Travel Ban

Why All Libertarians Should Hope that the Supreme Court Throws Out Trump's Travel Ban

Giving the government blanket power to check the Bill of Rights at the border won't serve the interests of citizens or immigrants

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The Supreme Court will hear oral arguments in Trump vs. Hawaii, the Trump "Muslim" travel ban 3.0 case today. If it were to rule solely on

Trump Nose

the basis of whether the ban is good policy, it would be an easy call: "Nyet." Indeed, not even the uber-hawkish Wall Street Journal editorial page believes that the ban will do zilch to keep America safe from terrorist attacks. "We've disagreed with the need for the sweeping travel restrictions," the Journal's august editors opined. "The post 9/11 screening process for the most part has been effective in keeping out foreigners with jihadist links and sympathies. Most immigrants who have committed terrorist acts in the U.S. were radicalized after admission."

That is completely true. As I've noted in the past, immigrants from the seven banned countries have killed precisely zero Americans in terrorist attacks on U.S. soil between 1975 and 2015. And countries that have sent terrorists—most notably Saudi Arabia, the home of many 9/11 hijackers—aren't on the list.

But the Supreme Court will consider not whether the ban is sound policy but whether it is legally valid and constitutionally permissible. There is a pretty good chance that it will find that it is given that it overturned a lower court injunction preventing the ban from going into effect by a 7-2 vote pending a final ruling. As South College of Texas Law Professor Josh Blackman has pointed out, in the Roberts court, only once in the more-than-a-decade have the justices granted a stay without later reversing the opinion of the lower court.

Still, there are really strong arguments for nixing the ban, especially if the court were inclined to uphold individual liberty while strictly limiting state power—in other words, engaging in the kind of principled judicial activism that my Reason colleague Damon Root has advocated rather than slavishly deferring to the will of the elected branches.

The main argument why the Supreme Court cannot nullify the ban is that it's not its place to do so. Keeping the country safe is constitutionally an executive function and therefore actions taken by the president in the name of national security are not subject to judicial review. Furthermore, the thinking goes, he has "plenary power" to keep out foreigners—even entire classes of them—who he thinks might pose a threat to the country.

But, as I have noted before, the problem is that the plenary power doctrine as it applies to immigration has its basis not in the Constitution but very flawed 19th Century case law. The underlying rationale for this doctrine is that, in order to protect itself, the government of a sovereign nation like America must be able to exclude any foreigner from its soil without constitutional objections from courts. The only "rights" foreigners are entitled to when it comes to their ability to enter or stay in the country are those that the elected branches decide to extend to them. So, actions that might be illicit when applied to citizens may be unobjectionable when it comes to foreigners.

But there are several problems with this argument.

For starters, few outside ultra-restrictionist circles would grant that the government has carte blanche to restrict any foreigner without a really good reason. At the very least, it matters what kind of a connection the foreigner in question has with the United States. So, for example, it cannot stop legal permanent residents or green card holders from re-entering the country except in some very limited circumstances like if they have been involved in terrorist activity while away. That's why the original Trump order, which stopped even green card holders from Muslim countries, would never have been able to withstand judicial scrutiny and had to be scrapped.

Why is that? Namely, because foreigners can only get a green card when an American—a family member or an employer—"sponsors" them. Barring a green card holder from coming to America without any due process, then, violates not so much the foreigner's right, but the right of American citizens.

The Supreme Court recognized as much in the 2015 Kerry v. Din. Although the case upheld the rejection of the green card petition of an American citizen, Fauzia Din, for her Afghani husband, the court did not find that Din had no protected liberty interest at stake because her husband was a foreigner. Rather, as Justice Anthony Kennedy explained in his concurrence that whatever that interest, it was overridden by the finding that her husband had once belonged to a terrorist outfit. In other words, the government hadn't barred her husband as part of a blanket ban but had offered an individualized finding as to why he needed to be kept out.

That's a far cry from Trump's travel ban. But the real question is whether Trump can ban foreigners whose ties to the United States are either tenuous or non-existent. So, for instance, can Uncle Sam bar refugees who wish to come to America on immigrant visas but don't have American sponsors—or foreign tourists, businessmen, guest workers and others who wish to visit America on temporary, non-immigrant visas?

