What is happening in the courts right now goes beyond any debate over a “ban” on Muslim immigration. The courts have denuded the president of his plenary power over setting the refugee cap, which Trump applied evenly to every country included in his new executive order. Obviously, all the national security problems we have are from predominantly Muslim countries in the Middle East. But let’s put that aside for a moment. Even if this were a ban on Muslim immigration, it would be legal. That is settled law of a sovereign nation state.
Let’s also ignore political considerations for a moment. From a legal standpoint, a nation can set any criteria for letting in any group of people. Through our elected representatives, we can decide to only bring in people with brown hair. We can shut off immigration to those with green eyes or those who are left-handed. The prudence of such a law would have to be dealt with on a political level. Any legal limitation placed on our sovereignty, by definition, means we are not a sovereign nation and that foreign nationals can forcibly control our destiny. This is a principle deeply rooted in the social compact, the preamble of the Declaration of Independence (governance by consent), and the sovereignty of a nation state. Even one who is politically a supporter of loose immigration laws should be alarmed by courts creating a legal limitation to restricting immigration.
We have already cited from endless case law and statements from our founders on the plenary right of a nation to determine who enters the country. I’d like to add some new source material that speaks to the current constitutional crisis:
In Knauff v. Shaughnessy (1950), the Supreme Court made it clear that there is no right whatsoever to immigrate:
At the outset, we wish to point out that an alien who seeks admission to this country may not do so under any claim of right. Admission of aliens to the United States is a privilege granted by the sovereign United States Government. Such privilege is granted to an alien only upon such terms as the United States shall prescribe. It must be exercised in accordance with the procedure which the United States provides.
And yes, the exclusion could be because any consideration, even race. Remember, we are talking about law and Constitution, not politics, prudence, or morality. From Ju Toy v. United States (1905):
That Congress may exclude aliens of a particular race from the United States, prescribe the terms and conditions upon which certain classes of aliens may come to this country, establish regulations for sending out of the country such aliens as come here in violation of law, and commit the enforcement of such provisions, conditions, and regulations exclusively to executive officers, without judicial intervention are principles firmly established by the decisions of this Court. [emphasis added]
Thus, not only is the right to exclude — even for bad reason — deemed settled law in the most emphatic terms, resting on the most foundational principles of sovereignty, but it is not reviewable by the courts. Two years prior, in “The Japanese Immigrant Case,” the court used the exact same language and declared that, based on an uninterrupted stream of near-unanimous decisions, the constitutionality of such an exclusion “is no longer open to discussion in this Court.”
In 1904 (Turner v. Williams), the court made it clear that it is facially absurd to assert a religious liberty, equal protection, or freedom of speech right to affirmatively immigrate to this country. This case speaks directly to what the modern courts are ignoring:
We are at a loss to understand in what way the act is obnoxious to this objection. It has no reference to an establishment of religion, nor does it prohibit the free exercise thereof; nor abridge the freedom of speech or of the press; nor the right of the people to assemble and petition the government for a redress of grievances. It is, of course, true that if an alien is not permitted to enter this country, or, having entered contrary to law, is expelled, he is in fact cut off from worshipping or speaking or publishing or petitioning in the country; but that is merely because of his exclusion therefrom. He does not become one of the people to whom these things are secured by our Constitution by an attempt to enter, forbidden by law. To appeal to the Constitution is to concede that this is a land governed by that supreme law, and as under it the power to exclude has been determined to exist, those who are excluded cannot assert the rights in general obtaining in a land to which they do not belong as citizens or otherwise.
It's amazing how liberals worship the concept of stare decisis (court precedent) once a single liberal court overturns years of common sense case law and the plain meaning of the Constitution. But they have no respect for case law that is most firmly embedded in our sovereignty in the most emphatic language, including the courts own admission that they have absolutely no jurisdiction over the issue. All of this case law remains unsettled and unexplained by the civil disobedience of today’s modern judiciary. As I’ve noted before, this case law survived even the liberal Warren-era right up to this generation.
Some critics might suggest that we can’t draw any conclusions from the exclusion acts of the late 1880s because that’s when America was evil and racist. “Just like the courts upheld slavery and were wrong they are wrong about this,” some might suggest. “What about when the courts upheld the internment of the Japanese in the Korematsu case?”
There is a one-word answer to these questions: Sovereignty.
What liberals are missing is that there is a difference between abridging the rights of Americans or even immigrants and a right to affirmatively enter someone else’s country. Of course, we can’t just throw people into labor camps and indefinitely detain them without due process. But we don’t have to allow people into our country. Immigration is quite a different issue than indefinite detention. It’s like saying because you are not allowed to kidnap a visitor of your house and lock him in your attic you must allow anyone into your house in the first place.
As I’ve cited many times, Justice Robert Jackson, the famous Nuremberg prosecutor who was a champion of due process rights and wrote the dissent in Korematsu v. United States, said that “Due process does not invest any alien with a right to enter the United States, nor confer on those admitted the right to remain against the national will.” Shaughnessy v. Mezei, 345 US 222-223 (1953) (Jackson, J., dissenting).] Scalia, in his Zadvydas dissent, made this same distinction between indefinite detention and the right to enter or remain in the country against the national will. Even the majority opinion at the time only granted relief because the individual legal permanent resident was being held longer than six months in prison (but only because his home country would not repatriate him).
Some might feel uncomfortable with the notion that there are no limitations on discriminatory, absurd, or “mean” immigration selection criterion. But those are political or sensibility arguments, not legal arguments. By definition, any limitation whatsoever on the power to exclude necessarily means that a foreign national has some sort of affirmative claim to assert jurisdiction and adjudicate his way into entry. As John Marshall, the judicial strongman himself, said:
The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it deriving validity from an external source would imply a diminution of its sovereignty to the extent of the restriction and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories must be traced up to the consent of the nation itself. They can flow from no other legitimate source.
But again, we are not even talking about a complete shutoff of Muslim immigration. We are no longer a sovereign nation and a sovereign people when courts, relatives of foreign nationals, taxpayer-funded refugee groups, and states can proactively demand any form of immigration they so desire.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.
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