# 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:** 10\ **Page:** 3
**Author:** ![running\_coach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/running_coach/32/15836_2.png) [@running\_coach](https://boards.straightdope.com/u/running_coach)\ **Post date:** [February 8, 2017, 1:03am UTC](https://boards.straightdope.com/t/lets-talk-about-the-potus-sovereign-prerogative-and-the-constitutional-rights-of-foreigners/779053/41 "2017-02-08T01:03:17Z")
> [@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) Taking hostages is an act of war and Iran was and is a recognized country. The US is not at war with any of the countries in the ban, we are at “war” with a group of unaffiliated terrorists who give allegiance to that group and not a country/government. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [February 8, 2017, 1:09am UTC](https://boards.straightdope.com/t/lets-talk-about-the-potus-sovereign-prerogative-and-the-constitutional-rights-of-foreigners/779053/42 "2017-02-08T01:09:33Z")
_Landon v Plasencia_ has addressed category #1. And it depends upon how long the LPR was outside of the country. They \*might \*be entitled to Due Process and an Exclusion Hearing, as opposed to a Deportation Hearing, if barred from reentry when attempting to reenter at the border. ---
**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, 1:17am UTC](https://boards.straightdope.com/t/lets-talk-about-the-potus-sovereign-prerogative-and-the-constitutional-rights-of-foreigners/779053/43 "2017-02-08T01:17:59Z")
> [@Iggy](#): > > _Landon v Plasencia_ has addressed category #1. And it depends upon how long the LPR was outside of the country. They \*might \*be entitled to Due Process and an Exclusion Hearing, as opposed to a Deportation Hearing, if barred from reentry when attempting to reenter at the border. This is why I think you cannot isolate categories from claims. Landon tells us that LPRs at the border don’t get a full-blown removal hearing. But it doesn’t tell us whether the government could exclude them on discriminatory grounds. Presumably not, if they get some due process rights, right? ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [February 8, 2017, 1:25am UTC](https://boards.straightdope.com/t/lets-talk-about-the-potus-sovereign-prerogative-and-the-constitutional-rights-of-foreigners/779053/44 "2017-02-08T01:25:19Z")
As the OP, I just wanted to post that I am following the discussion and I wanted to particularly thank **Bricker** for Post #2. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [February 8, 2017, 2:30am UTC](https://boards.straightdope.com/t/lets-talk-about-the-potus-sovereign-prerogative-and-the-constitutional-rights-of-foreigners/779053/45 "2017-02-08T02:30:30Z")
> [@Richard\_Parker](#): > > This is why I think you cannot isolate categories from claims. > > Landon tells us that LPRs at the border don’t get a full-blown removal hearing. But it doesn’t tell us whether the government could exclude them on discriminatory grounds. Presumably not, if they get some due process rights, right? The _Landon v Plasencia_ decision afforded Due Process to challenge, in a summary exclusion hearing, whether the returning LPR was making an “entry” as defined by law. It was a rather narrow point, a reference to _Rosenberg v. Fleuti_ where the court wrote that an “innocent, casual, and brief excursion” outside the country would not subject a LPR to the consequences of an “entry”. The consequences were a resetting of a clock on a 5 year time limit with regards to susceptibility to deportation upon conviction of a crime of moral turpitude. Moreover, to the more general point of aliens presenting themselves for entry at the border the court wrote in _Plasencia_: > [@](#): > > This Court has long held that an alien seeking initial admission to the United States requests a privilege, and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative. > > … > > however, once an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly. Our cases have frequently suggested that a continuously present resident alien is entitled to a fair hearing when threatened with deportation It would seem the Court has already ruled that non-citizens presenting themselves for initial entry do not generally have Constitutional rights to challenge a denial. Perhaps an argument could be made (\*if \*standing can be achieved) that a denial of entry is violating some law, but it is not a Constitutional matter. The narrow exception laid out in Plasencia is for the LPR who is normally resident and who leaves the country for a “innocent, casual, and brief excursion”. If the departure was with intent to commit an act that is not “innocent” (as was the case with Plasencia) then the LPR may be in the place as an alien applying for initial entry. ---
