Travel Ban

Trump's Expanded Travel Ban Compounds the Wrongs of Previous Versions

The courts may not strike it down. But it remains both illegal and deeply unjust.

|The Volokh Conspiracy |

On Friday, the Trump administration announced an expansion of its travel ban policy that covers six new nations, which are added to those included in Travel Ban 3.0, announced in September 2017. While there are some differences between the restrictions imposed on citizens of the newly added nations and those of countries previously on the list, the expanded travel ban is still deeply unjust, still targets Muslims, still does nothing to protect national security, and is still likely to harm it at the margin. While courts may well ultimately uphold the policy against legal challenges, that is because of flaws in the Supreme Court's ruling on the previous travel ban, not because the new one actually deserves to be upheld.

Under the newly expanded policy, nationals of Eritrea, Kyrgyzstan, Myanmar and Nigeria will no longer be allowed to acquire immigration visas. Those of Sudan and Tanzania will no longer be eligible for "diversity" immigration visas (which are normally available to citizens of countries that otherwise generate few immigrants). Unlike the countries included in earlier travel bans, nationals of  countries newly added to list are not subjected to a near-total ban on entry into the United States. Their citizens are still eligible for non-immigrant visas, and those of Sudan and Tanzania can still apply for non-diversity visas.

Despite these differences, the expanded travel ban still inflicts cruel injustices in ways similar to previous versions. It is also similar to previous versions in the ridiculously weak nature of the national security rationale for imposing it.

I. Why the Expanded Travel Ban is Unjust and Counterproductive.

The most obvious consequence of the travel ban expansion is that thousands of people from these countries will be denied the opportunity to live in greater freedom and prosperity than is possible in their poor, corrupt, and sometimes oppressive countries of origin. And they will be denied through no fault of their own, but merely because they made the mistake of being born to the wrong parents or in the wrong place.

Current American citizens with family in the four countries subjected to a total ban on immigrant visas will also suffer because they will be unable to bring in close relatives—including even parents or children—to live with them on a permanent basis. This will predictably lead to gratuitous cruelty similar to that we have already seen under the current travel ban. The suffering may be somewhat lessened because the relatives in question will be eligible to apply for temporary visas. But they will not be able to join their families on a permanent basis.

Americans with no direct personal connections to these countries will suffer in more indirect ways. They will lose out because the US will be denied the economic, social, and cultural contributions made by immigrants from these countries. Nigeria is by far the most populous nation on the new list, and the one that currently sends the most immigrants to the US.  Nigerian immigrants are notable for being among the most successful of any ethnic group in the US, making major contributions to the economy, and attaining education levels well above those of any other group, including native-born whites. Eliminating immigration from Nigeria won't make America great again. It'll just make us poorer, and also make us look like ignorant bigots to boot.

The supposed rationale for the expanded travel ban is improving security against terrorism. But, as  Alex Nowrasteh of the Cato Institute explains, the security threat from immigrants from these six nations is already miniscule. From 1975 to 2017, only six deaths in the US are attributable to terrorist attacks  by immigrants from these countries, only one of which might have been prevented had the restrictions imposed by the expanded travel ban been in place throughout this period. Significantly, only one terrorist attack over that entire period (a nonfatal one) was attributable to an immigrant from Nigeria, which  accounts for the lion's share of the people excluded under the new policy. That rate is lower than the rate of terrorism among native-born Americans. And if terrorism were the real concern, it makes little sense to focus on immigrant visas, since a terrorist can just as easily make use of a tourist or other temporary visa.

Far from improving the security situation, the new policy is likely to make it worse at the margin. This is another trait it shares with its predecessor. Several of the nations on the list are key US allies in the War on Terror, and provide useful intelligence and other cooperation. Nigeria is probably the most significant. The expanded travel ban has already caused predictable outrage in that country, and could easily lead them to curtail cooperation with US anti-terrorism efforts. Sudan recently began to transition from an Islamist dictatorship to a more liberal fledgling democracy. Its inclusion in the travel ban won't make the US popular there, either, and could easily impair cooperation, as well.

