Okay, fair enough. But again, persons on U.S. soil are entitled to due process, equal protection, and freedom from racial and religious discrimination. Foreign nationals have no right at all to entry in the United States, let alone one free of the above defects.
Can the left point to a single published case where a foreign national located outside of the border of the United States has these rights
Some yes, some no. But I think the administration’s case is not so much that countries themselves are hostile, but they are to a large extent failed states (except Iran) where a lot of “bad hombres” are residing, and we need to make sure none of them slips through the cracks and into the US. Now, I don’t buy that, but I don’t think it should be up to the courts to be deciding a policy decision like that.
Frankly, when the judge asked and answered his own question about how many terrorists had come from those countries and killed anyone in the US, I think he looked rather foolish. Like him or not, it’s up to the president and the executive branch to be making decisions about protecting the US from outside threats, not the judiciary.
I agree with this 100%. The policy is not perfect, and on balance probably not even good. But it is a policy that is inherently executive in nature. Courts should but out and stop inventing rights.
This makes no sense at all. Surely after 4 pages of this the role of the courts is clear.
This isn’'t even about refuges of muslims, it’s about the statements of equality in the constitution. Either people are fucking equal under the law in the US or they aren’t.
By all means do what you want Mr Trump, but you need to amend the Constitution first.
U.S. Constitutional rights, even if they have been violated here, which I do not believe nor concede, do not apply to anyone, anywhere in the world. A guy in Yemen who wants to travel to the United States has no right to any process, let alone a fair and non-discriminatory one, to be able to come to the United States.
You may argue that discrimination based upon race or religion as applied to these foreign nations is unfair or unwise (which I am not saying is what is happening), but nothing in our history have said that this is a matter for the courts instead of the executive and/or legislative. There are simply no issues here that concern a court.
Except people in Yemen and Iran are not “in the US”.
Context is everything.
Taking applications, even prioritizing applications, for refugee status based upon one’s membership in a persecuted group is written into the UN Refugee Convention and US law. And persecution on the basis of religion is specifically mention in both.
Both the Yazidi in Iraq and Christians in Syria have been subject to genocide at the hands of ISIS. John Kerry noted that determination of genocide had been made in relation to the Yazidi. The European Union recognizes that Christians have been victims of genocide by ISIS in Syria. It is not hard to surmise that each minority group may also suffer at the hands of ISIS in the other country.
Q: Suppose the CIA decides it needs to wiretap your phone in the UK. Do they need to get a warrant from a US judge?
Are you sure about that?
Well, I am considered a raging lefty where I live. On the SDMB I am oft lumped in as a voice of the right wing. I prefer to consider myself more moderate. But here goes…
Let’s take a look at Landon v. Plasencia from 1982.
From a cite I used earlier…
So this is pretty close. A foreign national was afforded 5th Amendment Due Process protection when she was detained and refused entry at the border. It applied to a *very *narrow set of circumstances of detention of a permanent resident, normally domiciled in the United States, who left for only a few days.
Try finding it for someone who is not a permanent resident alien of the United States.
But she was in the US. Or are you saying the US Border agents detained her in Mexico? Plus, she’s a permanent resident alien, not some random guying Mexico.
You can’t. *Very *limited case.
She was presenting herself at the border and requesting entry. US immigration personnel refused her entry.
The Supreme Court has held (Shaughnessy v. United States ex rel. Mezei) that even VERY long stays in immigration do not count as being “in the US” as far a rights are concern. One man even spent 21 months living on Ellis Island but was deemed not to have entered the United States as he had not been cleared through immigration controls.
Are you saying a Yemeni citizen can’t go into the US Embassy there and apply for an entry visa? … or are you saying the written laws of the USA that regulate who is given an entry visa should be ignored? … I think you’re wrong … I agree the applicant has no rights under the US Constitution … but the screener as a Federal government employee is swore to uphold the Constitution and the Laws of the United States …
Executive Orders that derive their authority from written law most certainly can be challenged in a court of law … as any written law itself can be challenged … “… all Cases, in Law …” … I’ve never heard of the police throwing someone in prison for twenty years without a trial … that’s never supposed to happen here …
Wow. That was interesting to watch, I’m glad I had the time today, thanks for sharing that. Trump called that guy a “so-called” judge". Is this the appropriate forum for me to call Trump a “skid mark masquerading as a man”?
The laws of the United States provide damn near unfettered discretion to the consular officer making the decision on the visa application.
The US Supreme Court has ruled on several occasions that the decision process of the consular officer processing a visa application is the only due process owed and cannot be appealed to the courts. A few rulings have chipped away at that around the edges, but the basic principle still holds. An applicant can be refused a visa and is not entitled to a reason what the application was refused.
When the naturalized US citizen spouse of an applicant flied suit when her Afghan husband’s visa application was denied the Supreme Court ruled she is not entitled to a reason for the denial. See Kerry v Din from way back in 2015.
bolding is mine
No. That happens with the military and/or CIA and at Guantanamo. Not “police” and not “here.”
Oh. And to nitpick. The US Embassy in Sana’a, Yemen was closed in February 2015. Non-immigrant US visa applications are suspended and have been since February 24, 2015, well before Trump took office. So no, that hypothetical Yemeni cannot go and file a visa application at all there.
Applicants for US immigrant visas from Yemen must make their visa applications through the US Embassy in Djibouti.
Yeminis residing abroad may file an application for a non-immigrant US visa at the nearest Consulate or Embassy.
It’s worth noting that there has never been an immigration ban that targets religion, so we don’t actually know much about how the Establishment Clause applies to such actions. We also don’t know much about how the Equal Protection Clause applies to immigration limits since all the precedent preceded reverse incorporation, much less Brown v. Board et al.
The citation to the asylum and refugee rules isn’t on point. Had the order allowed exceptions for people targeted on the basis of their religion, that would be fine. That would include many Muslims. It didn’t do that.
The confident claims that these laws definitively don’t apply to immigration limits is political bluster, not legal analysis.
You’re being too denigrating toward the skid mark.
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It is the laws of the United States that provide for this unfettered discretion …
Neither the President nor Congress ruled these cases can’t be appealed to the courts … it was THE COURTS who made this ruling … obviously the case can be brought before the courts to rule on … and, in fact, it has been brought to the courts to rule on … and the courts have made their decision … no one can appeal the decisions of The Supremes …
Yeah … I was careful to use those exact terms; police and here…