Sunday, June 19, 2016

The United States Supreme Court on Immigration Law

"I had always hoped that this land might become a safe and agreeable asylum to the virtuous and persecuted part of mankind, to whatever nation they might belong." - George Washington

"It's ironic that those who till the soil and cultivate and harvest the fruits, vegetables, and other foods that fill your tables with abundance have nothing left for themselves." - Cesar Chavez

"What makes someone American isn't just blood or birth, but allegiance to our founding principles and faith in the idea that anyone, from anywhere, can write the next chapter in our story." - President Barack Hussein Obama

        On November 20, 2014, President Barack Obama unveiled plans for a controversial new executive action on immigration. As of that date, it was estimated that at least eleven million undocumented immigrants were living in the United States. Further, the Republican Party and the Democratic Party agreed that the existing system used to process incoming immigrants was broken and in serious need of corrective action. The program that  President Obama proposed, to be enacted by executive order, had two main components to it. First, it would offer a legal reprieve to the undocumented parents of U.S. citizens and permanent residents who have resided in the country for at least five years. They would receive legal immunity, which would remove from their daily routine the constant and fearful threat of deportation, as well as, the horrible risk of turning their children into instant orphans. Many would also now be able to apply for resident worker permits, so that legal immunity would only have to be used as a temporary measure. Second, it would expand the Deferred Action for Childhood Arrivals (DACA) program, created in 2012, which allowed young immigrants under thirty years of age, who arrived as children, and who are now in the United States legally, to apply for a deportation deferral. President Obama's proposed action would have extended this to immigrants older than thirty, as well as, to many recent immigrant arrivals, so that they too could apply for deportation deferral. The proposal had a few other measures, as well. It would have established a program which was meant to speed up the visa application process for people who invested in the US economy, as well as,  to those people who pursued science, technology, engineering, and math degrees in college. It also would have modified federal immigrant detention procedures, as well as, adding resources to bolster physical security at the border. Check out, "Your Complete Guide to Obama’s Immigration Executive Action," for further details.
        This generous and forward thinking plan has been stalled; however, because of intensely heated resistance from the states. Lead by Texas, twenty-five other states have taken the President’s proposed executive action to federal court. On May 26, 2015, they were granted a stay on the implementation of the program by a federal judge in federal district court, State of Texas, et al, v. United States of America, et al, USDC, Southern District, Texas, Civil No. B-14-254 (2015). These states were arguing that the measures proposed by the President would prove to be an undue burden on state agencies as they attempted to handle the increased case load that they said would overload their systems with unlimited amounts of immigrants. They argued that this was the case because it was estimated that the measure would affect roughly four million of the eleven million undocumented immigrants accounted for as of the date of the case. They also argued that the President's executive action was overstepping his legal authority and encroaching upon the rights of the various states to govern their own affairs. As a result of the state's resistance, so many people and families are facing traumatic separations that at the urging of the President, the Supreme Court heard the case this past spring and will likely to be delivering a final ruling by the end of June. Meanwhile, the national debate over immigration is growing more sensitive by the day. One of the people drawing public attention to the topic is Donald Trump. However, his comments have been less than reputable, as he has publicly blamed Mexico for the sending their worst to us and accused all undocumented immigrants in the country of being criminals and rapists. On of his most famous comments on the issue, to date, are that he intends to build a wall that he will force Mexico to pay for. Unfortunately, there are a great many Americans that have bought into this nonsense. Most recently, Trump made remarks about a judge that was to hear a Texas fraud case against Trump University. He said he wanted a new judge because he felt that the judge being a Mexican was a conflict of interest. Remarks like this will only make things harder for new immigrants who simply want work and provide for their families. This is so because such statements could provide impetus for less enlightened Americans, who feel threatened by the presence of immigrants, to engage in what they believe is politically sanctioned harassment of innocent people. 
        Another recent development has also had a major effect on the issue of immigration. The debate over Syrian refugees fleeing the intensified violence created by ISIS in the Middle East has sparked even more political resistance from the states. Nations around the world have taken in refugees in an effort to assist with this humanitarian disaster, but the United States has found itself behind the rest, as misconceptions about the refugees, many of whom are children traveling alone, mount and more people become uncomfortable with the idea. Thirty-one states have filed grievances and requested injunctions against the settling of Syrian refuges in their states, arguing that much like in the pending case against President Obama's executive action, the settling of these refugees will force the states to shoulder an undue burden and will stretch the limits of federalism. In this case, though, they also argue that the refugees are a security risk. They say this so because ISIS has apparently declared publicly that it has sleeper cells in the United States and because of the increased instability in numerous European countries that has followed the arrival of refugees. Interestingly enough, it is the refugees going to Europe who are in greater danger of experiencing violence, as European's irrational fears rise dramatically. Texas plans to pursue this federal action to help Syrian refugees in the courts, as well. On December 2, 2015, they filed suit against the action in the U.S. District Court, District of North Texas. Their hope was to prevent any and all refuges from settling in Texas. Their attempt to block federal action in this issue was temporarily delayed in little over a week. Could this case make it to the Supreme Court, also? The Syrian refugees are technically immigrants, which means that any federal ruling could possibly restrict their chances to become naturalized citizens if they so choose. Though Texas' case was again temporarily halted by a federal judge in February, and again here recently, this does not mean that they will not end up before they Supreme Court. Donald Trump, of course, is doing his best to make them as uncomfortable as possible, while they wait. He has done so by launching a direct attack against all Muslims. He declared that all Muslims should be restricted from entering the United States, that they should not be allowed to serve in the military, and that all mosques in the country should be shut down. This Texas case, though it has been handed several delays, if combined with the case against President Obama's executive action, has the potential to dramatically affect the manner in which people enter this country and to further complicate the debate over states’ rights. Further, there are still several avenues, all of which are time consuming, with which Texas can make federal implementation of the refugee resettlement program a major headache.
        Again, in June, the Supreme Court will be handing down their ruling in the states' case against President Obama's executive action on immigration. For the purpose of this article, it will be assumed that the Supreme Court will be hearing the Texas case against the settlement of Syrian refugees in June, as well. How is the Court going to rule in these cases? Are they going to rule in favor of President Obama, the many immigrants seeking a new life, and the Syrian refugees fleeing chaos, or are they going to reject humanitarianism, and instead, give xenophobia and states' rights a victory? To answer this question, a few things need to be understood first. First, how long has the United States legislated on immigration, and how? Second, what is Plenary Power? Third, what is Judicial Review? Fourth, what is Original Jurisdiction? Fifth, what role have these powers played in the decisions made by the Supreme Court? Sixth, has the Supreme Court ever directly challenged federal immigration legislation? Seventh, what is the Attitudinal Model of Judicial Behavior? This will be the context in which a prediction will be made about how the Supreme Court will rule in the two cases that have been identified here. To bring all of this together, the history of immigration legislation in the United States will be reviewed. Their will also be a discussion on Plenary Power, Judicial Review, and Original Jurisdiction and how they have been used by the Supreme Court in its immigration rulings. Additionally, a number of Supreme Court cases will be reviewed to see how seriously the Supreme Court has taken constitutional challenges to immigration law in the past. Further, Harold Spaeth and Jeffrey A. Segal’s important work, The Supreme Court and the Attitudinal Model Revisited (2002), will be reviewed to provide an understanding of the specifics of the Attitudinal Model. Next, in this context, it shall be argued that the Supreme Court will rule in favor of the federal government in both of the cases in question here; even though the possibility exists that their ruling may intentionally avoid the constitutionality of the actions presently being challenged. Finally, predictions, based on positive rulings for the federal government, will be made about what will happen next, as the states continue their efforts to block federal actions in this realm of policy. The conclusion of this article will tie everything together and seek to answer the question of why the Supreme Court will not strike down unconstitutional, and in many cases, inhumane immigration laws.

