So Donald Trump’s new immigration plan is unconstitutional.
So say the wise men who think the Constitution says nothing about government forcing you to buy healthcare and that the Second Amendment is not an individual right. Professor Lawrence Tribe of my alma mater, Harvard Law School, says, “I believe Trump’s unprecedented proposal would violate our Constitution, but the First Amendment’s Religion Clauses and the equality dimension of the Due Process Clause of the Fifth Amendment. It would also conflict with the spirit of the No Religious Test Clause of Article VI.” Speaker of the House Paul Ryan agrees that Trump’s immigration plan is “unconstitutional.”
This is a massive stretch.
Trump’s immigration policy, which would foolishly bar all Muslim non-citizens from entering the country, does not violate the Constitution, however.
Let’s agree that any proposal to strip rights of American citizens without due process and in contravention of religious freedom would violate the Constitution (yes, folks, that includes stripping those on the No-Fly List of their Second Amendment rights).
Trump’s immigration policy, which would foolishly bar all Muslim non-citizens from entering the country, does not violate the Constitution, however. The First Amendment does not apply to foreigners without American citizenship and not under American jurisdiction. Neither does the due process clause of the Fifth Amendment. But for the left, the Constitution bars all that with which they disagree and greenlights all the goodies they want.
Article VI is an even dumber Constitutional argument. That states, in relevant part, “no religious test shall ever be required as a qualification to any office or public trust under the United States.”
In other words, your eligibility for government office cannot be legally constrained by a religious test. That does not mean that anybody gets to come into the United States, or that we cannot impose any ideological or religious test for those who want to become citizens.
But the left is stretching. Forced to argue against Trump’s religious test, they have resorted to legal arguments rather than practical and moral ones. That’s an odd choice, given that there are both practical and moral concerns in barring all Muslim immigration to the United States. Why focus on the Constitution?
The only rationale: to try to paint all Republicans as uncaring about the Constitution itself. But the Constitution allows lots of nasty stuff, including the 1882 Exclusion Act, which essentially banned Chinese immigration into the United States for a decade. The beauty of the Constitution is in our freedom to choose our policies that do not violate fundamental rights. There is no fundamental right to enter the United States.
None of this argues that Trump’s policy proposal is good. It isn’t, as I’ve stated repeatedly. But trying to turn the Constitution into a vague “Charter of Good Stuff” is far more dangerous than anything Trump says.