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Evidence Indicates there is no "Extensive" Analysis Backing Trump's Travel Ban

Despite the administration's claims to the contrary, it appears that no such thing exists. Its absence strengthens the constitutional case against the travel ban.

During last month's Supreme Court oral argument on the the legal challenges to President Donald Trump's travel ban policy, Solicitor General Noel Francisco assured the justices that the president's numerous statements calling for a "Muslim ban" and equating that with his later "territorial" policy of targeting residents Muslim-majority nations, had no connection to the travel ban. Instead, Francisco claimed that the policy was actually based on an "extensive worldwide process" analyzing of the security risks posed by entrants from all of the world's 200 nations, which in turn resulted in a "neutral baseline" of security criteria that were evenly applied to "every nation in the world." Meanwhile, the administration refuses to release this supposed analysis to the courts (despite the availability of in camera proceedings under which classified information could be released to the judges but withheld form the public), and Francisco claims that judges must accord the president "a very strong presumption that what is set out there is the truth."

But, as David Bier of the Cato Institute explains in a recent post, the evidence suggests that no such "extensive" analysis or "neutral baseline" actually exists. All that actually exists is a perfunctory 17 page document with little or no analysis and evidence:

In justifying President Trump's travel ban to the Supreme Court last month, his attorneys repeatedly referenced a confidential report. They told the Court that this "extensive" analysis of "every country in the world" resulted from a "worldwide multi-agency review" and proves that the president did not act with religious animus....

In response to a [Freedom of Information Act] lawsuit by the Brennan Center for Justice in New York, the government disclosed that its final secret report filed in September was just 16 pages with a one-page attachment. Yet the president claims it reviewed "more than 200 countries," meaning it covered each country in less than a tenth of a page....

We now know that this 60-word average is actually too generous for most countries because the government has said that the report included the information on the eight targeted countries and the explanation for the ban contained in the president's 12-page travel ban order. If it dedicated the other five pages solely to the non-travel ban countries, this would leave just 16 words for each...

[T]he length of the report by itself gives the justices a very good reason to conclude that the government's report did not actually assess every country in the world in 16 words or less....

Maybe the president could rebut this impression, but any presumption that he had in his favor at the outset should be forfeited based on what we know now. The best evidence indicates that his "extensive" review simply never happened.

Perhaps Trump has some other super-secret, totally terrific study that justifies the travel ban more fully. But, at this point, there is no evidence that any such thing exists. If it did, the administration would have a strong incentive to reveal it, even if only in camera, or in some redacted form, to protect classified information. It also did not indicate the existence of any such more extensive study in its response to the Brennan Center FOIA lawsuit. If such a thing did exist, the government presumably would have had to reveal it in the response, even if it also claimed "presidential communication privilege" as a justification for withholding it (as it did in the case of the September report).

As Bier points out, the short and perfunctory nature of the final report that supposedly justifies the travel ban reinforces other evidence indicating that the security rationales offered by the administration are not the true reason for the policy. Far from consistently applying "neutral criteria" to all the nations in the world, as Francisco claims, the administration in fact applied its standards in a highly inconsistent manner. The security justification for the travel ban is also weakend by the fact that, in the forty year period for which we have data, no one has ever been killed in a terrorist attack on US soil by an entrant from any of the nations covered by travel ban. Had Travel Ban 3.0 been in place since 9/11, it would not have prevented the entry of a single terrorist (even one who did not commit any attacks on US soil). The risks posed by entrants from the nations covered by the travel ban are actually lower than those posed by native-born Americans.

When Noel Francisco told the Supreme Court that the the travel ban was based on a "extensive" worldwide analysis of security risks that came up with "neutral criteria" on which the travel ban was based, it is likely that he was either misinformed or attempting to deceive the justices. Either way the Court should not give any deference to such assurances from administration lawyers.

The paucity of evidence backing the travel ban strengthens the constitutional case against it. In cases where there is evidence that a seemingly neutral policy was actually motivated by unconstitutional discrimination on the basis of race, ethnicity, or (in this case) religion, the government must prove that it had a legitimate basis for the policy that would have led it to adopt it anyway. The administration claims that the "extensive" worldwide study and the "neutral" criteria developed as a result of it qualify as such a rationale.

If the supposedly extensive analysis doesn't actually exist, and the "neutral" criteria are not being consistently applied, that makes it even more likely that Trump's true motive in adopting the travel ban was to make good on his "Muslim ban" campaign promise. It also suggests he was telling the truth when he repeatedly said that the "territorial" policy embodied in the travel ban is just an extension of the Muslim ban. The nations included in the ban were chosen because they are overwhelmingly Muslim, not because entrants from those countries pose any special security risk. For reasons I summarized here, the inclusion of North Korea and a few Venezuelans in the ban does not alter this conclusion, since their addition to the list bars almost no entrants who might otherwise have come in. The fact that the policy does not cover all the Muslims in the world also should not be decisive.

The administration's defenders argue that the government deserves special deference in immigration and national security cases. In an amicus brief I coauthored on behalf of several fellow constitutional law scholars, we argue that such special deference is unwarranted because the First Amendment's restrictions on religious discrimination constrain federal power over immigration no less than all other exercises of federal authority. A long history of cruel, abusive, and often bigoted policies also shows that it is dangerous to give special deference in immigration and national security cases. But even if some degree of special deference is generally appropriate, it should not apply in a case where there is strong evidence that the government is not acting in good faith. The main justification for deference is the executive's special expertise on national security matters. But that expertise is irrelevant in a case where national security is not the true motive for the policy in question.

The travel ban litigation is not the first time an administration has tried to mislead the Supreme Court about the true motives for a discriminatory policy defended on national security grounds. In the now-notorious 1944 Korematsu case, the Justice Department claimed that Franklin D. Roosevelt's policy of forcibly interning over 100,000 Japanese-Americans was motivated by security considerations, rather than racism, and in the process withheld evidence indicating that the military did not consider the Japanese-Americans to be a genuine threat. The Justice Department belatedly admitted this deception in 2011. Ironically, the then-acting Solicitor General who issued the 2011 apology, was Neal Katyal, who currently represents the state of Hawaii in the case against the travel ban.

