While I understand your argument as it applies to U.S. citizens…I’m not really understanding how you think it applies to foreign nationals?
You keep posting this over and over as if it applies to people that are not U.S. citizens.
This is not a ban on religion in the U.S.
My argument is that Congress does not have the authority to make any law, regardless of who the law affects, that establishes or prohibit the exercise of any religion. It doesn’t matter what type of law they are making. They can’t create a tax on “Muslim” imports. They can tax imports from Saudi Arabia, though.
Maybe I’m not explaining myself well enough.
They can make immigration laws cutting off places due to their location. They can cut off entire states. They can cut off the eastern hemisphere. They cannot cut off a religion. It is a direct violation of the limitation placed on the Congress in the 1st amendment. Immigration law is still U.S. law that is limited by the Constitution. Congress doens’t get a pass because the law only really affect non-citizens.
I have not seen a valid argument to counter this. The preamble is the best attempt thus far, but it’s not nearly enough.
Congress creates immigration law. → Congress is restrained by the Constitution → No where in the Constitution does it say that the first amendment doesn’t apply to Immigration Law.
It would be prohibiting the free exercise thereof.
No, I’m not. I’m saying Congress is constrained by the Constitution.
“You can’t come to America if you practice Islam.”
If that isn’t prohibiting the free exercise of religion then I guess Bill really didn’t have sex with that woman.
That’s fine. You can’t argue unless someone’s wrong 
Unsurprisingly, you disqualify yourself from being taken seriously on the standing analysis with your very first attempt to address it.
The issue is not, and has not throughout the entirety of this thread, had anything at all to do with whether or not foreigners have standing. This is a whiff on the most fundamental level, and it shows us that not only have you not got this right, you also haven’t even tried to understand it.
As for this:
[quote]
Tribe, while being considered a smart guy, is a bona fide liberal progressive. Remember to factor that in to your thinking when quoting Tribe.[/quote]
It’s all well and good but for the fact that Tribe was cited in this thread explicitly as one of a group of prominent conlaw scholars who believe that standing would not be an issue in a potential challenge. If, for example, Volokh (leaning conservative and libertarian, and no, we don’t need to “infer” anything about Volokh, because it is logically impossible for him to believe it possible that SCOTUS might alter plenary power doctrine if he believes that nobody could have standing) and Tribe (leaning liberal) and Eric Posner and Erwin Chemerinsky (one of the two most influential legal scholars in the world) have analyzed a challenge to Trump’s proposed ban and unanimously believe that a challenger would have standing, we have what’s called a moral certainty.
Because if there is anything that we know, it’s that if Pushharder (who has proved himself beyond doubt to be not even casually familiar, as in not even able to name, precedent relating either to the EC itself [remember what happened above when Larson, Lemon, and Everson came out] or to EC standing – if Pushharder believes conlaw proposition NOT P while Volokh, Tribe, Posner, Chemerinsky and many more believe conlaw proposition P, Pushharder will be wrong exactly 100 percent of the time, and he won’t know why because he won’t have done the reading.
You may be somewhat correct, if Congress is indeed involved.
But if you are being really honest with yourself, you know that it’s not gonna happen.
Exhibit A - of historical precedent.
I notice that nobody responded to this excellent post.
This is undoubtedly because it exposes the arguments against your position on this particular matter as astoundingly terrible. I sometimes overuse words like “terrible” and “stupid” (never when Trump is involved, mind you: “stupid” always applies), and I have been trying in my professional life to stop calling things by demeaning names when I really mean only that they are erroneous, etc. But in the present case, astoundingly terrible fits like a glove, because not only will pigs fly out of Donald Trump’s undoubtedly horrific-looking little dick before the United States bans travel from even a modest plurality of these countries, but, much more importantly, such a ban would be catastrophically destructive to the practice of global counter-terrorism and would strengthen terrorist cells in every corner of the world to an unprecedented degree.
Why? A few months ago, the EU ambassador to the U.S. warned us that if we were to impose a modest set of travel restrictions on foreigners who’d visited Iraq and Syria within the last half-decade, they would impose travel restrictions on us. The reason for this – and it’s something that would occur to anybody who has ever thought seriously about these matters rather than pulling his politics out of the nearest available dark body cavity – is that relations among and between nations function via reciprocity, and the cycle of increasingly severe reciprocal diplomatic penalties on a scale such as desired by Raj and Pushharder would lay waste to American security interests across the world. Cooperation in economic and counter-terrorism endeavors – notoriously fragile, the latter – would cool and then freeze, mutual business interests would crumble, treaties would dissolve, relations would grow distant, and American influence across the world would instantaneously be diminished (guess what happens when one superpower removes itself from a space it’s been occupying? Another slides on in. Putin and Xi Jinping would celebrate Trump’s election as vigorously as the worst posters in PWI would). Taking Azerbaijan (>90 percent Muslim) as one of many available examples: this, one of the most important countries in counter-terrorism-finance policy, a flawed but increasingly cooperative partner of the U.S., would suddenly become part of a large bloc of similar nations swept into a destructive diplomatic tit-for-tat with the United States.
