My New "Atlantic" Article Making the Case for Abolishing Constitutional Double Standards in Immigration Law

The article explains why we should do away with legal doctrines that largely exempt immigration restrictions from constitutional constraints that apply to virtually every other exercise of government power.


The Statue of Liberty.

Earlier today, The Atlantic published my article making the case for abolishing double standards under which courts have largely exempted immigration restrictions from constitutional constraints that apply to virtually every other exercise of government power. Here is an excerpt:

Americans generally take it for granted that the U.S. government cannot restrict freedom of speech. It cannot discriminate on the basis of ethnicity and religion, and it cannot detain people without due process. Though these rights are not absolute, there is at the very least a strong constitutional presumption against such measures. Much of this is thanks to the Bill of Rights and other constitutional protections, particularly the Fourteenth Amendment. But there is an area of public policy in which the government routinely gets away with oppression and discrimination that would be readily recognized as unconstitutional anywhere else: immigration law….

Last year, in Trump v. Hawaii, the Supreme Court upheld President Donald Trump's "travel ban" policy, which barred most entry into the United States from several Muslim-majority nations. The Court did so despite overwhelming evidence showing that the motivation behind the travel ban was religious discrimination targeting Muslims, as Trump himself repeatedly stated. The supposed security rationale for the travel ban was extraordinarily weak, bordering on outright fraudulent. In almost any other context, the courts would have ruled against a policy so transparently motivated by religious bigotry, and so lacking in any legitimate justification

The travel ban is far from the only case in which immigration restrictions have been held to a lower constitutional standard compared with almost any other exercise of government power. In August, the Israeli government was rightly criticized for barring entry to two American members of Congress because of their support for the anti-Israel Boycott, Divestment, and Sanctions (BDS) movement. But few recalled that the U.S. also has a long history of banning foreigners with political views that the government disapproves of. Concerns that European immigrants had dangerous political views were a major motivation behind the highly restrictive 1924 Immigration Act, and were also used to justify barring many Jewish refugees from Nazi Germany in the 1930s….

Similar constitutional double standards pervade many other aspects of immigration policy. Courts have ruled that the due process clause of the Fifth Amendment provides for paid counsel in most cases where the state threatens indigent individuals with severe deprivations of liberty. But indigent migrants targeted for detention and deportation are not entitled to free legal representation, and often have to navigate a complex legal system without assistance. This leads to such horrific absurdities as toddlers "representing" themselves in deportation proceedings…..

There is no basis for the immigration double standard in the text and original meaning of the Constitution. Most constitutional rights are phrased as generalized limitations on government power, not privileges that only apply to specific groups of people, such as U.S. citizens, or to government actions in specific places, such as U.S. territory….

Abolishing constitutional double standards in immigration law would not end all immigration restrictions. But it would ensure that immigration policy is subject to the same constitutional constraints as other exercises of federal authority. The government could still restrict immigration based on a variety of characteristics. For example, it could still discriminate using such criteria as migrants' education, occupational credentials, and criminal records. But it would no longer be permitted to engage in racial, ethnic, religious, or other discrimination that is forbidden in other contexts.

NEXT: 7 Cases Everyone Should Know from the Roberts Court

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  1. Allow me to slightly defend the “double standard”. I basically agree with Prof. Somin about the broad outlines of immigration policy. I favor a lot more legal immigrants coming to the country.

    But Prof. Somin suffers from Randy Barnett-itis, the affliction of libertarians where they think that anything they disagree with must be unconstitutional.

    Here’s the basis for the “double standard”. Part of the power over immigration is to decide where immigrants are coming from and how many to let in. In fact, NOBODY denies this. People pretend to deny it, but they don’t really. For instance, does anyone doubt that in response to the Syrian crisis, Congress can decide we want to help some Syrians and create a special visa category for Syrian refugees? Congress has done things like this numerous times in our history, such as when we eased entry requirements for Cubans fleeing Fidel Castro.

    The thing is, if you judge that under traditional equal protection standards, you’re going to have a problem. Because national origin discrimination is prohibited unless strict scrutiny is met. And this is how it should be. For instance, we don’t want a local office the Social Security Administration to refuse to hire anyone originally from Nigeria because the office manager is prejudiced. We don’t want naturalized citizens from Ireland to be excluded from collecting welfare that naturalized citizens from other countries can collect.

    But national origin discrimination is built into immigration policy. Congress has always made distinctions between people coming from different places. For over a century, Congress has set numerical visa limits for various countries. As I said, in response to humanitarian crises of various sorts, Congress has created benefits for one nationality that were denied to others.

    And that’s just de jure discrimination. How about de facto? How about the fact that some visa programs, such as student visas, are, in practice, easier to obtain from some countries rather than others? How about the fact that USCIS agents at airports have to make quick determinations as to who to send to secondary screening, and such determinations might well include some generalizations about nationality (such as additional scrutiny for Saudi Arabians after 9/11).

    The immigration “double standard” reflects the fact that immigration policy, the determination of who gets into the country, really is different than discrimination against people once they are here. It’s not all wine and roses- there’s all sorts of invidious discrimination in immigration law, obviously. But there is a real, legal justification for the differing treatment.

    1. “But national origin discrimination is built into immigration policy. Congress has always made distinctions between people coming from different places. ”

      No, Congress has not always made such distinctions. The first restriction on immigration based on national origin was the Chinese Exclusion Act passed in 1882.

      “For over a century, Congress has set numerical visa limits for various countries”

      1. the current constitution was already nearly a century old when the first such restriction was enacted, “for over a century” does not equal always.
      2. Given such restrictions don’t go all the way back to the founding, that history is not a strong argument for constitutionality unless you can point to an amendment that changes the analysis.
      3. a century of history to such restrictions is not a good argument in favor of it being good policy.

      1. Note: I am not an open borders supporter under current conditions. I do think Congress can legitimately place limits on the number of immigrants. However, I would favor a single first come first served limit that ignores national origin.

        1. Do you think “affirmative action” in immigration limits is unconstitutional, i.e., saying Mexicans and Canadians would have an unfair advantage under a first come first served system so we are going to increase visa limits from other countries to give their residents a chance?

          1. No.

            Considering the actual legal immigration process starts with a visa application. and those applications are processed at the State Department in DC, I don’t accept that such an advantage would exist in the first place. Count the first come first served based on when the immigration visa application was submitted to the State Department and/or the relevant Embassy.

            1. Your going to force them to follow the rules of applying for a visa? They refuse to follow the rules now. Your just swapping rules.
              Those 100’s of thousands trying to claim asylum are refusing to follow the rules of applying.

              1. “Your going to force them to follow the rules of applying for a visa?”

                Not me, the government, under currently law, even Mexicans and Canadians have to apply for a immigration visa for legal permanent resident alien status.

                “Those 100’s of thousands trying to claim asylum are refusing to follow the rules of applying.” ]

                1. The one’s trying to claim asylum are neither Canadian, nor Mexican, thus not relevant to the point raised by Dylan nor my reply to it.
                2. The rules enacted by Congress say that they can legally apply for asylum at the border.