The administration also claims that the new policy is necessary to pressure the six nations into expanding information-sharing about immigrants and visa applicants. But if the threat posed by entrants from these countries is already miniscule, it is hard to see why that information is needed. It's extremely difficult to achieve reductions in an already miniscule risk. The US government doesn't suffer from a shortage of useless information in its files. At they very least, the desire to acquire information likely to have little or no value should have been pursued by less draconian means than barring large numbers of immigrants.

Moreover, it is worth noting that a similar information-sharing justification was trotted out to justify the previous travel ban. But, as it turns out, it was not consistently applied, and was almost certainly a pretext for Trump's real motivation of targeting Muslims. We don't yet have a comparably detailed analysis of the information-gathering justification for the expanded ban. But it would not be surprising if it were similarly bogus.

The new ban is also similar to its predecessor in targeting Muslims, though to a somewhat lesser degree. The previous travel bans were, of course, a direct outgrowth of Trump's campaign promise to impose a "Muslim ban." And even after he shifted to a "territorial" policy of focusing on nations with large Muslim populations, Trump repeatedly tied the latter to his earlier campaign promise, and equated the two. Elsewhere, I have explained why the anti-Muslim focus of the earlier travel bans is not vitiated by the fact that they did not exclude all the Muslims in the world, but "only" some of them (see here and here).

Three of the nations included in the expanded travel ban are majority-Muslim: Nigeria, Kyrgyzstan, and Sudan, though in the case of Nigeria, it is not clear whether Muslims are a majority of about 51% or "merely" a plurality of about 46%. Two others—Tanzania and Eritrea—have large Muslim minorities, of  about 35% and 48%, respectively. Muslims are only a very small percentage of the population in Myanmar, but most belong to the Rohingya ethnic group, which is subject to brutal persecution by the majority population, and is one of the most severely oppressed minority groups in the world. Rohingya can still potentially apply for entry as refugees. But, with the Trump administration's gutting of refugee quotas, they have little if any chance of success.

The overall anti-Muslim focus of the travel ban focus becomes even clearer when we assess the expansion in combination with the previous version. It then becomes evident that, with the exception of Myanmar, all the nations targeted for meaningful restrictions have Muslim majorities, or very large minorities, and that Muslims are constitute a large majority of the total number of people affected. In this post, I explained why the inclusion of Venezuela and North Korea in Travel Ban 3.0, was not meaningful, because the number of people affected by the new restrictions imposed on those countries was infinitesimally small.

And you don't have to take my word for the fact that the expanded travel ban isn't a separate new policy, but rather an expansion of the previous one. You can take that of Donald Trump himself, who recently described it as "adding a couple of countries to [the earlier policy]."

Much of the above could be dismissed as morally irrelevant if you subscribe to the theory that governments have the right to exclude migrants for virtually any reason they want, much like owners of private houses or clubs can exclude would-be entrants. But such theories have serious flaws, for reasons I outlined here, and in greater detail in Chapter 5 of my forthcoming book on freedom of movement.

II. The Expanded Travel Ban May Well Prevail in Court—But Only Because of Grave Flaws in the Court's Ruling in Trump v. Hawaii.

Despite its many flaws, Trump's expanded travel ban could well be upheld by the courts against the nearly inevitable legal challenges to it. Co-blogger Josh Blackman, a longtime defender of the legality of the various travel bans, is probably right about that. Where he goes wrong is in thinking that this state of affairs should be celebrated as based on a correct interpretation of the law, as opposed to lamented for distorting it.

For reasons already discussed above, the new policy and the old are a unified whole, and that unified whole has a clearly anti-Muslim focus. Not merely because the vast majority of the people excluded are Muslims, but because that disproportionate effect is the likely motive for the president's actions. In most areas of policy, a seemingly neutral government action that is so clearly intended to discriminate against a specific religious minority would be presumptively unconstitutional. Indeed, the same justices who upheld Travel Ban 3.0 ruled against the government in a case with weaker evidence of discriminatory motivation just a few weeks earlier, in the Masterpiece Cakeshop decision. And the extreme weakness of the security rationale for the travel ban would doom the government's efforts to claim the policy should be upheld because it would have been enacted anyway, for legitimate reasons.