Federal Immigration Legislation

        The United States Congress has been legislating on immigration and naturalization from the foundation of this of this nation all the way through to the present day. The first act passed by Congress, in this regard, was the Naturalization Act of 1790, or An Act Providing for the Enumeration of the Inhabitants of the United States (1 Stat. 103), which established the rules for naturalized citizenship, as per the powers granted to Congress by Article One, Section Eight of the United States Constitution. This law limited citizenship to white persons but placed no legal restrictions on the immigration of non white persons into the United States. This was followed up by the Naturalization Act of 1795, or An Act to Establish a Uniform Rule of Naturalization and to Repeal the Act Heretofore Passed on that Subject, (1 Stat. 414), which repealed and replaced the previous law and lengthened the time, in residence, required to become a naturalized citizen of the United States. In 1798, a trio of bills affecting naturalization were passed. Historically known as the Alien and Sedition Acts, the bills were the Naturalization Act of 1798, or An Act to Establish an Uniform Rule of Naturalization (1 Stat. 566), the Alien Friends Act of 1798, or An Act Concerning Aliens (1 Stat. 570), and the Alien Enemies Act of 1798, or An Act Respecting Alien Enemies (1 Stat. 577). The first law repealed and replaced the previous naturalization law. It also doubled the required time of residency for a person to become a naturalized citizen of the United States. The second law authorized the President of the United States to apprehend and deport any resident alien that could be proven to be a dangerous threat to the peace and safety of the United States. This law was given a two year expiration and was not immediately renewed upon expiration. The third law gave the President of the United States the authority to apprehend and deport any resident alien whose home country was at war with the United States. This law was given no expiration and is still on the books as, 50 U.S. Code 21 - Restraint, Regulation, and Removal. The next law passed was the Naturalization Law of 1802, or An Act to Establish an Uniform Rule of Naturalization and to Repeal the Acts Heretofore Mentioned on that Subject (2 Stat. 153). This law repealed and replaced the 1798 naturalization law and indicated that the Alien Friends Act would not be renewed. It also required that all immigration clerks begin collected vital statistics on all incoming immigrants. They were to record things like their name, their age, their nation of birth, and the like.
        Next came the Steerage Act of 1819, or An Act Regulating Passenger Ships and Vessels (3 Stat. 489). This was a simple bill. All it required was that all vessels docking in U.S. ports, which are carrying foreign immigrants, provide the immigration official, usually stationed in the dock master's cabin in a given port, with a copy of their passenger manifest. Following this was, the Naturalization Act of 1824, or An Act of Congress (4 Stat. 69), which granted all minors naturalized citizenship upon reaching the age of twenty-one, provided they had already lived in the United States for five or more years. The next law to be passed wast the Naturalization Act of 1855, or An Act of Congress (10 Stat. 604). This law allowed for the naturalization of alien women who were married to native citizens or naturalized citizens who had been so for ten years or more. It also gave any children born to the couple in the United States, immediate citizenship. This was followed by the Naturalization Act of 1862, or An Act of Congress (12 Stat. 597). This gave immigrant aliens who received honorable discharges, after serving in the US Army during the Civil War, immediate citizenship upon discharge. The Naturalization Act of 1870, or An Act to Amend the Naturalization Laws and to Punish Crimes Against the Same, and for Other Purposes (16 Stat. 254), extended naturalization to all persons of African nativity or African descent. It, however, made no mention of any other nationalities or ethnicities. The Page Act of 1875, or An Act Supplementary to the Acts in Relation to Immigration (18 Stat. 477), was the first truly restrictive immigration legislation passed by Congress. It was the first such law to refer to certain persons as undesirables. Specifically, it targeted anyone coming to the United States, from Asia, to work as a contract, or forced, laborer. This included prostitutes, and failed to account for the possibility that some of the women may have been tricked or coerced into the sex trade. Further, any person from Asia that was admitted to the country had to keep their residency permit papers on them at all times. They could suffer summary deportation, otherwise. The law also levied heavy fines against people bringing people into the country in violation of the legislation.
        Seven years after the passage of the Page Act of 1875, Congress passed an even more restrictive immigration bill. The Chinese Exclusion Act  of 1882, or An Act to Inaugurate Certain Treaty Stipulations Relating to Chinese (22 Stat. 58), barred, for a period of ten years, the immigration of any additional laborers coming to the United States from China. It, further, extended the requirement that all resident aliens from China had to carry their immigration papers with them, at all times, or face summary deportation. It also barred these individuals from ever completing the naturalization process to become citizens. The Chinese Exclusion Act of 1884, or An Act of Congress (24 Stat. 115), extended the suspension on Chinese laborer immigration for an additional ten years and placed tight restrictions on resident aliens and naturalized citizens returning to the United States after short leaves to their home country. The fourth law in a series of seven restrictive laws that specifically mention the Chinese passed in 1888. The Scott Act of 1888, or An Act of Congress (25 Stat. 476), made it illegal for any Chinese resident aliens to leave the country for any reason, unless they were being deported. The law stipulated that if they did leave, they would be permanently barred from ever returning to the country. It is estimated that at the time it was passed, this law stranded some thirty thousand people between nations. Three years later, the Immigration Act of 1891, or An Act in Amendment to the Various Acts Relative to Immigration and the Importation of Aliens Under Contract or Agreement to Perform Labor (26 Stat. 1084), was passed. This law established the office of the Superintendent of Immigration and the Bureau of Immigration in the US Treasury Department. Further, it gave this office the legal authority to enforce US immigration legislation. It also clarified the types of people who were not fit to enter the United States from other nations. Added to the list, which included the Chinese and all contract laborers, were the insane, the poor, persons with criminal records in their homeland, people with severe moral deficiencies, which included known gays or lesbians, polygamists, or anyone that could possibly become a public charge, or burden upon society. The law also established inspection procedures for all immigration stations, whether they be on land borders or in ports. A year later, the Geary Act of 1892, or An Act to Prohibit the Coming of Chinese Persons into the United States (27 Stat. 25), was passed. The sole purpose of this law was to reaffirm and bolster the Chinese Exclusion Act of 1882. In 1893, the Immigration Act of 1893, or An Act of Congress (28 Stat. 7), was passed and required all Chinese resident aliens to apply for yet another round of identification papers. This time, it was with the new Bureau of Immigration.
        The discussion continues with the Naturalization Act of 1894, or An Act of Congress (28 Stat. 124), which added resident aliens that had served in the United States Navy or the Marine Corps to the list of servicemen who received immediate citizenship upon reception of an honorable discharge. This was followed by yet another act targeting the Chinese. The Scott Act of 1902, or An Act to Prohibit the Coming into and to Regulate the Residence within the United States, its Territories, and all Territory Under its Jurisdiction, and the District of Columbia, of Chinese Persons and Persons of Chinese Descent (32 Stat. 176). This was yet another extension and expansion of the Chinese Exclusion Act of 1882. The Immigration Act of 1903, or the An Act to Regulate the Immigration of Aliens into the United States (38 Stat. 1213, 1214), was specifically meant to target dangerous radicals. It named, specifically, Anarchists and Communists. However, the bill also barred people with epilepsy, pimps, and once again, the poor. Next, came the Naturalization Act of 1906, or An Act of Congress (32 Stat. 596), which made English proficiency a requirement for citizenship, revised certain other naturalization regulations, and established the Bureau of Immigration and Naturalization. The Immigration Act of 1907, or An Act of Congress (34 Stat. 1228), once again placed bars on the mentally challenged, the poor, and physically disabled, but it also attacked American born women who married foreign born men. If an American born woman married a foreign born man, she was likely to be stripped of her citizenship. The only way for her to get it back would be to divorce the man in question and then go through the immigration process the same as if she had just entered the country from a foreign nation. The Immigration Act of 1917, or the Barred Zone Act (39 Stat. 874), expanded the range of the Chinese Exclusion Act of 1882 to include India, all of Southeast Asia, the Middle East, and Japan. The legislation also formally banned the entrance of homosexuals into the United States, and made an English reading test mandatory for citizenship. The Immigration Act of 1918, or An Act to Prevent, in Time of War, Departure or Entry into the United States Contrary to the Public Safety (40 Stat. 542), expanded the restrictions on political radicals and public wards. However, it also lightened the requirements for foreign born service members to become citizens. They could now apply for citizenship after just three years of honorable service, instead of having to wait until their discharge. The Emergency Quota Act of 1921, or An Act to Limit the Immigration of Aliens into the United States (42 Stat. 5), was designed to limit the immigration of persons from all over the world even more than was already being done. It limited the quotas for each nation to three percent of their already existing numbers in the United States, per year. The law was extremely biased. It targeted eastern and southern Europe, all of Asia, and Africa with the three percent ratio but gave nations with a lighter complexion a seven percent ratio.
