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December 08, 2015

Donald Trump Says Something Outrageously Outrageous....Hilarity Ensues

I'm a bit of a cynic when it comes to politics. No, it's true. Trump generally doesn't outrage me because...it's politics. Well, in his case it's an interesting blend of entertainment and politics but basically politics.

Yesterday a new poll comes out showing Ted Cruz leading in Iowa. Trump, who has been fairly stagnant in polling then comes out with an idea to refuse entry to Muslims into the US. Even according to his spokeswoman, US citizens abroad trying to return home.

That last bit is worth outrage (if he really believes it, more on that in a second). It's unconstitutional, despicable and tyrannical to deny US citizens their rights based on their religion. It would never pass muster in Congress, which would have to enact the policy or the courts. If some how it did, it would be cause for armed rebellion.

As applied to non-citizens, outside the US seeking entry either as a student, tourist, someone on business or looking to move here permanently? I have no opinion.

You see, I almost never say anything nice or nasty about Trump or his supporters. If he crosses a line like denying citizens their rights, with say a registry of Muslim-Americans, yeah, I'll protest that garbage loudly. But the rest of his policy squirrels, er, proposals? I simply refused to get dragged down the rabbit hole with him. He simply doesn't mean most of what he says or show any evidence he's thought it through.

Take this "keep the Muslims out" proposal. How will it work?

Ok, we're done here in terms of actual policy. Thanks for playing.

But on the politics of this, is this idea any crazier or more offensive to American values than depriving Americans of their constitutional rights simply because the executive places their name on a government list with no due process?

Why is one considered hateful and unserious while the other is at the heart of a presidential address from the Oval Office?

I'll never vote for Trump but I'll be damned if I pretend he's some sort of virus infecting an otherwise healthy body politic. Sure he's more flamboyant and doesn't dress his idiocy up in acceptable platitudes but in the end it's a matter of degree not type.

What does interest me is the reaction to his proposal.

First, the idea that it's unconstitutional to exclude aliens from the US based on their religion is nonsensical. There are a many, many Supreme Court cases saying Congress has essentially unlimited authority to set entry requirements to the US and that aliens have no standing to challenge their exclusion in court.

The Supreme Court in Kleindienst v. Mandel addressed the long history of Congress' power to legislate in this area.

It is clear that Mandel personally, as an unadmitted and nonresident alien, had no constitutional right of entry to this country as a nonimmigrant or otherwise. United States ex rel. Turner v. Williams, 194 U. S. 279, 292 (1904); United States ex rel. Knauff v. Shaughnessy, 338 U. S. 537, 542 (1950); Galvan v. Press, 347 U. S. 522, 530-532 (1954); see Harisiades v. Shaughnessy, 342 U. S. 580, 592 (1952).

...

In accord with ancient principles of the international law of nation-states, the Court in The Chinese Exclusion Case, 130 U. S. 581, 609 (1889), and in Fong Yue Ting v. United States, 149 U. S. 698 (1893), held broadly, as the Government describes it, Brief for Appellants 20, that the power to exclude aliens is "inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers—a power to be exercised exclusively by the political branches of government . . . ." Since that time, the Court's general reaffirmations of this principle have 766*766 been legion.[6] The Court without exception has sustained Congress' "plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden." Boutilier v. Immigration and Naturalization Service, 387 U. S. 118, 123 (1967). "[O]ver no conceivable subject is the legislative power of Congress more complete than it is over" the admission of aliens. Oceanic Navigation Co. v. Stranahan, 214 U. S. 320, 339 (1909). In Lem Moon Sing v. United States, 158 U. S. 538, 547 (1895), the first Mr. Justice Harlan said:

"The power of Congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications."
Mr. Justice Frankfurter ably articulated this history in Galvan v. Press, 347 U. S. 522 (1954), a deportation case, and we can do no better. After suggesting, at 530, that "much could be said for the view" that due process places some limitations on congressional power in this area "were we writing on a clean slate," he continued:

"But the slate is not clean. As to the extent of the power of Congress under review, there is not merely `a page of history'. . . but a whole volume. Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with 767*767 the political conduct of government. In the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process. . . . But that the formulation of these policies is entrusted exclusively to Congress has become about as firmly embedded in the legislative and judicial tissues of our body politic as any aspect of our government. . . .

"We are not prepared to deem ourselves wiser or more sensitive to human rights than our predecessors, especially those who have been most zealous in protecting civil liberties under the Constitution, and must therefore under our constitutional system recognize congressional power in dealing with aliens . . . ." Id., at 531-532.

Emphasis mine.


To say that Congress may not exclude people based on religion or ideology is simply to deny the reality of the law as it stands.

Think about this for a moment though. How many people who are deeply, deeply offended about keeping non-citizen Muslims out of the US think it's perfectly fine to force Christian bakers to provide a cake for same sex ceremonies? So yeah, spare me your defender of faith shtick.

There's another group of opponents whose opposition to this I find laughable...the Super Hawks.

People like Dick Cheney, Lindsey Graham, Marco Rubio, etc have spent years telling us we must give up our privacy in the fight against "radical" Islam. They have told us it is necessary to invade and remake numerous Muslim countries because their societies as constituted constituted present a grave or even existential threat to the security of the United States.

At some point, and we're going on 15 years now, people get tired of hearing about what sacrifices they must make in this forever war while they are also required to exercise extreme deference to the society and religion from which our enemies spring.

To the extent that Trump's idea will be popular (and it will be more popular than elite opinion imagines or will be comfortable with) it's because people will have taken the warnings of the super-hawks seriously.

It's not insane or bigoted to decide that if after so many years we aren't able to reliably find the dangerous needle in a haystack, we should just burn the whole haystack and be done with it.

Trump doesn't exist in a vacuum. His popularity and appeal, such as they are, are the result of a failed political class that seems to simply put the needs and desires of everyone ahead of "the average American" (which is how most people view themselves and their circle). Is it a nasty brand of populism? Sure. Is it going to deliver the GOP nomination to Trump? No. But at some point people get tired of being told legitimate concerns are nothing but racism and everyone else is entitled to redress and concern but not you. Don't be shocked that when someone comes along and pays attention to this group they respond accordingly.

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posted by DrewM. at 10:09 AM

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