Below is my column in the Washington Post on Donald Trump’s proposal of “extreme vetting” for immigrants to the United States. While some have suggested that the proposal would violate the Constitution, I do not agree. There are ample concerns or objections that can be raised as a matter of policy. However, such vetting is neither unconstitutional nor unprecedented. Particularly if implemented with congressional approval, I believe that such a heightened level of scrutiny would pass constitutional muster. Conversely, this is clearly something that Congress could prevent legislatively.
Donald Trump’s newly proposed ideological test for immigrants — one that he characterized as “extreme vetting” in a speech on Monday — has renewed debate over immigration reform in the presidential election.
It’s a debate worth having, and there are plenty of valid questions to be raised about his proposal. This is one occasion, however, when Trump may have the law on his side. As a general proposition, a litmus test for new immigrants isn’t unconstitutional or even unprecedented. Indeed, Trump could cite an unlikely figure in support of the authority for such changes: President Obama.
Trump wants to screen potential immigrants for “hostile attitudes towards our country or its principles” and ban those who harbor those views; or who, in his words, believe that sharia law should “supplant” our system of laws; or those who express “bigotry and hatred” with regard to gender equality or gay rights. Although Congress could block these conditions, Trump would have considerable leeway in requiring background checks and imposing such tests. It has happened before: During the Cold War, there was ideological screening under the 1940 Alien Registration Act, designed to prevent the entry of communists, anarchists and others. Immigrants are currently required to know basic civics as part of a citizenship test, and Trump’s extreme vetting would require visa applicants’ affirmative agreement with those principles — though he wasn’t clear whether he would do this with a legislative change (which would be unassailable) or a unilateral executive action.
One can question how successful a litmus test would be — after all, applicants could simply lie, and such a test would just encourage potential immigrants to refrain from expressing their views on social media or in other public forums. But as long as he or she doesn’t violate federal law, a president’s power is most pronounced when it comes to protecting the country’s borders. Even though the Supreme Court deadlocked 4 to 4 earlier this year over Obama’s sweeping immigration plan, which exempted many undocumented immigrants from deportation (and, as a result, left an injunction in place against the administration), the court has previously yielded great authority over the control of the borders to presidents. In 1892, in Nishimura Ekiu v. United States, the court stressed that, while Congress sets the conditions for citizenship, “the final determination of those facts may be entrusted by Congress to executive officers. . . [the executive officer] is made the sole and exclusive judge of the existence of those facts.” The court has also maintained, in United States ex rel. Knauff v. Shaughnessey, that the right to exclude aliens “is inherent in the executive power to control the foreign affairs of the nation.” Finally, while the executive branch is required to follow rules affording due process, the court has held that “whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.” While the court imposed a limit in Zadvydas v. Davis in 2001 on how long an alien can be held without deportation, the conditions for entry into the country are set by Congress but implemented by the president.
In that context, the concept of a litmus test based on civic values is quite different from Trump’s previous proposal of a threshold test based on faith — his widely condemned Muslim ban. For starters, one of the civic values that would be evaluated is a visa applicant’s views on the free exercise of religion. And unlike the earlier proposal, this idea is more likely to resonate with those who fear immigrants who come to the United States for economic benefits but who oppose core rights of free speech, freedom of religion, equality of women, LGBT citizens and others.
Trump isn’t alone in raising such concerns. There is rising opposition in the West to increased immigration by Muslim refugees seen as bringing with them extreme Islamic values opposed to the foundations of Western civilization. Although Muslims constitute about 7.5 percent of the French population, in a recent poll, 63 percent of French people think Islam “is not compatible with French values.”
Though many Muslims fled Islamic authoritarian regimes in search of freedom, immigration skeptics cite polls showing support for extreme views among Muslim immigrants, including the imposition of the medieval sharia legal system. A British poll found that 52 percent of Muslims felt homosexuality should be illegal, and almost a quarter supported the introduction of sharia law in England. After opening her country’s doors to thousands of Middle Eastern refugees, even popular politicians such as German Chancellor Angela Merkel are facing increased opposition over the influx of refugees viewed as hostile to Western values.
Polling suggests that many Muslims around the world believe their faith trumps national law — they’re not the only ones. Last year, then-presidential candidate Sen. Marco Rubio said, “We are clearly called, in the Bible, to adhere to our civil authorities, but that conflicts with also a requirement to adhere to God’s rules.” When “those two come in conflict, God’s rules always win.” If similar views were expressed by a Christian immigrant, it would be difficult to see how our bureaucracy would distinguish between this view and the views of Muslim immigrants without maintaining a bias solely against Islam.
