James Taranto (!!!) of the Wall Street Journal Editorial Page has a remarkable piece on reactions to Trump’s proposal to stop letting Muslims into the US "until our country’s representatives can figure out what is going on.” Taranto thinks it may not be a bad idea, and that the people who think that it’s illegal (“conservative” Jim Geraghty at NR thinks that the First Amendment applies to foreigners, and law professor Stephen Loehr thinks the Fourteenth Amendment does) are not only wrong but are committing political suicide. The point is that both Democrats and Republicans are opposed to the wishes of the actual voters—which is why Trump could very well win as an independent.
Here’s Taranto on both the legal aspects—the First Amendment stops at the border—and the political aspects of the bipartisan refusal to face facts.
All of these claims are mistaken. Quite obviously the Constitution’s provision on religious tests for public office has no application to immigration policy. The Equal Protection Clause of the 14th Amendment is equally irrelevant, as it applies only to states. (It does prohibit state discrimination against aliens, including in some contexts illegal aliens, but decisions about which aliens to admit are entirely under federal purview.)This is a subscriber link, by the way. If you have trouble making it work, try here.
Yale-Loehr is correct that the Trump proposal requires an act of Congress, but that act has already been enacted. Title 8, Section 1182 of the U.S. Code provides in relevant part:
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.What about the First Amendment? Would a religious exclusion for immigrants violate their right to free exercise?
That is a novel legal question; as far as we know Congress has never enacted, nor the executive branch practiced, such an exclusion. But the 1972 case Kleindienst v. Mandel strongly suggests the Trump proposal would pass muster.
Ernest Mandel, a Belgian journalist and self-described “revolutionary Marxist,” planned to visit the U.S. for an academic conference. He was denied entry pursuant to a (since-repealed) law that excluded aliens “who advocate the economic, international, and governmental doctrines of world communism or the establishment in the United States of a totalitarian dictatorship” or “who write or publish . . . the economic, international, and governmental doctrines of world communism or the establishment in the United States of a totalitarian dictatorship.”
Mandel and his colleagues argued that the exclusion violated the right to free speech. In a decision for a 6-3 majority, Justice Harry Blackmun wrote (citations omitted):
It is clear that Mandel personally, as an unadmitted and nonresident alien, had no constitutional right of entry to this country as a nonimmigrant or otherwise.
The appellees concede this. Indeed, the American appellees assert that “they sue to enforce their rights, individually and as members of the American public, and assert none on the part of the invited alien.”
The case, therefore, 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.To that question, the justices also answered “no.” That’s not to say Mandel had no free-speech rights under the U.S. Constitution. Had the government sought to forbid publication of his work, or to prevent or punish his participation in the conference by electronic means from outside the country, he would have had a strong claim.
But the government’s authority to set immigration policy, at least as applied to nonresident aliens, outweighs any free-speech claim an alien may wish to assert. Logic would suggest the same is true of the First Amendment’s other protections.
(The Hill’s Ben Kamisar reports that he asked the Trump campaign yesterday if the ban would also apply to U.S. citizens, and a spokesman replied: “Mr. Trump says, ‘everyone.’ ” Excluding U.S. citizens from re-entering the country would be plainly unconstitutional. Trump later backtracked, consistent with the generally offhand character of his campaign. It’s worth emphasizing that like “Muslim databases,” this very bad idea originated with a reporter, not Trump.)
The proposal itself, however, was not so offhand. Andrew Prokop of the young-adult website Vox argues that Trump had two “strategic objectives” in mind:
First, he ensures his continued dominance of the headlines.
Second, he proves to the segment of Americans who might secretly agree with him that, once again, he’s willing to say the things ordinary politicians of both parties won’t.But why “secretly”? Another Vox article, written by Zack Beauchamp and also published yesterday, calls attention to a poll by the Public Religion Research Institute that asked respondents if they agreed with the statement “The values of Islam are at odds with American values and way of life.”
Vox’s headline announces the results for Republicans, 76% of whom agree. But the view is shared by a majority of all respondents (56%) and independents (57%) and a substantial minority of Democrats (43%). Blacks and Hispanics are evenly divided, and majorities of every Christian subpopulation, including black Protestants, agree.
Our own view of the question is complicated. Certainly Islam and the American way of life are compatible inasmuch as America is capable of welcoming Muslims who are not Islamic supremacists. On the other hand, it’s always struck us that categorical statements to the effect that Islam is “a religion of peace” are far more hortatory than empirical—which is to say that there is a gap between Islam as it actually exists and Islam as President Bush or President Obama would like it to be. How wide that gap is, and how dangerous, we do not know.
Thus Trump’s proposal for a pause in Muslim immigration “until our country’s representatives can figure out what is going on” strikes this columnist as entirely reasonable. That’s not to say it’s necessarily a good idea. There are potential costs in American-Muslim relations both internationally and domestically, and humanitarian costs as well. There are practical questions about how it would be implemented. The religious-freedom argument, although legally empty, is not without moral force.
Instead of debating the proposal in a reasoned way, the political class—both parties—and many in the media are treating it as a thoughtcrime. Yet the PRRI poll suggests a large majority of Americans are thinking along similar lines.
The Washington Examiner’s Philip Klein summed up the politics in a tweet yesterday: “@realDonaldTrump will get days of coverage in which GOP rivals, Obama, Clinton, media, will all sound same. This is bad for him how?”
Did Trump Just Win? | His Muslim-exclusion idea is likely to prove popular, by By James Taranto, WSJ, December 8, 2015
To sum up Taranto's position in VDARE.com terms, the bipartisan, "better-dead-than-rude" Establishment position is likely to lead to the Establishment losing out—and possibly being replaced by a Generic American Party.