In Trump v. Hawaii, the court nonetheless upheld the travel ban on the basis that immigration policy is exempt from most normal judicial protection against violations of the Bill of Rights. For reasons I have covered previously (e.g. here and here), that ruling is at odds with the text and original meaning of the Constitution, and has other flaws, as well. But it is on the books, and will make it very difficult, at best, to challenge the expanded travel ban based on discriminatory motivation. But the expanded travel ban should remind us of the severe flaws in the earlier travel ban ruling, and the need to get it overruled.

The expanded travel ban also highlights a second flaw in Trump v. Hawaii, one less familiar to nonexperts. The Court ruled that the president was authorized to impose the travel ban based on 8 USC Section 1182, which gives him the power to bar entry into the US by any foreign national whom he deems to "detrimental to the interests of the United States." In so doing, Chief Justice John Roberts' majority opinion brushed off any possible conflict with 8 U.S.C. Section 1152(a), which bars discrimination on the basis of nationality in the issuance of immigration visas, by reasoning that issuing a visa is not the same thing as denying entry. However, this ignores the whole point of a visa, which is precisely to create a right to enter the United States. A visa is not a document that has any other value; no one gets them for simply clerical or decorative purposes; you can't wallpaper your house with them! Normally, Section 1152 would supersede 1182 whenever the two conflict, because it was enacted in 1965—thirteen years after 1182 was adopted.

If not for this part of the Court's ruling, the expanded travel ban—and major parts of Travel Ban 3.0—would be clearly illegal. Both undeniably discriminate on the basis of nationality in issuing immigration visas.

Under Roberts' reasoning, Section 1182 becomes a near-blank check for the president to exclude almost any would-be entrant he wants, for almost any reason. That makes it an extraordinarily broad delegation of legislative power to the executive. Justice Gorsuch and other conservatives (rightly, in my view) concerned about the need to enforce non-delegation constraints on executive power would do well to focus on this case, and also on the equally egregious delegation of power to impose tariffs on foreign goods.  If these are not examples of unconstitutionally broad delegation, it is hard to imagine what would be. And, if conservatives contend that trade and immigration are somehow arbitrarily exempt from nondelegation principles that should apply everywhere else, then they can hardly claim that nondelegation is a meaningful, neutral rule of constitutional law.

Josh Blackman may be right to conclude that the expanded travel ban portends a massive expansion of new travel bans imposed at the whim of the executive, should Trump be reelected (or should a like-minded president come to power in the future). But that's yet another reason to condemn Trump v. Hawaii—and to look for ways to get it overruled or at least narrowed in scope by applying nondelegation principles.

The legal and political battle over the expanded travel ban is just beginning. It is possible someone will find a legal vulnerability I have not thought of. For the moment, however, the prospects for a successful legal challenge do not look good. But that does not change the reality that the new policy is unjust, counterproductive, and at odds with a sound understanding of the Constitution.

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  1. You are possibly half right. This ban is likely legal.

    You have a problem with the morality; others do not.

    That is your opinion, and you have a right to that. But is is debatable, and for now you are on the losing side.

    1. You have a problem with the morality; others do not.

      When did improving our economy and giving people a chance at a better life become immoral?

      Oh that’s right – you believe breaking up families and locking up children is somehow moral. Racism is always on the losing side of history.

      1. It’s not, and we aren’t arguing that it is. We argue that its not a moral imperative to allow anybody and everybody into the country. We can’t help everybody. We need to be selective of who we help.

        1. Yes you are. If you defend those policies you are certainly arguing that they are moral.

          Don’t crawfish away from the obvious implications of your positions.

          1. Clearly, the policies are just. This is for one basic reason: a predictable portion of the illegals will perpetrate criminal “parody” once they are in the country. We all agree, don’t we, that there is nothing unjust about laws banning certain forms of inappropriately deadpan “parody”; ergo, there is nothing unjust about laws banning a class of potential perpetrators. It is, in fact, our primary duty to direct as many of our resources as possible to fighting the scourge of inappropriate “parody” wherever it should arise, along with criminal libel of all sorts. See, for a case on point, the documentation of our nation’s leading criminal “satire” case at:

            https://raphaelgolbtrial.wordpress.com/

      2. Nice ad hom you got there. If you believe that I am racist for wanting the law enforced as written and adjudicated by the USSC, then I guess I am racist.

        You want the law changed, then let’s have the debate based on logic and reason, not your feelings.