Of course, Congress holds the primary authority to determine the requirements for naturalization, and it may have some serious qualms about a new barrier to both entry and eventual citizenship. Once immigrants become American citizens, they’d have every right to advocate for a sharia law system or laws supporting religious values. Those laws should be struck down absent a constitutional amendment, but clearly, Americans have the right to try to convince other Americans that they should abandon core constitutional protections. On that same logic, in 1987, Congress sought to stop the deportation of people for statements that, “if engaged in by a United States citizen in the United States, would be protected under the Constitution of the United States.” Trump’s plan cuts the other way, and many citizens would have difficulty passing his litmus test when it comes to issues such asLGBT rights. There are, after all, a sizable number of Americans who view homosexuality as immoral, and some still support the criminalization of such relations. Of course, as citizens, they’re subject to no such test. Similarly, some Muslim Americans may prefer sharia law and look to one of the many private Islamic courts in this country, just as some Jewish citizens have voluntarily used a system of Jewish courts for more than a century. The difference is that these systems “supplant” conventional law only on a voluntary basis.
Trump’s proposal poses logistical problems that go beyond legal or political considerations. Extensive investigations of the social media accounts and personal backgrounds of immigrants is likely to slow legal immigration to a crawl and massively increase the costs of immigration enforcement. Given, though, the growing unease over illegal immigration both inside and outside the United States, many Americans could probably be convinced of the need to beef up resources for the agencies involved or at least slow down the pace of entry to allow for heightened background checks.
Regardless of the feasibility of Trump’s plan, Hillary Clinton’s camp would probably like to avoid this debate by dismissing the proposal on constitutional grounds — it would save her from having to defend an opposing view and reinforce the narrative that Trump’s worldview is generally out of bounds. But in advancing a litmus test for entry, a President Trump would be claiming the same unilateral authority so willingly yielded to Obama on immigration over the past eight years. Obama has asserted sweeping, unilateral authority in his opposition to state laws seeking to force deportations. Democrats, including Clinton, enthusiastically supported Obama’s assertion of such unilateral powers in exempting undocumented immigrants from deportations. In doing so, they have laid the foundation for Trump to push for the inverse of those policies. It would be difficult, now, for Clinton to claim that Trump cannot use the same unilateral powers to reduce entries as opposed to deportations.
Indeed, as a longtime advocate of unilateral executive power over immigration and foreign policy, Clinton would be hard-pressed to challenge Trump’s authority to impose such tests absent a conflict with federal law. With this proposal, then, Trump may have found an issue that not only threads the constitutional needle with the courts, but moves the political needle with voters.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.
Definitely a Hillbot.
Steve,
I want someone in the White House who knows what the hell is going on in the world. I want someone who knows how to get something done in Washington. I want someone who’s going to have it going on from day one.
I wanted that person to be Bernie. But it ain’t. That leaves Gary Johnson, who has some legit political experience but is running on the ridiculous Libertarian ticket. Or Donald Trump who is so willfully ignorant that Sarah Palin’s former advisers won’t work with him. SARAH PALIN!!!
Or Jill Stein, who has run for governor of MA twice and lost; MA state house once and lost; MA Sec’y of the Commonwealth and lost; but DID manage to get elected to the Lexington (pop 31,000) town meeting from district 2. And yes, Autumn, while Dr. Stein says she supports vaccinations, she also explicitly supports parental exemptions which gets us to where we are now with all the free-rider parents whose kids are spreading whooping cough–so you get half-credit for that.
That leaves Hillary Clinton, who has more experience than all the other candidates combined. I am a Bernie supporter and I will vote for her. All the paranoid rumors about murders and mayhem are the silliest BS ever. All the investigations and NO trials, no convictions, no sanctions, no nothing! No Benghazi. And the State Department says the FBI got it wrong on the emails. So where does that leave all that? From the looks of it Dems are going to take back the senate so that will stop all that nonsense. The Repubs will probably hang onto the House, so they can continue to hold hearings and waste millions more investigating.
phillyT writes, “I want someone in the White House who knows what the hell is going on in the world. I want someone who knows how to get something done in Washington. I want someone who’s going to have it going on from day one.”
It looks like it’ll be your pick. Unfortunately, what Clinton will get done, you and I will know nothing about:
https://www.facebook.com/itstheGADFLY/videos/vb.753200948032978/1141125379240531/?type=2&theater
As for Bernie, David Martin said it best regarding his endorsement of Clinton and his hope that they’ll also support her: “Bernie is just as despicable.You don’t hand your children over to a known abuser under any circumstances.”
I find your post logical, but so long as one child dies in the Middle East, Detroit stands gutted, and wealth disparity increases by our collective hand, your thinking is amoral in a civilized society. I wish I knew how to post some photos of the mutilated children in Aleppo to influence and redefine your position, but you get the picture.
What you’re advocating is like trying to change La Cosa Nostra from the inside by influencing the underbosses and soldiers. They don’t give an iota. It’s all about themselves. Things won’t change unless we collectively say what they’re doing is wrong and that we will not be a part of it.
Ferguson and St. Louis need to start some extreme vetting. Al Sharpton needs to be put on the list. If he comes anywhere near Ferguson he needs to be sent back to Nigeria.
@Steve
did you see Lee Camp’s take on Johnson/Weld?
Autumn writes, “did you see Lee Camp’s take on Johnson/Weld?”
