Constitutional Law Scholars' Amicus Brief in the Travel Ban 3.0 Case Explains Why the Bill of Rights Restricts Federal Power over Immigration

The brief, which I coauthored on behalf of myself and six other legal scholars explains why the Bill of Rights constrains federal power over immigration no less than other types of federal power.


One of the main is issues at stake in Trump v. Hawaii, the Travel Ban 3.0 case currently before the Supreme Court, is whether President Trump's executive order temporarily barring entry by citizens of six Muslim-majority nations is unconstitutional because its purpose is to discriminate against Muslims, in violation of the First Amendment. The Fourth Circuit court of appeals ruled against this latest version of the travel ban on that basis.

The administration's main defense against this that federal government policy on immigration is largely exempt from the constraints of the Bill of Rights that limit all other exercises of federal power.

On Friday, fellow legal scholar Michael Mannheimer and I filed an amicus brief that challenges the administration's position on this crucial issue. We wrote the brief on behalf of ourselves and several other constitutional law scholars from across the political spectrum. The other signers include Professor Gabriel Chin of UC Davis (one of the nation's leading experts on the constitutional law of immigration), Shawn Fields (Campbell University), Irina Manta (Hofstra), Cassandra Burke Robertson (Case Western), and Erin Sheley (University of Calgary). Our brief explains why the Bill of Rights limits federal power over immigration no less than any other exercise of federal power, and why this conclusion logically follows from the text, structure, and original meaning of the Constitution. Here is a summary of our argument from the brief itself:

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.

The Establishment Clause was originally undertood as preventing federal regulation of religion in order to preserve state autonomy in this sphere. Prior to the enactment of the Fourteenth Amendment, a State could establish a state religion, favor some religions over others, or adopt a policy of nondiscrimination….

The authority of the States in the domain of religion has now been curtailed by the Fourteenth Amendment and its application of the Bill of Rights to the States. But the constraints the Establishment Clause imposes on the federal government remain in their original form: The federal government can neither establish a national religion, nor engage in discrimination based on religious animus….

The [travel ban] Proclamation, motivated by bias against Muslims, violates the Establishment Clause by disfavoring adherents of a particular minority religion. And because the Establishment Clause is a general structural limitation on the power of the federal government, the Proclamation cannot be enforced even against foreign nationals abroad.

Part I of the brief explains why the text, structure, and original meaning of the Bill of Rights imposes limits on all federal power, without any special exemption for immigration policy. The text of most of the Bill of Rights - including the First Amendment - in no way distinguishes between different areas of policy or between aliens and citizens. We also explain how the Founding generation routinely applied the Bill of Rights as a constraint on US government actions abroad, including those directed at non-citizens, such as suspected pirates captured on the high seas.

While the Supreme Court, in the late nineteenth century, ruled that Congress has "plenary" power over immigration, the federal government also has plenary authority over other fields, such as the regulation of interstate commerce. Yet, as the brief explains, that does not give it unconstrained authority to use that power in ways that violate the Bill of Rights:

The claim that the federal government's "plenary power" over immigration gives it the authority to override the constraints of the Bill of Rights is flatly inconsistent with the way the Supreme Court has treated other federal powers, which are all subject to the Bill of Rights, regardless of how "plenary" they otherwise are. For example, Congress has long been understood to have plenary power to regulate interstate commerce. That authority is "plenary as to those objects" to which it extends. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 197 (1824). Yet it does not follow that the federal government has the power to forbid the use of interstate commerce to disseminate ideas critical of the President, or that it can bar interstate trade carried on by Muslims or Jews.

Even the power over national defense – as fundamental and essential a federal power as any – is subject to the constraints of the Bill of Rights….

Nor does it matter that aliens do not have a constitutional right to enter the United States. There is equally no constitutional right to engage in interstate commerce that Congress chooses to forbid. It does not follow that Congress can restrict interstate commerce in ways that violate the Bill of Rights, including discrimination on the basis of religion. Similarly, the Supreme Court has ruled that Americans have no constitutional right to Social Security benefits. Yet it would still be a violation of the First Amendment for Congress to pass a law restricting Social Security benefits to Christians, or denying them to adherents of some disfavored minority religion.

The brief further explains (pp. 20-25) why treating immigration policy as subject to the Bill of Rights indicates that it is perfectly permissible for courts to consider President Trump's numerous statements indicating that his various travel ban policies were intended to target Muslims. Such analysis is standard practice in other cases involving pretextual discrimination, and there is no reason to treat this one differently. Shawn Fields, one of the brief's signers, is the author of an excellent new article that explains in detail why judicial consideration of campaign statements is both appropriate and necessary in cases like this one.

There is a widespread perception that Supreme Court precedent requires courts to forego normal application of the Bill of Rights in immigration cases. But, as we show in the brief (pp. 12-20), that perception is unfounded. The cases cited by the administration either apply the same constitutional standards as those that prevailed in domestic litigation at the time they were decided, deal with issues of procedural due process which are necessarily different from those involving substantive rights, or involve situations where the plaintiffs did not challenge the general principle that the government could expel aliens on the basis it asserted, but merely questioned the application of the rule to specific individuals.

For example, the administration relies on a 1952 case in which the Supreme Court allowed the deportation of aliens because they were members of the Communist Party. But, at that time, the Court allowed even US citizens to be imprisoned for membership in the Party. In the early 1950s, Communist Party membership was effectively not protected by the First Amendment at all. In Kleindeinst v. Mandel (1972), the case that the administration and its supporters cite the most, the plaintiffs did not challenge the constitutionality of the law under which an alien could be barred for advocating "the economic, international, and governmental doctrines of world communism," but merely took issue with the Attorney General's refusal to grant a waiver to the Belgian Marxist Ernest Mandel. If it was constitutional to exclude communists generally, it was also constitutional to deny a waiver to any specific individual.

It is also noteworthy that the Supreme Court has never upheld - or even considered - a federal policy intended to restrict immigration by discriminating on the basis of religion. Thus, there is no precedent authorizing the president to engage in the kind of discrimination at issue in the travel ban case. To the extent that some precedents nonetheless can be read as giving the federal government unwarranted authority to ignore the Bill of Rights in immigration policy, there is good reason for the Supreme Court to limit or overrule them (pp. 18-19).

Regular Volokh Conspiracy readers may notice that our Travel Ban 3.0 brief is similar to the one we filed in the earlier Travel Ban 2.0 cases, which were eventually dismissed as moot by the Supreme Court after that executive order was superseded by Travel Ban 3.0. That is because the latest iteration of the travel ban has virtually all the same defects as its predecessors, of which it is a direct extension. In some respects, it is even worse. For example, it is permanent, not temporary. So the administration can no longer claim it is a limited measure supposedly justified by the need to review vetting procedures. Our brief explains why the addition of North Korea and a few Venezuelan government officials to the travel ban does not materially alter the situation (pp. 35-36), and also why the travel ban is appropriately understood as an effort to target Muslims, even though it does not cover all the Muslims in the world:

An entry ban motivated by animus against Muslims does not become any less so simply because it does not cover all the Muslims in the world, while including a few non-Muslims. Consider the case of a federal agency head who has repeatedly declared that he would refuse to hire… African-Americans. He cannot make his racially motivated hiring practices immune to constitutional challenge by instead refusing to hire anyone who attended a Historically Black College or University… even though not all African-American job applicants attended such schools and a few HBCU alumni are actually white.

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  1. It’s sad to see smart people use such contorted arguments to support a contentious cause.

    1. All those words to say “But Trump”.

      1. It’s Prof. Somin so it’s about open borders.

        Get your reflexive accusations of bias right!

        1. You’ve been here long enough to know that Mr. Somin has largely admitted a move such as this would not have been blocked under Obama, so in this instance it is a but trump. It can be both.

          1. There are reasons why Trump != Obama on this issue. In fact, that’s the exact issue in this case!

            Good reasoning or bad, that’s a far cry from being merely ‘But Trump.’

