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First, you can't just say "there's plenty of legal theory to back me up", when you're not even able to give a Cliff Notes version of the legal theory you're claming exists. You're just saying - "I believe such and such, and yeah, I'm sure there's legal theory to back me up because I believe that idea. I'm sure that whatever law exists that might go against my opinion isn't settled law, because my disagreement with it means it's not settled." Sorry, but having a contrary opinion does not entitle you to revisit issues that your betters (The Supreme Court) have already decided against you. The issue is in fact settled that constitutional protections apply to everyone physically present in the US, not just citizens.
Wait, let me backtrack here a second - you're arguing that deporting illegals, who are committing a crime by entering the united states, are afforded some kind of constitutional protection that lets them avoid deportation? PLEASE articulate a legal theory that states that Joe Mexico who came here illegally has the right to stay here instead of getting kicked back to where he came from and made to wait in line like everyone that isnt breaking the rules. What I was talking about is that courts have given the government tremendous leeway with dealing with immigration law - hell, Obama JUST banned all venezuelan immigrants from entering the US, and there is no legal outrage about it. I've also articulated the legal theory behind all of these things in the past few comments - why should I restate and source it two comments later?
Like I said quite clearly, the legal theory is the Equal Protections Clause of the Constitution. It guarantees equal protection of the law to all persons physically present in the US.
I never said that an illegal immigrant now gets the right to stay here because of EP. But, they do have a right not to be singled out for deportation on the basis of their race, religion, national origin, or any other protected class. Next to the statements that Trump has made about Mexicans all being rapists, murderers, and so on, the suggested policy is to take action against people coming from Mexico on that basis alone. That’s discrimination, not the application of immigration law.
Even on the level of each individual case, everyone has an equal right to due process of the law when it comes to deportation, incarceration, etc. You should make the distinction that “unlawful entry” is a crime, punishable by incarceration and criminal process, while “unlawful presence” is not, and can only be handled by civil process. On the criminal charge, criminal process requires the evidentiary standard of “beyond a reasonable doubt”. Not just, Trump says you’re a criminal because lots of criminals come from your country. In the case of civil proceeding also, you can’t restrict someone’s liberty rights (freedom of movement, habeas corpus, property rights for funds transfers, etc) simply on that basis. So even if you can prove “unlawful presence”, that could never be a justification for what Trump proposes to do.
As for policy banning immigration from Venezuela, first, immigrants that are yet to arrive here don't have the right to Equal Protections, while the President and Congress have plenary power to direct foreign policy and immigration policy respectively. Second, differentiating based on an immigrant's national origin does not necessarily trigger EP analysis (even though national origin is a protected class), as long as there is a rational basis for the policy. So I'm not saying it's invalid as a matter of law, but next to the statements Trump has made that Mexico is sending rapists, murderers, etc, I would leave it up to you to wonder how a court would weigh evidence in determining discriminatory intent. I would say that the coup in Venezuela would give the Obama administration more than enough grounds for a rational basis (if a challenge were even brought), but Trump's absurd policy statements would have no legs to stand on.
It's possible that you might disagree with me on that question. But to believe that illegal immigrants have no rights because they are illegally present here is absolutely not correct. Only the truly uninformed TV/Radio talk show pundit would disagree with that. Here’s a link so you don’t have to take my word for it:
While on the topic of the judiciary's place in government, I should mention that the proponent of a law does not get to decide what it's primary purpose is in terms of strict scrutiny analysis. You might think that the purpose of biased, pernicous laws are to prevent illegal immigration, and the legislation might even be supplemented with statements specifically to that effect. But, judges still get to decide what the actual compelling government interest behind a law is. Next to Trump's statements that "Mexico is sending us rapists, murderers, etc" it's a cake walk from there to determine what the intended purpose really is. If you're honestly interested to know, the judiciary will look at three things to assess discriminatory intent: 1) whether the impact is so "stark and dramatic" that a law is unexplainable on non-discriminatory grounds, 2) the historical background suggests discrimination, and 3) the administrative and legislative record show intent. I'll leave you to yourself to wonder how courts would view the historical backround of the statements Trump has made
I don't need a rundown of how strict scrutiny works. I'd argue that for the VAST majority of these policies, strict scrutiny wouldn't even apply. But you're very incorrect in your statement here - If the government can make a case that there exists a compelling interest in protecting the border/national security/whatever, the judge then determines the validity of that interest. The judge does not get to pick what he believes the interest is. And to dismiss the leeway that the judiciary gives to the government in these kinds of situations shows a serious lack of how the branches of our government view and interact with one another.
So, your understanding of our government is that the Legislative or Executive articulates a policy objective with each action, then that act "forces" the courts to evaluate the constitutional validity of the law against that objective alone?
Where are you getting information? Honestly, I have no idea how someone would be able to conclude that unless they were just pulling it out of thin air.
No, the court does get to determine what they believe the purpose of a law is. Statutory construction is the sole purview of the judiciary. Source? About the single most famous case that every High School history student will have heard of – Marbury v. Madison.
But to begin with, Trump's policy proposals don't just touch on deportation and border control. I suppose that's a clever sidestep, but there's no way that's going to work. Trump promised to make Mexico pay for the wall by restricting cash transfers to Mexico (not part of immigration law), to deny services to the natural born offspring of illegal immigrants (not part of immigration law), and so on.
