Sort of – the injured parties, the ones whose injury gave rise to their standing – are those Americans who suffered because the ban excessively entangled religion into an immigration decision. In other words, the facts that gave rise to their standing are the facts that show their injury, which is kind of tautological, I suppose, but they’re the ones injured by the (supposed) impermissible entanglement.
Which is just saying he was right about the first one, and since his claim was only “some,” he is therefore correct.
As I understand it, the main argument is just that this decision was made before many other decisions about discrimination.
Those who assert this ban is unconstitutional would claim that the Chinese Exclusion Act would also be found unconstitutional today.
This is a problem I have with the standing issue for the U.S. citizens involved. As you pointed out, the holding was that it was religious discrimination because as a Muslim-American, lets say, my relatives cannot come here because they are from the six countries and also Muslim. That harms me based upon religion.
However, even if I converted to Catholicism, my relatives still are not eligible for entry. Therefore, it matter not what MY religion is, but (arguably, and least charitably to Trump) what THEIR religion is. And, as has been pointed out, immigrants do not have First Amendment rights with regard to entry.
Hence, no standing.
The Feds pass a law that says, “Congress finds that Muslims give inordinately to terrorist organizations. To reduce the dangers of such transfers, no Muslim may receive a non-taxable gift of any amount of money. The tax-free gift amounts remain in effect for all other faiths.”
My son marries a Muslim, and I wish to give my daughter-in-law a $10,000 wedding gift. If she were Catholic, as I am, that would be tax-free. But she’s not. Do I have standing to attack that law?
Tax law is not my thing. You have to pay the tax on this gift under the law?
ETA: Not trying to fight the hypo, but is your son’s wife a citizen and/or physically present in the United States?
The First Amendment doesn’t grant freedom of religion rights to anybody, in or out of the country. What it does, with respect to religion, is all in terms of restricting the power of government. And hence, to the extent that the government has power over immigration, the religion of immigrants is just as protected as the religion of citizens.
nm; answered already, and better than I could have. Thank you BobLibDem!
Not really. The first amendment is, after all, part of “The Bill of Rights”. The limitation on government action is how the right is protected. But let’s be clear: the constitution (and the Bill of Rights in it) doesn’t “grant” any rights. It recognizes that certain rights exist and then says what the government can and cannot do wrt those rights.
You probably made an honest slip there, but I think the founders would shudder at the idea that the government “grants” rights to the people.
Correct. Also these rights can only be enforced in the courts by the standing doctrine. I cannot go to court to say that my neighbor’s rights have been violated. I must have MY OWN injury to go to court.
So, if the law takes away my brother’s right to keep and bear arms, I generally cannot go to court to advocate for that. It is up to my brother to do so.
Nor mine, but this issue is one I know: I can give a tax-free gift to anyone as long as my gifts stay under $14K total for the year.
Once I exceed the yearly limit, there are various tax implications to me (the giver) with the specifics not relevant to this hypo.
Yes.
The idea that rights are “recognized” rather than “granted” is more of a religious belief than anything.
Right. Because Obama attacked the institution of the free press at every turn. And restricted information access. And blabbered during his candidacy about how he would institute a Muslim ban. And lied at every opportunity, even when it was unnecessary. And led an administration that was under investigation from Day One. And bragged about how he could literally get away with anything, from pussygrabbing to murder.
Oh, wait. That was Trump.
I’m so glad we have a final arbiter of objectivity, and that he’s a Trump supporter. After all, how else would I know which is the proper opinion to hold? Heaven forbid that I should disagree with our Glorious Leader.
Not really. The constitution does’t grant rights. You might argue that the people secure certain rights via the constitution, or even “grant” them to themselves, but the document isn’t the source of rights, nor is the institution of the federal government. Those things are tools for securing rights.
Not entirely true. Many of the rights in the Constitution came from the English Bill of Rights of 1688. Englishmen possessed those rights at the time of the founding and our BOR simply reaffirmed those rights.
Then to continue the socratic discussion, your injury in fact is your desire to give a tax free gift to your son’s wife.
However, “The ‘injury in fact’ test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured” Lujan v. Defenders of Wildlife, 504 U.S. 555, 563 (1992).
So, as I would read the test, although you would suffer an injury due to this horrible law which is clearly a violation of the First Amendment, your First Amendment rights are not harmed (i.e. you are Catholic and the religion that is harmed is Islam). Your daughter in law would certainly have standing.
To further clarify our hypothetical: does the statute operate by requiring the Muslim donee to pay income tax on all gifts? Or does it operate by making it unlawful for you to transfer the money? Or does it require you to pay gift tax if you make a gift to a Muslim?
(As I understand gifts, a gift is never taxable to the donee. Gifts over a certain amount are taxable to the donor.)
And it ultimately derives from the concept of natural rights, which appears to have been advocated first by the Stoic school of ancient Greece.
The hypothetical statute would operate by taxing me, the donor, on a gift I gave to a Muslim.
How is she harmed? She gets the gift, tax-free. I pay the tax.
Arguably. It is certainly helpful that the Muslim ban is discrimination on the basis of religion and national origin, especially since standing to bring Establishment Clause claims has always been murkier than standing in other contexts.
But the real answer is that it was constitutional because the case was decided before the existence of modern equal protection jurisprudence. It may well not survive constitutional scrutiny if enacted in 2017.