        2. “Get your reflexive accusations of bias right!”

          People can have multiple motivations.

          Somin is open borders yes but the brief is a “But Trump” moment.

          1. Well, I’m glad you can read Prof. Somin’s mind, to determine exactly which bias that lets you not engage his points he’s evincing in this case.

  2. “The [travel ban] Proclamation, motivated by bias against Muslims”

    And there’s where you lost it. A list of states, all of them either failed states or sponsors of terrorism, originating with the prior administration, wildly under inclusive if motivated by animus…

    1. It helps if you skip all that was written to show that if terrorism without motivation by bias is truly the goal here that how it was done was rather curious and sloppy, even putting aside how the administration is led by someone that in some other context [e.g., if “gun grabbing” was alleged] some around here would deem worthy of some significant doubt of benign motive, so a higher standard of proof would be necessary. And, the “originating with the prior administration” point is misleading at best. Again, this was covered already.

      1. Look, never mind what Trump said on the campaign trail, the policy in question doesn’t discriminate on the basis of religion. It effects everybody from the listed countries, and the listed countries are wildly under inclusive if the intent was to discriminate on the basis of religion.

        If a different President had originated this policy, say the last one, it would have passed review without any trouble. The courts are not taking exception to the policy they’re taking exception to the President!

        Effectively what they’re doing is removing from this President’s authority any topic where they suspect him of bad motives, regardless of whether a President they didn’t so doubt could do the exact same thing. This turns the ruling from a review of the act’s constitutionality, into an effective partial impeachment of the President.

        Only, impeachment is a legislative branch power, not judicial. They should limit themselves to reviewing the action, not the motives they suspect lie behind it.

        1. The suspicion of bias is based on a collection of things, including things he said after noon on 1/20/17. This again has been covered before, including lower court opinions.

          As with “gun grabbers” regarding someone else, yes, the whole picture to some degree will affect the result. This in respect to discrimination and Establishment Clause law particularly is a result of long time SCOTUS precedent. The fact you disagree with this on some grounds is noted, but it is both precedent and sound policy.

          And, again, you and others supported Trump because he was different in various respects, but yet again, it’s supposed to be “yawn,” he isn’t doing anything in relevant respect of note here. Our system has various checks here and one of them is a judiciary. Trump still is in power, gets to do lots of things. Impeachment is not the same thing as the courts in various areas restraining power.

          1. You are making the same ignorant assumptions Prof Somin is. You look at what the countries are alike in nature and not how they differ from other countries that are alike, mainly the shared information with our intelligence agencies to help vet foreign citizens. If it was truly an anti-muslim bias, countries could not get off the list, like Iraq did. How did Iraq do it? They increased their intelligence sharing with our country. Shocking, I know. Amazing, an allowance was made for meeting the criteria the ban put on countries… almost like being Muslim majority had nothing to do with it.

            1. I’m basing things on looking at all the criteria as a whole, not “ignorant assumptions,” and will not try to summarize all that is said there in a comment. Others, including briefs and lower court opinions, can be read and judged there.

        2. If a different President had originated this policy, say the last one,

          Says the guy who never saw enough evidence that Pres. Obama had been born in America, but sees plenty of evidence that bigotry had nothing to do with Pres. Trump’s Muslim ban.

          Carry on, clingers. With even more fake libertarianism, please.

          1. Says the guy who notices that the list of countries originated with Obama’s administration. All Trump did was decide that enhanced vetting wasn’t good enough when dealing with countries that couldn’t and/or wouldn’t carry their end of the vetting process.

            “Says the guy who never saw enough evidence that Pres. Obama had been born in America,”

            Simply, unambiguously, a lie. I’ve pointed that out to you often enough.

            1. Those who observed your birtherism at the Conspiracy (and have posted the evidence from time to time) know what occurred, and are my audience.

              “Libertarians For Border Walls” is always good look for you, Brett.

              1. Implicit in your comments is that Obama is a fake Christian which is part of the Birther conspiracy. Congratulations?you are a Birther!

                1. One of the downsides of Reason’s commenting software is that, beyond a very shallow level of indenting, you can’t tell what comment somebody is replying to. That’s why I try to make it clear in the comment.

                  1. Implicit in Kirkland’s comments is that Obama only “converted” to Christianity to fool white American Christians so he could become a powerful politician. So that is consistent with Birther conspiracy theory that Obama is a fake Christian and that Obama truly does not believe Christianity is superior to his father’s Islam. So liberals like Kirkland embrace aspects of Birther conspiracy theory.

                    1. Why would that be implicit in anything Kirkland said? You miserable fucking troll.

                    2. You have to actually read his comments and have above a 5th grade reading comprehension…so you are too stupid to understand the implication of his comments…because you are a dumbass.

          2. The list is Obama’s and the stronger argument is that Obama was motivated by animus towards Islam because Obama famously rejected the Islam of his father and converted to Christianity in his 20s. Muslims hold “traitors” like Obama in the lowest esteem.

            1. Obama allowed for millions of Muslims to enter the USA via the refugee program.

              Obama never had any animosity toward Islam. Obama and the Democrats need modern slaves to bolster voting for the Democratic Party, so they import them.

              Americans are not cooperating with socialism like we are supposed to.

              1. I agree liberals make many decisions based on animus towards white Christians but Obama was famous for killing Muslims in drone strikes as well as coming up with the list of Muslim countries on the travel ban.

                1. If a Muslim President said throughout the campaign trail “I’m going to ban Christians” would you be so cavalier about judicial review?

                  1. If Christians were killing people like ISIS then it would make perfect sense to make disparaging remarks about Christians.

                    1. I love how you scratch these defenders and they so often end up saying ‘Well, sure, a full Muslim ban would be legal and awesome because Muslims are terrorists. Now lets go back to how animus is ridiculous.’

                    2. Obama kills Muslim terrorists…does that show animus?

                    3. “If Christians were killing people like ISIS then it would make perfect sense to make disparaging remarks about Christians.”

                      Just so I understand your position, the President issued a travel ban on Chad, Iran, Libya, Yemen, Somalia, Venezuela, and North Korea because “ISIS”, but not on Iraq?

                    4. I understand because I know the issue is about vetting refugees.

                    5. “I understand because I know the issue is about vetting refugees.”

                      This defaults to the President is a liar because he promised he would ban Muslims but won’t deliver.

                    6. I don’t care what Trump says because he is a moron. Just like I didn’t care when Obama would transform into the epitome of the “ugly American” and tell the ignorant brown people that they weren’t practicing Islam properly.

                    7. “Just so I understand your position, the President issued a travel ban on Chad, Iran, Libya, Yemen, Somalia, Venezuela, and North Korea because “ISIS”, but not on Iraq?”

                      Iraq was on the original list. They increased their intelligence sharing with our agencies and now are off the list. They didn’t become less Muslim in that time. Your example of Iraq actually destroys your argument.

                    8. My argument is that “ISIS” can’t be the reason for a travel ban including, e.g., Venezuela or Somalia, but not Iraq. You think the removal of an ISIS country from the list destroys the argument? I’ll bite. How so?

                  2. NToJ
                    Yes I would. If we went by what a President said then we would not have the ACA. Also I would note that President Trump halting the DACA program would also fly thru judicial review as it was never a law.

                2. I think we have to distinguish between animus and malign indifference. I’m reasonably sure Obama would have been ok with killing Christians or Hindus with drone strikes, too, under comparable circumstances.

                  It’s just that the world is a bit short on non-Muslim mass terrorist movements at the moment.

                  1. “It’s just that the world is a bit short on non-Muslim mass terrorist movements at the moment.”

                    This only makes sense if you think ISIS just emerged fully formed and had nothing to do with what someone else would describe as a “non-Muslim mass terrorist movement”. You’re being naive.

                    1. “This only makes sense if you think ISIS just emerged fully formed and had nothing to do with what someone else would describe as a “non-Muslim mass terrorist movement”.”

