Debunking Disregarding Visa Law

Someone posted:

"Judge Jinsook Ohta, a Biden appointee born in South Korea, ruled that the State Department must open registration immediately after it failed to do so on time. The program gives permanent residency to people from countries with historically low immigration rates to the United States, including many in Africa and the Middle East. The administration had suspended the lottery after a recipient was linked to deadly shootings. Ohta called the delay arbitrary and unlawful and ordered it restarted."

Someone asked:

How does one person in the judicial branch of government force the executive branch of government to do something?

I answered:

In Marbury v Madison, SCOTUS ruled that the judicial branch has the authority to compel the executive branch not to do something illegal.

Yet another person replied to me:

Her order is illegal. The Executive Branch has plenary power of the Visa system, per the law. The law does not subject Visa decisions to judicial or legislative review.

I replied:

Dear Attorney Corey,

With respect, your assertion that Judge Ohta's order is illegal does not follow from the premise that the Executive Branch has broad authority over visas.

The distinction is between discretion to make individual visa decisions and authority to disregard statutory obligations imposed by Congress.

Congress created the Diversity Visa program in 8 U.S.C. § 1153(c). The fact that the Secretary of State administers the program does not, by itself, give the Secretary unlimited discretion to suspend it or ignore the governing law. 8 U.S.C. § 1153.

You are correct that judicial review of individual visa decisions is sharply restricted under the doctrine of consular nonreviewability. But that doctrine is not a blanket prohibition on judicial review of every government action involving immigration. A challenge to an agency's failure to administer a statutory program is legally distinct from asking a court to overturn a consular officer's decision to grant or deny a particular visa.

The Supreme Court addressed this fundamental distinction in Marbury v. Madison (1803). Chief Justice Marshall explained that when Congress imposes a specific legal duty on an executive official, the official cannot simply disregard it at discretion. The case established the principle of judicial review, although the Court actually denied Marbury the particular remedy he sought. Marbury v. Madison, 5 U.S. 137, 166 (1803).

More recently, in Department of Homeland Security v. Regents of the University of California (2020), the Supreme Court reaffirmed that even when the Executive has authority to change immigration policy, its actions remain subject to applicable statutory constraints and the Administrative Procedure Act's requirements for reasoned decision-making. 591 U.S. 1 (2020).

Judge Ohta issued a preliminary injunction after finding the challengers were entitled to relief at this stage of the litigation. Whether that ruling will survive an appeal is a separate question. But an attorney's disagreement with a judge's interpretation of the law does not, by itself, make the resulting order illegal.

If you believe this particular order exceeds the court's jurisdiction or conflicts with a specific statutory provision barring judicial review of this particular agency action, I would welcome the citation to that provision and an explanation of how it applies to the failure to open the lottery.

Broad executive authority is not the same thing as authority beyond the law. That distinction is fundamental to our constitutional system.

---
Someone further replied

The Supreme Court is the final arbiter of these type decisions, but it takes a long time to get there. In the meantime the doors can be forced open. The Supreme Court has already said that district court judges can't make these sweeping decisions, and especially for the whole nation. How is it that we have a solitary unelected judge overriding the policy choices of the president of the United States? Trump ought to just say no and let the judge appeal it on up the line to see if her decision has any merit.


I replied

There are several different issues tangled together here. Let's separate them.

1. Yes, the Supreme Court has restricted nationwide injunctions. But that is not the same as abolishing the authority of district court judges.

In Trump v. CASA, Inc. (2025), the Supreme Court held that federal courts generally cannot issue universal injunctions extending relief beyond what is necessary to provide complete relief to the plaintiffs before them. 

That is a real limitation, and it should not be ignored. But the Court did NOT hold that district judges can never issue injunctions affecting government policy, or that they cannot order federal officials to comply with the law.

The Court expressly left room for relief that is necessary to provide complete relief to the parties. Class actions and other forms of relief also raise distinct questions.

So, if you want to argue that Judge Ohta's order exceeds the limits established in CASA, make that argument. Identify the provision of the order that allegedly goes too far and explain why. That is a legitimate legal argument. Simply announcing that district judges cannot make "sweeping decisions" is not a substitute for doing that analysis.