A carefully argued amicus brief that Ilya Somin, my Volokh Conspiracy colleague, submitted to the Supreme Court notes that these foreigners can be denied only in a manner consistent with the Constitution. Somin argues that the purpose of the Bill of Rights is not merely to protect the rights of Americans but also impose structural constraints on the power of the federal government. He notes:

The Bill of Rights was added to the Constitution, not just to protect individual rights, but also to impose structural constraints on the federal government. These constraints sharply curb the powers granted in the unamended Constitution…. Thus, Petitioners' claim of nearly unlimited authority over immigration that is immune from judicial review has it backwards. No federal power can override the Bill of Rights. To the contrary, the Bill of Rights limits federal power in every sphere, including immigration.

Indeed, to give the government unlimited powers in one sphere and limit them in others would be schizophrenic and the early Republic understood that perfectly. That's why Congress at that time consistently concluded that pirates that attacked American ships in international waters and foreigners engaging in slave trade and smuggling deserved Due Process protections.

If that's the case then the question is if Trump's ban is still valid even if it violates the First Amendment's Establishment Clause by discriminating against foreigners from Muslim countries? If the administration were certain that the plenary power doctrine means that it is, it would not have added non-Muslim countries such as North Korea (that sends America all of about 100 visitors every year) and Venezuela (that is far from a terrorist hub) to its list of banned countries. The very fact that it did suggests that it has some doubts, as it should. Indeed, the federal government also has plenary powers to control interstate commerce. But that does not mean it can selectively ban blacks or Chrisitan conservatives from trading acrsoss state boundaries.

The administration is pretending that it included these non-Muslim countries not to cover over its real intentions but because they did not have adequate screening processes and information-sharing procedures in place. That, frankly, strains credulity— which does not mean the Supremes won't look the other way simply because they don't want to get involved in second-guessing the executive on national security matters. One thing to watch today to assess whether they intend to do so might be how much weight they attach to Trump's numerous campaign statements that he intends to enact a "Muslim ban."

It would be great if the court engages in principled judicial activism and refuses to defer to Trump and swallow his bogus rationale for the ban because his plenary power to set immigration policy means he can ignore the Constitution. If it overturns the ban, it won't mean that the government could no longer control America's borders and it must admit everyone who washes to its shore. It will only mean that it has to do so in a manner consistent with the Constitution. It can't check the Bill of Rights at the border because rights aren't divisible.

That is an outcome that all libertarians at least, regardless of their views on immigration, ought to hope for.

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  1. Indeed, not even the uber-hawkish Wall Street Journal editorial page believes that the ban will do zilch to keep America safe from terrorist attacks.

    This seems like it has one too many negatives.

    1. And Uber-hawkish doesn’t mean anything in this context.

      1. The WSJ has been more in favor of open borders than the NYT or WaPo since the 1980’s. I suspect that Shikha has never read the editorial pages of the WSJ.

        1. Many North East libertarians seem to be open borders. They generally don’t see the heavy costs of many border or refugee states. Southern arizona lost the majority of their trauma one hospitals from giving free healthcare, by law, to illegal immigrants. This ends up hurting everyone. They don’t see the crime and drugs from massive drug importation. The garbage building up in the desert pathways, etc.

          1. Well, studies have shown that people who don’t actually interact with immigrants/minorities tend to have higher opinions of them that actually do. I can tell you without a doubt that California is a lot shittier place now than it was when I was a kid. That’s mostly been because of low skill immigration, mostly from Mexico.

            Reality doesn’t always work out the way people want it to in their head. These people don’t show up here and magically become fully assimilated overnight and become doctors or whatever… They tend to stay uneducated people with a lot of anti-liberty views and bad ideas from their home countries. Those tend to stick around for generations too.

      2. I didn’t realize the WSJ was so militantly pro-ridesharing.

    2. This is where I got stuck. First paragraph.

      Sigh… soldiering on.

    3. Isn’t it kind of commonsense that if terrorists have taken over the cities where identification documents are made and even the previous Obama Director of the CIA says it is impossible to properly vett people’s backgrounds we might want to exclude them from coming to our country? It’s not like there is a “human right” to be allowed into the U.S.

      We are a sovereign nation and have an absolute right to decline anyone’s entry.

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  2. This article suffers fro a VERY BIG mistake – that the U.S. government has an obligation to protect the civil rights of people outside the country or trying to get into the country.
    That obligation , if it exists, could justify any foreign intervention in the name of protecting civil rights.

