Trump’s Anti-Muslim Plan Is Awful. And Constitutional. – Peter Spiro, The New York Times

Good piece by Peter Spiro on the constitutionality of race or religion-based immigration restrictions:

In the ordinary, non-immigration world of constitutional law, the Trump scheme would be blatantly unconstitutional, a clear violation of both equal protection and religious freedom (he had originally called for barring American Muslims living abroad from re-entering the country as well; he has since dropped that clearly unconstitutional notion). But under a line of rulings from the Supreme Court dating back more than a century, that’s irrelevant. As the court observed in its 1977 decision in Fiallo v. Bell, “In the exercise of its broad power over immigration and naturalization, Congress regularly makes rules that would be unacceptable if applied to citizens.”

The court has given the political branches the judicial equivalent of a blank check to regulate immigration as they see fit. This posture of extreme deference is known as the “plenary power” doctrine. It dates back to the 1889 decision in the Chinese Exclusion case, in which the court upheld the exclusion of Chinese laborers based on their nationality.

Unlike other bygone constitutional curiosities that offend our contemporary sensibilities, the Chinese Exclusion case has never been overturned. More recent decisions have upheld discrimination against immigrants based on gender and illegitimacy that would never have survived equal protection scrutiny in the domestic context. Likewise, courts have rejected the assertion of First Amendment free speech protections by noncitizens.

Nor has the Supreme Court ever struck down an immigration classification, even ones based on race. As late as 1965, a federal appeals court upheld a measure that counted a Brazilian citizen of Japanese descent as Asian for the purposes of immigration quotas.

In the context of noncitizens seeking initial entry into the United States, due process protections don’t apply, either. This past June, the court upheld the denial of a visa for the spouse of an American citizen based on the government’s say-so, with no supporting evidence.

The courts have justified this constitutional exceptionalism on the grounds that immigration law implicates foreign relations and national security — even in the absence of a specific, plausible foreign policy rationale. The 1977 Fiallo case, for instance, involved a father seeking the admission of his out-of-wedlock son from the French West Indies — hardly the stuff of national interest.

Indeed, contrary to the conventional understanding, President Trump could implement the scheme on his own, without Congress’s approval. The Immigration and Nationality Act gives the president the authority to suspend the entry of “any class of aliens” on his finding that their entry would be “detrimental to the interests of the United States.” President Obama has used this to the better end of excluding serious human rights violators.

But here’s the interesting thing: Just because Mr. Trump’s proposal has a judicial pedigree, that doesn’t make it “constitutional” in a broader sense. The Constitution and the courts are not synonymous, nor do the courts have a monopoly on constitutional interpretation. Politicians, the legal community, scholars and the public at large are all a part of our continuing constitutional conversation. Clear popular consensus can establish constitutional norms, with or without the courts.

The leading example comes out of the internment of Japanese-Americans during World War II. The Supreme Court upheld the internment in its 1944 Korematsu decision, and that ruling has never been judicially reversed. Technically, it remains good law. But it has been effectively overridden by other actors, and in the court of public opinion. A formal apology and payment of reparations, enacted by Congress and signed into law by Ronald Reagan in 1988, supplies the formal evidence. Korematsu continues to provoke popular shame.

We may be seeing that same shame at work today. Mr. Trump’s plan has triggered an uproar across the partisan divide. Perhaps a religion-based immigration bar may be consistent with court-made doctrine. But it doesn’t reflect our deeper, broadly assimilated understandings of the Constitution.

Source: Trump’s Anti-Muslim Plan Is Awful. And Constitutional. – The New York Times

About Andrew
Andrew blogs and tweets public policy issues, particularly the relationship between the political and bureaucratic levels, citizenship and multiculturalism. His latest book, Policy Arrogance or Innocent Bias, recounts his experience as a senior public servant in this area.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.

%d bloggers like this: