Curious George
Veteran Member
Intent matters even in the Supreme Court.
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Who Agrees with Trump's Tweets on his Immigration EO and the Court Orders Thereto?
- Thread starter Nous
- Start date
You said: "Please show where the EO says that entry into the US is based on religion." Section 5(b) prioritizes entry according to a person's religion.
The issue of deportation has nothing to do with the Constitutional violations that Trump's EO creates. Lawful immigrants are not being deported under the EO; they have been denied entry, and would be denied re-entry, and have even been denied to meet with their attorneys. That is a clear violation of their Fifth Amendment rights of Equal Protection and Due Process. Lawful immigrants are recognized as having such rights no less than citizens are.
Violation of the Establishment Clause is certainly a weaker allegation. Nevertheless, Trump said he would create a religious-based EO, and he did do so (even though the EO isn't as sweeping as what he promised).
Curious George
Veteran Member
With immigration, any process given is due process. See knauff v. Shaughnessy holding ( "Any procedure authorized by Congress for the exclusion of aliens is due process, so far as an alien denied entry is concerned") whether we refer to it as deportation or denial of entry, it is not considered a punishment. This is combined with the plenary power is why any process given is due process. Equal protection does not extend to non citizens who are not in the jurisdiction of the u.s. moreover refusing reentry does not amount to the deprivation of any right. See Shaughnessy v. Mezei ( "The alien's continued exclusion on Ellis Island does not deprive him of any statutory or constitutional right" ).
"Congress can discriminate on the basis of race, national origin, or other characteristics which would trigger heightened judicial scrutiny in
other contexts." See Asian American law journal, The Enduring Effect of the Chinese Exclusion Cases: The Plenary Power Justification for On-Going Abuses of Human Rights, January 2003 volume 10 issue 1.
Moreover we are dealing with a justiciability issue even with the equal protection and due process arguments. The political question doctrine would preclude a court from interfering with a plenary power issue such as immigration.
I actually think this is the stronger of the claims. Because the Constitution is explicit in the limitations on government. But it seems that the issue is going to turn on whether we can infer intent from Trump's words. Ultimately, I agree that the EO is unconstitutional and Trump never should have penned such an EO. Bit thanks for the response.
metis
aged ecumenical anthropologist
The appellate court did consider intent and effect to also be important factors that they looked at, now it's a question as to whether the SCOTUS will take the same tact or to just deal with the words of the law that gives the POTUS such jurisdiction. If it's the latter, the administration probably will win
Note that the statute on which both of the cases you cited was premised, 22 U.S.C. § 223, has been repealed. Also, both are cases in which the AG determined on the basis of “confidential information” that these particular persons posed a risk to the interests of the US. No one denies the executive power to deny entry to such individuals. The millions of people excluded by Trump's EO have not been individually determined to pose a risk.
Saito was rightly concerned with the developments immediately after 9/11--even though he cites an article about Zadvydas v. Davis (see below). Saito's article occurred before the clarification of Zadvydas in Clark v. Martinez.
I can do no better than quoting the 9th Circuit's ruling yesterday:
The procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens. Rather, they “appl[y] to all ‘persons’ within the United States, including aliens,” regardless of “whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). These rights also apply to certain aliens attempting to reenter the United States after travelling abroad. Landon v. Plasencia, 459 U.S. 21, 33-34 (1982). The Government has provided no affirmative argument showing that the States’ procedural due process claims fail as to these categories of aliens. For example, the Government has failed to establish that lawful permanent residents have no due process rights when seeking to re-enter the United States. See id. (“[T]he returning resident alien is entitled as a matter of due process to a hearing on the charges underlying any attempt to exclude him.” (quoting Rosenberg v. Fleuti, 374 U.S. 449, 460 (1963))). Nor has the Government established that the Executive Order provides lawful permanent residents with constitutionally sufficient process to challenge their denial of re-entry. See id. at 35 (“[T]he courts must evaluate the particular circumstances and determine what procedures would satisfy the minimum requirements of due process on the re-entry of a permanent resident alien.”).
[. . .]
Even if the claims based on the due process rights of lawful permanent residents were no longer part of this case, the States would continue to have potential claims regarding possible due process rights of other persons who are in the United States, even if unlawfully, see Zadvydas, 533 U.S. 693; non-immigrant visaholders who have been in the United States but temporarily departed or wish to temporarily depart, see Landon, 459 U.S. 33-34; refugees, see 8 U.S.C. § 1231 note 8; and applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert, see Kerry v. Din, 135 S. Ct. 2128, 2139 (2015) (Kennedy, J., concurring in judgment); id. at 2142 (Breyer, J., dissenting); Kleindienst v. Mandel, 408 U.S. 753, 762-65 (1972). Accordingly, the Government has not demonstrated that the States lack viable claims based on the due process rights of persons who will suffer injuries to protected interests due to the Executive Order. Indeed, the existence of such persons is obvious.