    I also failed to see any specif right that is violated by such a ban mentioned in the article
    “Still, there are really strong arguments for nixing the ban, especially if the court were inclined to uphold individual liberty while strictly limiting state power — ” is the closest i read

    This has to be the one of the worst “libertarian” pieces of logic on rights I have seen

    1. The crazy argument is that the First Amendment applies to the whole world, therefore no law or policy can filter who gets admitted to the U.S. The 1927 Immigration Act that banned Arabs and everything since is Unconstitutional even though the Supreme Court never hinted at such nonsense.

    2. coming from Dalmia, no surprise. This seems to be a consistent meme of this author.

  3. Holy crap. There’s no foaming at the mouth Trump hate and wild-eyed cries of racism! What have you done with the real Shikha?

    For the record, it’s refreshing to see that you’re able to put forth a solid argument without the crazy.

    1. Xanax and legal weed are the business, dude.

    2. The administration is pretending that it included these non-Muslim countries not to cover over its real intentions

      … sounds like an accusation of “racism” (not really) to me. And dressing up “Not fair!” in fancier words isn’t a very solid argmument IMHO either.

      1. I was speaking (typing) comparatively.

      2. Even if the intent is racist, the order is not in any way. So legal as sea salt.

  4. “Why all libertarians should hope that the supreme court throws out Trump’s travel ban.”

    Especially the libertarians who like the Court writing policy.

    1. Nothing says “PERSONAL LIBERTY” quite like “Please, life-time appointment, utterly unaccountable lawyer…tell us what the law should be”.

      Better than that pesky voting and stuff.

  5. It would be great if the court engages in principled judicial activism

    We have to destroy the constitution in order to save the constitution.

    1. JFC I can’t believe I just read those words. Well, actually I can… but I wish I hadn’t.

      1. It’s the Libertarian Moment.

    2. That’s how you know it’s good.

      It’s PRINCIPLED.

      Technically, lots of horrendous things were principled. Communism had “principles” too.

  6. If medieval India had a travel ban, maybe they would have avoided the worst genocide in history.

    http://www.themuslimissue.wordpress.c…..n-history/

    1. Given that his estimated population of India is higher than everyone else’s estimate of the global population at the time…

  7. “Giving the government the blanket power to check the Bill of Rights at the border won’t serve the interests of citizens or immigrants”

    Is this new policy? You need to present a passport and a copy of the Bill of Rights upon entry?

    1. I don’t see how the Bill of Rights would even be applicable.

      1. It wouldn’t.

  8. Yeah, restricting the executive would be great, but that’s not what you’re arguing. You’re calling for restricting the authority of only this executive because Hitler or some nonsense like that. How do you think voters will respond to the double standard being shown with regards to this president’s authority versus his predecessors? Do you really think this will make them more disposed to your neoliberal agenda? Or will they react like we’ve seen in Austria, Hungary, and Poland?

    Neoliberal shit bags like you aren’t helping

    1. Her Bill of Rights for the world argument would restrict Congress too.

      1. I’m waiting for some rational exposition of the notion that Constitutional protections that apply to our residents and citizens somehow also apply to those outside our borders or otherwise not subject to our jurisdiction. The implications of such an idea are staggering. And not in a good way

  9. “Most immigrants who have committed terrorist acts in the U.S. were radicalized after admission.”

    The argument that we shouldn’t bother to keep certain immigrants out–because it’s their children who are the problem–contains a logical flaw.

    Doesn’t keeping the parents of children who are radicalized out of the country also keep their radicalized children out of the country?

  10. “Indeed, not even the uber-hawkish Wall Street Journal editorial page believes that the ban will do zilch to keep America safe from terrorist attacks.”

    Have you ever read the Wall Street Journal editorial page? The WSJ famously declared in the 80’s that there should be an amendment to the Constitution stipulating that “there should be no border”. The WSJ is far from “uber-hawkish” when it comes to immigration

  11. Yes the Bill of Rights was added to the Constitution to restrict the power of the Federal government in regard to the lives of US citizens, not non-citizens. I have to strongly disagree with the premise that we should cheer the courts determining immigration policy. The entire opposition to this ban is the claim it is a “Muslim ban”. Venezuela and North Korea are on the list. Are they Muslim countries? EVERYONE, not just Muslim are banned from the other countries and there are scores of Muslim countries not on the list, so please tell me exactly how is this a “Muslim ban”. We already have courts acting as legislators and writing or re-writing state and Federal laws, do we really want them exercising control of the Executive branch of government as well? If that is okay, we should go ahead and end the pretense that the people control the government and just hand it over to the courts. Sorry, but saying we should hope the courts overturn the ban is anything but Libertarian because that action is not limiting but rather further expanding the power the government.