        2. Unless you are a high government official or a widely-recognized moral leader, there is no particular reason for anyone to be interested in what “[you] would favor.” The question is what the Constitution permits.

      2. A century of constitutional law upholding it, and numerous acts of Congress under that power, is an excellent argument under actual constitutional law (i.e., originalism has never gotten five SCOTUS votes as automatically trumping the use of precedent to decide cases).

        1. “A century of constitutional law upholding it”

          Sure, if such actually exists.

          Can you actually cite a case where limits by national origin were explicitly challenged and up held?

          “and numerous acts of Congress under that power, is an excellent argument under actual constitutional law”

          Even ignoring originalism (I favor texualism), no, that’s the weakest possible argument on constitutionality, absent a history that goes back to the founding era and/or adoption of a relevant amendment.

          1. The Chinese Exclusion Act did exactly that. The 1924 Immigration Act, which set quotas, was also repeatedly upheld as constitutional. The favorable treatment of Cuban immigrants post-Castro was also repeatedly challenged and repeatedly upheld.

            And there’s zero reason why only long histories that go back to the founding count. At the time of the founding, there wasn’t a lot of need for border control- our borders were basically with Indian territories. Once border control was needed, we passed statutes (BAD statutes, by the way, but we passed them) and established a history.

            1. I’m mildly curious if there is any actual Court language saying that national origin discrimination isn’t a thing for immigration policy.

              Not that it really matters. I think it’s bad policy, and were I on the Court would hold it unconstitutional, but I’m not one of those who thinks my interpretation of the Constitution is the only valid one. And isn’t there some doctrine or other discussed on this blog that long-standing Constitutional practice becomes understood as constitutional law?

              1. There’s two ways it is handled:

                1. The “plenary power” doctrine, which just says Congress has plenary power to determine who is admitted into the country. That presumes national origin discrimination is constitutionally permissible.

                2. There’s some specific language in cases like Martinez-Fuerte (which I think is wrongly decided, but whatever) that approves national origin discrimination. (Martinez-Fuerte held that it was constitutional to stop and screen vehicles near the border based on the apparent Mexican ancestry of the drivers/passengers.)

                1. I don’t think plenary power trumps the Bill of Rights or 14th Amendment.

                  1. It doesn’t “trump” anything. It renders inapplicable certain constitutional doctrines.

                2. “There’s some specific language in cases like Martinez-Fuerte (which I think is wrongly decided, but whatever) that approves national origin discrimination. ”

                  Except that was a 4th amendment case, not an immigration case. Any language approving of national origin discrimination in immigration law would necessarily be dicta and have no precedential value.

            2. “The Chinese Exclusion Act did exactly that.”

              Acts of Congress are not legal precedent on constitutional issues.

              The 1924 Immigration Act, which set quotas, was also repeatedly upheld as constitutional.”

              Perhaps, but SCOTUS does not address issues that are not raised by the parties. Can you site a specific case where national origin quotas were specifically challenged on the basis of being discriminatory?

    2. ” As I said, in response to humanitarian crises of various sorts, Congress has created benefits for one nationality that were denied to others.”

      Such humanitarian reactions are only necessary because Congress has placed restrictions on immigration based on national origin in the first place. Were such restrictions deemed unconstitutional, the original restrictions would vanish and the humanitarian response would be unnecessary.

      1. Not true, unless you support no numerical limit (and you said you support a numerical limit).

        Once we have a numerical limit, there can be humanitarian crises in countries that require going over the limit.

        1. Does domestic disaster relief run afoul of equal protection? Why wouldn’t that apply to immigration of refugees by analogy?

          1. Domestic disaster relief isn’t done by national origin.

            That’s the basic issue here. Immigration policy, almost by definition, is going to involve distinctions among different nations. For all sorts of reasons. Not just determinations about security risks, but also such things as (1) proximity to the US, (2) getting a more diverse group of immigrants (i.e., is the Diversity Visa Lottery unconstitutional?); (3) particular needs of the foreign population (such as a particular nation having a humanitarian crisis; (4) foreign policy goals (not a personal favorite of mine, but this is the reason why we let tons of Cubans in while imposing stricter rules on Salvadoreans and Guatemalans); (5) needs for particular workers in the United States (you might need, for instance, people who speak a specific language for some reason, and that might mean in practice favoring a national group); etc.

            This is just the nuts and bolts of how immigration policy works. You make distinctions between different people coming from different nations, and set different numbers.

            And there’s just no way the Constitution prohibits that.

            1. Indeed. The Constitution applies to US Citizens and Residents. It does not apply to non-US Citizens non-residents.

              1. As noted elsewhere in the thread, other parts of the Constitution do apply.

              2. “The Constitution applies to US Citizens”

                No, it applies to the US government.

        2. Yes, but the limit can be raised temporarily without addressing national origin.

    3. Dilan,

      You are begging the question – assuming that all these restrictions were and are in fact constitutional because they were passed by Congress.

      Ilya specifically argues otherwise.

      1. I am assuming they are constitutional because the Supreme Court has said they are for more than 100 years.

        1. Cite specific cases.

  2. Surely, open borders is constitutionally required. Any restriction on immigration is discrimination on the basis of national origin.

    So dissolve the borders. You are not a citizen of America, you are citizen of the world. America is not the people. It might be an idea, or a land mass, or thieving bureaucracy, anything but a citizenry. The chair of the lunatic globalists hereby moves to amend the Constitution by adding the lyrics of John Lennon’s “Imagine.”

    1. This is just the ‘Orange Man Bad’ trope y’all try and put onto anyone who isn’t super into Trump, but for Prof. Somin.

  3. Every new hurdle for the US to protect itself against invaders is another reason to build a wall.

    If people arriving uninvited and unwelcome on US soil creates an obligation to the US taxpayers, then we must prevent these people from arriving here.

    1. This “invasion” rhetoric is really disgusting.

      People (mostly peasants) crossing borders may or may not be desirable in any particular situation, but it is not an “invasion”, a term that has an obvious, deliberate military valence to it.

      We just were treated to stories about how the White House apparently seriously discussed things like shooting immigrants, electric fences, moats, and the like, the obvious idea being to threaten migrants with death. And I have heard various restrictionists call for this sort of thing. It is highly irresponsible. These people are not an invading army. They ARE a public policy issue. (You will note I do not group border fencing and walls in the same category- again, those things may or may not be justified, but they aren’t the same as treating migrants as “invaders”, which would seemingly justify a violent response.)

      This sort of rhetoric has to stop. These are human beings, mostly poor. Not “invaders”. If you can’t win a debate on immigration while acknowledging their humanity, it would suggest that your ideas on immigration are wrong.

      1. It’s one of the shortest words for it.

        If you don’t like it … well, what value do you have to offer anyone that anyone should hold your opinion in any esteem?

        Invite them to stay in your home if you want to take care of them. Otherwise you’re just another hypocrite wanting to be generous with others’ resources. Put up or shut up.