2. What did Judge Ohta actually order?

In Red Eagle Law, L.C. v. Rubio, Case No. 3:26-cv-04738, Judge Ohta issued a preliminary injunction on October 14, 2026, directing the Secretary of State to reopen registration for the 2027 Diversity Visa Program, accept eligible entries, and process selected applicants under the applicable law and procedures. 

The order is not a presidential-policy veto simply because the President dislikes the policy's consequences. It is a judicial order directing an executive official to take specified actions under a statutory program enacted by Congress.

Whether every part of the injunction falls within the court's remedial authority is a question that can be challenged on appeal. The existence of that legal question does not establish that the order is invalid.

3. "How can one unelected judge override the President?"

Because the Constitution does not give the President exclusive authority to decide what the law means.

Federal judges are appointed, not elected, under Article III. Their job includes deciding cases involving the legality of executive action. The President's job includes faithfully executing the laws. Congress's job includes enacting them.

That arrangement is called separation of powers. It is not an unfortunate loophole in presidential authority; it is a deliberate feature of the constitutional system.

The judge does not get to make immigration policy simply because she is a judge. But the President does not get to disregard a statute simply because he is President.

The fact that a judge is unelected is not a persuasive objection to judicial review. The Supreme Court justices who decided Trump v. CASA are unelected, too. Are their decisions somehow illegitimate for the same reason?

4. "Trump ought to just say no and let the judge appeal it."

This gets the process exactly backward.

The government can ask the judge to reconsider, seek a stay, and appeal to the appropriate court. If necessary, it can seek further review in the Supreme Court.

But the judge does not appeal their own order. The party challenging it does.

And unless the order is stayed, vacated, or otherwise no longer in effect, the government cannot simply treat it as optional because it believes the judge is wrong. Disobedience can lead to enforcement proceedings and potentially contempt sanctions.

The legal system has procedures for resolving disagreements between the branches. "The President refuses to comply until somebody makes him" is not a substitute for those procedures.

5. One final irony.

For years, conservatives have warned about the dangers of unchecked government power. The answer to an allegedly overreaching judge is to use the appellate process, not to give the executive branch permission to ignore judicial orders.

Otherwise, we are left with a peculiar constitutional theory: the President must obey the law when he agrees with it, but can disregard it whenever he believes a judge has made a mistake.

That is not the rule of law. It is the rule of whoever has the most impressive security detail.

And if the President can simply say "no" to a court order, why should anyone else obey a court order they disagree with?

The next time you get an unfavorable ruling from a judge, perhaps you can explain that the Supreme Court is the final arbiter, so you intend to ignore the ruling until the case gets there.

I'm sure that will go splendidly.

--

The reply came in:

"so by law the secretary of state can set the amount of visas awarded at 1, hold the lottery, select the winner and be done. According to your analysis, that would suffice due to the Secretary of State being given sole power to establish the amount of visas, the time of registration, and the qualifications of those registered. Am I getting that right? Seems like a simple decision.

The bigger question is why do the Democrats want foreigners in this country so bad? Do they hate native born Americans that much? Do they realize they can never change out patriotic hearts? Do they simply want to create a new voting bloc they can pander to? 🤔"


I Responded:

Really? Before proposing a lottery for one visa, I suggest reading the actual law you're claiming gives the Secretary of State that authority.

1. Congress, not the Secretary of State, established the diversity visa program.

Under 8 U.S.C. § 1151(e), "The worldwide level of diversity immigrants is equal to 55,000 for each fiscal year."

Section 1153(c) then prescribes how those visas are allocated, including the criteria for determining eligible countries and the allocation among them. Section 1153(e)(2) requires available diversity immigrant visa numbers to be issued to eligible, qualified applicants in a random order established by the Secretary of State.

Those provisions do not give the Secretary an unrestricted power to replace Congress's statutory program with a lottery for one visa. The statute establishes the framework; the Secretary administers it.

There are statutory adjustments to the 55,000 figure, so the number actually available in a given year can be lower. But that is not the same thing as having unlimited discretion to reduce the program to one visa simply because the Secretary prefers that outcome. See 8 U.S.C. §§ 1151(e) and 1153(c).