        1. Your first reaction to Ilya’s post did not address any of his arguments using logic or reason. You whined about how “that’s just your, like, opinion, man.”

          You’re hardly one to talk about demanding such a response from anyone else.

        2. The fact that one “wants the law enforced as written” does not automatically disprove a charge of racism. Forcing Homer Plessy to sit in a separate railroad car was enforcing the law as written. (And, after 1896, as adjudicated by the USSC.)

          1. Immigration laws are race-neutral.
            Claims that enforcing them are racist is a massive straw man argument and clearly an ad hominem.

      3. The United States shouldn’t be the world’s policeman, righting the morals wrongs of poor, corrupt, and oppressive countries. We have a moral obligation only to accept those immigrants that we anticipate we can profit from. If it’s unlikely that a prospective immigrant will quickly adjust to his new home, earn a high income, and pay substantial taxes that exceed the cost of government services that they use, we should reject him. As Ilya says, it’s true that it’s not his fault that he was born in the wrong country or to the wrong parents but it’s not our fault, either.

      4. Was America also supposed to be Superman of the World when your compatriots were whining about the nation building in Iraq and Vietnam?

      5. McClatchy: Yes, Obama separated families at the border, too

        Quote:
        President Barack Obama separated parents from their children at the border.

        Obama prosecuted mothers for coming to the United States illegally. He fast tracked deportations. And yes, he housed unaccompanied children in tent cities.

        …Obama’s policy helped create the road map of enforcement that Trump has been following — and building on.

    2. Ilya Somin remarkably actually acknowledged the existence of section 1182!

      8 U.S. Code § 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.

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

  2. You know, for most of the time that Obama was using his pen and phone to craft law out of thin air, people on the political right were warning us that someday some asshole that isn’t as easy to agree with would be in power and maybe he’d use his pen and phone in a much less likable way. The left’s response was something close to “but Obama’s soooooooo dreamyyyyyyyy”.

    Well, guess what went and happened.

    Same thing applies to impeachment, BTW. The left is having a cow that the president can do bad shit and not get punished for it, but guess who fucking established the precedent 20 years ago?

    Reaping what you sow can sometimes suck if you’re not more careful about what you’re sowing. I don’t like Trump at all, but the Democrats and the left are due exactly zero sympathy that the right is using their playbook.

    1. Bingo, give that lumberjack a cigar!

  3. TL;DR

    Borders bad!

  4. “The most obvious consequence of the travel ban expansion is that thousands of people from these countries will be denied the opportunity to live in greater freedom and prosperity than is possible in their poor, corrupt, and sometimes oppressive countries of origin. And they will be denied through no fault of their own, but merely because they made the mistake of being born to the wrong parents or in the wrong place… Americans with no direct personal connections to these countries will suffer in more indirect ways. They will lose out because the US will be denied the economic, social, and cultural contributions made by immigrants from these countries.”

    This isn’t a carefully tailored and nuanced legal and policy argument against the expanded travel and immigration restrictions or recent SCOTUS jurisprudence, something I generally expect and enjoy on this blog, but rather it’s a very blatant demand for open borders and mandatory “multiculturalism”.

    If you want to know why Trump was elected, Brexit occurred, and other right-of -cent populist policies are expanding across the planet, you need only peruse much of this article.

    1. Exactly. It’s a baby crying argument and has nothing to do with legal arguments, and its a bad policy argument. It’s the modern “BUT WONT YOU THINK OF THE CHILDREN”

  5. Prof. Somin, what exactly is cruel? (Cruel: willfully causing pain or suffering to others, or feeling no concern about it.) What, exactly, is unjust? (Unjust: not based on or behaving according to what is morally right and fair.)

    I’ll tell you: having a welfare state paid for by the wage-earning citizenry, and inviting the world to come and take advantage of it.

    1. willfully causing pain or suffering to others

      People want to come here to escape oppression and violence and policies you openly support is willfully causing pain and suffering to others.

      having a welfare state paid for by the wage-earning citizenry, and inviting the world to come and take advantage of it.

      And yet – not a single word of this is true.

      1. regexp, you don’t make a compelling argument, at all. We DO have a welfare state here, and it IS paid for by the citizenry. Those words are true, Just saying they are not true, just being contrary, does not negate the statement, or the truth.