    1. Venezuela and North Korea are on the list.

      Trump snuck those in to distract from his racist intentions, according to the author.

      1. So according to the author, being Muslim makes you part of a racial group?

        1. You know, she doesn’t actually name the offront – I only used the word “racist” tongue in cheeck & as shorthand. The word “discrimination” is thrown around in the article. And I see that she’s started putting scare-quotes around “Muslim ban”. She didn’t used to.

      2. So, all Trump has to do is restrict himself only to those countries with not even a small percentage of Muslims in its population on the list and it’s good.

  12. “As I’ve noted in the past, immigrants from the seven banned countries have killed precisely zero Americans in terrorist attacks on U.S. soil between 1975 and 2015”

    Why pick those years? Are those parameters statistically significant for some reason?

    Was this statement tailored to avoid including all the knife attack victims in the Mall of America attack who didn’t die?

    Is the fact that the perpetrators of the Boston Marathon bombing were from a country that’s not on the list significant to this policy? Are you arguing against the policy completely, or do you simply want Kyrgyzstan added to the list of banned countries?

  13. “As I’ve noted in the past, immigrants from the seven banned countries have killed precisely zero Americans in terrorist attacks on U.S. soil between 1975 and 2015”

    250 people are known to have traveled to join ISIS, many of whom are immigrants–and those statistics are from three years ago.

    http://www.cbsnews.com/news/co…..join-isis/

    Many of those who left the U.S. to join ISIS were from Minnesota’s Somali refugee community–in fact, a number of Somali immigrants have been arrested, tried, and convicted for trying to join ISIS. Others have simply pleaded guilty.

    Do we need to wait for such people to return to the U.S. and indiscriminately murder innocent Americans before they’re included in your statistics, or is it okay if we arrest known ISIS members as they return from Syria before they perpetrate terrorist attacks?

  14. Here’s the sectionon of the law applicable to the travel ban which, as far as I know, has not been declared unconstitutional.

    https://www.law.cornell.edu/uscode/text/8/1182

    (f) Suspension of entry or imposition of restrictions by President
    Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.

    Fucking words, how do they work?

  15. “Still, there are really strong arguments for nixing the ban, especially if the court were inclined to uphold individual liberty while strictly limiting state power?in other words, engaging in the kind of principled judicial activism that my Reason colleague Damon Root has advocated rather than slavishly deferring to the will of the elected branches.”

    What Dalmia is referring to as “slavishly deferring to the will of the elected branches” is what others are talking about when they talk about “democracy”.

    The Constitution, quite correctly, enumerates the power to set the rules of naturalization to congress–in the same place that it enumerates the power to declare war. Do I need to dig up Dalmia’s recent piece leading off with the observation that Trump’s retaliatory strike against Syria was unconstitutional–or is everybody sharp enough to remember ancient history from a couple of weeks ago?

    A real constitutionslist opposes policies because they’re unconstitutional that he or she would support otherwise. That describes me in reference to Trump’s attack against Syria. People who only selectively support the separation of powers and the proper role of democracy when it suits them to so because they agree with the policy of the moment are actually undermining the principle of limiting the government through the separation of powers.

    1. Well, her concepts sounded better in their original German.

      The “Leader” principle is one she seems to buy into heavily.

  16. The fact is that inflicting an unpopular immigration policy on the American people is like inflicting an unpopular war upon them–which is why both powers are enumerated to congress. We are not talking about “slavishly deferring to the will of the elected branches”. Immigration policy is within the proper purview of democracy. What Dalmia is arguing for is a form of elitist authoritarianism.

  17. The fact is that inflicting an unpopular immigration policy on the American people is like inflicting an unpopular war upon them–which is why both powers are enumerated to congress. We are not talking about “slavishly deferring to the will of the elected branches”. Immigration policy is within the proper purview of democracy. What Dalmia is arguing for is a form of elitist authoritarianism.

  18. Why do the open borders idiots not realize the ban is based on enhanced intelligence sharing and security? Saudi Arabia shares intelligence with us, Iran doesn’t. Hence why the ban. Iraq was also on the initial list but improved vetting and intelligence sharing and are now off the list. Why is this so difficult for idiots to understand?

    1. I’m an open borders guy who supports this travel ban.

      “Open borders” doesn’t mean what you think it means.

      I want my fellow Americans to support an open borders treaty with Mexico that would allow Mexican citizens to cross our borders without a visa by simply showing an ID–so that we can confirm that they aren’t wanted criminals, convicted felons, known ISIS members, etc. I want that treaty to be negotiated by our president and ratified by our senate–because it would make our border more secure if people were using legal checkpoints and the only people sneaking through the desert at night were the bad guys.