        1. That’s silly. Maybe I want them to work and be able to pay rent for their own homes and contribute to society, rather than living in my house and under my care? And obviously, while I might be able to take care of one immigrant in my home, the country can take millions.

          The point is, you are deliberately using a word (“invasion”) that doesn’t apply and implies that military violence is justified against a bunch of people who are mostly peasants traveling with their families.

          It is not the only pithy description for them. You can call them immigrants. Undocumented immigrants. Illegal immigrants. Border crossers. There’s all sorts of descriptions available to them. You CHOOSE the inaccurate, dehumanizing, dishonest “invaders”/”invasion” because you think being dishonest in that way will help you win the argument. And it’s disgusting.

          1. Word police can f*** off.

            1. “Word police” are why, for instance, you can’t say the n-word.

              Word police serve a very useful role in society.

              At any rate, I am not even sure I am being the word police, so much as just calling you out on dishonesty and pointing out that people who adopt deliberately dishonest characterizations usually do so because they feel they can’t win the debate by being honest.

              1. Because it’s concise.

                1. Concise. Bigoted. Wrong.

                  A clinger trifecta.

              2. Well, useful to people who want to control what other people can talk about, anyway. “N-word” is so incredibly stupid, I wouldn’t use it simply because somebody might take offense, but people are so free with epithets today I don’t see why this one gets treated as too awful to even spell. But only depending on your own skin color, of course…

                Still, if that were the worst thing the word police do, they’d be a minor annoyance. It isn’t.

              3. You can say nigger, just like how I say kike all the time because people know I’m Jewish and I just don’t believe in cowering behind an utterly meaningless word that has no power.

                1. You can say it, but people may make certain judgement about what sort of lame edgelord you are.

        2. Normal Person: I don’t think you should be able to kill 9month old babies without a good reason.

          Dilan/Prog: LOL WAR ON WIMMENZ LOL

          Normal Person: Our border is being invaded.

          Dilan/Prog: How DARE you use military terminology for your petty political grievences! *Pearl clutching intensifies*

          1. You start counting age from the moment of conception? That’s kinda weird.

            I am amused that you’ve seized on yourself as an indicia of normal.

            No one who posts here is normal.

            1. Late term abortionists are allowing the mother to cuddle with their dead baby.
              Go ahead. Work your euphemism magic on that concept

              1. Kramering in with some tendentious uncited BS probably from LifeSiteNews doesn’t really give me much to engage with. But some people keep teeth they get removed; I’m not saying a fetus is like a tooth, but that interaction is not the iron-clad indicia of personhood that you think it is.

                You’re the one that called it a baby, anyhow.

            2. > I am amused that you’ve seized on yourself as an indicia of normal.

              While we’re arguing about words, please note that “indicia” is plural. You mean to write “indicium”.

      2. “it is not an “invasion”, a term that has an obvious, deliberate military valence to it”

        Let’s discuss the American economic migration into the Mexican Province of Texas circa 1820.

        Not an invasion, right?

        1. Let’s discuss peasants crossing the border in 2019 instead.

          1. Yes, the border between Mexico and Texas?

            How did that border happen?

            1. Maybe we should just nuke El Paso, Bob.

              That would be right in line with your thinking, wouldn’t it?

          2. Private property rights.
            Yes or no
            Do they exist?

      3. Its absolutely an invasion in the sense that politicians are waging a War against the current population by diluting their vote. Make no mistake this is a 100% conscious and deliberate strategy. If you could snap your fingers and make the immigrants coming in shift the vote to Republicans, the Dems/Left would be first in line to set up machine gun nests at the border.

        1. You and that New Zealand shooter sound like you’re sharing manifestos.

          1. Hitler ate a hearty breakfast each morning, so I starve myself every day until lunchtime.

            1. Hitler didn’t shoot people on accounta his breakfast.

          2. It has been a proven fact for the past 20 years that electoral votes and congressional seats have moved from non-sanctuary states to sanctuary states, ceteris parabis, due to illegal immigration.

            1. That’s “ceteris paribus”, and it would be nice to see some of that proof.

      4. This has actually got me thinking.

        I absolutely agree that using invasion is wrong and reveals the unthinking bigotry behind those who use it. Trying to change the language as an instrument to force crisis into the vocab is not going to be adopted by anyone who isn’t already a psycho yearning to shoot people at the border.

        But then what about gender pronouns? The invasion crowd say that that changing the pronoun you call someone who has transitioned genders – or even the word gender itself – is exactly the same thing – a change of language to short-circuit the argument that no one really uses who isn’t part of the silly SJW crowd that happens to control all schools. And corporations. And the government.

        Both are intentional changes people are working to insert into our language.

        But one is being requested by a cohort to refer to themselves. The other is being insisted upon by partisans about third parties they want to demonize.

        So even independent of the truth value of the change, one has an element of courtesy to it, and the other is about better hating a group.

        Anyhow, thanks for coming to my TED talk.

        1. “I absolutely agree that using invasion is wrong and reveals the unthinking bigotry behind those who use it.”

          Please have the respect to accept that when I call it an invasion, I’ve thought about it. YOU might view it as “bigotry”, (Wrongly, IMO; I don’t care where illegals come from, or what they look like.) but it’s not “unthinking”.

          1. I realize you’ve thought about it. That doesn’t make your decision to compare immigration to an act of war any better.

            Nor does it make the inference that you’re into shooting illegals any less strong.

            1. I would never shoot illegals if you could stop/deport them by less violent means, which I think you almost always will be able to.

              But essentially ALL laws are backstopped by the threat to kill, that’s one of the reasons we should be reluctant to pass them unless they’re very important indeed.

          2. Please have the respect to accept that when I call it an invasion, I’ve thought about it.

            I accept that you’ve thought about it, and come to a mistaken conclusion.

            Words have meaning. There is no more a Bellmore Dictionary than there is a Bellmore Constitution, regardless of your thinking.

            1. Yeah, well, multiple published dictionaries agree that “invasions” don’t have to be military, that the term encompasses any unwanted intrusion into a territory contrary to the authority in charge of it.

        2. the preferred pronoun crisis exists precisely to throw into other people’s faces and make a stink about it. Nobody would oppose practically any lib cause if they didn’t go about it in a hostile and demanding matter but then thats the reason these causes exist in the first place. And even if we accept your first premise that the pronoun crisis began with noble intentions don’t forget cisgender, toxic masculinity, homophobia, and all the other terms invented to otherise and medicalize the opposition.

          1. Yes, everyone is acting in bad faith and purposefully trying to make you feel bad.

            I am amused by the term ‘pronoun crisis’ though. It’s BS, but it does trip of the tongue.

            You may be onto something about the connotation of more recent terms coming up from LGBTQ and feminist activists being medical/scientific. It would not surprise me if that weren’t a strategy. I don’t think that’s sinister, though; just marketing.

        3. “using invasion is wrong and reveals the unthinking bigotry behind those who use it”

          Let’s discuss [Dilan won’t] the American economic migration into the Mexican Province of Texas circa 1820.

          Not an invasion, right?

          1. Except that wasn’t just an economic migration, was it? It was a policy that was pretty openly a pretext for an intended invasion.

