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Justices Seemingly Favor Trump on Authority Over Immigration

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Mexican boy killing case gets spotlight – No Constitutional Right Even to Life, and/or Only In Special Circumstances
WASHINGTON, D.C. (February 21, 2017) – The arguments this morning in the U.S. Supreme Court, in the case of a Mexican boy who was killed in Mexico by a shot fired by a law enforcement officer on the U.S. side of the border, suggest significant support for President Donald Trump’s position that persons in foreign countries are not protected by the U.S. Constitution.


Mexican boy

Mexican boy

darvinsantos / Pixabay

Although the facts are clearly very different, this suggests that it would not be unconstitutional for U.S. presidents to discriminate on the basis of religion in formulating immigration rules and policy, says public interest law professor John Banzhaf, whose predictions regarding Trump’s original executive order on immigration have generally proven to be accurate.

Early reports of the arguments this morning suggest that the Court may be evenly divided, but Justice Anthony Kennedy – often considered a key swing vote – suggested that the fact that the boy was a foreigner on foreign soil when he was shot to death was enough to keep the matter out of our court system.

Kennedy also noted that courts has been reluctant to allow civil rights suits like this, especially when they may implicate international relations. “This is a sensitive area of foreign affairs,” he said.

The same is obviously also true regarding immigration policy, notes Banzhaf.

Even the four liberal justices indicated that they might support the law suit by the boy’s parents, but only in this narrow circumstance because he was shot very close to the border, and in a location in which the U.S. and Mexico have joint responsibility for upkeep.

But people in the seven foreign countries singled out in Trump’s original and controversial immigration order are not near any U.S. border, much less an area where we have any upkeep responsibility.

If, as appears, only four justices are willing to acknowledge that a foreigner on foreign soil might have some rights under U.S. law, and then only because he was in a border area where the U.S. has a some responsibility for upkeep, it’s hard to see how a full court, with a very conservative Trump appointee sitting, would hold that a foreigner living in Yemen or Somalia would have a constitutional right not to have a visa delayed or even denied on the basis of his country’s predominant religion, suggests Banzhaf.

“The right to life – not to be shot dead by the U.S. – obviously trumps the right to simply come to the U.S.,” says Banzhaf, noting the obvious pun. He also noted that President Barack Obama has asserted the right to kill foreigners in other countries – even if never convicted of a crime – by using drones.

The Constitution provides that no person shall be deprived of life except in accordance with due process of law, yet drone killings occur on the orders of the president, without any congressional authorization, or trial or hearing of any kind.

If a president can – consistent with the Constitution, and without any declaration of war or other congressional authorization – order that foreigners be killed, it would seem that the case for denying them visas, on any ground whatsoever, is even stronger, suggests Banzhaf.

Indeed, he notes, under what is called the Plenery Power Doctrine, it has long been held that the constitutional protections against discrimination do not apply abroad.

That’s why, for example, President Carter was able to ban Iranians, and Congress repeatedly passed immigration statutes aimed at particular countries and ethnicities, says Banzhaf.

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