                      Seriously? You’re going to claim that the ISLAMIC State of Iraq and Syria is a non-Muslim terrorist organization?

                    2. No. I’m not remotely claiming that. What did I say that could possibly have led you to believe that I was saying that?

                      You said there were no non-Muslim mass terrorist movements. I was suggesting to you that was disputed by others.

                    3. The ban was regarding how information about those movements was shared in the vetting procedures for the US. You are almost to the point of realizing that the travel ban was a ban based on vetting and not religion. Almost NToJ, almost.

                    4. “The ban was regarding…”

                      This isn’t germane to what’s being discussed in this sub-thread. But you’re also wrong about that, too.

                    5. Obama is like the father of the world and he gets to decide which brown people are true Muslims and which aren’t.

                    6. NToJ

                      Seriously? The most recent non-Muslim mass terrorist movements were almost all supported by Communist USSR and China. Yet even then, those movements received a lot of their training at Muslim camps. I lived in areas with the Red Brigade, Baader Meinhof, Red Army Faction,

                    7. There are people in the world who would characterize, e.g., the United States invading Iraq and killing people a “non-Muslim mass terrorist movement”.

        3. “never mind what Trump said on the campaign trail”

          Why? He promised his supporters a complete and total shutdown of Muslims, and it’s reasonable for his supporters to understand his E.O.s as offering at least a partial fulfillment of that promise. I am puzzled by the gymnastics involved in trying to show that his E.O. had nothing to do with his campaign promise. Isn’t that what people expected when they voted for him? Why rob his supporters of that satisfaction?

          1. Trump deserves to be held up to a higher standard than any previous politician? Politicians often say hyperbolic statements on the campaign trail. Question is what they actually do in office, not what they said they would do on the campaign.

            1. Obama actually delivered on stopping the oceans from rising. 😉

            2. When a position — ban Muslims — is such a fundamental part of a campaign, then yes, I hope that a politician is held to it. My friend Ann Coulter has adopted a similar response to Trump’s failure to get the darn wall built: he promised this everyday of his campaign; it was not a simple hyperbolic statement, and more than a year later his dithering on the Wall is inexcusable. This essay and the discussion focuses on whether Trump’s travel ban incorporates an unconstitutional focus on religion to exclude people: Trump supporters are not fooled by your liberal dodge that the ban was about national origins rather than religion, and are justifiably angry that he hasn’t been allowed to carry through on his frequently made (“mark my words”) promise.

          2. However your supposition is not how the law works. If so then Michael Brown’s father would be languishing in jail for inciting riots!

            1. Well, apparently the law does kinda work that way sometimes, for at least a few judges, which is why the travel ban was halted. I was not aware that Michael Brown’s father issued executive orders, but if he did, I would expect those to be interpreted in the same way.

  3. Except that persons who are not Americans have (or should not have) American Constitutional rights.

    They owe no allegiance to America, cannot be drafted into the armed forces of America, cannot vote, do not pay taxes to support America, are not subject to American law and are not loyal to America. Why is the name of sovereignty do non-Americans have ANY American Constitutional rights?

    My profession has gone mad.

    1. No, it’s not as bad as all that.

      Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

      He’s right that this does somewhat constrain immigration policy. Because it doesn’t say that Congress shall not infringe the rights of citizens in that regard; The 1st amendment took whole areas of possible public policy, and banned legislation regarding them.

      So I think it could be fairly said, regardless of what you think would be good policy in this regard, that Congress couldn’t enact a law banning immigration by members of a particular religion. And, what Congress can’t legislate, the President can’t do, because most things Presidents do they do on the basis that they are effectuating legislation.

      Where Somin goes wrong is pretending that the actual policy discriminates on the basis of religion. It clearly, unambiguously, doesn’t. It discriminates on the basis of national origin, which is a fairly routine thing in immigration policy.

      1. “Pretending” means that he knows it does not and in effect lies to say otherwise.

        Not shown. This is a general thing — people across the ideological spectrum without enough grounds move past disagreeing with a position, a position that might be wrong [at times, so wrong the person is a tad deluded, but even that is not the same as “pretending”] in various cases, and denying honest motive.

        1. It’s a bit of a bind, of course. When advances a position that’s glaringly wrong, do you impugn their intelligence, their sanity, or their honesty? It’s got to be one of them, of course.

          It could, of course, be that you yourself are mistaken about the position being glaringly wrong. But a person can only proceed on the basis of their being right, if you had reason to believe you were wrong, you’d adopt a different position.

          1. People can be intelligent, sane, honest and very mistaken and/or confused.

            Some are so sure they are right that they figure the other side must be insane, stupid or lying to put forth a position. After a long time, even with people I strongly disagree with, I find that wrong.

            I can be mistaken, of course.

            1. Yes, I agree, you or I or Somin can be mistaken.

              But, when sincerely mistaken, what is there to do but proceed on the basis that you’re right? Internally, being mistaken IS, after all, indistinguishable from being right.

              Anyway, I’ve seen enough evidence to reasonably conclude that Somin is just incapable of approaching this particular topic objectively.

    2. You mean we should be able to lock up foreign visitors with no reason at all, and not grant them any of the protections the Constitution requires?

      1. What Constitutional protections does someone get who isn’t in this country and has never stepped foot in this country?

        1. Why is that relevant to Ghost’s assertion that only Americans have any Constitutional rights?

  4. I note this brief does not address Fiallo v. Bell, 430 U.S. 787 (1977). There is a “narrow standard of review of decisions made by the Congress or the President in the area of immigration and naturalization.” Fiallo, 430 U.S. at 796. The judiciary has no role in “in cases of this sort to probe and test the justifications for the legislative decision”. id. at 799 (internal citation omitted). As such, only “limited judicial review” is available. id. at 795 fn. 6 See also Adams v. Howerton, 673 F.2d 1036, 1042 (9th Cir. 1982) (noting that “where there is a rational basis for Congress’s exercise of its power, whether articulated or not, the Court will uphold the immigration laws that Congress enacts”)

    1. Fiallo is not on point. It involved an attempt to create heightened scrutiny for illegitimacy in the area of immigration. No 4A issues were at stake (as was the case in Almeida and US v. Brignoni-Ponce). No 1A issues at all. And since the case predated Caban, there wasn’t even intermediate scrutiny available for legitimacy of birth regulation at the time it issued. It’s just another rubber-stamp review for federal immigration policies untethered (at least at the time) from the Bill of Rights. Mandel is more on point.

  5. “from across the political spectrum”

    From anti-Trump liberals to anti-Trump libertarians to Never Trump conservatives.

    Though conservatives almost certainly should be in quotes.

    1. And liberals. What do you think “across the political spectrum” means if it doesn’t include libertarians, conservatives, and liberals?

      1. I mentioned liberals

        1. That you’re making Trump the loadstone of your political spectrum is pretty telling of how distorted your politics have become.

          1. Its not my politics that have become distorted.

            Trump does Trumpy things and its “OMG the end of the world!!!!!!!!!!!!” and then Trump does normal things and its “OMG the end of the world!!!!!!!!!!!!”

            1. Right. Everyone else is overstating things. But not you.

  6. Your statement is especially true for citizens of these Islamic nation that has been temporarily barred from coming to the US. They are not citizens of the US and they are not yet in the US so just why do they have rights under the US constitution?

    1. Keep reading this until it sinks in:

      “We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness.”

      1. Keep reading this until it sinks in:
        That is the Declaration of Independence. The Constitution is the legal authority to found the USA and creates its laws and protections not the Declaration of Independence.

        Preamble US Constitution:
        We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

        1. That all humans are created equal and are endowed with basic rights, whether those rights were granted by a creator or are simply a fact of being human, is the founding principle of our nation.

          1. Yes, this nation, and not others.

            1. Maybe it’s the definition of “all” that is confusing you?

              1. Maybe it’s the part that it’s the Constitution of the United States that throws you off to my friend. Further, while the Declaration of Independence is a lovely document, it’s not a governing document either.

