leaders that lie to the people about the Constitution

[Pete at Home]

Does anyone have any argument to support the assertion that the Constitution prohibits Congress from creating a test of religion to foreigners seeking to enter the country?

Does the constitution have any blanket clause prohibiting Congress from doing something that is morally wrong?

Is it a good thing for elected federal leaders to lie to the people about what  the Constitution says?

[Pyrtolin]

I don't think that position is directly supported. But It's not an unreasonable to say that the first amendment implies that protection.

On the other hand this:

but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Seems to be what people cite, which is not really applicable, because I don't think you can bend the concept of "public trust" enough to include immigration status.

Far better to make the argument based on interpretation of the 1st Amendment, even if it's purely a matter of interpretation at that point.

[Pete at Home]

If the first Amendment affects immigration then it should also prevent the no fly rule from operating based on someone's publications or affiliations. See the problem?

[Wayward Son]

Perhaps you could provide a link so we could see exactly what brought about this accusation of Federal leaders lying about the Constitution (i.e. the specific lie you are talking about).

Until then, I would have to agree with Pyrtolin; creating a religious test smacks of establishing a "state religion."  Why would one religion (let's say, Christianity or Buddhism) be "more equal" than another (say Islam or Judaism)?  Why would anyone consider any individual more or less worthy of coming into this country based on their general religious belief?  Especially when most religions have such broad beliefs that some members consider others not even to be part of the religion! 

And while the Constitution does not prohibit Congress from doing something that is morally wrong, I think there is a general prohibition among the electorate from doing so.

(Besides, Pete, who actually determines that any given interpretation of the Constitution is a "lie?" )

[D.W.]

Lets say the issue was forced (and I kinda think it should be).  What changes?  They (those attempting to restrict or stop Muslim immigration or asylum seeking) shift to targeting "people from areas with strong terrorist presence as they represent a security risk."  There, no direct mention of religion, problem solved!  But wait, we want to let in the Christians...  Hmm.  Well, we could make allowances for persecuted classes of people from those areas.  Then all we need is for those Christians to be a minority or for any groups of Muslims to be actively killing some of them.  In at least large enough number that the news can build up a strong narrative about it to sway the people here that it needs addressed.

I guess what I'm getting at is, what changes besides the language used?  Now some language flies in the face of "what we stand for as a country" so blatantly that it must be changed.  Policy wise though, does this make a difference?  Is it a lie?  Do we, as a country, just need to have some policies 'framed' properly before we sign off on it and can sleep at night?

[Seriati]

Does anyone have any argument to support the assertion that the Constitution prohibits Congress from creating a test of religion to foreigners seeking to enter the country?

What kind of argument?  Congress certainly put all kinds of unpalatable and racist restrictions on immigration historically, kind of implies they had the authority.  The actual limits would be based on the free exercise clause, which is tough to use here.  To me the problem is that that immigration is not a right or entitlement.  Congress could bar all immigrants from some or all regions on an arbitrary basis if it chose, but I'd think they'd get overturned by the courts if they did it on a discriminatory basis without some sort of reasonable explanation.  Religious tests would probably not pass mustard, but barring immigrants from the middle east, even with exceptions for say non-muslims facing persecution, would have a good shot.  Probably 5-4 split one way or the other.

Does the constitution have any blanket clause prohibiting Congress from doing something that is morally wrong?

You mean like imposing an obligation on citizens to buy a privately offered product?  Apparently not.

Don't think you can get an absolute agreement on moral right and moral wrong, makes it hard to measure the Constitution against it.

Is it a good thing for elected federal leaders to lie to the people about what  the Constitution says?

No.  However, that's the wrong question, the right question is whether they will be held accountable for it.

[Pete at Home]

" Congress certainly put all kinds of unpalatable and racist restrictions on immigration historically, kind of implies they had the authority"

agreed.  To my knowledge no immigration restriction has held to be unconstitutional.
If the USA could declare war on the Mormon church (as occurred in the. 19th century) it can certainly, say, restrict immigration of persons who believe that DAESH is Allah's grand Caliphate, or that Khomeini is a holy man, etc.

