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.
Squeaky
Trump had next to no competition in acquiring the Republican spot. Listening to the delusional Carson, the vacuous Rubio, the dumbfounded Bush, and the obviously evil Cruz, Trump sounded refreshing and got the attention of many Democrats, myself included. He briefly took some universal positions such as single payer health care insurance, abolishing private concentrated funding of elections, etc. Trump appeared competent in understanding the issues that most Americans have been focused on for some time. Personally I liked what I saw. It was, however, just a glimpse that seems to have vanished, forever.
I didn’t think Sanders would have been effective enough if elected, what with his extreme positions; even though I am a commie pinko-you may use that in your repertoire. Clinton is more of the same but will enhance some things that need enhancing and continue some things that need continuing, is spite of probably, most likely, surely, not addressing the major problem of the circus that is American politics and elections. She likes the sewer, knows the sewer, is the most competent rat in the sewer. Obama’s tenure has been enormously successful when placed against the preceding eight years and the options. Clinton will only make it better. You seem to be one of those blindsided types that can only focus on Obama’s failures and not the whole picture, so if Clinton will make it better then you have a bone thrown your way as well.
Trump is incompetent because he had the attention of that thirty percent of the voters who will probably vote for Clinton now that he has messed himself irreparably; now that he seems to continue on his downward spiral. If he had only leveled off, kept up attacking Clinton, and avoided the idiocy he would be the next President. The country is ripe for change but not a change from some modicum of stability even with all of its shameful trappings to bizarro world. As it is when one squanders opportunities to the extent that Trump has, one can only deduce that Trump is incompetent, and idiot, or both.
Building buildings, making big bucks even when going bankrupt several times, and all on his father’s dime, makes Trump a savvy realtor/developer. However the world seems to have an oversupply of extremely successful billionaires who can’t walk and chew gum at the same time outside of their bailiwick. Trump is a successful businessman but as well, being able to afford it, he is an incompetent buffoon in this sewer.
As for my nationality, I hold dual nationality, both Canadian as well as American. Any further discussion on this subject would only see you messing yourself, but hey knock yourself out.
Autumn
Your squandering a vote instead of voting to defeat Clinton, your definition of evil incarnate, illustrates incompetency better than I am able.
@NickS
I think they are both for real, because I know real people who think and talk just like them. It what KCF, who posts here, calls “word salad” comments. They bloviate out a bunch of words, without any connection to the facts of the case, and then you are just supposed to sort of accept the conclusion they put on them.
Some people write legal briefs this way, where they lay out the “law” of the subject matter of a case, and then get real weak on the part of the brief where you apply that law to the actual facts of the case. Lawyers all it, “pleading conclusions.”
To make it worse, in law, there usually is a good foundational basis for what the “law” of the case it, found in both statutes and court decisions. But when political commenters try to analyze stuff, the “law” they lay out is usually just their own opinion, and is often pretty iffy on a foundational basis. For example, “Our country is just chugging-full of institutionalized racism, therefore we need to reform the criminal justice system!”
People will say stuff like that, and dig in like Texas ticks, yet when you wring the mop out, it is really just somebody’s opinion that there is a lot of Institutional racism (IR), and no connection is even attempted between IR and why little Dequarius just shot Deshontoronius and Lakeesharonda over a dissing him.
So I think they are both for real, and not stupid or anything, but more like they are just unable to consider facts not a part of their Democratic Belief Credo. They can think, but they just can’t think new thoughts. Their thoughts have to stay in that narrow channel of their Democratic Party worldview.
Squeeky Fromm
Girl Reporter
Squeek, When the Canusk first got here he said he hated the duopoly. Turns out to be a lie. He is Mr. Duopoly. I know he’s not a parody. I still think philly might be.
@PaulCS
Neither him, nor some of the other partisan shills give a hoot about the facts. They just pretend to care about facts, so people won’t automatically tune them out as shills, hacks, and people who are Democrats as a matter of some religious-like faith.
They only give us a Potemkin Village of an argument, something to mask the all the emptiness and phoniness hiding behind the facades.
Squeeky Fromm
Girl Reporter
PS: I am about to do something really stupid, and probably a big waste of time, which is to read Ezra Pound’s Cantos. Which you are probably one of the few people here even know who he was. I also bought the companion book which explains them. Which is bigger than the cantos themselves. You might like this I stumbled across:
http://www.newyorker.com/magazine/2008/06/09/the-pound-error
Squeeky – you are on your own with Pound, I was never a fan. 😉 But enjoy.
