fake news.

          • MD Russ

            Lots of anecdotal evidence out there, but I’m not going to fall into your little trap.

          • H G

            No credible information. Got it.
            Kinda like that lightning bolt up your ass.

            Drama doesn’t really become you Russ. I took you for more of a real person fiction lover than a drama queen.

          • MD Russ

            Funny. I took you as not a real person but as a sniveling coward who is afraid to post his nativist views over his real name. Man up, for once, and take responsibility for your views instead of back-shooting people from the shadows. Otherwise, STFU.

          • H G

            Struck a nerve.
            Nothing to back up your empty rhetoric on LPR’s so you attack my manhood? You really thought that would accomplish what exactly?

          • Turtles Run

            I’m sorry but where in the heck did I mention this particular story?

            Is that the only person supposedly affected?

          • H G

            You tell me. You’re claiming “peoples lives were affected for the worse”. I could find one and it turned out to be a hoax. Care to back up your claim?

          • Stephen Spiker

            It was issued in the first week. This was the hill they chose to fight on. You can’t possibly think this is as far as they wish to go, given everything Trump campaigned on and everything Bannon believes, given the potential for expansion in the EO, and given the drafts that are circulating DC.

            You may wish to assume that this is the only steps they’ll take to limit immigration, but you do a great disservice to everybody by mocking legitimate concerns that it’s not.

          • I’m tired of listening to “concerns” from people based on “drafts” nobody has seen or can verify, with everybody working themselves into a mass of worry before there is anything to be worried about.

            Trump talked about a muslim ban “until we can figure out what’s going on.” This wasn’t a ban, and it’s temporary. I am happy to see that DHS is exploring ways to vet social media. I think 90 days is more than enough time to tighten up the vetting processes that are already tight and I don’t think there’s a rational need for this to be extended.

            If it is, we can cross that bridge when we come to it. I don’t have the patience to sit around worrying about what might happen anymore.

          • Stephen Spiker

            I’m not asking you to join those who are concerned about the rhetoric Trump and Bannon use, the text of the EO already issued, and the drafts of the EOs yet to come, all of which point to more action on this front.

            There’s just no reason to have any amount of certainty that this 90-day pause is all there’s going to be. I think we both can agree that a lot of things happen in Washington that you don’t see a rational need for.

          • Like I said, we will cross that bridge when we come to it.

          • Stephen Spiker
          • I’m surprised it was so many.

  • Penguin

    Herring has zero legal ethics. Something must be done other than at the ballot box. Liberals, like locusts, flee to Virginia and vote for the same people that caused the results which they fled.

  • Storm of Snowflakes

    I don’t even understand why this is a thing.

    Trump was elected President.

    Unlike Obama who used backlash from the Iraq War to rewrite the entire health care system, Trump actually campaigned from day 1 until he won the Presidency on doing exactly what he’s doing.

    People didn’t vote for the ACA law, but they sure as hell voted for what Trump is doing.

    Now all that having been said, I’m not a fan of Trump, but I don’t see how anybody can say he isn’t within his rights to do this. It doesn’t say anywhere that the President has the right to make health care laws, but it does actually give him the power to stop people from coming into the country.

    This is one of the few things that Presidents do that they’re actually empowered to do.

    • Stephen Spiker

      Congress passed the ACA. Democrats have been running on health care for ages, and they were elected to the majority of both houses in 2006 and elected a Democrat President in 2008.

  • Eric the half a troll

    Why do you think the EO is not discriminatory? The INA states 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).

    • Storm of Snowflakes

      Of course it is discriminatory.

      Discrimination means perceiving a difference categorically rather than individually.

      The Executive Order discriminates using the categories …

      1) Humans, instead of, say, fish, or horses
      2) who are immigrants or non-immigrants
      2) who are traveling to the United States
      3) in the next 90 days
      4) who are from countries listed in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12)
      5) who are not foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas

      Etc … (Read the text for yourself).

      I think what the OP is arguing is that it isn’t discriminatory based on religion, which, if you read the text, is true. The text doesn’t even mention any specific religions.

      • Storm of Snowflakes

        Or, to say it another way, saying the Executive Order targets Muslims is like those morons who say a male is “mansplaining” when he could just as easily be “Blondespaining” (if he has yellowish colored hair), “Jeansplaining” (if he wears blue jeans), “Nerdsplaining” (if he is a nerd), or even “Dunksplaining” (if he happens to be Shaq dunking on your ass while he’s explaining something). In fact, the same human being could be doing ALL OF THOSE THINGS AND MORE, and it’s the OBSERVER who attaches labels to it based on THEIR OWN AGENDA.

        In this case Trump has specifically said he isn’t targeting religions, multiple times, and you’d think if he was he’d just say so, so it seems absurd that observers are trying to tell the man what his own brain is thinking.

      • Eric the half a troll

        But INA prohibits discrimination based on place of birth or residence. This EO is therefore clearly illegal.

        • Storm of Snowflakes

          Read the text, he clearly cites the laws that give him the authority. If you’re going to try to argue that the President doesn’t have the authority to stop people from coming into the country from specific countries you’re arguing something that even Democrats aren’t trying to argue.

    • This isn’t about immigration visas – it’s about entry, regardless of visa status. The INA provides the President with blanket authority to exclude any category of alien, immigrant or non-immigrant, if he deems it in the national interest.

      It makes little sense to give the president this power, but make it impossible for him to implement it.

      • Eric the half a troll

        Brian, To quote the Cato article:”Mr. Trump may want to revive discrimination based on national origin by asserting a distinction between “the issuance of a visa” and the “entry” of the immigrant. But this is nonsense. Immigrants cannot legally be issued a visa if they are barred from entry. Thus, all orders under the 1952 law apply equally to entry and visa issuance, as his executive order acknowledges.”

        I believe the issue is that in 1952 there was no concern about discrimination on a nationality basis but in 1965, Congress felt the need to restrict the use of the INA to outlaw it. Understably, actually.

        • We’ll find out which interpretation is accurate when this case finally hits a court. Or Congress repeals the 65 law.

          • Eric the half a troll

            So then this case will serve a useful purpose after all. To determine if Congress actually meant what they wrote (kind of amazed that is even debatable) and if Trump blatantly broke the law in his first of office. Thank you Mr. Herring for filing this case.

          • Herring didn’t file the case.

  • H G

    This says it all….


  • Penguin

    Seriously what is wrong with DOJ and republican lawyers that argue cases? The EO lawsuit involves a political question. Should be been dismissed on day one. Do they even try? It’s like with Obamacare. Democrats argued it was a penalty, not a tax, so was it originated in ways and means committee? And since when does a tax give the power to regulate? If there were a law requiring you to buy a paint of can each year or pay a tax, does that give the federal government the right to regulate Home Depot and other hardware stores, telling them what kinds of paint they must offer, at what price, and certain people have to subsidize paint for others? Why do republicans argue cases in court like they want to lose?

    • Penguin

      My bad, I forget that Trump has nobody in the DOJ yet, it’s still obama people are career lawyers who are virtually all democrats, so they are naturally doing the absolute minimum they have to do to not be accused of being unethical. The problem is, trump doesn’t even realize this.

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