[AI Wessex]

I don't see what the 1A has to do with immigration.  That is an executive function and can be constrained however the INS rules dictate.  If it can't be restrained, then quotas would also be in violation.  Nobody is claiming that what Trump is proposing technically breaks any laws, but that it violates the spirit of American principles.

I've heard FOX talking heads argue that what Trump did is no different from what Carter did during the Iran hostage crisis.  They were very different things.  Carter sought (successfully) to deport Iranians who came to the US on student visas and overstayed the time allowed or dropped out of school.

[Seriati]

Carter sought (successfully) to deport Iranians who came to the US on student visas and overstayed the time allowed or dropped out of school.

Not going to say it was the same thing, but Carter also prohibited any Iranians from being issued visas and coming into the country (with exceptions).  Are you trying to imply otherwise?

[AI Wessex]

Carter sought (successfully) to deport Iranians who came to the US on student visas and overstayed the time allowed or dropped out of school.

Not going to say it was the same thing, but Carter also prohibited any Iranians from being issued visas and coming into the country (with exceptions).  Are you trying to imply otherwise?

Carter's visa policy was this:

Fourth, the Secretary of Treasury [State] and the Attorney General will invalidate all visas issued to Iranian citizens for future entry into the United States, effective today. We will not reissue visas, nor will we issue new visas, except for compelling and proven humanitarian reasons or where the national interest of our own country requires.

The visa ban was not complete and was confined specifically to Iranian citizens, with which country we were effectively in a very hostile government supported hostage crisis fueled by their internal revolution that used strong anti-American rhetoric.  Carter's action was a harsh non-military tactic taken for justifiable reasons aiming for a well-defined objective.  Trump's Muslim ban is a far cry from that kind of reasoned action, and is entirely a xenophobic over-reaction that will lead to crazies doing harm against Muslims already in the US and will advance the ISIS agenda abroad.

[Pete at Home]

I agree that a ban on all Muslims immigrating would be an overreaction.  However, I do think that a more specific religious test for entry would be appropriate, denying entry to those who think ISIS/DAESH is the true Grand Caliphate, and to those that revere Ayatollah Khomeini, etc.

[Seriati]

So in other words AI Wessex, exactly what I said it was. 

[D.W.]

Why Pete?  Do you honestly believe that there will be those who's beliefs will not allow them to lie on that score if they did believe it?  So you embarrass or offend some and get to force some to lie?

Is there an interpretation of the Koran which forbids them to lie about such things?  I'm pretty sure there is an interpretation that gives a nod to lying to the enemy if the need arises.

Keep religion the F away from immigration.  Let's at least pretend to separate church and state now and then.  If we can't help ourselves on that front, then at least we should come up with policy that may have some practical application or benefit.

[Pyrtolin]

I don't see what the 1A has to do with immigration.

Not on immigration directly, but on the free exercise of religion. A religious test on immigration would be a de facto limit on free exercise.

(Limits based on county of origin, race, political affiliation, etc... are different matters, not relevant to 1st amendment questions.)

[Seriati]

I don't see what the 1A has to do with immigration.

Not on immigration directly, but on the free exercise of religion. A religious test on immigration would be a de facto limit on free exercise.

It would not, which is why I covered that in my initial response.  There is no bar on free exercise, unless you believe that a non-citizen has a right or entitlement to immigrate.  Now if they were removed for conversion after they arrived, you might be able to swing that argument.

The only reason I think this wouldn't clear the court as a religious bar is that we find that kind of limitation repugnant on its face and I believe the courts would go to great lengths to construct a remedy.

[AI Wessex]

So in other words AI Wessex, exactly what I said it was.

It happens!

[Pete at Home]

Why Pete?  Do you honestly believe that there will be those who's beliefs will not allow them to lie on that score if they did believe it?  So you embarrass or offend some and get to force some to lie?

Is there an interpretation of the Koran which forbids them to lie about such things?  I'm pretty sure there is an interpretation that gives a nod to lying to the enemy if the need arises.

Shall we get rid of all laws just because people can lie?

If they lie, at least they won't openly proselytize Isis and Khomeini.  And Americans won't be forced to be culturally sensitive to Khomeini's goat *censored*ers. Forced to take Khomeini out of the books as an historical terrorism supporter just because some immigrants think he's a holy man. 

