Trump’s Muslim Ban and Constitutional Legality

There is no ambiguity in the law and it leaves no room for doubt.

On December 7, Republican presidential candidate Donald Trump called for a “total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on.” The announcement came on the heels of the San Bernardino massacre committed by two Muslim extremists one of whom was a citizen of Pakistan who entered the United States on a K-1 (fiancée) visa.

While Trump’s announcement received support from several quarters of the American public and conservative media, it drew immediate condemnation from many on both the Left and the Right -- with some even questioning the constitutionality of such legislation. White House Spokesman Josh Earnest let loose with a torrent of pejoratives directed at Trump, taking aim at his “fake hair” and stated that his position “disqualifies him from serving as president.” Hillary Clinton, who stands to gain most by seeing Trump surge in Republican polls, echoed those sentiments, noting that Trump’s comments were “shameful,” “wrong,” and “dangerous.”

Numerous Republicans too expressed outrage. House Speaker Paul Ryan denounced Trump in rather harsh terms noting that Trump’s position does not reflect the ideals of the Republican Party. Republican presidential candidate Lindsey Graham said he was “disgusted” by Trump’s comments and urged his party to “tell Donald Trump to go to hell.”

Regardless of whether one agrees with Trump’s blanket Muslim ban or not – and I do not – there is no doubt that from a legal perspective, Trump is on solid footing and is empowered to enact such restrictions under federal law by virtue of Title 8 of the United States Code. 8 USC §1182(f) states 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…”

There is no ambiguity in the law and it leaves no room for doubt. If the Commander in Chief recognizes or perceives a danger, he may act in a manner consistent with Trump’s December 7thproclamation. Moreover, there is ample precedent for such action. On April 7, 1980, in response to the Iran hostage saga, Jimmy Carter issued a similar ban on the issuance of visas to Iranian nationals.

However, there was no similar indignation or public outcry when Carter issued his ban on Iranian nationals as Trump has experienced. More importantly, it was Obama’s lax attitude toward border control and failure to properly prioritize national security threats that has compelled contemplation of such drastic action. Anger and frustration should be properly directed not at Trump’s comments but at a president who was responsible for allowing our borders to become porous, who maintained a grossly lax immigration policy and who identified “climate change” — and not ISIS or a nuclear Iran or a resurgent Russia and China — as our nation’s top national security threat. 

While Trump’s proposal would likely withstand constitutional challenge, the salient question is whether a blanket ban represents smart policy and whether US interests might be better served by alternative plans that would properly prevent dangerous elements from entering the country without adversely affecting our relations with important Muslim allies like Jordan, Egypt and Saudi Arabia. All three nations are partners in the fight against ISIS and Saudi Arabia has played a constructive role in thwarting Iranian influence in Yemen. A blanket ban on Muslims would likely produce a negative backlash and complicate US efforts to combat the ISIS menace and Iranian imperialism.

One alternative to a blanket ban on all Muslims would be to increase scrutiny on those coming from certain problematic countries or regions such as Pakistan, Chechnya, Syria, Iran, Iraq, Sudan and Lebanon. Visas could also be withheld from those expressing anti-Semitic and anti-Israel views or other forms of xenophobia. Refugees, who request humanitarian entry into the U.S., ostensibly to escape persecution, should be disallowed from doing so if they harbor xenophobic views. Those who claim to be escaping persecution but are perfectly willing to persecute others or otherwise entertain racist views should no longer expect any mercy or latitude from the United States.

Many refugees currently fleeing to Europe and North America from Muslim lands harbor deeply anti-Semitic viewpoints that cross into conspiracy theory. Some maintain the belief that Israel seeks to control the entire Middle East, while others subscribe to the view that the “Jewish lobby” seeks to perpetuate bloodshed in Syria. Jewish leaders in various European countries have already expressed legitimate fears that the refugee influx will produce even more anti-Semitism and xenophobia on the continent.

Moreover, it has now come to light that the San Bernardino shooter’s father, who was living the American dream, was also deeply anti-Semitic, expressing the view that Israel would be destroyed in two years and that all Jews living there would then be shipped off to Ukraine. Sayd Farook passed his hate gene to his son, Syed Rizwan Farook, who in turn, murdered 14 people. Sayd Farook, a Pakistani national, should never have been permitted entry into the United States.

Obama has attempted to reassure a skeptical constituency that Syrian and Iraqi refugees, as many as 100,000 of them, would be carefully screened and vetted before being granted residency in the United States, but the San Bernardino shooting has torn Obama’s credibility to shreds. Tashfeen Malik, Seyd Farook’s partner in crime and Pakistani Jihadi bride entered the U.S. on a K-1 (fiancée) visa and underwent two separate screenings by Homeland Security and the State Department before being granted a visa and underwent a third before obtaining her green card. Yet despite “rigorous vetting,” these agencies failed to uncover her social media rants, which were rabidly anti-American and supportive of terrorism.

The case of Tashfeen Malik demonstrates with utmost clarity that the system is plainly broken. In light of San Bernardino as well as other acts of international and domestic terrorism, it would be incredibly irresponsible at best for the Obama administration to move ahead with its plan on absorbing the refugees.

In the meantime, while Trump has been vociferously criticized for making comments that some view as being antithetical to America’s sense of values and harmful to America’s interests, he should at least be given credit for raising a serious national security issue that compels action and warrants redress. And his Muslim ban, whatever one thinks of it, is on sound and legitimate footing within the U.S. legal framework. 

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