@Johnna
the TPP is NAFTA on steriods. A death knell for the nation, state’s rights, the environment.
Johnson says he is the only one that is not against the TPP. He has a better chance of getting in the debates. His poll number are 3 to 4 times higher than Stein’s
johnna
Johnson is pro TPP as is HRC. Only Jill and Trump are against it. The TPP is NOT about free trade rather corporate control.
Stein was denied ballot access in Georgia .Her vp a kook. if you are a libertarian leaning republican vote Johnson Weld. The only free trader running is Johnson.
It is interesting that Professor Turley’s first attempt to address Mr. Trump’s views is to basically say, “He’s right…” and be dismissive of all who find Mr. Trump’s views at best “problematic”. Just an FYI for all as I wish all a nice weekend: http://www.mediaite.com/online/the-daily-show-launches-its-own-version-of-extreme-vetting-of-trump-supporters/
@issac
re: “There is no Stein or anyone else.” Delusional as usual. Stein is getting more and more support. We are very much looking forward to voting for her!!
During the primary HRC could barely get a crowd of 300 – and that was when Bon Jovi appeared with her in NJ!! Bernie and Trump packs in thousands.
Why do you think they cancelled the exit polls?
Why did the DNC bring in white noise machines to cover up the angry delegates from CA and OR chanting LOCK HER UP.
Where do you think these voters are going to come from to vote for her? Another planet? ZERO enthusiasm.
@Isaac
Blah blah blah. You are a “Liberal Democrat” at heart, and thus there is little or no chance that you would ever say anything positive about any Republican candidate, much less vote for one of them, if you are a citizen. (NickS says you are a Canuck.)
There are a limitless number of people like you, who come out as if they were non-partisan and just giving an arm’s length analysis of the situation — and the whole schtick is just that, a schtick. And people who run the schtick, tend to throw in the kitchen sink of bad names and canards, while they pose as disinterested little observers who are above the fray, and don’t have a dog in the fight. Oh No, they are just providing a public service by offering their opinion. It’s like when the Commies used to run those front organizations like “Patriotic American Citizens for World Peace” who were really just interested in decreasing the defense budget so the Ruskies could keep up better.
It is pretty obvious that you are running the schtick because you throw in the “incompetent” charge a couple of times. Huh? The guy actually accomplishes a real thing – – – he gets buildings off the ground. Nice buildings, that people rent, and use, and stay in. Whatever else you may say about him, “incompetent” isn’t anything but partisan schtick talk.
Meanwhile, even her supporters struggle to name a single accomplishment by Hillary. Although I think she is great at selling the emollients of office! (Along with other salves, lotions, and creams!)
Squeeky Fromm
Girl Reporter
PS: Yes, I know the right word. . . 🙂
Want a little extra credit on why Trump should never be president? It’s all about to whom he owes money. To wit, Bank of China, Goldman Sachs, and others, to the tune of $650 Million for his enterprises, and more than $2Billion from businesses in which he owns a stake. Still think he’s going to negotiate “hard” with China?
And god knows what he’s into the Russians for.
http://www.nytimes.com/2016/08/21/us/politics/donald-trump-debt.html?smprod=nytcore-iphone&smid=nytcore-iphone-share
ps: if your argument here is to blame the NYTimes, please don’t bother. Find some evidence that they’re wrong.
phillyT – even a new business owner operates on debt. I am not sure what your problem is. I know I could not talk banks into giving me 2 billion, but Trump can. 500 businesses and 4 bankruptcies. That is a remarkable record.
issacbasonkavich
Right on target. !00% correct analysis of the situation.
Trumpsters, commence trashing in 3…2…1…
What it comes down to is Trump or Clinton. There is no Stein or anyone else. If all those who voted for Ross Perrot had voted for the elder Bush then he would have had a second term. If all those who voted for Nader had voted for Al Gore then there would not have been an Iraq war and the chaos would be Afghanistan only. There are these mindless idiots on both sides who make nonsensical statements to themselves at the cost of their side.
So, either vote for Trump or Clinton. Anybody who votes for Stein or any other impossibility is nothing more than a half-#*s chicken-*@&t. The support for change has to come from the bottom up. There is no chance of change with either Trump or Clinton. Clinton is establishment and Trump is simply incompetent. The only possible positive result of this election is stability and some forward motion. Trump is chaos and incompetence personified; in fact no one really know what Trump is, Trump included.