[. . .]
Even if the claims based on the due process rights of lawful permanent residents were no longer part of this case, the States would continue to have potential claims regarding possible due process rights of other persons who are in the United States, even if unlawfully, see Zadvydas, 533 U.S. 693; non-immigrant visaholders who have been in the United States but temporarily departed or wish to temporarily depart, see Landon, 459 U.S. 33-34; refugees, see 8 U.S.C. § 1231 note 8; and applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert, see Kerry v. Din, 135 S. Ct. 2128, 2139 (2015) (Kennedy, J., concurring in judgment); id. at 2142 (Breyer, J., dissenting); Kleindienst v. Mandel, 408 U.S. 753, 762-65 (1972). Accordingly, the Government has not demonstrated that the States lack viable claims based on the due process rights of persons who will suffer injuries to protected interests due to the Executive Order. Indeed, the existence of such persons is obvious.
http://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/09/17-35105.pdf
No, the applicability of these constitutional rights is justiciable, is not a political question. The 9th Circuit addresses this argument as well.
The 9th Circuit had no need to address the merits, but noted the religious discrimination allegation to be of a "serious nature". Besides Trump's words (which are noteworthy, at least), there is the fact the 5(b) creates a religious test for entry. Certainly any court ruling on the constitutionality of the EO needs to examine and consider that provision.
No, thank you. I am always delighted to discuss the law.
UpperLimits
Active Member
Was it really a ban "based on religion?"
There are 46 other Muslim majority countries that are NOT included in the Executive Order. If it was a ban based on religion, why would only include seven countries with which the USA has had particular problems in recent years? Should it not also have included those other countries as well?
UpperLimits
Active Member
I don't have the whole order in front of me, but from page 11 (of the link I posted) the following description might just apply to most of the Middle East. (Of course, I'm being a bit facetious when I say that, but I think you'll get the point.) This seems to have similar overtones to the current environment.
2011, Aug. 9 – Obama
Proclamation 8697, 76 Fed. Reg. 49277
"Suspending the entry into the United States, as immigrants or nonimmigrants, of aliens who participate in serious human rights and humanitarian law violations and other abuses (e.g., planning, ordering, assisting, aiding and abetting, committing, or otherwise participating in “widespread or systemic violence against any civilian population” based, in whole or in part, on race, color, descent, sex, disability, language, religion, ethnicity, birth, political opinion, national origin, membership in a particular social group, membership in an indigenous group, or sexual orientation or gender identity)"
All that being said, I think a lot of the order actually comes down to the enforcement of the order. Obviously, one does not want to block legitimate travelers, but you do want to catch the bad guys, Unfortunately, that sometimes means inconveniencing a few people.
UpperLimits
Active Member
(To add)
Yes, I thought the "big problem" with the order was that it excluded based on religion. Isn't it being called down as a "Muslim ban"?
Curious George
Veteran Member
Was it not a ban based on religion? If it was not why would the president have called for a ban based on religion?
Curious George
Veteran Member
A big problem, that Trump implied that xtians were treated unfairly and this EO was going to fix that also implies that the intent behind it is to favor xtians as well, I don't think he has singled out any other groups that were treated very unfairly.
metis
aged ecumenical anthropologist
Especially since he said that Christians and those from other minority religions could be exempt from the ban.
esmith
Veteran Member
Where did the EO state that?
How is that supposedly similar to Trump's EO? Obama's EO suspends the entry of only those aliens who participate in serious crimes and human rights violations. Trump's EO does not identify and select any such group of criminals, but merely bans all people from 7 Muslim-majority countries.
The problem with Trump's EO is not that it merely inconvenienced a few people. Trump's EO violates (or did violate) the Constitutional rights of lawful immigrants and refugees (and states) merely on the basis of their national origin and/or religion.
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Discrimination on the basis of religion does not have to affect each single person of that religion and does not have to be overt in order to be unconstitutional.
Trumps EO is currently getting non-criminals deported.
I think you're referring to the sweep yesterday. That wasn't the result of his immigration EO--which, as of a week (?) ago, has been stayed under a TRO.
In this county people would be in the process of deportation for months but as I understand Trump was trying to streamline the process.
I shouldn't be talking about this because I don't know much about what has happened.
Nevertheless, if people who are here without authorization have been rounded up (and already returned?), then it is only enforcement of the law.
This is apparently the EO on which the sweep was based: Executive Order: Enhancing Public Safety in the Interior of the United States
I've only skimmed it, but I don't see any constitutional issue with it.