In a speech Monday Donald Trump outlined his proposal for increasing immigrant vetting, which the mainstream media immediately slammed as being “un-American” and “crazy.” But as several notable scholars point out, history and the law are on Mr. Trump’s side, not theirs. For example, as Professor George Borjas of Harvard’s Kennedy School recently quipped “If [they] just do a couple of minutes of googling before reacting, it would become very apparent very quickly that immigrant vetting has a very long tradition in American history.”
In his speech Trump said:
A Trump Administration will establish a clear principle that will govern all decisions pertaining to immigration: we should only admit into this country those who share our values and respect our people. In the Cold War, we had an ideological screening test. The time is overdue to develop a new screening test for the threats we face today. In addition to screening out all members or sympathizers of terrorist groups, we must also screen out any who have hostile attitudes towards our country or its principles – or who believe that Sharia law should supplant American law. Those who do not believe in our Constitution, or who support bigotry and hatred, will not be admitted for immigration into the country. Only those who we expect to flourish in our country – and to embrace a tolerant American society – should be issued immigration visas.”
The notion of ideological vetting sent the media into a frenzy but, as George Washington University Law Professor Jonathan Turley wrote in the Washington Post, “a litmus test for new immigrants isn’t unconstitutional or even unprecedented.” Professor Turley continued saying,
Trump would have considerable leeway in requiring background checks and imposing such tests. It has happened before: During the Cold War, there was ideological screening under the 1940 Alien Registration Act, designed to prevent the entry of communists, anarchists and others. Immigrants are currently required to know basic civics as part of a citizenship test, and Trump's extreme vetting would require visa applicants' affirmative agreement with those principles.”
According to Dr. James R. Edwards Jr.,
. . . screening for exclusions actually dates back to colonial times when governments placed restrictions on those seeking to settle in their jurisdictions. The Constitution later assigned Congress the task of establishing a uniform naturalization law but state restrictions remained in place until 1798 when the Alien Enemies Act passed. That measure, among other things, authorized the President to “apprehend, restrain, secure, and remove alien enemies residing in the United States during times of hostility with their native country.”
In 1875 Congress passed its first federal exclusion law. It prohibited the entry of criminals, the insane, and those unable to support themselves. After President William McKinley was assassinated by an anarchist, Congress in 1903 provided for the ideological exclusion and deportation of those who believe in or "advocate the overthrow by force of violence of the Government of the United States."
In 1952, Congress reorganized and codified existing immigration law, including exclusions, under the McCarran-Walter Act (also known as the Immigration and Nationality Act). The measure established exclusions that targeted a potential immigrant’s character, health, and ability and listed 33 categories of excludable aliens. Three of these concerned an alien's ideology. “Section 212(a)(27) kept out aliens who would participate in activities that would be prejudicial to the public interest or public safety. Section 212(a)(28) excluded aliens who belong to subversive organizations or teach or advocate prohibited views. Section 212(a)(29) barred aliens deemed likely to engage in subversive activities once here.” Congress adopted the latter two in response to the threat of Communist infiltration.
Court decisions and the 1990 Immigration Act weakened these exclusions and reduced the grounds from 33 to nine. Exclusions became more focused on activity than ideological beliefs. But the 1990 and subsequent laws retained one provision of the McCarran-Walter Act that empowers a president to respond to imminent ideological and other threats. Subsection (f) of 8 U.S. Code § 1182 states “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.” Although Mr. Trump has not cited the legal basis for his proposed exclusionary policy, many believe this measure would suffice.
The filtering questions include:
“Have you EVER engaged in, conspired to engage in, or do you intend to engage in, or have you ever solicited membership or funds for, or have you through any means ever assisted or provided any type of material support to any person or organization that has ever engaged or conspired to engage in sabotage, kidnapping, political assassination, hijacking, or any other form of terrorist activity?
“Do you intend to engage in the United States in:
b. Any activity a purpose of which is opposition to, or the control or overthrow of, the Government of the United States, by force, violence, or other unlawful means?
“Have you EVER been a member of, or in any way affiliated with, the Communist Party or any other totalitarian party?”
Given these filters, Prof. Borjas says,
Is it really that big a stretch to add questions that would expand the filtering to reflect political and national security conditions today?...So the next time you hear that Trump’s proposal for immigrant vetting are un-American, the correct response is that they are as American as apple pie. And the next time you hear that Trump’s proposals are crazier than crazy, the correct response is that–given the mess the world is in–it is the notion that we should not vet immigrants more carefully that is certifiably insane."
One only need look at the ISIS-sponsored and -inspired attacks in the U.S and Europe to understand that foreign ideologies remain an imminent threat to the American people. Ideological threats didn’t end with the Cold War. Yet many politicians and so-called “journalists” would have you believe otherwise even after September 11, 2001. And to make matters worse, the Obama Administration has been widely criticized for rubber-stamping immigration benefit applications.
I’m looking forward to more details on Mr. Trump’s ideological screening plan because I think some “extreme vetting” is long past due.
Updated: Thu, Sep 1st 2016 @ 12:15pm EDT