Tag Archives: immigration

Does a foreigner on foreign soil have Fourth Amendment rights?

Posted on by
1

That’s the subtitle of a Wall Street Journal op-ed.  The answer should be obvious, too: it would be the height of jingo-ism to assert US government jurisdiction over non-citizens outside our borders—outside, for instance, the 14th Amendment’s subject to the jurisdiction of the US.

Firing into another country at a foreign national, especially one that’s a citizen of the country being fired into, could well be a violation, but that potential would be a violation of a different set of circumstances than the question before the Supremes in the present case, Hernandez v Mesa.  That other set of circumstance has to do with international relations, foreign policy, the nature of casus belli, and on and on—and all purely political matters, not legal ones, and so not only a different set of circumstances, but a matter that’s outside the reach of court jurisdiction.

A Good Move

Posted on by
Reply

There’s a new sheriff in Phoenix, the one replacing Sheriff Arpaio, who was defeated in the election last fall.  The new cop has withdrawn Arpaio’s policy of holding prisoners for as long as “necessary” for Immigration and Customs Enforcement to come get those flagged for deportation.

I agree.  Cooperation with the Feds is a two-way street; the Feds have to work with the locals, too.

[New Sheriff Paul Penzone] won’t hold immigrants flagged for deportation by federal authorities past their release date in a major policy change.

He can’t, with any legitimacy.  ICE will need to do their part and move faster even as Penzone continues to cooperate fully with them.

Penzone said ICE officers will remain in his jail to screen everyone who is booked, but he will no longer detain inmates past their release dates to accommodate the agency.

They’re Already Paying

Posted on by
Reply

Hundreds of people in the Mexican border city of Ciudad Juarez gathered on the edge of the Rio Grande River on Friday to form a “human wall” to protest US President Donald Trump’s plans for a wall between the countries.

Thanks for the assist, Protestors.  As we both know, the wall is necessary—metaphorically if not literally—in order to control our borders, regardless of who pays for it.  Just be sure, guys, that you leave openings in it for easy, legal border crossing, just as we intend to do.

Who Works for Whom?

Posted on by
Reply

John Curtice, writing in The Guardian, in the land where John Locke was borne, seems confused on the question.  His proximate piece is his missive on the nature of referenda in Great Britain.  He began that piece with a false premise of very large proportion, and that—as false premises are wont to do—set the tone for the rest of his op-ed.

In the Commons debates on Brexit during the last fortnight, many MPs have found themselves voting for something they do not believe in. Instead of being their constituents’ “representative”, they now appear to be no more than the people’s “delegate”.

Yet, what else can a representative of constituents be but their delegate?  Unless Curtice means an MP must be the front for their constituents—to “represent” by doing in Parliament what he deems best for them regardless of what they might think is best for themselves.

The thing went downhill from there; he identified four aspects of the referendum on Great Britain’s choice to go out from the EU or to remain within its confines that he considered “cause for concern.”

First, the promise to hold one [the Brexit referendum] was only made because David Cameron found it politically convenient to do so.

Because that motive somehow invalidates the concept of the British people having a voice.  Sure.

Second, the campaign period was relatively short. Only five months….

Because a mere commoner is just too ignorant or stupid to understand a simple question like “Do you want to stay in the EU or go out from it?” unless their betters, their…MPs…and the Curtices of the nation complexify the thing and then “explain” it to them.

Third, unlike most previous referendums, voters were being invited to endorse the status quo rather than a proposal for change.

Yeah, that’s a confusing change-up.  Uh, huh.  Oh, and no plan for going out were that choice voted up despite the confusion?  That’s part of the Betters’ effort at complexifying.  The question was go or stay, not what to do if the choice selected were go or stay.

And this:

Fourth, though often forgotten, the EU vote was the second referendum bite at the European cherry. The issue had supposedly been settled by the referendum Harold Wilson called in 1975.

Because once taken, a decision can never be changed.  The grandchildren must never be allowed to change from their grandparents’ path.  Well, I suppose that’d be one way to decomplexify the thing.

…it is time to lay down some systematic rules about when a referendum should be held – and should not.

How else to have the commoners’ Betters keep control of the outcome, after all?

Not allowing referendums to take place when there is no detailed proposal for the change in question might be a good place to start.

Who gets to decide the adequacy of the “detailed proposal?”  Who gets to demand that there be voice of the people, no referendum, until a satisfactory “detailed proposal” is sufficiently in place?  And sufficiently debated (by whom)?

You know who.  Because the people exist just to give the Betters in Government something to do.

