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.
@squeek
So my husband cut me off from his FB because I kept posting political stuff. See, he is a reporter for our local daily and feels it is inappropriate – journalistic ethics and all that (a concept that escapes most of the MSM).
So, I have agreed to post only about art, family, etc.
Which brings me to cinema – do you watch foreign films? IMO “Palm Trees in the Snow” is one of the best films I’ve seen this year. Great story, cinematography and sound track. Of possible interest:
Autumn – you could always set up a 2nd account under your maiden name and post all the political stuff you want.
@squeek
Glad that Penelope is putting out great stuff. Thanks for correcting me. Honestly I am not into poetry much – Pablo Neruda, Rainer Maria Rilke, and very few others.
@Autumn
T.S. Eliot wrote “The Wasteland”. BUT, Ezra Pound was the guy who edited it and whittled it down to about 1/3 of it’s original size. One of the lines he cut out was “He do the Police in different voices.”
I am not sure we ever had an Ezra Pound poem in High School, because he was kind of a Fascist. Plus, most of his poetry is not that hot. OTOH, he was a huge fan of cats! He had like 3 of them.
Squeeky Fromm
Girl Reporter
Oh, and what about the near total blowoff by the MSM on HRC’s little Foundation Slush Fund??? You get a few stories here and there, but why isn’t the Washington Post, for example, putting 20 reporters on that story? Instead of trying to dig up dirt on Trump. Because there is no way whatsoever, the Foundation was not an OVERT conflict of interest while Hillary was SoS.
https://pbs.twimg.com/media/CqU8MI2UAAA8Dt3.jpg
Squeeky Fromm
Girl Reporter
@squeek
don’t be an elitist. Of course many of us know who Pound was. We all had to read “The Wasteland” in 11th grade honours English. You know, back in the day when dead white males were not removed from the required reading list. Personally I love Aldoux Huxley, George Orwell and John Hersey. Like Paul though I am not a fan of Pound.
If you want an illuminating read may I suggest Robert Frank’s most excellent book “Listen Liberal: Whatever Happened to the Party of the People?” by Thomas Frank. A tome no Hilbot would ever pick up.
Just returned from the library with “Sleeping Giant: How the New Working Class Will Transform American” by Tamara Draut as well as some spy novels
@Isaac
I live in SC which is going “yuuge” for Trump – like the rest of the states south of the Mason-Dixon. So not “squandering” my vote at all! And I see my local fellow Bernieorbusters now all have Jill Stein bumper stickers.
re: “[Trump} he has messed himself irreparably” WTF? Then why are his rallies overflowing? This Thursday in Charlotte, NC the doors opened at 4:30 PM – Trump and his surrogates were slated to go on at 7:30 PM. People arrived to stand in line at 9:30 AM (!!) because they didn’t want to risk not getting to see him.
HRC can’t even fill an elementary school playground – less of course she hires scabs like at the DNC convention in Philly.
@artd
Here is a link to a Sharon Attkisson story, who used to work for CBS:
http://www.teaparty.org/attkisson-id-begin-investigating-obama-scandal-cbs-pull-39210/
IIRC, either she or someone else flatly said they were pulled off a story because it would make Obama look bad.
Squeeky Fromm
Girl Reporter
Art Deco, I think if you inherited Daddy Drumpf’s estate, even you’d be a billionaire by now.
You haven’t inherited even a minimal talent for reading comprehension.
Art Deco writes, “Art Deco, I think if you inherited Daddy Drumpf’s estate, even you’d be a billionaire by now.
You haven’t inherited even a minimal talent for reading comprehension.”
Give me something other than your coy ego to read.
@ Art Obama’s approval rating is well over 50 percent.
1. It’s 52% per Gallup. Partisan Democrats can’t count.
2. He was consistently under water from May 2010 to Feb 2016, bar the period running from Sept. 2012 to Feb 2013.
3. His performance doesn’t stink any less because people are no longer paying attention.
4. It would be amusing to see what his ‘approval ratings’ would be if he had to contend with the press corps which covered Jimmy Carter or Lyndon Johnson. The press corps has favored the Democratic Party since the 2d World War, but they didn’t used to be extensions of the DNC press office.
Art Deco, I think if you inherited Daddy Drumpf’s estate, even you’d be a billionaire by now.
@simon
Support is at over 50 percent, because the MSM prefers to not report things which might make Obama look bad. I promise you if we had a Republican President right now, if Romney had won, the MSM would be tearing it up on:
The number of homeless;
The true number of unemployed Americans;
The number of people working only 29 hour work weeks;
The high rate of black unemployment;
The declines in real wages;
The payoffs to big Pharma in “Romneycare”;
The drone attacks in Pakistan;
The phony recovery driven by quantitative easing;
The number of millenials having to live at home; and
The number of senior citizens who can not afford to retire.
etc.
But, our press want to be on Obama’s good side! Why do you think they ask Ivanka Trump what she thinks about the way her dad treats women, and clams up asking the same question to Chelsea??? For just one example.
Squeeky Fromm
Girl Reporter
Building buildings, making big bucks even when going bankrupt several times, and all on his father’s dime, makes Trump a savvy realtor/developer.
Another time, another place, Isaac Whats-his-face may learn what ‘equity capital’ is or what the purpose of bankruptcy proceedings is. The proceedings concerned four discrete projects in which he was an investor (out of the scores of business ventures he’s prospered in since 1969).
