Supreme Court

To Save His Travel Ban at SCOTUS, Trump Is Citing This 1972 Precedent

Understanding the Supreme Court decision at the heart of the travel ban case.

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Gage Skidmore / Flickr.com

The U.S. Supreme Court has agreed to review the legality of President Donald Trump's executive order banning travelers from largely majority-Muslim countries.

At the heart of the Trump administration's legal case is a 1972 Supreme Court decision that recognized sweeping executive authority over immigration. If Trump ultimately wins on the merits, it is likely to be because a majority of the Court shares his administration's interpretation of the precedent set in a case called Kleindienst v. Mandel.

In 1969 a Belgian journalist and self-described "revolutionary Marxist" named Ernest Mandel applied for a nonimmigrant visa to the United States in order to give a speech at Stanford University.

Mandel's application was denied because, under the terms of U.S. immigration law, "aliens shall be ineligible to receive visas and shall be excluded from admission to the United States" if they "write or publish" in support of "the economic, international and governmental doctrines of world communism."

Federal law gave the attorney general the power to grant waivers from this restriction on a case-by-case basis, but no such waiver was given to Mandel.

Mandel then joined with six U.S. citizens, all of them university professors, in a lawsuit filed in federal court. They argued the First Amendment protected the right of American scholars to "hear [Mandel's] views and engage him in a free and open academic exchange." The constitutional right to listen and speak to Mandel in person, the professors argued, trumped the government's power to keep Mandel out of the country.

The Supreme Court, however, ruled for the government. "Plenary congressional power to make policies and rules for exclusion of aliens has long been firmly established," the Court observed. And Congress has delegated much of that power to the executive branch. "We hold that when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason," the Court said in Kleindienst v. Mandel, "the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant."

Writing in dissent, Justice Thurgood Marshall accused the majority of bending over backwards in favor of the government. "Even the briefest peek behind the Attorney General's reason for refusing a waiver in this case would reveal that it is a sham," Marshall wrote. Yet the majority "demands only 'facial' legitimacy and good faith" from the government, "by which it means that this Court will never 'look behind' any reason the Attorney General gives. No citation is given for this kind of unprecedented deference to the executive, nor can I imagine (nor am I told) the slightest justification for such a rule."

As far as Marshall was concerned, "Americans cannot be denied the opportunity to hear Dr. Mandel's views in person because their Government disapproves of his ideas."

The Mandel ruling is now at the center of the legal battle over Trump's travel ban. Specifically, it is at the center of the battle over whether the federal courts should take Trump's various comments, tweets, and campaign statements disparaging Muslims into consideration when weighing whether or not the travel ban was motivated by illegal anti-Muslim animus.

According to the Trump administration, because the president took this executive action in the name of national security, his order is "legitimate and bona fide" and therefore fully satisfies Mandel. In fact, the administration insists, under Mandel the travel ban is owed extensive deference from the courts.

By contrast, the parties challenging Trump's executive order insist that Mandel should be read more narrowly. They argue that the courts must "look behind" Trump's purported justifications and examine his history of anti-Muslim statements. That history, they argue, demonstrates that the travel ban was designed to serve the unconstitutional purpose of heaping official disfavor on Muslims.

The trouble for the legal challengers, however, is that, as Justice Marshall noted in his dissent, Mandel comes out against the "look behind" approach and favors broad executive discretion. In other words, like it or not, Mandel would seem to be a precedent in support of the Trump administration in this case.

But the legal challengers have precedent on their side, too.

In the 2005 case of McCreary County v. ACLU of Kentucky, the Supreme Court made it clear that the judiciary should look behind the government's purported rationale if the government is suspected of trying to favor (or disfavor) a particular religion in violation of the Establishment Clause of the First Amendment.

"Scrutinizing purpose does make practical sense," the Court said in McCreary County, "where an understanding of official objective emerges from readily discoverable fact, without any judicial psychoanalysis of a drafter's heart of hearts."