Newsflash: MUCH OF THE WHAT THE CIA DOES IN THE FIELD INVOLVES AGENTS POSING AS AMERICAN BUSINESSMEN ABROAD. When AvTEG needs a helicopter for some JSOC direct action (killing a bad guy) that needs to look like it was done by somebody else, they get together with CIA operatives, create a front company in Virginia, and pretend to be looking for something that will get them to a golf course in badass style. They lie. What do we think the CIA might say about a policy rendering it nearly impossible for its agents to operate effectively in literally all of the countries within which effective operation is of utmost global counter-terrorism concern? What might this kind of development do to the real counter-terrorism capabilities of this country and, indeed, the Western world?
“Real” is a key word in the previous sentence. People really do this stuff, and it really is important – much more important than feeding the blinding garbage-fire that is Donald Trump’s base of support. And this important, real stuff is under serious threat from a bunch of people who have never and will never contribute to the very concrete, always difficult, and often dangerous task of actually keeping America safe.
(@thunderbolt23 , if you’re around, I will later post to you specifically. My work took me much longer than anticipated, as it always seems to do.)
Edit: In case anybody needs it spelled out, this fatuous and stupid proposal would feed terrorism by making it EASY to do, costing lives and worsening the problem that it was supposed (by clowns) to solve. No question.
Interesting reading, gents - and here is the problem I think that vexes all of us, regardless of what side we’re on. The EC is written more like a structural limitation on the enactment of certain laws, not like an individual right that should live in the BOR.
The EC is more like the Constitution’s prohibition on granting titles of nobility in Article I - it’s a restriction on Congress’ general legislative power to do such a thing regardless of an individual right or claim. It’s structural. That’s how the EC reads.
But some say it only applies to laws affecting citizens by virtue of being in the BOR (as the freedom of worship section certainly would), so re: non citizens, Congress isn’t restricted, and can pass laws privileging one religion over another w/r/t policy dealing with non citizens (like immigration).
Others - Smh and USMC by my read - believe in the EC as a straightforward structural limitation, as in, Congress simply can’t pass a law privileging a religion period, same as it can’t grant titles of nobility or pass ex post facto laws.
For my part, I think the latter - it’s a clear structural limitation that might as well be part of Article I, Section 9. But as I have noted for a while, standing to sue to challenge a violation of a structural limitation is not a given.
So, a ban on non citizen Muslim immigration unconstitutional even though it pertains to people who don’t enjoy individual rights under the Constitution? Yes, in my view. But more a question of constitutionality to be decided by Congress and the President (who are supposed to decide such questions, too, of course).
No, no, no: this was about standing. You made a claim about standing. There is no point in citing scholars re: a decision on the substance, because scholars are splitting on that. Now – with the simple test of sufficient unanimity among the authorities failing in that case – if you’d like to argue it on the substance I have already begun in this very thread. Search for my quotations from Larson and Everson. Note that you will have to read and become familiar with all the relevant precedent.
But as for standing --about which you made the false claim, and specifically regarding which I responded to you – do try to gather multiple constitutional scholars, make them at least close to as illustrious as mine, and shoot for ideological diversity (one liberal and one conservative, at least).
Foreigners cannot freely enter this country, though, but yes if we allow them to enter, ie they fulfill the necessary parameters to enter under our immigration laws than they cannot be denied solely on the grounds that they are armed. It’s a Congressional overreeach.
You don’t like what the constitution says, change it. That was my response in the 2nd amendment thread and that is my response now.
Great post. Exactly right. We agree that the EC as written does not constrain government policy vis-a-vis a particular citizen’s rights, but rather constrains the nature of government policy itself. This has always struck me as a matter of textual fact. (Incidentally, this was why I originally thought that standing would not be a problem, even if it isn’t an explicit consideration vis-a-vis nontaxpayer standing analysis, now that I’ve read up on that).
This quoted part is conceded. As I said from the beginning, I’m no deep study on standing, and I couldn’t say that anything is a given. After you asked me the question, from what I gathered, I became convinced that standing would be likely. But you are right 1. Broadly, in that nothing is a given, and 2. Specifically, in that even if the one example of SCOTUS precedent gives me reason to be optimistic, it simply doesn’t give us an explicit answer (Valley Forge’s presence in the literature is generally just a bunch of whining about how vague it is regarding EC standing).
Great back and forth between Push and USMC, some thought provoking arguments made on both sides. Inevitably, the argument would be decided by SCOTUS, which makes this election even more important.