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Open Invitation: Explain How the Immigration EO is Unconstitutional

Posted on 1/31/17 at 3:47 pm
Posted by Tigerlaff
FIGHTING out of the Carencro Sonic
Member since Jan 2010
20855 posts
Posted on 1/31/17 at 3:47 pm
The airwaves are flooded with dire proclamations that Trump has unconstitutionally targeted muslims with his latest executive order. I have yet to see one person make a cogent legal argument explaining why. If you've got it, flaunt it in this thread.

As a bonus, I'll throw in a road map of the arguments and even an analysis of the claim that Trump is statutorily, but not unconstitutionally, outside of the law.

1st Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

14th Amendment: "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."

Article 6, Section 3: "but no religious test shall ever be required as a qualification to any office or public trust under the United States."

5th Amendment: "No person shall be ... deprived of life, liberty, or property, without due process of law."

The 5th is the only thing that comes close. No one is being killed by the government. The government is not taking any property. In order for me to buy this, someone is going to have to show that non-citizen/non-permanent residents have a protected liberty interest of being physically present within the US. Anyone got the goods?


BONUS STATUTORY ROUND:

8 U.S.C. 1182(f) gives Trump the statutory authority to do this.

"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."

The only "argument" you can make is that 8 U.S.C. 1182(f) was amended by the more recent 8 U.S.C. 1152(a)(1)(A).

"no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence."

*Note that 8 U.S.C. 1152(a)(1)(A) says nothing about discriminating based on religion.

Even if that is the case (it's not), you'd basically need a written admission from Trump that he is excluding citizens of these seven countries based on nationality and not out of concerns for national security. Good luck with that argument considering that the Obama administration agreed with the threat assessment from these places.

Somebody tell me what I'm missing. What is the legal argument here?
Posted by biglego
Ask your mom where I been
Member since Nov 2007
76176 posts
Posted on 1/31/17 at 3:48 pm to
Bc the US Constitution protects Iraqis in Iraq, Libyans in Libya, etc
Posted by Eli Goldfinger
Member since Sep 2016
32785 posts
Posted on 1/31/17 at 3:48 pm to
Because libs don't like it.
Posted by CptBengal
BR Baby
Member since Dec 2007
71661 posts
Posted on 1/31/17 at 3:48 pm to
quote:

What is the legal argument here?


there isnt one.
Posted by joshnorris14
Florida
Member since Jan 2009
45195 posts
Posted on 1/31/17 at 3:48 pm to
You missed the enumerated feels article of the Constitution
This post was edited on 1/31/17 at 3:49 pm
Posted by Bourre
Da Parish
Member since Nov 2012
20187 posts
Posted on 1/31/17 at 3:49 pm to
You won't get intelligent replies from the boards proggies. Their talking points vanish in the face of facts.
Posted by buckeye_vol
Member since Jul 2014
35236 posts
Posted on 1/31/17 at 3:49 pm to
It's probably not, except for maybe the visa issue which was solved anyways.

If they had banned Muslims exclusively, I think the unconstitutional argument would be much more valid.
This post was edited on 1/31/17 at 3:50 pm
Posted by SlowFlowPro
Simple Solutions to Complex Probs
Member since Jan 2004
421612 posts
Posted on 1/31/17 at 3:49 pm to
the one argument is religious preference. the part of the EO that gives preferential treatment to "minority religious" (which means Christianity) could be unconstitutional. the rest? should be fine, legally
This post was edited on 1/31/17 at 3:51 pm
Posted by Bjorn Cyborg
Member since Sep 2016
26654 posts
Posted on 1/31/17 at 3:49 pm to

Every person on the planet has a right to immigrate the the United States. If you don't let them, you are a racist and can't wear tuxedos for a week.
Posted by Salmon
On the trails
Member since Feb 2008
83523 posts
Posted on 1/31/17 at 3:52 pm to
quote:

the one argument is religious preference. the part of the EO that gives preferential treatment to "minority religious" (which means Christianity) could be unconstitutional. the rest? should be fine, legally


my only issue with the EO

that and how it was awkwardly implemented
This post was edited on 1/31/17 at 3:53 pm
Posted by Volvagia
Fort Worth
Member since Mar 2006
51893 posts
Posted on 1/31/17 at 3:52 pm to
quote:

U.S.C. 1152(a)(1)(A) says nothing about discriminating based on religion.