                1. That all humans are created equal and are endowed with basic rights, whether those rights were granted by a creator or are simply a fact of being human, is the founding principle of our nation.

                  1. And while I agree with that, never mind the inconsistency of its application for a fair majority of the existence of our Republic, that guiding principle is not a governing principle except in the abstract.

                    Furthermore, many peoples of the world do not subscribe to it, and would prefer to be governed by different principles, and would actively undermine that principle if brought to the United States, meaning that even if we say all humans are created equal (at least in their political political rights, certainly not in their potential, and never will be) then we should be discerning about who we let into this country, lest we find that there is a point in which our own tolerance undoes us.

                  2. OtisAH|4.2.18 @ 2:51PM|#
                    That all humans are created equal and are endowed with basic rights, whether those rights were granted by a creator or are simply a fact of being human, is the founding principle of our nation.

                    As soon as all humans respect my right to keep and bear arms, speak my mind, be free from unreasonable searches by government, we can talk about this supposed Universal US Constitutional protection of people outside US territory.

                    Americans are not going to tolerate us being held to one standard while other humans are not living that standard. Its another reason why Trump won.

                    1. The DoI doesn’t talk about reciprocity on this principal. Nor do the rights in the Bill of Rights.

                    2. Declaration of Independence was written by and for a certain people, namely British colonists in the New World. Likewise, the Bill of Rights. It’s easy to square this fact with the expansive language, because the primary author of the Declaration kept African slaves, and never intended it to apply to them.

    2. The establishment clause is a blanket prohibition against federal conduct. In any event, there are American citizens who are challenging the law.

  7. Since Somin believes the federal government has no power in immigration [as compared to naturalization], how can the Bill of Rights constrain a power that does nor exist?

    1. Granting it exists, the BOR constrains.

      1. The BOR only applies to people on US territory. Setting policy for migrants under Article I, section 9 of the Constitution when they are outside US territory is perfectly constitutional.

        Only naturalization requires a uniform rule. Regulation of migrants after 1808 has no limitation that it be uniform.

        1. BOR says, e.g., Congress cannot — w/o an exception for certain clauses — do certain things.

          1. Yup. The Constitution does limit certain things. Its also grants enumerated powers. One such power is the power to regulate migrants after 1808 and to create a uniform naturalization rule.

            Non-Americans outside USA territory are not subject to US Constitution nor entitled to its protections. Migrants not on US territory can be barred from entry for any reason.

            The 1st Amendment protection of religion protects people on US territory from government tyranny on their religious choices.

            Its the same reason that US can declare war on foreign powers without fear of infringing on some foreign religious objection.

            As with most law, you must be subject to it to be entitled to its protections too. Its called jurisdiction.

            1. “The 1st Amendment protection of religion protects people on US territory from government tyranny on their religious choices.”

              The text is not so limited. If Congress wanted to establish a religion overseas and in the process favor some religious beliefs in that foreign locale over others, it would also violate its terms.

              A foreigner might not have standing to sue here but Congress still would not have the power to do this. And, as in this litigation, people with standing exist.

  8. Will the authors make such an impassioned argument that covers “the right of the people to keep and bear arms shall not be infringed”? Or is it OK that 10,000+ laws infringe all over that one?

    And how is it a Muslim ban when about 1B Muslims are not affected by it?

    1. “the right of the people to keep and bear arms shall not be infringed”

      That part of the BoR does not apply to Americans.

      /lefty logic

      These open border people will say whatever it takes to allow more immigrants into the USA to change our demographics. First the Democrats brought in the slaves to do their dirty work and now immigrants are the new group to do the left’s dirty work.

    2. “And how is it a Muslim ban when about 1B Muslims are not affected by it?”

      How many Muslims would it need to ban before you accepted that it was a Muslim ban? If the President said, tomorrow, “I’m banning as many Muslims as I think I can get away with today. I’ll handle the rest later,” would that change your view? When Germany began merely restricting the number of Jews at universities, was it not a Jewish ban because it was only half-baked?

      1. If it’s also banning people who aren’t Muslims, then it’s not a Muslim ban. Trivially, if tomorrow we banned immigration totally, it would ban every Muslim outside the country, and it still wouldn’t be a Muslim ban.

        The basic problem here is the refusal to accept that it is impossible to rationally respond to international terrorism without disparate impact against Muslims, because of who is committing most of it, and who lives in the countries that sponsor it.

        What exactly do you want here? A few countries that aren’t state sponsors of terrorism thrown in, to make the statistics look better?

        Or, like Somin, do you just categorically object to any control over who enters the country whatsoever, and so will seize upon any excuse to strike down any restriction on immigration?

        1. Wow, Brett suddenly doesn’t believe in pretext or bad faith.

          What would you say if the finder of fact found that all deviation from a Muslim ban was done in order to maximize the Muslims Trump could legally ban.

          Would that be material?

          1. I’d say that a finder of fact who claimed that restricting immigration from North freaking Korea was done just as a pretext was an idiot.

            1. You think before this ban we were just letting anyone from NK waltz in here?

        2. “…disparate impact against Muslims…”

          This is not a disparate impact case. This is a Church of the Lukumi Babalu Aye case. I happen to agree with you and the dissent that legislative intent (from the stated record) is a poor source for bad faith. But that’s a separate argument re: the President’s statement, than a red herring “disparate impact against Muslims” argument, which has nothing to do with anything at issue here.

          “What exactly do you want here? A few countries that aren’t state sponsors of terrorism thrown in, to make the statistics look better?”

          I might as well ask you the same thing. In your world, so long as there is at least one non-Muslim banned, it cannot be a “Muslim ban“. But again, the issue here is that no one has to rely on some statistical difference because it’s apparent that it was intended to effectuate a Muslim ban even if it isn’t one. The President made it clear. (I think he should be allowed to make that clear.) Why would you bother pretending otherwise? Just argue that he’s entitled to the current ban, under existing jurisprudence.

          1. By “the dissent” I mean the dissent (Scalia) from Lukumi.

      2. It would have to effect Muslims that did not live in a state that sponsored or had pockets of inflamed terrorism, refused to share intelligence or could not share intelligence, and the other reasons listed in the travel ban. When it does, you can come back and point out an example of a Muslim generated ban.

  9. Can you name a single part of the policy that targets Muslims specifically?

    Would Christians from those countries, few as they may be (due, largely, to the actions of the Muslims), be allowed in? Atheists?

    If the answer is no, then how does this run afoul as “racist”?

    It’d be like saying all gun control laws are now illegal because the proponents dislike guns.

    Ilya, you will really hate the country you are demanding we become because of your dislike of Trump. A Judiciacracy seems like a truly horrifying idea.

    1. The initial travel ban did single out Christians but how would that be any different than in 1939 drafting a refugee policy that singled out Jews? I think Trump initially singled out Christians because much of what Trump does is motivated by animus for liberals like appointing people like Tillerson and Bolton.

      1. I thought it was because Christians are being genocided in several of those countries.

        1. The point was we couldn’t vet them, so their religion is irrelevant. Trump is a moron motivated by all kinds of crazy things…but I still agree with him on certain things.

  10. So because Obama made a value judgment in his 20s that Christianity is superior to Islam any decision he makes after that that affects Muslims is tainted?? Obama converted to Christianity over Islam because Christianity is an objectively superior religion that is more consistent with American values. He did not reject the Islam of his father because of some irrational animus towards Muslims. So just because Obama rejected Islam and then placed these countries on a list of heightened scrutiny does not make his decision an act of “prejudice”.

    So the travel ban stands because presidents can make value judgments about various religions and cultures.

    1. Christianity is an objectively superior religion that is more consistent with American values.

      ‘My fairy tale can beat up your fairy tale.’ Always charming, particularly from ostensible adults.

      Choose reason. Every time. Be an adult. Or, at least, try.