Perhaps a future administration will someday apologize for the government's misconduct in the travel ban case. In the meantime, we must hope that the Supreme Court will not let the government get away with it this time around.

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  • Brett Bellmore||

    This strikes me as utterly irrelevant to the real question, which is who is actually empowered to make such decisions.

  • Allutz||

    Agreed. Also I think it is a bit of goalpost moving, because it seems to me that there is no analysis that would satisfy Somin & Bier.

  • Martinned||

    Yes, can you believe this outrageous prejudice against the president? Not even willing to give him the benefit of the doubt, but simply making bad generalisations about him without any evidence whatsoever? How rude!

  • JesseAz||

    In your world Chevron apparently stopped functioning because of "but Trump."

  • Martinned||

    Wait, you want to argue Chevron deference here? I'm pretty sure Chevron deference does not mean that agencies get to have their own interpretation of the constitution.

  • Brett Bellmore||

    If your complaint is, "Not enough analysis backing up the decision", it's not a question of constitutional interpretation. Because no amount of analysis would authorize you to violate the Constitution.

  • Martinned||

    That's just circular. Certain analysis showing certain things would amount to a showing of rational basis, etc, making the proposed action not unconstitutional. None of that has anything to do with Chevron deference.

  • Brett Bellmore||

    Once you're in "rational basis" territory, the courts don't normally require that you actually have demonstrated a genuinely rational basis. They're normally content that they can imagine a basis that's not gibbering insanity, and never mind that it's not the basis you actually used.

    It's "strict scrutiny" that requires the law or action actually have a genuine rational basis.

  • Sarcastr0||

    That's the interesting aspect of animus, Brett - does evidence of an irrational basis rebut the general presumption of validity? What if you add pretextual actions to cure the original evidentiary record?

    I'm not sure the Court wants to get into that thicket, I do think it's pretty interesting, if probably academic, inquiry.

  • ||

    Unless, of course, you're referring to infringements on the 2nd Amendment, in which case the legislature is entitled to full deference to whatever "judgment" it makes based on basically no evidence.

  • Sarcastr0||

    Except that is not anything like what Second Amendment jurisprudence is like, even just based on what you see on this blog.

  • ||

    Have you read Kachalsky? Drake? Woollard? Peruta (en banc)? Highland Park? Jackson v. SF? Kolbe? That's EXACTLY what it's like.

  • Sarcastr0||

    Intermediate scrutiny, reasonable regulation analysis...none of the confirmation bias cherries you picked are what you describe.

  • Allutz||

    TBH, I wasn't talking about so called "Trump Derangement Syndrome", more about any immigration restriction policy. Somin has demonstrated that he doesn't think any policy is legitimate.

  • Martinned||

    But what has he demonstrated about policies being legal?

  • VinniUSMC||

    That any policy involving Trump is not legal.

  • Martinned||

    Seems like a reasonable heuristic.

  • Martinned||

    It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is.

  • JesseAz||

    Yet the law granting the power to restrict visas from foreign countries rests the decision solely in the executive. Weird you didn't mention that.

  • Tatil Sever||

    Solely up to the executive ***within constitutional limits***

    Still, I thought a very cursory analysis would be enough to satisfy the courts, so I'm surprised that the ban is being litigated for so long. People from the countries subject to Trump's ban, along with people from China and many other poor or Muslim nations, has been having a hard time obtaining or renewing visas for at least a couple of decades now. For example, I don't remember anybody asking an evidence based analysis justifying the policy of issuing only single entry visas to Chinese nationals.

    Sure, some of these restrictions or denials are arbitrary on a case-by-case basis rather than through an arbitrary or allegedly discriminatory blanket, but it is easy for State Dept (or an embassy) to tighten standards and encourage denials in particular countries. Media wasn't interested in digging into the consistency of these decisions between countries or religions until Trump became president and I doubt they will keep an eye on this subject when presidency changes hands.

  • Krayt||

    Within constitutional limits means no religious motivation, etc.

    It does not mean the judge gets to second guess the quality of a value judgement of a branch directly assigned a power. That's up to the people to decide.

    In all the arguments so far, fine, but not this one. Unless you want the courts tossing the rational basis test and requiring both legitimate reasons, not cover stories for laws passed for other reasons, and detailed evidence for those reasons.

    Oh, maybe that's a lovely can of worms to open!

  • Sarcastr0||

    That's not what the OP argues - it argues the slapdash nature of the value judgment is more evidence of it being pretextual.

    It's not being put forth as proof of the matter asserted, but rather to impeach the veracity of the administrations' claimed motives.

  • FlameCCT||

    Hell, military age males from Russia and other aligned FSU (Former Soviet Union) countries have been denied visas for decades.

  • Martinned||

    Not weird, irrelevant. The question is who gets to say whether a given policy is an unconstitutional establishment of religion. And that would be the courts.

  • VinniUSMC||

    "Establishment of religion"...

    It's like you progtards just keep trying to out stupid each other.

  • Martinned||

    Just because you only respect the constitution when a democrat is in office, doesn't mean that the rest of us have to be just as morally flexible.

  • ||

    The Constitution doesn't implicate immigration policy whatsoever, and no legitimate argument exists that it does.

  • Martinned||

    If that's really your view, I suggest that you get off your lazy *ss, get the local posse comitatus together and do something about these illegitimate judges who seem to disagree with you.

  • ||

    Plenty of left wing political hacks masquerading as judges are out there. What's the issue?

  • Martinned||

    My point is that talk is cheap, particularly on the internet. If you're going to accuse judges of not simply being wrong, but being "illegitimate", you should put your money where your mouth is.

  • Sarcastr0||

    This is where he says it doesn't matter because the dollar is going to collapse any day now and then the race war will start.

  • ||

    I didn't say any day now, but it will eventually (I think more like 10-20 years)

  • FlameCCT||

    Hate to burst your bubble however a travel ban/denying entry to the USA, even one based on the major religion of a country, does not violate the Constitution.

    But please continue to believe the propaganda and lies from Somin.

  • Martinned||

    Sure, why wouldn't I trust what some anonymous guy on the internet says about the correct interpretation of the Constitution over the considered judgements of several dozen federal judges?