      This lengthy historical trip with federal immigration legislation is not over with quite yet. The Cable Act of 1922, or the Married Women's Independent Nationality Act (42 Stat. 1021), was passed subsequent to the passage of the Nineteenth Amendment to the Constitution, which gave white women in the United States the right to vote. This bill justly removed previous restrictions on American born women that forced them forfeit their citizenship if they married a foreign born man. This was followed by the Immigration Act of 1924, or the Johnson Act (43 Stat. 253), which placed a ceiling on the number of people from any given nation that were able to get visas to enter the United States. This law made the immigration process now start from the US Embassy in their home country. The law placed the harshest restrictions on people coming from southern and eastern Europe, the Middle East, and all parts of Asia and Africa, essentially, wherever the most dark people were coming from. Passed the same year, was the Indian Citizenship Act of 1924, or An Act to Authorize the Secretary of the Interior to Issue Certificates of Citizenship to Indians (43 Stat. 253). This law gave all Native Americans born in the United States citizenship; though, their new status was not accompanied with the right to vote. At the time, the federal government left that task to the states, most of whom, refused to grant Natives the right to vote. The Passport Act of 1926, or An Act of Congress (44 Stat. 87), gave the executive branch of the United States government the right to issue or deny international passports to US citizens based on the appropriate laws already on the books. The Immigration Act of 1929, or An Act of Congress (45 Stat. 1513), ordered immigration officials to issue incoming immigrants a Certificate of Arrival. After this date, an immigrant without one could not become a citizen.
        The Citizenship Act of 1934, or the  Equal Nationality Act of 1934 (48 Stat. 797), is the law that made it possible for a child born to an American citizen overseas to be a citizen by birth, provided the parent had lived in the United States before the birth of the child. The Citizenship Act of 1936, or An Act of Congress (49 Stat. 117), filled the gaps left by a previous bill that had restored US citizenship to women who had been forced to give up their citizenship when they married a foreign born man. In 1940, The Nationality Act of 1940, or An Act of Congress (54 Stat. 1137), and the Alien Registration Act, or An Act to Prohibit Certain Subversive Activities, to Amend Certain Provisions of Law With Respect to the Admission and Deportation of Aliens, to Require the Fingerprinting and Registration of Aliens; and for Other Purposes (54 Stat. 670), were both passed. These two laws were almost entirely war measures passed in preparation for the United States entry into World War II, which had begun just a year before when Germany invaded Poland. The 1940 acts included amended restrictions against Communist organizers. In 1943, some forty years after the passage of the Chinese Exclusion Act of 1882, the Chinese Exclusion Repeal Act of 1943, or An Act to Repeal the Chinese Exclusion Acts, to Establish Quotas, and for Other Purposes (57 Stat. 600), was passed. It repealed the old act and granted all Chinese immigrants in the United States the right to apply for citizenship. Though it can be said that this law righted a historic wrong, it still did not even the playing field, as it also established restrictive quotas for any new immigration from China.
       In 1942, the United States government signed a labor treaty with the Mexican government. This agreement became known as the Manual Laborer, "Bracero" Program. It was a legal agreement that allowed a given number of Mexican laborers to cross into the United States each year with papers giving them permission to work on American farms. They were filling a labor shortage caused by World War II. In 1943, the Farm Labor Act, or Making an Appropriation to Assist in Providing a Supply and Distribution of Farm Labor for the Calendar Year 1943 (56 Stat. 664), was passed to supplement this program. In 1945, 1946, and 1950, four bills, known as The War Bride Acts (59 Stat. 659; 60 Stat. 339; 60 Stat. 975; 64 Stat. 464), were passed. They were passed to make it easier for US troops overseas to come home with the women that they had married while in theater. The latter of the four included any children that they have already had. The Displaced Persons Act, or An Act to Authorize for a Limited Period of Time the Admission into the United States of Certain European Displaced Persons for Permanent Residence, and for Other Purposes (62 Stat. 1009), was passed in 1948. Its goal was to give refugee status to Europeans displaced by World War II. In 1951, the Bracero Program was extended by Public Law 78 - Extension of the Bracero Program, or An Act of Congress (65 Stat. 119). In 1952, the Immigration and Nationality Act, or An to Revise the Laws Relating to Immigration, Nationalization, and Nationality, and for Other Purposes (66 Stat. 163), was passed. It placed a quota on persons immigrating to the United States with certain important skills, and it increased the federal government's power to deport those persons found to be politically undesirable. The law was a direct attack on communists. Strangely, it was another ten years before another bill affecting immigration was passed. The Migration and Refugee Assistance Act, or An Act to Enable the United States to Participate in the Assistance Rendered to Certain Migrants and Refugees (76 Stat. 121-122), began the process by which the United States would accept migrants fleeing communist Cuba. The Immigration and Nationality Act of 1965, or An Act to Amend the Immigration and Nationality Act of 1952, and for Other Purposes (79 Stat. 911), replaced national quotas with annual ceilings, except where the families of American citizens were concerned. In 1966, the Cuban Refugee Adjustment Act, or An Act to Adjust the Status of Cuban Refugees to that of Lawful Permanent Residents of the United States, and for Other Purposes (80 Stat. 1161), gave legal immigrant status to Cubans fleeing from Fidel Castro and the new communist government in Cuba. This law supplemented the 1962 act. In 1968, the Armed Forces Naturalization Act, or An Act to Amend the Immigration and Nationality Act to Provide for the Naturalization of Persons Who Have Served in Active Duty Service in the Armed Forces of the United States During the Vietnam Hostilities, or in Other Periods of Military Hostilities, and for Other Purposes (82 Stat. 1343), did exactly as its name suggests.
        In 1975, the Indochina Migration and Refugee Assistance Act, or An Act to Enable the United States to Render Assistance to, or in Behalf of, Certain Immigrants and Refugees (89 Stat. 87), was passed to give the United States government the authority it needed to offer emergency aide to foreign refugees. In such cases, annual ceilings on immigration from the effected region would be waived. In 1980, Public Law 96-212, or An Act to Amend the Immigration and Nationality Act to Revise the Procedures for the Admission of Refugees, to Amend the Migration and Refugee Assistance Act of 1962, to Establish a More Uniform Basis for the Provision of Assistance to Refugees, and for Other Purposes (94 Stat. 102), was passed to do just exactly as its name suggests. It was a clarification of the previous law and made it easier for the President to get a hold of emergency funding to help refugee peoples in need. In 1982, the Amerasian Immigration Act, or An Act to Amend the Immigration and Nationality Act to Provide Preferential Treatment in the Admission of Certain Children of United States Citizens (96 Stat. 1716), was  another law passed to allow American servicemen in Asia to bring home the children that they had had with foreign women while in theater. The Immigration Reform and Control Act of 1986, or An Act to Amend the Immigration and Nationality Act to Revise and Reform the Immigration Laws, and for Other Purposes (100 Stat. 3359), was a law directed specifically at undocumented Mexican immigrants. It was the amnesty law proposed Ronald Reagan that modern Republicans want the people to forget about, but it also placed heavy restrictions on any new immigrants entering the country from Mexico. The Immigration Act of 1990, or An Act to Amend the Immigration and Nationality Act to Change the Level, and Preference System for Admission, of Immigrants to the United States, and to Provide for Administrative Naturalization, and for Other Purposes (104 Stat. 4978), was George Bush, Sr.'s clemency program that modern Republicans want the people to forget about. The Armed Forces Immigration Adjustment Act of 1991, or An Act to Amend the Immigration and Nationality Act to Provide for Special Immigrant Status for Certain Aliens Who Have Served Honorably, or are Enlisted to Serve, in the Armed Forces of the United States for at Least Twelve Years (105 Stat. 555), lengthened the amount of time required for an immigrant to gain citizenship through military service. In 1996, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, or An Act Making Omnibus Consolidated Appropriations for the Fiscal Year Ending September 30, 1997, and for Other Purposes (110 Stat. 2105), was passed. This was an attempt by the Newt Gingrich led Congress to crack down on undocumented immigration. It was an overtly racist and very unsuccessful venture.
        In 2000, what were collectively known as the Bring Them Home Alive Acts (114 Stat. 316; 114 Stat. 2195), were passed. These laws provided an avenue for guerrilla fighters from Laos that fought for the United States in Vietnam to become citizens, and they put money towards bringing American POWs, who had been left behind, home from Vietnam and Korea. In 2004, the National Intelligence Reform Act, or An Act to Reform the Intelligence Community and the Intelligence and Intelligence Related Activities of the United States Government, and for Other Purposes (118 Stat. 3638), was passed. In 2005, the Real ID Act, or An Act Making Emergency Supplemental Appropriations for Defense, the Global War on Terror, and Tsunami Relief, for the Fiscal Year Ending September 30, 2005, and for Other Purposes (119 Stat. 302), was passed. In 2006, the Secure Fence Act, or An Act to Establish Operational Control Over the International Land and Maritime Borders of the United States (120 Stat. 2638), was passed. These three laws were passed in close succession of one another to give the federal government more power and resources at the borders to stop both undocumented immigrants and suspected terrorists from entering the country. In 2015, the Adoptive Family Relief Act, or An Act to Amend the Section 221 of the Immigration and Nationality Act to Provide Relief for Adoptive Families from Immigrant Visa Fees in Certain Situations (129 Stat. 561), was passed to help expedite the process of bringing children adopted by United States citizens into the country and to grant those children citizenship. The point behind what one can only imagine has been an incredibly tedious exercise, was to show two things before taking the discussion on to the role of the Supreme Court on this issue. First, as per Article One, Section Eight of the US Constitution, which was mentioned at the beginning of this listing, the relevant sections of which read, Congress shall have the power "to establish a uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States," and Congress shall have the power "to make all Laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof," had to be shown so that it would be clearly understood that Congress has the all constitutional authority it needs to legislate on the issue of immigration. This is especially so given the possibility of engagements with agents of foreign, and at times, belligerent governments. Second, of all the issues that Congress legislates on, one can clearly tell that immigration and naturalization are near the top of the list of the issues that Congress finds the most important. It is with this knowledge that the discussion now moves on to defining Plenary Power, Judicial Review, and Original Jurisdiction, as well as, explaining the role that these powers play in the Supreme Court's decision making process when immigration cases make it to their bench.

