By Matt Rooney | The Save Jersey Blog
In Korematsu v. United States, Save Jerseyans, the U.S. Supreme Court infamously upheld Democrat Franklin D. Roosevelt’s 1942 executive order interning 110,000 Japanese American citizen.
Years later, Justice Antonin Scalia agreed with the dissent of Justice Robert Jackson which chillingly warned how “[t]he principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition embeds that principle more deeply in our law and thinking and expands it to new purposes.”
But Scalia also advised students at the University of Hawaii that they were “are kidding yourself if you think the same thing will not happen again,” adding “[i]n times of war, the laws fall silent.”
Here we go again.
Our war with ISIS – which remains one-sided since the Obama Administration has yet to engage it – recently led presidential candidate and cartoon character Donald Trump to fish for votes by going full-shock jock and calling for a blanket ban on Muslim immigration to the United States.
I’ll grant from the onset that discriminatory immigration policy is legally distinguishable from actions impacting current citizens.
Scared and angry supporters are nevertheless taking to television, radio and social media to cite Jimmy Carter‘s ban Iranian immigration ban of 1980, and deportation of Iranian students as justification on the sole basis of hypocrisy, failing in the process to note how a country holding hostages and an entire world religion are apples and oranges, respectively. There’s a substantive difference if not a legal one depending upon which scholar you ask.
On the constitutional front, they’ve cited the tool utilized by Carter to get it done: US Code 1182, authored by Democrats and signed-off on by Truman in 1952…
Suspension of entry or imposition of restrictions by president. 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, the president 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.”
Yup, we’ve got Rush Limbaugh and Republican Trumpies defending Democrat presidents’ executive excesses.
Welcome to democracy. Dangerous weakness inevitably gives way to crisis when strongmen like Trump step into the breach to seize upon an equal and opposite reaction against the status quo. There’s always a way to read the law to support almost any position. Again, we’ve been here before, like back when the wrongheaded Chinese Exclusion Act was overturned in 1943 before U.S. Code 1182 was enacted.
Yes, a President Donald Trump could probably ban Muslim immigration for a time since U.S. presidents are powerful and the oft-cited 2012 U.S. Citizenship and Immigration Services policy memorandum is exactly that… policy, not legal precedent. He might even get away with interning U.S. Muslims if popular opinion continues trending his way on this issue. The current state of executive authority is broad as demonstrated by the fact that Barack Obama has unconstitutionally assumed Congress’s plenary power over immigration policy over the past few years.
But does that make it right? Or consistent with the spirit of the First Amendment? Isn’t banning an entire religion different than, say, pausing a deeply-flawed refugee program relating to a war zone?
If you don’t buy the moral argument, how about biting into a more practical one: would summarily banning all Muslims aid the cause of U.S. security? Not likely. For starters, you run the risk of giving ISIS a great new recruitment tool. You may inadvertently transform some of the roughly 3-to-4 thousand active duty Muslims in our military into the next Sgt. Hasan or alienate regional allies who we’d need to prosecute a ground war against ISIS.
You’re also overlooking causation, something we conservatives hate when liberals do it in the context of the gun control debate. The fact that MOST of these homegrown terrorists are, well, homegrown, such as the Chicago-born San Bernardino attack mastermind Sayed Farook, is being curiously ignored by most folks on both sides of the debate.
Are we interested in solving the problem? Or demagoguery to whip support for political gain?
None of the proposals on the table right now, logical or not, would’ve stopped San Bernardino from going down, folks. Period. End of sentence. By deluding ourselves into believing otherwise, we’re avoiding the real problems: (1) a war with ISIS that we’ve yet to fight and (2) a system that isn’t assimilating immigrants. That discussion should be happening right now. It’s not. We’re debating Donald Trump and that’s a lost opportunity.
And what’s more, after criticizing the current president for dictating immigration policy by executive order, are Republicans really going to suggest that the solution is for another autocrat from our side of the aisle to seize upon what could be argued is an unconstitutional abdication of congressional authority?
Slip – meet slope.
I don’t pretend to have all of the answers but I’ve yet to hear a Trump supporter address my concerns directly. Their logic, like the law in war time, has fallen silent. God preserve us.