      Our biggest problem with Dalmia isn’t open borders. It’s that she’s disparaging of the proper role of democracy in immigration policy–and she’s advocating what amounts to elitist authoritarianism that is actively dismissive of the desires of the American people. yeah, I’m an open borders guy–but I don’t want to deprive you of your ability to influence immigration policy through democracy. The only thing you have to fear from me as an open borders guy is that I might persuade you to change your mind.

      1. I want my fellow Americans to support an open borders treaty with Mexico that would allow Mexican citizens to cross our borders without a visa by simply showing an ID–so that we can confirm that they aren’t wanted criminals, convicted felons, known ISIS members, etc. I want that treaty to be negotiated by our president and ratified by our senate–because it would make our border more secure if people were using legal checkpoints and the only people sneaking through the desert at night were the bad guys.

        I’d like to see some manner of voter ID law in here as well. I don’t really care about the border any more than I think/believe the other side cares about Russian hackers as much as we both agree that there’s some pretty obvious moral hazards to allowing foreign agents with no allegiance or ties to our country unchecked access to our voting processes (especially not lopsidedly).

      2. “I’m an open borders guy–but I don’t want to deprive you of your ability to influence immigration policy through democracy. ”

        Then you’re completely missing the view held by many libertarians, from Reason all the way to The Ayn Rand Institute, that free movement is a right, not subject to the waxing and waning of the democratic whim, just as free speech is not subject to it.

        They are baldly stating that the people of a country have no legitimate authority to abuse the right to free movement into that country. They couch it in terms of cultural arrogance, of racism. They couch it in pseudo-economic terms as if the current populace is engaging in some kind of protectionist, crony culturalism.

        Never mind that the flood of immigrants will vote these naive notions of freedom out of existence. THAT kind of cultural takeover appears to be just fine.

  19. These comments have not nearly enough Shikha hate.

    Where are all the comments demanding that Shikha go back to India? C’mon you’re just phoning it in at this point!

    1. Where are all the comments demanding that Shikha go back to India?

      Was this ever really a thing? I certainly could be wrong, but it seems like plenty of people have called her out on her racism and anti-nativism as well as the absolute babbling idiocy of her policy ideas but nobody’s insisted that she leave the country (at least not in any sort of deportation respect). It’s not like she can’t write for Reason from India or that her writing from India would make her notions any more or less incoherent.

    2. What have you got against India?

      1. Other than the fact that they have a caste system and tend to look the other way when women get gang-raped, there’s no problem.

    3. Where are all the comments demanding that Shikha go back to India? C’mon you’re just phoning it in at this point!

      Is Shikha actually a US citizen?

      In any case, under a skill based immigration system, she wouldn’t have stood a chance, and given the racist. sexist and bigot that she obviously is, I have little sympathy for her.

  20. It can’t check the Bill of Rights at the border because rights aren’t divisible.

    That’s weird. I’d swear that the 9th and 10th literally divide unenumerated rights among the states and the people.

    It’s a bit refreshing to see this stance compared to the old, pre-Trump Shikha and note that her bout with TDS merely shifted her focus without diminishing her batshit craziness.

    I don’t know how many times it can be said, the more Shikha writes, the more she discredits any and all causes she affiliates herself with.

    1. Unenumerated powers, actually. They are a general check on expanding federal power consistent with the understanding at the time that our federal government is (should be) a government of limited powers. Not that anybody really cares much about that these days.

  21. Yes but this is the brainchild of Trump, greatest libertarian ever, and it hurts brown people, by all evidence at least the 2nd most important libertarian agenda item.

    1. Tony is to strawmen as Umar Abdulmutallab is to suicide bombers.

      1. You idiots really need to figure out what a strawman argument is.

        1. You’re right, so let’s keep it simple. Your comment was simply stupid.

  22. ” Most immigrants who have committed terrorist acts in the U.S. were radicalized after admission.”

    How exactly do you get radicalized after admission if you don’t get admitted? There must be some way for that to happen, for this statement to lead to the conclusion that further restrictions on admission couldn’t be effective.

  23. More garbage from Shikha that non-Americans outside the USA are entitled to constitutional protections.

    You have to be subject to the constitution to receive its benefits. Non-Americans outside United States territory are not subject to the constitution. The US government has zero authority to protect the any free speech rights of French people.

