Semantics could save Trump’s immigration plan to block Muslims
© Getty Images

The leading Republican candidate for president has essentially called for a total transformation of our country’s immigration policy. Following his statement concerning Mexican immigrants as rapists and drug smugglers, where he came dangerously close to lumping all Mexicans into these two groups, some pundits thought it was the beginning of the end for Donald TrumpDonald John TrumpRosenstein expected to leave DOJ next month: reports Allies wary of Shanahan's assurances with looming presence of Trump States file lawsuit seeking to block Trump's national emergency declaration MORE.

Some of the greatest legal scholars from the finest universities in this country cannot seem to agree on whether Trump’s plan to block Muslims entry into our country passes constitutional muster. The majority appear to agree however that the move would be antithetical to what we stand for as Americans. 


In the past, Congress has acted to bar certain nationalities from entering the United States using its ‘plenary power.’ For instance, from 1882 to 1943 Chinese nationals were prohibited from coming here under the Chinese Exclusion Act. The act was based on little more than bigotry. Politicians running for president in 1888 routinely used words like “parasites” and “putrid carcasses” to describe the Chinese, according to a recent article in the Washington Post. Certain people feared that the Chinese would edge out whites in America.

During the Iran Hostage Crisis of 1979, President Carter, in conjunction with Congress, invoked the Nationality Act of 1952 to disallow Iranian citizens from coming to our shores.  In addition, non-resident Iranian students within our borders were required to register with the Immigration and Naturalization Service. If the non-resident Iranians were “overstays” or their paperwork was somehow otherwise problematic, they could be ordered deported from the country on an expedited basis.

Higher courts have typically denied challenges to these types of actions. In Narenji v. Civiletti, 617 F.2d 745 (D.C. Cir 1979), the federal appellate court in Washington, D.C. upheld the action both on domestic constitutional grounds, but also found that the Act comported with International Law. 

Citing Harisiades v. Shaughnessy, the court stated “The status of Iranian Aliens cannot be disassociated from their connection with their mother country since the alien leaves outstanding foreign call on his loyalties which international law not only permits our government to recognize but commands it to respect.”  342 U.S. 580 (1951). So fierce allegiance to the motherland is also on the list of concerns for some.

The Appellate Court ultimately concluded that the actions of the President and the Attorney General “bear a reasonable relation to protection of the legitimate interests of the United States,” and comport with due process requirements.

So we kept out the Chinese because we just didn’t like them. We kept out Iranians during a period of utter turmoil around the hostage crisis based on their Iranian national origin. A search of cases and other material reveals that we’ve never excluded a group of people based on their religion, nor have we removed nonresident aliens based on their religion. And this could be a point of disagreement among the experts. 

For an NPR segment, renowned Harvard University Constitutional Law Professor Laurence Tribe stated that he’s certain Trump’s proposal would violate the constitution. Tribe explained that while it’s true not all constitutional protections apply to foreign nationals, he believes, based on his interpretation of case law, that the First Amendment’s guarantee of religious freedom does, and the Fifth Amendment’s guarantee of due process does as well. In an e-mail to NPR, Tribe writes: “And the First Amendment is a flat prohibition on actions that the U.S. government may take, including those that respect ‘an establishment of religion’ or prohibit ‘the free exercise thereof.’”

But what if the religious group made up of foreign nationals claiming constitutional protections based on religion intended to do harm to the United States. And this group, ISIS for instance, has a history of attacking people under the guise of Islam, albeit employing a radical bastardized interpretation of the Koran. Doesn’t this change the conversation? Hypothetically, couldn’t any extremist group come together and form a religion in order to avail themselves of constitutional protections? When the religion is the basis for governance—think Koran as the country’s “constitutional” authority—doesn’t that change the analysis if the “constitutional authority” directs its citizens to wage war against the United States?

Conservatives have criticized the Obama administration for not using the term “radical Islam.” Liberals respond by saying that ISIS isn’t practicing Islam or any form of it; they’re just practicing terrorism. Maybe that’s the hook right there. If it’s unconstitutional to ban Muslims on religious grounds, then let’s adopt the Left’s position that the radicals we are trying to prevent from coming here are not religious at all, and therefore can be banned without a chance of constitutional challenge. But then who do we target in this fluid and porous world of terrorists, and how best do we safely sift them out while maintaining the dignity of good people wanting to come to our country for a better life?

It would seem that we would have to establish a much more rigorous vetting process before we issued VISA’s to anyone wishing to come into this country. Perhaps background checks, polygraphs, and sponsorships and yes, some type of monitoring once they are here? A probationary period for example? And maybe a moratorium on issuing VISA’s while we redevelop our policies and procedures is a good idea. Exceptions can be made for the sick or the elderly, or those fleeing war torn areas of the world where they face persecution or certain death if they remain. However, these individuals have to be screened just as carefully, and unfortunately this takes time.

Countries will have to step up cooperation in terms of sharing intelligence about potential terror suspects and to assist with the vetting process.

While it’s true that Trump’s populist bravado turns important issues upside down at times, the security of our country is a major concern among voters, hence his lead in the polls. The middle ground lies in ensuring that foreign nationals from all countries feel they’re given a fair shot of coming to the United States.  However, and this is a big however, they must understand that submitting to a rigorous screening system is a necessary requirement. Finding an effective balance won’t be easy, but it will certainly be consistent with what we, as a country, claim to be our values; this in a time of perhaps unprecedented fear of terrorist attacks on our soil—from within.

McKenna is a legal advocate with Anelli Xavier, P.C., and author of Sheer Madness: From Federal Prosecutor to Federal Prisoner, a memoir.