Michael Gaynor
Donald Trump's temporary Muslim immigration ban idea is neither racist nor unconstitutional
By Michael Gaynor
December 12, 2015

Trump was vilified for his idea by Obama apologists and political opportunists across the political spectrum, but the first duty of the President of the United States is to protect the American people and Trump's basic point that a pause is needed now is neither racist nor unconstitutional.

Donald Trump called for a temporary cessation of Muslim immigration in response to recent terrorist attacks in Paris and San Bernardino, California.

Trump's concern is readily understandable, since President Obama had given assurance that ISIS was contained that was disproven days later by the Paris attack and has not ended the illegal immigration problem.

Some outraged Trump opponents promptly railed that Trump is a racist who would deny the First Amendment right of freedom of religion to Muslims.

BUT...(1) Islam is a religion, not a race; (2) radical Islam has been at war with the United States for many years, even though President Obama is loathe to call radical Islamic terrorism what it is; (3) aliens do not have a constitutional right to emigrate to the United States; and (4) the purposes of the United States Constitution, in the words of its preamble, are "to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity," not to allow unlimited immigration or to put "our posterity" at needless risk.

Rogue Planas, in "U.S. Immigration Law Is Racist Enough To Allow Trump's Muslim Visitor Ban" (www.huffingtonpost.com/entry/donald-trump-immigration-law-muslim-visitor-ban_5666ec0ce4b072e9d1c77979), condmened Trunp as well as racism.

In addition to conflating religion and race to suit his viewpoint, Planas lamented that "experts consulted by The Huffington Post say it would be legal for the U.S. to enact such sweeping restrictions without violating the Constitution because the Supreme Court has upheld flatly racist immigration restrictions in the past," citing an 1889 United States Supreme Court decision upholding the constitutionality of the Chinese Exclusion Act.

Planas should check out Kleindienst v. Mandel, 408 U.S. 753 (1972).

There, the United States Supreme Court held, 6 to 3, that in the exercise of its plenary power to exclude aliens or prescribe the conditions for their entry into this country, Congress delegated conditional exercise of this power to the Executive Branch and when the Attorney General of the United States decides for a legitimate and bona fide reason not to waive the statutory exclusion of an alien, courts will not look behind that decision or weigh it against the First Amendment interests of those who would personally communicate with the alien.

The majority opinion flatly stated: "It is clear that ...an unadmitted and nonresident alien...ha[s[ no constitutional right of entry to this country as a nonimmigrant or otherwise."

No party in that case dispute that.

After all, the Constitution is not a suicide pact.

Associate Justice Robert Jackson famously opined: "The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact."

Justice Jackson was right.

The first named plaintiff in Kleindienst v. Mandel was Ernest E. Mandel, a Belgian journalist, editor-in-chief of the Belgian Left Socialist weekly La Gauche and author of a two-volume work entitled Marxist Economic Theory. Mandel had applied for a visa and sworn that he was not a member of the Communist Party. He described himself as "a revolutionary Marxist." and did not dispute that he advocated the economic, governmental, and international doctrines of world communism.

Some "American academics" had invited Mandel "to participate with them in colloquia, debates, and discussion in the United States." As the Supreme Court summarized, ""they sue[d] to enforce their rights, individually and as members of the American public, and assert[ed] none on the part of the invited alien."

It was not disputed that Mandel had no right to enter the United States. Whether he should not be denied entry depended upon whether those "American academics" had a constitutional right to invite him into the United States derived from their First Amendment right to "receive information and ideas."

The majority explained: "The case...comes down to the narrow issue whether the First Amendment confers upon the appellee professors, because they wish to hear, speak, and debate with Mandel in person, the ability to determine that Mandel should be permitted to enter the country, or, in other words, to compel the Attorney General to allow Mandel's admission.

In ruling for Mandel and the "American academics," the District Court held that "[t]he concern of the First Amendment is not with a nonresident alien's individual and personal interest in entering and being heard, but with the right of the citizens of the country to have the alien enter and to hear him explain and seek to defend his views; that... is of the essence of self-government." 325 F.Supp. at 631.

Upon appeal, the Government disputed the District Court determination on two grounds: (1) excluding Mandel did not restrict First Amendment rights at all, since what is restricted is "only action – the action of the alien in coming into this country," and (2) the First Amendment was inapplicable because the appellee "American academics" had free access to Mandel's ideas through his books and speeches and tapes or telephone hook-ups sufficed as a substitute for Mandel's physical presence.

