Bill of Rights

My "The Hill" Op Ed on the Bill of Rights and the Travel Ban

Prof. Michael Mannheimer and I have coauthored an op ed explaining why the Bill of Rights limits federal power over immigration, and renders Trump's travel ban unconstitutional.

|The Volokh Conspiracy |

Earlier today, The Hill published an op ed on the Bill of Rights and the travel ban, that I coauthored with Prof. Michael Mannheimer (who is also my coauthor on an amicus brief in the travel ban case). Here is an excerpt:

The Supreme Court is about to hear a case challenging the legality of the latest version of President Trump's travel ban policy, which bars citizens of six Muslim-majority nations from entering the United States.

In virtually any other context, courts would likely rule that a law or executive order so clearly motivated by religious discrimination violates the First Amendment, which protects religious freedom and forbids the "establishment" of religion.

But the Trump administration claims that federal power over immigration is largely exempt from the constraints of the Bill of Rights. The president has it backward. No federal power can override the Bill of Rights…

The Bill of Rights was added to the Constitution precisely in order to limit federal power, because many feared that the new powers granted to the national government would be abused. The Bill of Rights constrains federal authority over immigration no less than other federal authority.

But the Trump administration claims that federal power over immigration is largely exempt from the constraints of the Bill of Rights. The president has it backward. No federal power can override the Bill of Rights.

The First Amendment states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Nothing here suggests that the First Amendment is limited to government actions within the United States or those targeting American citizens.

To the contrary, the amendment is a categorical limitation on federal power. "No law" means just that.

The text is reinforced by Founding Fathers-era practice. The Founding generation routinely applied the Bill of Rights as a constraint on U.S. government actions abroad, including those directed at non-citizens.

For example, it was taken for granted that suspected pirates captured at sea, whether U.S. citizens or not, were entitled to the "due process of law" guaranteed by the Fifth Amendment. Peaceful migrants surely deserve at least the same consideration as pirates.

I addressed some of the issues covered in the op ed in greater detail in various Volokh Conspiracy posts on the travel ban litigation. I have compiled links to many of them here.

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  1. The First Amendment protects the right to unfettered border access and allows liberals to psychically determine that what their opponents underlying motives for policies are and legally challenge these policies based on that rather than what the policies actually say or do. Points for creativity.

    1. Some bigots are so ham-handed — even today, when most of the bigots have learned to cloak their intolerance behind terms such as “colorblind” and “traditional values” because society has progressed from casual, open, common bigotry to a point at which most bigots no longer wish to be known as bigots, at least not in public — that no psychic inquiry is required.

      This becomes a matter of public debate because plenty of other bigots vote for the ham-handed bigot.

      1. Or when the bigots post online, like you.

  2. If Trump walked on water, Somin would argue his doing so was a clear violation of international law governing freedom of the seas. Some here would be quick to agree.

    1. Trump doesn’t need to walk on water. His supporters are gullible enough to believe someone could walk on water — all he needs to do is tell them he did it.

    2. I’m coming to believe the true Trump Derangement Syndrome is blaming every disagreement with administration policy on hatred of Trump.

      Because no one can disagree with Trump’s immigration policy based on principal?

      1. And then you go and argue it’s because Prof. Somin is a g-g-g-g-globalist? You know, the guy who argues for deaths due to Communism day should be May First?

        Get your anti-Somin narratives straight, WJack.

      2. You mean like 2008 to 2016 when every disagreement with administration policy was “rebutted” by screaming “Racist!!!” as often as possible? Oh, wait, those are the same exact people who are now opposed to everything going on in the current administration, by screaming “Racist!” as often as possible. It’s almost as though no one should expect rationality from the proggie left.

        1. Yes, just like that. It was dumb then when a subset of the left was doing it, and it’s dumb now when what seems like a larger subset on the right does it.

          You, on the other hand, seem less consistent and more partisan in your condemnation.

          It’s pretty impressive how immune to self-reflection you must be to condemn knee-jerk dismissal of opposition to Obama, and then immediately turn around and dismiss all opposition to Trump.