On his father’s dime? Fred Trump had a net worth of $300 million at the time of his death in 1999. Given the changes in nominal domestic product per capita since then, a contextually similar sum today would be about $500 m. Donald Trump’s net worth is $4.5 bn. In real terms, Trump’s personal holdings are 30x what they were in 1974. They’d exceeded his father’s holdings in value by 1982. Trump’s father developed residential real estate and, in New York, stuck to the outer boroughs. Trump favored commercial real estate and resort properties and favored Manhattan.
@ Art Obama’s approval rating is well over 50 percent. Do you remember what Bush’s was in the last few months of his term? If Obama was just a bit less popular, birther Trump might have a chance to send him back to Kenya.
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,
Let’s see:
1. ISIS catastrophe
2. Iran deal
3. Hypertrophy of crony capitalism:
a. Auto-industry bailouts
b. Dodd-Frank
c. Obamacare waivers, waivers, waivers
d. Steven Chu, venture capitalist
4. Abuse of power:
a. Lois Lerner
b. Weaponized Department of Justice
5. Marvelous appointments
a. Holder / Lynch
b. ValJar
c. Ben Rhodes
d. Van Jones
e. Elena Kagan, Sonia Sotomayor
6. Glorious performance as chief of state:
a. Routinized displays of spite.
b. Gobs of pointless international travel (every trip requiring four planeloads of personnel and equipment)
c. Fundraisers galore (including the day after Benghazi)
d. Participation in sorosphere Alinskyite schemes (BLM, Trayvon my son).
e. Golf on Martha’s Vinyard. Flood waters in Baton Rouge
7. Precious moments:
–Nancy Pelosi hitting the mute button so he wouldn’t hear her and Harry Reid negotiating over the porkulus while he ran his mouth.
Conterpunch is to the far left what breitbart is to the far right or alt right. Must say that breitbart is the more effective o the two. They actually have a viable candidate in Trump.
Steve Groen,
War party? Hilarious!
W invades the wrong country, abandons the fight we SHOULD have been having in Afghanistan, thus ensuring that we get endlessly bogged down there. Thousands of Americans killed, tens of thousands wounded and TBI damaged forever, trillions in debt. Billions for Cheney’s company.
Yes, Hillary is the war party. Dems are at fault. No doubt about it.
In other news:
Roosevelt caused the Great Depression
Kennedy assassinated himself.
Liberalism causes earthquakes
Progressives are responsible for Katrina and Baton Rouge
Gay marriage causes tornadoes.
phillyT writes, “Yes, Hillary is the war party. Dems are at fault. No doubt about it.”
That’s correct. Nearly eight years after 43, you can’t pin Iraq on him, or Syria, or Yemen, or Libya, or Ukraine, or Honduras, or wherever else those A-holes meddle.
Go ahead though. After the election you can turn a blind eye, as many of us have done in the past. You’re the hope and change guy. I’m done with that charade. .
@IsaacB
Well first, you are back to your Dudley Manlove III routine of:
https://www.youtube.com/watch?v=qro7oBzUBos
But, that’s kind of a fun thing about you! I happen to like that movie, and think Ed Woods was a genius. Of a sort.
Second, you said ” 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.”
I would point out that your use of “enormously successful” is conditional and based on YOUR perception of the preceding eight years. Hey, it’s YOUR words. That is a hole big enough to drive a Mack Truck through. Then, you jump to basing Hillary’s presumed presidential term contingent on that same condition, and once again based on YOUR perception of the Bush years.
But there is a very good argument, that many problems which arose during the Bush years, were because of the preceding eight Bill Clinton years! For example, NAFTA, the repeal of Glass Steagall, the TANF reform, criminal reform, financial deregulation, weak response to terrorism,and the bombing of aspirin factories, etc. Viewed in that light, what you’re saying is:
“Obama has been enormously successful, when placed against the Bill and Hillary Clinton years, and Hillary Clinton will make what Obama did to fix the Bill and Hillary years, even better!”
Wow, what a wonderful endorsement??? Or more likely, “Hello. My name is Isaac Basonkavich, and I am addicted to the Democratic Party. . .”
Squeeky Fromm
Girl Reporter
Paul Schulte
I’m not sure why you have such a hard time following a line of thought all the way through, but I suspect it is your utter devotion to playing the contrarian no matter the cost to rationality or common sense.
The idea that Trump is indebted to the Chinese and the Goldman, for whom he roundly criticized Hillary for taking money, those are the issues. Not to mention Saudi Prince Alwaleed bin Talal who bailed out Trump at least once.
Everyone knows businesses borrow money. Anyone with common sense knows that you don’t do stuff to get your debts called, so any notion that Trump is going to play hardball with the Chinese or the big banks, (or really anyone for that matter), is naive at best.
Try following a thought all the way through.
I hardly find Trumps long long list of failed businesses impressive, but if you do, so be it. In a perverse way, I guess it is impressive how many people he has screwed along the way.
phillyT – I read the entire NYT article and found no real problems that Trump was having. They did not really see any problems either. Hillary already has bigger problems with more people.
Yep, Pound was a fascist supporter. Probably would like Trump.
@PaulCS
Pound kind of makes my eyes bleary, but I keep stumbling across words and phrases that have a force behind them. Or maybe it is just a farce behind them??? I do know that I wish he had not edited the words, “He do the Police in different voices” out of Eliot’s Wasteland. That just seems to belong. IMHO.
Squeeky Fromm
Girl Reporter