True, but his EO isn't about Muslims.

It specifically targets citizens of particular countries. Which the amended statute, if it applies, prohibits apparently.
Posted by skrayper
21-0 Asterisk Drive
Member since Nov 2012
30851 posts
Posted on 1/31/17 at 3:53 pm to
TECHNICALLY, if you could systemically prove it was targeted at preventing one specific religion from coming to the US, you might be able to make a case for a violation of the First Amendment. That would be tough to do, though. There's no precedent for it though, and you're presuming a LOT in the interpretation.

Now, if you're looking at the level of the EO itself and stating that it is unconstitutional by way of exceeding the powers of the Executive Branch, you might have a case - but the precedent of what those EOs can do has already been expanded during the Obama Administration. One would be hard pressed to find a legal foothold NOW that the EO he signed was beyond his authority. 20-30 years ago? Probably.

I mean, technically Clinton had a strong stance on immigration, as did Bush, but both tried to go through Congress to get their laws passed. Obama and Trump have both set precedence of bypassing that check.
Posted by Knight of Old
New Hampshire
Member since Jul 2007
10965 posts
Posted on 1/31/17 at 3:53 pm to
It's not.
Posted by Loserman
Member since Sep 2007
21856 posts
Posted on 1/31/17 at 3:54 pm to
Because Muslims
Posted by Tigerlaff
FIGHTING out of the Carencro Sonic
Member since Jan 2010
20855 posts
Posted on 1/31/17 at 3:54 pm to
quote:

If they had banned Muslims exclusively, I think the unconstitutional argument would be much more valid.



I'm gonna need you to drill down on this: are you saying that if Trump, not Congress or a State, had barred only muslims, that it would be unconstitutional?

Why?
Posted by Hugo Stiglitz
Member since Oct 2010
72937 posts
Posted on 1/31/17 at 3:54 pm to
I'm not a legal scholar or constitutional attorney but I know Trump campaigned on a Muslim ban, I know Rudy G admitted to helping Trump legally transform the Muslim ban to what the EO is now. I know the EO gives preference to certain religions over others which is discriminatory by definition.

Is this illegal or unconstitutional? I honestly don't know but to me it feels shady, un-American, and wrong.

I have faith in the rule of law and to let the courts decide if this EO is a just law. I will accept their decision.
Posted by tigeraddict
Baton Rouge
Member since Mar 2007
11794 posts
Posted on 1/31/17 at 3:55 pm to
Any action or order issued by someone with an (R) behind their name is racist, bigotry, homophobic, Islamophobic, Sexist, Gerder-identity-ist, or (any other new -Ist) and the person issuing the order is "literally" Hitler



Posted by Lsuhoohoo
Member since Sep 2007
94368 posts
Posted on 1/31/17 at 3:55 pm to
How come you left out the 28th amendment?! The EO clearly violates the right to unhurt feelings. YOU BIGOT!

Posted by CptRusty
Basket of Deplorables
Member since Aug 2011
11740 posts
Posted on 1/31/17 at 3:56 pm to
Do the protections of the United States Constitution extend to people who are not citizens or otherwise legal residents of the US?

Pretty sure our soldiers went kicking in door to door in Fallujah...no one cried that the occupants of those homes had their fourth amendment rights violated
This post was edited on 1/31/17 at 3:59 pm
Posted by NIH
Member since Aug 2008
112553 posts
Posted on 1/31/17 at 3:57 pm to
quote:

I'm not a legal scholar or constitutional attorney



clearly
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