Judge James Robart’s TRO

Posted on by
4

Some of you may have heard that Judge Robarts, of the Western District of Washington, has issued a Temporary Restraining Order in favor of Washington and Minnesota (which joined the case after its initial filing by Washington) blocking the Federal government from enforcing President Donald Trump’s Executive Order delaying entry into the US of immigrants from seven terrorist or terror-sponsoring nations in the Middle East.  The EO was intended to create a pause in the flow of people from that area into the US until our vetting procedures could be examined and improved as much as might be.

As Robart described in his order, a TRO must meet all of four criteria, and it’s on the plaintiffs (Washington and Minnesota) to prove that each of those criteria are met.  Those criteria are (Robart cited two sets of criteria; they’re functionally the same, per Robart; below is the more detailed description) [quotes omitted]:

(1) that he is likely to succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and ( 4) that an injunction is in the public interest.

Robart then ruled that the plaintiffs had met these criteria:

The court finds that the States have satisfied these standards and that the court should issue a TRO. The States have satisfied the Winter test [the more detailed test described above] because they have shown that they are likely to succeed on the merits of the claims that would entitle them to relief; the States are likely to suffer irreparable harm in the absence of preliminary relief; the balance of the equities favor the States; and a TRO is in the public interest.

So far, so good.  Then Robart provided his rationale for this finding.

Specifically, for purposes of the entry of this TRO, the court finds that the States have met their burden of demonstrating that they face immediate and irreparable injury as a result of the signing and implementation of the Executive Order. The Executive Order adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel. These harms extend to the States by virtue of their roles as parens patriae of the residents living within their borders. In addition, the States themselves are harmed by virtue of the damage that implementation of the Executive Order has inflicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injury to the States’ operations, tax bases, and public funds. These harms are significant and ongoing. Accordingly, the court concludes that a TRO against Federal Defendants is necessary until such time as the court can hear and decide the States’ request for a preliminary injunction.

That’s it.  No substantiation, nor even claim, that the plaintiffs are likely to succeed on the merits, no substantiation, nor even claim, that balance of equities tips in favor of the plaintiffs, no substantiation, nor even claim, of public interest.  Only a claim that irreparable harm is likely absent a TRO—but even here, there’s no real substantiation, just a repeat of the States’ claims.

We’re simply supposed to accept the single, superficial claim of harm as by itself satisfying the other three criteria.  But what about that (I’ll come back to the claimed harm in a bit)?

Likely to succeed on the merits?  Based on what? Robart has failed to present any merits other than his repetition of plaintiffs’ claims.

Balance of equities tips in favor of the plaintiffs?  Suppose, arguendo, that the claimed harms are real.  There was no investigation into balance, no presentation in this TRO that the Federal government’s interest in the nation-wide public’s welfare, the nation’s security, is outweighed by this harm.

And that public interest: see above; Robart didn’t even look into that, or if he did, he chose to omit the outcome of that enquiry from his order.

Now about those harms the States are alleging and that Robart apparently simply accepted withut question.  The Executive Order adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel.  In what way?  Robart declined to say.  Further, a 90- to 120-day delay in reentry into the US imparts no serious education harm, only a delay for those students involved.  This is an inconvenience, not a harm.  To the extent the delay impacts employment (unidentified, but lets assume of the delayed immigrants), that’s a matter between the employee and employer, and to the extent legal relief is appropriate here, that is a separate case.  Freedom to travel?  That’s what borders are: no non-citizen has freedom to travel across borders; noncitizens—even visa holders—must have the permission of the receiving nation prior to entering.  Furthermore, existing permission—those visas—can be suspended or revoked at the receiving nation’s discretion.  Family relations?  Sure, these will be interrupted, and that’s a serious inconvenience.  But it’s only an interruption, and it cannot outweigh the Federal government’s interest in the welfare of all of the public or its interest in the nation’s security.

The extension of these individual harms to the States is too far a reach.  The States by virtue of their roles as parens patriae of the residents living within their borders, indeed, but the people whose travel is being interrupted aren’t known to be residents.  Many of them may well have established residency, but there was no showing that all of them have or even a showing that a significant fraction of them have.  (From this, it’s even not clear that the States have standing to bring their suit—another matter unsubstantiated here.)

Clearly, these matters affect only a subset of the delayed travelers, to the extent they affect any—yet Robart’s order lets in, without delay, those unaffected, too; the TRO is not properly limited to those claimed to be harmed.

The States themselves are harmed by virtue of the damage…inflicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injury to the States’ operations, tax bases, and public funds?  This is an even bigger reach.  Any students affected by the EO are so few in number as to be a drop in the bucket compared to the schools’ populations.  Nor are the States’ governments’ or government facilities’ materially harmed—nor even trivially harmed—by the delayed entry of these travelers.  Robarts declined even to say how these delays impact public revenues.

This is a bad, wholly unsubstantiated TRO, and it should be dismissed out of hand.