            Even in that extreme example, definitively pretext or prelude to invasion isn’t an invasion. You can tell because there was a war right after that. And everyone can point to when the US invaded Mexico, and it was that later bit with the guns and army.

            1. “It was a policy that was pretty openly a pretext for an intended invasion.”

              No it was not. Where did you learn history, a cereal box?

              The original Americans who migrated into Texas wanted cheap land, classic economic migrants. Mexico encouraged it because Texas was sparsely settled.



              Texas was independent before the US War with Mexico you know.

          2. Ok, let’s discuss it. In the 19th century a bunch of anglos moved to Mexico. They came to the brink of revolt when Mexico banned slavery. Eventually Anglos outnumbered Mexicans in Texas about 4:1. Then Texians revolted and took over Mexico, and later joined the United States.

            WTF does any of that have to do with this discussion? Is it your position that Mexico is sending Mexicans to Texas to eventually revolt, declare independence, and then join Mexico? Do you object to Texas being in the United States? State your point.

            1. It has to deal with what an “invasion” is. It’s generally thought of detrimental, especially to the native population, for a variety of reasons. But not always military.

              The Texan example is an economic “invasion” that turned out to be very detrimental to the native Mexican government. Alternatively, you could think of the European colonization of the Americas as an “invasion”. Again, very detrimental to the native population. Other contexts for the use of “invasion” include gentrification, which has also been described as “white invasion.” Again, a mass movement of people into an area, with detrimental effects for the native population. Not military.

              1. Yes. European invasion of Americas was bad for the locals. It was an actual invasion. Do you think an American truck going to Mexico is an invasion? What about some college kids crossing over to Juarez for some underage drinking? If an American CEO relocated to Mexico City, invasion?????????

                1. Once again, it’s a mass movement of people with detrimental effects for the native population.

                  To use your examples, if instead of just “some” college kids, it was a few “thousand” college crossing to Juarez, it might be called an invasion. Indeed, this type of thing is often called “Spring Break” in different parts of Mexico, and is also often called an “invasion” of college kids.

                  1. Your definition of invasion is quite idiosyncratic.

                    Also, the detrimental aspect is disputed.

                    Using people calling Spring Break an invasion as precedent…not really making your case seem serious.

                    [Aside – I think you capitalize Spring Break, but am not super sure.]

                  2. Your new metric (“mass movement of people with detrimental effects for the native population”) does not apply to the Texian migration of Anglos to Texas. It was neither a mass movement, nor was it detrimental for the native population. It was detrimental for the centralized government of Mexico 1,000 miles south.

                    “…and is also often called an “invasion” of college kids.”

                    Right, and if the Mexican government was proposing putting up moats filled with sharks with freaking laser beams on their heads to eat and shoot American tourists, I would hope you’d have something to say about loose language like “invasion”. But in context we all understand that articles describing a “Spring Break” “invasion” are not being used to promote land mines around Cancun.

              2. “The Texan example is an economic “invasion” that turned out to be very detrimental to the native Mexican government.”


        4. Home invasions are not military. No one is confused by the use of the word in any of these cases. It’s the most concise term.

          Word police are low and unserious.

          1. Home invasions are done with intent to steal or to harm the occupants.

            Not military, but nothing like migrants.

            And further, it’s perfectly clear when people say “invasion” in this context, they are not talking about a couple of guys in your house. They are clearly invoking a military invasion of a sovereign country.

            1. Home invasions are done with intent to steal or to harm the occupants.

              Further, home invaders are generally armed and use the threat of force to achieve their objectives.

              A guy looking for a job as a gardener is not an invader, even if he trespasses on your front lawn to do so.

            2. They are clearly invoking a military invasion of a sovereign country.
              You have to ways to go, but you are on the path to Clinton level parsing.
              “invoking” Nice emotion generating word
              “Sovereign” interesting word for a person that demands the elimination of borders. How do you propose to maintain a nation as sovereign, absent borders?

              1. …so what emotions does invoke evoke in you?

                No one in this particular thread is for the elimination of borders. Quit excluding the middle.

      5. So a bunch of groups south of the border are intentionally funneling people who they know stand a chance to obtain amnesty which will be a valuable asset enabling mass migration and you’re telling me that they’re just human beings and there’s no organization or motivation behind this other than basic human instinct.

        The wars of the 21st century aren’t all fought with guns. Most are fought with money and this is yet another example of one.

        1. Lotta assumptions there. And still not what an invasion is.

          The wars of the 21st century aren’t all fought with guns. Most are fought with money
          That’s not a war, then. It’s just you and some overblown rhetoric.

          1. Or did you not think the ‘War on Terror’ was a silly as the ‘War on Drugs’ or the ‘War on Poverty?’

          2. “And still not what an invasion is.”

            My Webster’s New World Dictionary, Second College Edition, defines “invasion” as:
            an invading or being invaded: Specif., a) an entering or being entered by an attacking military force b) an intrusion or infringement c) the onset or appearance of something harmful or troublesome, as a disease.

            Is entering the country illegally an intrusion or infringement? Can it be harmful or troublesome?

            1. The problem is, you are using text to disclaim responsibility for subtext, when it is precisely the military subtext of “invasion” that makes you want to use the term, when others (such as “migrants” and such) are available.

            2. Jerry, it is both: an intrusion, and an infringement.

              So I guess invasion applies.

          3. Lotta assumptions there.

            Too polite, sarcastro.

            Lotta bullshit is what it is.

      6. Invasion fits. I cannot agree with the military connotation. Mass migrations have been described as invasions separate from military invasion.

        1. Nice passive voice. Could you show that work? Otherwise this is just a Trumpian ‘many people are saying…’ appeal to nothing.

          1. “Barbarian” migrations into the Roman Empire were called often called “invasions”. Many were peaceful [at first], some were by invitation even.

            The first Saxons to settle in post- Roman Britain were invited as defense against vikings. Then they sent for their kin.

            Both examples ended in violence.

            1. I’d be quite surprised if the migrations done by invitation or peacefully were called invasions at the time.

              Sounds like you’re conflating all barbarian actions into one thing.

              ‘both examples ended in violence’ doesn’t bolster your argument. Invasion is about a present status. It is not about speculating that this will end in violence some years from now.

              And if you think Latin American immigration will inevitably end in violence, you and Brett can go read Camp of Saints again, because that prediction is more an indication of where nativists end up than about reality.

    2. Every new hurdle for the US to protect itself against invaders is another reason to build a wall.

      A wall has never kept out an invading army. And it’s even less effective when you are considering small bands of people. Who’s only fault is seeking a better life.

      Anyone who advocates for a wall automatically disqualifies themselves from any serious discussion about security.

      1. “A wall has never kept out an invading army. ”

        That is historically ignorant. Walls protected Constantiople for a thousand years, for instance. Many other historic examples exist.

        The Israelis know otherwise currently.

        The border wall is not designed to keep everyone out, just most.