      1. Atheism killed over 100M people last century.

        Tell me more about its superiority.

        1. He didn’t mention anything about atheists. Regardless, you should probably reconsider weighing the piles of bodies attributed to alleged atheism. It tends to lead people to start counting the bodies left behind by the world’s religions, which is not a great look for your perspective.

          1. Yes, when you add up all those dead from Islamic Jihad from the 7th Century until now, it likely exceeds the dead from Communism in numbers. If not in numbers, at least in percent of world population.

            1. One of the more offensive aspects of liberalism is how they like to tell members of ISIS how they are not Muslims. Liberals know so much more about Islam than ignorant brown people from the Middle East! They respect other cultures by telling people they aren’t “real” Muslims and they should get gay married and lead a happy life performing abortions!

              1. Good point!

                A DuckDuckGo search yields the following academically sourced result of 150 million people killed by Islamic Jihad (edited to remove the African slave trade run by Muslims).

                The number of Christians martyred by Islam is 9 million [David B. Barrett, Todd M. Johnson, World Christian Trends AD 30-AD 2200, William Carey Library, 2001, p. 230, table 4-10] . A rough estimate by Raphael Moore in History of Asia Minor is that another 50 million died in wars by jihad. So counting the million African Christians killed in the 20th century we have:
                60 million Christians

                Koenard Elst in Negationism in India gives an estimate of 80 million Hindus killed in the total jihad against India. [Koenard Elst, Negationism in India, Voice of India, New Delhi, 2002, pg. 34.] The country of India today is only half the size of ancient India, due to jihad. The mountains near India are called the Hindu Kush, meaning the “funeral pyre of the Hindus.”
                80 million Hindus

                Buddhists do not keep up with the history of war. Keep in mind that in jihad only Christians and Jews were allowed to survive as dhimmis (servants to Islam) everyone else had to convert or die. Jihad killed the Buddhists in Turkey, Afghanistan, along the Silk Route, and in India. The total is roughly 10 million. [David B. Barrett, Todd M. Johnson, World Christian Trends AD 30-AD 2200, William Carey Library, 2001, p. 230, table 4-1.]
                10 million Buddhists

          2. He didn’t mention anything about atheists. Regardless, you should probably reconsider weighing the piles of bodies attributed to alleged atheism. It tends to lead people to start counting the bodies left behind by the world’s religions, which is not a great look for your perspective.

            Given that he called Islam and Christianity fairy tales and asked you to choose “reason” as an alternative, one must be incredibly dense to not recognize a reference to atheism.

            The Crusades, held up as an extremely bloody and violent religious war, killed about 1.7M people over close to 300 years. Will even round up to 2M over that time frame.

            Atheism, again, about 100M in less than 100. And it would’ve been higher if Communism didn’t collapse in E Europe. Hell, Pol Pot killed more people in 4 years in a not-very-large country than the Crusades did in total.

            The comparison is going to go exceptionally poorly.

            1. Obviously because Christians suck at killing. Scoreboard atheism!

              1. Chistians don’t usually kill others on behalf of their religion…the 30 Years War and Crusades as obvious exceptions. That Christian nations killed others in expanding their respective empires doesn’t make Christianity at fault. If you assume that the religion of the expanding empire was a fault for the empire expanding, then the Mongols killed/raped/looted their way across Asia for Shamanism.

                Meanwhile Islam was, and is, spread by the sword for the sake of Islam.

                1. If Christianity isn’t at fault for North American Indian genocide then I’m not going to blame atheism for communist purges. But who cares? The violence of a religion doesn’t make it less fairy-tale. If the Muslims are smarter at killing than the Christians, what difference does that make to me?

                  1. The specific difference between the European powers expansion into the New World, and the spread of atheistic Marxist ideology, is that the latter was all encompassing world view and was spread with the purpose of conversion all before it to that very Marxist ideology…or giving them death. Not unlike Islam, but unlike the Mongols, who didn’t care what religion you were as long as you let them rape your daughter and wife.

                    The English, Portuguese, or French warred with, traded with, or cooperated with the the multitudinous native groups depending on the circumstances of the situation. Only the Spanish ever made any attempt to convert the natives and take them into their social order, that is, the ones they didn’t make slaves in the silver mines.

                    The population decline of the natives took place over hundreds of years, though many different European powers, with no central decision-making process, was mostly caused by smallpox in an era before germ theory, and was sometimes helped along by various other tribes/peoples against their enemies. In short, it happened like any conquest throughout history.

                    Be careful how you use the word genocide, because using your standards, the Romans committed genocide against the Carthage though the Punic Wars. And further, whether you realize it or not, by your standards, the importation of African and Middle Eastern migrants into Europe is “white genocide.”

                    1. “The specific difference between the European powers expansion into the New World…”

                      It’s a distinction with no difference. Christianity is a proselytizing religion. The most popular religions usually have this feature, since you generally won’t grow without proselytizing. Your abbreviated history of European spread of Christianity ignores that much of the settling was done in the New World by Christians being persecuted by Christians in Europe.

                      “In short, it happened like any conquest throughout history.”

                      Every conquest in history was caused by smallpox in an era before germ theory? C’mon.

                      Why would either of your examples of genocide be problematic? Are they problematic for you?

                    2. mad_kalak,

                      You lose more than a little credibility with this gem:

                      “by your standards, the importation of African and Middle Eastern migrants into Europe is ‘white genocide.'”

                      For you to say such a thing highlights how pointless it is to have a discussion with you. But a general tip: “by your standards” almost always signals (and in this case certainly does) that you utterly fail to understand the argument or you are not arguing in good faith.

            2. 10 million or so in Belgium Congo
              An uncountable number in the Americas, estimates range from 23m to 200m.
              Gothic War in Italy 15m

              Etc., etc.

              But all of this counting misses the point, because you are going to claim Hitler was atheist, the Reverend will point out he claimed Christianity and so we will never agree on the totals. More to the point, you might dispute various killings by overtly Christian nations and leaders (King Leopold) on the grounds that the mass killing was motivated by profit or conquest, but then why would you count Stalin.

              As Hitchens has stated:

              For Joseph Stalin, who had trained to be a priest in a seminary in Georgia, the whole thing was ultimately a question of power. “How many divisions,” he famously and stupidly inquired, “has the pope?” (The true answer to his boorish sarcasm was, “More than you think.”) Stalin then pedantically repeated the papal routine of making science conform to dogma, by insisting that the shaman and charlatan Trofim Lysenko had disclosed the key to genetics and promised extra harvests of specially inspired vegetables. (Millions of innocents died of gnawing internal pain as a consequence of this “revelation.”) This Caesar unto whom all things were dutifully rendered took care, as his regime became a more nationalist and statist one, to maintain at least a puppet church that could attach its traditional appeal to his.

              1. But all of this counting misses the point, because you are going to claim Hitler was atheist

                Hitler openly was not Christian and the Nazis were quite hostile towards Catholicism due to it being a powerful force in Germany. There isn’t really an argument that he was Christian or Catholic in any sense.

                The belief that there is nothing higher than man has few historical examples of generating beneficial behavior for humanity as a whole.

                1. It is wildly inaccurate to say that “Hitler openly was not Christian.” In fact, while the available evidence indicates that, privately, he rejected Christianity, he was very openly and purposefully Christian and anti-atheist (see Mein Kampf, numerous speeches).

                  Therefore, there actually is an “argument that he was Christian” in the sense that he pretended to be a Christian to enlist the support of the majority Christian German population in killing millions of people in the Holocaust. (Plus, there can be little doubt his anti-Semitism sprung out of his Catholic upbringing and the widespread anti-Semitism in predominantly Christian Europe.) Hence, there is a fairly strong argument that significant responsibility for the Holocaust lies with Christians and their religious beliefs. It certainly was not done in the name or service of non-belief.

                2. Hitler openly was not Christian

                  Did that come from a homeschooling pamphlet or, instead, backward religious schooling?