**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, 2:51am UTC](https://boards.straightdope.com/t/lets-talk-about-the-potus-sovereign-prerogative-and-the-constitutional-rights-of-foreigners/779053/46 "2017-02-08T02:51:42Z")
> [@Iggy](#): > > It would seem the Court has already ruled that non-citizens presenting themselves for initial entry do not generally have Constitutional rights to challenge a denial. It seems like you’re trying to say that \*Landon \*was purely a statutory interpretation case and not a holding based on the constitutional right to due process. If so, you’re misreading it. The Court held that the LPR was protected by the Constitution’s demands of due process. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [February 8, 2017, 3:16am UTC](https://boards.straightdope.com/t/lets-talk-about-the-potus-sovereign-prerogative-and-the-constitutional-rights-of-foreigners/779053/47 "2017-02-08T03:16:25Z")
Not at all. \* Landon v Plasencia\* clearly held that \*Plasencia \*has a Due Process right to challenge the determination that she was making an “entry” for the purposes of the INA. Yes, she has a Constitutional right, but it is limited in scope. And it is a right that the general immigrant presenting himself for initial admission does not have. That was a distinction clearly made by the court in differentiating Plasencia’s circumstances from the general case of an alien applying for initial admission… However, I leave open the possibility that, in the present case, Trump’s EO is contrary to law even if a visa holder denied entry does not have a Constitutional right to Due Process in challenging the matter. As Alan Dershowitz [opined](http://www.businessinsider.com/harvard-professor-alan-dershowitz-trump-immigration-ban-2017-1) on the Trump EO mess that: > [@](#): > > “There is also a distinction between what’s constitutional, what’s statutorily prohibited, what’s bad policy — this is very bad policy — but what’s lawful,” he said. “I think by lumping them all together she has made a political decision rather than a legal one,” he concluded, noting that he believed parts to be constitutional while other parts may not hold up under scrutiny. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [February 8, 2017, 3:51am UTC](https://boards.straightdope.com/t/lets-talk-about-the-potus-sovereign-prerogative-and-the-constitutional-rights-of-foreigners/779053/48 "2017-02-08T03:51:56Z")
> [@Richard\_Parker](#): > > 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? Yes. I am not saying that such an immigration policy would be wise nor would Congress allow it to be implemented. It would be wildly inappropriate and could be fixed at the ballot box. What I am saying is that nobody would have standing to challenge it and that courts are not the appropriate vehicle to seek redress. Exhibit A is the questions asked during oral argument in the 9th Circuit. Both sides were asked questions that went toward the advisability of the travel ban. Courts are not equipped to make these policy decisions and clearly established law holds that they may not. If we start down this road, you haven’t really explained why they could not rule on the advisability of military action or declarations of war. You seemed to say that these were clearly executive and legislative functions, but so is immigration. I mean, what if Trump ordered targeted airstrikes against these seven countries? You would say that action is unreviewable by the judiciary when people will die, but when they are merely prohibited from traveling to the United States, then there must be judicial review! It makes little sense. ---
**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 8, 2017, 3:40pm UTC](https://boards.straightdope.com/t/lets-talk-about-the-potus-sovereign-prerogative-and-the-constitutional-rights-of-foreigners/779053/49 "2017-02-08T15:40:43Z")
> [@Richard\_Parker](#): > > 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. These seem like differences of degree rather than fundamental distinctions. If you’re correct, then I would assume this would fall by the wayside if you had a really unpopular action and ideologically antagonistic judge(s). ---
**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, 4:19pm UTC](https://boards.straightdope.com/t/lets-talk-about-the-potus-sovereign-prerogative-and-the-constitutional-rights-of-foreigners/779053/50 "2017-02-08T16:19:51Z")
> [@UltraVires](#): > > If we start down this road, you haven’t really explained why they could not rule on the advisability of military action or declarations of war. You seemed to say that these were clearly executive and legislative functions, but so is immigration. Perhaps you missed my explanation above. > [@UltraVires](#): > > I mean, what if Trump ordered targeted airstrikes against these seven countries? You would say that action is unreviewable by the judiciary when people will die, but when they are merely prohibited from traveling to the United States, then there must be judicial review! It makes little sense. Trump could order someone killed, but then if they come to the US, they’d have the right to an attorney if charged with a crime! It makes little sense. Therefore, there is no right to an attorney. QED. Or, maybe, that logic is flawed. [Previous page](https://boards.straightdope.com/t/lets-talk-about-the-potus-sovereign-prerogative-and-the-constitutional-rights-of-foreigners/779053.md?page=2)