Following initial victories won in court by tireless lawyers working at our nation’s airports, in the coming days a new phase of litigation will begin. Lawsuits will turn to the constitutionality of the entire order, and not just how it affects the scores of individuals unconstitutionally detained in the U.S., but all of those affected abroad. Many wonder whether early victories will last. After all, the president has substantial power to oversee immigration. But this order violates not just one but a gamut of mutually reinforcing constitutional rights—and that is why it should not last in the courts.The one that I think it violates is the 14th Amendment.
1. Equal Protection. This order raises discrimination concerns surrounding the Equal Protection Clause of the 14th Amendment, singling out individuals for their religion and nationality by focusing on seven predominantly Muslim countries. Additionally, our immigration laws already forbid such discrimination in issuing visas.
It just doesn't seem like America to be singling out people by nationality or religion when we have not declared war on anyone. The whole 14th Amendment concern is about the idea of who a person is.
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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.
If a person is a visa holder even though they are a citizens of the so-called "Dirty Seven Countries" they should have equal protection under the laws. Could such a hasty ban be withdrawing "due process of law" from these persons? Can we say we are in an emergency situation right now? Trump may think so but I certainly do not. In any case I think this should be reviewed by the SCOTUS and maybe put some checks and balances back into the system.