US immigration law: so f'ed up that Trump's no-Muslim plan would be constitutional


#1

[Read the post]


#2

A dissenting view: http://www.lawyersgunsmoneyblog.com/2015/12/james-taranto-constitutional-scholar

tl;dr: Relax, according to a huge body of precedent, it is indeed unconstitutional.


#3

And what usually happens first when a zealot is in power and gets dissenting views as to the constitutionality of something they really want to do?


#4

The INS is something the vast majority of Anericans never interface with. Let me tell you, it’s like every worst aspect of the DMV & mainly staffed by Patty and Selma - but with a shot of Monty Burns.
CBP is similar, though I’m sure the vast majority of them are Trump supporters. Some of the worst experiences of my life have been entering this country. So much so that I don’t travel out of it anymore until “the last time”.
So the gravity of this is clear, I’m white, male & from the UK (your only constant ally) & could pass for CoE.


#5

Kinda obvious violation of 1st, 10th and 14th Amendments. Then again, he’s trying to appeal to the lot of people who already wish to repeal those Amendments because they want a white, totalitarian, Christian theocracy.


#6

Down side is, those protections only apply - in full - to natural born (cough rich n white cough - sorry - citizens). Naturalized citizens, when being bullied by INS or, more likely CBP, or any three letter agent or LEO will be threatened with deportation and residents, ha, the Bill of Rights simply does not apply. Also, 100mi from international borders or functional equivalents now I think - (the bulk of the population really) are now where the Constituion & BoR are “optional”.

Sad thing is, so many of my American friends directly equate the Constitution & Bill of Rights with Basic Human Rights - that just by being in this country you are automatically afforded their protections, or at the very least, by being here legally - & just don’t understand that even though I’ve lived here and paid my taxes for >30 years, I effectively have zero rights here.

Trumps rhetoric scares the living shizat out of me because he simply hasn’t gotten to my group yet doesn’t mean I should sit idly by and wait. If he wants a test for being Muslim - how far off is a test for being non-Xtian? Followed, inevitably by a specific sub-brand of sub-sub-Xtian.

My only hope is this is him building his resume for his next hobby, political pundit. This way he can build his political creds & charge through the nose for speaking engagements. Fingers crossed.

ADD: That’s not to say there hasn’t already been damage done. His xenophobic rhetoric is going to take some effort to undo. I was at a Dr appt. yesterday and overheard people openly being racist against Muslims with not a soul disagreeing with a joke about how Muslims just held a peace rally in San Bernardino and 14 people were killed. At which point I interjected “there’s been another shooting?!?!” and the reply “we were talking about that shooting, Muslims are all killers”. So many thoughts went through my head. Do I point out that a slim minority of Muslims are as they describe “all” or that the slim minority kills more Muslims than Americans by an unfathomable factor, or maybe that the recent terrorist in Colorado and the vast majority of mass shooters in the U.S. are Xtian. My name was called while I still had a dumbfounded look on my face.
Hate speech by presidential candidates makes JQP think its OK to speak/think the same way… and this is exactly what Daesh wants, to frame it as U.S. vs all Muslims. Trump may as well be a member of Daesh since he’s basically their spokesman.


#7

That’s a different conversation from whether the Constitution is “so f’ed up that Trump’s no-Muslim plan would be constitutional.”


#8

those seeking entry into the USA, have no rights under the US Constitution

That’s a big departure from what I’ve understood the constitution to be as well as a big departure from the common law and constitutional definition of rights. Rights being that which is inherent and independent of government. The constitution and the bill of rights do not grant us rights but rather serve as a partial enumeration of certain rights upon which the government may not infringe and expressly states that the enumeration of certain rights in the bill of rights and the constitution do not nor should be construed to deny or disparage any of the other rights we retain as people…
If the law is to have any meaning, it should apply to all people and our government has no right to deny anyone their inherent rights, citizen or not.


#9

Actually, I’m a little confused here. I thought the issue was how we can abuse the rights of those who aren’t yet naturalized citizens, which doesn’t appear to be what Mr. Taranto’s talking about.

Does the Constitution prevent religious discrimination when it comes to naturalizing immigrants? I think that’s the concern, though our history of profiling and detaining existing citizens (after 9/11) is also something I’d think should have been unconstitutional from the get-go but we obviously did quite a bit of.