Clinton is transparently a consummate politician with all the slime, sleaze, and strings. However you know what you get and you also get the most experienced person in all aspects. Trump is a consummate liar, cheat, and sociopath. Both have their faults but Trump’s include areas that simply do not jibe with running a country, or at least not one outside of some third world collection. Comparing Clinton’s transgressions with those of past Presidents: Nixon, Reagan, Bush Jr., she comes off looking like the better choice or the least evil. Personally I would take: Nixon, Reagan, and even Bush Jr. over Trump any day. The man’s a buffoon.
Ooh Ooh
Steve,
MY theory is that Donald Trump actually died years ago and this whole thing is a put-on by Andy Kaufman who actually DIDN’T die. As usual, though, he took his stunt too far and now that everyone failed to laugh him off the national stage, he’s taking this to it’s natural conclusion, Kaufman-style, which is to run it into the ground and then disappear. Mark my words, you heard it here!
Oh, also, I think Bernie came from the past to rescue us from our insane selves but froze up during his last upgrade and was unable to finish.
And want to know what’s up with Hillary? She actually is operating in four parallel universes and, through some gravitational variation that is well-known to Arkansans, continues to slip back and forth between another dimension where everything she’s done is not only legal AND moral, but is applauded by her followers. That’s why she keeps being surprised that things aren’t going better for her, and keeps making astonishing errors in judgement.
As for Jill Stein, she was actually born Ralph Nader and had a sex change operation about fifteen years ago after screwing up the Gore election and realizing that 9/11 never would have happened on his watch. S/he was going to live quietly as a New England doctor, but after Bush crashed the economy, s/he went crazy and thought it would be best ifs/he ran for office again to try to correct her/his terrible error in the 2000 election, not realizing it was the SAME stupid mistake all over again. Notice how you never see the two of them in the same place? Right?
phillyT writes, “Want a little extra credit on why Trump should never be president?”
Here’s a piece on why a Democrat should never be in the White House:
http://www.counterpunch.org/2016/08/19/hillary-and-the-war-party/
Are the Clinton’s still funding Correct the Record trolls?
@PhillyT
@Simon
another video you might enjoy
@ Steve
re: “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.”
My theory is that Bernie served as a Trojan Horse – he knew that the Demoncratic National Corporation would steal the primaries from him, but he continued his mission and get his message out there to millions of Progressives. Bernie was able to implode the DNC and expose the corruption from an inside vantage point. When he endorsed her and asked us to vote for HRC he knew full well we would not – after all she represents everything he railed against. And the DNC wouldn’t even stand up against the TPP.
We are still Bernin’ and firmly united in opposition to HRC as well as the craven status quo pols – Pelosi, Boxer, Lewis, etc.
We are helping Tim Canova, Tulsi Gabbard, Lucy Flores, Zephr Teachout, Bao Nguyen, etc.
All the enthusiasm is going for Jill — and for Trump.
JillnotHill 2016
Steve
Clinton may very well carry on the current policy in the Middle East, though I have a feeling she will change the course Obama has been following.
Still 1000 times better than Trump and his “curiosity” about why we can’t use nuclear weapons. Think he was kidding?
Yes. It matters.
The mutilated child in Aleppo, and the tens of thousands of others,is the responsibility of Assad. Period. The man is insane.
phillyT writes: “The mutilated child in Aleppo, and the tens of thousands of others,is the responsibility of Assad. Period. The man is insane.”
I infer that US airstrikes which kill hundreds of innocents in Syria are Bashar al-Assad’s fault?
The US is insane for being there, and the weight of the evidence shows that we’re there not for humanitarian reasons but for economic reasons – through maintaining instability in the region – including preventing the Russian natural gas pipeline from happening. If you believe in this effort, you’re a neolib/con.
phillyT writes, “But in my opinion, there’s no time to be wasted voting for Jill Stein. And it would be a waste, and we cannot afford it.”
That’s been the narrative all along in the neolib/con period. It hasn’t worked. In fact, it has become increasingly worse, yet you’re still clinging for hope and change.
Clinton will do nothing to change that narrative when she’s elected because polls will no longer influence her decisions to any meaningful extent. She’ll only help those who funded her election.
As for Trump as the next Hitler, does it matter? When we all know Clinton will kill tens of thousands of innocents in the Middle East, does it matter that Trump will not only create class warfare but racial warfare?
Are three lives more valuable than one? Perhaps in actuarial terms, but not in moral terms. I have more faith in my fellow moral citizens that when things go south, “[a]ll we have to fear is fear itself.”
Your thinking is the foundation of the problem, and the plutocracy governing us knows it. Remember the mutilated child in the streets of Aleppo when you go to the polls.
Steve Groen – please explain how Trump is going to create race warfare? George Soros has already done that.