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Every single time sanctuary cities and cutting funding or the travel ban are mentioned on the news, every objection to them is based on claims of unconstitutionality. I am confused by this though. In both cases, the affected parties are non-citizens. I thought the constitution only protects US citizens, not foreigners.

As far as the travel ban is concerned, it is quite the contrary. The constitution explicitly gives executive privilege to the president to deny entry to foreigners from entering the US. The reason does not matter as long as it is in the interest of national security. The 1st amendment and freedom of religion do not apply to non-citizens.

The same principle(minus the religion aspect) can be applied to cutting funding from sanctuary cities, in an effort to stem illegal immigration into the US.

On what grounds are these two issues "unconstitutional"?

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    I think that this question would be better suited on Law.SE. – Panda May 9 '17 at 17:03
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    The constitution is not mostly protections of people, it is descriptions of the powers and duties of the government. – user9389 May 9 '17 at 17:09
  • This boils down to asking whether the Constitution protects non-citizens, whether resident (both issues: sanctuary cities + travel ban) or non-resident (mainly the travel ban). – smci May 10 '17 at 0:00
  • @notstoreboughtdirt many of the constitution's protections are indeed expressed as such, and they generally apply to people rather than citizens. – phoog May 10 '17 at 9:35
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I thought the constitution only protects US citizens, not foreigners.

This is incorrect, the Constitution also protects non-citizens. Georgetown has a good paper on the history of this.

The constitution explicitly gives executive privilege to the president to deny entry to foreigners from entering the US.

The president has a lot of power over immigration policy but that has been delegated to the executive branch by Congress which has the ultimate authority over immigration.

The reason does not matter as long as it is in the interest of national security.

This is incorrect, executive orders may not violate the Constitution.

The same principle(minus the religion aspect) can be applied to cutting funding from sanctuary cities, in an effort to stem illegal immigration into the US.

The tenth amendment protects states rights and disallows the federal government from restricting funding to influence states. This has been held up in the Supreme Court several times.

The 1984 National Minimum Drinking Age Act is an counter-example to this right. It withholds federal funding for highways for states that don't have a minimum drinking age of at least 21.

South Dakota challenged the law and lost but the Supreme Court ruled that it was constitutional for the Federal government to withhold funds if the cuts meet five points.

  1. The spending must promote "the general welfare."
  2. The condition must be unambiguous.
  3. The condition should relate "to the federal interest in particular national projects or programs."
  4. The condition imposed on the states must not, in itself, be unconstitutional.
  5. The condition must not be coercive.

The 1984 National Minimum Drinking Age Act was found to meet all of the points including number 5 because the withheld amount was only 5% of the highway funding.

It can be argued that Trump's executive order meets points 1, 3 and 4 but it violates points 2 and 5.

Point 2

The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction.

The executive order allows sanctuary cities to be determined at will. This violates the condition that the cut is unambiguous, there are no clear rules that a city can follow to not be considered a sanctuary city.

Point 5

... shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes ...

The order also cuts virtually all grants to any city determined to be a sanctuary city. This violates the condition that the cut is not coercive.

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    @LanetRino While the travel ban doesn't mention Muslims it was determined that was the intention because of Trump's campaign promises to do as much and Rudy Giuliani stating Trump asked him to create a travel ban that fulfilled that promise. The federal government can already enforce immigration laws. They are asking states to enforce those laws as well and threatening to remove federal funding if they don't. That's what violates the tenth amendment. I'll add this to my answer when I have time. – JonK May 9 '17 at 18:28
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    @LanetRino - I'm not sure why you seem to think that things he said before taking the oath of office magically disappear from the collective consciousness. One of the ways SCOTUS determines "original intent" of laws, even of the Constitution, itself, is statements and correspondence by those who originated the actions or laws. Also, it doesn't have to explicitly say "I'm discriminating against this group" to be discriminatory. If it has a disparate impact, and there is no other reasonable explanation, the intent is clear. Just ask North Carolina about the ruling on their voting restrictions. – PoloHoleSet May 9 '17 at 19:10
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    @LanetRino - I'm not sure why you'd think that was the intent. None of the nations responsible for terrorist attacks on US soil were included. There was no "objective write-up." The original and subsequent orders were a mess, logically and legally. The entire premise was based on subjective fantasy, much like the one where people who have been in the vetting process for 18 to 24 months, with sign-offs needed from dozens of both US and foreign entities, were somehow "not vetted." – PoloHoleSet May 9 '17 at 19:47
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    The deniability level here is pretty implausible. As is your pretending that things he said about the ban before writing it somehow don't count. Also not sure what you're talking about trying to link "Obamacare" to the travel ban. – PoloHoleSet May 9 '17 at 19:47
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    "The constitution explicitly gives executive privilege to the president to deny entry to foreigners from entering the US." -- Actually, it doesn't. Congress explicitly gave the President this power; the Constitution did not. – cpast May 9 '17 at 21:45
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Some Constitutional protections also apply to non-U.S. citizens.

