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Cruz Opposes Immigration, But Respects Constitution. Trump Opposes Both. Roger Algase

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The following is a revised and expanded version of my original post:

In the race between Senator Ted Cruz (R-Texas) and Donald Trump to see which one can outdo the other in scapegoating immigrants, Cruz is now trying to trump Trump by attacking one of the cornerstones of the legal immigration system - the embattled and much maligned H-1B visa.

In a proposal somewhat reminiscent of Trump's call for a "temporary" ban on all Muslim immigration throughout the world in retaliation for the mass killing carried out by a deranged, radicalized US citizen and his equally deranged, radicalized, Pakistani wife, who grew up in that "bastion" of tolerance and human rights known as Saudi Arabia, America's great "ally", Cruz now wants to suspend issuing H-1B visas for 180 days.

The reason? To investigate "new allegations" of "appalling abuses" of the H-1B program. What new allegations? What appalling abuses?

Cruz's campaign website doesn't say, but we have been hearing this kind of language about H-1B for quite a long time, especially from Senator Charles Grassley (R-Iowa), who seems to think that the idea of a legitimate H-1B visa is an oxymoron. More recently, Senator Jeff Sessions (R-Alabama), one of the fiercest opponents of all immigration, has also chimed in along the same line.

Cruz's stance has caused him some embarrassment, since not long ago, he backed a bill to increase the number of H-1B visas. But why should he let a little inconsistency like that bother him?

After all, didn't Trump, who is now accusing Cruz of plagiarizing his proposal to build a wall along the Mexican border, sponsor almost 1,000 Mexican citizens for temporary work visas himself only a few short years ago?

For Cruz'a full proposal, see

https://www.tedcruz.org/cruz-immigration-plan-summary/

Not content with trying to gut one of the main pillars of America's employment based legal immigration system (since who seriously believes that Cruz' ban would not be extended for much longer than six months, which is not nearly enough time for Cruz to say that he has finally found out "what the hell is going on" with H-1B), Cruz is also trying to compete with Trump in going after birthright citizenship.

The Senator's proposal states that, with regard to birthright citizenship, "I will lake steps to pass legislation or a constitutional amendment to end it." (Italics added.)

While Cruz is obviously trying to compete with Trump in playing up to sentiment against legal, as well as illegal, immigration, and is even going beyond Trump in calling for a halt to H-1B visas, there is an important difference in their approaches.

Cruz, at least, seems to acknowledge by implication that America is governed by a document known as the US Constitution. This is implicit in what amounts to his admission that birthright citizenship for all US-born children is guaranteed by the 14th Amendment, and that a constitutional amendment would be required in order to take away this right.

In addition, for the purpose of comparing Cruz's proposal with Trump's, what Cruz leaves out is arguably just as important as what he puts in, if not even more so.

Cruz's proposal says nothing at all about trying to demonize more than a billion members of one of the world's major religions by forbidding every single Muslim (or at least those who are not American citizens) from setting foot in the United States until further notice. This could be interpreted as an indication that Cruz is willing to follow the US Constitution's guarantee of religious freedom contained in the 1st Amendment.

Trump, on the other hand, insists that birthright citizenship is not protected by the Constitution. This argument, which the US Supreme Court threw out 118 years ago in Wong Kim Ark (see below) shows that Trump is not only a "birther" with regard to President Obama's US citizenship, but is a "birthrighter" concerning the US citizenship of millions of mainly Hispanic American-born children.

See Emory University School of Law Professor Polly J. Price's August 24, 2015 article: On birthright citizenship, Congress can't 'Trump' Constitution

I have also written extensively about the 1898 Supreme Court Case of U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) which emphatically rejected attempts to limit the scope of the 14th Amendment's birthright citizenship guarantee, in previous ilw.com comments.

Trump and his fellow "birthrighters" would prefer to ignore this decision, but it is still the law of the land.

Professor Price's discussion, which doesn't mention Wong Kim Ark, but instead presents a clearer, more direct and absolutely incontrovertible argument in favor of upholding the 14th Amendment's broad guarantee of birthright citizenship can be found at:

http://thehill.com/blogs/pundits-blog/immigration/251768-on-birthright-citizenship-congress-cant-trump-constitution


Moreover, by calling for a ban on more than a billion Muslims from setting foot in the US solely on the basis of their religious affiliation, without any evidence of terrorist connections or beliefs, Trump is also shredding the !st Amendment to the Constitution, which prohibits the establishment of religion, and protects the free exercise thereof.

Even if one accepts the argument that the Constitution does not recognize any right of non-US citizens to enter the US under any circumstances, a pernicious doctrine which owes its origin to the infamous late 19th century Chinese exclusion laws, a total ban on entry by non-citizen followers of a given religion would inevitably impinge on the 1st Amendment rights of US citizen followers of that same religion in a way that the US Supreme Court is highly unlikely ever to accept (except for Justices Scalia and Thomas, of course).

While both presidential candidates may be at the same far end of the spectrum in terms of their immigration proposals, Cruz appears to be willing to accept the fact that America has a constitution, and to abide by it. Trump, on the other hand, has not shown that he has any such restraints, at least where immigration policy is concerned.
________________________________
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, he has been helping mainly skilled and professional immigrants obtain work visas and green cards.

His principal areas of practice include H-1B skilled worker and O-1 extraordinary ability employment-based visas, and green cards through labor certification, extraordinary ability and opposite sex or same sex marriage.

Roger believes that upholding basic constitutional rights, including the rights to equal protection of the law, due process of law, and freedom of religion, is fundamental to maintaining a fair and equitable immigration system in accordance with America's ideals and democratic values.

His email address is algaselex@gmail.com







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Updated 01-04-2016 at 12:02 PM by ImmigrationLawBlogs

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