        You know it would work, that is why you oppose it so much,

      2. I’m so tired of the “they’re only seeking a better life” argument. Yes, they are, but at OUR EXPENSE. Hispanics are from a culture that is the least “proud” I’ve ever experienced. The immigrants from the Great Wave? They were embarrassed to take handouts. Hispanics? Not so much.

      3. It’s not about achieving security. Nothing is ever completely secure. It’s a way to raise the cost of illegally coming to the US so fewer undertake the journey.

      4. An undefended wall has never kept out an invading army. Walls are only useful to slow incoming invaders down, so that you don’t have to have somebody holding every inch of the front, you can dispatch them when somebody runs up against the wall, and it delays them enough that they won’t have time to cross and conceal themselves before your people arrive.

        I’d actually favor a pure sensor barrier with quick response border guards, over a wall, were it not for the fact that sensors are so easy to turn off inconspicuously, and Washington is lousy with people who want illegal immigration, so long as they can obscure their desire for it to continue.

        Bulldozing a wall is such a conspicuous act.

        1. So you agree with Trump that migrants should be shot?

          I’ll repeat what I’ve said before. Given your utter lack of decency, and fealty to your Leader, you’d have made a great Nazi.

          1. There certainly are circumstances under which illegal immigrants should be shot.

            Look, all law enforcement rests on a foundation of threatened violence. Sometimes that threat is deeply buried beneath multiple layers of non-violent contingencies; You break a traffic law, you’re fined and assessed points. You fail to pay the fine, your license is suspended. You keep driving anyway, you’re fined further and threatened with jail time. You refuse to pay the fine, a cop shows up to escort you to jail. You refuse to go with him, you get shot.

            The whole sequence rests on the “you get shot” step, it is the foundation upon which everything else depends. If you ever reached a point in the escalating threats where the next step was, “and nothing happens”, everybody would get their eventually, and the law would be mere suggestion.

            That’s why law should be reserved for things that are genuinely important enough to shoot somebody over, even if shooting them wouldn’t be your first resort.

            So, yes, absolutely, if you reach the point where somebody is illegally crossing the border, and they flatly refuse to turn back or cooperate in being detained, shoot them. Or else you don’t have a border.

  4. Dilan, your airports example is too narrow. It would be useful to point out in that case that citizens suffer arbitrary deprivations of liberty too—and likely, more frequently than would-be immigrants. Of course, if you did that, it would lead to reflection on special categories with higher priorities for security, which Somin’s discussion here seems to ignore, although you do not.

    1. The difference is, letting someone into the country is at some level an act of governmental grace. They don’t have to do it. They can attach conditions to it. They can limit the numbers. (We can leave aside things like asylum treaties which may override that for now. I’m just talking about typical immigrants not entitled to asylum or refugee status.)

      So the government can say “no” to someone. Including based on a bunch of different public policy considerations about who we want to help, who might constitute a security risk, etc.

      Wheras once a person is in the country, it’s not that you can’t assess security risks at all, but the equal treatment of people inside the country, and various other procedural rights, are not a matter of governmental grace. They are constitutional requirements. So while it is constitutional to say, in 1938, “we will cut off ordinary, non-asylum/refugee immigration from Japan because there are significant security concerns”, it isn’t constitutional (or shouldn’t have been, as even Trump v. Hawaii acknowledged) to say “we will imprison Japanese people already in this country with no determination of whether they are actually a security risk” in 1942.

  5. I haven’t read the Atlantic article yet, but I hope it includes the 100 mile wide constitution-free border zone, where the 4th amendment, among others, does not apply to ICE/CBP agents.

    1. We need to ignore the tenets of America to save America.

      ‘We, the people of the United States, in order to form a more perfect union, establish justice, ensure 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.’ These words and the words that follow were not written only for the Yangs, but for the Kohms as well!

  6. This is somewhat of a category error, I think. Like believing that, before the military, operating abroad during a war, can shoot an enemy soldier, they have to give him a jury trial and convict him of some crime having the death penalty.

    The subjects of immigration law aren’t citizens. Frequently they aren’t even present in the US. They don’t fall within the protection of the Constitution AT ALL in that case.

    If present in the US already, they’re entitled to due process and equal protection, but none of the privileges and immunities only citizens are due.

    Not the bastardized “substantive due process”, which is just a work-around the Court came up with to avoid admitting the Slaughterhouse cases were bad law, inadvertently extending those privileges and immunities to non-citizens. Just actual due process.

    And we want them to have that due process, because that’s the process that enables citizens to correct errors if mistaken for non-citizens!

    But, They. Are. Not. Citizens. They don’t have the rights of citizens, among which is the right to reside in the US.

    If we don’t want them here, the only thing we owe them is decent treatment in the manner of their expulsion, and enough process to correct cases where citizens are mistaken for non-citizens. And that’s all.

    1. “The subjects of immigration law aren’t citizens. Frequently they aren’t even present in the US. They don’t fall within the protection of the Constitution AT ALL in that case.”

      This is wrong. There ARE constitutional provisions that apply. For instance, deportation hearings have to comport with some level of due process. Substantive due process would also apply to actions that shock the conscience, such as if we shot illegal immigrants on sight or waterboarded or raped them in custody.

      The issue isn’t that they don’t have constitutional rights at all, but that they don’t specifically have equal protection protections based on national origin, which are what protect a lot of people in this country (citizens AND non-citizens, as relevant provisions of the 5th and 14th Amendments apply to persons, not citizens) from various forms of discrimination based on where they are from.

      1. Frequently they aren’t even present in the US. They don’t fall within the protection of the Constitution AT ALL in that case.”

        You’d have to be in the US already to get deported, in which case you DO get equal protection and due process, but not privileges and immunities.

        “Substantive” due process is just a BS work-around to restore citizens those P&I without admitting the Slaughterhouse Court was wrong about the meaning of the 14th amendment. Why the Supreme court is so reluctant to admit that is beyond me, but it has had the effect of warping our law by effectively extending P&I to non-citizens.

        1. Brett, do you think it is constitutional for Congress to authorize USCIS to rape illegal immigrants?

          If your answer is “yes”, you are crazy.

          If your answer is “no”, you might consider that maybe, one way or the other, there are some limits on governmental conduct that shocks the conscience. (You can get there by means of P&I + the equal protection component of the DPC, but it’s easier to just say that it’s substantive due process.)

          1. I don’t think we’re so far apart, so why you’re not understanding me has me confused.

            Congress can’t authorize the USCIS to rape aspiring immigrants on foreign soil, not because of the Constitution, but because it would be contrary to treaties we are party to.

            Congress can’t authorize the USCIS to rape actual immigrants on US soil, (Whether legal or not.) because the equal protection clause applies to them, and it would be a violation of equal protection, rape being illegal.

            “Shocks the conscience” isn’t a constitutional argument. It shocks Ilya’s conscience that we have a border.

            1. Shocks the conscience is a constitutional argument (see Rochin v. California), and Prof. Somin’s conscience isn’t the measure here.

              But I am still troubled by your reliance on treaties. So if Congress abrogated human rights treaties, it could constitutionally authorize USCIS agents to commit rape of undocumented immigrants?

