# Let's talk about the POTUS, "sovereign prerogative" and the constitutional rights of foreigners **URL:** \ **Category:** Great Debates\ **Created:** [February 5, 2017, 7:03am UTC](https://boards.straightdope.com/t/lets-talk-about-the-potus-sovereign-prerogative-and-the-constitutional-rights-of-foreigners/779053 "2017-02-05T07:03:33Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [February 6, 2017, 12:17am UTC](https://boards.straightdope.com/t/lets-talk-about-the-potus-sovereign-prerogative-and-the-constitutional-rights-of-foreigners/779053/21 "2017-02-06T00:17:41Z")
My opinion only - but those people making those decisions are agents of the US - from immigration officials all the way up to the president himself. My preference would be that they not be allowed to act in ways that violate the constitution but that’s not very sound analysis. In looking at the issue I can’t find basis to support the idea that foreign nationals outside the jurisdiction of the US enjoy constitutional protections. [I see this passage come up quite a bit though:](https://supreme.justia.com/cases/federal/us/538/510/) > [@](#): > > Congress, which has broad power over immigration and naturalization and regularly makes rules regarding aliens that would be unacceptable if applied to citizens, has no constitutional duty to provide all aliens with the welfare benefits provided to citizens It seems like recognition that aliens may be treated wholly differently. The extent of the difference seems to be the key issue. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [February 6, 2017, 4:37am UTC](https://boards.straightdope.com/t/lets-talk-about-the-potus-sovereign-prerogative-and-the-constitutional-rights-of-foreigners/779053/22 "2017-02-06T04:37:22Z")
> [@Richard\_Parker](#): > > No doubt, the conservatives on the court will say something similar, as they did in _Boumediene_. But Kennedy sided with the liberals to say that these vague claims of national security do not override basic constitutional principles. I think most of the force of your argument rests on vague fears rather than concrete and demonstrable facts. Waving the flag is gonna be tough on this one because the ban is so overbroad and underinclusive, and because the plaintiffs are going to be people like Iraqi translators who fought for our troops. > > Note also the caveat I made in [this](http://boards.straightdope.com/sdmb/showpost.php?p=19978051&postcount=142)thread. In Boumediene, the United States government was (and still is) imprisoning non-resident aliens against their will in an area of the world under complete de facto (but arguably not de jure) U.S. control. The complained of acts in this executive order do not imprison anyone and apply to areas of the world that are clearly not under any sort of U.S. control. HUGE difference. The impact of this ruling will have lasting consequences if it stands. Suppose this EO is repealed and in six months a guy from Yemen is denied a Visa. If he claims that Trump is simply using the stated reason for the denial as a pretext and is only trying to enforce his “unconstitutional” EO by other means, does he have standing in U.S. courts? As mentioned elsewhere, what about a potential target of a drone strike? Sue the President in U.S. courts? What if Trump decides to take military action against Iran because of an alleged breach of the nuclear deal? Can the Iranian government get a TRO against the President to halt military action? If Congress declares war against Iran, but Iran believes that it is religiously motivated, can a TRO be had in federal court? These are all very real possible intrusions into clearly legislative and executive functions, and are only being heard because the courts want to legislate ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [February 6, 2017, 1:04pm UTC](https://boards.straightdope.com/t/lets-talk-about-the-potus-sovereign-prerogative-and-the-constitutional-rights-of-foreigners/779053/23 "2017-02-06T13:04:49Z")
> [@UltraVires](#): > > In Boumediene, the United States government was (and still is) imprisoning non-resident aliens against their will in an area of the world under complete de facto (but arguably not de jure) U.S. control. > > The complained of acts in this executive order do not imprison anyone and apply to areas of the world that are clearly not under any sort of U.S. control. HUGE difference. > > The impact of this ruling will have lasting consequences if it stands. Suppose this EO is repealed and in six months a guy from Yemen is denied a Visa. If he claims that Trump is simply using the stated reason for the denial as a pretext and is only trying to enforce his “unconstitutional” EO by other means, does he have standing in U.S. courts? > > As mentioned elsewhere, what about a potential target of a drone strike? Sue the President in U.S. courts? What if Trump decides to take military action against Iran because of an alleged breach of the nuclear deal? Can the Iranian government get a TRO against the President to halt military action? > > If Congress declares war against Iran, but Iran believes that it is religiously motivated, can a TRO be had in federal court? > > These are all very real possible intrusions into clearly legislative and executive functions, and are only being heard because the courts want to legislate This is an example of the kind of garbled legal analysis that flows from conflating the various claims, parts of the EO, and people affected. You should make your argument by referencing which claim, which part of the EO, and what kind of affected person you’re addressing. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [February 6, 2017, 1:13pm UTC](https://boards.straightdope.com/t/lets-talk-about-the-potus-sovereign-prerogative-and-the-constitutional-rights-of-foreigners/779053/24 "2017-02-06T13:13:36Z")