To find those facts, the Court in McCreary County endorsed what it called a "purpose inquiry," in which judges are directed to look behind the official government explanation and examine "traditional external signs that show up in the 'text, legislative history and implementation of the statute,' or comparable official act."

According to the parties challenging Trump's travel ban, when you apply McCreary County to the travel ban, you get the green light for exacting judicial scrutiny against Trump's negative statements about Muslims.

Until now, the lower courts have mostly leaned in the direction of McCreary County, rather than in the direction of Mandel, which is why Trump has mostly been losing. But there is no guarantee the Supreme Court will move in that direction.

When the justices finally hear arguments on the merits, both of these precedents are likely to be in play. And at that point the outcome is anybody's guess.

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  1. The title of this article really reads like a clickbait article.

    1. I am pretty sure it should say “Trump’s Lawyers Are Citing This Precedent.” I don’t see Trump poring over case law. His contribution was probably to say “find some shit to make this stick.”

      1. Probably less eloquently put.

    2. Clickbait seems to work to generate clicks. Gotta get that ad money.

      1. I doubt the ad money matters at all around here.

        I assume Reason is kept afloat by deep pocketed sugar daddy ideologues.

  2. His 120 travel ban won’t be argued until … 120 days from now.

    Fcking circus.

  3. A colleague said at lunch today, “This travel ban is now just a dick- measuring contest.” If the vetting rules were so porous for those six countries, wouldn’t the Trumpers have had ample time to review and revise them, and put them into effect right now? If terrorists are about to swarm our borders from Yemen or Syria, then why screw around with a temporary ban and new rules until Oct. or whenever the SCOTUS gets around to ruling? No, the situation is so dire, that Trump can afford to screw around with our safety just to score a victory through SCOTUS?

    1. This is exactly right. It is mostly for show.

      1. I just wonder why the left is so set on letting anyone in from those countries. Why does it matter? Why is it so important to have people from those countries allowed in before the case is settled by the SCOTUS?

        Answer that and you understand why people are sick of lefties putting other people ahead of the Constitution and the United States.

        1. . . . .people are sick of lefties putting other people ahead of the Constitution and the United States.

          You know the left says the exact same things about us regarding the 1st and 2nd amendments.

        2. . . . .people are sick of lefties putting other people ahead of the Constitution and the United States.

          You know the left says the exact same things about us regarding the 1st and 2nd amendments.

        3. “I just wonder why the left is so set on letting anyone in from those countries.”

          Why should they be kept out? Hint: They aren’t all terrorists you know.

          1. I asked my question first.

            So, your answer to why should we let non-Americans into the USA is why should we not let them in?

            Yeah, this is why I support closing all visitors, refugees and immigration from all but a few countries and the people have to have strong ties to Americans.

            The left is too shady on why they want non-Americans to flood into America.

            1. So, your answer to why should we let non-Americans into the USA is why should we not let them in?

              Uhhhhhhh….yes?

              They might not have told you out front, but this is a libertarian site. If you want to restrict the rights of other people, it’s on YOU to prove both the need and the justification.

              If you want to start with the premise that the government cracking down on individual rights is the default position, you are in the wrong place.

              1. But they don’t HAVE a right to come here.

                If it requires the work of someone else to accomplish it can’t be a right.

                1. Right. There is no positive right to come to the US for the reason you say. But most immigration doesn’t require someone else’s labor or money.

              2. You might want to read what Libertarian means and fundamentally there is a enforcement of the rule of law.

                The Constitution enumerates the power for Congress and the president to restrict immigration after 1808. Art. I, sec. 9.

                You are in the wrong place if you think anyone from anywhere can come into the USA as a non-citizen.

            2. chemjeff is asking the right question, I think. The default position should always be for the government to use the minimum force necessary in all situations. So the question you need to ask regarding a restriction on immigration is whether it is necessary and proper to impose restrictions.

              And there may well be a reasonable positive answer to that question. There are a lot of people in these countries who want to do harm to the US. I don’t think it is likely to be terribly effective, but that’s a debatable point.

        4. I think a big part of the why is simply that it’s a Trump administration policy.

          1. Its TDS all the way down.

            I just ask, why does the left have to have high risk immigrants enter the USA?

