My statement was an exaggeration for effect that didn’t come through it seems. Application would be a trivially easy barrier to overcome. I see you are restrictions the limitations to the specific dealings but even then the US owes no duty to foreign nationals outside its borders. I think more on that is outside the scope of GQ.
I accept that the position is as you say. My point is that it doesn’t have to be that way; it’s not inevitable; common sense doesn’t demand it. If you stop thinking of the constitution as an instrument which confers rights on people, and start thinking of the constitution as an instrument which establishes the United States and defines its powers and capacities, then there’s nothing fundamentally odd about the notion that it defines what the United States can and cannot do in its dealings with both citizens and non-citizens, both within and without the national territory.
That doesn’t mean that uniform standards would necessarily apply in all these cases. My point is not that the Constutin must require all these cases to be treated identically; just that there’s nothing improbable about the notion that could does apply to all these cases, and that governmental action in all of them should be susceptible of judicial review for conformity with the Constitution.
I thought that when congress acted to repeal the law decades later that then referencing what the courts ruled regarding those cases is mostly a moot point.
Going back to the matter Chronos commented about how this could go to the courts, I think a lot will depend on how much the federal or state governments turn their inhumanity up to 11.
I do think looking at other refugees that were denied by political reasons should be mentioned, particularly because I was part of that group.
IMHO one has to notice that it was for religious and humanitarian reasons that groups like the American Baptist Churches resorted to the law because they were the affected groups, not the refugees. The end result however was that the refugees were accepted as such and that the Reagan administration essentially lost the case.
Religion then was not an issue in that case, but to me something similar can take place, many groups that help Syrian refugees are being confronted by governors like the one in Texas that want to prevent any aid to the refugees; while the religion of the refugees will not be a reason for the complaint it has to be noted that since there is no reason to deal with the religion issue the courts would indeed find it odd if states or the federal government (if a Republican wins) would try to make the argument that the religion of the refugees that are affected should be an issue.
What I think it will happen is that the courts will inform the defendants that attempting to plug in religion as a condition to prevent refugees from coming to their states will get them eventually in contempt of the courts if they do not drop it, this will be a refugee issue plain and simple. The end result however is that mostly Muslins will benefit as most Syrians are of that faith anyhow.
Thanks very much. My keyboard is regularly switching itself to ‘Canadian French’, and that’s where the weird characters come from. Usually I catch it and switch it back to English, but this time I didn’t catch it. I have no idea why it keeps doing that. It’s probably a conspiracy.
I think that If I were an American citizen in a minority religion, and the government announced that from now on no other members of my religion would be allowed into the country, I would have standing in court, because my faith is being discriminated against.
This is a clear situation of the government putting its thumb on the scales to discriminate against one religion over others. How is that NOT a violation of the establishment clause?
It’s not about the rights of the immigrant to be allowed into the country - it’s about the rights of American ciizens to live in a country devoid of state bias against specific religions.
No way. You can’t sue on behalf of someone else just because you share their religion.
How does it establish religion? It doesn’t change religion in this country at all. Nobody in this country will be affected. Nobody in this country will have any less right to practice their religion.
So there’s a right to have people of your religion imported into the country somehow?
That’s the crux of your argument that fails - the idea that you can make a claim that you are affected by someone else’s immigration based on nothing more than sharing their religion.
I’m not ruling this out. But I’m really skeptical.
Details and timing become the question here. For example, you are specifically forbidden from entering the US on a tourist visa with the intent of working or marrying. There are exceptions but those exceptions would need to be legally implemented before the tourist visa expires. From the sounds of it, someone screwed up issuing him a green card, if they were wrong to do so, his green card is invalidated. Thus he has no legal permission to be here. I have an acquaintance who missed a deadline on a filing for her new husband after they married here. He had to go back to new zealand 3 weeks after the wedding . Took just shy of two years to get it sorted out for him to come back.
And couldn’t such a policy be considered an establishment of religion? Let’s assume an extreme case they allow free immigration (you just have to show up) to anybody who can demonstrate a dedicated protestant background, and strictly forbid the immigration of people belonging to any other religion.