Besides, you can be caught in a lie.  A rule that reduces 15% of Isis/Daesh trash would be worth it.

Freedom of religion should not mean America is not free to reject dangerous Isis corpse *censored*ers and Khomeini goat *censored*ers.  If an American wants to pick that *censored* up the first ame dent protects, but we don't have to let the losers in.

[NobleHunter]

I'm really not comfortable with ideological tests for immigrants. I'm not fond of racial or nationality tests but they're reasonably objective and would be quite difficult to do away with. Ideology is harder to pin down and allows for greater obfuscation and unequal application of the law. It sets a bad precedent: today, Daesh and Khomeini gets you stopped; tomorrow, you need to swear on the Bible. It strikes me as likely to result in unpleasantness.

If they lie, at least they won't openly proselytize Isis and Khomeini.

Once they're in, it'd be hard to stop them. If they've made it through immigration, it'd be fiendishly difficult to prove they'd lied.

[AI Wessex]

The truly good reason not to be comfortable with people's ideological statements is that they are tied to nothing.  Jeb Bush said only Christian refugees should be allowed into the US.  When asked how to know if someone is Christian he basically said, just ask them, we'll know.  How many people will goof up and admit that they are ISIS sympathizers and only realize their mistake later upon reflection after their application is denied? 

The only way to prevent anybody objectionable from entering the country is to deny entry to everybody.  But, since the husband in the San Bernardino shootings was a natural born citizen from Chicago, a hotbed of Democratic Party activism, lawlessness and insurrection in the US, we'll have to flush out undesirable citizens across the entire country, too.  If some on the right have their way, that could amount to about half of the adult population being escorted to the nearest doorway built into the new wall.  In a twist on a favorite Republican meme, first they came for your voting records, then for your donation history, then for ...

[Pyrtolin]

It would not, which is why I covered that in my initial response.  There is no bar on free exercise, unless you believe that a non-citizen has a right or entitlement to immigrate.  Now if they were removed for conversion after they arrived, you might be able to swing that argument.

A non-citizen has the right to practice their religion freely. They don't have the right to immigrate, but putting a religious test on immigration does bar them from free practice if they wish to immigrate. There are relevant, legal grounds to deny people that might be dangerous from immigrating. Nominal religion is not one of them because Congress explicitly and the rest of our Government implicitly is restricted from judging them on those grounds, whether they're citizens or not.

The first Amendment isn't a positive right; a direct protection or empowerment of people, it's negative right- a limit on the use of power, so it applies regardless of citizenship.

[Wayward Son]

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...

Let's turn this around for a moment.  Congress passes a law that states that Christians cannot immigrate into the U.S. because "this is a traditionally Muslim nation."   Anyone who is here already can worship whomever they please; but we don't want any more Christians because it might affect the Muslim character of our country.

Does anyone want to argue that such a scenario is not an "establishment of a (state) religion?"

If banning Christians because they are not Muslim enough would be an establishment of religion, why would the opposite not be?

[Pete at Home]

Rather shocking for Jeb to say take in only Christians (if that is what he said) when the Yazidis have been persecuted even more.

Do I really need to rebut the assumptions that
 (1) a prohibition on immigration of ISIS sympathizers would rely solely on a check list form
(2) it's bad form to hurt the feelings of people that want to kill us.
(3) any measure that merely reduces a threat is useless because it doesn't eliminate the threat completely.
(4) People who hold homicide as an article of faith are merely "objectionable" like folks that chew with their mouth open and talk at the movie theater.

I hope that such assumptions need no rebuttal, and don't know of a polite non sarcastic way of responding other than holding them up to the light of day.

I certainly hope that O man's admissions process for Syrian refugees involves more than a checklist form.

[Pete at Home]

@wayward

The traditional Muslim nation is false but merely precatory language, so the court would have to let that slide as a political question.  The law would be constitutional.

the fact that allies constitutional does not mean that it's a good law. most of the legal commentators are saying Trump's proposal is constitutional but stupid and creative of the spirit of America.

[Pete at Home]

It would not, which is why I covered that in my initial response.  There is no bar on free exercise, unless you believe that a non-citizen has a right or entitlement to immigrate.  Now if they were removed for conversion after they arrived, you might be able to swing that argument.