            Because TDS reasons….

    2. ^This^

      Neither side is exactly covering themselves in glory. They’re covering themselves with something, but it sure as hell isn’t glory.

      1. What is it? What are they covering themselves with?

    3. I am certainly not arguing for the wisdom of this EO, however, the ban was a temporary ban precisely to give time for the DHS and State to put together better vetting processes, and to establish which countries would or would not help provide the information needed to properly vet travelers.

      to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals,

      1. 1. A travel ban is not necessary in order to conduct an internal review of screening procedures
        2. The judge’s restraining order did not encompass the EO section which called for an internal review

        1. 2. The judge’s restraining order did not encompass the EO section which called for an internal review

          True. They could have conducted their internal review of vetting processes for immigrants from the 6 countries in question and implemented them (or be well on their way to implementing them) by now. It’s all just kabuki theater, really.

          1. Fair points. Again, I don’t in any way think it was logical. But, I still find it hard to argue that POTUS doesn’t have the authority to do this because of the Establishment Clause??

            While the Constitution enumerates a number of rights that are inherent in being human beings, the US Government is not required to protect the rights of all individuals all around the world, just because they want to come here. Once they are a legal visitor, or legal immigrant then yes, certain right do need to be protected. And of course, once a citizen, then they are entitled to ALL protections any citizen should have (not that there is much protection now).

            1. I still find it hard to argue that POTUS doesn’t have the authority to do this because of the Establishment Clause

              Particularly with version 2 of the order. I don’t see how you can really call it a Muslim ban when most of the Muslims in the world are not subject to it.

          2. Except the internal review was forbidden by the injunction from the Hawaii judge until the 9th circuit vacated that part of the injunction on June 12 (15 days ago).

            I showed chemjeff at the time the 9th circuit ruling that vacates the portion of the injunction that he claims didn’t exist, and now he’s back to claiming it doesn’t exist again. He’s either retarded or dishonest.

            1. Oh Chemjeff is retarded.

            2. Funny, that’s not how I remember things. (Here is the discussion in case anyone cares.) LE simply referred to Sullum’s article. I am citing the original work itself.

              Part of the problem here is the sloppy use of the term “internal review”. Several parts of the EO refer to internally reviewing procedures by the government. Section 2 called for various agencies to review worldwide vetting procedures, among other things. Section 5 called for various agencies to review domestic screening procedures for immigrants from all countries. Section 6 called for the Department of State to work with various state governments about resettling refugees, among other things. They are all types of “internal reviews”. ONLY SECTIONS 2 AND 6 WERE EVER BLOCKED. Section 5 was never blocked by any judge ever. Trump has had full authority this entire time to move full speed ahead on the “internal review” of domestic screening procedures. So it is a complete myth that somehow Trump’s hands are totally tied by the courts.

              And THEN the 9th Circuit comes along and permits the “internal review” portions of Sections 2 and 6 to continue, while maintaining the injunction against the rest of the two sections. So Trump does not have to wait for any court to rule on anything in order to enact whatever “extreme vetting” he wants to do.

        2. According to Sullum, the March 15 injunction did say that agencies had to halt any internal reviews. Whether that would actually stop internal reviews from continuing is another question. Still, if the claim is that they need 90 days to complete such a review, they ought to be done soon, and they’ll have had double that time when the ban comes before SCOTUS.

          1. The March 15 TRO blocked implementation of Sections 2 and 6 of the EO (see p. 42). Here is the text of the EO.

            Section 2 calls for a worldwide review of vetting procedures in different countries.
            But Section 5 – not blocked – calls for an internal review to implement uniform screening procedures for immigrants from all countries. And that the final report on this review was due in 200 days.

            1. The circuit court disagreed with your interpretation of the ruling. They overturned exactly the portion of the ruling you claim doesn’t exist.

