Discussion for article #243708
The article is based on the wrong premise.
Barring people because they are Muslim is blatantly unconstitutional, see the 14th Amendment.
The question is whether there are five racist judges on the court who would make a ruling in Trumpâs favor or not. Scalia is pretty much out as a racist these days. But Thomas might have a problem.
Beyond that question, is the question of whether President Trump would consider himself bound by the Supreme Court. I rather doubt it.
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You must mean this, and itâs crystal clear. Itâs astonishing that an idea he threw out just to inflame his followers is thought to have merit.
Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The short-fingered vulgarian is so pleased with himself. He has serious people, law scholars and academics, debating the merits of his batshit crazy ideas that he simply threw out with not a moment of thought about any of them.
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For the last 25 years, the Supreme Court has been an extension of the Republican party. The conservative activism has moved further toward the extreme right wing fringes of the Party with the arrival of Roberts and Alito. The court has demonstrated that it is willing to destroy individual freedoms and voting rights for American citizens, overrule elections, approve torture and 45 minute-long executions, grant voting rights to corporations and pardon politicians receiving enormous bribes. I suspect a majority on the current court will find everything abhorrent constitutional as long as it is done by a conservative, a religious kook or a corporation.
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If I understand the arguments correctly, those saying there is no Constitutional barrier to Trumpâs plan are saying that the 1st Amendmentâs âCongress shall make no law respecting an establishment of religionâ doesnât apply to this situation, because it would be an executive action, not a law passed by Congress.
By that logic, the President is also free to prohibit the free exercise of religion, and to abridge the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Basically, dictatorship.
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I am not at all interested in arguments re. the legality of Trumpâs proposal. And I say that as someone who is licensed to practice law. If such a ban ever passed, this would no longer be the United States as I know it, and it would be my one-way ticket elsewhere.
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He started by saying all Muslims, but began backpedaling pretty quickly as reporters asked him about Muslim U.S. citizens and Muslim members of the U.S. military overseas, and athletes, and diplomatsâŚand last I heard he was waffling on Muslim tourists. But donât worry, remember, as Muslims theyâd all still go into his special database so that they can be tracked and monitored.
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Meanwhile, moral compasses spun wildly.
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Trump doesnât need a moral compass --he just checks his Rolex, and if the little hand is pointing to something, and the big hand is pointing to something else, then he knows itâs time to do whatever the fuck he wants.
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What Posner is telling people is âdonât expect the constitution to save you from a monster like Trumpâ.
Seems like a good point to make.
THANK GOD FOR DEMOCRATS.
We will SAVE the day again, we will save America. WE will once again fix the Republicans WAGON by putting a Democrat in the WH. Democrats will SAVE the Republicans from themselves, we will take down TRUMP the monster the Republicans created. So, that the Republicans can gather their NUTZ and put them away for another day. If it were not for the Democrats our country wouldnât have a two or three party system. So Republicans thank your lucky stars for the Democrats. We will make sure that you can try again in a few years at a run for the White House.
Now say thank you.
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âShape of Earth: Experts Differâ
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Seems to me that the Constitution would NOT prohibit this despicable behavior. Itâs all written there in black and white. Where would this be covered? The Constitution does not protect the rights of foreigners. Thatâs not what itâs there for.
Whether itâs legal or not is an entirely different question. Thereâs no question that itâs âun-Americanâ (whatever thatâs worth these days).
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Posner is an infuriating judge: incredibly prolific, undeniably brilliant, one of the living gods in the pantheon of The Chicago School. He has been great on gay marriage, appalling on NSA and privacy. Heâs often provocative, and his genius sometimes takes him to conclusions that are ultimately insupportable. In this case, he may be right on the precedent (or lack thereof) but his statements shouldnât be taken at face value to mean very much.
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American citizens have a right to have our government refrain from the establishment of religion. Were the government to reject the adherents of one religion while accepting adherents of another as immigrants this would amount to an establishment of the favored religions. Hence, unconstitutional.
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The âExpertsâ might not agree on a lot of things, but credible âexpertsâ do agree on this: The 14th and the First amendments make this thing unconstitutional. Both the States and the Federal Governments are forbidden from using any religious test as a means for any state actions.
After that abomination that FDR inflicted upon the Japanese during WWII was overturned finally, many, many years later (and far too late to do the internees any good) it has been generally understood in the legal community that the equal protection clause precludes making classificati8ons based on, among other things, religion. Anyone holding that another result would happen either has an axe to grind or is so on the fringe of legal thinking that it is not credible.
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If a Muslim desperately wanted to enter the US and knew such a ban was in effect what is to prevent him/her from informing the screening agency theyâre an atheist? Agnostic? Or how about among the various boxes offered to place a check they choose âNoneâ? If a President banned Communists and I was trying to escape a Russian death squad Iâd sure as hell tell immigration officials I wasnât affiliated with any political party, I had zero interest in politics. What the hell is the answer if a Muslim says heâs Hindu, hmmmm?
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US immigration law passed in 1917 implicitly outlawed all foreign âhomosexualsâ from entering the United States. The immigration acts of 1952 and 1965 made that restriction explicit.
In 1967 the Supreme Court upheld the law, including the anti-gay provisions (although that wasnât the focus of the challenge).
It wasnât until the Immigration Act of 1990 that the restriction was removed - by Congress, not the courts.
Similarly, the Chinese Exclusion Act of 1882 (renewed and strengthened in subsequent laws) withstood a number of Supreme Court challenges - and wasnât repealed until 1943.
While I strongly believe that such exclusions are illegal and unconstitutional (whether done by legislation or executive action), the countryâs history doesnât given me confidence that SCOTUS would prevent it from happening again. (The necessary action - obviously - is to prevent Donald Trump from ever having the opportunity to try to do it by making sure he never becomes President.)
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The Constitution enumerates a sliding scale of rights and protections:
- Natural-born citizens (can be President)
- Citizens (vote, etc.)
- Persons in U.S. territory (everything else)
- Citizens abroad (still entitled to due process)
It gets murky toward the bottom. Is Guantanamo U.S. territory, for example.
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What happens when Muslim countries ban U.S. citizens who are Christian? How will the oil companies and Halliburton et al operate in the Middle East? I know, itâs preposterous but so is Trumps proposal.
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