  • Brett Bellmore||

    If federal judges automatically, without any exception, must have their take on the Constitution respected, we don't have a Constitution. We have a ruling council of elders which ritually invokes the Constitution when they issue their commands.

    The actual sovereign reserves the right to question the decisions of the merely delegated sovereign.

  • bernard11||

    You seem pretty eager to anoint yourself as the ultimate authority.

    I'd prefer the judges.

  • aluchko||

    Empowered to decide which travellers to exclude from the US on the basis of their religion?

    According to the US Constitution, no one.

  • M.L.||

    Just for the sake of argument, what if your religion prescribes a totalitarian theocracy, and the murder and subjugation of anyone who doesn't convert or submit? This is not the Muslim religion (not to all at least), this is just a hypothetical.

  • aluchko||

    My first thought was that you might be able to justify some sort of ban or at least extra screening, but I'm not sure that's the case.

    Consider the killing of abortion doctors, there's a non-trivial percentage of Christians who think this is justified and even something to be celebrated.

    I couldn't find specific polls, but I'm sure in the US this number of Christians is in the millions.

    But you don't see millions of US Christians following through on this belief, in fact it's been 2.5 years since the last abortion doctor was murdered.

    So just because someone believes their religion promotes or even commands X doesn't actually mean that person is a risk to perform X.

    Now I don't know how many Muslims would agree with the statement "my religion commands that I kill or subjugate unbelievers!", particularly not in the countries in question.

    But I do know that number doesn't really matter, because agreeing with the statement doesn't mean they're a risk to act on the statement. A fact that's born out by the utter lack of visitors from those countries performing attacks in the US.

  • Brett Bellmore||

    Considering the number of Christians in America, and how few abortion doctors get murdered, I'd say that it actually IS a trivial percentage. It's not like Muslims, who manage to be responsible for about half the terrorism in America while being under 1% of the population.

    There have actually been poll on the question of how many Muslims agree with that particular command. It's in the low double digits. Which is reassuring if you think, "Only one Muslim in five or ten supports terrorist violence" is reassuring.

  • Martinned||

    By that logic: How many Americans support torture?

  • Sarcastr0||

    'Am I reassured' is not a question that should effect the Constitutionality of anything. Smacks of wanting security, sacrificing liberty, getting neither.

  • aluchko||

    Half? It's actually more like 1/3rd. And there's a reason to think even that is an exaggeration the thwarting rate is more than twice as high for Muslim incidents, suggesting some of the incidents wouldn't have happened without the encouragement of FBI informants.

    Again, neither of us has found a poll on the support for abortion doctor murders (but I doubt it's "trivial") but like the corresponding Muslim statistic it doesn't really matter since so few people carry through on those beliefs.

    Of course, this doesn't even touch the travel ban, for which the intersection between "terrorism threat" and "banned countries" is laughable.

  • Brett Bellmore||

    There's also reason to think that's an understatement, given how reluctant the government is to concede that terrorist acts by Muslims are actually Islamic terrorism. It literally took an act of Congress to get the government to admit the Ft. Hood attack was terrorism!

    But even a third would be impressive for a group that's under one percent of the population.

  • mad_kalak||

    Citation please on that survey of Christians who say "murder of abortion doctors is okay."

  • M.L.||

    aluchko,

    You have ignored the question entirely. If someone professes a belief in a totalitarian political, religious and economic system, that is enough reason to deny immigration, even without the subjugation and murder, regardless of whether they call this a "religious" belief. Even assuming the Establishment Clause can apply to immigration policy, these beliefs are not within the purview of the personal, individual spiritual belief systems that the Constitution refers to as religion. The so-called separation of church and state should make that clear.

    Aside from the point, this is a strange delusion you have, that millions of Christians in the US think we should murder abortion doctors. On the contrary this is maybe a few dozen lunatics. As for what Muslims believe, there are a plethora of polls from around the world you can look at. For example, Pew Research (2010): 84% of Egyptian Muslims support the death penalty for leaving Islam. But again, this is aside from the point of the hypothetical, which is assuming that such beliefs were clearly dictated and religious texts and generally held.

  • mad_kalak||

    Without false equivalencies between Christians and Muslims, we wouldn't have any equivalencies at all it seems.

  • aluchko||

    There's 300 million people in the US, do you really think you can't find a few million who agree with the statement:

    "Abortion is murder and abortion doctors should be subjected to the death penalty?"

    Just 1% of the population gives you 3 million people, even if you reduce the percentage to ridiculously small numbers you still have hundreds of thousands. It should be obvious that the vast majority do not act on those beliefs.

    As for your main argument I didn't ignore the question, I just addressed it in a fashion that undercut your argument.

    Ascribing to a religious belief does not mean you will act on that belief.

    ie, A Muslim who believes his religion commands that infidels should be killed is no more likely to kill infidels than a Christian who believes abortion doctors are murderers (who should be killed) is likely to kill abortion doctors.

    As for those Egyptian Muslims, how many US Christians have beliefs that are completely at odds with the US Constitution? You even put Ted Cruz (if not a Dominist quite close to one) at the finishing line of a Presidential primary.

    The problem with your argument is you're assuming that most Muslims act on those beliefs, and would do so in the US. But they're fundamentally no different from devout Christians, they may say a bunch of crazy things and vote for crazy people, but they're personally harmless.

  • M.L.||

    The point you have ignored is this: Even if it were true that immigration selection cannot be based on religion (and it's not -- see our longstanding refugee policies), you will have to specify what you mean by religion. We restrict immigration based on all kinds of factors, and it is not enough for someone to simply claim that some factor is a function of their religion.

    If you profess belief in a totalitarian theocracy, where those who don't convert must be subjugated and those who don't submit must be killed, that is clearly a valid Constitutional basis to select some other immigrants over you -- just like it is valid to restrict your "free exercise" of that "religion" within the nation, or to have laws that disfavor your efforts without running afoul of the Establishment Clause . That's because these beliefs are not within the purview of what "religion" means for purposes of the US Constitution.

