Shaky Standing

Bill Neinast

National defense and foreign relations, including immigration, are among the exclusive jurisdictions of the federal government.

These are areas in which the states have no responsibility or authority.  If, for example, the Army ordered a division to move from Fort Hood to Syria, the state of Texas could not block the move because of the move’s effect on the state’s economy.

In legal jargon, the state would not have standing to initiate such legal proceedings.  During my three years as chief of the Army’s litigation division, we had a number of civil suits against the Army dismissed on the basis of the plaintiff’s lack of standing to sue the Army.

Based on that knowledge and understanding, I cannot understand how Hawaii and other states have standing to sue to enjoin a federal regulation on immigration.  How does prohibiting or delaying visas for citizens of other countries affect Hawaii in any unconstitutional way?

The explanation or justification for Hawaii’s suit seems bizarre.  Doug Chin, the state’s Attorney General, claims that President Trump’s new order would damage the state’s educational institutions and private businesses, including its lucrative tourism industry, and discriminate against families with relatives overseas.

Chin stated further that the new travel ban had stirred strong opposition in Hawaii, where people still recall federal policies that targeted Asian-Americans for discrimination, from the Chinese Exclusion Act to the internment of Japanese-Americans in World War II.

The Chinese Exclusion Act referred to by Chin was signed into law by President Chester A. Arthur on May 6, 1882.  It is most commonly referred to as the “infamous” Chinese exclusion law barring virtually all immigration of persons of Chinese ancestry and severely punishing Chinese immigrants who violated the harsh laws.  Now that is real official discrimination.

Chin further muddies the water by claiming that the order will damage Hawaii Muslims’ feelings and perceptions of the world.

Then he must have noticed that the legs on which he was trying to build his suit were too shaky to support a standing to sue.  So he brought in the co-plaintiff discussed in this paper a few days ago.

According to Bryon York’s column on March 15, Ismail Elshikh, the Iman of the Muslim Association of Hawaii, has joined the proceedings as a plaintiff.

The new plaintiff seems to be on even shakier legs than Chin in trying to delay or rescind the Trump order to delay processing visas for residents of six countries for 90 days.  If the order is allowed to stand, the Iman’s mother-in-law, who lives in Syria, may not be able to attend her grandson’s high school graduation in Hawaii.  Now that is a real violation of the Syrian’s civil rights.

But wait a minute.  Do foreigners not living in the U.S. have rights under our Constitution?  Do they have a constitutional right to obtain a visa to enter the U.S. anytime and under any circumstances they want?

Currently, there is also no constitutional right not to have your feelings hurt.

So here’s the perspective.

I am trying as hard as I can, but I cannot find even a hint of a standing to sue supporting Hawaii’s challenge to President Trump’s recent Executive Order on immigration.

If the U.S. Attorney in Hawaii has not challenged the suit on the basis of no standing to sue, I cannot understand his reasoning.

If the standing to sue was challenged and the Judge denied the challenge, the only reason I can think of is that he is among the left leaning judges fighting Trump all the way.

So, be thankful that Republicans are now able to fill the existing vacancy on the Supreme Court and possibly two more.


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