A non-citizen has the right to practice their religion freely. They don't have the right to immigrate, but putting a religious test on immigration does bar them from free practice if they wish to immigrate. There are relevant, legal grounds to deny people that might be dangerous from immigrating. Nominal religion is not one of them because Congress explicitly and the rest of our Government implicitly is restricted from judging them on those grounds, whether they're citizens or not.

The first Amendment isn't a positive right; a direct protection or empowerment of people, it's negative right- a limit on the use of power, so it applies regardless of citizenship.

You can argue that because you have no real training. If Obama argued it, it would be a lie, because he went to law school.

[AI Wessex]

Rather shocking for Jeb to say take in only Christians (if that is what he said) when the Yazidis have been persecuted even more.

Here.

[Pete at Home]

Congress has specifically opened up spots for Jews to immigrate from the USSR and other lands. That's a religious test.  So religious tests for immigration have been done for decades.  Trump's proposal might be argues irrationally vague and thus failing the rational basis test.  But there's no serious constitutional argument against ISIS adherents and Khomeini worshippers.  (Khomeini-twits would argue they don't worship k man but they claim that k can be "blasphemed" which sounds like worship to me.)

[Pete at Home]

Rather shocking for Jeb to say take in only Christians (if that is what he said) when the Yazidis have been persecuted even more.

Here.

your link says: "The Republican presidential candidate says he thinks some Syrian refugees, such as orphans and Christians, should be allowed into the United States after they are vetted."

" some Syrian refugees, such as orphans and Christians"
=\= "only Christians."

He says orphans (including Muslim) and Christians and unspecified other groups should be let in after vetting.

Not what you said he said.


I'm simply saying that we should make an effort to exclude al Qaeda sympathizers, Isis sympathizers, and goat*censored*ing Khomeini-heads.  I found your arguments against my exclusions ... lacking. See above.

[Wayward Son]

The traditional Muslim nation is false but merely precatory language, so the court would have to let that slide as a political question.  The law would be constitutional.

How about the language that it would change the Muslim nature of our country?  Doesn't that put Islam above all other religions in our country, establishing it as the de facto religion of our nation?

[Pete at Home]

Wayward, either Google the term "precatory language," or search the old forum for the term.

Hint: if the 2ND amendment said,

"Because smurfs are green in the land of Oz, the People's right to bear arms shall not be infringed, "

--the 2ND Amendment's meaning would be unchanged.  Because whatever bull*censored* you put in as the law's justification is "precatory " and not subject to interpretation or review.  If Congress collectively farted while approving the law, that fart would receive more legitimate judicial scrutiny than a precatory phrase.

[Pete at Home]

But if you are suggesting that a congressional declaration that the USA is fundamentally Christian or Muslim, in itself violates the religious establishment clause, you are definite right from a modern interpretation.  I think that Christianity and Islam are too broad to fit what the actual Constitution writers meant by an establishment of religion, but I prefer the broader reading, and think we understand 1a broadly enough to restrict Congress from making prescriptions for religious purposes.  Whether SCOTUS has power of review re immigration is another question, BTW.

[AI Wessex]

your link says: "The Republican presidential candidate says he thinks some Syrian refugees, such as orphans and Christians, should be allowed into the United States after they are vetted."

That's a follow-on comment.  He says before that they they can "prove it".  Not with the vetting process that we have.  His comment is at best muddled, but more likely an empty remark.

[Pyrtolin]

Congress has specifically opened up spots for Jews to immigrate from the USSR and other lands. That's a religious test. 

Was it a religious test or a political persecution test with the fact that their religion is what they were being persecuted for being incidental?

The fact that we've done things on inappropriate lines in the past doesn't make them inappropriate, it's more a testament to the human power of rationalization to bend the meaning of the rules to whatever people want them to be at a given time. I don't think that we should let the fact that people in the past violated what seems to spirit of the rules be an excuse to justify future violations, especially since radicalization and affiliation with political or NGO entities such as ISIS, al Qaeda, the Ayatollah, etc... can be tested for directly without any religious restrictions. It would make sense to ask about certain affiliations based on religion, but that's much, much different than using the religion itself as a qualifying test.