              1. That is false. No court ever blocked Section 5.

        3. Page 78 of the 9th circuit ruling:

          “We vacate the portions of the injunction that prevent the president from conducting internal reviews”

          1. Yes, the internal reviews that are called for in Sections 2 and 6, which were ever only the two sections that were contested. Section 5 was never blocked by anyone.

            1. So section 5 has nothing to do with internal reviews then, like you just said?

              Or is it about internal reviews, like you just said?

              And with the sections that seek procedures to adequately vet and screen from certain countries are blocked, how can one conduct a complete overhaul–which section 5 calls for?

      2. But they don’t actually seem to be putting any of that together.

        Its like – ‘hey, we really need this ban to get our shit together but we’re not even going to start to get our shit together until its been decided whether or not we can do this ban’. If they needed 120 days to develop a first pass of a fix, then you’d think they’d have that first pass ready to present to the American people by now.

        Instead they seem to have tossed it to the side. You don’t need to have the ban in place to examine an rewrite the rules for immigration – that’s just a ‘nice to have’. Once the rules are re-written then you just need to implement a short term stop to put them in place – and that would have the added advantage that no one could scream about Trump’s purported ulterior motives.

        1. Because Team Trump was never interested in the whole internal review thing in the first place. They don’t want to develop better procedures. They just want to ban people from coming in; that’s the ‘procedure’ that they want. If they just keep those Syrians and Yemenis out, then they don’t have to worry about vetting or policies or interviews or screenings or anything else. Simple and easy-peasy!

          1. You figured it out. We, the majority now just want to limit high-risk people from middle-eastern countries.

            Unfortunately for the lefties, the majority wins!

    4. The original nationwide injunction from the Hawaii nutcase judge forbade them from even studying a revision of the admission procedures.

      1. That is not true.

    5. Who cares what the vetting rules are? There is neither a constitutional right nor an international human right to enter any country you are not a citizen of.

      1. If I wish to invite you onto my property, why should the government stand in the way?

        1. Are you inviting someone legally in the USA? Great you have yourself a visitor.

          Since you clearly want these non-Americans to enter the USA and go anywhere BUT your property, then they will be screened as the enforcer of immigration sees fits and supervised by the courts.

          Just admit you have TDS.

        2. wow, he was right. you are retarded.

        3. Because people can’t transport magically to your property.

          They have to pass through a whole lot of other people’s property to get to you.

          1. Not in leftyland.

            They use government force to prevent YOU from protecting YOUR land, to get non-Americans onto public land.

            The lefties are not going to house, feed, and give jobs to these soiled immigrants after all.

    6. Your colleague is probably right, at this point it’s just a matter of who has the bigger dick. But on a less Trumpian note, it will also set a solid precedent as to the Executive’s broad authority to set immigration policy, particularly for reasons of national security.

      But yeah, I don’t see Trump thinking along those lines. I’ve seen no indication he recognizes ANY limits of presidential authority, any more than obama did.

  4. Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen. These are the countries that were under the travel ban (which BTW: was a 90 day ban).

    If Trump was truly serious about banning Muslims, perhaps he should have put Saudi Arabia or Indonesia on the list. But, he didn’t.

    So if a President had banned travelers with ties to the IRA during The Troubles, would he have been discriminating against Catholics?

    1. Maybe he was going to add Saudi Arabia later, maybe not.

      Point is that the Constitution clearly gives Congress authority to regulate people wanting to enter the USA and the President is Constitutionally mandated to execute the laws created by Congress with Executive Discretion supervised by the Judicial Branch.

      The open borders people do not want Trump to restrict immigration at all, no matter what the reason. For the rest of us, we are okay with government slowing immigration and not letting in really high-risk people.

      1. No one wants to let in “really high-risk people”. That is just a strawman.

        But perhaps we could have a more rational determination of who is “really high risk” than just checking which country the person is a citizen of?

        1. You do.

          High-risk is the opposite of low risk immigrants.

          You want people from places we are blowing stuff up and they hate freedoms we have here in America. Those are which-risk.

          But you know this and want these people to flood in. Places your motivations into question.