    1/2

  • M.L.||

    2/2

    The same would apply to someone who believes that government should control all speech, or that abortion doctors should be extra-judicially murdered or killed (which is very different from believing that abortion should be illegal even including the death penalty, even though you are equivocating between the two). But when it comes to the legality of abortion, the point about immigration still applies. The American people could democratically decide that views on abortion should be a factor in immigration, and those who think abortion should be illegal will be disfavored. I see no reason whatsoever why that would be unconstitutional.

    Lest you miss the point yet again, the above applies regardless of whether we are talking about Christians, Muslims, or some other religion that will be invented next week.

    Aside from the point at hand, you are incorrect that Islam, Christianity, and maybe other religions too in your view, are "fundamentally no different" than one another. The truth is that the various religions are fundamentally very different, but superficially similar.

  • M.L.||

    Also, your point that people may not always act on what they claim to believe is quite irrelevant for purposes of determining what is constitutional, even far moreso than me claiming my religion is to kill you so it must be allowed. For the record, though, it is self-evident, and also empirically well established, that genuinely held beliefs profoundly influence actions.

  • FlameCCT||

    Wrong again but I'm not surprised.

    The Constitution does not apply to those not under its jurisdiction, i.e. non-US citizens living in other countries.

  • Sarcastr0||

    This is US government action. The Bill of Right's carveouts apply to all US government action.

  • Brett Bellmore||

    No, this is, literally, a refusal by the US government to act. A denial of action.

    And it deprives the denied no right they ever had. They can go on exercising their religion somewhere else, and they never had any right to enter the country in the first place.

  • Sarcastr0||

    The argument seems to be that it's more a lemma than a completely dispositive factor.

    For no good reason, I'm growing more pessimistic about the chances of the Supreme Court caring, though.

  • Brett Bellmore||

    I'm optimistic about the Supreme court caring. My expectation is that they're going to slap down this trend of random judges dictating US policy on the basis of not liking a particular President.

  • Stormy Dragon||

    To be fair, 17 pages probably counts as extensive for this administration. That's more than two whole weeks of reading! Three if he goes golfing on the weekends.

  • bernard11||

    Francisco claimed that the policy was actually based on an "extensive worldwide process" analyzing of the security risks posed by entrants from all of the world's 200 nations,

    What utter BS. Here's a simple question: Can you show us the analysis? If he can't, he's lying. Period. End of story. I suppose sanctioning the Solicitor General for lying to the Supreme Court would horrify lots of the commenters here.

    Not me. These people are scum.

  • JesseAz||

    Wait... Now Democrats want to see the analysis and raw data? Liberals just spent the last year fighting Pruitt trying to make all climate modeling and EPA studies open to the public. So confused.

  • Martinned||

    They did? Cite...

    In any case, I'm not sure why you would want to pick as your example the guy who got appointed to the EPA with the express instruction to run it into the ground. That doesn't sound like solid policymaking to me...

  • bernard11||

    Scott Pruitt - champion of science and objective research. That's why he only wants industry representatives on panels. Are you effing kidding?

    Even leaving his worse than abysmal ethics aside this guy is a complete disaster. Transparency? He kicks reporters out of his meetings. Guess he wants to stay in his soundproof booth.

  • Sarcastr0||

    Jesse really does buy every single obvious pretext the GOP puts forth for their agenda. It's amazing.

  • DavidTaylor||

    You have the Pruitt push backward. Pruitt wanted to be able to reject any study based on data that were not ALREADY public. That was a strategy to exclude, for example, all of those inconvenient studies that document climate change and human activity's role, since the basic data in such studies is rarely public in the way Pruitt wants.

    And it would be a selective application of such a policy in any case. Recent reporting has revealed that the EPA has a habit of enacting policy based on no attention to actual research at all, public or private, but simply using industry proposals and talking points.

    So yes, Democrats and those pesky liberals DO want to see analyses and data, whether for the EPA or travel bans.

  • Scarecrow Repair & Chippering||

    I suppose sanctioning the Solicitor General for lying to the Supreme Court would horrify lots of the commenters here.

    I wonder what you thought about the previous administration's lies over the Obamacare penaltax and so many other things, or Bill Clinton's lies about "is". I would not be surprised to find the last two Presidents who outraged you were named Bush.

    By all means, leave us selectify our outrage.

  • Martinned||

    Which lies would that be?

    Bill Clinton should have been punished for perjury. Next question.

    Also, Bush sr. was one of the better presidents the US has ever had. Which is why he's said repeatedly that he'd rather drop dead than vote for Trump.

  • Brett Bellmore||

    And he was a one term President, because so many people didn't agree with you about him being one of the better Presidents.

  • Martinned||

    Tbf, Clinton was pretty good as well.

    In any case, the merit of presidents is often only apparent with hindsight.

  • bernard11||

    SR&C,

    I'm talking about a lawyer working for the government making false statements in a Supreme Court case.

    And if you want to start sanctioning politicians for lies I'm all for it. Where do you think Trump would come out?

  • Bluepike||

    I wonder if the good professor Somin has read anything written by the recently late Bernard Lewis?

  • M.L.||

    No extensive analysis?! That's an interesting new rational basis standard.

    I wonder why Obama's travel restrictions on these nations were never challenged?

  • Martinned||

    Yes, silly courts insisting that the parties before them don't lie to the court... How unreasonable!

  • Sarcastr0||

    Are you arguing that Obama's travel restrictions were not carefully vetted? Or do you think Trump can incorporate Obama's more careful procedures when using that list for a different purpose?

  • bernard11||

    Deep state conspiracy is my guess.

  • ReaderY||

    When courts review the constitutionality of a declaration of war - for surely, if such minor foreign relations sanctions as holds on immigration can violate the Establishment Clause, certainly so can wars, so if courts have jurisdiction to review the one, surely they must must have jurisdiction to decide the other - can the courts stay all combat activities until a sufficiently extensive rationale has been developed establishing that the war is constitutional?

    What should the citizens in the cities or military units that get nuked in the meanwhile do?

  • Martinned||

    I'm not sure how declaring war on a - presumably foreign - country could establish a religion in the US, but someone is welcome to put that question to a court. If military units get nuked while such a question is pending, the US must have a really, really incompetent president...

  • VinniUSMC||

    Obviously all that it would take would be for Trump to do it and the country to have a Muslim living in it. That's the current standard that makes his "travel ban" "wrong".