> [@John\_Mace](#): > > Would you expect that Immigration Law today would be subject to The Lemon Test? I don’t know. This is the most unprecedented and least clear aspect of the case. Some of the cases are citing _Larson v. Valente_. It probably won’t be \*Lemon \*as such. ---
**Author:** ![Chopsticks](https://avatars.discourse-cdn.com/v4/letter/c/cab0a1/32.png) [@Chopsticks](https://boards.straightdope.com/u/Chopsticks)\ **Post date:** [February 6, 2017, 2:42pm UTC](https://boards.straightdope.com/t/lets-talk-about-the-potus-sovereign-prerogative-and-the-constitutional-rights-of-foreigners/779053/25 "2017-02-06T14:42:58Z")
This is probably an invalid argument, but I am curious about which parts are wrong. Thanks If a person wants to become a US citizen, part of the requirements is living in the US (on a green card I guess?). If immigration rules forbid Muslims from entering the country, that is equivalent to saying that persons of that religion are less able to or cannot become citizens. Therefore, this discriminates against potential or future citizens, (or maybe “relatives of current citizens” so the current citizens have standing?) based on religion. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [February 6, 2017, 3:16pm UTC](https://boards.straightdope.com/t/lets-talk-about-the-potus-sovereign-prerogative-and-the-constitutional-rights-of-foreigners/779053/26 "2017-02-06T15:16:13Z")
> [@John\_Mace](#): > > Would you expect that Immigration Law today would be subject to The Lemon Test? And how much longer do you think the lemon test is going to stick around in its current form? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 6, 2017, 3:16pm UTC](https://boards.straightdope.com/t/lets-talk-about-the-potus-sovereign-prerogative-and-the-constitutional-rights-of-foreigners/779053/27 "2017-02-06T15:16:49Z")
> [@Damuri\_Ajashi](#): > > And how much longer do you think the lemon test is going to stick around in its current form? No idea. ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [February 7, 2017, 1:58am UTC](https://boards.straightdope.com/t/lets-talk-about-the-potus-sovereign-prerogative-and-the-constitutional-rights-of-foreigners/779053/28 "2017-02-07T01:58:08Z")
> [@Chopsticks](#): > > . . . If immigration rules forbid Muslims from entering the country, that is equivalent to saying that persons of that religion are less able to or cannot become citizens. Therefore, this discriminates against potential or future citizens, (or maybe “relatives of current citizens” so the current citizens have standing?) based on religion. I think another way to look at it is this: foreign citizens do not have “rights” or standing under our laws… But our laws themselves do, and the constitution forbids a law regarding the establishment of religion. If the executive order actually is a “muslim ban” then it’s something the President isn’t allowed to do, period. He isn’t violating the rights of a would-be immigrant from Iraq. He’s violating our rights (e.g., U.S. citizens) by violating the constitution. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 7, 2017, 2:17am UTC](https://boards.straightdope.com/t/lets-talk-about-the-potus-sovereign-prerogative-and-the-constitutional-rights-of-foreigners/779053/29 "2017-02-07T02:17:39Z")
> [@Trinopus](#): > > I think another way to look at it is this: foreign citizens do not have “rights” or standing under our laws… > > But our laws themselves do, and the constitution forbids a law regarding the establishment of religion. If the executive order actually is a “muslim ban” then it’s something the President isn’t allowed to do, period. > > He isn’t violating the rights of a would-be immigrant from Iraq. He’s violating our rights (e.g., U.S. citizens) by violating the constitution. As noted, we have a SCOTUS test to apply to domestic laws in order to determine if they violate the establishment clause or not. That is The Lemon Test. We do not currently have such a test for laws affect persons who are neither citizens, residents, nor physically in the US. Simply saying “it violates the constitution” is too simplistic an analysis. If the SCOTUS has taught us anything over the years, it’s that if you don’t have a 3-part test, then you’re not on solid judicial grounds! We might use The Lemon Test, or we might come up with some new test. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 7, 2017, 3:36am UTC](https://boards.straightdope.com/t/lets-talk-about-the-potus-sovereign-prerogative-and-the-constitutional-rights-of-foreigners/779053/30 "2017-02-07T03:36:51Z")
