I heard some attorneys argue that aliens who have applied for visas may have some of the same Constitutional protection even before they are on US territory, because they have established an interest in the US. I believe this is untested as of yet.
Here is the argument presented charitably: it’s not wrong to present statistical truths about demographic blocks. Setting aside Constitutional issues (many!), I think the strongest argument is then to ask why we can’t use those statistical truths to guide e.g efficient airport security?
You can of course disagree with certain statistics being peddled (e.g. “terrorists are more likely to be Muslim”) without disagreement on the moral principles. But it’s probably better to work out what the disagreement is actually over.
I mean if we’re gonna cite stats we need to ban the fundamentally more dangerous (to Americans) toddler from the nation’s airports rather than Muslims.
Wait I’m actually kinda in favor of this.
Indeed! But be charitable: if we’re in charge of airport security, we’re more interested in the tail end of the distribution; rare events with many casualties (worst case might be a dirty bomb or bio-weapon) rather than banal events where a toddler shoots someone or a vending machine falls over.
A better argument (because it addresses this stronger position) is that the aggregate statistics are naturally weak at helping us understand these tail risks.
My own personal belief is this:
The US has a right to determine who goes into its country. That said, there are constitutional protections against the process being based solely on a protected factor.
Why not just implement a standard of “is not in the best interest of the United States?”- with prohibitions on declaring a protected status being the sole reason that someone is not in the best interest?
For a start, this approach is very easily gamed. See, for instance, racially motivated jury selection, which is illegal on precisely this basis, yet is still rampant.
Second, your standard is extraordinarily vague, which means it’s going to be capriciously/arbitrarily implemented, which is neither equitable nor efficient (and arguably unconstitutional itself - Scalia was famous for striking down vague standards like that). You could ameliorate that with detailed guidelines on what exactly is in the best interests of the US, but then it’s no longer a simple standard, but basically what we already have.
The fact of the matter is that Trump can and will prevail in preventing immigration to the US from certain countries. There is plenty of precedent for treating applications from one nationality differently from those coming from other countries – Cuba is a good example of this. It’s well within the power of the POTUS to implement this, especially if it is bounded by a date (“next 120 days” etc.).
Where Trump/Bannon over-reached was in applying the rules of his XO to existing green-card holders. Once you are a legal resident of the United States, you have almost all the same rights that a natural-born US citizen has (with some important exceptions). One of those rights is the right to due process, which means that Trump’s Executive Order revoking the ability of those people to return home was illegal and would have eventually been thrown out.
All Trump really has to do is to re-issue his XO and specify that this ban/pause/whatever only applies to new visa applications starting at X time one Y date and he’s pretty much completely within his powers. It’s just sheer stubbornness or else a desire to create unnecessary controversy that’s keeping this thing in the news.
I think you’re right that in principle, what Trump wants to do is well within his power, and is not even terribly controversial at a basic level.
But it’s also the case that the courts will consider the rationale behind his order when determining its legitimacy. If it’s mired in prejudice, not facts, and if he’s come out and said a ton of stuff that suggests this (“I want a Muslim ban!”), it may well get ruled as unconstitutional.
The mere contents of the Executive Order are not the only thing that will be looked at; context matters.
Yeah, IANAL but this appears to be the case. If they would have excluded current green card holders the order would probably still be in force.
It’s frustrating that so many people in Trump’s inner circle are totally unconcerned with Constitutional rights, but at least the judiciary is available. I have my popcorn ready if Trump decides to take more dumb advice and challenge that check and balance.
I’m dubious that blanket revoking already granted non-green card visas of new or returning entrants would have been legal either, but IANAL either and it’s certainly less clearcut that the green card issue.
The thing that throws the notion of a ban based on country of origin into question, is that the administration already foolishly showed its cards, indicating that this is REALLY a muslim ban. This indication of motivation creates some potential Constitutional hurdles.
Hell, even RoyalWe fell prey to this trap, accidentally indicating that we were talking about a religious basis.
And the real screwup, besides the order itself, was the Trump administration’s argument against the stay: the courts don’t have standing to stop the President from doing this anyway, because National Security. That, I imagine, caused a bit of consternation.
However, some form of ban will go through. There’s no question the President has the right to legally enforce it. A speaker on NPR illustrated this by suggesting that the President could implement a naval blockade on the US, and it would certainly impact various states, but the states should not be able to sue the federal government as a way to influence foreign policy.
There’s literally public record of Giuliani saying Trump asked him to figure out a way to make the Muslim ban legal.
Fox News host Jeanine Pirro asked Giuliani whether the ban had anything to do with religion.
“How did the president decide the seven countries?” she asked. “Okay, talk to me.”
“I’ll tell you the whole history of it,” Giuliani responded eagerly. “So when [Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’ "[/quote]
Dumbest presidency ever.
Just got this note from a social worker who works with immigrants:
There’s now extortion scams going around where phonies are threatening to be ICE folks, and demanding people pay fines or be deported.
It is almost as if they weren’t prepared at all to be running the country.
Not surprising. Hell, it wouldn’t surprise me if it was actual ICE agents given what we’ve seen out of them.
Yeah, I’d be shocked if there weren’t a great many ICE people extorting money from immigrants. It’s a standard benefit for that kind of worker, much like free donuts and faked up overtime are benefits for ordinary police. And while there may be some police officers who honestly want to serve the community, I doubt there’s a lot of happy well-adjusted children who tell their parents “when I grow up I want to deport immigrants in order to preserve manual labor jobs for us citizens.”
That’s the thing about racism, though: it’s insidious, and it doesn’t require recognition (on the part of the person engaging in racist behavior) to exist.
Almost nobody thinks that they’re racist, yet racial bias is pervasive. Rationalization is a powerful thing.
This long Vox article on the “Counter-Jihad” movement in America is long and detailed, and really depressing to read as an American muslim. Team B II is very influential in the current White House. I’m just cringing at so much of this stuff. And ACT is spreading all this misinformation about Islam in little seminars all across America. And I had no idea just how many of the believers are in this current administration.
If profiling were done solely on religion, I would agree with you. Are you willing to acknowledge that this is not the only variable at play?
This is irrelevant to this discussion. You are asserting ‘oppression’ – I reject that notion outright. My argument has nothing to do with any tangible benefits at all. In a position of responsibility, sometimes “doing nothing” is not acceptable when the status quo is considered a significant part of the problem by the populace that elected its leaders. You can debate the efficacy (or wisdom) of any action, but it is not a relevant factor to this discussion.
I am primarily concerned about United States citizens – every one of them regardless of color or creed. They have my loyalty and my concern. Regardless of what stupid statements have been made by Trump or others in his orbit, I look at their actions. I suppose it’s possible that they are all mustache-twisting good ole boy racists, but as long as their actions are reasonable and within their legal authority then I am not concerned. As others have suggested, these actions are not “terribly controversial” and it certainly isn’t unprecedented.