Wednesday, December 09, 2015

Trump’s ‘exclusion’ idea

Can Trump’s ‘exclusion’ idea to get a handle on Muslim terrorists past muster?  Yale-Loehr is correct that the Trump proposal requires an act of Congress, but that act has already been enacted. Title 8, Section 1182 of the U.S. Code provides in relevant part:
“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 non immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

What about the First Amendment? Would a religious exclusion for immigrants violate their right to free exercise? That is a novel legal question; as far as we know Congress has never enacted, nor the executive branch practiced, such an exclusion. But the 1972 case Kleindienst v. Mandel strongly suggests the Trump proposal would again pass muster.  The fact that in neither case has the exclusion been enacted – does not mean that it is not time to get a handle on Muslim terrorists. 


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