So building a wall to keep illegals out somehow doesn't touch on border control - how? Again, see above - the transfers of money made by illegals to mexico can be regulated and stopped under the patriot act. Stop meshing several distinct legal issues together. As it is, the border wall, deportation of illegals and muslim ban and strictly immigration law, and the transfer ban is under the patriot act, as I've now stated at least four times.
Maybe, and I’m going out on a limb here, the Patriot Act does not justify what the Trump campaign claims that it does?
Even if it does, what you need to understand that is that this law will also be reviewed under the same constitutional analysis as the enforcement act itself. So even if the Patriot Act said on its face that “this allows the President to ban Muslims from entering the US”, that law is only as good as its ability to withstand constitutional challenge on Equal Protections grounds.
So if you don’t feel I’ve addressed the Patriot Act, it’s because no meaningful distinction whatsoever exists in our constitutional rights due to that law. There is probably a law on the books that the administration would claim authorizes it nearly every single time a constitutional challenge is brought, but if that were the end of it, we essentially wouldn’t have any private rights the government couldn’t take away whenever it wanted.
The simple principle is that the 14th amendment supersedes any law enacted by the Legislature.
I will grant the fact that the plenary power doctrine in immigration law still has some relevance. It's in dispute, but still relevant. Basically, there are two competing views - the view that equal protections does apply to immigration law, and the view that the question is still undecided whether there are some cases that the plenary power doctrine applies instead. No one holds the view that Equal Protections unambiguously does not apply, because that view would be impossible next to the last 40-50 years of immigration cases in the Supreme Court, which has applied equal protections doctrines to immigration law.
Some relevance? Courts have been hands-off with immigration law for nearly all of american history. In fact, up until recently, courts upheld things like complete deprivation of due process to illegals - something only activist courts have ignored, stare decisis be damned. Its only in the past 20 years that the courts have really moved to act on immigration decisions by the executive branch - and those decisions have been narrow 5-4's with serious dissents. When trump appoints a justice that supports his anti-illegal policies, is there really any doubt that the court will move back in a more reasonable direction?
That’s the thing about stare decisis. The most recent decisions are the valid ones, notwithstanding the vote count or the dissent. You might as well claim that the government doesn’t have to obey the Civil Rights act, because it’s “only in the past 50 years that it has applied” and there were “serious dissents”.
But in the first place, what case held that those illegally present in the US are to be deprived of Due Process? Honestly, I want to know where you’re getting this. That sounds like something that could only be pulled out of thin air on a “I think it’s fair, so it must be this way” basis.
On the idea that those illegally present here do get rights, is James Madison early enough for you? Here’s a quote from him regarding the Alien and Sedition Acts:
Quote from“…it will not be disputed, that as they owe, on one hand, a temporary obedience, they are entitled in return to their protection and advantage. If aliens had no rights under the Constitution, they might not only be banished, but even capitally punished, without a jury or the other incidents to a fair trial. But so far has a contrary principle been carried, in every part of the United States, that except on charges of treason, an alien has, besides all the common privileges, the special one of being tried by a jury, of which one-half may be also aliens.”
I could find a quote more on point to the 14th amendment, since it wasn’t even enacted at the time, but this just goes to show that it was always the founding intent to guarantee “common privileges” to illegals.
There’s also a serious difference between “when Trump gets in power, nominates his own judges, etc” and saying that policies as proposed by his campaign in the now would be valid. As someone aspiring to the highest office, Trump should be able to commit to polices that are capable of being enacted without him assuming dictatorial powers. If he’s going to peddle “should’a could’a been’s”, then don’t you think he should make it clearer that this is what they are?
Again, having an opinion on it doesn't require society to revisit things that have already been decided against you.
Go and find any book on Constitutional Law. You will find that, no, a "value system based on European religion" is not a part of our governance, government respecting no establishment of religion means exactly that, and English fluency is not a prerequisite to the equal protection of the law. Also no, the willingness to assimilate is not a prerequisite for private rights either. You might might feel that they ought to be, but as a life lesson here, your sense of what ought to be doesn't make it so.
It happens to be everyone else's view that "what makes America American" is in fact our freedoms under the constitution, our guaranteeing them to everyone regardless of status, and our welcoming of other cultures across the world (including European), regardless of their willingness to integrate. You're just wrong here.
To deny that western religious values play a central role in the development of our government suggests a pitiful lack of understanding of how this country was founded. I'd suggest that you take your own advice - you may think that being american is limited to our freedoms granted by the founding documents, but willful ignorance of 200+ years of history won't change the fact that america has a culture that includes a language and a value system.
There is a difference between playing a “central role” and playing an official role.
Sure, American culture is influenced by Christianity, the English Language, the British Commonwealth, and Fish and Chips. It’s also influenced by reality TV, the Miss America Pageant and Trump University. But guess what? When it comes to deciding who gets their property rights restricted, who gets deported, and who can live in peace, those things don’t matter.
What matters are the constitutional rights guaranteed to every person present in the territory, which Trump has shown entirely too much inclination to trample over as they apply to groups he doesn’t like.