Hey, we have a border.
For Americans only.
Try getting off an airplane from an international flight and not showing a passport. Even if you’re a 13th generation American...like me.
Latasha L’quanta Bebopalula the CBP agent at the desk will just tell ya NO.
Let’s begin with the basics of the power to exclude. None other than Judge Horace Gray, in Nishimura Ekiu (1892), the very judge the liberals like to (erroneously) cite for birthright citizenship of aliens, wrote the following: It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.
This became the backbone of an uninterrupted stream of case law about which the court said, decades later in Galvin v. Press, that it “has become about as firmly embedded in the legislative and judicial tissues of our body politic as any aspect of our government,” not “merely” by “a page of history … but a whole volume.”
Indeed, this is why Justice Gray said that courts have no ability to second-guess an exclusion and that any debate over that must take place between the political branches of government:
It is not within the province of the judiciary to order that foreigners who have never been naturalized, nor acquired any domicile or residence within the United States, nor even been admitted into the country pursuant to law, shall be permitted to enter, in opposition to the constitutional and lawful measures of the legislative and executive branches of the national government.
The president has his own inherent foreign affairs authority to repel cross-border migration
Notice how Gray referred to both the legislature and executive. That is because they have concurrent jurisdiction over entry into the country. Congress has full power over naturalization and rules governing entry as well as deportations, but the president has power over foreign affairs until something or someone lands on our shores. Thus, the ability to enter is subject to the lowest common denominator between both branches. If either one doesn’t want a person or a group of people to enter, he or they may not enter. For example, even if Congress were to explicitly say that “all aliens seeking admission shall be granted status,” the president can still exclude anyone he wants. Once an alien is lawfully admitted, then Congress controls the rules of naturalization or deportation, although Justice Thomas believes the president might also have inherent power to deport as well. See Sessions v. Dimaya (2018, THOMAS, J., dissenting, slip op., 13–14).
How strong is this power? As the Supreme Court said in Knauff v. Shaughnessy (1950), which is still the controlling case to this day, “The exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation.”
In one of the few court cases against the 44 times presidents have invoked the power to exclude under 212(f), none other than the Northern District of California, the very court on which Judge Tigar sits, cited precedent in the most unequivocal terms:
The exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation. * * * When Congress prescribes a procedure concerning the admissibility of aliens, it is not dealing alone with a legislative power. It is implementing an inherent executive power” [(Encuentro del Canto Popular v. Christopher, N.D. Cal. 1996)].
Indeed, before Congress began officially regulating immigration in 1875 and it was still mainly left to the states, the State Department often encouraged or discouraged immigration through diplomatic correspondence. President Grant’s secretary of state, Hamilton Fish, angrily warned the British in 1872 that the administration “is not willing and will not consent to receive the pauper class of any community who may be sent or may be assisted in their immigration at the expense of government or of municipal authorities.”
Thus, even without 212(f), one could not read any asylum statute in a way that negates the president’s power to shut down all asylum cases when he deems it in the national interest. But certainly, with 212(f), there is nothing to discuss. As Justice Thomas wrote in his recent concurrence in Trump v. Hawaii, which is being ignored by the lower courts every day, “Section 1182(f) does not set forth any judicially enforceable limits that constrain the President. … Nor could it, since the President has inherent authority to exclude aliens from the country.”
The courts already said executive power to exclude overrides asylum, unless the executive’s name is Trump
In the early 1990s, Presidents George H.W. Bush and Bill Clinton signed an executive order directing the Coast Guard to interdict Haitians attempting to come here to claim asylum by preventing them from landing while they were still at sea. In Sale v. Haitian Centers Council, Inc. (1993), the court ruled that the order did not violate either the INA or the United Nations Convention Relating to the Status of Refugees. “It is perfectly clear that 8 U. S. C. § 1182(f) grants the President ample power to establish a naval blockade that would simply deny illegal Haitian migrants the ability to disembark on our shores,” wrote Justice Stevens for the overwhelming majority.
It is thus perfectly clear that the president can categorically prevent asylees, even legitimate ones, from ever entering the country and certainly may propose a more modest approach of simply channeling them to the points of entry.
As the Congressional Research Service explains, based on Sale’s definition of the president’s power to block entry, “The Court distinguished between (1) aliens who are “on our shores seeking admission” or “on the threshold of initial entry,” and (2) aliens who are within the United States after entry, regardless of the legality of that entry.” Indeed, this case was cited in Trump v. Hawaii, and as the CRS notes, no court has ever placed limitations on the president’s authority.
On January 14, 1998, President Clinton issued a terse one-page order invoking 212(f) and 215(a) to shut down all immigration from Sierra Leonne until the military coup agreed to reinstall the democratically elected government. Clinton viewed the security of an obscure government as sufficiently in America’s “national interest” to shut down immigration. How much more so when our own country is directly affected by the tens of thousands coming with violence, drugs, gangs, and poverty? Nobody in their right mind ever thought to challenge this order in court. Yet in a case later on, the Second Circuit (Sesay v. Immigration and Naturalization Service INS, 2003) tossed out a claim of asylum from a Sierra Leonne national, noting that he could not have lawfully entered the country at the time, given the president’s order. Thus, irrespective of the merits of his claim, he could not be eligible solely because the president shut off the spigot. And this was a man who already made it to the country.
The real Constitution is not a suicide pact
Justice Robert Jackson, the great champion of due process and dissenter in the Japanese internment case, said in a 1953 case (Shaughnessy v. Mezei), “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.” This is the same justice who famously said (Terminiello v. City of Chicago, 1949), “There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”
Jackson, in that case, was referring to dogmatically clinging to a legitimate First Amendment claim against an ordinance arresting an American citizen in Chicago for a charge of disorderly conduct that incited violence. How much more so would we apply this to our national sovereignty and the notion that seven billion people can invade our country, demand status, demand release from custody interminably, and then help bring in drugs, gangs, and violence while swamping our culture and our public institutions?
The Constitution and the most unassailable case law, rooted in the social compact of sovereignty, support the power of the president to regulate immigration to this nation. Are we going to allow the dogmatic adherence to lower court supremacy, built upon a violation of law and the Constitution, to make the judiciary a suicide pact?
Chief Justice Roberts.....you have some work to do. This clown in the Northern District of California needs to be educated.
indeed. judge has zero jurisdiction to interfere with national defense like border protection, etc
Or to legislate from the bench.
This talks as if ANY democrap gives one rat’s fart about this Constitution of which he speaks.
So, using Twitter, as adeptly as he does, using the issues that Horowitz brings up, state the following:
Based on the fact the Judge Tigar has ABSOLUTELY NO JURISDICTION IN THIS matter, his injunction will ignored, while we file to have the case before SCOTUS. SCOTUS has already determined that the Executive Branch has jurisdiction with regards to making decisions on immigration. In accordance with my Executive Order, no asylum cases will be heard at the border.
Thank you and God Bless America!!!