        Second, what do you mean my “policies you openly support?” What policies that I support are people coming here to escape?

        You are deranged.

      2. If its so terrible they can stay back home and avoid our cruelty. Problem solved.

    2. If anyone in the world doesn’t get exactly what they want, it’s cruel and unjust. Meanwhile, if Americans want something, they can fuck right off.

      That may not be the intended message, but it’s the one that fits best.

  6. Somin knows better than the SCOTUS.

    1. Sometimes I think he does. But when it comes to immigration, he just loses his mind, he can’t think objectively about the topic.

      1. Think objectively = agree with me.

    2. On this topic, no no he doesn’t. He’s dead wrong.

  7. “the expanded travel ban still inflicts cruel injustices”

    I’m struggling to take this seriously.

    1. It’s a cruel injustice that everybody else in the world doesn’t get to live in the US. That’s the substance of his argument.

      It’s certainly disadvantageous to them, most of the world makes our slums look wealthy. And it’s not “justice”, in the sense that it isn’t the result of actions based on desert.

      But injustice generally requires more than hard luck, it requires harm willfully applied, or denial of rights.

      And, nobody outside the US has a right to move here.

      That’s where Ilya disagrees. He thinks they do.

    2. I can’t imagine asking a bunch of law professors what is just; why would they be any better than anyone else at that? Certainly no intelligent person would hold up law schools or universities as bastions of justice. But one does expect them to be knowledgeable about the law, and the claim that an executive order will be upheld by the courts but is still illegal is just meaningless.

      1. Good, so don’t ask them. Or read their blogs.

      2. “and the claim that an executive order will be upheld by the courts but is still illegal is just meaningless.”

        Only if you’re a legal realist, who thinks that “the law” is just predictions about how courts will rule, and nothing more.

        The problem here is that Ilya IS a legal realist, much of the time. When the courts are ruling a way he likes, and somebody gives principled arguments why they’re wrong, he’ll fall back on that “I’m just explaining what the law IS, not what it should be” line.

  8. This piece seems to be predicated on categorizing the topics of tariffs and immigration with trade and travel (which are Congress’ policy areas to legislate about) rather than with foreign policy or national security (both areas which belong to the president). SCOTUS appears to have categorized them the other way. This is what I would expect; the courts have always given presidents a high degree of deference in those two areas.

  9. Yes, because it doesn’t go far enough.
    Why should taxpayers be saddled with even more of the burden of feeding, housing, clothing, educating, etc. for the world’s poor?
    Nothing Libertarian about government programs that invite even more low IQ third worlders that don’t have the means to pay for themselves and their offspring, onto the backs of US taxpayers.

    1. Isn’t there a cloud you should be shouting at?

      1. Isn’t there a ‘dreamer’ should be blowing?

  10. I think we should go much further and have a ten year complete ban on immigration. Build a wall. Deport illegals. Those with green cards can stay as long as they are self sufficient. After ten years we can reassess.

    1. I’m with you on that: Deport ALL illegals, regardless of how long they’ve been here. We need to establish that no temporary decision to skip enforcement is going to be allowed to establish facts on the ground that can’t be undone.

  11. Truth:

    “The travel restrictions imposed by the President today are tailored to the country-specific deficiencies identified during the review process and an assessment of travel-related risk. The new restrictions imposed by the President are less restrictive than the existing restrictions. Like the seven countries that continue to face travel restrictions pursuant to Proclamation 9645, the six additional countries added for restrictions are among the worst performing in the world; however, there are prospects for near-term improvement for these six countries. Each has a functioning government and each maintains productive relations with the United States. In each case and consistent with those restrictions imposed in 2017, the President has imposed specific travel restrictions to mitigate the risks posed. The restrictions imposed by this proclamation reflect the U.S. government’s greater confidence that these countries can make meaningful improvements in a reasonable period of time.

    If that expectation is met, the President may remove travel restrictions at any time. Conversely, the President has also determined that if improvements are not made, additional restrictions may be added. Those travelers who have already been issued visas by the U.S. government will not be affected by the new restrictions.”

