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Less than one week after President Donald Trump’s executive order banning immigration from seven Muslim-majority countries, our latest Iran Chat is with Ian Samuel, Lecturer on Law at Harvard Law School. Ian previously served in the United States Department of Justice in the Office of the Solicitor General and on the appellate staff of the Civil Division. Following his government service, Ian joined the appellate litigation practice at the law firm Jones Day.
Our conversation covers the legal issues surrounding President Trump's executive order as well as Ian’s offer to personally provide legal services to any government employee who refuses to help implement this ban. You can follow Ian on Twitter at @isamuel, and subscribe to his podcast about the Supreme Court at firstmondays.fm/subscribe.
Some highlights from our conversation:
On Why this Ban Is Illegal
"Since 1965, US immigration law has prohibited discrimination on the basis of national origin in the issuance of visas. It is quite explicit in the law - you cannot discriminate in the issuance of visas by national origin.
[Additionally], this ban is a lightly disguised attempt to discriminate on the basis of religion against Muslims. This is made unusually clear by the fact that both the President himself and his closest advisers have more or less said as much. US law understandably does not permit that kind of discrimination on the basis of religion. That is a constitutional requirement, quite apart from any statute, and sits above the President’s ability to do whatever he wants.
These are not slam dunks… but in my opinion at least they are both strong arguments."
On Why the Ban is Unjust
"The thing that resonates with me is a matter of simple moral justice. The people who are being affected by this are human beings who are our brothers and sisters, our neighbors, our friends; they’re us. And I am deeply ashamed of the stain that this is putting on our national character. The US government has not always been virtuous and has not always been wicked. There are moments of profound moral good and profound moral evil in our history. And I feel like I’m living through one of those moments that people are going to look back on with deep shame in 30 or 50 years."
On His Offer to Provide Legal Assistance to Government Employees Who Refuse to Implement the Ban
"No government program is self-executing. The White House can order something, but that order, to be effective, requires thousands upon thousands of people across the government - nearly all of whom are career civil servants who are not political appointees - to go along with it. And the order is also illegal, so that places it in a special status because civil servants generally don’t have any obligation to go along with illegal orders.
What I’m advocating is not just legal but is actually in support of the law. The purpose of this is not to encourage anybody to engage in law-breaking, but actually to tell people that what this order asks people to do is break the law."
On How Supreme Court Justice Antonin Scalia Might Have Ruled
"I wouldn’t presume to say how he would come out on the result, but I know what his method was; his method was textualism. This was not a person who was shy about reaching politically unpopular results if he thought it was what the text of the relevant law required. And as I read the immigration statutes they are phrased very plainly. When they say no discrimination on the basis of national origin is permitted, to me that is a pretty easy case. And although that may have politically unpalatable consequences depending on your politics, he was never really afraid of doing something like that. It’s always a risky business to speculate on someone who has now passed about how they would have come out on a particular case, but I know his methodology and his methodology to me indicates at least that this is actually not that hard of a case."