              That’s WHY “shocks the conscience” is a constitutional argument. Because there are some lines the government cannot cross. If you want to make it a Ninth Amendment argument, you could do that too. But the idea is the same.

              1. Yup, the Constitution doesn’t have a “be nice” clause.

              2. “Shocks the conscience of judges” is a constitutional argument in the opinion of judges, who are positioned so that their opinion matters, but it’s not a constitutional argument in the sense of being an argument that genuinely has anything to do with the Constitution. It not, you know, having anything to say about consciences, or the shocking thereof.

                1. Sure it is. Due process requires that before the government infringes liberty, it must give a person whatever process is due.

                  But some infringements of liberty are so horrible that they are not acceptable no matter how much process is given. Basically, the amount of process that is due is infinite.

                  What are such actions? They are actions that shock the conscience. The government needs to give you a hearing on a parking ticket. The government has to give you a full trial and an extensive penalty phase proceeding to execute you. The government can’t issue a warrant to rape your children based on any amount of process at all.

            2. Perhaps more importantly here, Rape is a crime that will be prosecuted by the US government, because the US citizen is committing the crime (or it’s on US soil). The nationality of the victim is irrelevant.

              Children pornography laws are the same. It doesn’t matter the nationality of the victim, but the nationality of the criminal (or the location) is what’s key.

      2. I think Brett paints with a broad brush — it’s idiotic to argue that non-citizens within the borders of the U.S. don’t have First, Fourth, or Fifth amendment rights.
        However, I think his point is valid for someone not physically present in the US, whose only relationship to this country is that he wants to immigrate here. In that case, it’s undeniable that such an alien has no right under, say, the free association clause. In that case, though the optics may be bad, the Constitution cannot forbid the allocation of visas for religious reasons.
        Again, I fully agree that — once said alien gets into this country — all bets are off and he’s got as many rights as you and me (except, at least for now, the right to vote).

        1. How about some measure of due process, though?

          For instance, if someone comes to the border and applies for asylum, and has compelling evidence that he or she fits within the statutory standard (and thus has a right to enter the country and not be deported), does the government have the power under the Constitution to say “we won’t consider any evidence at all that you meet the standard” or “we won’t consider any evidence provided by witnesses with a “T” in their name”?

          And how about my hypothetical of a policy of raping illegal immigrants? Don’t they have some minimum substantive due process rights?

          People love to say things like “non-citizens don’t have constitutional rights” and “illegal immigrants don’t have constitutional rights”, the same way liberals love to say “corporations don’t have constitutional rights”. But none of these things are nearly as categorical as people imply.

          1. You mean raping them in detention centers? Sure, I would say that anyone (citizen or non-citizen) has a right not to be raped in a detention center on US soil. That’s easy. Someone raped in a foreign country while in the custody of US officials can also seek compensation — but you don’t have to have constitutional rights to do that.
            But I certainly agree with you that people aren’t thinking when they say non-citizens don’t have constitutional rights. If that were true, we could arrange kangaroo courts for every green-card holder accused of any crime at all.

            1. OK, but I don’t even buy the territorial limitation. Verdugo-Urquidez says aliens on foreign soil don’t have certain constitutional rights, but Kennedy’s concurrence says that due process still applies.

              It’s better to just take a functional approach. Certain rights are not consistent with the broad congressional power over immigration (as you point out, some First Amendment rights may be included in this too- Congress can exclude prospective immigrant members of political organizations that it could not ban within the United States). Other rights are consistent with that power, such as basic procedural and substantive due process in immigration cases. Migrants seeking admission to the country have those rights that are consistent with congressional power over immigration and don’t have those rights that are not consistent with it.

        2. In that case, though the optics may be bad, the Constitution cannot forbid the allocation of visas for religious reasons.

          Why not? The First Amendment does not grant rights to specified individuals – it restricts the power of the government. That’s an important distinction, IMO.

          It’s not that I have a right to practice my religion; it’s that the government can’t stop me from doing so. It can’t establish a religion, which allocating visas based on individuals’ religious beliefs does.

          1. Trump v. Hawaii would seem to indicate that yes, explicitly conditioning visas on religion would be unconstitutional.

            Now there is some of that in asylum law that is legal- if only the Christians in a particular place are facing religious persecution, asylum law would grant them a preference. But that’s treated differently.

    2. If present in the US already, they’re entitled to due process and equal protection, but none of the privileges and immunities only citizens are due.

      The problem with this simplistic differentiation is knowing the differentiation. If you start with the mistaken assumption someone is not a citizen, you have deprived them of the rights to prove they are a citizen; you have also deprived them of innocent until proven guilty.

      It’s like making slavery legal, even if restricted to the voluntary decision to become a slave. If I claim you as a slave, how do you prove otherwise if the legal system treats you as a slave until you prove otherwise? Slaves have no rights. Foreigners have no rights. When that right-less position is the default, how can anyone designated so ever prove otherwise?

      1. That’s why the due process part is important, that’s what gives them the opportunity to prove that they’re a citizen. If it isn’t enough process to allow a citizen to prove they’re a citizen, it isn’t the due process.

      2. This is where inalienable rights come in. You could never “voluntarily” become a slave permanently, and could revoke that status at any time. At worst, you might be contractually obligated for financial loss in such an odd situation.

        This is not a paternalistic command, but rather a recognition of the inherent, inalienable nature of rights.

  7. overwhelming evidence showing that the motivation behind the travel ban was religious discrimination targeting Muslims

    Left unstated:

    (A) the order did not cover all Muslim-majority countries;
    (B) the order applied to non-Muslim countries;
    (C) the order was directed towards national security; and
    (D) specifically stated how the countries could comply with US immigration restrictions and remove themselves from the list.

    Calling the order a “Muslim ban” when it didn’t ban all Muslims, banned non-Muslims, and allowed countries to improve their procedures and avoid the ban is simply ridiculous political grandstanding.

    1. Trump did propose the idea of banning immigrants from Muslim countries during the campaign, and the term “Muslim ban” just stuck. But the current ban is not the one he proposed during the campaign. I also expect more from Ilya Somin.

      1. “I also expect more from Ilya Somin.”

        Normatively speaking, I assume.

  8. Just more Bush/Clinton (Hillary) open borders propaganda. It doesn’t hurt lawyers or lawyers’ kids, and it sure does keep down the cost of getting your lawn mowed and leaves picked up every year. Slave labor rules!

    1. As long as their kids don’t have to go to school with these 85 IQ mestizo kids.

  9. Ah, another open borders article by Somin

    Never would have seen that coming.

    1. Another ignorant statement from you on this blog. Never would of seen that coming.

      1. Oh, slick burn.

      2. Bob is not necessarily ignorant.

        That would imply that his comments might simply be based on lack of information. I think it’s much worse than that.

  10. You mentioned bigotry, Prof. Somin. Most Conspiracy fans don’t like that.

    1. They also don’t like pesky things like “facts” and “data”.

  11. So let’s say it is early 1946, and a bunch of “former” SS members are seeking to immigrate to the US. Let’s stipulate that they do not know anything about jet engines, telemetry, rocketry or anything else particularly interesting at the time, and that none has been charged with any war crimes.