    1. A letter writer in the Phila. Inquirer was recently arguing that a poem attached to the Statue of Liberty should have the force of law when it came to immigration. But the 2nd amendment to the U.S. Constitution should be disregarded.

    2. The bill of rights is about a prohibition on government.

      The First Amendment starts, “Congress shall make no law . . . ”

      Congress is charged with setting immigration policy by way of its enumerated powers in Article I, Section 8.

      Congress is prohibited in the First Amendment from setting an immigration policy that violates anyone’s freedom of religion.

      Democracy is the appropriate place to set all sorts of aspects of immigration policy by way of congress.

      No one’s First Amendment rights can be regulated by congress–not the rights of immigrants nor anyone else.

      Immigration across our borders, however, is not a right–which is why immigration is the proper purview of democracy.

      1. Congress is charged with setting immigration policy by way of its enumerated powers in Article I, Section 8. Congress is prohibited in the First Amendment from setting an immigration policy that violates anyone’s freedom of religion.

        No, Congress is prohibited from making laws that infringe the free speech rights or free exercise rights of the American people.

        Congress and the president have never been constrained when it comes to infringing the rights of foreigners on foreign soil. Obama and Hillary regularly got together and decided which civilians to kill with drones. Obviously, that would have violated the constitutional rights of Americans if the targets had been Americans, but obviously they didn’t have any legal problem doing it to foreigners. The check on that abuse of power was the voters, who decided to hand Hillary a humiliating defeat at the polls and elected an orange hairpiece instead.

        1. “No, Congress is prohibited from making laws that infringe the free speech rights or free exercise rights of the American people.”

          That has no basis in reality.

          Here’s what the First Amendment says:

          “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

          It doesn’t say anything anywhere about those rights only belonging to American citizens. In fact, according to the Constitution, the only rights you get because you’re an American citizen is the right to vote and the right to hold office. All the other rights you get were endowed to you by your creator.

        2. The framers were wildly hostile to the idea that government is the source of people’s rights, but there is a system of government where people only have rights because they’re citizens. It’s called “communism”. If you want to believe that people only have rights because they’re citizens or that people’s rights should only be protected by government because they’re citizens, then go be a communist. That’s what communism is.

          Regardless of what you choose to be, telling people that the First Amendment only prohibits congress from violating the First Amendment rights of U.S. citizens is a lie. It has no basis in the Constitution whatsoever. And if you have to lie to justify discriminating against immigrants because of their religion, then you’re undermining the constitution–which makes you a disloyal American.

          How’s it feel to be an enemy of the Constitution?

      2. Article 1, Section 8 addresses “naturalization,” not “immigration.” It’s much less clear that the Constitution gives the federal government control over the latter.

        Article 1, Section 9 prohibits Congress from passing laws restricting the “migration or importation” of persons that any State saw fit, until the year 1808.

        It’s generally viewed as the “Congress won’t stop the importation of slaves until at least 1808” provision, but could be relevant to this discussion?it suggests that immigration was a state policy and would remain so (at least until 1808). Does it imply that it would become a federal issue after 1808? Maybe, but I’m not big on implied powers for the federal government, particularly in light of the 10th Amendment.

        SCOTUS has typically relied on some sort of “well, controlling borders is part and parcel of sovereignty, so even though it’s not in the Constitution, it kinda has to be a thing.” That’s probably right, but I still don’t like the “well, we didn’t give the government that power, but the government NEEDS it, so let’s jist pretend we did” rationale.

        1. “Article 1, Section 8 addresses “naturalization,” not “immigration.” It’s much less clear that the Constitution gives the federal government control over the latter.

          Naturalization covers the entire process from coming here as an immigrant through becoming a citizen. To suggest that the framers only wanted congress to set “uniform rules” to cover the very last step in that process is absurd–especially when you consider that the right to vote was initially restricted to people who owned a certain amount of land, etc.

          The idea that the framers intended to let hundreds of millions of people come here from all over the world with no legal way to regulate that is also absurd. Once again, inflicting an unpopular immigration policy on the American people against their will, over their objections, and with no democratic input by way of congress is like doing the same thing by declaring an unpopular war without any input from the American people or inflicting an unpopular tax on the American people without any input from their representatives in congress.

          Does the statement, “No taxation without representation” ring a bell?

          This is why setting the uniform rules of naturalization is enumerated to congress in the same place as the power to tax and the power to declare war.