        2. I consider atheism to be roughly as sensible as organized, superstition-based religion.

          Reason inclines the adult toward agnosticism and disinclines the adult toward superstition and atheism.

      2. Obama chose Christianity over the Islam of his father for a reason?it is the superior religion.

        1. Saying it twice actually doubles the stupidity of your statement, not halves it. That’s math.

          1. Let me guess?you believe Obama is a Muslim from Kenya? Crawl back into your hole you vile Deplorable!

              1. You are officially a Birther.

                1. Your whole ‘semantically, I have proven you believe a thing you claim not to believe’ is not proving anything. Not even that you are clever.

                  But you got mad_kalak to approve. So there is that.

                  1. The liberal commenters are clearly arguing Obama was a fake Christian which is an aspect of Birtherism. Now there is some evidence Obama is a fake Christian because Obama’s reason for opposing same sex marriage was based on his “Christian faith” and Axelrod stated Obama lied about opposing same sex marriage to win votes.

                    Do you believe like your fellow liberal commenters that Obama rejected the Islam of his childhood and embraced Christianity out of political expediency or do you believe Obama believes Christianity is the superior religion?

                    1. No, that’s not what anyone is arguing. That’s not how changing religions works, nor what it implies. That’s not what the Christian faith commands, one’s faith my evolve, and politicians sometimes don’t tell the truth about their motives.

                      Your dumb trap is built of weird prescriptive understandings of all sorts of stuff that doesn’t actually work like that.

                    2. Yes it is dummy.

                    3. Sebastian,

                      Truly, you have a dizzying intellect. Pass the iocane powder, please.

  11. Ilya, please accept my thanks for keeping the spirit of America alive, as a haven for the world’s wretched souls. I give what I can monetarily, but for the work you do, there is no substitute.

    1. I can’t figure out is this is Poe’s Law in action.

      1. …*if* this is Poe’s Law in action

    2. Prof. Somin’s views seem destined to prevail over time in America.

      America has encountered waves of know-nothing, authoritarian intolerance throughout its history, often related to religion, skin color, or immigration. Italians, gays, Jews, eastern Europeans, Asians, women, Catholics, Hispanics, blacks, atheists, the Irish, agnostics, Muslims, and others have been targeted.

      Intolerance and ignorance have been poor bets in this context over time, however, and this latest batch of bigots seems nothing special, its reliance on the insights, charms, and integrity of Donald J. Trump notwithstanding.

      The smart money in America is on reason, science, tolerance, progress, education, inclusivity, and modernity over all but the shortest terms. In America, the clingers do not win.

  12. The [travel ban] Proclamation, motivated by bias against Muslims, violates the Establishment Clause by disfavoring adherents of a particular minority religion.

    People outside the USA do not have the protection of the Bill of Rights. The US government cannot force Syria from infringing on the religious rights of their people but the US government can keep Syrians from coming to the USA.

    After 1808, Congress can regulate migrants within the limitations of the Constitution.

    US Const. Section 8:
    To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;
    Section 9:
    The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.

    1. “such persons” was referring to slaves.

      1. Hm. I think you are wrong.

        Slaves don’t migrate they are imported.

        The “such persons” means slaves and migrants.

        1. If the provision (in an Originalist sense) applied to Congress having the power to stop the importation of indentured servants, which would be akin to migrants today, and I think I did, then love1789 might have a point. Never seen it applied to immigration law though.

        2. No, it means slaves. See here. You’re also making a category error by interpreting Section 9 as a grant of federal power. It isn’t. The grants of federal power are in Section 8. Section 9 contains limitations on power. Congress does have the power to limit immigration, just not through Section 9.

          1. I see your point about federal powers, thanks, and I agree, so I suspect your right. But it’s not entirely clear that the 1808 provision only meant slaves. Keep in mind that the explicit distinction that blacks were not citizen was never made before the 1857 Dred Scott decision that says that the blacks, “are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.”

            1. I’m not sure what Dred Scott has to do with anything, but the clause relates exclusively to banning the importation and forced migration of slaves. This was a big deal because the southern states were concerned about getting backdoored by the northerners. You need to read Article I Section 9 in conjunction with Article V, specifically this portion:

              “Provided that No Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article…”

              The end of Article I Section 9 was protecting slavery. “such persons” were referring to slaves. Prior to 1808, Congress enacted the Alien and Sedition Acts which allowed the President to deport or repel immigrants from hostile nations.

              1. No, it doesn’t apply specifically to just slaves, although restricting the slave trade was certainly part of the purpose behind the clause. Where is the word slave anywhere in the Constitution? Until Dred Scott, it was never explicit that blacks (slaves) were not citizens. Based on that, it could very well have applied to indentured servants or migrants. I’m open minded about the whole idea, and would love to see a post on it.

                Further, careful what purposivism Originalist interpretation of the Constitution you are wielding there, as the implications are deeper than you realize. For example, the 14th Amendment natural born clause was supposed to apply only to freed slaves…but today applies to anybody born on U.S. territory. How would you feel, say, if a law was passed saying that since it was only intended to apply to freed slaves, we can change it going forward.

                1. It was not explicit because it was shameful to enough drafters they didn’t want to use the word.

                  Your textual reading does not trump the history. ‘Could have applied’ speculation doesn’t either.

                  I also think you’re mixing up intensionalism and purposivism. But I’m being pedantic – you point there about the problems of original intent is a good one.

                  1. Ashamed, perhaps some Northerners. Product of extensive compromise, yes. Plenty of delegates felt strongly enough about slavery that they would have used that specific term.

                    I am still not 100% convinced that it applied solely to slaves, as the Northwest Ordinance, passed by the same folks, prevented indentured servitude as well as slavery. Like I said, I’d love to see someone who is really knowledgeable about it guest post.

                    And that’s for the pointer.

                    1. *thanks* for the pointer.

                2. “Where is the word slave anywhere in the Constitution?”

                  Because the slavers were too embarrassed to call it what it was, and the non-slavers let them get away with polite language as part of a political compromise. John Q. Adams called the omissions “the fig-leaves under which the parts of the body politic are decently concealed.”

                  “Further, careful what purposivism Originalist interpretation of the Constitution you are wielding…”

                  Why would the result of a constitutional interpretation affect whether the interpretation is correct? It may well be that the original intent of the 14th Amendment was that it only applied to freed slaves. That’s what Slaughterhouse said. So what? A law passed today can’t change the original intent. I don’t change the facts to fit my views; I change my views to fit the facts.

  13. Let’s put aside the fact that the travel ban was not specifically against Muslims, but I’ll even concede that for the sake of argument.

    This article is missing some of forest for the trees. No one is really claiming that the Bill of Rights, or the Constitution in general, doesn’t apply to immigration law. Rather, the Constitution doesn’t apply to PEOPLE trying to immigrate to the United States. The US Constitution is, in fact, the law of the United States. It’s not the Constitution of the world. It doesn’t apply to citizens of foreign countries unless they are physically present in the US (or under US control, such as enemy prisoners of war). No one in the entire world has the right to immigrate to the United States.

    For that reason, foreigners outside the US who are trying to get in, simply have no standing to challenge US law. IIRC, in each of these cases, the plaintiffs have done some real contortions to circumvent that problem. In the Hawaii case, the action was brought by universities that said they would be hurt by the international students they lost. It’s a ridiculous argument to begin with, especially when the number of students applying to the University of Hawaii from countries on this list is exceedingly small.

    1. If you subjectively knew that the plaintiffs in these cases were Americans, why would you bother with the argument that this isn’t the world’s constitution?

      1. Because it isn’t the world’s Constitution. And to even bring a case, the plaintiffs had to contort themselves in knots to even claim standing to sue.

        1. When you said “the Constitution doesn’t apply to PEOPLE trying to immigrate to the United States” you knew that there were plaintiffs making the case who were not “PEOPLE trying to immigrate to the United States”. So why even say it?