          And then topping it off with the old chestnut ‘you’re the ones being irrational.’ It’s almost like art.

  3. Does stopping someone (who is not a US citizen or under the authority of the US government, such as a green card holder or other authorized resident) from entering the United States prevent the free exercise of religion or act as the establishment of a religion?

    The case boils down to the question of: is preventing someone from entering / establishing a relationship with the United States (for any reason the government wants, really) against the law? If someone writes an article saying they hate the president, they can be prevented from entering the country. This is the true even though the government cannot limit the freedom of speech of persons under the authority of the government. How is this different?

    I can more easily see the case that preventing entrance to the United States based upon an individuals religion is a de facto endorsement of other religions, but I disagree with that viewpoint. If the Halley’s Comet cult had been led by a foreigner, why couldn’t the United States have prevented that individuals entrance based on the finding that his religious beliefs would be detrimental to the United States?

    The pirate case seems obvious to me: Upon apprehension the pirate is now under the authority of the US government.

    1. Right. Somin’s argument is at too high a level of generality. The question is not whether the Bill of Rights restricts the immigration power — it certainly does. The question is whether the specific rights asserted here restrict the specific exercise of that power here.

    2. And the insidious aspect of this line of reasoning is would it prevent us from singling out a certain group of people based on religion such as Jews during Nazi Germany??

      1. I’m not addressing whether it is right or wrong. I’m addressing the legality of the immigration ban.

        As to your question: Yes. It would allow the US to prevent the entry of Jews to the US as they fled Germany. The US actually did restrict Jewish immigration prior to the holocaust, with little question as to the legality of such restrictions.

        1. Terribly wrong policies may be constitutional.

  4. Somin is driven, as some others are, by a globalist (one world) approach to many political issues. Trump’s view (America first) is the exact opposite. Much of what Trump does Somin will believe to be dangerous to his notions of global world order.

    1. Trump’s view is Trump first. He can care less about America. But lets assume for a moment that he does. Isolationist closed border policy position damages America and the very people who voted for him in the first place.

      Want to kill our economy? Completely shut down our borders and get into a trade war with our biggest trading partners.

      1. More proof the progressives own the education system from kindergarten through “elite” graduate schools. Their products can be relied on to comment as programmed.

      2. Who is advocating that the USA completely shut down it’s borders?

        1. also, who wants a trade war?

          Seems Trump’s actions have led to China further opening their markets.

          1. I trade war of the developed world vs China would probably be beneficial to the developed world. The elimination of their 50-50 joint venture requirement for all factories would be huge. Actual enforcement against IP theft would be a big deal for the rest of the developed world, as would fair court systems.

            The Chinese also heavily subsidize industries they want control over. The tariffs on solar panels from China are about 10 – 15 years too late, and should have been done when the Chinese government subsidized their domestic industry to drive international companies out of business.

            This website doesn’t allow links that are more than 50 characters, so use hyphens instead of spaces below:

            https://www.nytimes.com/2012/03/21/business/energy environment/us to place tariffs on chinese solar panels.html
            https://hbr.org/2013/04/how chinese subsidies changed

  5. Ilya,
    That is an awful op-ed. It violates what should be first principles when a lawyer is writing towards a lay audience: don’t make people stupider about the law. Reading your op-ed people would have no idea that there has been extensive Supreme Court jurisprudence regarding the application of constitutional rights of (1) citizens located in the United States (2) citizens not located in the United States; (3) non-citizens located in the United States; and (4) non-citizens not located in the United States.

    “Nothing here suggests that the first amendment is limited to government actions within the United States or those targeting American citizens.” Great and it’s great if that’s your personal normative interpretation (which I’m sympathetic towards) but that’s not how the first amendment has been interpreted by ANY court even as to domestic application. Most importantly, Kleindienst v Mandel.

    If you’re going to advocate this position, you need to be upfront with the readers that you are calling for the substantial overturning/reinterpretation of Supreme Court jurisprudence. Otherwise, they will be left with the impression that this is how the law is currently applied and relying on your cache as a law professor to be telling the truth. You just went full Chemerinsky, and one should never go full Chemerinsky.