  24. I agree that the ban is probably not great policy, but that is not the question that SCOTUS must answer. Does the Executive have the power to direct foreign affairs and determine which aliens should be excluded due to national security concerns? Is the Court the best forum to deliberate on national security concerns and tease out political rhetoric from the motives of the President….and all of his advisors? What if there are genuine visa oversight concerns in countries like Yemen and Syria…does the Court’s sensitivities about disproportionate impact on Muslims out-weigh Executive branch national security concerns? Will the Court be answerable to the American people if its policy preference is wrong and leads to bad actors acting badly in this country? It is an entirely reasonable conclusion to assume that the U.S. is fighting a defensive war against radical Islam and that the Executive branch has a legitimate national security goal of implementing a screening process that vets for Islamic radicalism. We can disagree that this is a wise policy….and vote out this administration in 2020. However, the Constitution is not suddenly a suicide pact because sharia supremacy shrouds itself in religion. We have a long tradition of excluding aliens adhering to subversive ideologies. This is just one more example.

  25. dr;sd

    One of the more interesting editorials of the last 2 years was one in WaPo arguing against Trump’s travel ban… while noting that the Supreme Court has upheld similar actions multiple times over the last 200 years.

    Ranging from prior total-bans of Muslims, to Anarchists, to bans of people from specific countries (or lists of)

    Basically – whether you try and say, “the executive can’t propose any policy which openly discriminates against X”… (where X is religon, political affiliaton, or mere nation of origin)… you’re probably legally wrong.

    Chester A. Arthur banned chinese immigration in 1882.
    Teddy Roosevelt banned anarchists in 1903
    Truman banned communists in 1950
    Jimmy Carter banned Iranians in 1979

    You can not like these policies for whatever reason, but that they’re constitutional isn’t really in doubt. If you don’t like the politicians who use this constitutional authority, vote against them.

    And if you think the court should over-rule the constitution because it appeals-to-your-feels? Well, i think that’s probably a very stupid argument to ever make.

    I will take a wild guess that is, of course, exactly what SD argues for.

    1. *for clarity: “the executive can’t propose any immigration policy….”

    2. and, neither here nor there…

      AP: Trump seems likely to win travel ban case at Supreme Court

      it notes there are different cases making arguments on the above-mentioned religious + nationality questions…

      “The Supreme Court is considering whether the president can indefinitely keep people out of the country based on nationality. It is also looking at whether the policy is aimed at excluding Muslims from the United States. A decision is expected by late June.”

      and i think the precedent is pretty clear on both; any ruling on one would likely go the same way w/ all of them. iow, i don’t think, legally, the distinction matters at all

    3. And of course, Obama famously issued a travel ban focused on the same seven countries that are the focus of this travel ban. But that was OK because Obama was our first Black President so, ya know, it was all good.

  26. “few outside ultra-restrictionist circles would grant that the government has carte blanche to restrict any foreigner without a really good reason”

    Uh, no. Not even close. Your position is backwards. It’s the definition and nature of national borders to exclude foreigners for any reason. No one has a right to enter the U.S. I happen to think legal residency isn’t a right, either, but most certainly everyone else besides legal residents, legal visitors and citizens has no right to be here.

    And, sorry, no, your Constitutional arguments don’t hold water either. I think it’s a distortion of the Bill of Rights to suggest that it protects foreigners, on U.S. soil or no, and most certainly not those who are here without legal status.

    Even more broadly, the libertarian affair with the “living Constitution” people was grossly ill-advised. Sure, there’s no right to privacy, for example, without it, but that’s just the nature of the problem, not an overwhelming argument in favor of that particular solution. All it did was enable extremist political ambition and nourish the divisiveness we’re now suffering under, by offering fantasies of getting everything you want. If you legitimize a weapon like the free-form, loosy-goosey interpretation of the Constitution indulged in by “living Constitution” people, you can’t be surprised if it gets coopted by both sides to make the Constitution no barrier to their anti-liberty ambitions.

    1. I wouldn’t conflate the concept of a “living Constitution” with the idea that people have rights that aren’t specifically listed in the Bill of Rights.

      The former is manufacturing *constitutional* rights. The latter is recognizing *natural* rights.

  27. Indeed, it is very surprising even the editorial page of the Wall Street Journal uber-hawkish believes that the prohibition will do nil to keep America safe from terrorist attacks. That’s a decision that is beyond the common people’s thinking

    Hongkong pools

  28. Poor Shikha, she’s going to be so disappointed.

  29. It will only mean that it has to do so in a manner consistent with the Constitution. It can’t check the Bill of Rights at the border because rights aren’t divisible.