    Do you seriously think that the 1st Amendment requires the US to ignore their “political affiliation and beliefs” when considering their application?

  12. You can certainly pass a law preventing “discrimination” of whatever type in regard to immigration, but this has nothing to do with the Constitution. No one has a Constitutional right to immigrate to the United States. The Constitution doesn’t apply to foreign nationals who are living outside the United States, and for good reason! The United States is not the arbiter of justice for the world, and other nations are allowed to have their own laws in their own countries. Constitutional law professors here – tell me where I’m wrong on that.

    On a separate note, banning “discrimination” based on national origin would be lunacy. We shouldn’t have been allowed to ban Germans from entry during WWII? We aren’t allowed to give people from China and North Korea heightened scrutiny? We aren’t allowed to bar countries like Mexico from the diversity visa lottery? After all, the whole point of that lottery is to grant visas to people from countries that don’t send a lot of immigrants to the United States – creating diversity. If 90% of our immigrants are coming from Latin America, that isn’t very diverse!

    1. “The Constitution doesn’t apply to foreign nationals who are living outside the United States”

      Again, see above. At the very least, minimal due process, and substantive due process, do apply to foreign nationals seeking to enter the United States.

      1. Substantive due process is a judicial fraud perpetrated to half-ass restore the privileges and immunities of citizenship the Court killed off in the Slaugherhouse cases. And the Constitution actually reserves those rights it DOES grant to non-citizens to people actually already within the jurisdiction of a state.

      2. Due process, sure, when it’s under our jurisdiction. We aren’t arresting foreign nationals who live outside the United States (except in covert ops, and they aren’t actually arrested), and prospective immigrants are not being charged as criminals, so what due process would apply?

        1. How about due process on an asylum application or deportation proceeding? How about substantive due process (which exists, because “what Brett Bellmore thinks the law is” is irrelevant to what the law is) rights, such as a right against summary execution, rape, or torture?

          1. Since they have no right whatsoever to enter the country, the amount of process that’s actually due them is minimal, since nothing they have any right to is at stake.

            And, yes, I know that substantive due process exists. I agree with Thomas that it shouldn’t exist.

    2. What about German Jews during WWII?

      Anyhow, we close the embassies in countries we’re at war with, so this happens naturally. But strict scrutiny would probably allow an immigration stoppage for countries you’re explicitly doing war things against.

      1. Well, if an actual state of war exists, you can do it as part of the war power.

        But given the scope of the immigration power as construed by SCOTUS, you can also do it as part of the immigration power. And it doesn’t require strict scrutiny.

        Nor should it– courts are in no position to evaluate the security risk of people residing in foreign countries who may hypothetically come here. (Japenese internment is distinguishable- it was entirely possible to litigate whether anyone already within the borders was a sufficient danger to justify some sort of wartime detention, and in fact this is exactly what was done with Italian and German nationals.)

    3. “The Constitution doesn’t apply to foreign nationals who are living outside the United States,”

      Parts of the Constitution are limits on what the federal government can do. Those parts apply to the government regardless of when, where and to whom.

  13. Rights can be both negative and positive. Exclusively talking about rights as something people possess is limiting the concept.

    Some here mean to do that, for one reason or another. On this often libertarian blog, I’d imagine not everyone intends it, however.

    1. History shows murderous violation of simple rights has been the lead problem. A nation where you have inalienable, inherent rights by feature of your beating heart, rather than as a gift from some powerful people, is a novel and wonderful thing.

      How many through history, and how many around the world, wished only to be free and left alone to pursue their own ends?

      Statutorily created rights to divert money to you are an irrelevant addendum born of a kind heart. It doesn’t even show up on radar as important in this context.

      1. I”m not talking about natural rights.

        Negative rights are about what government cannot do; they are not held by any particular people.
        Positive rights are held by individuals, and specify what government is obligated to do or not do by them. Some of that isn’t relevant in this context. But some people are talking about foreigners not having rights – that’s a positive rights formulation. (I myself thing rights are both, but I do like to overcomplicate things)

        If you’re so into being left alone (which is IMO a simplistic take on how things actually work), I’d think you’d be more into the negative rights paradigm.

        So if government can make no law, that means government can make no law; not that it can make no law for these people, but can go buck wild on these other people.

  14. You are one sick puppy, Professor.

  15. It’s an unfortunate fact that in a society that is, to quote libertarian Walter Olson, “overlawyered,” what’s left of the libertarian movement is being swallowed up by lawyers. Absent economists, lawyers, and their sycophants, and there is no libertarian movement. Hence, it has become a movement dominated by a wealthy elite whose interests are often far removed from those of the general population.

    1. Moar populist libertarians like that salt-of-the-earth…um…Thoreau? Ayn Rand?

  16. It’s pretty simple here. US laws, including Constitutional protections apply to
    A. US Citizens
    B. Those within the Territory of the United States.

    Immigration laws, deciding which groups of people to let in, like those that Ilya suggest are incorrect, include people that
    A. Aren’t Citizens
    B. Aren’t within the territory of the United States.*

    (* Yes, there’s a broad subset of non-US citizens within the US territory, who have various subsets of the above rights. But that’s a different topic from the overarching theme Ilya suggests)

    1. That’s too simple and not accurate. Parts of the constitution limit what the government can do, they apply to the government, not to people.

      1A for example: “Congress shall make no law…”

      It applies to the government. It doesn’t matter against whom the government acts, or where those people are located.

  17. If someone can sneak across our borders the US owes them food, shelter, medical care and a lawyer before we send them back? That so many can say yes or no marks a significant disagreement in our society.

    Where the government said yes in Europe, soon the people said no.

  18. The Supreme Court has, like it or not, given the federal political branches essentially plenary authority over foreigners. This is based on several textual elements of the constitution:

    The word “person” as used in the constitution no more includes foreigners than it does fetus. Professor Somin has argued the Importation Clause as an exception. But the importation clause by its terms conveys a right to import, meaning a right to forcibly bring importees into the country against their will, as chattel, hardly a use that connotes an intention to convey rights to the imported.

    In addition, several parts of the constitution identify rights of “the people,” including the preamble, a right to assemble and petition “their” government, a right to keep and bear arms, and a right to be free of unreasonable searches and seizures. By its terms, foreigners, who are not members of the people, can be prohibited from petitioning and having arms, and can be searched and seized at whim.

    More fundamentally, the Supreme Court in Roe v. Wade used the same text-based test to determine that the term “person” in the Bill of Rights does not include fetuses — lacks “prenatal application” — that the court had used 2 decades earlier, in Johnson v. Eisemtrager, to similarly hold that the word “person” in the bill of rights does not apply to extraterritorial aliens — that it lacks “extraterritorial application.” Almost identical terminology, too.

    The Court in Roe was careful to reject claims that constitutional rights have anything to do with biology, rejecting Texas’s attempt to martial “the well known facts of fetal development” in its favor. The test, it said, is purely textual, and one leaving the court no discretion. The Roe court came up with its own framework to identify state interests based on development stage. But it said that as far as rights are concerned, the same test applies regardless of stage.