2. Discretion to administer a law is not authority to disregard it.

The Secretary has discretion over matters the statute actually delegates to the department, including the random order of selection and the administration of registration. That does not mean every decision the Secretary makes is automatically lawful.

Your hypothetical assumes the very thing that needs to be established: that Congress delegated authority to reduce the program to one visa. Please identify the statutory language granting that authority. The fact that an official has discretion over some aspects of a program does not establish unlimited discretion over all of them.

3. And this is precisely why judicial review matters.

If an executive official exceeds the authority Congress granted, the question of whether that action is lawful does not disappear merely because the subject is immigration. Whether a particular district court can hear a particular challenge depends on the applicable jurisdictional statutes and the claim being brought. But the sweeping assertion that Article III district courts have zero authority in immigration matters is simply not an accurate statement of the law.

4. As for your question about Democrats' motives...

The diversity visa program was created by a bipartisan Congress, was not cancelled when the Republicans were in control, and is available to qualified applicants under statutory rules. Its existence does not establish that Democrats hate native-born Americans, nor does it establish a scheme to manufacture a voting bloc. Those are assertions about political motives, not legal arguments.

And diversity visa recipients do not automatically become voters. They receive permanent resident status if they qualify and are granted visas. They must separately satisfy the legal requirements for naturalization before they can become U.S. citizens and vote in federal elections.

You are certainly free to argue that Congress should abolish or change the diversity visa program. That is a legitimate policy debate. But arguing that an executive official can effectively nullify a statutory program by issuing one visa is a different proposition, and it requires a legal basis.

I believe that you want to be taken seriously.

Please read 8 U.S.C. §§ 1151(e) and 1153(c) before asserting what the law permits. The text of the statute is a much better starting point than assumptions about what government officials are allowed to do.

Debunking Hunter Biden's Laptop

Arguments about Hunter Biden's laptop always leap from documented events to conclusions that the evidence doesn't establish.

1. The Twitter episode

Yes, Twitter temporarily blocked the New York Post's account in October 2020 over its Hunter Biden story. That was a serious and, in my view, mistaken decision. The 51 former intelligence officials' letter also contributed to public skepticism, although what they said was, correctly, that the material had the "classic earmarks" of a Russian information operation. They acknowledged that they didn't know  whether the emails were genuine and had no evidence of Russian involvement; they stated that the assessment was speculative.

That is not the same as establishing that the government ordered technology companies to suppress a true story. The Twitter Files documented contacts and raised questions worth investigating; they did not, simply by being published, prove every allegation made about them. The First Amendment question depends on evidence of government coercion or other legally significant government action, not merely the fact that government officials communicated with a private company.

2. The "big guy"

This is where the distinction between a proposed deal and an actual transaction matters.

The reference to "the big guy" appeared in a proposed business arrangement discussed by Hunter Biden associate James Gilliar. Tony Bobulinski, another business associate, subsequently identified Joe Biden as the person he understood the phrase to mean. That identification is relevant evidence, but it does not by itself establish that Joe Biden agreed to the deal or received money from it.

Imagine I email you proposing a shady business arrangement and say that The Orange Turd in the White House gets 10%. Does that establish that Trump agreed to participate, much less that he received a dime?

Of course not. It establishes that I made a proposal. To prove the rest, you need evidence of acceptance, participation, or payment.

The same evidentiary standard applies to the Bidens. There is no evidence Joe Biden knew of any deal or got any money.

3. Hunter Biden and Burisma

Hunter Biden's appointment to the board of a Ukrainian energy company while his father was vice president was certainly a legitimate subject for scrutiny. He was paid handsomely, and the arrangement created an obvious appearance-of-influence problem.

But the suggestion that Hunter was simply an unqualified rich kid who landed on a corporate board out of nowhere leaves out some inconvenient facts.

Hunter had been a senior vice president at MBNA, a major financial-services company. In 2006, President George W. Bush nominated him to Amtrak's Reform Board, and the Senate confirmed him. He subsequently served as Amtrak's vice chairman. This wasn't a Biden administration appointment; it happened under a Republican president.

He was also a lawyer and had experience with corporate finance and investment. Those are relevant qualifications for corporate board service. They don't make him an energy-industry expert, but corporate directors aren't generally hired to turn the wrenches themselves.