    1. Most Conspiracy readers understand that “the law” as expounded here is not “law” in any well-accepted philosophical sense: it’s not “the command of a sovereign” or “a prediction of how the courts will rule.” “Law” at the Conspiracy is the rather incoherent policy preferences of a group of vaguely libertarian, anti-religious, intellectually snobbish law professors. They’re smart, which is why I read them, but the Conspiracy is certainly not a source that a knowledgeable lawyer would turn to for guidance as to the actual law.

      1. Which makes it especially ironic when one of the Conspirators starts expounding a highly non-libertarian view of freedom of association, say, or the rights of bakers or florists to not be complicit in SSM, they defend themselves by claiming it’s just descriptive, not normative.

        1. Brett,
          Go back an read Eugene’s amicus brief. He is not espousing any view on the matter under the Free Exercise clause (although I believe he has said he believes Employment Division vs Smith was correctly decided) or under the right to free association, only that making a cake isn’t speech.

          It’s okay to admit that the Constitution isn’t a libertarian shrine.

      2. Depends on the issue. But regardless, when writing an Op-ed, your audience is different and that should be reflected in your writing. Ilya’s op-ed is indeed written differently than his Volokh Conspiracy posts, but it’s for the worse.

  6. Could we get an edit to remove the presumably unintended duplication of the paragraph “But the Trump administration…”?

  7. In virtually any other context, courts would likely rule that a law or executive order so clearly motivated by religious discrimination violates the First Amendment, which protects religious freedom and forbids the “establishment” of religion.

    The “Muslim” people targeted by the travel ban are not targeted for their religion, even in the “secret, behind the scenes real motivation for this that we all know is true” sense. “Muslim” in this context is a political designation. The targeted people are from regions that have an endemic and widespread set of political beliefs that include the belief that “Muslim people” (their designation) are at war with the West in general and the United States specifically.

    Whether this policy is a good idea or not, it isn’t about religious freedom. Just because the countries and terrorists in question share a common belief in Allah and use the name of their prophet to label themselves doesn’t make their affiliation religious. Islamists are a political group – pushing a theocratic political structure, but political all the same.

    The correct analogy would be to compare this ban with a ban on travel from Marxist countries at the height of the cold war. Would you characterize that as a ban on Atheists, even if the people discussing the ban were Christians who expressed concerns about atheism?

    1. Great comment and see my comment below. Essentially citizens should be given broad discretion with respect to what they espouse as a religion but with respect to foreigners we should consider everything an ideology and thus not subject to 1st Amendment protections. So an American can make anti-American statements and be protected by free speech but a foreigner that makes anti-American statements would not be allowed to even get a visa much less qualify for naturalization. So foreigners don’t get free speech protections with respect to immigration.

  8. Religion = ideology!! Not allowing America to discriminate with respect to religion in immigration is tantamount to a suicide pact!!! A fundamental religious belief of ISIS is killing infidels and so Obama correctly discriminated against the Islam practiced by ISIS. The reality is Islam has beliefs that are antithetical to American values just as ideologies such as Nazism and Communism held anti-American beliefs. A future Hitler could simply call Nazism a “religion” and then we could not discriminate against his anti-American views.

  9. A fundamental problem with Processor Somin’s approach is that it gives enemy soldiers invading the United States the full protections of due process of law, requiring an individualized hearing before US forces could shoot at each one.

    A President’s claims that individuals entering the United States constituted an invading army rather than peaceful immigrants might be false, based on bigotry and prejudice. If multiple armies invaded the United States, directing US forces against one more than against others might be discriminatory, based on animosity towards one of the groups’ religion, national origin, or whatever.

    An invading army would have a host of legal theories to argue that efforts to defend the United States either deny them due process of law or violate their right to equal protection.

    Professor Somin’s philosophy – nations are mere administrative units, only individuals are real – logically leads to seeing an invading army as a mere collection of individuals who happen to decide to wear similar clothing while entering the country exercising their right to keep and bear arms. If the Congress and the President lack the power to determine incoming aliens constitute a security threat to the United States without being subject to injunctions and hearings, an invading army would be free to enter, manouvre and assemble under judicial protection until they decide it’s time to start shooting.