    I will repeat a question I’ve asked before. Why in the world is there a moral difference between a foreigner an inch over the border and a fetus a minute from being out of the womb? Both equally have the same constitutional rights, under the Eisentrager-Roe test, as sacks of flower.

    For if the Court gets to devise its own test – if it makes no claim to grounding its test in constitutional text, just does what it thinks is right – then it has power to declare whatever classes of humans it thinks underdeveloped – maybe black people, maybe the handicapped, maybe women, whatever a passing majority thinks best – to be subhuman and without constitutional rights, and one majority’s decision is just as good as any other. The whole basis of Roe’s claim to legitimacy, what it considered essential, was that it was based on following the constitutional text wherever it may lead, without regard to the Justice’s personal opinions.

    Take that away, and the only difference between Roe and Dred Scott is that each set of justices had different life experiences.

    If Roe has legitimacy, extraterritorial foreigners equally well fail the personhood test, and parts of the Bill of Rights that apply to “the people” don’t apply to non-citizens (or at least non legal permanent residents). And if Roe is wrong when applied to groups that one personally thinks ought to be protected, it is wrong period.

    No double standards.

    1. As I’ve said before, what I think especially troublesome about Roe is its claim that the fact that a class of human beings lacks full constitutional protection implies that traditional moral principals are somehow inappropriate. I think foreigners are an excellent example of the fact that personhood has never been treated as a binary. Lack of full rights does not mean that moral impulses to protect are wrong, anti-constitutional, anti-American, mere religious claptrap.

      Indeed, it was interesting to see Justices Sotomeyor and Ginsberg suddenly appealing to the very pro-life, anti-choice sentiments they have spent most of their careers denigrating and trying to stamp out, suddenly claiming that Americans have some sort of tradition of compassion for the weak. What a change! Until recently, the entirety of American history was in their telling a celebration of freedom to make choices that serve Americans’ interests unfettered by moral claptrap, and the constitution had no place for moral sentiments as far as they were concerned.

      1. I think the mistake you folks on the right make about Roe is assuming that it is about treating fetuses as “non-human”, when in fact it is about the rights of women (and perhaps, in Roe’s formulation, doctors, although the Court has gotten away from that in Casey and its progeny).

        Roe very much recognizes that the fetus is alive. That’s why it sets up the trimester system- because as the fetus grows and becomes closer to a born baby, potentially becoming able to feel pain and sentient, its interests are more important. Indeed, Roe (and Casey) says that the state can basically prohibit late term abortions unless the health of the mother is seriously threatened. Why does it say that? Duh! Obviously because a late term viable fetus and a baby are close to indistinguishable, the only differences being location and the attachment to the umbilical cord.

        What you guys are actually complaining about is that Roe concludes that an early term fetus’ interests do not outweigh those of the woman carrying it. Which is a completely different argument than the straw man y’all keep repeating about “treating a class of humans with no rights”. Roe treats a class of non-sentient humans with undeveloped nervous systems as having less rights than the sentient humans who would be forced to act as their incubators were abortion to be prohibited. And note, it’s less rights, not no rights. Nothing in Roe says what should happen to frozen embryos, or what would happen if we put an embryo in an artificial womb. Roe also permits various regulations of abortion (a license later expanded by Casey) that offer some protection to fetuses, so long as they don’t unduly burden women.

        But Roe’s central holding is not “depriving fetuses of rights”. It’s “upholding women’s rights”.

        1. “What you guys are actually complaining about is that Roe concludes that an early term fetus’ interests do not outweigh those of the woman carrying it.”

          Shouldn’t that be dependent on the specific interests that the woman is asserting in a specific case?

        2. One of the additional things I sometimes add is that the arguments made about abortion and immigration are often mirror images of each other. It could equally well be said of “you people on the left” that the real issue is not “whether immigrants are human beings,” but about the rights and choices of Americans. Focus on the rights and choices of Americans, put Americans first, and everything becomes perfectly reasonable. To make their way in the world, Americans sometimes have to make choices about whom to allow and who may not to allow into their family, and can’t and needn’t always live according to religious ideals.

          That said, I don’t think your assessment of Roe is correct. The Roe Court made two assessments, one whether there is a constitutional interest compelling State protection, as Texas argued, and the other whether states nonetheless can restrict abortions due to concerns like health and morals. In assessing the constitutional concerns, the Toe court relied strictly on constitutional test and used the same “application” test that it had previously used in Johnson vs Eisentrager. Only in assessing state interests did it use a tiered system.

          Nobody is claiming the United States can’t protect immigrants in these cases. That is, nobody is claiming the government has less interest in protecting foreigners than a state does in a viable fetus. The interest in foreign affairs creates an independent government interest not present in abortion cases. The only relevant question is whether there is a constitutional interest, whether they have an interest in themselves, that compels courts to order protection when the government doesn’t want it.

          And just as a state doesn’t have to protect late-term fetuses if it doesn’t want to – the constitution permits it to do so but imposes no obligation -so the constitution is similarly permissive but not obligatory with respect to the federal government’s dealings with foreigners, particularly when still outside US territory or at the border.

  19. I think some of you have misplaced your focus of attention on whether the law applies to citizens or foreigners.

    In reality, Prof. Somin’s article is just a continuation on the debate whether the Constitution follows the Flag, i.e. should the govt act within the constitutional framework regardless where it acts or with whom.

    I’m on the side that our govt should always apply constitutional standards regardless where it acts and/or with anyone.

    From a constitutional perspective, I’d say I’m correct since the Constitution doesn’t provide any qualifiers (e.g. OCONUS actions are exempt, etc.).

    1. In the past, people who claimed our Constitution “follows the flag” and other nations that said their laws were supreme everywhere were accused of being imperialists.

      Reminds me of the 2004 film “Team America – World Police”.

    2. To clarify my views, I think the decisions giving the government plenary power over foreign affairs are likely correct. The idea of foreigners having constitutional rights would be inconsistent with the conduct of war, where “collateral damage” to civilians is a normal part of any conflict and requiring process before killing them would render the United States militarily impotent.

      But that said, the US Declaration of Independence contains universalist aspirations, aspirations that indeed cover “the whole human family,” including those who from time to time may be deemed “beings of an inferior order,” or our enemies. And text matters. If the Framers of the Declaration of Independence had wanted to say all white mean are equal or all men are born equal, they knew how to say so.

      Nothing in the constitution is inconsistent with those aspirations.

      Therefore, the fact that the constitution does not require protection simply doesn’t Imply that the state has no interest, or that the constitution somehow negates a state interest.

      If a state or Congress wants to extend protections to “the whole human family,” include both the prenatal and the extraterritorial, it can. Nothing in the Constitution prevents it. And if they want to act partially, extenteding some prrotections but not others or in some circumstances but not others, doing so is no more irrational or hypocritical than any other compromise between competing objectives and interests that is routinely recognized as constitutional and part of what deliberative legislatures do.

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