  • ReaderY||

    I agree, but a travel ban works exactly the same. Professor Simon ignores that a travel ban is an act of foreign relations. It's as much a foreign relations sanctions as declaring war, just a lesser one. Thinking that the Establishment Clause applies to it treats it as if it were nothing more than a private matter between the United States and the individuals involved.

    But the same could be done with war. Shooting at a foreigner could also be treated as nothing more than a private domestic matter between the United States and the individual foreign countries shot at. If prospective entrants can sue claiming a travel ban on their country constitutes religious discrimination against them, why can't foreign soldiers sue, as individuals, claiming that they are being shot at because of their religion and shooting at them constitutes religious discrimination.

    Professor Somin has explicitly said he believes the Establishment Clause limits all federal powers and does not end at the waters' edge. The war power is a federal power. This means that if courts find a declaration of war is based on religious motives, courts can declare it invalid and order the war to halt. Why shouldn't foreign governments involved in wars with the United States take full advantage of this and immediately sue as a basic act of military strategy?

  • Martinned||

    An immigration ban affects the number of adherents of various religions present in the US. As such, it is a matter of domestic religious policy.

    If the President declared war on a foreign country for no other reason than that it was a muslim country, I'm not sure why it would be a bad thing for the courts to tell him to stop. That said, I don't think the establishment clause argument would work for the reason set out above. Free exercise might be more plausible. (You can't really practice your Muslim faith if you're dead.) Generally I agree that the Bill of Rights should apply to all sovereign acts, regardless of where they take place.

    None of this explains why lawfare would be a problem in a situation such as this. It would only be if the foreign government in question could get a preliminary injunction, which seems wildly doubtful absent a strong case on the merits. (When, again, it would be a good thing.)

  • ||

    The only way your declaration of war being unconstitutional because "you can't really practice your Muslim faith if you're dead" makes sense is if you presume that Free Exercise applies to non-citizens living abroad. It does not. And an immigration ban doesn't affect any adherents in America unless you count "hurt feelings" as a harm.

  • Martinned||

    if you presume that Free Exercise applies to non-citizens living abroad. It does not.

    Well, that was the question, wasn't it? You will note that I wrote "should". I didn't say that the first amendment did in fact apply in this way, under current case law.

    As for the immigration ban and the establishment clause, keeping certain religions out of the US is an excellent way of establishing a religion, because it increases the share of adherents of the government's favoured religion/decreases the share of the population belonging to the government's disfavoured religion.

  • Sarcastr0||

    This is the same dumb logic as using the ticking time bomb hypothetical used to justify torture.

    Wars have different exigencies than immigration policy. They are already treated differently under Constitutional analysis.

  • aksel||

    To be fair - an analysis need not be textual. There are about 200 countries in the world.An astronomer can analyze a million stars in a research paper with statistics. It is not far fetched to think you could run some regression on 200 countries and come up with some pattern. Doesn't mean it is an exhaustive analysis, but nor does it mean there is none at all.

  • Sharper||

    Yeah, if I was going to analyze and compare every country in the world in a report, I'd come up with at most 10 key criteria (and probably only 3-5), then make a table with one country per row and a column for each criteria and mark them on each criteria, with a notes column on the end for anything unusual that needed to be called out.

    That'd take maybe 4 pages of a report to cover 200 countries.

    With the other 13 pages, you could focus a page or two on each of the countries proposed for a ban, with the specifics of the criteria they'd failed and what the risks were perceived to be.

    Does anyone really think the analysis of say, the UK or Canada, is going to take much space? The 17 pages isn't going to be the analysis, it's going to be the report on the results of the analysis, basically just calling out the differences and areas of concern.

    I'm very pro-immigration, but if you're going to restrict visa applications from certain countries, then coming up with a list of risk factors and then ranking them on those risk factors is probably the most reasonable way to decide which ones to restrict. At least it has the semblance of process.

  • jph12||

    I tend to agree. I could even see omitting any discussion at all of the countries that passed in the final report. This isn't a law review article where they are trying to suss out minute differences between the policies of the various countries. Judging the extent of the analysis by the length of the final report seems a little silly.

  • mad_kalak||

    Funny thing is, in government, you never expect anyone to read past the executive summary on anything. It's common to ask for the "BLUF" or the Bottom Line Up Front when you brief senior personnel.

    I wonder if the OP would like Trump to be like Rodney Dangerfield in the movie Back to School when he was handed an already huge paper that he had paid someone to write for him, Rodney says "it's too small, add some more charts and graphs."

  • Brett Bellmore||

    "Francisco claimed that the policy was actually based on an "extensive worldwide process" analyzing of the security risks posed by entrants from all of the world's 200 nations, which in turn resulted in a "neutral baseline" of security criteria that were even applied to "every nation in the world." "

    Perhaps he should have clarified that the analysis was carried out by the Obama administration? In as much as the list originated with the Obama administration, with Trump merely deciding that enhanced vetting wasn't good enough, and ordered a ban, instead?

    It's subsequently been modified as countries started cooperating, but the list did start out as Obama's list.

  • Martinned||

    ...and you know this how? (Fox & Friends doesn't count as a source)

  • Brett Bellmore||

    Because I'm not an idiot who doesn't follow the news?

    "(CNN)— The seven Muslim-majority countries targeted in President Trump's executive order on immigration were initially identified as "countries of concern" under the Obama administration.

    All Trump did was decide that enhanced vetting wasn't good enough.

  • Martinned||

    ...and why did he do that? Go ahead... Prove that you're not an idiot...

  • Brett Bellmore||

    So, I take it you're conceding that the actual list of countries originated with the Obama administration, and are now merely disputing whether a sitting President is entitled to disagree with his predecessor about how to respond to the problems with those particular states?

  • Martinned||

    No, I'm disputing whether a sitting President is entitled to grab a list drawn up by his predecessor as a pretext for a discriminatory policy.

  • Brett Bellmore||

    If the policy was discriminatory, it was so during the Obama administration, too. Same exact basis for the selection of countries, because Obama selected them.

  • VinniUSMC||

    Shorter Ilya: "But Trump!!"

  • apedad||

    Shorter pubs: "But Obama!!"

