Jewish émigrés turned away from Miami and returned to Germany, 1935
by Mary W Maxwell, PhD, LLB
Boy, was I excited at the Trump takeover. The Inauguration was beautiful. The First Lady’s blue dress made me proud – and hopeful.
My joy lasted a full week. Now the President says he is going to keep Muslims out.
In the first place, a president is not in charge of immigration. Go, ye all, to the Source. That is, of course, Section 8 of Article I of the dear American Constitution wherein are enumerated the 18 “grants of power” to Congress.
May I quote the relevant one out of the 18?
“The Congress shall have power to… establish a uniform rule of naturalization…”
Can law get any clearer than that? If you go to Article II, which specifies the duties of the president, you won’t find anything that contradicts that grant of power in Article I or competes with it in any way. Trust me.
The DAPA Case
On June 23, 2016, the US Supreme Court — with only eight members, following the February death of Antonin Scalia — reached a 4-4 decision in the DAPA case. (Note: being a split decision, it does not set precedent.)
The case was about DAPA, a “deferred action program” in which President Obama sought to allow a 3-year deferral to mass deportation of illegal immigrants. SCOTUS’s ruling will send the case back to a federal district judge Hanen in Brownsville, Texas for a consideration on the merits.
The plaintiffs were several states that claimed it would cost them money to issues drivers’ licences to the immigrants, but of course the case is also a test of presidential overreach (or as I prefer to call it, treason, by way of assaulting our ruler, the Constitution).
Am I anti-immigration for Mexicans? Am I pro-immigration for Muslins? It does not matter. All that matters is that the parchment not end up in the waste basket.
Religion As the Basis for Judging a Person’s Legal Status
In Islamic law, status matters a lot. For instance, your gender status matters. If you are female, your sworn testimony as a witness is worth only half that of a male witness.
In Israeli law, too, your status as a member of the Jewish community — determined by your religion — makes you eligible for some privileges not allowed to Gentiles.
Other countries, such as Saudi Arabia and Malaysia, also offer varying legal distinctions based on a person’s status.
The United States, like Australia, has LEGAL EQUALITY as a main aspect of its concept of “rule of law.” Everyone is the same when seeking a benefit or when asking for protection against a harm-doer.
I’m sorry to say that equality before the law has very much fallen down, in actual judicial practices, lately (see Bill Windsor’s “Lawless America” videos), but that’s another story. We still can proclaim equality as absolutely established law.
Here is the wording of Section 1 of the Fourteenth Amendment, ratified in 1868, after the Civil War:
Amendment XIV, Section 1
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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.”
Which “privileges or immunities” must not be “abridged” in the United States? Easy, just rattle off the 10 amendments known as the Bill of Rights, which came into force in 1791. In regard to religion, the First Amendment says:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
So is Congress threatening to make a law that would prohibit the free exercise of religion? No. It is the president who is saying that he will keep Muslims out.
I suppose Trump is thereby indicating that all Muslims who are already US citizens or resident are some kind of undesirables – a very stupid idea for which Congress could easily impeach him.
But a president’s proclamation against the immigration of Muslims should be dealt with as a separation-of-powers matter not as a First Amendment matter. Trump plainly has no authority, none whatsoever, to rule out the immigration of any persons based on their religion.
OK, Don’t Trust Me
Above, I promised that you would not find in Article II of the American Constitution any hidden powers. Recall that during the George W Bush administration, Berkeley law professor John Yoo invented, out of whole cloth, some new theory of the Unitary inherent executive power.
And Elena Kagan, before she was appointed to the US Supreme Court, advocated a takeover, by the president, of all the bureaucracies (the Cabinet portfolios). Really it makes you wonder.
But why trust me? Although I have good intentions, I may have got it wrong. So here is Article II, stripped only of a few points in its Section 1 that specify a person’s eligibility to attain the office of president:
…. Before he enter on the execution of his office, he shall take the following oath or affirmation:– “I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”
The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States;
he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.
He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law:
but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.
The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.
He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them,
and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.
The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.
Blue Dress City
Dear Mrs Trump, would you please assert yourself on the home front, in the fashion of your excellent wardrobe, by advising Hubby that it would be ever so nice if he would raise our spirits, as he did on the campaign trail?
This would mean not just saying “Make America great again economically,” but saying “Keep America great by kissing the Constitution.” One kiss a day ought to do it.
Also please remind him that did not a certain Slovene woman immigrate to US’s sunny shores, receiving her green card in 2001, he would probably not be where he is today.
As for your being the cover girl on this week’s Mexican edition of Vanity Fair, well that’s a good sign that “the wall” is only a joke.
Good. Fine. We all enjoy a joke.
- Mary W Maxwell is the author of Marathon Bombing: Indicting the Players.
Photo credit: refugee ship: TheAtlantic.com