          1. God, you’re a stupid, dishonest dipshit.

            1. Coming from a lefty stupid dishonest dipshit.

              I know that logic and the rule of law just causes spittle to accumulate on your mouth corners.

        2. But perhaps we could have a more rational determination of who is “really high risk” than just checking which country the person is a citizen of?

          Well, people were trying to do just that–figure out a way to determine who is ‘really high risk’ while trying to lessen that risk and you guys threw a tantrum.

          Here’s how it works–

          Some of the neighborhood kids are tearing up flowerbeds as part of some weird game they’re playing. You’re not sure exactly who’s involved, but you’ve seen the kids from the green house and that one that looks like its supposed to be cedar shakes only it’s aluminum siding tearing up some other peoples flowerbeds. You’ve gotta figure out what’s going on, so you can keep the flowerbeds safe, but you don’t want to be the ‘keep off my lawn’ guy. So you keep the kids from the green house and the weird siding house off your lawn–because you KNOW they did it, and you watch everyone else.

    2. Except, of course, that the EO isn’t a ban on travelers with ties to terrorist organizations (the US already denies visas on that basis and has done so for decades); it’s a ban on most travelers from certain countries regardless of whether there’s even any articulable suspicion that they are members or supporters of a terrorist group.

      1. with the obvious problem being that with these particular countries no one has any idea who the terrorists are and aren’t. Which is the point

        1. Even if the bad guys were in one country, the lefties would find something racists about limiting immigrants from that country.

          Example is that lefties rarely say anything bad about North Korea.

          A lefty goal is to demographically alter the USA. This has been called out, so the reaction by lefties is to call people racists for limiting immigrants from Muslim nations. Being Islamic is not a race but since when does logic play into lefty TDS.

        2. As if we’ve been any better at knowing who the terrorists are and aren’t.

    3. So if a President had banned travelers with ties to the IRA during The Troubles, would he have been discriminating against Catholics?

      According to the courts, if he had earlier said he intended to block Catholics from entering the country, yes.

  5. To find those facts, the Court in McCreary County endorsed what it called a “purpose inquiry,” in which judges are directed to look behind the official government explanation and examine “traditional external signs that show up in the ‘text, legislative history and implementation of the statute,’ or comparable official act.”

    According to the parties challenging Trump’s travel ban, when you apply McCreary County to the travel ban, you get the green light for exacting judicial scrutiny against Trump’s negative statements about Muslims.

    I would be more convinced that Trump’s travel ban amounts to unconstitutional religious discrimination against Muslims if he had included Saudi Arabia or the most populous Muslim majority country on the planet, Indonesia. Or if he had just “fuck it” and listed literally every Muslim majority country on the planet.

    1. Beat you!

    2. The point is, for him to set the policy, he does not have to be correct; he just has to be president. Right or not, he’s met the requirement set in the statute.

  6. So what if the ban is just for show? The president has the authority to do that. If you don’t like it, don’t go bitching to a judge for something that’s perfectly constitutional. Change the damn law

  7. Funny how the anti-Chevron deference people are suddenly all “how dare the court question the legitimacy of the president’s determinations!”

    1. Funny how the forced wedding cake people are suddenly all “how dare you interfere with my religion!”

      1. This word, funny, you keep using it, but I do not think that you know what it means.

    2. Apples and oranges, idiot.

    3. Funny how the big government types are suddenly finding state’s rights not being about slavery and presidential power should be checked by the Legislative and Judicial Branches.

      Obama worship is a hella-of-a-drug!

    4. I am shocked that an elected official is so petty toward citizens of countries whose constitutions also guarantee freedom of speech, and eschew censorship, and let people pack heat, and protect their privacy and forbid torture and expropriation the way those Saracen berserkers do. I’m also surprised there aren’t hordes of Americans demanding admission into those wonderful countries, to bask in their values.

  8. WARNING: HIJACKING THREAD

    Completely OT:

    I was watching episodes of Star Trek: TOS over the weekend. And every other episode or so, the Federation triumphs over some entity like Landru (“For the good of the collective, you must be excised”) or the Klingons (the strong over the weak) or the Romulans (we are creatures of duty).