Plenary Power, Judicial Review, and Original Jurisdiction

        Plenary Power is the separate identification, definition, and complete vesting of a power or powers or authority in a governing body or individual, to choose to act, or not to act, on a particular subject matter or area. The concept is also used in legal contexts to define complete control in other circumstances, as in plenary authority over public funds, as opposed to limited authority over funds that are encumbered as collateral or by a legal claim. This doctrine can go two ways in the cases that are being examined here. First, the Constitution gives Congress the written right to act or not to act on this issue. It has been clearly shown that they have, in fact chosen to act on the issue. Thus, they have exercised their plenary power in this area. However, for the Supreme Court, one might consider the concept of Judicial Review. Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary branch of government. A court with judicial review power may invalidate laws and decisions that are incompatible with a higher authority, such as the terms of a written constitution. Judicial review is one of the checks and balances in the separation of powers. It is the power of the judiciary to supervise the legislative and executive branches when the latter exceed their authority. By this authority, the United States Supreme Court, which assumed this power after the case of Marbury v. Madison, 5 U.S. 137 (1803), might also argue that it has plenary power over the issue of immigration because of its right to review the constitutionality of all federal actions, whether they are legislative or executive. After all, the Supreme Court has ruled on countless laws that were brought to its attention and deemed them to be unconstitutional, and thus, legally unenforceable. They did so in the case of  Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), which ended federal legal endorsement of segregation in schools and put forth the process by which all schools in the United States would be forced to desegregate. The Supreme Court may also claim plenary power by constitutional mandate. Article Three, Section Two of the Constitution grants the Supreme Court Original Jurisdiction, or the power to hear cases for the first time, in legal cases involving the various states and their interactions with foreign nationals, which one could easily argue would make laws governing immigration a hot constitutional topic for the Supreme Court.
        However, as will soon be shown, the Supreme Court has rarely taken on a case that involved a significant constitutional question; and when it did, it did not challenge any immigration laws directly, but rather, usually focused on matters of jurisdiction or procedure. The remainder of the time, when they have ruled in an immigration case, they have kept their decisions limited to the pertinent federal immigration regulations, as determined by Congress, governing the case that they are hearing. John Feere has offered several reasons as to why the Supreme Court behaves this way. In his article, "Plenary Power: Should Judges Control U.S. Immigration Policy?" published by The Center for Immigration Studies in February of 2009, Feere indicated that federal courts, as a whole, will avoid immigration cases based a number of conditions. First, federal courts generally refuse to hear cases that involve policy questions best resolved by elected officials. Second, courts are designed to adjudicate legal issues and simply lack the institutional capacity to make political judgments. Third, the specifics of immigration, how many, who gets admitted, who gets deported, etc., are regulated by federal level political branch policies. If lower courts become too involved in this process and craft unique statutory interpretations, there is a strong likelihood of an inconsistent immigration system developing that varies from one jurisdiction to another. Fourth, from a resource perspective, a court run immigration system would be problematic. Fifth, the Supreme Court has held that due process protections apply when an individual faces punishment in the form of deprivation of life, liberty, or property, but that an alien being returned to his homeland or denied entry to the United States is not being punished and therefore cannot expect the courts to grant him these protections. Finally, the great weight of legal authority, or precedent, is in support of judicial deference to the political branches on the issue of immigration.
        So, the Supreme Court has three sources of power here; Plenary Power, or the power to choose whether or not hear a case; Judicial Review, or the power to review the constitutionality of all federal actions, both legislative and executive; and Original Jurisdiction, or the right to be the first court to hear a case. From what has been learned, so far, it is clear that the Supreme Court does in fact exercise Plenary Power in immigration cases. In fact, they normally exercise that power in two ways. First, they exercise that power when they choose whether or not take on a case; and second, they exercise that power when they routinely refuse to question the constitutionality of specific immigration laws. This ties into the Supreme Court's power of Judicial Review. They are using their their Plenary Power to say that in the case of the specifics of any given immigration law, they are voluntarily waving their right to Judicial Review, which brings in their power of Original Jurisdiction. Just because the court is not going to rule on the constitutionality of a specific immigration law, does not mean that they will not hear a case. Cases that involve the states versus foreign nationals are in the Supreme Court's constitutionally mandated legal authority to adjudicate. Therefore, the Supreme Court does regularly hear immigration cases. What does this say about the two cases in question in this article? It says that the Supreme Court is going to hear the cases, but they are not going to challenge the constitutional merits of the immigration laws that come into play in either case. Nor,  are they going to attempt to determine whether or not the immigrants involved are losing rights which they are not legally beneficent of, in the first place. Their decision will simply be based on the letter of those laws. The only constitutional question that may arise in either case is whether or not there is a jurisdictional or procedural conflict of interest between the affected federal and state authorities. None of this, however, says anything about how the Supreme will rule in either case. All it says is that the Supreme Court will likely hear the cases. Harold Spaeth and Jeffrey A. Segal’s important work, The Supreme Court and the Attitudinal Model Revisited (2002), however, does offer up the necessary tool to make a prediction about how the court will rule in these cases. Their book focuses entirely on the justices political ideologies. However, before delving into that part of the discussion, it would be prudent to review some of the past cases that the Supreme Court has ruled on to get an idea as to how they actually exercise their intertwining set of powers.