You don't have to be a welder to sit on the board of General Motors. You need to understand the business, finances, strategy and responsibilities of corporate governance.

Now, was Hunter paid an extraordinary amount for his Burisma position? Yes. Was his famous last name likely part of the reason he got it? He himself acknowledged that it probably was. And was taking the position while his father was Vice President a serious exercise in bad judgment? Absolutely.

But let's keep the criticism accurate. If the complaint is that wealthy companies pay enormous sums to well-connected board members whose names and connections may be more valuable than their actual work, that's a legitimate criticism. It's also a criticism of a much broader feature of modern capitalism, not a special discovery about the Biden family.

If the argument is that modern corporate capitalism corruptly grotesquely overpays officers and board members - well ok, we agree!

But the question is whether Hunter's appointment and compensation prove that his father participated in a corrupt arrangement. The answer is that there is no evidence of it. American policy supporting free Ukraine against Russian control was supported across the political spectrum, Republicans as well as Democrats; did they all do it in exchange for money? Investigations and congressional inquiries found nothing to suggest that Joe Biden received the alleged Burisma bribe.

Questionable judgment by adults who are not government officials, excessive compensation for corporate officials, and criminal corruption are not synonyms. We have perfectly good words for each, and they don't all mean the same thing.

4. The Ukrainian "coup"

This is perhaps the most entertaining leap in the argument.

The 2014 Ukrainian revolution followed months of mass protests after President Viktor Yanukovych abandoned plans to sign an agreement with the European Union, and escalated after a deadly government crackdown. Yanukovych fled the country, and Ukraine's parliament voted to remove him and hold new elections.

You can debate the legality and legitimacy of the transition, the role of outside governments, and the conduct of the various actors. But calling it a coup partially funded by USAID and the National Endowment for Democracy requires evidence connecting their funding to the overthrow itself.

The frequently cited $5 billion figure referred to cumulative U.S. assistance to Ukraine since 1991, including democracy-building and other programs. It was not a $5 billion fund for staging the 2014 revolution.

Funding civil society and democratic institutions is not the same thing as funding a coup. If someone has evidence of the latter, let's see it.

I'm old enough to remember when promoting democracy was a popular in America.

The bottom line

I have no problem with investigating Hunter Biden, examining the laptop's contents, criticizing Twitter's decisions, or scrutinizing the conduct of intelligence officials. Those are all legitimate subjects.

What I object to is treating a collection of circumstances, proposals, disputed interpretations, and political associations as though they prove a conspiracy.

A laptop can contain authentic emails. A son can behave disgracefully. A media platform can make a bad decision. Intelligence officials can make an ill-founded public statement. A politician can have a family member who is a drug addict (...btw what's the deal with Don Jr?). 

Those facts do not prove the allegations. You don't get to skip the proof just because you dislike the people involved.

Otherwise, we could all save time and replace criminal investigations with a game of Six Degrees of Kevin Bacon: connect enough people, add enough insinuation, and eventually everyone is guilty of something.

Everyone.

Including you.

Debunking Cupcake Economics

Someone wrote:

Every conversation about US politics is like "Ok so there are 100 people and 300 cupcakes, and two of those people have 299 of the cupcakes. We think the cupcakes should be better distributed so everyone gets enough cupcakes."

And then someone will start shrieking and crying about how you can't just steal all those cupcakes from those two people!!!

That it's cruel and unusual to expect those two people to give up those cupcakes, without ever acknowledging that they can't even eat all of those cupcakes, and most of them will simply rot while 98 people split a single cupcake.

They then insist that this is the best system in the entire world and there wouldn't even be any cupcakes for anyone if we didn't let those two people keep hoarding 99% of the cupcakes.

Someone replied:

Well, this example, if we take what we do in kindergarten we would say no you still can’t have Sally’s cupcakes even though she has 100 of them unless she wants to give you one
Still applies here and anybody who’s had a little bit of money and then been begged relentlessly by somebody to give them it understands as well even if you have money, you don’t have any responsibility or requirement to give it to anybody
Yes it would be morally good doing to give or share it but it’s not required and shouldn’t be

I Replied:

Sally didn't bake 299 cupcakes in her Easy-Bake Oven while everyone else sat around watching cartoons. The real-world equivalent is a system where everyone's labor, infrastructure, and institutions helped create the cupcakes, yet almost all of them ended up in two hands.

Nobody is arguing that if Sally has two cupcakes she must hand one over at gunpoint. The question is whether a healthy society should allow 2 people to control virtually all the cupcakes while 98 people are fighting over crumbs.

And let's be honest: if Sally had 299 cupcakes, she would not be protecting them herself. She'd want the rest of the class paying for the teacher, the cafeteria staff, the janitor, the building, the locks on the door, and probably a cupcake security detail.

Since wealth depends heavily on a society's legal and economic framework, it's not unreasonable for that same society to place limits on extreme concentrations of wealth. That's not "stealing Sally's cupcake." It's charging a maintenance fee for the giant cupcake vault everyone else helps protect.

 Property rights are important. So are functioning societies. The wealthy benefit enormously from the protections society provides. Asking them to contribute proportionally isn't confiscation. It's paying the HOA fees on the civilization that keeps the cupcake empire standing. 🍰

Debunking the Flying Tesla

 The problem with a flying car that hovers without wings or rotors is gravity. To stay aloft, it must continuously generate enough upward thrust to counteract its entire weight. Unlike a car sitting on a road, it can't rely on the ground to support it.

Rockets can do this, but they must continuously burn propellant to generate thrust. A 2,000-pound vehicle would need at least 2,000 pounds of thrust just to hover, and it must carry both its fuel and oxidizer. Even under idealized assumptions, a vehicle carrying 10% of its initial weight in rocket propellant would hover for only about 26 seconds.

Jet engines and ducted fans offer other possibilities, but they still have to move air downward to generate lift, consuming energy in the process.

So the question isn't simply whether we can make a car fly. We can. The question is how to generate enough lift, efficiently and safely, while carrying passengers, propulsion equipment, and enough energy for a useful journey. Gravity isn't a minor engineering inconvenience. It's the bill that has to be paid every second the vehicle stays airborne.

This is undoubtedly why the flying Tesla is a joke.

Debunking Free Market Fanboying

A funny thing about arguments that begin with "anybody who has taken macro or microeconomics would know..." is that anybody who has taken more than the introductory survey courses learns that the simple supply-and-demand graph is a model, not a law of nature.

"Free markets are regulated by supply and demand" is true in the same sense that physics problems begin with "assume a frictionless surface." It's a useful teaching tool. The trouble starts when someone looks around at the real U.S. economy and concludes they've found a frictionless surface.

The U.S. economy is full of barriers to entry. Patents, licensing requirements, zoning restrictions, immigration rules, noncompete agreements (where permitted), network effects, regulatory compliance costs, economies of scale, and large capital requirements all shape who can enter a market and compete. Labor markets are especially constrained. A software engineer in Seattle cannot instantly become a nurse in Dallas, nor can a machinist wake up tomorrow as a neurosurgeon. Workers have families, mortgages, licensing requirements, health insurance concerns, and geographic limits. "Just go somewhere else" sounds elegant on a whiteboard; it's considerably messier when actual humans are involved.

Likewise, modern economics has largely abandoned the assumption that goods are perfectly fungible. Most competition today is based on product differentiation. Coke and Pepsi. Ford and Chevy. Apple and Samsung. Nobody seriously thinks consumers view these as identical products and buy solely on price. Entire industries spend billions on branding precisely because products are not interchangeable.

The same goes for labor and capital. In many textbook models they can substitute for one another to some degree. In reality, they are complements as often as substitutes. Ten CNC machines without workers produce nothing. Ten workers without equipment produce very little. One worker and ten machine tools is not equivalent to ten workers and one machine tool. The real economy runs on combinations of labor, capital, knowledge, organization, and infrastructure.

And then there's the claim that government involvement inevitably creates corruption, poverty, and power games. That's a curious theory given that some of the world's richest and most prosperous countries have substantial government involvement in health care, infrastructure, education, labor regulation, and social insurance. Apparently the governments of Denmark, Norway, Finland, Germany, and the Netherlands forgot to read the memo explaining that they were supposed to be impoverished.

