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Supreme Court invents Presidential power to ban immigrants
Chief Justice John Roberts wrote the majority opinion for Trump v. Hawaii where the court upheld President Trump's travel ban on people from certain countries wanting to enter the United States. I wrote a blog in February 2017 when this issue first came up explaining why the President does not have the constitutional authority to ban anyone from entering the country. I won't rehash that argument in-depth here, but I will respond to the Court's ruling in this case using that original blog as my framework. The basis of Roberts's opinion rests on the the Immigration and Nationality Act (8 U.S. Code § 1182(f)), which states:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
He goes on, ""For more than a century, this Court has recognized that the admission and exclusion of foreign nationals is a 'fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.'" This is irrelevant, along with the Immigration and Nationality Act, because both are in fact unconstitutional. As my previous blog lays out, the Constitution must explicitly state the powers of the various branches of the federal government, and since the Constitution does not explicitly state that the President has the power to ban people from entering the country the President doing so would be unconstitutional and thus illegal. So the Court may recognize the President's power to do so, but the Constitution does not.
Roberts continues that "foreign nationals seeking admission [to the United States] have no constitutional right to entry," which is true in as far as it goes. Foreign nationals by definition have no constitutional rights under the United States Constitution because they are not citizens of the United States. That, however, is beside the point. The Constitution, per the Ninth and Tenth Amendments, does not have to explicitly state the rights of American citizens or anyone else for them to be legitimate rights, but it does, as I keep reiterating, have to explicitly state the powers of the federal government for them to be legitimate. So while the Constitution does not give foreign nationals the right to enter the country, it more importantly does not give the President the power to stop them. This means that Trump's executive order banning people from entering the country is unconstitutional and should have been overruled on the basis that the President of the United States does not possess the constitutional power to stop people from entering the country.
Both Justice Kennedy and Justice Thomas filed concurring opinions, but neither is particularly relevant to what I see as the important question of the case: the constitutionality of the President banning people from entering the country. Kennedy's concurrence in particular is nothing more than fluff. Thomas, however, is considered perhaps the most right-wing member of the Supreme Court, and is famous for his "originalist" ideology when it comes to jurisprudence. But despite the fact that the Constitution grants no power to the President to ban people from entering the country, Thomas states in his concurrence, "the President has inherent authority to exclude aliens from the country." I would be interested to hear Thomas explain where this "inherent" power of the President is to be found in the Constitution, because it is certainly nowhere to be found in Article II where the powers of the President are explicitly spelled out, but he doesn't seem to think he needs to elaborate on the point despite that being the entire question.
Both Justice Breyer and Justice Sotomayor base their dissents on the possibility that President Trump's executive order is a violation of the First Amendment's guarantee of religious liberty based on some possibly anti-Muslim comments he has made. From Sotomayor's dissent:
The United States of America is a Nation built upon the promise of religious liberty. Our Founders honored that core promise by embedding the principle of religious neutrality in the First Amendment. The Court’s decision today fails to safeguard that fundamental principle. It leaves undisturbed a policy first advertised openly and unequivocally as a “total and complete shutdown of Muslims entering the United States” because the policy now masquerades behind a façade of national-security concerns. But this repackaging does little to cleanse Presidential Proclamation No. 9645 of the appearance of discrimination that the President’s words have created. Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus. That alone suffices to show that plaintiffs are likely to succeed on the merits of their Establishment Clause claim. The majority holds otherwise by ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens. Because that troubling result runs contrary to the Constitution and our precedent, I dissent.
The problem with this argument is that it requires us to imagine what Trump's motivations are rather than accepting him at his word. Trump's claim is that he's banning people from these countries from entering the United States because they may possibly represent a threat to the United States, but Sotomayor's dissent is based on her interpretation of comments Trump had made outside the realm of his executive order. She quotes Trump's presidential campaign website and his responses to questions during the presidential debates about his proposed policy to explicitly ban Muslims from entering the United States. The problem for her is that nowhere does he say that he wants to ban them because of their religion, he's merely identifying them by their religion and stating that they may be a threat to the national security of the United States.
Now I get that this defense of Trump, such as it is, is quibbling, but that's the point. That's why Sotomayor's, and the plaintiffs', argument fails, they're quibbling over what Trump really meant when he said he wants to ban Muslims from entering the country and calling him a liar when he claims it's strictly for national security reasons. That's a weak argument, and that's a big part of why they lost. Journalist Glenn Greenwald is correct when he points out that the real problem, and what should have been the issue in this case, is that the President, regardless of who that is at any given moment, has assumed too much unconstitutional power.
Until people are ready to challenge the fundamental issue of executive power instead of nonsense about whether or not the President is personally racist we're going to have insensible and unjust government policies. Unfortunately President Trump's political opponents aren't interested in challenging the power of the presidency because they hope to inherit that power for themselves come the next election.