Supreme Court Immigration Rulings

        So, it was been established that the Supreme Court does, in fact, hear immigration cases. In fact, considering that the Supreme Court only hears a certain number of cases each year, comparatively speaking, it hears them on a regular basis. There are a few conditions, however. First, if a case involves a substantive political issue that is best left to political officials, the court is not going to hear that case. Second, it is extremely unlikely that the court will challenge a federal immigration law on its constitutional merits.The courts have made this decision because they believe that if the courts get involved in crafting immigration law, too many inconsistencies will develop over time and will thus, make it difficult for the immigration system to function, The only time they will make a constitutional ruling is when there is a jurisdictional or procedural question at play. Third, the court is a legal body; and therefore, they argue that it is not appropriate for them to make political judgments. Fourth, foreign nationals are technically still subjects of the nation from which they came; therefore, the court cannot rule on whether or not their constitutional rights have been violated; as legally, they do not have any constitutional rights because they are not US citizens. They must be judged according to the letter of the law. Fifth, the court does not want to overstep its boundaries in an issue that has been clearly designated, constitutionally, a legislative prerogative. The powers that govern these choices are Plenary Power, in that the court has the choice of what to hear and what not to hear; Judicial Review, in that the court can review the constitutionality of a law if it so chooses, and Original Jurisdiction, in that the Supreme Court has the legal authority to hear all legal cases involving the interactions between officials of the various states or national government and agents, representatives, or subjects of foreign governments. To paint a picture of what Supreme Court decisions on immigration look like, a series of chosen cases will be reviewed. The date range will be from 1837 to 2015, so a broad range of the court's history will be encompassed. At varying points in time, one will also see how the Supreme Court gets indirectly involved in the social issues of the day.
         This exercise will begin with the case of New York v. Miln, 36 U.S. 11 (1837). In this case, the state of New York passed a law requiring that any ship docking in the port of New York surrender a passenger manifest before the persons aboard the vessel would be allowed to disembark. The owners of the vessel, Emily, with William Thompson, the ship's Captain, representing them, sued the state of New York, citing undue burden. There was no mention made of the dispensation of the passengers that were traveling on board the ship. The case was ruled in favor of the ship's investor's, but not because of undue burden. The state law was ruled invalid because it was regulating an interaction with a foreign port and persons of foreign origin. The state had over stepped its boundaries by legislating a federal issue. Here the Supreme Court decided a constitutional issue but not one that challenged the federal legislature's right to govern this issue. In fact, it defended it against state encroachment. Henderson v. Mayor of City of New York, 92 U.S. 259 (1875), is a similar case. In this case, the the city of New York levied a tax on incoming ships. These ships were not allowed to disembark without paying this tax. The commander of the vessel, Ethiopia, representing the British shipping company that owned the vessel took the city to court. The Supreme Court ruled in favor of the shipping company on the same grounds has it had almost forty years earlier in the case of the vessel, Emily. In fact, that case was cited in the court's decision. The case of Chy Lung v. Freeman, 92 U.S. 275 (1875), is another case where the Supreme Court ruled that a state had over stepped its legislative authority. The state of California passed legislation barring what it considered to be lewd and debauched women, from entering the state in any port. Chy Lung, with some twenty other women, arrived in the port of San Francisco, from China, by way of Tokyo, Japan. The state of California's Immigration Inspector would not let them disembark. The women's case went before the courts. The Supreme Court ruled that California was targeting foreign nationals, which was the purview of the federal Congress. The women were released to the custody of a federal immigration official. In each of these cases, the state or city in question was targeting people from a certain nation. They did not want these particular types of people in their state. First, it was the Irish, then the Italians, and finally, the Chinese. Xenophobia was a very common theme during this time period, and no one, at the time, would have judged the court wrong for ruling in favor of the states. However, by upholding federal prerogative, the court indirectly ruled in favor of the immigrants, who were able to disembark and begin their new lives in the United States, despite the xenophobia of the era.
        A great many of the other immigration cases in the nineteenth century were jurisdictional cases like the three mentioned here. However, the twentieth century brought about cases ruled upon by statute and precedent. Statutes are, of course, the laws passed by Congress on the issue. Precedent, not mentioned before, is not a formal power of the Supreme Court. It is, rather, a legal concept; whereby, if there is previous decision made by an earlier court on a subject that the present court is now hearing, they may use that earlier case as justification to hand down a ruling similar to the one rendered in the older case. This can also be referred to as Case Law. The following cases are ruled on primarily by statute and precedent. The case of Commissioner of Immigration v. Gottlieb, 256 U.S. 310 (1924), is a case that was decided by these means. Solomon Gottlieb was a Jewish Rabbi from Palestine who had already been admitted to the United States and obtained citizenship. In 1921, he wanted to bring his wife and child into the country to be with him. They were initially turned back at Ellis Island, but the case was taken to court. The first court denied the request, but Gottlieb appealed the case and his family was granted entry. The Commissioner of Immigration then brought the case before the Supreme Court. The opinion of the court was delivered by Justice Sutherland. Citing provisions of the Immigration Act of 1917 and the Quota Act of 1921, and precedent in the case of Zartarian v. Billings, 204 U.S. 170 (1907), when the court ordered the daughter of naturalized Turkish American, Charles Zartarian, deported back to her homeland, the court reversed the decision of the appeals court and ordered that Gottlieb's wife and child be returned to Palestine. They were quoted as saying, "When the plain words of a statute leave no room for construction, the courts must follow it, however harsh the consequences." In this case, the court stuck with the law and precedent but still found itself caught up, through an immigration ruling, in the social issues of the day. The middle of the 1920s was a period of heavy antisemitism in the United States, which was most clearly visible in the rise of what history knows as the second life of the KKK.
        In the case of United States v. Schwimmer, 279 U.S. 644 (1929), the Supreme Court found that a woman, who was a self proclaimed pacifist, was not fit for naturalization in the United States. The court argued that according to the Naturalization Act of  1894, Ms. Schwimmer had not proven that in a time of need, she would be willing to defend, and if necessary, give her life for her new country. They denied her application for naturalization, despite her education and professional qualifications, stating that she did not display the proper moral character for American citizenship. It is interesting how they applied this to a woman, who would not be legally allowed to serve in a combat capacity if the nation went to war. The court used the case of Luria v. United States, 231 U. S. 9 (1913), where Luria was denied entry on the same grounds, as precedent to confirm their decision to deny Schwimmer naturalization. Her passiveness, however, is not likely what got her denied. Ms. Schwimmer was born to German speaking parents who resided within the boundaries of the recently defunct Austro-Hungarian Empire, a former enemy of the United States, at the time of her birth. They were also Jewish. In the case of Blackmer v. United States, 284 U.S. 421 (1932), Harry M. Blackmer, a US resident of Paris, France, failed to respond to two subpoenas to stand witness in a criminal trial, served while he was preparing to apply for French citizenship. For his failure the appear, the criminal court requiring his testimony ruled him in contempt and filed a request that his passport be revoked so that he would be forced to return to testify. The revocation of his passport was approved. This halted his application for French citizenship because a valid passport from his home country was required for consideration of his citizenship application. Further, the French cooperated with the US government to secure his return to the US to testify in the criminal case to which he had been summoned testify and to answer charges of contempt of court. Blackmer appealed the ruling to the Supreme Court. Citing the Passport Act of 1926, and Cook V. Tait, 265 U.S. 47 (1924), where a US citizen living abroad was determined to still be legally bound by the laws of the United States, despite living in a foreign nation's sovereign jurisdiction, the court denied his claim and ordered him to appear before the original criminal court that had summoned him to testify and answer charges of contempt of court. So, basically, if you are not willing to die, you are not good enough, and once you become a citizen, there is nowhere on Earth you can go to escape the sovereign power of the United States. That sounds eerily Orwellian. 
        In the case of Bridges v. Wixon, 326 U.S. 135 (1945), the Supreme Court again found itself, through an immigration ruling, indirectly involved in one the major social issues of the day. Harry Bridges was a native of Australia that immigrated to the United States in 1920. In 1938, deportation proceedings were instituted against him on the grounds that he both had been and then was a member of or affiliated with the Communist Party of the United States, and that that party advised and taught the overthrow by force of the government of the United States and caused printed matter to be circulated which advocated that course. Under the statute then in force, the Immigration Act of 1903, past membership or past affiliation was insufficient for deportation, present membership or present affiliation being required for deportation. The case could not be made against him at this time. By the Act of June 28, 1940, the Nationality Act of 1940, Congress amended the statute so as to provide for the deportation of any alien who was at the time of entering the United States, or has been at any time thereafter, a member of or affiliated with an organization of the character attributed to the Communist Party in the first proceeding. This produced a second hearing against Bridges. This case made it to the Supreme Court. The court ruled, however that the legal authorities that arrested Bridges in 1938 had done so unlawfully and that his second arrest and subsequent hearings were both unfair. They argued that the immigration agent had misconstrued the meaning of affiliation in a moment of heightened panic. His second hearing had ordered him deported; citing this misinterpretation of the relevant acts and precedent in the case of Vajtauer v. Commissioner, 273 U.S. 103 (1927), where a suspected radical's charges were dismissed on similar grounds, the court ruled in favor of Bridges and ordered that he be released and that all charges against him be dropped. This ruling was counter to the sentiment of the day. Anti-communist fervor was about to go through the roof. However, given that at the time, Russia was still a military ally of the United States against Germany and Japan, the ruling could have also been an effort to avoid inflaming an already sensitive international political situation as World War II was coming to an end.