  • Sarcastr0||

    Weird how such a contentless post has generated so many substantive comments. Almost as though you're the one with the unthinking bias.

  • David Bernstein||

    "no one has ever been killed in a terrorist attack on US soil by an entrant from any of the nations covered by travel ban." But a few dozen Somalians in the U.S. have been arrested on terrorism charges, and if they hadn't been, some of them would likely have become domestic terrorists. www.npr.org/series/102787287/t.....rist-axis. Doesn't mean the travel ban is a good way of dealing with terrorism, but to suggest that there is *no* substantial threat from any of these countries is disingenuous.

  • bernard11||

    So now trump is worried about domestic terrorists?

    He seemed to be fond of them when they showed up in Charlottesville.

  • mad_kalak||

    While what happened in Charlottesville was not optimal to say the least, it was not terrorism and the protesters not terrorists. Terrorism is generally defined as the use or threatened use of violence to influence government policy.

  • bernard11||

    Not optimal. No.

    The FBI definition:

    Domestic terrorism: Perpetrated by individuals and/or groups inspired by or associated with primarily U.S.-based movements that espouse extremist ideologies of a political, religious, social, racial, or environmental nature.
    --for example, the June 8, 2014 Las Vegas shooting, during which two police officers inside a restaurant were killed in an ambush-style attack, which was committed by a married couple who held anti-government views and who intended to use the shooting to start a revolution.

    Wikipedia shows that US government agencies use a variety of definitions, most of which do not require an intent to change government policy.

    The Patriot Act, for example, defines domestic terrorism as

    "activities that

    (A) involve acts dangerous to human life that are a violation of the criminal laws of the U.S. or of any state;

    (B) appear to be intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and

    (C) occur primarily within the territorial jurisdiction of the U.S."

    So it is inaccurate to say that Terrorism is generally defined as the use or threatened use of violence to influence government policy.

  • Martinned||

    Euh, the (B) bit of that last definition essentially simply gives a longer version of "an intent to change government policy", so you may want to look a little harder for an example to back up your point.

    Sometimes definitions of terrorism are ridiculously broad. That's hardly something to be celebrated.

  • Bob from Ohio||

    Those definitions are both consistent with what mad said.

    The murder/injuries at Charlottesville were bad enough without shoehorning them into terrorism.

  • mad_kalak||

    Perhaps I should have called them Freedom Fighters, because after all, one man's terrorist is another man's freedom fighter.

  • bernard11||

    That was one definition.

    And if ideologically motivated violence implies an intent to influence government policy then I'd say those fine people in Charlottesville were trying to influence government policy.

    Did you read the FBI one?

    Perpetrated by individuals and/or groups inspired by or associated with primarily U.S.-based movements that espouse extremist ideologies of a political, religious, social, racial, or environmental nature.

    Again, if you want to suggest that "extremist ideologies" implies wanting to influence government policy, go ahead, but then don't exempt racists.

    Was Klan violence terrorism? I mean, they were trying to terrorize people, though the motivation was racial hatred.

  • Bob from Ohio||

    "Did you read the FBI one?"

    Did you?

    "who intended to use the shooting to start a revolution."

    influence government policy in other words

  • bernard11||

    Do you know the difference between a general definition and a specific example? I guess not.

    Suppose I say that one example of premeditated murder is a man deciding to kill his wife to collect insurance, and then doing it. That doesn't mean that a homicide is only murder if insurance is involved.

  • bernard11||

    The murder/injuries at Charlottesville were bad enough without shoehorning them into terrorism.

    Because heaven forbid we describe right-wing violence as terrorism.

    Was Timothy McVeigh a terrorist?

  • Bob from Ohio||

    "Because heaven forbid we describe right-wing violence as terrorism."

    Nice strawman.

    "Was Timothy McVeigh a terrorist?"

    Of course

    From the horse's mouth:

    "I chose to bomb a federal building because such an action served more purposes than other options. Foremost the bombing was a retaliatory strike; a counter attack for the cumulative raids (and subsequent violence and damage) that federal agents had participated in over the preceding years (including, but not limited to, Waco)." https: //www.theguardian.com /world/2001/may/06/mcveigh.usa

    Puzzling why you are so invested in seeing all murders as terrorism.

  • mad_kalak||

    Based upon my understanding from reading numerous news accounts, and watching the videos of it from various angles, that the right-wing protesters were surrounded by left-wing counter-protesters after the police stood down. At least one left-wing counter-protester hit the car. The man who was later arrested then sped his car through the crowd, resulting in one woman dying from medical complications after being hit. Either way, a woman died as a result of the man's actions.

    Unless you're trying to score some whataboutism points, the attack (or murder) is not "terrorism," because:
    1) the man did not plan it, and had there been no crowds, he likely would have driven away
    2) it could have done much worse if he had just swerved onto the sidewalk, which indicates that the attack was spontaneous and not about causing terror and deaths to the maximum extent possible, as terrorists are wont to do. You have to say that he intended just a "small" terror attack to kill just a few people, and not lots, if you say otherwise, which defies rationality, as does arguing incompetence on the part of the attacker.
    3) to label it "terrorism" you have to prove that the motivation for the sudden acceleration was a desire to change government policy, because legally he was allowed to be there to protest to change government policy.

    In sum, if I killed a pro-lifer if a fit of anger or stupidity while leaving a Planned Parenthood event, is that terrorism?

  • John Rohan||

    "no one has ever been killed in a terrorist attack on US soil by an entrant from any of the nations covered by travel ban."

    That's a VERY carefully parsed statement. Using the qualifiers "killed", "terrorist attack", "on US soil". People on the ban list have been arrested for plotting terrorism in the United States, they just didn't kill anyone yet. People from the travel ban countries have killed on US soil, however those killings weren't technically considered terrorism (even though I would add so-called "honor killings" to what is considered terrorism). And finally, people from travel ban countries have killed others in terrorist incidents, but those were outside of US soil.

    However, this kind of hair-splitting word play is not only ridiculous, but it assumes that we aren't allowed to do anything pre-emptive, and must wait until people are killed before we can take action.

    Moreover, the travel ban isn't just about terrorism anyway! It's also about criminal elements, as well as espionage. The whole point was that the countries on the list could not or would not cooperate with providing us criminal background checks.