  12. Most of your complaints seem to be policy oriented, definitionally NOT constitutional or legal in nature.

    Right, you think it’s a bad policy. Trump thinks it’s a good policy. This may just have something to do with him being elected President, rather than somebody you’d have preferred more.

    The claim of religious animus at least has a fig leaf of constitutional relevance, but suffers two major flaws.

    First, any rational travel ban is going to inevitably target Muslim nations more than others, because of the brute fact that most state sponsors of terror and failed states incapable/unwilling to help with vetting are Islamic majority states.

    Second, the travel ban just doesn’t look like it was focused on religion: You’re banned regardless of your own religion, most Islamic states are not covered, some states that aren’t particularly Islamic are covered.

    Essentially, what it comes down to is, you want open borders, claiming religious animus seems the only plausible route to getting this deviation from open borders struck down, so, no matter how poor a fit it is to the actual policy, you declare it a Muslim ban.

    Look, we get it, you don’t like Trump’s policies. That’s not a constitutional argument, and you’re not doing a good job of dressing it up as one.

    1. Look, we get it, you don’t like Trump’s policies. That’s not a constitutional argument, and you’re not doing a good job of dressing it up as one.

      Look, we get it, you and Trump are openly racist. At least admit it and you wouldn’t waste so many words on rationalizing it.

      1. We know when people like you say we are racist, what you really mean is that you aren’t racist, but you don’t like our policies, so you call us racist in an attempt to silence us. It won’t work.

      2. Name-calling in lieu of argument. Sad.

      3. It’s not just Trump!

        Obama DHS Sec. Jeh Johnson ‘Freely Admits’ They Detained Children, Families: ‘We Believed It Was Necessary’

        Quote:
        On Fox News Sunday, host Chris Wallace interviewed former DHS Secretary Jeh Johnson, who said that under President Barack Obama, they did detain some children alone and some families together, two policies for which Donald Trump has been under considerable fire.

        Wallace showed now infamous photos from 2014 of children in detention and asked if the Obama administration had handled things “so well.”

        “Without a doubt the images, and the reality, from 2014, just like 2018, are not pretty,” said Johnson. “We expanded it, I freely admit it was controversial, we believed it was necessary at the time, I still believe it is necessary to remain a certain capability for families.”

        Johnson also addressed another phrase that has come up many times in the last week, saying directly that “we can’t have catch and release” and stating that under his DHS in the Obama administration they “deported or repatriated” over a million people.

      4. We get it.
        When you use the racist card, it means you have no substantive argument to offer.

  13. “the expanded travel ban is still deeply unjust,”

    It is not

    ” still targets Muslims”

    It does not

    “ still does nothing to protect national security”

    yes it does

    “and is still likely to harm it at the margin.”

    no it won’t

  14. How does it make sense that countries like Nigeria will “curtail cooperation with US anti-terrorism efforts”? The list is a list of countries that don’t provide adequate documentation to identify and otherwise background-check possibly risky entrants. Wouldn’t the obvious response be to start providing that documentation in order to get off the list?

    This series of posts has a strange no one’s understanding of this issue matters except mine quality. That hole gets deeper each time. The rest of us will be up here paying attention to the way things actually turn out.

    1. “The list is a list of countries that don’t provide adequate documentation to identify and otherwise background-check possibly risky entrants.”

      It’s like you just don’t bother to read words you don’t like:

      “And if terrorism were the real concern, it makes little sense to focus on immigrant visas, since a terrorist can just as easily make use of a tourist or other temporary visa.”

      Laughably, you claim to ‘pay attention.’

      1. Ah, the old “if we can’t stop all of the problem, we shouldn’t try to stop any of it” argument.

        1. Ah, the old “I heard this phrase once before somewhere and wrongly think that it applies here” argument.

  15. I’m not sure that running a vast network of Section 419 frauds counts as making Nigerians more successful than other African migrants.

    I do know from my time in the UK that everyone (and especially other Africans) loathed Nigerians as acting even more arrogant and entitled than a French Railways Union member on strike.

  16. elections have consequences, comrade.
    this is the most trite drivel written on this fine blog.