        In the case of Knauff v. Shaughnessy, 338 U.S. 537 (1950), The alien wife of a citizen who had served honorably in the armed forces of the United States during World War II sought admission to the United States. On the basis of confidential information, the disclosure of which, in his judgment, would endanger the public security, the Attorney General denied a hearing, found that her admission would be prejudicial to the interests of the United States, and ordered her excluded. Mrs. Knauff was born in Germany in 1915. She left Germany and went to Czechoslovakia during the Hitler regime. There, she was married and divorced. She went to England in 1939 as a refugee. Thereafter, she served with the Royal Air Force efficiently and honorably from January 1, 1943, until May 30, 1946. She then secured civilian employment with the War Department of the United States in Germany. Her work was rated as being very good and excellent. On February 28, 1948, with the permission of the Commanding General at Frankfurt, Germany, she married Kurt W. Knauff, a naturalized citizen of the United States. He was an honorably discharged United States Army veteran of World War II. He was, at the time of his marriage, a civilian employee of the United States Army at Frankfurt, Germany. On August 14, 1948, Mrs. Knauff sought to enter the United States to be naturalized. On that day, she was temporarily excluded from the United States and detained at Ellis Island. On October 6, 1948, the Assistant Commissioner of Immigration and Naturalization recommended that she be permanently excluded without a hearing on the ground that her admission would be prejudicial to the interests of the United States. On the same day, the Attorney General adopted this recommendation and entered a final order of exclusion. To test the right of the Attorney General to exclude her without a hearing on the grounds of national security, habeas corpus proceedings were instituted in the Southern District of New York, based primarily on provisions of the War Brides Act. The District Court dismissed the writ, and the Court of Appeals affirmed this ruling, as did the Supreme Court. Citing, 22 U.S.C. § 223 - A Wartime Measure and the Immigration Act of 1924, along with Ludecke v. Watkins, 335 U.S. 160 (1948), where another woman was denied entry, despite the War Bride Acts, as precedent, the court voted to deny Mrs. Knauff's application for naturalization with no adequate excuse given to her and without affording her the proper due process of the law. Of course, it did not help that Mrs. Knauff was from what was, by 1950, the communist nation of East Germany. Here, the Supreme Court made another move that secured their role in the anti communist fervor that was building up in the United States after World War II.
        In 1967, a Supreme Court immigration decision once again put the court in the middle of the nation's social affairs. In the case of Boutilier v. INS, 387 U.S. 118 (1967), the court indirectly involved itself in the gay community's struggle for equality. In this case, Mr. Boutilier first arrived in the United States in 1955. His last date of entry was in 1959, at which point he began the process to apply for US citizenship because the majority of his family was already in the country. However, on his affidavit, he admitted to getting arrested in New York City on charges of sodomy, which was later reduced to simple assault, and then dropped. Mr. Boutilier was then forced to testify to his entire sexual history, where he recounted each of his sexual encounters going back to the age of fourteen. Mr. Boutilier's application for citizenship was denied, and worse for him, he was notified that deportation proceedings had been filed against him. Citing the Immigration and Nationality Act of 1952, where immigration officials believed that the term 'certain psychotic personalities' was meant to refer to homosexuals, the INS ordered Mr. Boutilier deported. He appealed the case. After a period of time used for research, the Supreme Court ruled that Congress had in fact meant for homosexuals to be included in that definition, and they, also under the 1952 act, confirmed the deportation order. Mr. Boutilier objected and argued that the vagueness of this act should void the provision that his sexual preference was a violation of the law. He argued so because he was never made aware of the specifics of the law or the repercussions for breaking it. However, the Court, citing The Chinese Exclusion Case, 130 U.S. 581 (1889) as precedent, responded that Congress was not required to offer such pre warning in cases when the person is considered a threat to the social order, and his objection was overruled. So, the Supreme Court confirmed the order to deport Mr. Boutilier for simply being gay. His choice of love partner, apparently, made him a criminal threat to the good citizens of the United States. It is discriminatory treatment like this that slowly enraged the gay community in the sixties to the point that in 1969, events like the Stonewall Riots were possible. By ruling against Mr. Boutilier the way they did, calling him a psychotic personality and a deportable threat, the Supreme Court; even though it stuck to existing statutes and case law, put itself dead center, with an immigration case, in the middle of the birth of the Gay Rights Movement, a very serious constitutional issue.
        In the case of Al-Karagholi v. INS, 409 U.S. 1086 (1972), Al-Karagholi, a nonimmigrant student, was admitted to the United States in January 1962, with authorization to remain in the country in that status until January 28, 1968. In June 1967, deportation proceedings were initiated against him on the grounds that he had failed to maintain his student status. These proceedings were apparently dropped. Mr. Al-Karagholi was granted until May 21, 1969, to leave the country. On May 13, 1969, his application for reconsideration, wherein he verified his admission to the Washington Technical Institute, was denied. This application was denied by the Special Inquiry Officer on the grounds that the Al-Karagholi's primary interest in remaining in the United States was to work as a street vendor and not to pursue his educational interests. On March 4, 1970, a deportation hearing was held at which time Al-Karagholi was represented by counsel. The special inquiry officer found Al-Karagholi deportable. On appeal, the Board of Immigration Appeals observed that the principal basis for Al-Karagholi's appeal, the denial of his request for an extension of his student visa, was not appealable or subject to review. The argued that all they had to do was notify him of the decision, and if it was a denial, all they had to do was notify him of the charges against him. They argued further that he had no right to an appeal of the decision. In light of this court's decisions, recognizing the fundamental rights involved in deportation, this regulation denies applicants due process of law. The Supreme Court, hearing  Al-Karagholi's next appeal, held that the denial of a motion to reopen a case by the special inquiry officer is reviewable as a final order of deportation. At least one federal district court interpreted had already decided that such cases authorized judicial review of a decision on an issue stemming from a deportation proceeding. The court ruled that an order of the Special Inquiry Officer denying an application for an extension of time under a currently valid visa does operate as a final order and must be subject to judicial review. Citing 8 U.S.C. 214.2(f)(4) - Students in College, Universities, Seminaries, Conservatories, Academic High Schools, Elementary Schools, other Academic Institutions, and Language Training Programs, and the case of Ng Fung Ho v. White, 259 U.S. 276 (1922), where Mr. Ho, also a student, was granted the proper hearings afforded him by the due process of law, the Supreme Court ruled in favor of Al-Karagholi and granted him another hearing. Ultimately, he was allowed to remain in the United States and finish a degree program. Here, for once, the right thing was done. The same made not have happened ten years later.
        The pattern of getting involved in sensitive social issues is not something that the Supreme Court has been able to escape. In the case of INS v. Jong Ha Wang, 450 U.S. 139 (1981), a common theme began to develop in the INS, and the Supreme Court cannot avoid that theme because of cases such as this. This theme was the forced splitting of entire family units. The Wangs were natives and citizens of Korea who first entered the United States in January of 1970, as nonimmigrant treaty traders. They were authorized to remain until January 10, 1972, but they remained beyond that date without permission and were found deportable after a hearing in November of 1974. They were granted the privilege of voluntarily departing by February 1, 1975. They did not do so. Instead, they filed for an adjustment of their immigration status because they argued that departure would cause them financial hardship and cultural hardship for the two American born children that they had while here in the United States. Despite their heavy investment here, and there children's American citizenship status and social acculturation, the Wangs were ordered deported. The court cited the Immigration and Naturalization Act, and the case of Pelaez v. INS, 423 U.S. 892 (1975), to say that since the Wangs had voluntarily violated their first visa, were well educated, and had significant financial resources available to them, they had failed to display any significant hardship that would be caused by their deportation to their home country. The Wangs left their children and their business with family that had already obtain citizenship and went back to Korea to restart the immigration process. Cases like this, which was, technically, a case involving undocumented immigrants, as the Wangs had voluntarily overstayed their first visa, combined with the situation developing on the U.S.-Mexico border, gave rise to the clamor for immigration reform in middle of the 1980s. The resulting action by Congress was the Immigration Reform and Control Act of 1986. Here, again, without moving outside legal statutes and case law, the Supreme Court managed to place itself in the middle of a major political issue of the day. The INS was known for routinely splitting families, which the court helped them to do in this case, and cases like this, along with other factors, pressured Congress to act on the issue of undocumented immigration, which resulted in the passage of the 1986 immigration bill.
        It is important to note that the issue brewing over undocumented immigration did not end in the middle of the 1980s. It is, of course, an issue that is still at the center of American politics. In 1996, the Illegal Immigration Reform and Immigrant Responsibility Act was passed. Before this bill passed, immigration from Latin America had already been heavily regulated. This bill tightened those restrictions even further. Prior to this, one of the motivations for tightening the laws on immigration from Latin America was the constant political instability in those countries that was producing an increased number of refugees that legal authorities were not wanting to allow into the United States for fear that they may spread that instability to this country. Again, in the case of INS v. Elias-Zacarias, 502 U.S. 478 (1992), the Supreme Court found itself in the middle of this affair. Elias-Zacarias, a native of Guatemala, was apprehended for entering the United States without inspection. In his deportation proceedings, the Board of Immigration appeals office determined that he was ineligible for a discretionary grant of asylum. He was requesting asylum because he felt that returning to his home country would expose him to undue persecution at the hands of the guerrilla organization that was conducting forced conscriptions there. After a request for a hearing was granted, the Court of Appeals ruled that a guerrilla organization's acts of conscription constituted persecution on account of political opinion and that Zacarias, therefore, had a well founded fear of such persecution. They granted him asylum. However, the INS appealed this ruling to the Supreme Court. The Supreme Court did not look favorably on his case. Citing the Immigration and Nationality Act, and the case of NLRB v. Columbian Enameling & Stamping Co, 306 U.S. 292 (1939), the Supreme Court argued that first, a guerrilla organization's attempt to coerce a person into performing military service did not necessarily constitute persecution on account of political opinion. Even one who supports the political aims of a guerrilla movement might resist military combat and thus become the object of such coercion. Moreover, persecution on account of political opinion is not established by the fact that the coercing guerrillas had political motives. Second, they argued that the appeals court had overstepped its authority by overruling the decision of the Board of Immigration. The Supreme Court ordered Zacarias deported to Guatemala, where his future was left up to fate. This case, among others helped to provided the impetus for the 1996 bill.
