My "The Hill" Op Ed on the Bill of Rights and the Travel Ban
Prof. Michael Mannheimer and I have coauthored an op ed explaining why the Bill of Rights limits federal power over immigration, and renders Trump's travel ban unconstitutional.
Earlier today, The Hill published an op ed on the Bill of Rights and the travel ban, that I coauthored with Prof. Michael Mannheimer (who is also my coauthor on an amicus brief in the travel ban case). Here is an excerpt:
The Supreme Court is about to hear a case challenging the legality of the latest version of President Trump's travel ban policy, which bars citizens of six Muslim-majority nations from entering the United States.
In virtually any other context, courts would likely rule that a law or executive order so clearly motivated by religious discrimination violates the First Amendment, which protects religious freedom and forbids the "establishment" of religion.
But the Trump administration claims that federal power over immigration is largely exempt from the constraints of the Bill of Rights. The president has it backward. No federal power can override the Bill of Rights…
The Bill of Rights was added to the Constitution precisely in order to limit federal power, because many feared that the new powers granted to the national government would be abused. The Bill of Rights constrains federal authority over immigration no less than other federal authority.
But the Trump administration claims that federal power over immigration is largely exempt from the constraints of the Bill of Rights. The president has it backward. No federal power can override the Bill of Rights.
The First Amendment states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Nothing here suggests that the First Amendment is limited to government actions within the United States or those targeting American citizens.
To the contrary, the amendment is a categorical limitation on federal power. "No law" means just that.
The text is reinforced by Founding Fathers-era practice. The Founding generation routinely applied the Bill of Rights as a constraint on U.S. government actions abroad, including those directed at non-citizens.
For example, it was taken for granted that suspected pirates captured at sea, whether U.S. citizens or not, were entitled to the "due process of law" guaranteed by the Fifth Amendment. Peaceful migrants surely deserve at least the same consideration as pirates.
I addressed some of the issues covered in the op ed in greater detail in various Volokh Conspiracy posts on the travel ban litigation. I have compiled links to many of them here.