08 December 2015

Some Constitutional Context to the Trump Immigration Kerfuffle

"To preserve its independence, and give security against foreign aggression and encroachment, is the highest duty of every nation; and to attain these ends nearly all other considerations are to be subordinated. It matters not in what form such aggression and encroachment come, whether from the foreign nation acting in its national character, or from vast hordes of its people crowding in upon us. The Government, possessing the powers which are to be exercised for protection and security, is clothed with authority to determine the occasion on which the powers shall be called forth; and its determination, so far as the subjects affected are concerned, is necessarily conclusive upon all its departments and officers. If, therefore, the Government of the United States, through its Legislative Department, considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security, their exclusion is not to be stayed because at the time there are no actual hostilities with the nation of which the foreigners are subjects. The existence of war would render the necessity of the proceeding only more obvious and pressing. The same necessity, in a less pressing degree, may arise when war does not exist, and the same authority which adjudges the necessity in one case must also determine it in the other. In both cases, its determination is conclusive upon the Judiciary.

Fong Yue Ting v. United States
, 149 U.S. 698 (1893)

This case, one of the so-called "Chinese Exclusion Cases", is still precedential and has not been overturned despite the passage of 120 years. In these cases, the Supreme Court held that Congress could exclude foreigners for any reason. In those cases, merely for being Chinese.

I point it out not to advocate for or against Trump's position, but to address the reaction of nearly everyone who has just assumed it would violate the Constitution. Until a non-citizen enters the United States, the U.S. Constitution extends them no rights. Even inside the U.S., they are not afforded full Constitutional rights, but merely a minimum of due process.


Jane Chantal said...

Thank you, Timman.

Jack Smith said...

This case, as I understand it, specifically relates to exclusion by country of origin. Of course, we still have immigration quotas by country.

Question - Is not the first amendment a restriction on congress and not, strictly speaking, a guarantee to citizens? "Congress shall make no law ..." ie., if congress made an immigration law with respect to religion wouldn't congress be violating the first amendment?

I'm a college dropout, so treat me with kid gloves.

BTW, the law under question in this case was an extension of the Chinese Exclusion act named for Rep. Thomas Geary who was an Irish Catholic bigot educated by Jesuits in San Francisco. This nearly matches my bio, minus bigot. I should add that this paragraph is gratuitous commentary unrelated to the legal question at hand.

thetimman said...

First, Congress is prohibited from passing any law establishing a religion or preventing the free exercise of religion. Barring entry based upon a religion does neither.

Secondly, the Bill of Rights is to protect the rights of those the Comstitution governs: citizens and those who reside here-- legally or illegally, and to a greater or lesser extent. The exact reach of constitutional protection to non-citizens is too complex to be covered in this forum. So, as a basic, the US constitution has no application to anyone living in Mongolia, for instance. The Mongolian government is not bound by it and the US government doesn't (yet) rule Mongolia. Again, the prohibition that can be justified under law I so those who are not here. It is a far different question if expulsion were the issue in question.

The fact that The Chinese exclusion cases covered immigrants from a country as opposed to a religion is strictly speaking irrelevant, based on the reach of Constitutional rights as explained above. Of course, a more practical approach, as opposed to setting up little inquisition stations with pulled pork sandwiches, would be to bar entry from certain countries. We know which countries are predominantly Muslim. And to solve the problem from Western countries overrun with significant Muslim population, the Visa Wiaver Program from those countries could be eliminated, thus requiring each person to apply for a visa at a US consulate abroad in order to get entry.

Would that solve all problems. Of course not. But that is one way to implement the Trump proposal rather easily. And recall I am not endorsing it or opposing it for purposes of my post.

People are very much agitated for a proposal that excludes Muslims from the US but don't seem all that worried about our current policy of blowing them up overseas.

Anonymous said...

Your last sentence has a lot of merit. Mericans are idiots if they can't make the connection of what the US is doing to the middle east and the reactions of a few nut-job suicidal bombers. Let's see, the US illegally and immorally invaded the sovereign nation of Iraq. 1 million Iraqis have died. 10% of the population that had been Eastern Rite Catholics are gone. Bush, Rumsfeld, Cheney and Wolfowitz have been charged as war criminals in foreign courts. And that is a shame because they should be able to freely walk the streets of Bagdad "where they will be seen as liberators" with citizens "throwing them flowers and handing them wine."
We propped up Israel where over half of our foreign aid has made them the most heavily-armed country in their region. Never mind the 4 million refugees forced to flee as Israel continues to expand its borders.
We supplied military equipment to Iran and military intelligence to Iraq during the Iran/Iraq war in hopes that millions would die. We came close, but they suddenly brokered peace. (The US doesn't know what to do with that - but as you suggest, we're really good at blowing people up overseas.)

BTW, St. Louis has 70,000 Muslim refugees living in it, and of course, there is constant gunfire and mass murders ... wait - that's in the other part of the city that all the Whities have ignored.

70,000 refugees in STL. Obama was hoping to bring in 10,000 refugees, and the Republicans have gone crazy. And that, my friends, feeds even more animosity from the middle east.

Lord God, have mercy on America, because we certainly don't deserve it.

thetimman said...

No, we don't deserve mercy. It is a free gift of God, which He promises to those who repent. We definitely need to repent of our foreign policy.

I think the domestic policy is open for debate. That is the focus of my post.