The Right Way—and Wrong Way—to Fight Trump’s Latest Outrage

December 9, 2015

Donald Trump’s proposal to bar “all Muslims” from entering the U.S.—now amended to be “temporary,” to apply only to foreign nationals, and perhaps also to exclude any Muslims serving in American uniform—is as stupid as it’s cruel.

Certainly it’s antithetical to the best in American values, though quite resonant with some of the worst in American history, going back to the Alien and Sedition Acts of 1798, the Know Nothing Movement pre-Civil War, the Sedition Act of 1918, FDR’s Executive Order 9066 authorizing Japanese American internment, and the most questionable “national security” legislation passed during the McCarthy era, some of which is still on the books.

If we cannot do better in fighting Radical Islamic terror abroad and at home than Trump’s brain burp, Americans ought to fold up our tents and surrender to the Caliphate.

On the other hand, the deplorable combination of special pleading, ignorance, or hypocrisy among some of those either unable or unwilling to cogently argue against Trump appalls me:

First: Not All Bad Ideas are Unconstitutional. Legal scholars, apparently all opposed to Trump’s proposal, disagree on ideological lines on whether or not it would be Constitutional. Liberals point out that most Constitutional rights and protections apply to “persons,” not just “citizens,” and that religious tests for office are barred while the First Amendment bans Congress from choosing between religions. Conservatives—who in my view have the better argument—point out that all the court cases protecting against religious discrimination apply to foreign nationals already in the U.S. (including those here illegally) not to those seeking to enter. In 1891, the Congress passed a law, never successfully challenged, barring polygamists from entering the country. In 1907, it barred even those who just believed in polygamy from entering. These laws were meant to discriminate against Mormons, but applied just as well as to Muslim believers in or practitioners of polygamy.

In Kleindienst v. Mandel (1972), the Supreme Court applied the long-standing “plenary power doctrine” giving Congress unchallengeable authority to uphold the exclusion of people based on their political beliefs, despite the Free Speech Clause. Arguably, this ruling could be used as bar Muslims if they believe in Sharia Law, which is as much a political as a religious doctrine. Earlier, in Knauff v. Shaugnessy (1950), the Court upheld the exclusion on the basis of “secret evidence” of a German woman seeking entry because barring an entrant was by definition “due process . . . whatever the procedure authorized by Congress.”

As to the Chief Executive, 8 USC §1182 states: “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” In 1979, President Jimmy Carter barred entry of Iranians with certain exceptions, and set in motion procedures that resulted in the deportation of over 10,000 Iranian students who had overstayed their visas, citing the Nationality Act of 1952, a harsh Cold War era measure sponsored by Senator Pat McCarran, a pro-McCarthy Democrat.

It’s hard to see what would prevent a President Trump from tailoring these precedents into a rationale for excluding Muslims. If he were smart, he might not make the test religion per se, but the perceived ideological threat posed by adherence or Sharia Law or only to residents of certain designated countries—Syria and Iraq, for example, but perhaps not Indonesia—that just happen to be overwhelmingly Muslim. Of course, the Constitution, as cynics say, is what the current Supreme Court says it is, and it’s certainly possible that today’s Supreme Court—overruling the “plenary powers” doctrine and overturning the WWII Supreme Court decisions upholding Japanese American internment (still on the books)—might checkmate a President Trump. I would not bet on it, however, in the unlikely event that Trump were elected President with the backing of a supportive Congress.

Second: civil liberties hypocrites are not in the best position to condemn Trump. Just weeks ago, there were not only college students but administrators who seemed willing to trash the First Amendment’s speech rights because of an overriding need to create “safe zones” to protect minorities and women on campus. If they can dismiss the First Amendment to make colleges “safe” for students, why can’t Trump ignore it to make the country “safe” from Muslims for all Americans?

Even the ACLU is apparently not above hypocrisy. For years, it’s been suing the Obama Administration arguing that “no fly lists” were arbitrary, secretive, and “anti-Muslim.” But now, so far as I know, it is not willing to condemn Senator Feinstein’s Democratic-backed bill to use the same “arbitrary” and “anti-Muslim” lists to ban gun purchases in the face of the Second Amendment.

You may hate the NRA, but at least it’s consistent. I would like to be able to say the same of the ACLU which I’ve always admired as an historian for providing among the few voices against Japanese American internment.

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