    1. I can’t agree more with the statement that “if the Congress and the President lack the power to determine incoming aliens constitute a security threat to the United States without being subject to injunctions and hearings, an invading army would be free to enter, maneuver, and assemble under judicial protection until they decide it’s time to start shooting.” And those who authored the Constitution agreed with that position, too.

      National borders are real and they are at least as real as the borders of a home or of a human body. Is it OK to attempt to prevent home invasion or must a homeowner wait to actually be robbed? Is it OK to attempt to prevent rape or must a woman wait to actually be raped?

  10. Also, the piracy cases are easily distinguishable it gives rights to the accused. If someone, including an extraterritorial alien, is accused of a crime, procedural rights ensue. These rights arguably protect the judicial integrity of the courts and prevent them from being used in a kangaroo fashion.

    But if a military rather than a judicial process was used – if US forces shot at the pirates, or captured them as prisoners of war rather than as accused civilians – no rights would apply.

    The 20th century is replete with navies attacking each others’ shipping in a manner that would be piracy if not done by a military. The idea that German U-boat crews had constitutional rights requiring “due process” before US navy sailors fired their weapons is ludicrous.

    Same with pirates. Capturing alive is an option. Killing in combat is another.

  11. Worth reading again:

    Winston Churchill: The River war, 1899

    “How dreadful are the curses which Mohammedanism lays on its votaries! Besides the fanatical frenzy, which is as dangerous in a man as hydrophobia in a dog, there is this fearful fatalistic apathy. The effects are apparent in many countries, improvident habits, slovenly systems of agriculture, sluggish methods of commerce, and insecurity of property exist wherever the followers of the Prophet rule or live.

    A degraded sensualism deprives this life of its grace and refinement, the next of its dignity and sanctity. The fact that in Mohammedan law every woman must belong to some man as his absolute property, either as a child, a wife, or a concubine, must delay the final extinction of slavery until the faith of Islam has ceased to be a great power among men.

    Individual Muslims may show splendid qualities, but the influence of the religion paralyses the social development of those who follow it. No stronger retrograde force exists in the world. Far from being moribund, Mohammedanism is a militant and proselytizing faith. It has already spread throughout Central Africa, raising fearless warriors at every step; and were it not that Christianity is sheltered in the strong arms of science, the science against which it had vainly struggled, the civilization of modern Europe might fall, as fell the civilization of ancient Rome.”

    1. ‘No defender of slavery, I concede that it has its benevolent aspects in lifting the Negro from savagery and helping prepare him for that eventual freedom which is surely written in the Book of Fate’

      -Thomas Jefferson.

  12. Can I ask you to explain just how this reasoned refusal of people from these ‘Majority Muslim’ countries somehow is a block to the establishment of a religion that already sports over 3000 Mosques with over 3 million believes in the US already. Can I also ask just how specifically singling out these countries is an impediment to the entry of peoples from about 45 other ‘Majority Muslim’ countries… and if singling out these 6 countries because of the perceived danger coming from them, just where do you put the boundaries on ‘the free exercise thereof.’?

    I know these are common objections to your position, I would just like to here your reasoning.

    1. the Trump administration claims that federal power over immigration is largely exempt from the constraints of the Bill of Rights. The president has it backward. No federal power can override the Bill of Rights.

      The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Nothing here suggests that the First Amendment is limited to government actions within the United States or those targeting American citizens.

      Your reasoning would eviscerate the Establishment Clause for just about all mainstream religions, since they all have a bunch of believers already in America.

      1. Seriously?

        How is denying a foreign national entry into the USA a denial of religious freedom? The USA has no control over a foreign nation just as our Constitution does not control foreign nationals unless/until they come under the jurisdiction of the USA.

        1. My issue was the reasoning of ‘Islam is doing great in America, so therefore no actions can implicate the establishment clause.’

          But I also think you don’t have it quite right – the Bill of Rights doesn’t specify rights held by anyone, it specifies areas the government cannot regulate within. Immigration being a regulation, it’s not immune to the BoR.

