Trump’s Immigration Ban: It Could Happen, But Only If We Let It
Dec. 10, 2015 (Mimesis Law) — Donald Trump’s latest suggestion that Muslim travel to America be prohibited “until our country’s representatives can figure out what is going on” has provoked some pretty strong reactions from his fellow Republican presidential candidates. They range from Marco Rubio calling it “offensive and outlandish” to Ted Cruz’s somewhat qualified praise “for standing up and focusing America’s attention on the need to secure our borders,” though Cruz did add that it was “not his policy.” Even that friend of civil liberties and known apologist for Islamic extremism Dick Cheney chimed in, saying “it goes against everything we stand for and believe in.”
That’s somewhat encouraging. Apparently, even in the Republican party of 2015, there are still some lines Trump can’t cross without being called out. (We’ll ascribe the cheers he received when he first proposed the ban to the crowd being a self-selected sample of a) Trump supporters, who are b) from South Carolina. I can’t remember who said this originally, but half of American history consists of efforts to keep South Carolina from acting out.)
In the unlikely event Trump actually makes it to the White House, could he actually do this? He probably could, at least at first. Section 1182 of the Immigration and Nationality Act states that
“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.”
Of course, Congress could always amend the law if hypothetical President Trump tried to implement his ban. As for challenge in the court system, the Supreme Court stated in Kleindienst v. Mandel
We hold that when the Executive exercises [the power to exclude aliens] negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant. What First Amendment or other grounds may be available for attacking exercise of discretion for which no justification whatsoever is advanced is a question we neither address nor decide in this case.
That isn’t particularly encouraging, but the Court could always rule that banning all Muslims from entering the U.S. does not have a “facially legitimate or bona fide reason,” but that’s something that courts are usually reluctant to do.
Historically speaking, as Eric Posner points out, there is some precedent for discrimination against immigrants on the basis of religion. In 1891, in an attempt to curtail Mormon immigration, Congress passed a law banning the entry of polygamists, then extended it in 1907 to people who merely believed in polygamy. (The second part was later repealed, but the law itself was never found unconstitutional.) Besides, I have the feeling that even if the Supreme Court ruled against President Trump, he’s the kind of guy who would sneer, “Now let them enforce it!”
Take a step back. It was only a few weeks ago that most of the Republicans came out against admitting refugees from Syria. Jeb Bush, who called Trump’s proposal “unhinged,” actually said that we should only admit Christian refugees. That’s the state of the public discourse in this country: we’re debating whether or not we should ban all Muslims from entering the country or just the ones caught in the crossfire of a civil war.
The root problem is that we’ve succumbed to the idea that “everything is different now.” In some ways, this is understandable. From September 2, 1945 to September 11, 2001, we had a pretty good run. Good stuff happened, bad stuff happened, but for the most part our fear of violent death was limited to nuclear extinction. But since 9/11, we’ve “taken counsel of our fears,” and any time that happens there’s always a demagogue ready to take advantage.
Trump has actually used the internment of Japanese-Americans during World War II as justification for what he now proposes. Before 9/11, that was almost universally considered to be a black mark in our history. Trump isn’t the first person to rethink the issue. Pundits were writing best-selling books justifying putting Americans into camps in 2004. And every time that happens, the rest of us have to push back, like Justice Murphy’s magnificent dissent in Korematsu v. United States:
I dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must accordingly be treated at all times as the heirs of the American experiment and as entitled to all the rights and freedoms guaranteed by the Constitution.
Murphy kept his head in the middle of a far worse war than this one. We should follow his example, not Trump’s. We’re better than that.