#10

Not a constitutional scholar, but I would think that the establishment clause in the first amendment would make any religious litmus test unconstitutional. All those laws about race, nationality, etc, may indeed be only applicable to citizens, but religion is a whole other beast, or so I’d think.


#11

Besides, Trump said he’d keep Muslim U.S. citizens from reentering the country which is about as blatantly unconstitutional as it gets.


#12

As someone who recently was granted permanent residency in the USA, this is simply false. The documentation given to new residents is pretty clear that we generally have the same rights and freedoms as citizens, we just don’t have the right to vote or serve on a jury. It is also possible for residency to be revoked in the case of being convicted of a felony (unlike naturalized citizens).


#13

I got that exact same documentation, yet when I referenced it to border patrol & homeland upon being detained & interrogated I was told I’m not American and those rights are for Americans only.

Point being, yes, I probably could have asserted my rights in front of a judge, but if I wanted to see said judge I’d have to spend 3.5 days in a Puerto Rico prison (traveling before a three day weekend there) & there was no way I was going to do that.

Welcome to minority status, where your rights on paper and in practice do not always line up.

Edit: stupid automangle


#14

That’s why international declarations and agreements like the UN Declaration of Human Rights are important.
When your own governments starts to ignore domestically codified rights there is something you can fall back on. Many USians are proud of the fact that the US government has/had a habit of sabotaging or refusing to participate in such international agreements (e.g. ICC). In issues like this the problem becomes a bit more obvious…


#15

Oddly enough, the U.S. has signed on to several human rights treaties including the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights. In the U.S. treaties have the weight of a constitutional amendment.

Both treaties contain this,

“Recognizing that these rights derive from the inherent dignity of the human person,”

so our law, by treaty, clearly states that rights do not come from the government.

The International Covenant on Civil and Political Rights also states

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

In other words, people outside the U.S. are guaranteed protection under our law.

As you can see, this is in direct contradiction to the precedent mentioned by these judges and the general tone of the justice system. It’s important to note that very often judges are ignorant and misinformed.


#17

Guantanamo?

Unfortunately it’s not so easy. There are several reservations, understandings and declarations. The implementation is questionable.


#18

And that is a steaming pile of bullshit, statistically.

There are 1.5 BILLION Muslims in the world, yet despite a huge number of being in a part of the world that’s suffering from constant disruption and violence from other nations they’re statistically less likely to be dangerous than a self-identified Christian white male, especially here in the States.

Meanwhile, we also have evidence that Islam itself is no more likely to create batshit-crazy than Christianity. There’s this place called Indonesia (the country with the largest Muslim population, by the by) that has violence and ‘isms’ that are actually somewhat better than average for the region when you go by socioeconomics and the Gini coefficient. (Gapminder is your friend)

Lastly, the fact that we keep going on about terrorism while ignoring far more statistically dangerous issues (like cars, cows, dogs, and bathtubs) demonstrates that anybody who brings up terrorism as a higher priority issue than less emotional but more statistically likely ones does NOT deserve to be taken seriously when talking about safety.


#19

From that same article.

However, the U.S. Federal Government has held that the ICCPR treaty was only ratified “after” it was determined that all the necessary legislation was in place to provide for domestic effect of law, thereby making the ICCPR treaty self-executing by definition.

I love that sort of tac - providing an example of how we break our own laws as if breaking them nullifies their validity, intent, or scope.


#20

Indeed, the United States has not accepted a single international obligation required under the Covenant. It has not changed its domestic law to conform with the strictures of the Covenant.[95] Its citizens are not permitted to sue to enforce their basic human rights under the Covenant.[95] It has not ratified the Optional Protocol to the Convention against Torture (OPCAT). As such, the Covenant has been rendered ineffective, with the bone of contention being United States officials’ insistence upon preserving a vast web of sovereign, judicial, prosecutorial, and executive branch immunities that often deprives its citizens of the “effective remedy” under law the Covenant is intended to guarantee.


#21

That our courts and lawmakers have taken it upon themselves to deny the basic dignity and inherent rights of its citizens does not change the fact that they exist. Similarly, that our 10th amendment is being ignored does nothing to diminish its intent of effect.
In other words, corruption of our government and our laws should not be accepted as an immutable condition for the sake of expediency or a desire to please the authoritarian mind.