For more than a century, the US judiciary has been handing down rulings that affirm that non-US citizens, including those seeking entry into the USA, have no rights under the US Constitution — rulings that also grant the President the power to exclude people based on race, marital status and other biased grounds.
It started in 1889, with the ban on Chinese immigration to the USA (the workers lured/kidnapped to America to build the railroad wanted to settle down and bring over their families, but surprise! No more Chinese immigration!). In 1965, meanwhile, a Brazilian national of Japanese descent was denied entry on the basis that he was Asian, and thus came under the US cap on visas for Asians. The courts upheld both measures.
In 1977, US immigration denied a visa to an American citizen’s son on the basis that the lad had been born out of wedlock (upheld by the courts). Today, if you were born in the Philippines, the US government arbitrarily demands that you wait an extra decade to get a visa to come live with your family.
As immigration and constitutional law scholar Peter J. Spiro writes, in the New York Times, the fact that the Supreme Court has decided that immigration is a constitution-free zone isn’t the last word. There was widespread revulsion at Trump’s proposal to institute a religious test as a condition of entry to the US, and widespread belief that this is — and should be — unconstitutional. This public sentiment tells us that the courts are out of step with the nation, and that means it’s time for a change:
The fact that many Americans seem to assume Mr. Trump’s proposal is unconstitutional means that the courts need to catch up with the public on immigration. We don’t tolerate discrimination on the basis of national origin in hiring, housing or public accommodation. But discrimination on the basis of nationality, often capricious, even illogical, is a central feature of immigration law.
Trump’s Anti-Muslim Plan Is Awful. And Constitutional. [Peter J Spiro/NYT]