        There is continuing proof that the Supreme Court continues to find itself caught up right in the middle of major social issues, no matter how hard it tries to just stick to the law. Further, remember that this all just how the court has found itself in these position through the lens of immigration law. This article would be much longer if all of the other instances were included. The latest issue that the Supreme Court finds itself involved in is a two part situation. First, there is the supposed, "War on Terror," and then there is case of unjustified, and purely discriminatory, Islamophobia, which throws fear and hatred at an entire religion based on the actions of a few sick independent extremists. The 1990s was marked by the shootings at CIA Headquarters in Langley, Virginia, the basement bomb that went off at the World Trade Center in 1993, and the countless other attacks that had been perpetrated against American allies throughout the world, especially in Israel, the United States' closest ally in the Middle East. The Islamophobia of the era can be seen in the case of Reno v. American-Arab Anti-Discrimination Committee, 525 US. 471 (1999). The Immigration and Naturalization Service instituted deportation proceedings in 1987 against Bashar Amer, Aiad Barakat, Julie Mungai, Amjad Obeid, Ayman Obeid, Nairn Sharif, Khader Hamide, and Michel Shehadeh, all of whom belonged to the Popular Front for the Liberation of Palestine, a group that the Government characterized as an international terrorist and communist organization. The INS charged all eight under the McCarran-Walter Act, which, though now repealed, provided at the time for the deportation of aliens who advocate world communism. They appealed their case, and were given a stay by the district court, who ruled that the case against them was based on their religion and anti-Israel stance, not communism, and was thus, therefore, invalid. However, after that second hearing, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act, which among other things, removed jurisdiction on this issue from the circuit court in which the case was first appealed. In their final hearing, the group was represented by the American-Arab Anti-Discrimination Committee. Citing the 1996 legislation, and referring to the case of Cheng Fan Kwok v. INS, 392 U.S. 206 (1968) as precedent, the Supreme Court supported the INS' claim that the appeals court did not have proper jurisdiction in the case and ordered that everyone be deported, as per the appropriate statutes.
        This, of course, was only the beginning. On September 11, 2001, terrorists associated with the Islamic extremist organization Al Qaeda attacked the World Trade Center in New York City and the Pentagon in Washington, D.C. Another attack was foiled. Unfortunately, as a result of how this world works, and more specifically, how the United States works, these attacks immediately put massive bull eyes on the backs of every Muslim in the entire country. Islamophobia went through the roof, and in several cities, at truck stops and rest stops, and even in the US military, Muslims endured physical assaults, verbal abuse, and legal sanctions. Even though the public displays of aggression soon died down, the legal sanctions against Muslims were only getting started. Once the wars in Afghanistan and Iraq were in full swing, being Muslim made you an immediate terror suspect in the United States. A great many innocent Americans were profiled in this manner, and further, many had to fight for their very right to be here. In the case of Ashcroft v. Iqbal, 556 U.S. ___ (2009), Javaid Iqbal was a citizen of Pakistan and a Muslim. In the wake of the September 11, 2001 terrorist attacks, he was arrested in the United States on criminal charges and detained by federal officials. Iqbal claimed he was deprived of various constitutional protections while in federal custody. To redress these legitimate deprivations, he filed a complaint against numerous federal officials, including John Ashcroft, the former Attorney General of the United States, and Robert Mueller, the Director of the Federal Bureau of Investigation. According to his complaint, in November of 2001, agents of the FBI, as well as, the Immigration and Naturalization Service arrested him on charges of fraud in relation to identification documents and conspiracy to defraud the United States. It was while being held for these crimes that he claimed he was mistreated, and held unjustly for a potential connection to 9-11 that was proved to be unwarranted. He also claimed that because of these unwarranted suspicions, he was unjustly deported before he could file for an appeal against his deportation. Citing 42 U.S. Code (1983) - Civil action for Deprivation of Rights, and Wilson v. Layne, 526 U. S. 603 (1999), when the case made it to the Supreme Court, the court ruled that senior government officials could not be held responsible for the unconstitutional actions of their subordinates, and dismissed Iqbal's case. Iqbal was legitimately in the United States past his visa date, but the FBI could not prove that he had anything do to with 9/11. However, because he was a Muslim from Pakistan, he was deported and his right to a hearing was waived. Further, the Supreme Court upheld this unjust discrimination.
        As of 2015, to a degree, the Islamophobia that produced the two previous rulings had died down, and a good person, who found himself caught up in a monumental mistake, was able to receive justice, like every American should. In the case of Mellouli v. Lynch, 575 U.S. ___ (2015), some justice was done. Moones Mellouli, a lawful permanent resident, pled guilty to two misdemeanor offenses under Kansas law, the possession of drug paraphernalia used to store or conceal a controlled substance and possession of a controlled substance. The Bureau of Immigration Appeals applied a different approach to this drug paraphernalia offense than would have been applied to a case involving a normal citizen. In this case, they ranked Mellouli's paraphernalia charges on the same level as though he had been involved in a massive drug ring. The further reasoned that a paraphernalia conviction, in connection with a charge for the possession of controlled substance, was enough to report Mellouli to the INS. Under this reasoning, there was no need for them to show the type of controlled substance or the paraphernalia in which it was stored, which was, interestingly enough, nothing more than a shoe sock. Upon hearing the case, the Bureau of Immigration Appeals ordered that he be deported. The Supreme Court came down on the good side of this one, however. They argued that the Bureau of Immigration Appeals had inappropriately cited 8 U.S. Code § 1227 - Deportable aliens when they accepted the local police's classification of a sock as drug paraphernalia and the possession of a small amount of pills as the intent to distribute. Correctly citing the same statute, and using Moncrieffe v. Holder,  569 U.S. ___ (2013), another case where the term paraphernalia was taken out of context, as precedent, the Supreme Court overruled the actions of Bureau of Immigration of Appeals and dismissed the deportation proceedings against Mr. Mellouli. Despite, this positive step, recent events appear to be indicative of a resurgence of Islamophobia. On Sunday, June 12, 2016, a gunman killed forty-nine people and wounded fifty-three others at a gay nightclub in Orlando, Florida. The press, since, has been littered with all of his connections to radical Islam and how Islam produces such hate attacks. In combination with this, that same day, the United States government deported nearly one hundred Muslim refugees from India, Bangladesh, Nepal, and other countries for fear that they might have connections to ISIS. All of them were more afraid of going home than they were of the discrimination that would have faced them in the United States. They were convinced that death awaited them; yet, because they were Muslim, they were sent off to fend for themselves, with no further assistance from the United States.
        So, what has this little exercise done for the discussion up to this point? It has, basically, painted a picture of how the Supreme Court exercises its powers; those being plenary power, judicial review, and original jurisdiction, as it relates to immigration law. Essentially, the Supreme Court has regularly chosen to hear immigration cases brought before it, and it had done so since very early on in this nation's history. However, as it related to whether or not a congressional act is constitutional or not, in this realm of law, the court has not chosen to exercise the right of judicial review; though, it has taken on cases where constitutional jurisdiction were involved but only cases where states have attempted to usurp the authority of the federal legislature in some form or another. Finally, the Supreme Court has accepted original jurisdiction in immigration cases because immigration cases involve the United State's interactions with foreign nationals, which is  clearly a federal purview. This is basic; however, there is something much deeper going on here. The Supreme Court, despite claims to the contrary throughout its history, has not been neutral in these cases. They have been so, in that they have stuck federal statutes and case law, or precedent, to deliver their opinions, but they have not been so when their decisions are put into the context of the social conditions of the time in which the decision were made. According to the twenty-seven immigration cases reviewed here, in the nineteenth century, the Supreme Court spent most of its time settling issues of constitutional jurisdiction between the states and the federal government on this issue. In the early 1920s, they confirmed antisemitism of the day, as well as, the anti German sentiment of the post World War I period. In the 1930s, they supported the rise of the United States federal policing powers, something that had been restricted up to that time period, but which had risen in popularity as the Prohibition era crime wave blew up. In the 1940s and the 1950s, their decisions reflected the anti communist sentiment of the period, when they deported a naturalized immigrant and refused citizenship to another immigrant who was married to an American citizen.
        In the 1960s, the Supreme Court found itself caught up in the birth of the Gay Rights Movement when they deported a young gay man for being what they called, a dangerous psychotic. His only crime was being attracted to men, which was far from socially acceptable during that period. In the 1970s, the court found themselves involved in the just application of the due process of law, something that they had failed to do in previous decades, when they granted a poor student a fair chance to get his act together. In the early 1980s, the court made more visible the crime against humanity that has been committed by the country time and time again, the splitting of family units for the sake of rigid adherence to the law, when there were always exceptions that could have been made. They also got themselves involved in the early clamors over undocumented immigration, and their rulings gave impetus to the passing of the Immigration Reform and Control Act of 1986. This carried over into the early 1990s and gave credence to the passage of another restrictive bill meant to curb undocumented immigration, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. From the late 1990s, while undocumented immigration remained and still is a major issue, another issue came to bear, Islamophobia. At first, the court was regularly finding itself on the wrong side of this issue; however, recently, it took a chance to make up for its earlier collusions, when it dismissed a ridiculous and clearly discriminatory case against a man who was charged with a minor crime but faced deportation. Hopefully, this trend will continue, but if the court continues its policy of following the Congress's lead on these issues, it may find itself on the wrong side of the issue again, especially after recent events like the mass shooting in Orlando.
        So, what of the coming cases that are being reviewed here? The case against President Obama's executive action is scheduled for a hearing in just a couple of weeks, and the case against the Syrian refugee relocation will most definitely make its way to the Supreme Court. How will the Supreme Court rule on these cases? The first thing that must be recognized is that there are a lot federal immigration laws, as has been shown, so the court could cite any one of them to rule in either direction in both cases. This study is assuming that the court will accept original jurisdiction, and that it will use its plenary power to choose to hear the cases. It will also, most definitely, as it has always done, defer on any constitutional issues and stick with the relevant statutes. So, with this wide avenue of approach available to them, how will the court rule in these cases? This is where the study will now move on to the Attitudinal Model of Judicial Behavior, as outlined by Harold Spaeth and Jeffrey A. Segal in their book, The Supreme Court and the Attitudinal Model Revisited (2002). This will go a long way in clearing up the answers to the question posited here. There is one other condition, however, which must be accounted for when coming to a conclusion here. The recent death of Justice Antonin Scalia changed the nature of the rulings that come out of the Supreme Court because the US Senate has refused to confirm President Barack Obama's nomination to replace him. It is possible that the answer that is to come here will rule in favor of the immigrants and the federal powers that are competing with the states; however, it has to be recognized that if Justice Scalia were still alive, it is possible that that would not be the case. Let the test begin.