> [@Trinopus](#): > > I think another way to look at it is this: foreign citizens do not have “rights” or standing under our laws… > > But our laws themselves do, and the constitution forbids a law regarding the establishment of religion. If the executive order actually is a “muslim ban” then it’s something the President isn’t allowed to do, period. > > He isn’t violating the rights of a would-be immigrant from Iraq. He’s violating our rights (e.g., U.S. citizens) by violating the constitution. This argument fails for standing reasons. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [February 7, 2017, 4:29am UTC](https://boards.straightdope.com/t/lets-talk-about-the-potus-sovereign-prerogative-and-the-constitutional-rights-of-foreigners/779053/31 "2017-02-07T04:29:45Z")
> [@Richard\_Parker](#): > > This is an example of the kind of garbled legal analysis that flows from conflating the various claims, parts of the EO, and people affected. You should make your argument by referencing which claim, which part of the EO, and what kind of affected person you’re addressing. You are the one challenging clearly established law. The burden is on you. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [February 7, 2017, 5:20pm UTC](https://boards.straightdope.com/t/lets-talk-about-the-potus-sovereign-prerogative-and-the-constitutional-rights-of-foreigners/779053/32 "2017-02-07T17:20:44Z")
> [@UltraVires](#): > > You are the one challenging clearly established law. The burden is on you. The burden is on me to explain your legal argument clearly? Uh, Ok. I’ll give it a shot for you. You are arguing about one of the dozen or so subsets of people affected by this order. Specifically, you’re addressing non-citizens abroad who have not been admitted to the US for either indefinite residence or a period of travel. You are not (again, I think) trying to make an argument about people lawfully admitted into the country (whether they are currently abroad or not), people at ports of entry inside the US, or Americans with significant connections to non-citizens abroad who have not been admitted to the US. As to that subset, you’re arguing that the Constitution offers no protection for them. In your view, the government could limit immigration to white-skinned Catholics who say they will vote for Trump if they become citizens some day, if the government so chose. Correct? ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [February 7, 2017, 8:51pm UTC](https://boards.straightdope.com/t/lets-talk-about-the-potus-sovereign-prerogative-and-the-constitutional-rights-of-foreigners/779053/33 "2017-02-07T20:51:13Z")
But could you address his question? Suppose the US declares war on Iran, or otherwise engages in some hostile act towards Iran, or some other Muslim country. Some people believe that this is motivated at least in part by antipathy to Muslims. Can anyone who is affected by this war/action sue on this basis and have a judge overrule the war/action? ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [February 7, 2017, 9:29pm UTC](https://boards.straightdope.com/t/lets-talk-about-the-potus-sovereign-prerogative-and-the-constitutional-rights-of-foreigners/779053/34 "2017-02-07T21:29:07Z")
> [@Fotheringay-Phipps](#): > > But could you address his question? > > Suppose the US declares war on Iran, or otherwise engages in some hostile act towards Iran, or some other Muslim country. Some people believe that this is motivated at least in part by antipathy to Muslims. Can anyone who is affected by this war/action sue on this basis and have a judge overrule the war/action? I don’t know. I doubt it. Though I think, for example, that US citizens assassinated abroad by Obama (and now Trump) probably deserve some form of due process. I’m not sure why you think that proposition is entailed by a finding that decisions about immigration require a rational basis or cannot be made in order to try to alter the religious demographics of people coming to this country. It seems like an attempted reductio, but there are huge and obvious distinctions. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [February 7, 2017, 9:44pm UTC](https://boards.straightdope.com/t/lets-talk-about-the-potus-sovereign-prerogative-and-the-constitutional-rights-of-foreigners/779053/35 "2017-02-07T21:44:16Z")
> [@Richard\_Parker](#): > > I’m not sure why you think that proposition is entailed by a finding that decisions about immigration require a rational basis or cannot be made in order to try to alter the religious demographics of people coming to this country. It seems like an attempted reductio, but there are huge and obvious distinctions. Such as? ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [February 7, 2017, 10:12pm UTC](https://boards.straightdope.com/t/lets-talk-about-the-potus-sovereign-prerogative-and-the-constitutional-rights-of-foreigners/779053/36 "2017-02-07T22:12:57Z")
> [@Fotheringay-Phipps](#): > > Such as? War powers have always been held to be constitutionally special for reasons divorced by any kind of bigotry or outdated belief that the Constitution only protects citizens. The idea that the immigration power is plenary, by contrast, has a deeply racist history. By contrast to war-making powers in which executive authority is rightly at its apogee, there isn’t really any reason for immigration powers to be plenary and unreviewable. Moreover, there are much better arguments for why military actions should not be bogged down in the courts; thy are inherently fast-paced, rely heavily on secrets, high stakes, and highly discretionary. Those factors are far less applicable to deciding how many refugees to let into the country, what kind of persecution should be prioritized, or what countries to grant visas to. ---
