Of Course The President’s Ban Is Constitutional

Constitution,Donald Trump,IMMIGRATION,Islam,Justice


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. —The 1952 Immigration and Nationality Act, Section, 212(f).

President Donald Trump’s moratorium on the entry of all refugees into the United States, and “an order for ‘extreme vetting’ as a condition for entry for some foreign citizens,” is constitutional. This is old hat; discussed, too, in my book, “The Trump Revolution: The Donald’s Creative Destruction Deconstructed.” (June, 2016).

No fan of the executive order, constitutional scholar Jonathan Turley says he disagrees with his “colleagues at George Washington University Law School and other law schools that the order is clearly unconstitutional”:

…Courts are not supposed to rule on the merits of such laws but their legality. I think that the existing precedent favors Trump.

First, this is not a religious ban. When it was first discussed on the campaign, it was described as a ban on Muslims. This is not a religious ban. It certainly can be opposed as having that effect but there are a wide array of Muslim countries not covered by the ban and would not be impacted by the restrictions. A court cannot in my view treat this order as carrying out a religious ban as it is currently written. (Trump’s comments that he wants to prioritize Christians could raise more compelling arguments of religious discrimination).

Second, the law largely suspends entry pending the creation of new vetting procedures. That is based on a national security determination made by the President. Courts have generally deferred to such judgments. A president’s authority is at its zenith on our borders. Hillary Clinton herself campaigned on carefully vetting refugees (though she favors increasing such entries). In a November 2015 national security speech at the Council on Foreign Relations, Clinton said “So yes, we do need to be vigilant in screening and vetting any refugees from Syria, guided by the best judgment of our security professionals in close coordination with our allies and partners.”

Finally, there is precedent for limited entry from particular countries going back to some of the earliest periods in this country. The earlier immigration laws include the 1875 Page Act which focused on Asian immigrants and those believes to be engaged in prostitution or considered convicts in their native countries. Then there was the infamous 1882 Chinese Exclusion Act. Then there were other measures limiting immigration from particular areas like the 1906 “Gentleman’s Agreement” (Japanese aliens) and the or the 1917 Immigration Act (“Asiatic Barred Zone”). In 1921 and 1924, Congress passed the “Quota Acts” limiting entry from disfavored countries. of nations from whom no further immigrants would be accepted. In every case, immigration policy continued to develop as a series of widening, discriminatory exclusions. It was not until 1965 that we broke from our long and troubling history is such discrimination. However, The 1952 Immigration and Nationality Act contains section, 212(f) that gives sweeping authority on the exclusion of certain aliens: …


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