Monday, January 30, 2017

Erwin Chemerinsky Says Trump's Ban is Unconstitutional

UC Irvine Law School Dean Erwin Chemerinsky has an editorial in the LA Times attacking President Trump's travel ban.

"To start, it’s illegal to bar individuals from entering the country based on nationality. The Immigration and Nationality Act of 1965 explicitly says that no person can 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."

I seem to recall that President Carter banned people from Iran to enter the US during the hostage crisis. I also understand it was upheld by the courts as being the President's prerogative. I also recall that a lot of Iranian students were sent home.

"On Saturday night, a federal judge in New York issued a temporary stay, allowing green card or visa holders detained at airports to enter the country. The judge declared that the challengers have a “strong likelihood” of prevailing in showing that Trump’s order violates due process and equal protection."

And I could find a federal judge tonight who would rule that there is a strong likelihood the Earth is flat.

"Furthermore, Trump’s order unconstitutionally discriminates on the basis of religion. Under the 1st Amendment, the government may not favor one religion over others. Although Trump’s executive order does not expressly exclude Muslims, that is obviously its purpose and its effect as it bars entry to individuals from predominantly Muslim countries. It also instructs Homeland Security, after the 120-day period, to prioritize refugee claims “made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.” (Emphasis mine.)
What does that mean? Trump told Christian Broadcast News that he intended to give priority to Christians. The Constitution does not allow such religious discrimination or permit the government to assume that a person is more likely to be dangerous because of his or her religion, national origin or race."
So which is it, nationality or religion? The order says nothing about religion. It lists seven countries, which happen to be majority Muslim as are virtually all terror-connected nations.  As for the priority given to those fleeing legitimate religious persecution (Christians, Yazidis, Baha'i etc.) I say why not give priority to those who are truly victims of religious persecution? It is an inconvenient fact that in Muslim majority countries-especially Syria and Iraq, Christians and Yazidis are fleeing from a campaign of genocide. But Chemerinsky would ignore that even though he says:
"Barring individuals fleeing persecution from entering the U.S. is simply inhumane." 
This sounds like a contradiction. Yes, many are fleeing war, but Muslims are not being persecuted for their religion (possible exception Shia) . The ones suffering persecutions are the Christians etc. They were all but ignored by the Obama administration..

" Adding irony to injury, Trump’s executive order was issued on Holocaust Remembrance Day, which should have been an occasion to atone for turning away refugees during the 1930s — some of whom died in concentration camps.  For example, in 1939, the United States turned away the St. Louis, a boat filled with refugees, many of them German Jews. According to the United States Holocaust Memorial Museum, 254 passengers from the St. Louis died in the Holocaust."

This is a cheap and false analogy. Yes, the US' refusal to accept Jews fleeing Europe in the 1930s was shameful. Yet, the Jews were not committing acts of terror in Europe or killing anybody. They were not a danger to anybody. There was no fear that any of them might be terrorists.
"One of the most astounding aspects of Trump’s executive order is that he seems to have singled out countries where he has no business interests, while giving a reprieve to nearby nations Saudi Arabia and the United Arab Emirates, among others, where the Trump Organization is active."

This has nothing to do with his business interests. Personally, I would be satisfied if a ban was applied to all  Muslim countries until this terror ends (which will not be anytime soon). The fact that most Muslim countries are not on the list disproves the claim that this is a universal Muslim ban. 

There is no question in my mind that countries like Saudi Arabia, UAE, Qatar, and Pakistan are not on the list is simply because we have long-established diplomatic ties with them and they are considered key strategic "allies" (quotes mine). You will note that our diplomatic relations with the seven countries are either weak or non-existent.
"The order is also nonsensical in that foreigners from the seven listed nations killed exactly zero Americans in terrorist attacks on U.S. soil between 1975 and the end of 2015, according to the Cato Institute. None of the terrorists from the 9/11 attacks or the Boston Marathon bombing or the San Bernardino shooting or the Orlando, Fla., massacre came from the seven countries listed. The home countries of those responsible were not included."

True to a point, but the FBI has arrested numerous Somalis in the US for terrorist plots, many of whom were en route to join Al Shabaab. Some 80,000 Somalis were resettled in the USA as refugees in the 1990s. Chemerinsky specifies on US soil, but four Americans died in a terror attack on the US consulate in Benghazi. (Libya is on the list.) In addition, the Tsarnaev brothers, (Boston Marathon) came to the US as asylum seekers from Daghestan.

"There is no indication, moreover, that refugees pose a special threat or that the existing screening procedures are inadequate. Syrian refugees in the United States have not been linked to any terrorist acts."

Not yet, but it will happen. It has happened in Europe already. ISIS has stated that they will infiltrate their men into the refugee flow. If Chemerinsky thinks the screening procedures are adequate, how does he think we can get identification and background information on all these people who claim to be Syrians, many without papers? Does he think the police and intelligence services of Syria are providing us with the information we need? Seriously.

Finally, I would point out to the learned dean that no person who is not a US citizen has a Constitutional right to enter the US. That is a simple point of national sovereignty.

It can be fairly argued that the implementing of the travel ban was messy given the number of people who were in transit, the visa holders and green card holders. In all, 109 people were inconvenienced and scrutinized this weekend. The fact remains that Trump took this action for one reason- to protect American lives in a dangerous time. We have let too many dangerous people into this country, and we have and will pay the price in terms of human lives. I may not be a constitutional lawyer, but I believe the President has the legal right to ban people from this country who may do us harm. It is not about religion. It is about the beliefs that many hold that would lead them to kill others. In the Cold War, we banned communists from entering the US based on their ideology, which was deemed harmful to our democracy. By the same token, the ideology of jihad is dangerous to our country. Thank God we have a president who recognizes it.

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