Citizen-Specific

First, it is true that some Constitutional provisions only apply to U.S. citizens. This includes the right to run for office, as well as protection from discrimination in the voting process.

Not Citizen-Specific

Most other protections are extended to non-citizens. A lengthy discussion was published in the Thomas Jefferson Law Review, but really it's self-evident from the text of the Constitution. For example, first-amendment freedoms are really a prohibition for what Congress can do:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

There is no distinction between citizens and non-citizens; Congress just can't make these kinds of laws.

A second category of protections are ascribed to "the people" - a term which does not delineate between citizens and non-citizens. For example, the Second Amendment says:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

So the text of the Constitution specifies when citizenship matters. That the writers did not apply the concept of citizenship to all these other kinds of protections is evidence that it was not meant to be citizen-specific (according to the T.J. Law Review).

Most applicable to your example is this section of the 14th Amendment, which uses this same convention:

nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Who Don't These Apply To?

These protections don't apply to everyone. For example, it would (obviously) be a mistake to think that the U.S. constitution protects Turkmeni protestors in Turkmenistan from action by their own government. Other cases may not be so clear. So where is the line drawn?

These protections apply to anyone subject to American law. This includes citizens, non-citizen residents, legal and illegal aliens, people living on military basis (whether U.S. citizens or not), and a host of other edge cases (such as foreign contractors who are subject to U.S. commercial law). However, it does not include people in other countries or who are otherwise not subject to U.S. law.

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Every single time sanctuary cities and cutting funding or the travel ban are mentioned on the news, every objection to them is based on claims of unconstitutionality. I am confused by this though. In both cases, the affected parties are non-citizens. I thought the constitution only protects US citizens, not foreigners.

Sanctuary cities are affected by having their funding cut. Sanctuary cities are not foreigners but subdivisions of States.

Universities that want foreigners to speak in person to their students are not foreigners. Citizens who are married to foreigners are not foreigners. Both of these are affected by the travel ban.

As far as the travel ban is concerned, it is quite the contrary. The constitution explicitly gives executive privilege to the president to deny entry to foreigners from entering the US. The reason does not matter as long as it is in the interest of national security.

True, but Federal law also prohibits discriminating on the basis of religion or nation of origin. Federal law is binding on the President.

The 1st amendment and freedom of religion do not apply to non-citizens.

Even assuming that's true, and it isn't quite true, Federal law explicitly prohibits such discrimination in immigration. And the rights of citizens are affected as well as I explained above.

The same principle(minus the religion aspect) can be applied to cutting funding from sanctuary cities, in an effort to stem illegal immigration into the US.

Except the Supreme Court has consistently held that there are strict limits to the Federal government's ability to use funding to coerce the States. Sometimes such things are found to push past this limit and sometimes they're found to be within it.

On what grounds are these two issues "unconstitutional"?

The argument is that they violate the rights of non-citizens, such as State governments, universities, people married to affected foreigners, and so on. In the case of the "Muslim ban", it also violates Federal law.

Of course, there are lots of arguments on the other side as well.

  • "True, but...": actually, it is not true. The constitution does not explicitly give the president the power to regulate immigration. That power was delegated to him by statute. "Federal law explicitly prohibits such discrimination in immigration": it actually prohibits it only with respect to granting immigrant visas. It doesn't say anything about nonimmigrants. – phoog May 10 '17 at 9:49

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