Just watched it. Thanks. All I can say is: Effen A!
@Steve
You mean Jimmy’s “phone call”? Hilarious. I still want all four candidates debating. Johnson is a faux Libertarian as he is pro TPP. But can you imagine the Donald, Gary AND Jill decimating HRC? the more Jill gets out the more people are gravitating towards her
and she is increasing ballot access.
also, I don’t know any deaths associated with the Donald, Bernie or Jill…
@phillyt
Why wouldn’t we disagree? We’ve disagreed for several weeks now. How about you educate yourself about Stein rather than repeating the MSM bs that Jill is “anti vaxxer”
But no you won’t do that as a Hilbot. Never let facts or integrity enter the equation do you?
thing is: 0 enthusiasm for HRC. even my hilbot friends who are expending great psychic energy keep their heads in the sand ALL say “I don’t like or trust Hillary, but I will hold and nose and vote”
Pathetic. Bernie generated enthusiasm, Trump continues to generate enthusiasm and Jill’s is building.
Autumn,
You and I are just going to have to disagree.
You seem to think that Hillary is more dangerous than Donald. I think he’s more dangerous than Crazy Nixon, Alzheimer’s Reagan and Dry Drunk W Bush combined.
Jill Stein is not bad, but she’s a fringe thinker, a vaxxer and someone who thinks wifi is frying her brain. WE’ve got enough kooks running around/
But I get it, you’re never ever going to vote Hillary. Got it.
phillyT writes, “Jill Stein is not bad, but she’s a fringe thinker, . . .” You want a mainstream thinker after what they’ve done?
Nick
Carry on with the name calling.
Perhaps Darren will slap your hand the way he slaps mine now and then. I doubt it, but you never know.
I know it’s all you’ve got to work with, but you really MUST add your famous LOL
@Nick
I am so looking forward to attending a Trump rally – admittedly hoping to win people over to Jill Stein. But the biggest issue right now IMO is getting both Gary Johnson and Jill into the presidential debates.
Autumn, did you see Jimmy Dore’s recent interview with Gary J?
Autumn, Apparently you missed the introspective, apologetic, Trump last night. He’ll return to NC, but that mea culpa Trump may not reappear again.
@Nick
Damn, I just saw that Diamond and Silk were at the Charlotte rally! I love the people “lock HER up!” – remember that was a favored chant at the DNC as well by Berniebots – at least til they brought in the white noise machines and replaced real people with scabs!
@PhillyT
don’t know what you are smokin’. NEVER EVER will we fall in line and vote for HRC.
@isaac
delusional as always. Nope we Bernieorbusters will NEVER vote for HRC. We are aligning behind Jill Stein and some of us behind Trump!
@Arnie
So why not vote Jill Stein?
Everything he says is boilerplate MSNBC talking points. Maybe he’s a robot?
I sometimes wonder if philly isn’t a parody of a dull witted liberal.
Art Deco
I hope you are being reimbursed for your indefensible defense of Donal Trump.
Whether or not he actually owns the clothing businesses on which his name is sewn is irrelevant. It’s a fact that many dozens of products which carry his name are manufactured overseas. And it’s also a fact that he will never ever do anything to cut a better deal for American manufacturers that would in any way jeapordize his income stream, however small or puny it might be.
I love it that so many conservatives here have taken to the Swift Boat strategy. Most are not very good at it, but it takes practice to trash a war hero in such a way that doesn’t make you seem unpatriotic or treasonous or downright stupid. It takes some mental jujitsu to be able to spin lifelong Republicans into irrelevant positions of partisanship or Washington insiderdom that would render them traitors to the REAL cause, when in any other year you would be in lockstep with them regardless of any stated policy or platform.
And it takes a certain skill which no one has really exhibited to to defend a malignant narcissist with sociopathic tendencies, as exhibited by Donal Trump. He appeals to the lowest common denominator, he brings out the hatred, racism and violence in people that has Republican party leaders turning their heads in shame. Trump has been endorsed by white nationalists, the KKK, the American Nazi Party and numerous other hate groups (and if you’re going to mention the KKK guy that endorsed Hillary, don’t bother, that’s a proven scam). Blind nationalism, appeals to baser emotions, misogyny, the list goes on.
The only bright side to this is that apparently Hillary Clinton is going to win this walking away. If you think there are any valid polls showing a Trump win, I would ask you to review Romney’s polling fantasies from 2012.
We progressives will hold Hillary’s feet to the fire. As Bernie supporters and Stein supporters should all do. Trump supporters should do the same after the election, but given their emotional level of maturity, I suspect they will spend the next eight years screaming, whining and crying about how she stole the election, and they will try to make life as impossible for her as they tried to make it with President Obama. She’s going to take office with a lot more experience under her belt, so I don’t think she’ll take all the Republican crap for more than a couple of weeks. And with the Senate in the D column again, maybe she can get some good work done right away. Starting with the Supreme Court.
“Evidently” (typo, can’t proofread till its posted on this Android)