  • mad_kalak||

    Quite right. We just had a case in Minnesota where millions in welfare fraud money was sent overseas to fund terrorists groups. Since no one was killed, you know, it's no big deal.

    BTW, I hovered my mouse on your username and the website name "shieldofachilles" piqued my interest. When I click on it, I get to a site where it is either Chinese or Japanese and it translates to an advertisement for credit cards. What's up with that?

  • John Rohan||

    I didn't know it still linked to that. That was a blog I ran long ago, it is no longer active.

  • Bob from Ohio||

    "That's a VERY carefully parsed statement. "

    What, you expect Trump opponents to argue in good faith?

  • Martinned||

    Everybody knows that only President Trump argues in good faith.

  • bernard11||

    Bob,

    Good faith?? Are you kidding me?

    We're talking about a President who just this morning claimed that a WH official who gave a briefiug to a room of reporters didn't exist and no one ever gave such a briefing.

    You are defending a total sleaze, an utterly contemptible human being. For what? A tax cut?

  • Rev. Arthur L. Kirkland||

    Noel Francisco left a fine job to promote authoritarian, bigoted policies with falsehoods.

    I gather he is a star at the Federalist Society.

  • MonitorsMost||

    You are asking for a new level of scrutiny for executive orders and those in relation to immigration in particular. Which is fine, but just be explicit that you are seeking a new rule, not application of preexisting law. As has always been the case, the First Amendment challenges are controlled by Mandel which says Trump wins regardless. I'm totally okay with SCOTUS overturning Mandel because I thinks it's wrong and an anachronism. But that's a job for SCOTUS, not the 4th Circuit or the district courts.

  • DjDiverDan||

    Somin, will you please give it a rest on the Travel Ban? You are not doing anything positive for your credibility with these silly screeds. And I say that as someone who is no fan at all of either Trump or the Travel Ban (or Trump's idiotic immigration policy in general, or his foolish reliance upon an expensive, misguided, and ineffective wall). But stupid, ill-conceived and ill-considered does NOT equal unconstitutional. At least, not with any Presidential action by a Democratic President. If Stupid = Unconstitutional, then the Supreme Court got wrong every decision upholding Obamacare, regardless of the justification relied upon. The bottom line on the Travel Ban is that it was within his power as President as expressly delegated by Congress. All of the mud thrown against the wall regarding religious discrimination (since when do non-resident aliens not present in the United States get to claim the benefits of the First or Fourteenth Amendments?), improper motivation based upon campaign statements (would you like us to start combing through the campaign statements of Obama to challenge his policies?), and insufficient analysis (you want insufficient analysis? Check out the EPA's calculation of the social cost of carbon - what a JOKE!), is just not sticking. And you make yourself look foolish beating this dead horse.

  • AmosArch||

    Theres no 'extensive analysis' or significant history or precedent behind the idea of a constitutional right to illegally cross the US border. There is no significant legal philosophy or body of work before the last couple of decades that states that federal immigration enforcement is vested in leftwing academics instead of the executive branch but here we are.

  • Gunstar1||

    The Brennan center asked ONLY for the reports to the president.

    It is quite laughable to say that when you request basically 2 reports from Homeland Security to the President, you get back a report simply of how many pages those to reports cover.

    Also, the EO asked for the countries that didn't meet the guidelines. Why is there need to mention every other country that did meet the guidelines? That wasn't what was asked for.

    If I were told to go and lookup how many of the 159 county probate courts were slow in issuing a license, and tell you which ones took longer than the law allowed to issue them, the amount of data I generated would be vast, but I could tell you which ones that were violating the law in just a few pages. To then say... Oh, must not have any research because the summary was only 16 pages is laughable.

    Is it possible there is nothing behind the 16 page memo? Sure. But to say that a 16 page memo which showed ONLY who was not meeting a guideline says anything about the research done other than it is a 16 page memo is just sad.

    I guess any law articles Mr. Somin rights from now on we can assume if it isn't vastly more than 16 pages means he put no research into it at all.

  • Gunstar1||

    I was in a rush and didn't proof read...

    What is laughable is requesting basically 2 documents, them making all of these big claims about lack of research when all you know is just the page count of the summary memos.

    *writes, not rights.

    2 pages for the 8 countries is plenty to describe in what ways they did not meet the guidelines.

    It could be entirely correct that it was just a cover up. But a page count of a memo? That's supposed to show no research took place? That is pathetic argument and Mr. Somin should be ashamed of even posting it.

  • ReaderY||

    On the constitutional issue, Roe made two fundamental decisions:

    Firstly, it used constitutional text to determinine that the term "person" in the Due Process Clause lacks "prenatal application," parsing the Constitution's use of the term in much the way a previous case, Johnson v. Eisentrager, did to determine it lacks "extraterritorial application.

    Secondly, once the term "person" lacks application, the Constitution has no person in life, liberty, and certainly not entry into the US. Sometime the government has the right to assert an interest. But the constitution itself is always on the side of persons. It may sometimes permit the government to further the interests of those who are not persons. But it never requires it. And the real meat, the real disputes, are always about whether it PREVENTS it. That's where constitutional rights always lie.

  • ReaderY||

    So let's ask the fundamental question. Why does the ACLU have more interest in an extraterritorial foreigner than it does in a 3rd-trimester fetus? The Constitution certainly doesn't. Both occupy the same constitutional space with respect to personal rights. Both are non-persons whose life and liberty the Constitution neither recognizes nor protects, but doesn't prohibit government from recognizing and protecting should it choose to do so. So far as the constitution is concerned, the death of one is neither more nor less just than the death of the other. The distinction the ACLU sees between them essentially reflects its religious beliefs. And the ACLU is attempting to impose its religious beliefs on the public by claiming, with no basis other than impassioned rhetoric and fervent faith, and against both Eisentrager and Roe, that the two are somehow constitutionally different.