Shouln’t this be constructed, in intent and/or in effect as an attempt to to turn the USA into the “Christian nation” some hope for? And as being detrimental to all non-protestant American citizens?
It’s moot as to those specific laws, yes. But the takeaway is that the courts did not strike down those laws, meaning Congress can enact them again.
And directly on point, though 2 weeks late, Volokhweighs in:
It’s worth pointing out that even if constitutional (and I think it is), this policy is unworkable for any number of other reasons. First, excluding Muslim diplomats and businesspeople will basically mean instant international sanctions. Second, there are a lot of people we’re not allowed to exclude by treaty (such as the approximately one quarter of UN employees and consular officers who work in New York).
You can be a refugee regardless of what country you’re fleeing from. The state department, and the UN, say that Refugee status or asylum may be granted to people who have been persecuted or fear they will be persecuted on account of race, religion, nationality, and/or membership in a particular social group or political opinion
So when the UK starts blowing up global warming skeptics like they threatened to do a while back they would qualify.
BTW I’m not sure that most Syrian refugees would qualify however.So that’s the criteria? The judiciary have to determine the law is “unreasonable and harsh”?
I assume the right to set immigration quotas by country is not unreasonable (by grounds of race, religion, colour, etc.) because it applies to all countries equally and the quotas are relatively evenly allocated based on population and demand - so nobody is actually being unfairly discriminated against. The government obviously has a need and duty to limit overall immigration numbers, and this is the process they have chosen.
Yes. AFAIK, they’ve never made such a finding. Our immigration quotas certainly aren’t “relatively evenly allocated” as to either population or demand, but that’s neither here nor there.
I don’t understand this point. Even if somebody made application to the U.S. and thereby received U.S. constitutional protections, how would that cover the world?
The United States would be forbidden from prohibiting the free exercise of his/her/its religion, but the U.S. Constitution does not purport to bind Guatemala or France or Saudi Arabia. The United States would be compelled to provide an attorney in criminal cases brought under U.S. law, but the Sixth Amendment says nothing about criminal cases brought under Russian or British or Argentine law. “U.S. constitutional protection” refers to the relationship between the person and the United States government.
In general, I think it worth noting that relying upon very old cases (e.g., the Chinese Exclusion Act jurisprudence) may not be valid because ideals and standards change even when laws don’t. For example, Plessy v. Ferguson was once good law, and there were no relevant constitutional changes between it and Brown v. Board, but the court reached opposing verdicts anyway because society changed.
Well, that’s not quite accurate. *Brown *did not expressly overrule Plessy (though high school history texts say otherwise), since the latter applied only to public railcars and *Brown *applied only in the context of public primary education.
But it’s certainly true that today’s SCOTUS might not feel bound by Chae Chan Ping.
But basically - see this:
http://www.immigrationpolicy.org/just-facts/how-united-states-immigration-system-works-fact-sheet
In recent decades the court could not make a finding that immigration limits discriminated harshly and unreasonably, because with all the different options and opportunities - they don’t.
It remains to be seen if a harsh and unreasonable discrimination against a particular races or religions (this age’s two major trigger categories) would in fact move the courts to act. And whether an outright ban is sufficient to move the courts. Presumably the point of all the discussion above is that the other branches have a wide latitude to act in accordance with their wishes, but are not totally immune from judicial review.
It’s a bad idea to try and second-guess any judge, especially the Supremes.
I’m not second guessing. I’m first-guessing. And the default assumption is always that the existing case law controls. That’s why nobody litigates constitutional issues under the Privileges & Immunities Clause (with a very few exceptions) even though pretty much everyone agrees the Slaughterhouse Cases were wrongly decided. And why nobody challenges baseball’s exclusive antitrust exemption even though SCOTUS itself said the underlying case was wrongly decided.
This is a huge nitpick, but I pick because I care 
It’s Privileges OR immunities, not AND. The AND phrasing is from Article IV, Section 2, Clause 1, the OR phrasing is from the 14th amendment and was argued in Slaughterhouse.
It was an exaggeration for effect, but essentially anyone could apply and then would gain incremental protections.