          Though to digress, it’s even more complicated when you go beyond ‘religious freedom’ to actual clauses and precedents – the Establishment Clause’s currently in vogue ‘endorsement test’ has this odd ‘how would a reasonable American view this’ indirect component. Blame Kennedy.

          That being said, I don’t think Trump’s latest travel ban raises Establishment or Free Exercise problems (though that’s a more open question for the initial incarnation of the ban that was basically all Muslims).

          I’m an Equal Protection via animus guy (though I give that only 50-50 in the SCOTUS, maybe 60-40 given how many judges have bought into that reasoning.)

      2. How so… just what does ‘Shall make no law with respecting the establishment of religion’ mean? I did say in ‘these’ majority Muslim countries… I wouldn’t say that banning people from 10% of the countries that have majority Muslim populations would be considered an impediment to the establishment of anything.

        I think that the Preamble is pretty clear who the provision written withing its body were for…. Unless of course we are to stretch the entire premise of the constitution is to force domestic tranquility on ‘everyone’, provide for the common defense of any and all other countries and given that the welfare clause seems to constitution providing cradle to grave responsibility to the government, that we provide for every world citizen that wants it.

        1. Why not start banning 10% of the churches in America – after all, it’s not like that’d be an impediment to Christianity establishing anything!

          In other words, your reading is too narrow and proves way too much. ‘Establishment’ has been held to mean a lot more than the dictionary definition. And for good reason, both from a functional perspective and looking at the attitudes about religious freedom that the Founders held.

          Your argument that unless we apply the rights only to citizens/residents we must apply it to the world is excluding the middle – one can say you can’t pass an immigration law/order that violates another part of the BoR without imposing the entire BoR on the entire world.

          The General Welfare Clause allows government spending related to general welfare, it does not mandate anything about cradle to grave services – that’s Congress.

  13. Note that Somin doesn’t address standing of foreign nationals, especially those that have no connection to the USA.

    I would also note that the USA had an immigration policy that denied entry to Communists and/or those associated with Communist countries. Even after the USSR broke up, military age males especially, were still denied entry to the USA. My brother-in-law was denied entry to the USA to attend his sister’s wedding. He was to stand in for their deceased father.

    1. “Note that Somin doesn’t address standing of foreign nationals, especially those that have no connection to the USA.”

      Note also that Somin doesn’t claim the Lautenberg Amendment, which *specifically discriminates on the basis of religion and ethnicity* is unconstitutional.

      If Congress has the power to give *preferential* treatment to Jews from the Soviet Union, then Congress has the power to give *antipreferential* treatment to Muslims from Syria. Whether it’s wise or good policy for them to do so is obviously open to debate, but that the power exists is undeniable. And if it’s a power Congress has, then it’s a power Congress delegated to the Executive.

      How about it, Ilya? Is the Lautenberg Amendment unconstitutional?

  14. Looks like the Supreme Court is ready to reject your nonsense, Bull Cow.

    1. Hello again, Bigoted Backward Mini-Me.

      Fine by me if Republicans go all-in on bigotry.

      Short-term gain, long-term irrelevance.

      Unless conservatives have perfected a machine that mass-produces half-educated, intolerant, rural, disaffected, economically inadequate, white, easily frightened, gun-fetishing, southern white males. In that case, the future is yours!

      1. You are still a broken record, Comrade Kirkland. Your brain only has a few phrases that were fed into it by your globalist overlords.

        Please, continue to suck on Soros’ posterior, the rest of us see through your shtick though.

        1. Be a good little Bigoted Incel Mini-Me and remind me which way the fringe must be aligned for an American flag to have authority over a sovereign white America citizen . . .

  15. OK, someone living in a foreign country wants to visit the United States (or possibly live here). So we are saying because of that, they are entitled to the privileges and protections afforded by the US Bill of Rights. Are these rights applicable in their country of origin, in transit to the United States, when they steep foot on US soil, or if the US decides to let them enter the country in some status – visa, work permit, refugee, asylum admittee, etc. Can they keep and bear arms?

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