  14. Trump made some politically incorrect statements, therefore perfectly legal policies can’t be implemented.

    This “animus doctrine” is going to end this country. The Left already believes that every conservative belief is motivated by animus.

    Therefore, every policy Republicans want to do that Democrat’s do not like is de facto unconstitutional due to animums.

    1. The Left is REALLY going to hate the country they are trying to force down people’s throats.

      1. The left is trying to destroy America, so they don’t care how inconsistent they are.

        The left does not want “discrimination” against gay people but wants to discriminate against religious people who do not want to do certain things for gay people.

        The left wants government to have guns but not he people.

        The left wants government to control American lives but not control non-Americans trying to enter the USA.

        1. What do you think my motive is for so rabidly trying to destroy America?

          1. You don’t believe people should be free, you believe humans are bad by default and should be ruled over and lorded over a small group of humans who share your political ideology.

            For our own goods, you see.

            1. Hehe, I love it when people tell me what I believe!

              I do not believe humans are bad by default. I’m not the one here saying people who disagree with me are an evil force.

              I believe groups of humans can do greater things than individuals, but that respecting the individual is the great insight Western Civilization gave the world. I’m not the one arguing that people who are Muslim should be pre-judged as bad and not as individuals.

              I also believe that giving the poor the freedom to to all sorts of things…but then they would starve? Not freedom at all.

              I want everyone to vote, which is not the conservative ideology. I see only one side arguing that only taxpayers should get to vote.
              Most importantly, I’m humble enough to realize I’m almost certainly wrong about all sorts of things I believe with certainty, and don’t think other people who I’m sure are wrong are not just wrong but evil.

          2. Sarcasto, you have to know the majority of the left wants to change the country, and quite profoundly at that. That love1789 sees this as “destroying America” is perhaps hyperbolic rhetoric, but it is still factually correct. It’s a bit to late for your brand of radical centrism.

            1. …assuming the logic… (new liberal America irreconcilable with America as founded = destroying America)

            2. Actually, I’m a boring incrementalist.

              Radicalism is not the same thing as liberalism. Is MAGA liberalism, because they sure want to change America!

              No one is completely pro status quo. Your definition encompasses everyone left, right, and center.

              1. “Radicalism is not the same thing as liberalism.”

                I know, but calling you a “radical centrist” (really an incrementalist) was an attempt at a joke. I see that it didn’t quite work!

            3. “Sarcasto, you have to know the majority of the left wants to change the country, and quite profoundly at that. That love1789 sees this as “destroying America” is perhaps hyperbolic rhetoric, but it is still factually correct. It’s a bit to late for your brand of radical centrism.”

              This argument has been used by those pushing backwardness and bigotry — against blacks, gays, the Irish, Hispanics, Asians, Jews, Italians, eastern Europeans, and others — for centuries in America. It is a loser, and those who advance it are losers.

              America has demonstrated itself to be sturdy enough to withstand the onslaughts of linquine with clams, enchilads, pierogis, kung pao chicken, bagels, Jameson, collard greens, and more. I think we can continue our arc of liberal-libertarian progress despite the latest batch of bigots pining for illusory “good old days.”

              1. “America has demonstrated itself to be sturdy enough to withstand the onslaughts of linquine with clams, enchilads, pierogis, kung pao chicken, bagels, Jameson, collard greens, and more. I think we can continue our arc of liberal-libertarian progress despite the latest batch of bigots pining for illusory ‘good old days.'”

                The fact that you think that the various immigrant groups’ influx into America (ironically alluded to with food), and the granting of full political rights for each of them, to also include women has NOT changed America profoundly from how it was as founded, means that you’re starting point for what makes “America” America must be about 1965.

              2. Liberals take the “leave the gun, take the cannoli” approach to multiculturalism. Muslims can bring all the culture they want to America as long as they support same sex marriage, abortion, and dressing their sons up as daughters.

                1. Yes. That’s what’s the funniest thing about a liberal’s vision of multiculturalism. They want a rich foodie scene downtown (which is admittedly nice) but assume that the religious Muslim will be a good neighbor with the gay couple who host swinger parties. What ends up happening, is that groups end up self-segregating.

    2. Great point, and many liberal beliefs are motivated by animus for white Christians such as same sex marriage and wanting more Muslim immigrants.

    3. Let’s try a reverse hypothetical: President Hilary Clinton signs an executive order regulating possesion of hunting weapons on federally-owned lands. A conservative District Judge strikes the order down, reasoning that (1) Clinton’s “basket of deplorables” comment reflects animus toward certain Americans, including those who own guns for sport, (2) the executive order in question has a disproportionate impact on those who own guns for sport, and (3) the executive order is therefore motivated by a desire to retaliate against certain Americans for exercising their Second Amendment rights and is thus unconstitutional.

      How many nanoseconds would it take before virtually the entire legal academic and media establishment screamed “GOP power grab!” and “judicial activism!” and “Lochner! Lochner! Lochner!”? And how many of the co-signers on Prof. Somin’s travel ban brief would be signing on a brief defending that decision?

      This is the door that opens when campaign rhetoric becomes not merely a tool of statutory interpretation, but an interpretative device that magically overcomes both the plain language of the enactment itself AND the maxim of interpretation that requires that an enactment be read so as to avoid an unconstitutional reading if at all possible.

      1. Kennedy started this with his Dignity Doctrine and his Animus Doctrine.

        He brought us to where we are today. Of course, animus only swings one way. No one would ever declare Bernie Sanders tax increases unconstitutional due to improper animus. Or a Hillary gun grab.

        Obama famously made a speech hating on whitey, why weren’t all of his anti-American actions like DACA declared unconstitutional because he hates white people?

        1. Funny how having a double standard causes you to see double standards and bad faith everywhere else.

      2. Nice counter-factual. However, I can’t think of any time the liberal legal field would ever scream “Lochner,” don’t they generally despise that case as it limited government authority?

        1. They do. That’s why they would scream it: they would be accusing the judge of acting like they claim the Lochner court acted.

          1. Whoops….thanks #2.

  15. Weird how so many on the right are suddenly arguing these rights are exclusively positive personal rights, not negative rights on government action.

    1. Not sure what you mean, but I think you’re miss-interpreting what the right would call a “natural right” with a positive personal right. My natural right to self-defense should give me the right to own a gun, that’s not a positive right as I don’t expect the government to provide it for me, but just that I expect the government to not prevent me from buying one (with the understanding that not all rights are unlimited).

      1. So all this argument that immigrants from another country ‘don’t have rights’ doesn’t seem to track with your understanding of how rights operate on government action.

        1. I hate to sound like a critical theorist, but rights are a product of collective belief expressed in the Constitution as a “contract” between a people and its government. If a group of people are not party to the contract, do they have the rights protected in the Constitution? If they come here and become citizens or legal residents, they do, but if they are in a foreign country, why should they? Besides, there are plenty enough people in the world that don’t believe in natural rights.

          1. See, here you’ve slipped to the positive idea of rights as held by people. But your previous comment says ‘ I expect the government to not prevent me from buying [a gun],’ which is a negative right.

            Are you saying prohibitions on government action only apply if you’re a resident or citizen who believes in them? Because that positive-negative paradigm is super restrictive!

            Negative rights are how the right usually sees the Constitution – as in ‘the Constitution grants only those powers it explicates in it’s text, and the Bill of Rights serves only to further constrain the government within those arenas.’

            Positive rights are how the left sees much of the Constitution (necessary and proper clause). And more – see FDR’s Four Freedoms.

            1. Naw, you’re mixing up the fact that a right is individual with it being positive. I can individually hold a natural right to self-defense, which is protected by a negative right in the Constitution that the government can’t restrict the right to keep and bear arms. Sounds silly, when expressed that way, but I think you understand.

              I am not sure what path you’re leading me down, because I remember our discussion in an earlier post out whether there were group rights, and you of all people convinced me that all rights are individualistic, though they may be used collectively.