  • AmosArch||

    The WHY is that out of a mixture of

    1. The silly almost pseudoreligious dogma that women and illegals are somehow significantly unfairly oppressed overall relative to men and citizens marching off to die in wars and from malicious abuse and neglect from the state that despises them

    2. hatred of the institutions that supposedly do the oppressing (ie family and sovereignty)

    3. naked opportunism and demagoguery

    4. Assorted other reasons.

    The ACLU and ilk see things like killing babies and undermining national security as steps to 'free' the oppressed from and take down said supposedly malevolent institutions.

    Everything else. 99.9% of the blather that has been written, argued in internet forums, and printed in thick dusty tomes on the topics of abortion and illegal immigration is simply a means to achieve this goal.

  • ReaderY||

    (3 of 3)

    The right to control ones own sovereign space - to not suffer an invasion from those one doesn't want - is fundamental to autonomy. It's what Roe was all about. If Roe means anything, the freedom to choose who to allow in and who to exclude from ones family, personal or national, is implicit in the concept of ordered liberty.

    And if Roe has any legitimacy, it requires determining personhood, not by one ones personal strongly held beliefs, however self-evident one may think them, not by biology (which the Roe court explicitly rejected as the basis of deciding the personhood question, although it did use it for some questions, like the existence of state interests), but by the textual inquiry Roe and Eisentraged both used. Indeed, fundamental to Roe's claim to legitimacy is its claim to determine the personhood question based, not on impassioned rhetoric or "expert" opinion, but on pure textual analysis, letting the chips fall where they may.

    If the Court is unwilling to take Roe seriously and follow it when the chips happen to fall against the result they would personally prefer to reach, then Roe has no legitimacy as all.

  • ReaderY||

    (OK, 4 of 4. Last.)

    The right to control ones own sovereign space - to not suffer an invasion from those one doesn't want - is fundamental to autonomy. It's what Roe was all about. If Roe means anything, the freedom to choose who to allow in and who to exclude from ones family, personal or national, is implicit in the concept of ordered liberty.

    The rhetoric the Court's left wing has used over the years to portray abortion opponents as irrational - proffering faith over logic, denying Americans' right to dignity by denying them freedom of choice, imposing a naive and archaic morality in a complex world - all this not only applies to foreign affairs, but essentially parallels the arguments the Right has been using regarding foreigners.

    Consider torture. Stevens and Ginsberg's opinion in the first Carhart case said worrying about it is hokum. Since you can terminate the creatures anyway, it's just plain irrational to worry about whether how they're treated is "barbaric." Torture shmorture.

    The war power also lets us terminate any foreigner we wish legally. Ginsberg's argument, if taken seriously, doesn't just refute but decimates the ACLU's position here. It exposes it as shrill moral-mongering, animosity towards Anericans' exercising their constitutional right to freedom of choice. It's everything that, if we take seriously what the Court's left wing's rhetoric has been telling us for decades, the Constitution is there to protect us from.

  • NOVA Lawyer||

    "The right to control ones own sovereign space - to not suffer an invasion from those one doesn't want - is fundamental to autonomy. It's what Roe was all about. If Roe means anything, the freedom to choose who to allow in and who to exclude from ones family, personal or national, is implicit in the concept of ordered liberty."

    First, drawing a straight line from bodily autonomy/integrity to national immigration policy misses a few very important leaps of logic. A person is not a nation and a nation is not a person, for example.

    Second, I am not aware of anyone who seriously contests that a nation, and particularly the U.S., may set immigration policy and control its borders. You seem to be contesting that such policies must be consistent with the Constitution, because that is the only question at issue in the OP or in this whole controversy. Is what Trump did consistent with his powers under the Constitution or not?

    Because that is obviously the question people are debating, your non sequitur into whether the nation has a right to exclude people suggests you reject the premise of the argument. Namely, there are Constitutional limitations on the exercise of the right (not on the nation's right to exclude, but on the right of a particular branch of government to set exclusionary policies) to exclude would-be immigrants.

  • ReaderY||

    Well, Article III of the constitution gives federal courts jurisdiction over suits between citizens of other states and the United State, and some countries recognize fetuses as citizens. Suppose a fetal citizen of, say, Vatican City sued the United States (perhaps under a Democratic administration) arguing some new more liberal abortion policy was enacted for the purposes of discriminating on the basis of religion.

    Do you really think a federal court would reach the merits?

    Assuming it accepted basic Article III standing, it would hold that fetuses don't have a right to be free of establishments of religion, and hence don't have the right their lawsuit seeks to vindicate in the first place.

    That's the issue here. Article III courts aren't knights-errant who swoop in and joust whenever they see the government violating the constitution. Somebody's rights have to be violated first. No rights, no violation.

  • NOVA Lawyer||

    ReaderY,

    "Do you really think......" A bad faith argument. You know I don't think it, didn't say it, and you are stretching.

    But, more to the point:

    Your entire "nation = person" therefore abortion rights = right to kill immigrants (presumably....see, I can do stupid bad faith too), is based on the assumption that the nation as a whole wants to enact your favored national "abortion of immigrants" policy. However, we are a diverse nation, not an individual woman. Therefore, as in the present cases, U.S. citizens have a right to object to discriminatory government policy when it affects them (e.g., family members, their free speech/association rights, etc.).

    U.S. citizens have rights, immigrants on U.S. soil have rights, etc., etc.. You are objecting to the standing of particular plaintiffs, not establishing that the Constitution puts no limits on immigration policy.

    Your elaborate argument is based on ridiculous (literally, worthy of ridicule) assumptions.

  • Loup-Bouc||

    "Reason" is this journal's name.

    Reason requires logic and avoidance of sophistry.

    Ilya Somin's article suffers false premise, non sequitur, and sophistry.

    The Trump administration's "Confidential Report" may rest on sufficient evidence despite its pages number merely 16 and despite it purports to analyze many nations (even, perhaps 200 states). The Report may put a SUMMARY of an extensive consideration of many thousands of items of evidence.

    If a truly honorable lawyer files a federal court complaint, the complaint's pages may number a mere 20, though its evidential basis might require an exposition of hundreds of pages. Per judicial rules, the complaint must be a succinct summary of the factual premises of the case.

    When the Supreme Court renders judgment, it does not proffer all the evidence that supports its opinion. The opinion is a summary of the Court's analysis of all the possibly hundreds, even thousands, of pages of matters of evidence that underlies the opinion.

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