The Attitudinal Model of Judicial Behavior

        How will the U.S. Supreme Court rule in the case of Texas, et al v. United States; in which, the states are challenging President Barack Obama’s recent federal action on immigration? Further, how will the Court rule in the recent case that Texas, and others, have fielded against the federal government in the U.S. District Court, District of North Texas? If the work that has been done up to this point has proven anything, it is that the Supreme Court is not immune to world around it. In fact, it is almost always directly influenced by it. It is the Attitudinal Model of Judicial Behavior that will tie this all together and provide the answers that this work has been seeking. So, what is this Attitudinal Model? Very simply put, it is the idea that Supreme Court justices are not neutral arbiters, who make neutral and objective rulings abiding by regulations and precedent alone. Rather, they are people just like everyone else, and are biased by their own ideologies and values. Essentially, if they are conservative, they will come down on the conservative side of a case, and if they are liberal, they will come down on the liberal side of a case. This model is a joining of aspects of legal realism, political science, psychology, dialectical materialism, and economics. Legal realists contributed the idea that law is fluid and ever changing, as well as, the idea that it is acceptable for the judiciary to create law. Behavioralists, in the early days of Political Science, argued that scientific method could improve the field’s ability to predict and explain observable political phenomena, along with its ability to develop theory. From Psychology was drawn the importance of ideology and social values. Dialectical Materialism brings in the reality that everyone and everything is subject to the conditions set by the environment in which they exist, and economists highlighted the importance of a justice’s views on economic policy, which will effect how they view cases involving the poor and socially disadvantaged. The Attitudinal Model has proven to be ninety percent accurate, by correlating rulings with ideology, a percentage that no other model on judicial behavior can claim. Spaeth and Segal, the creators of this model, tirelessly reviewed justices’ histories on every legal question possible. They did not only use the model on new cases, though. They also retroactively verified previous rulings, and they did so with the same effectiveness. The goal, then, for the cases being reviewed here, is to see where the present eight justices stand on the issue of immigration. Assuming that liberals favor more lenient laws and conservatives favor restrictive laws, each justices’ stance on immigration will be assessed. Then predictions will be made. This accounts for the loss of Justice Scalia; however, predictions will be made to see which way the way court would have gone if he were still alive.
        So, who are the nine presiding justices of the U.S. Supreme Court, and where do they stand on the issue of immigration? The justices are Chief Justice John Roberts and Associate Justices Antonin Scalia (Deceased), Anthony Kennedy, Clarence Thomas, Ruth Bader Ginsburg, Steven Breyer, Samuel Alito, Sonia Sotomayor, and Elena Kagan. In the case of Chamber of Commerce v. Whiting, 563 U.S. ___ (2011), citing the Immigration Reform and Control Act of 1986, Chief Justice John Roberts delivered an opinion which upheld an Arizona labor law that placed strict restrictions on undocumented immigrants and the work that they are able to obtain in that state, as well as, stronger penalties for working without a valid visa. He cited the case of De Canas v. Bica, 424 U.S. 351 (1976), which was a ruling upholding a similar law in California, as legal precedent for the ruling. This is a conservative position because it is more restrictive on immigrants. In the case of the INS v. St. Cyr, 533, U.S. 289 (2001), Justice Scalia dissented. In this case, Mr. St. Cyr was convicted of murder, a deportable offense. Justice Scalia, citing the Immigration Reform and Immigrant Responsibility Act of 1996, argued that immigrants were not protected under the Fifth Amendment because the court’s jurisdiction had been taken away on such cases, and thus Mr. St. Cyr had waived the right of habeas corpus and must face deportation. Justice Scalia quoted Calcano-Martinez v. INS, 533 U.S. 348 (2001), which denied a habeas corpus hearing under similar circumstances, as precedent. This is restrictive, and thus, a conservative stance. The majority opinion of the court ruled the opposite way. In the case of Demore v. Kim, 538 U.S. 510 (2003), Justice Kennedy joined the Court’s decision that the INS could hold deportation suspects without bail. Mr. Kim was charged with first degree burglary and petty theft with priors. This court held that under  8 U.S. Code 1226 - Apprehension and Detention of Aliens, Mr. Kim could be held without bail while awaiting deportation proceedings. The court cited Reno V. Flores, 507 U.S. 292 (1993), a case in which Flores, a minor repeat offender, was in jail facing similar circumstances, as precedent. This is another conservative ruling.
        In the case of Zadvydas v. Davis, 533 U.S. 678 (2001), Mr. Zadvydas was a repeat criminal that the United States sough to deport. However, his parent's home country, Lithuania, refused to accept him because he was born in a German refugee camp and was not recognized as a citizen of that country. Germany also refused to accept him because he was born to citizens of Lithuania in a transit refugee camp, and was thus, not eligible for German citizenship. Citing 8 U.S. Code 1231 - Detention and Removal of Aliens Ordered Removed, Justice Thomas ruled with the majority that the federal government did not have the legal right to engage in the lifelong detention of immigrants judged deportable but unable to be repatriated. They also argued that this statue, which provided for the permanent detention of enemy aliens, when necessary, had constitutional questions. The court, however, by reading this statute in collusion with other appropriate statues was able to avoid these questions. They cited the case of United States v. Jin Fuey Moy, 241 U.S. 394, in which a national of China was in a similar predicament, as precedent for this practice. This is a liberal stance on immigration because it prevents the US government from exercising certain powers. Justice Ginsburg and Justice Sotomayor were on the opposite side of the Chamber of Commerce v. Whiting (2011) ruling. Taking the liberal stance on the issue, they argued that Chief Justice Roberts was taking the Immigration Reform and Control Act of 1986 out of context. They also argued that the state of Arizona was intentionally using vague language to make its law less controversial in its purpose, in that they were using the term licensing inappropriately. The Justices quoted the case of Dolan v. Postal Service, 546 U.S. 481 (2006) as precedent for their decent. Justice Breyer was with the majority in the case of the INS v. St. Cyr (2001). Citing 28 U.S. Code 2241 - Power to Grant Writ, the court ruled that the recent immigration laws mentioned in the case, namely the, Immigration Reform and Immigrant Responsibility Act of 1996, did not strip the federal courts of jurisdiction in immigration cases, thus the court could rule on the case if it chose. They also ruled that St. Cyr was also eligible for a fair hearing because he had been convicted through a plea deal. The court granted St. Cyr a second habeas corpus hearing. They cited the case of Andres Flores-Miramontes v. INS, 212 F.3d 1133 (9th Circuit 2000), a case in which a federal district circuit judge in California came to the same conclusion, as precedent for their decision. This is the liberal stance.
        Justice Alito, a more recent addition to the Supreme Court, identified his position on immigration in an asylum case before the 3rd Federal Circuit Court. In the case of Cai Luan Chen v. Ashcroft, 281 F.3d 221 (3d Circuit 2004), citing 8 U.S. Code § 1101 - Definitions, which defines who is eligible for reprieve in cases where a resident alien's partner is running from a state that forces abortions upon people, Alito ruled that it was okay for the federal courts to reject requests for asylum from immigrants fleeing a nation with forced abortions, when the immigrant in question is not legally married to the resident alien requesting asylum on their behalf. He cited Chevron U.S.A. v. NRDC, 467 U.S. 837 (1984), which ruled in favor of Chevron, on a definition technicality, in a case involving the Clean Air Act of 1963, as precedent for the way that he played on the legal definitions of the resident alien's partner, who was technically only his fiance, and thus, not eligible for immediate relief. This is a restrictive and thus, conservative stance. In the case of Padilla v. Kentucky, 559 U.S. ___ (2010), while still the Solicitor General of the United States, Justice Kagan issued an amicus brief defending the appellee, Padilla. Citing the rulings in the cases of Strickland v. Washington, 444 U.S. 668 (1984) and McMann v. Richardson, 39 U.S. 759 (1970), she argued that he should have the right to appeal his deportation status on the basis of bad legal advice. Her opinion was in line with the ruling of the Court, who argued that immigrants had the right to be fully informed of all of the possible consequences of any actions that they take while in the custody of the border patrol, the INS, or any other related organization. They cited the same cases as precedent. This is a liberal stance. This accounts for five liberal votes on immigration, which tend to loosen restrictions on immigrants and four conservative votes on immigration, which tend to tighten restrictions on immigrants. With this in mind, the predicted outcome, in the case of State of Texas, et al v. United States (2015), if Justice Scalia were still alive, would be five to four upholding the President’s new immigration plan. In the Syrian Refugee Case, it should be eminently possible to prove that the refugees are running for their lives with nowhere to go if they were denied entry. With a five to four margin, as well, the Court would rule that the refugees cannot be denied entry because it is likely of, precisely, the fact that they may, very well, not have anywhere to return to if they were rejected by the United States. With Justice Scalia gone, the predicted ruling would not change in either case. The vote in either case would just five to three, instead of five to four. This is a very basic example to show how the Attitudinal Model works, and admittedly, a deeper review of each justice's rulings on immigration would be necessary to make a more accurate prediction, but the basic point is made. The Supreme Court is not an object body, in fact, it is highly political, despite its historical claims otherwise.


       This study has done several things. First, in a rather long exercise, it reviewed the full length and breadth of federal immigration legislation, from the first laws passed in the 1790s to the present. Second, it defined the legal terms Plenary Power, Judicial Review, and Original Jurisdiction. This, of course, made clear that the Supreme Court routinely chooses to and has the legal right to hear immigration cases, but rarely, if ever, will it challenge the constitutionality a federal immigration law. If such a question does arise during a case, they usually find artful ways to dodge it, and if a case is too rife with such questions, they will not hear it at all. The study also reviewed some of the reasons why this is. Further, if the court does hear a constitutional case, it is almost always nothing more than a jurisdictional or procedural case. Third, it reviewed twenty-seven Supreme Court immigration cases that show how the Court has been routinely wrapped up in the social affairs of the United States, like the antisemitism of the 1920s, the anti communist fervor of the first half the twentieth century, and only a bit later, the birth of the Gay Rights Movement. Fourth, it has also defined  the Attitudinal Model of Judicial Behavior, noting that it is a conglomerate of many concepts like legal realism, political science, psychology, dialectical materialism, and economics, and that it refuses to accept that the justices are impartial advocates, who simply rule on the legal merits of a case. Instead, it argues that that justice's political, social, and religious ideologies are central to understanding and predicting how they will rule on a given case. Fifth, it has predicted that in the case of State of Texas, et al v. United States (2015), if Justice Scalia were still alive, the court's ruling would be five to four upholding the President’s new immigration plan. Further, in the Syrian Refugee Case, it should be eminently possible to prove that the refugees are running for their lives. With a five to four margin, as well, the Court would rule that the refugees cannot be denied entry because it is likely that they would not likely have anywhere to return to if they were rejected by the United States. With Justice Scalia gone, the predicted ruling would not change in either case. The vote in either case would just be five to three, instead of five to four. Finally, even though it may seem suspect that the Court has never taken a clear constitutional stance on immigration, this study has shown, to a degree that this reality is based more on deference to jurisdictional norms and separation of powers. This study has shown how the separation of powers is really supposed to work in a democratic society, and it goes to show that in some ways, democracy is not yet deceased. 
        There is, however, a darker side that can be explored when trying to understand what this really reveals about the Supreme Court on immigration rulings. What is the real reason behind the Supreme Court's desire to not question the constitutionality of overly restrictive immigration statutes? Is it because, as John Feere says in; "Plenary Power: Should Judges Control U.S. Immigration Policy?" they want to leave political questions to politicians, as if they were not politicians, themselves? Is it because the federal courts lack the capacity to judge the constitutionality of immigration statutes? Is it because they want to maintain uniformity in the interpretation of federal immigration statutes? Is it because they feel Congress is more efficient at this task? Is it because they believe immigration legislation is not punishment? Or, perhaps, is it just in honor of the historical tradition of deference to Congress on this issue that they avoid constitutional question on immigration? Or is it some something deeper than any of these excuses? The Supreme Court has ruled on constitutional questions in practically every other aspect of US law, routinely stepping on Congress' right to legislate. It has ruled on gay rights, women's rights, African American's rights, criminal's rights, corporation's rights, trade legislation, and many more areas of law; however, for some reason, it has not done so in matters of immigration law, in fact, it has avoided doing so as if the plague or eternal damnation awaits the court that finally does strike down an unjust immigration law. Further, in all of the other places in which they have struck down unjust federal or local legislation, there has been no major societal breakdown. The states and Congress have merely adapted to the judgment of the Supreme Court and moved on. Why could the same not be possible with immigration law? The real reason is very clear. The people who are suing for their rights in immigration cases are not natural born U.S. citizens. They are foreign born immigrants seeking entry, seeking permanent residence as a naturalized citizen or permanent worker, or trying to avoid deportation. By arguing that they are respecting democracy and the separation of powers, the Supreme Court is less than artfully dodging the glaring legal reality when it comes to who is eligible for the protections of the constitution and who is not. If you are an American citizen, you are afforded the rights of the Constitution. If you are an immigrant, you rights are constituted by a government that sees you as a potential threat, not as a human being. This really needs to change, and the Supreme Court can make it change. Freedom does not play favorites, justice does not have a country, and human feelings have no borders.

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