**Author:** ![ElderSign](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/eldersign/32/8263_2.png) [@ElderSign](https://boards.straightdope.com/u/ElderSign)\ **Post date:** [February 7, 2017, 10:23pm UTC](https://boards.straightdope.com/t/lets-talk-about-the-potus-sovereign-prerogative-and-the-constitutional-rights-of-foreigners/779053/37 "2017-02-07T22:23:12Z")
I take it Jimmy Carter cancelling Iranian visas was different. > **[Six other times the US has banned immigrants](https://www.aljazeera.com/features/2017/1/29/six-other-times-the-us-has-banned-immigrants)** > > Donald Trump’s ‘Muslim ban’ is not the first time specific groups or nationalities have been blocked from the US. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [February 7, 2017, 10:27pm UTC](https://boards.straightdope.com/t/lets-talk-about-the-potus-sovereign-prerogative-and-the-constitutional-rights-of-foreigners/779053/38 "2017-02-07T22:27:52Z")
> [@ElderSign](#): > > I take it Jimmy Carter cancelling Iranian visas was different. > > [Six other times the US has banned immigrants | Migration | Al Jazeera](http://www.aljazeera.com/indepth/features/2017/01/times-banned-immigrants-170128183528941.html) Did he detain visa-holders in airports? Did he prevent Iranian LPRs or dual citizens from returning to the US? Did he return travelers who made it to U.S. ports of entry without due process or asylum interviews? Did he say he was doing this because he favored Christians? If not, then yeah, a little different. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [February 7, 2017, 11:11pm UTC](https://boards.straightdope.com/t/lets-talk-about-the-potus-sovereign-prerogative-and-the-constitutional-rights-of-foreigners/779053/39 "2017-02-07T23:11:49Z")
Introducing war time activities muddies the analysis, IMO. Since there are so many classes of people that are potentially impacted, it makes sense to analyze them separately as each may yield a different result. This is not as good a way of saying what RP said in [post #142 here.](http://boards.straightdope.com/sdmb/showpost.php?p=19978051&postcount=142) I’m going to ignore the Claims ands the Order since those are specific to the current events, but the jurisprudence about classes of people is more generalized: > [@Federal judge blocks President's executive order: how?](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/142): > > **People** > [ol] > [li]LPRs who were outside the US when the order was executed[/li][li]LPRs who were inside the US when the order was executed[/li][li]Visa-holders who were outside the US when the order was executed[/li][li]Visa-holders who were inside the US when the order was executed[/li][li]People with valid visas who are denied entry at a U.S. port of entry on U.S. soil[/li][li]People outside the US seeking to apply for visas[/li][li]People inside the US seeking to apply for visas[/li][li]People who had been granted refugee status[/li][li]People seeking refugee status[/li][li]U.S.-based family members of affected people[/li][li]U.S.-based employers of affected people[/li][li]U.S.-based educational institutions of affected students[/li][/ol] I think #6 and #9 we have near carte blanche on how we treat these people to the extent we wish to deny their requests. The rest I think get some level of constitutional protection. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [February 8, 2017, 12:55am UTC](https://boards.straightdope.com/t/lets-talk-about-the-potus-sovereign-prerogative-and-the-constitutional-rights-of-foreigners/779053/40 "2017-02-08T00:55:27Z")
> [@Bone](#): > > I think #6 and #9 we have near carte blanche on how we treat these people to the extent we wish to deny their requests. The rest I think get some level of constitutional protection. I agree that those two are the groups least likely to be protected. To have claims about those people, you either need to argue that their prospective employers, relatives, and educators have claims. Or you need to argue that de jure racial or religious discrimination on the part of the U.S. government harms Americans regardless of who is targeted by it, if for no other reason than by reinforcing negative stereotypes. Although that looks like the kind of general standing forbidden by Article III, in fact there are doctrines in both the Equal Protection Clause and Establishment Clause allowing pretty broad standing when the discrimination is facial. You could see cases like Flast v. Cohen getting extended in this context, I think. Though that would have been much more likely in a Court with Garland than a Court with Gorsuch, I suspect. People who think birth control is evil tend to be skeptical of the Establishment Clause. [Previous page](https://boards.straightdope.com/t/lets-talk-about-the-potus-sovereign-prerogative-and-the-constitutional-rights-of-foreigners/779053.md?page=1) [Next page](https://boards.straightdope.com/t/lets-talk-about-the-potus-sovereign-prerogative-and-the-constitutional-rights-of-foreigners/779053.md?page=3)