    And yet, the very next episode, our intrepid heroes champion the idea that the very thing that made Earth emerge out of chaos was being unified for one purpose. And that the “good of the many, outweighs the good of the few, or the one”.

    Its collectivism all the way down!

    1. And then they go blow up the enterprise and sacrifice Kirk’s son to rescue the “one.” So what’s the real end message?

      1. So what’s the real end message?

        Space stuff is cool? Banging green alien chicks is awesome (it’s good to be the Captain)?

      2. Really?

        Voluntarism is great–forced collectivization is bad.

        Pretty obvious.

    2. There’s a lot of this idea of great men taking control to unify the savages in his stuff. Rodenberry’s previous show, Have Gun Will Travel, is basically nothing but an enlightened gentleman bringing order to the chaotic masses.

      1. “Rodenberry’s previous show, Have Gun Will Travel,..”

        Per WikiP:
        Roddenberry’s episode of the series Have Gun ? Will Travel, “Helen of Abajinian”, won the Writer’s Guild of America award for Best Teleplay in 1958.

    3. And its–

      “The needs of the many, outweigh the needs of the few, or the one”

      It’s a Vulcan saying. It has nothing to do with Earth(except for the socialist horrors engendered by it’s human counterparts–‘from each according to his abilities, to each according to his needs’ and ‘for the greater good’).

      And the movies and shows endlessly show what utter idiocy it is.

  9. If McCreary applies to this then it applies to the penaltax in Barrycare. You can’t have it both ways. Or do we want to argue that religion requires special scrutiny now but not in the case of wedding cakes?

    1. It’s perverse that the wedding cake thing has become so intimately tied to religious rights.

      1. Perverse that a symbol of a religious ceremony (one of the Seven Sacraments in Christianity) is tied to religious rights?

        Perverse: contrary to the accepted or expected standard or practice.

    2. Buttsex rights trump everything else.

  10. The constitutional right to listen and speak to Mandel in person, the professors argued, trumped the government’s power to keep Mandel out of the country.

    Emphasis mine.
    I suppose Root just couldn’t help himself.

    The Supreme Court, however, ruled for the government.

    It is very good for us that the Supreme Court has generally ruled in accordance with the Bill of Rights… well, historically perhaps … well, at least in our lifetimes….

    Nevermind.

  11. illegal anti-Muslim animus

    When did that become illegal?

    1. You can blow them up for sketchy reasons…
      but banning the high-risk ones form entering the USA- fuck that.

  12. LOL at the headline. “It’s from 1972! Look how old it is and they’re trying to use it!” Interesting argument for those hallowing documents from 1788-91 to make.

    The 1972 decision is from the same general area of law and deals with roughly the same questions. The 2004 decision? No way.

    To find those facts, the Court in McCreary County endorsed what it called a “purpose inquiry,” in which judges are directed to look behind the official government explanation and examine “traditional external signs that show up in the ‘text, legislative history and implementation of the statute,’ or comparable official act.”

    Quite a stretch going from an interpretation of the attributes of the statute/EO itself, in its text, history, and implementation, to an interpretation of campaign statements made when the president was still a private citizen.

    1. LOL at the headline. “It’s from 1972! Look how old it is and they’re trying to use it!”

      Decisions made by old, wealthy, white slaveholders, no doubt! Doesn’t count anymore!

      1. Haha. Good call out!

  13. or comparable official act.

    So, campaign statements are now considered “official acts”?

  14. Could someone explain how Mandel’s case stood up when the statute in question specifies that the restriction concerns exactly content of speech? I don’t understand why there’d’ve been need to look at the executive’s motive, when enforcing the terms of the underlying statute would seem uncostitutional.

  15. You Americans are exhausting. Then again, it IS almost 1am.

    Must you argue over everything? At this pace you’re gonna argue who gets to divide dust.