[Pete at Home]

"Was it a religious test or a political persecution test with the fact that their religion is what they were being persecuted for being **DISPOSITIVE?"

fixed that for you.

If you can test for religion to protect a persecuted people, you can test for religion to exclude religions who murderously persecute others as an article of faith.

Pyr, ,do you really want to go on record opposing my exclusion of Daesh death cultists?  Or are you going to strawman me as trying to exclude all Muslims a la Trump?
/

[Pete at Home]

Khomeini isn't an NGO, PYR. He's a dead head of state whose teachings include a religious Gaea requiring deceit and terrorism against America, and authorizing child molestation and the ducking of goats to be fed to other villages.

[D.W.]

(3) any measure that merely reduces a threat is useless because it doesn't eliminate the threat completely.

Does it though?  Pete, do you believe such a "test" would have ANY impact, no matter how slight?

Does this relate to your continued use of goat fornicators as a description?  In your opinion are the members of this group so stupid that such a test would "trip them up"?

I'm not trying to suggest you must show respect to those with offensive and dangerous beliefs.  I'm saying you are talking like a rabid crazy person spouting off nonsensical suggestions that would have zero impact. 

Stopping threats or those who idolize those hostile to our way of life from immigrating is something I agree with fully.  Your oath of reputation requirement is just dumb.  The only thing it accomplishes is laying further groundwork for state persecution of any religion that falls out of favor.   Something I must say I'm shocked to see put forward by you given the frequency you remind us of how awful that can turn out.

[NobleHunter]

There's a difference in including someone because of their religion and excluding them because of it.

And while excluding Daesh is good I'm leery about the justification and methodology. It's one thing to say "these specific people are dangerous so we won't let them in" it's another to say "we don't like this religion so we won't let it in."

[Pete at Home]

DW, please reread. I never suggested an "oath of reputation" ! or anything of the sorrt.

I do think an oath would stop «some« violent islamists.  Osama Bin Laden himself expressed horror that the treachery at Fort Hood brought dishonor on Islam since the shooter had made an oath of loyalty.

Ultimately we should remember that terrorism operates on the field of public relations.   Being able to show video interviews of comments that Islamist's consider blasphemous from the mouthes of actual terrorists would help to discredit DAESH and hamper future recruiting.

Also, I think a lie detector with cleverly phrased questions would trip up a significant minority of Daesh members and an even higher percentage of DAESH sympathists.

Pyr, obviously America's greatest threat at this time comes not from DAESH affiliates but from DAESH sympathizers. Boston, San Bernardino, etc are not political affiliates but fellow believers.  As best we can we need to exclude Islamist's to whom the ISIS/DAESH message resonates.

If SCOTUS rules that my proposal is unconstitutional, then that will be a new doctrine, and Christians would benefit from a strengthened first Amendment. So by all means let's put it to the test

[Pete at Home]

There's a difference in including someone because of their religion and excluding them because of it.

And while excluding Daesh is good I'm leery about the justification and methodology. It's one thing to say "these specific people are dangerous so we won't let them in" it's another to say "we don't like this religion so we won't let it in."

People who believe that DAESH is the grand Caliphate are dangerous people.  I don't like the Yazidis religion but they are safe and persecuted people so I say let them in, hell give them first priority even over Christians and Jews. 

" There's a difference in including someone because of their religion and excluding them because of it"

This is what the law calls a distinction without a difference.  If it were a notification law, the first would violate establishment of religion while the second would violate religious freedom.  But as immigration rules, neither clause affects Congress' plenary immigration power.

[AI Wessex]

Congress has specifically opened up spots for Jews to immigrate from the USSR and other lands. That's a religious test. 

The US also turned away at least one boatload of hundreds of Jews fleeing the Nazis in 1939.  The ship went back to Europe and many of those on board were subsequently killed in the holocaust.  Our country has no formal guidelines for accepting refugees.  We have abused the principles of humanitarian charity toward people seeking safety from tyranny at least as often as we have upheld them.

[Pyrtolin]

If you can test for religion to protect a persecuted people, you can test for religion to exclude religions who murderously persecute others as an article of faith.

