Monday, December 14, 2015
Just to be clear...
Jan C. Ting of Temple University and Eric Posner of the University of Chicago say critics are wrong about Trump’s plan to ban the immigration of all Muslims and don’t know much about legal history. Ting says:
“No kind of immigration restriction is unconstitutional. The U.S. government can exclude a foreign national on any basis. The statutes are clear: immigration is different from all other aspects of the law. The Supreme Court has ruled we can enact laws against foreign nationals that would not be permissible to apply to citizens. The courts historically have no role in these decisions.”
Posner agrees saying:
“Constitutional protections that normally benefit Americans and people on American territory do not apply when Congress decides who to admit and who to exclude as immigrants or other entrants.”
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10 comments:
would be pretty hard to enforce legal or not.
My only point is that it would not be unconstitutional. As to whether or not it's a good idea or even possible is a different question altogether. I'm amazed that even last night one of the Republican candidates said it would be unconstitutional. He was wrong, of course.
Courts decide constitutionality. Not Ting. Not Posner. Not you nor I.and certainly not politicians. There are also some law professors/scholars who may disagree with these two. Even Posner said no one has tried it on religious basis, so it would be brand new territory.
I thought Trump would have fallen by now, but I guess not. He is one popular guy down here. I cannot see him losing in SC.
Is this a violation of the first amendment? Trump signs an executive order saying, no foreign muslims allowed in the USA. Tom Brady blows out his knee and the best surgeon to repair it is a Canadian Muslim, but he is not allowed in the United States, so Brady and the Patriots have to use someone else. Have their rights been violated due to a government imposed religious restriction. An Indonesian/american couple have a baby and the grandparents want to come see the baby, but since they are muslims living in Indonesia they are not allowed in the country. Has the Indo/american couple having their rights violated simply because of their religion? What if the Toronto Maple Leafs have a Canadian muslim on their team. They cannot have hi on their road games in the states? Assuming you cannot sue unless you have standing, I would say all these americans and the corporate Patriots, and the NHL all have standing that their rights are being violated? Would it be different if congress declared war on Islam?
First of all, it is not solely courts who decide constitutionality; the president and every member of Congress also has this responsibility. They all take an oath to "uphold the Constitution of the United States." In order to uphold it, they must first interpret it. When Bush signed McCain-Feingold, he said he didn't know if it was constitutional or not, but he was willing to let the courts decide. This was an absolute dereliction of duty. No president should sign a bill into law unless he is sure of its constitutionality.
Second, only Congress could ban all Muslims from entering the country, not the president. There are two issues here that you are mixing up: 1) whether or not not such a move would be constitutional, and 2) whether or not it would be wise public policy.
As for your examples: 1) Tom Brady does not have a constitutional right to be treated by a doctor who is barred from entering the country (besides, he could always travel to Canada). 2) The Patriots do not have a constitutional right to use Tom Brady as their quarterback if some other legal consideration makes that impossible. 3) No one has a constitutional right to be visited by their parents if the parents are barred from entering the country. In fact, I would bet there are thousands of grandparents who cannot get a visa into the US to see their grandchildren. 4) The rights of the Toronto Maple Leafs are not guaranteed by the US Constitution. They are Canadian. maybe they could sue at the World Court at The Hague. By the way, why isn't it Maple Leaves?
This is why we have courts. I believe Brady has the right via the 5th amendment to choose the doctor of his choice as long as he is willing to pay the fee and if that doctor cannot go to Boston due to his religion, Brady's right is being violated on an illegal first amendment law. But, that's just my opinion. I know the Maple Leafs can't sue, but the NHL that is hq'd in New York and runs the league can.IF today, there are grandparents that cannot get a visa, it is not because of their religion. I think the 5th amendment applies.
this is one reason we have the courts and we have to live with their decisions whether we like it or not. Yu hate Roe v. Wade decision and I hate Citizens United decision, but it is what it is.
To be clear....I believe it would wind up being both unconstitutional and extremely unwise public policy.
Fifth Amendment: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
I sure can't see how the 5th Amendment gives anyone the right to be treated by a doctor who is not allowed in our country. Also, it would have no application at all to a grandma in Syria who wants to enter the US, regardless of the reason. Neither would it apply to the children or grandchildren of the grandma, since they are not being deprived of life, liberty, or property without due process. I don't think the Trump plan will ever happen because wiser heads will prevail, but it won't be because the Constitution disallows it. As the Donald said the other night, "It's not about religion; it's about security." Well, there are better and more practical ways to improve our security.
The Americans are being deprived of their personal choice, liberty, (choosing a doctor, having relatives visit) all due to a law enacting banning Islamic immigration. I never said Syria. Ban a country all you want from their citizens coming here. The hurt party in all of my examples are the Americans living and working in this country. They would be the ones suing. Not grandma, not the doctor, to the hockey player. Even Chicago NHL fans are hurt by banning the Canadian/muslim Maple Leaf from playing in their arena against the Black Hawks.
David, I know this plan would never be enacted by Congress, but I would not put it past a President Trump to try to do it by executive order. Lots of immigration decisions by law are left up to the executive branch.
I once told you that republicans like to try to keep the masses scared of some enemy, and right now they are taking full advantage of the San Bernadino shooting, even though one shooter was American. And it's amazing how many comments I read online where people will swear upside down they were both alien infiltrators.
I simply used Syria as an example of where a Muslim grandma might be. Make it Saudi Arabia, Pakistan, or wherever. My point is, liberty is not absolute. Total liberty is called anarchy. True liberty always exists within certain boundaries. Security takes priority over everything else. So if Brady has to be treated by the second best doctor in the world, that may be the small trade-off for keeping our country secure. Because, Tom, if we lose security, if we can't go out of our houses without wearing body armor, then what do we really have?
As I said, if congress declares war, then maybe it is more constitutional. As for body armor, believe me, I am more worried about the crazy white guy going on a rampage at Wal-Mart than I am of the ISIS sympathizer.
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