Capitalism has indeed generated extraordinary prosperity, technological innovation, and rising living standards. Few serious people dispute that. But that's not the same as proving that every labor market outcome is fair, efficient, or reflective of worth. If wages always equaled value, hedge fund managers would be saving lives. If wages always reflected value, we'd expect elementary school teachers to earn more than vultures who profit from foreclosures. Yet somehow the market keeps missing that memo.

The reality is more complicated than either side's slogans. Markets are powerful. Competition matters. Property rights matter. But introductory economics is the beginning of the conversation, not the end of it. Saying "supply and demand" settles every question about wages is a bit like saying "gravity" settles every question about aerospace engineering. Technically relevant, yes. Sufficient, no.

Response to Comments on "America First Global Health Strategy"

Friends,

Thank you for circulating this.

Having read the proposal and the accompanying comments, I find myself unconvinced on moral, legal, and practical grounds.

First, the moral question.

The central purpose of global health programs is to prevent disease, disability, and death. Programs such as PEPFAR earned bipartisan support over many years precisely because they achieved measurable results at extraordinary scale. When funding interruptions lead to treatment disruptions, vaccine shortages, or reduced disease prevention, the costs are not theoretical. They are borne by real people, often among the most vulnerable populations on Earth.

One can debate the structure of aid. One can debate oversight mechanisms. What should not be debatable is whether preventable suffering is preferable to promoting health care. A policy that reduces human survival in order to improve negotiating leverage strikes me as a strange definition of success.

Second, the legal question.

Congress appropriates foreign-aid funds for public purposes established in law. The traditional justification for these programs has been humanitarian assistance, public health, diplomacy, development, and national security. The proposal appears to replace those purposes with an explicitly transactional model in which assistance is conditioned on economic concessions or geopolitical alignment.

That is not merely a different administrative model. It is a different conception of what the aid is for.

If the objective is obtaining mineral rights, market access, or other economic consideration, we should be honest enough to call that a bargain rather than a gift.

Third, the practical question.

The proposal assumes that America's greatest comparative advantage is its ability to extract concessions. I would argue the opposite.

The United States became influential not merely because it was wealthy or powerful, but because other nations generally believed American commitments were connected to larger ideals and institutions. We gained influence by helping others, not by presenting every interaction as a property transaction.

The authors seem to imagine that replacing multilateral cooperation with dozens of bilateral agreements will somehow reduce bureaucracy. This is a fascinating theory. Most people who have ever tried to manage contracts would assume that one agreement is simpler than thirty-five agreements. Apparently the laws of administrative complexity have now been repealed alongside USAID.

Likewise, the suggestion that bilateral deals are inherently easier to audit than large established programs deserves some scrutiny. Creating a separate negotiation, compliance, reporting, and enforcement structure for each country is not obviously a recipe for simplicity. It sounds more like a recipe for additional paperwork, just distributed into smaller piles.

I am also skeptical of the claim that aid becomes more effective when recipients know assistance can be suspended for political reasons. Hospitals, vaccination campaigns, and HIV treatment programs tend to function best when they can plan more than one election cycle ahead.

Most importantly, this proposal misunderstands what made programs like PEPFAR valuable. Their purpose was not merely charity. They were instruments of soft power. They advanced humanitarian goals while simultaneously increasing American influence, goodwill, stability, and security.

To abandon a demonstrably successful soft-power strategy in favor of a system that resembles conditional commercial bargaining is an odd choice. It is rather like selling your house to finance the purchase of a lawnmower. At the end you will possess an excellent lawnmower and no house.

You have written that "only time will tell."

That is certainly true.

Time will tell whether countries prefer long-term partnerships or short-term transactions.

Time will tell whether influence is built through trust or leverage.

Time will tell whether America's reputation is strengthened by turning health assistance into a negotiation over benefits owed to the United States.

My own expectation is that nations will sign such agreements when they have no alternative, but will not mistake compulsion for friendship. History suggests that genuine allies are created by reliability, not by conditionality.

In the meantime, I remain persuaded that the older approach, though imperfect, saved lives, advanced American interests, and reflected values worth defending.

Regards,