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Sorry, Judge Napolitano: Immigration Isn’t “Foreign Policy”

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Seal of the United States Court of Appeals for...
Seal of the United States Court of Appeals for the Ninth Circuit. (Photo credit: Wikipedia)

By the time you read this, the US Court of Appeals for the Ninth Circuit may have handed down a ruling for or against president Donald Trump’s executive order banning travel and immigration from seven countries. Two states (Washington and Minnesota) are suing to kill that order.

Andrew Napolitano — a prominent constitutionalist and libertarian commentator, not to mention a former New Jersey Superior Court judge — writes in Reason that the states don’t have legitimate standing to sue. Why? Because the Constitution provides for quite a bit of presidential latitude on foreign policy.

I’ll explain why Judge Napolitano is wrong on the details momentarily, but first let’s get one thing out of the way: Immigration is not a foreign policy matter. Foreign policy relates to matters outside the United States and to relations between US government and other governments around the world. Immigration relates to individuals wishing to enter and possibly reside in the United States. It is therefore a matter of domestic, not foreign, policy.

It’s also a matter constitutionally reserved to the states, which is where Judge Napolitano really steps in it. He hangs his argument for the order and against the states’ legal standing on the fact that “[a] 1952 federal statute permits the president to suspend the immigration status of any person or group whose entry into the United States might impair public health or safety or national security.”

But that statute is plainly unconstitutional, for the same reason that the states have standing. Why? Because per Article I, Section 9 of the Constitution, “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight …”

Article V of the Constitution forbids amending that provision prior to 1808, and no amendment to it has been proposed or ratified since that time. Congress scrupulously observed that restriction for nearly a century. As with many restrictions on federal power, it eventually got ignored. But it’s still “the supreme law of the land.”

The Constitution doesn’t enumerate a federal power to regulate immigration. In fact it clearly and unambiguously reserves that power to the states. That makes the statute Judge Napolitano references unconstitutional, and the executive order hinging on it void. Obviously states have standing to sue when the federal government usurps a power the Constitution reserves to them.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

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Op-Eds

Hey Antifa: Free Speech is Not Negotiable

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Antifa Graffiti
Antifa Graffiti (Photo credit: Wikipedia)

On February 1, a gang of violent thugs managed to shut down a speech scheduled to take place at the University of California at Berkeley, metaphorically making the birthplace of the Free Speech Movement of the 1960s  into that movement’s grave site.

The scheduled speaker, sponsored by the campus’s student Republican group, was “alt-right” clown cum agitator Milo Yiannopoulos.

The gang of rock-throwing arsonists identified themselves as “Antifa” activists.

“Antifa” is short for “anti-fascist,” but the actions of those identifying with the Antifa movement falsify the implied claim. Antifa activists tend to show up whenever and wherever they sense an opportunity to use violence to silence speech they disagree with.

Not to fight fascism, to silence speech. Not just fascist speech, but any speech they happen to disagree with or that they just think they might bring attention to themselves by attacking.

They also frequently pretend to be anarchists.

Let’s be very clear about this:

Antifa is not an anti-fascist movement. It is a violent authoritarian movement that creatively brands and markets itself as anti-fascist.

Nor is Antifa an anarchist movement. Violent authoritarianism which attempts to suppress the dissemination of ideas through speech — to rule the minds and mouths of others through force — is not anarchism even if it formally eschews the state as its instrument of coercion.

An anarchist acquaintance of mine considers my free speech fundamentalism to constitute evidence that I’m a “liberal” (in the classical sense, emphasis on civil liberties) rather than a libertarian and, yes, an anarchist. I disagree, but if that’s the case I guess I’ll just have to live with whatever designation my beliefs imply.

To my mind, a free society must necessarily be composed of free people. People who don’t enjoy freedom of thought and speech are not free. No free speech, no free people. No free people, no free society. It’s really just that simple.

I’m not a pacifist, mind you. I’ve spent plenty of time in protests and have done at least my share of facing down klansmen and other fascists, not to mention riot police. If it comes down to combat, it does. But I’m not going to be the one to start it. People who are confident that their ideas are better than the other guys’ ideas don’t need to throw the first punch.

If you violently oppose free speech, you’re humanity’s enemy. And humanity should treat you as such.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

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Op-Eds

Trump’s Foreign Policy: Obama’s Third Term, Bush’s Fifth

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English: President George W. Bush and Presiden...
President George W. Bush and President-elect Barack Obama meet in the Oval Office of the White House Monday, November 10, 2008. (Photo credit: Wikipedia)

“Let me begin by saying that although this has been billed as an anti- war rally, I stand before you as someone who is not opposed to war in all circumstances,” Illinois State Senator Barack Obama said in 2002. Later in the same speech: “What I am opposed to is a dumb war.”

Although elected president at least in part on his image as “the peace candidate,” Obama owned eight years of constant war. He waffled on then partially reversed the withdrawal from Iraq negotiated by his predecessor. He stretched the eight-year Afghanistan war to 16 years and counting.  He began or expanded operations in Pakistan, Libya, Syria, Somalia and Yemen, escalating even to extra-judicial assassinations of American citizens.

On foreign policy, Obama served George W. Bush’s third and fourth terms. Now Donald Trump looks set to serve Bush’s fifth term  and/or Obama’s third.

During the 2016 campaign, Trump threaded the same rhetorical needle as pre-presidency Obama, referencing “bad deals” instead of “dumb wars.” Like Obama, he touted his disapproval of the Iraq war. He took Bush’s “humbler foreign policy” campaign rhetoric a step further and publicly floated the possibility of dissolving NATO. Even the future of US military support and financial aid to Israel seemed to be (briefly) up for discussion.

Those watching closely noticed, of course, that Trump was very much back and forth on foreign policy.

One minute he talked like a non-interventionist. The next minute he railed about “rebuilding”   a US military that’s already the most powerful and expensive war machine on the face of the earth and has been since World War II.

One minute he was for good relations with other countries, the next he was threatening to reverse Obama’s two real foreign policy successes, the nuclear deal with Iran and the thawing of relations with Cuba.

He soothed the Israel lobby with a speech to its main organization, the American Israel Public Affairs Committee (AIPAC), reversing his previous claim to “neutrality” in the Arab-Israeli conflict in Palestine and promising eternal support for the Israeli (read: for Likud) side of that conflict.

Trump is nothing if not a masterful performer. He managed to play both sides of the foreign policy coin, signaling “business as usual with extra jingoism” to hawks and “less interventionism” to doves.

Unfortunately, as with Obama, many doves — even some libertarians, who ought to have known better — fell for it. And some of them still ARE falling for it.

Since taking office, Trump has proven beyond a shadow of doubt that it is indeed business as usual. The drone strikes continue. Navy SEALs have murdered dozens of civilians including an 8-year-old American girl in Yemen. Instead of withdrawing US troops from Syria, Trump touts escalation of American involvement with the establishment of “safe zones” to corral war refugees. He’s even turned on his supposed friend Vladimir Putin, promising an extension of sanctions against Russia on behalf of Ukraine’s regime.

Time to take off the rose-colored glasses. Donald Trump is the War Party’s dream president.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

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