  16. I still don’t understand how these arguments can be separated (on principle) from Prof. Somin’s other argument that essentially states that the US Government has no authority to regulate immigration.

    National origin and religion are inexorably intertwined. One cannot properly inquire into the religion of a person overseas, indeed, it is impossible to determine what a person really believes even as they sit in an American house of worship. Moreover, individualized inquiry and immigration law is not required. Stereotyping and statistics are the standard practice. Perhaps we would prefer that each immigrant application is decided on the merits, but that is not constitutionally required either.

    1. Great comment that highlights the absurdity of the plaintiffs many of whom despise all religions with Christianity at the top of their list. Why do liberals want more immigrants that have deeply held beliefs antithetical to liberal values?? The clear answer is that liberals are filled with so much animus towards white Christians that they believe the enemy of their enemy is their friend.

      Our immigration system should be solely based on merit and any inclusion of “diversity” as a factor is racism towards white Christians. I say that as a person that is willing to tolerate (reluctantly) diversity in college admissions because it relates to Americans…but even that is tainted because it helps children of Latino and African immigrants who we really should not be giving an advantage because their parents just happen to be immigrants.

  17. Does Professor Somin think that the recent expulsion of Russian diplomats constitutes an illegal act of discrimination based on national origin or against the Russian Orthodox Church? I can’t see how it couldn’t be if Professor Somin’s theory is correct. Indeed, any attempt to prosecute a war or repel an invasion could be nothing other than an endless serious of constitutional violations. Even if Professor SominFeb could somehow escape each and every alleged enemy soldier being entitled to an individualized hearing before any American is allowed to shoot, the enemy only take a few civilians, who are unquestionably innocent, and use them as human shields to completely paralyze us.

    Even if Professor Somin attempts to limit his argument to the Establishment Clause, and I see no basis other than his personal fiat for such a limitation, all a country need do to paralyze and best us is to establish a national religion and persecute dissenters. Any action against the country or its citizens would immediately become indistinguishable from an action against its national church, and could not but discriminate against it. Either this would paralyze us, or Professor Somin’s theory would only apply to major world religions and not ones limited to a single locality, effectively discriminating on the basis of religion.

    1. An excellent point about the naivety of the argument to the intentions of foreign states, pseudo-states, and nationals. Should Prof. Somin prevail, North Korea need merely establish a religion to receive carte blanche in sending in spies. The Vatican can never be banned even if they explicitly endorse bestiality and ISIS cannot be banned for wishing death on infidels.

  18. A difficulty with the premise is the importation clause. Professor Somin uses the clause as his hook to argue that aliens outside United States territory are persons for constitutional purposes. But a difficulty with this argument is the phrase “migration or importation.” Migration refers to voluntary arrival, it is an act of the migratory. But importation is an act of the importer, with the imported the objects, not the subjects, of the action. Importation contemplates kidnapping people and forcibly bringing them into this country against their will – precisely what happened under slavery, and precisely what the clause was originally understood to authorize. How can a clause which specifically contemplated forcibly importing people as articles of commerce be consistent with the idea of their having full rights.

    The constitution leaves foreign policy in its entirety to the political branches. It permits the sort of open immigration policies and globalist orientation Professor Somin favors. But it also permits nationalism, nativism, and xenophobia. Elections are the way to decide which direction we go.

    There is a difficulty with ignoring the constitution’s textual allocations of power and making the courts all powerful. What happens if the Supreme Court becomes corrupt? What check or balance would there be against it?

    1. Except that a Supreme Court that is corrupt and all powerful is the goal of the American left.

      Hating America is the motive.

      International Socialism is the end state.

      1. Hating America is the motive

        I’m on the left, and I’m pretty sure I love America. I’m also not really super into international socialism, much less International Socialism.

        Have you looked into people you disagree with being wrong but somehow not evil monsters with a secret agenda?

      2. Both the left and the right have punted to the Courts so often, that it’s a mixed bag there. Yes, yes…the left started it with the Warren Court…but both sides do it now. I would read this book on the matter, it’s actually very well written:

    2. Religion and ideology are very difficult to distinguish between so with respect to Americans we give them broad leeway about what they believe is a legitimate religion. Mormonism is an ideology and the federal government had multiple clashes with Mormons to the point many chose exile outside America. In 2018 we allow Mormons to claim they are a religion and we do not persecute them based on free exercise.

      With respect to foreigners we should NOT give them the benefit of the doubt and classify their set of beliefs as ideology. Many Muslims subscribe to a set of beliefs that is antithetical to American values and if our immigration system doesn’t allow us to prevent communists and Nazis and Islamofacists from infiltrating our society then the Constitution is nothing more than a suicide pact.

    3. Since in practical terms it’s impossible to get Congress to successfully impeach a Supreme Court justice, in practice there are two possible checks against the Court. (1) A party with a majority in the House, a supermajority of the Senate, and the presidency could pack the Court, as FDR and Obama threatened to do. While this has never happened, both threats were enough to make the Court knuckle under. Or (2) the president can simply disregard the Court’s orders and order the executive branch to do likewise, a precedent that Andrew Jackson set which is impossible to overturn except by amending the Constitution to give the Court the power to remove the president.

      1. Obama threatened to pack the Court? What are you on about?

        Nullification does not have a great history.

        1. He did pack the DC circuit Court

          1. The most Obama did to SCOTUS was jawbone them at the State of the Union, though Scalia supposedly thought they were spied upon. Alex Jones types think Obama had something to hold over Roberts for the Obamacare decision, but there’s no proof of that.

          2. ….do you know what court packing is?

            It isn’t nominating judges you don’t like for open spots.

    4. Reader Y, I thought the contested question in this discussion, viewed generally, boiled down to whether the Constitution permits selective nativism or zenophobia. Your comment asserts that it does permit those, as a premise. No contest, I guess.

      I add that I’m a nationalist, and think immigration ought to be regulated according to domestic policy needs, especially domestic economic needs. I would have nothing against a policy which shut all immigration down during periods of labor surplus, nor against a policy which said open the gates to all during a labor shortage. That seems supportable to me because every potential immigrant is potentially relevant in that kind of calculation. The national security immigration debate is of a different kind, because it distinguishes among immigrants.

      So what about policies which attempt to jigger the electorate, by admitting or denying specific groups of likely future voters according to predicted party partisanship? I suggest we see emergence of that tendency already, from both parties, and it is only getting stronger. I can’t begin to say what the Constitution tells us about that, but do think it is an issue which needs questioning and examination.

  19. Devil’s advocate: By inquiring into a president’s motive for giving an otherwise legal executive order, wouldn’t the Court be expressly trespassing into the domain of political decision making (that is, taking away a choice that belongs to a politician per se), where it has no business inserting itself?

    1. Animus is part of rational basis, which has been part of legitimate judicial review for the entire modern era.

  20. The only problem with the article is makes the assumption that the ban is targeting Muslims. The ban stops EVERYONE, not just Muslims. When the majority of Muslim countries are not affected by the ban, so you cannot say it is a Muslim ban. In addition, I have little regard from scholars who reside in the states most vehemently opposing any prohibition on immigration. Their opposition has nothing to do with the ban, but the person imposing it, period.

  21. “Nor does it matter that aliens do not have a constitutional right to enter the United States. There is equally no constitutional right to engage in interstate commerce that Congress chooses to forbid. It does not follow that Congress can restrict interstate commerce in ways that violate the Bill of Rights, including discrimination on the basis of religion. Similarly, the Supreme Court has ruled that Americans have no constitutional right to Social Security benefits. Yet it would still be a violation of the First Amendment for Congress to pass a law restricting Social Security benefits to Christians, or denying them to adherents of some disfavored minority religion.”

    That’s a terrible example because one reason aliens have no Constitutional standing here is that they are not physically present in the United States to begin with, so the Constitution doesn’t reach them. Your hypothetical example is entirely inside the United States, so the Constitution has jurisdiction.

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