    First of all, if the travel ban were a Muslim ban, there would be nothing wrong with that constitutionally. The US has a two centuries long history of discriminating against foreigners based on national origin, religion, and race in immigration matters, and much as you may not like that, it has never been unconstitutional before.

    Second, Trump’s travel ban is not a “Muslim ban” in any way, shape or form for the simple reason that it doesn’t ban Muslims. It doesn’t even ban most Muslims. It bans some Muslims and some non-Muslims, mostly from shithole countries with hostile or dysfunctional governments. It’s not Trump’s fault that many shithole countries in the world are predominantly Muslim.

    However, if you want more diversity in the ban, that can be accomplished. Maybe we can ban Indian intellectuals like yourself? What are you actually contributing to this country?

    1. DING DING DING

      We have a winner! He can ban whoever he wants. People are free to not like it… But if you deny his legal powers, that’s just subverting rule of law. Which is even worse than having a “bad” policy in place. I for one am fine with it, but that’s the position a sane person who is against it should take.

  30. “travel ban 3.0”? More like 1.2.

  31. Seems Shikha has not even READ the text of the “travel ban” SCOTUS are examining. I’d suggest you go back and DO SO.

    It was not a “ban” at all, It merely SUSPENDED entry from a few named nations UNTIL systems can be put in place to more accurately vet individuals who are seeking entry into the US from those nations.

    The list of those nations being restricted came from Obama, who had examined the situation and declared that these nations posed an uniquely high risk because of their lack of infrastructure enabling satisfactory vetting of subjects seeking entry. Trump, in his original EO, had asked a moratoriumo on entries from those nations UNTIL means could be found
    Obama’s list is NOT based on those countries being moslem. No, entirely on the accuracy and availabliltyof records of individuals. The FACT that most of the nations are primarily moslem says more about the carelssness of government recordskeeping of moslem nations in general than that they are moslem. The history of that jihadi bride half of the dynamic duo shot up the San Bernardino Christmas Party a couple years back is one case in point. She had lived in several different contries, some of them on that list, prior to her hornswoggling CBP into letting her come here… to murder innocents as “infidels”. More “sweethearts” like her we DO NOT NEED in this nation.

    1. NO ONE who is not a legal US citizen or resident of the US has ANY right to enter the US on any basis. The rights, immunities, privildeges, guaranteed Americans withinthe Constitution are NOT universally applicable to non-residents

      Your bemoaning the “checking of our rights at the door” is right and just… since WHEN does anyone in France, Italy, Jordan, Egypt, Turkey, possess ANY rights under OUR Constitution? Those rights pertain ONLY to those resident within the US, citizens of this naiton resident anywhere, AND subject to the jurisdiction of the US and their state of lawful residence. They accrue to no one else. And that INCLUDES residents of all of the nations named in Trump’s EO governing entry into the US from those nations.

  32. Overturning the rule of law won’t help libertarianism. The result allows only the rule of power (fascism). It’s clear whether you agree or disagree concerning immigration that this is a constitutional use of presidential authority, so throwing it out creates a political Supreme Court and a governmental system that is not based on law but on any means necessary justified by one’s political views. Given the fanatical nature of political partisans and their fascistic tendencies to exert their will upon libertarian bystanders, this would be a significant step toward american despotism.

  33. NOPE. Keep the ban, and they will.

  34. “It can’t check the bill of rights at the border” ? But if the government does not let people into the country then the bill of rights won’t apply. No?

  35. Never expect the Supreme Court to protect liberty and limit the power of the federal government. If that actually happens, it is an accident.

    The members of the court are devoted to federal power because they are at the pinnacle where they get to decide how that power should be utilized. They sold their souls long ago so that they could gain access to power or they wouldn’t be where they are today.

  36. You know, if we had never passed the 1965 immigrant act that began the slow ruination of America, we wouldn’t be arguing about stupid shit like this. We wouldn’t have idiots like Shikha living in our country advocating for more foreigners who don’t respect our country or its laws, traditions, etc either.

    I really hope the country splits in two. It’s the only way out of this madness. One version can go on with the failing socialist-globalist plan, and the other can return to being America.

  37. You can debate the merits of the policy all you want, but no Libertarians should advocate for the judiciary to create law from the bench where authority has clearly been delegated by congress to the executive branch.

    Slippery slope.

  38. The Bill of Rights does not apply to non-citizens living in other countries.

    Why is this so hard to grasp?

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