In fact, you can test for people who murderously persecute others for _any_ reason without regard to faith. And then you don't need to bring faith into it.

Pyr, ,do you really want to go on record opposing my exclusion of Daesh death cultists?  Or are you going to strawman me as trying to exclude all Muslims a la Trump?
/

Daesh is an entity unto itself without regard to religion. The fact that it has a nominal religious affiliation is irrelevant. Daesh is not a religion unto itself, and the reason that it comes under scrutiny has nothing to do with its religion, but with its practices.

[Pyrtolin]

Khomeini isn't an NGO, PYR. He's a dead head of state whose teachings include a religious Gaea requiring deceit and terrorism against America, and authorizing child molestation and the ducking of goats to be fed to other villages.

Indeed. He's a political entity. Hence the word "or" above between "political entity _or_ NGO" inserted to head off exactly this kind of beside-the-point pedantry.

Though I was expecting to have to deal with it over al Qaeda, which is why I qualified NGO in the first place.

[D.W.]

I do think an oath would stop «some« violent islamists.  Osama Bin Laden himself expressed horror that the treachery at Fort Hood brought dishonor on Islam since the shooter had made an oath of loyalty.

Fair enough.  Maybe I'm wrong and it would work.  We are so far removed from an honor based society of that type I guess it just doesn't click with me. 

I have trouble justifying someone who wouldn't break their word with someone willing to go to such extreme measures to combat their enemies.  Honorable is not a title I would ever even consider using for someone who resorts to terrorist tactics.

[Pyrtolin]

Pyr, obviously America's greatest threat at this time comes not from DAESH affiliates but from DAESH sympathizers. Boston, San Bernardino, etc are not political affiliates but fellow believers.  As best we can we need to exclude Islamist's to whom the ISIS/DAESH message resonates.

Indeed, and we can make a clear set of standards regarding what's problematic there without systematically discriminating against Muslims or even mention one word about religion, especially as ISIS was so kinds as to declare itself a political state, against whose active subscriopption to which we can discriminate to our hearts content.

[NobleHunter]

The constitution says what the government can do, I'm talking about what it should do. As a general rule, I don't think it should make immigration decisions based on religious beliefs or ideology. I'm not even sure it is capable of making those decisions effectively.

[Pete at Home]

The Muslims I have personally known were incredibly honorable.  Once they felt they owed a debt of honor, they would go to great lengths to honor it.

This is why Islamist's like Khomeini and Dhaesh have disgraced and harmed the Muslim people by leading many to behave dishonorably in the name of Islam.  Using honor based exclusions and filming and recording immigrant applicants, would be a powerful weapon in the war against Islamism.
The question of whether it is OK to break an oath of allegiance or even to blaspheme in order to wage Jihad, is an issue that divides even hardcore Islamists.

Furthermore, by presenting an honor system, we actually emulate some of the more desirable aspects of Muslim culture, which strengthens the position of moderate Muslims.

[Pete at Home]

The constitution says what the government can do, I'm talking about what it should do. As a general rule, I don't think it should make immigration decisions based on religious beliefs or ideology. I'm not even sure it is capable of making those decisions effectively.

As a *general* rule I tend to agree. But in extremis, there is no other way that a democratic society can peacefully survive alongside totalitarian societies that have power to brainwash tens of thousands of people then force them to emigrate.

[Pyrtolin]

I've been fascinated by the reports regarding Daesh fighters and aversion to being killed by women. Almost makes opening our front line combat roles to women a valuable strategic move.

[NobleHunter]

There is no other way that a democratic society can peacefully survive alongside totalitarian societies that have power to brainwash tend of thousands of people then force them to emigrate.

When they actually start doing that, then I'll worry.

[Pete at Home]

@ Pyr
Yes.  And the Kurds are way ahead of us there.  (The Kurds are exhibit One why trump's proposal, even if constitutional, is moronic.) We need to do more to arm the Kurds.  Perhaps the Kurds should teach Americans how to better treat the wo.in in the ranks ... we have some problems in that area ...

[Pete at Home]

There is no other way that a democratic society can peacefully survive alongside totalitarian societies that have power to brainwash tend of thousands of people then force them to emigrate.

When they actually start doing that, then I'll worry.

Were you napping? It's been done.