Magazine | December 31, 2015, Issue

Discriminating Discrimination

Donald Trump (AP/Charlie Neibergall)
Of Donald Trump and immigration

Donald Trump has a peculiar talent for turning good ideas into bad ones.

This is related to his talent for salesmanship, which demands that he deal in superlatives and simplicities. An excellent idea such as securing the southern border with a series of barriers becomes a batty proposition: a single point-to-point wall (never mind the bodies of water, canyons, etc., in the way) with a grand door in it through which a dozen million illegal immigrants will be marched out over the course of 18 months before most of them are immediately readmitted, with these shenanigans funded in part by pesos extorted from the government of Mexico.

Trump has grunted out a similarly daft proposal regarding the admission of Muslims to the United States as immigrants and visitors, calling for a “total and complete shutdown of Muslims entering the United States.” My friend Larry Kudlow, writing for National Review, went a step farther and called for a total ban on immigration and an end to the visa-waiver program, which allows visitors from certain countries to enter without obtaining a visa, until the federal government develops a satisfactory method for screening out would-be jihadists. Neither of those proposals is a good policy, but, contrary to some of the critics, neither is unconstitutional, either.

In fact, Trump’s proposal would not even require additional congressional authorization: Under the Immigration and Nationality Act, the president already is empowered to suspend “the entry of any aliens or of any class of aliens into the United States” if their entry “would be detrimental to the interests of the United States.” Remarkably, the president may do so without consulting Congress, simply by issuing a proclamation. He can do this to any class of aliens he believes to be detrimental for as long as he likes. The same law empowers the attorney general to block airlines from transporting foreigners to the United States if he judges the airline to be inadequately committed to enforcing U.S. security regulations, particularly those regarding fraudulent travel documents.

Nor would it necessarily be illegal to target Muslims as a class. The Supreme Court has repeatedly upheld the plenary power of the elected branches of government over immigration. In Chae Chan Ping v. United States, the Court upheld the constitutionality of the Chinese Exclusion Act, which forbade would-be immigrants based on their Chinese ethnicity, regardless of their country of origin. The Chinese Exclusion Act is not one of the prouder episodes in American legislative history, but the constitutional reasoning behind the Court’s upholding it was, and is, sound. There is no reason to believe that a religious class should be considered invalid — during a time of religious terrorism — where an ethnic class was allowed to stand.

Prohibiting Muslim immigration to the United States categorically as a national-security measure would present some serious operational problems. It is a bit like trying to use gun licensing to prevent homicide: Just as murderers are no great respecters of gun laws, jihadists coming to the United States to do violence probably are not going to have any qualms about telling a few lies to U.S. immigration authorities to make it happen. Short of that, most other countries do not identify their citizens by religion on travel documents, and most of them do not keep any records that would allow them to communicate this conveniently to U.S. authorities. Given that the Islamic State seems to be in possession of passport-making machines, madrassa graduate Mohammed al-Mohammed of Karachi could become ex-seminarian Paul Fernandes of Bombay without too much trouble.

Because of our national ethic of nondiscrimination, we resist the idea of investigating or restricting people, including foreigners, based on their religion. But it would not be sufficient simply to target immigrants from jihad-exporting countries such as Pakistan or Egypt. That is because these jihad-exporters have been exporting jihadists to the United Kingdom and Western Europe for decades. The Paris killers had family ties to Muslim countries, but they were mainly French and Belgian nationals, and mostly European-born. We could elaborate our criteria for giving some entrants heightened scrutiny (or rejecting them outright), for instance by including not only those from countries associated with terrorism but also residents of other countries who are connected to those countries in some way, such as by family history or by their having traveled or resided there. That might make us feel better, but those criteria would merely be a proxy for Islam.

We should not cut off immigration entirely, or cut off Muslim immigration entirely, though we should suspend the visa-waiver program, at least for a time. And we should be forthright about the fact that we are aggressively seeking to exclude those whom we believe to be possible terror risks, and that in situations where the balance of evidence isn’t clear, we’re going to err on the side of caution. Of course this means religious profiling, to some extent; it is a practical impossibility to investigate whether someone is likely to sympathize with Islamic radicalism without also determining whether he is Muslim. It necessitates background checks that incorporate some religious criteria.

But getting the broad-strokes policy right is only a small part of the solution. What will end up mattering a great deal more in the long run is the day-to-day operation of the enhanced screening processes we develop. It is one thing for a presidential candidate (or a president) to say, “It shall be thus!” but experience suggests that actually getting the work done is a different story. After 9/11, our intelligence capacities touching military (and some law-enforcement) projects were significantly improved and expanded. But the kind of intelligence that is used to organize a drone attack is different from what we should be using to screen immigrants and visitors. We aren’t looking only for active malefactors but for likely potential malefactors, not only those who have done acts of violence but those who are inclined to sympathize with such views. For example, having attended a Hamas madrassa doesn’t make one an active terrorist per se, but it should render one persona non grata for visa and immigration purposes. 

It isn’t a crime to be an Illinois-born man from a Pakistani immigrant family who travels to Saudi Arabia to wed a Pakistani-born Jeddah resident, but there’s no reason we have to rush through the bride’s fiancée visa, either.

Which is to say, what is needed here isn’t only a policy reform but, more important, a reform of practice. Doing the necessary investigative work is going to be a long, laborious, tedious, and inevitably expensive process that consumes vast amounts of federal manpower. Getting the feds to actually do their jobs is no small thing.

The visitor-visa side of the project is going to be very difficult. The immigration side might prove a little bit easier, in that the mood of the country favors less immigration in general, along with stronger enforcement of the law. A general restriction of immigration is a good policy for many reasons, and it also would provide a measure of ground cover for Muslim-specific restrictions that might offend our national sense of evenhandedness. Our European cousins have had some sobering experiences with large, poorly assimilated populations of Muslim immigrants and their descendants, both as a question of national culture and in the specific matter of providing a hospitable growth medium for radicalism and terrorism. With a few already-worrying local exceptions (such as the dozens of Somali Americans from Minnesota who have joined al-Shabaab), the United States has no such population. It could do itself a favor by not importing one.

That’s an argument that is too important to be left to the likes of Donald Trump.

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