The majority was "loath to hold on this record that existence of other alternatives extinguishes altogether any constitutional interest on the part of the appellees in" the form of access to Mandel the appellee professors sought, but it reversed because "[r]ecognition that First Amendment rights are implicated...is not dispositive of our inquiry here."

The majority continued:

"In accord with ancient principles of the international law of nation-states, the Court...held broadly...that the power to exclude aliens is

'inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers – a power to be exercised exclusively by the political branches of government. . . .'"

"The Court, without exception, has sustained Congress' 'plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden'. ...'[O]ver no conceivable subject is the legislative power of Congress more complete than it is over' the admission of aliens....In Lem Moon Sing v. United States, 158 U. S. 538, 158 U. S. 547 (1895), the first Mr. Justice Harlan said:

'The power of Congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications.'

"Mr. Justice Frankfurter ably articulated this history in Galvan v. Press, 347 U. S. 522 (1954), a deportation case, and we can do no better. After suggesting, at 347 U. S. 530, that 'much could be said for the view' that due process places some limitations on congressional power in this area 'were we writing on a clean slate,' he continued:

'But the slate is not clean. As to the extent of the power of Congress under review, there is not merely "a page of history". . . but a whole volume. Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government. In the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process. . . . But that the formulation of these policies is entrusted exclusively to Congress has become about as firmly embedded in the legislative and judicial tissues of our body politic as any aspect of our government. . . ."

'We are not prepared to deem ourselves wiser or more sensitive to human rights than our predecessors, especially those who have been most zealous in protecting civil liberties under the Constitution, and must therefore under our constitutional system recognize congressional power in dealing with aliens. . . .'

"We are not inclined in the present context to reconsider this line of cases. Indeed, the appellees, in contrast to the amicus, do not ask that we do so. The appellees recognize the force of these many precedents. In seeking to sustain the decision below, they concede that Congress could enact a blanket prohibition against entry of all aliens falling into the class defined by §§ 212(a)(28)(D) and (G)(v), and that First Amendment rights could not override that decision. Brief for Appellees 16. But they contend that, by providing a waiver procedure, Congress clearly intended that persons ineligible under the broad provision of the section would be temporarily admitted when appropriate 'for humane reasons and for reasons of public interest.' S.Rep. No. 1137, 82d Cong., 2d Sess., 12 (1952). They argue that the Executive's implementation of this congressional mandate through decision whether to grant a waiver in each individual case must be limited by the First Amendment rights of persons like appellees. Specifically, their position is that the First Amendment rights must prevail, at least where the Government advances no justification for failing to grant a waiver. They point to the fact that waivers have been granted in the vast majority of cases.

"Appellees' First Amendment argument would prove too much. In almost every instance of an alien excludable under § 212(a)(28), there are probably those who would wish to meet and speak with him. The ideas of most such aliens might not be so influential as those of Mandel, nor his American audience so numerous, nor the planned discussion forums so impressive. But the First Amendment does not protect only the articulate, the well known, and the popular. Were we to endorse the proposition that governmental power to withhold a waiver must yield whenever a bona fide claim is made that American citizens wish to meet and talk with an alien excludable under § 212(a)(28), one of two unsatisfactory results would necessarily ensue. Either every claim would prevail, in which case the plenary discretionary authority Congress granted the Executive becomes a nullity, or courts in each case would be required to weigh the strength of the audience's interest against that of the Government in refusing a waiver to the particular alien applicant, according to some as yet undetermined standard. The dangers and the undesirability of making that determination on the basis of factors such as the size of the audience or the probity of the speaker's ideas are obvious. Indeed, it is for precisely this reason that the waiver decision has, properly, been placed in the hands of the Executive."

Immigration must be both legal and safe. Recent events indicate that President Obama has been minimizing the danger to the United States posed by radical Islamic terorism. Trump picked an attention-getting way to point that out. Trump was vilified for his idea by Obama apologists and political opportunists across the political spectrum, but the first duty of the President of the United States is to protect the American people and Trump's basic point that a pause is needed now is neither racist nor unconstitutional.

© Michael Gaynor


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)


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