  17. Just for the sake of argument let’s assume that Trump is discriminating against Muslims in the countries named. I’m always amazed at how discrimination against foreign nationals living in other countries can somehow be unconstitutional. The Constitution does not protect foreign nationals, unless they are legally inside the US. On the other hand, using this logic could end up saving the USA tens if not hundreds of billions of dollars. If foreign nationals get 1st amendment protection then they surely get 4th amendment protection. Down goes 95% of the NSA. And 5th and 14 amendment protection. Down goes most of the CIA, and all the “police action” foreign wars, which is every war we’ve been in since WW2. Can’t deprive the Taliban of life and liberty without due process. Will Ilya Somin be the Taliban’s lawyer when they sue the US?

    1. sigh. For the eight billionth time, the constitution acts to restrict the actions of government in all areas, including immigration policy. To that very tiny extent, I suppose you could say the constitution does protect foreign nationals, at least the ones who wish to come to the US. The government cannot exclude immigrants solely on the basis of religion, as President Trump’s travel ban is alleged to be doing. There are obviously lots of other reasons they can be excluded.

      1. There’s zero evidence that the founders intended it to restrict the government with respect to immigration, nor has the Supreme Court ever ruled such.

        1. They really shouldn’t have put ‘shall make no law’ in the text, then.

          1. Don’t be a moron.

        2. The dozens of immigration related cases on which the Supreme Court has granted cert and decided would seem to suggest otherwise.

  18. In Lawrence v. Texas, the Supreme Court Majority questioned the use of morality as a basis for public policy.

    Professor Somin’s argument is essentially a morality argument. He argues that bans on the movement of people are, in essence, sinful. His concept of justice is of essentially the same sort as the one espoused by the anti-abortion crowd. It is based not on increasing Americans’ freedom of choice, but rather, on constraining them based on ancient ideas of sinful behavior.

    The courts in recent decades have increasingly argued that sin-based morality is not a proper basis for public policy in a secular argument. It seems a tough sell that when it comes to Professor Somin’s own peculiar notions of sin, what the constitution forbids is now required.

    I personally think morality is a completely legitimate basis for legislation. I would apply that across the board. I don’t go easy on people who claim that morality isn’t a legitimate basis, except when it happens to be their own..

    1. There is a difference – a huge difference – between arguing that the government ought not be in the business of imposing some people’s ideas of morality on individuals and arguing that the government itself ought to bring moral considerations into its decision-making.

      In fact, the two cases are not remotely comparable.

      1. I don’t quite get it, morality is always subjective. There are going to be some moral judgements that are almost universal, and some that are readily apparent to some are totally abhorant to others.

        For instance there is a large cohort that thinks creating a rental market for young children as “get out of jail free” cards at the border is the moral thing to do.

      2. The Trump administration is arguing that immigrants violate Americans’ individual rights, taking their jobs, committing crimes, generally smelling up the place and making life less pleasant.

        This is an argument that Americans are being individually imposed on, forced to put up with the unwanted, because morality.

        I have sometimes suggested a connection between not just the constitutional status of fetuses and foreigners, but the rhetoric each side uses to justify its position.

        I think if you examine their rhetoric, proponents of both abortion and immigration restrictions really do say, somewhat similarly, that our sovereignty, our autonomy, our sense of self, our psychological well being, our freedom of choice, our very identity as who we are, is being taken away by those who would impose a narrow-minded morality on us. And I really do think that both the arguments and the feelings behind the arguments have similarities.

        1. In particularly, I think the rhetoric argues that the morality is imposed by people who really don’t like us, who fundamentally oppose our way of life. I think there is also an element of regarding the morality as pretext, with the real purpose being not morality at all, but to control and dominate us. I think ideological proponents of immigration restrictions really believe that the left is using open immigration to destroy their way of life in something like the way ideological proponents of abortion really believe that abortion opponents use abortion solely to destroy women’s freedom.

  19. Isn’t there a ‘dreamer’ should be blowing?

  20. The list of terrorist attacks by Nigerians is obviously incomplete, it only lists the underwear bomber.

    If it missed a high profile, but non-fatal attack, like the heinous assault by 2 Nigerian brothers against Jussie Smollett what else does it miss? And we’ve been told many times that right wing terrorism is the biggest danger, yet here is Trump trying to keep a gay Black man safe from his own overzealous supporters.

    He can’t win.