    1. USA USA USA!!!

    2. Speak French, you fricking Quebecois… /sarc

      1. I SPEAK WHITE!

  16. Damon Root. Talk about even more biased reporting! Nowhere do you mention that ALL NINE SCOTUS judges unanimously agreed to the interim verdict, once they’d excluded people highly unlikely to be radical islamic terrorists. This means even the liberal judges provisionally agreed that keeping possible terrorists out of the USA is a legitimate function of the US President. Yet you seem to disagree!

    Maybe you need to read the CATO article which starts: “In what can only be seen as a big win for the Trump administration” at https://www.cato.org/blog/supreme-court -returns-sanity-debate-over-travel-ban

    Then there’s the article entitled: “Study Proves Judges Wrong ? 72 Convicted Terrorists Have Come From Travel-Ban Countries” at http://dailycaller.com/2017/02/11/study-proves -judges-wrong-72-convicted-terrorists -have-come-from-travel-ban-countries/

    Freedom includes the right to prevent people from harming you and Trump is doing exactly that for the USA – it’s part of his job! How on earth do you manage to write for Reason? I doubt that I’m the only person wondering about your reasons for your egregious support for radical islamic terrorism… But will you even bother to answer this crucial question?

  17. Congress’ “plenary authority” is “established” merely because the Supreme Court invented immigration authority without citing any Constitutional grant, and because this mistake has never been corrected by subsequent courts. In other words, it was a bold bluff, and anybody who was in a position to call, simply folded instead. Somebody, please cite ANY part of the Constitution that is clear and direct enough to be the basis for any Federal immigration authority at all, much less of the “plenary” kind.

    Remember, though: 1) The States were accustomed to exercising both immigration AND naturalization authority during the Articles of Confederation years — those functions were understood to be related, but separate and distinct; and 2) The 10th Amendment says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people.”

    1. US Constitution, Art. I, Sec 9:
      The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.

      This clause specifically addresses enumerated power of Congress regarding the importation of slaves and migration of non-slaves after 1808.

      Before 1808, Congress had no power to do so. After 1808, Congress had the power to regulate migrants and slaves. The Founders determined this compromise was the only way to form the USA at would pass the buck until 1808.

  18. I find it funny that there are soo many out there that think the U.S. Constitutional Rights are Rights for ALL people in the world. Doesn’t the U.S.

  19. Really! What’s wrong with running over people and blowing up a suicide vest in a crowd of strangers? If you do it for Revealed Faith and altruism, like Sessions and the Drug Czars, that makes it good, right? That’s what the initiation of force is all about. It’s about mystics helping others! And the First Amendment (God bless it!) plainly protects “the coercive exercise thereof.”

  20. In the 2005 case of McCreary County v. ACLU of Kentucky, the Supreme Court made it clear that the judiciary should look behind the government’s purported rationale if the government is suspected of trying to favor (or disfavor) a particular religion in violation of the Establishment Clause of the First Amendment.

    Not applicable. Not US citizens. They have no constitutional right to practice their religion or speak *in the US*.

    1. They have no constitutional right to practice their religion or speak *in the US*.

      Red herring.

      Embassies and consulates are within American jurisdiction. As such, the immigration process is initiated within American jurisdiction and the provisions of 42 U.S. Code ? 1983 do apply to non-citizen applicants.

  21. Here’s a matter of fact that for some reason is inexcusably being omitted in this debate at the flagship publication (Reason Mag) of the “thinking man’s party” (The Libertarian Party):

    50 Muslim-majority countries on the planet., and yet only 6 of those fifty are specified in President Trump’s allegedly anti-Muslim EO travel ban!!

    Go figure, huh.

  22. The facts in Kleindienst are quite distinct from those with which Trump is dealing.

    Mandel et al. challenged clauses of the Immigration and Nationality Act of 1952 that specifically targeted “Aliens … who advocate the economic, international, and governmental doctrines of world communism or the establishment in the United States of a totalitarian dictatorship.” Most importantly, it concerned a single individual who, according to the then-Attorney General, fit that definition.

    Had the holding affected every citizen of a particular communist nation as it did Mandel, Trump and team might have had a precedent.

    As it stands, Kleindienst is but one more straw for the grasping.

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