    1. In any case, how many dead is ok is a political judgement, the kind which voters apply to elected officials. It would be odd to overturn in court because some other group that kills does it better.

      This is evidence of an everything and the kitchen sink argument rather than solely a constitutional one.

  21. Liberals will never stop in their zeal to fill America with unassimilable third worlders. It’s become their entire ideology, as they know it’ll eventually give them permanent electoral control.

    1. Not all of America, only the poor parts. White enclaves full of highly educated left-wingers – like those where Prof. Somin reside – will still be permitted. They’ll keep the yucky lower classes out with high home prices (supported by high government salaries; which are in turn supported by high taxes on those lower classes).

      If people like Prof. Somin were really to experience the reality of their immigration policies they would be less likely to support them.

      1. I think that’s right. White liberals say things like “I live in X neighborhood for the good schools, open spaces, and low crime,” which is code for “No blacks or Hispanics for miles and miles.”

        They’re disgusting people.

  22. A total net immigration moratorium would be better.

    1. Are you trying to make our rural and southern communities even more dysfunctional?

      Immigration offers an indispensable benefit to communities diminished by bright flight. (The smart, ambitious young people leave at high school graduation, seeking the modernity, education, and opportunity that must be found elsewhere, and never return.)

      Immigrants can improve those can’t-keep-up communities by contributing entrepreneurship, drive, education, and smarts. Otherwise, the concentration of ignorance, lack of skill, superstition, backwardness, superstition, and disaffectedness among the remaining residents will continue to intensify.

      Unless one intends to compel the better young people to remain in the left-behind communities, immigrants offer the best — perhaps only — prospect to rescue our rural stretches from the debilitating consequences of sifting.

      1. The number one way to increase the wages of working class Americans (and to eliminate unemployment and welfare dependency) is to stop the significant oversupply of labor to those sectors.

        But I agree with you that immigrants with verified resources and ability to bring entrepreneurship and investment should have first priority.

        1. Hasn’t this BS been debunked multiple times with citations to economic analyses by DMN and NToJ both?

          I’m beginning to wonder if you have a memory problem.

          1. No, not even close. All they did was pose theoretical objections to George Borjas’ findings.

            PS: Accidentally flagged your comment.

            1. Yeah, it’s a sign of outcome-oriented reasoning when you taking a single economist as your authority, who has been questioned by just about everyone else.
              And then discarding objections as ‘theoretical’ when you’re citing his theory.

              Kinda like how you once insisted on your balanced media diet and now you only link Breitbart and whatnot. You’ve ceased to engage with anything that doesn’t confirm your nativist worldview. What’s next in that feedback loop isn’t pretty.

              1. Have you taken Econ 101? Do you understand the relationship between supply, demand, and price?

  23. and to look for ways to get it overruled or at least narrowed in scope by applying nondelegation principles.

    I heartily encourage massive expansion of applicability of nondelegation principles by the Supreme Court, and not just when looking for ways to get something undesirable overruled.

  24. The courts may not strike it down. But it remains both illegal and deeply unjust.

    Presumably a bar that Prof. Somin belongs to restricts attorneys from calling into question the impartiality of the legal system.

    Calling a policy ‘illegal’ when the court explicitly rules that it is legal seems to explicitly violate this section.

    Although I wouldn’t be terribly surprised if Prof. Somin is not actually a licensed lawyer; it’s not required for law professors to have experience with the legal system.

    1. Advocacy is specifically allowed in the cannons of ethics of every bar I’ve seen or studied in legal ethics.

  25. “thousands of people from these countries will be denied the opportunity to live in greater freedom and prosperity”

    Are we obligated to provide freedom and prosperity to anyone who wants to come here? If we open the floodgates, we won’t continue to have freedom and prosperity for long. And we are without a doubt going to let in more than a few people who aren’t interested in our freedom and prosperity, but are interested in causing us harm.

  26. The opening of this article places the author as the final authority of what is legal and moral. The courts may not strike it down but it remains illegal. No, if the courts don’t strike it down that means it is legal. You may not like it but to claim it remains illegal is out of touch with reality. The president has this authority. It isn’t a question of morality either. We don’t owe anyone entry into this nation. The change in demographics and all our diversity isn’t a source of strength. A house divided cannot stand. That’s where we’re at.

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