Trump's 'deeply un-American' stance on immigration prompts legal concerns

A quarter century after the end of the cold war, Donald Trump has proposed restoring ideological tests for immigrants, a move that legal experts say raises a tangle of practical and even constitutional concerns.

In a speech on Monday devoid of policy details or specifics, the Republican nominee called for the “extreme vetting” of immigrants, including a screening process to root out applicants who do not uphold “American values”.

Laurence Tribe, a liberal constitutional law professor at Harvard University, said Trump’s proposal was “a nonstarter”.

“The proposal ... is very deeply un-American, is probably unconstitutional, would almost certainly fail in Congress and is another example of Trump having no idea what he’s talking about,” he said.

Restricting immigrants on the basis of ideology is anathema to American values, Tribe argues. Freedom of speech and religion are enshrined under the first amendment of the constitution and the enduring symbol of freedom is the Statue of Liberty welcoming weary immigrants to its shores.

Though immigrants outside the US would not receive the constitutional right to due process, Tribe said family members could bring challenges on their relatives’ behalves.

Trump has long called for tightening immigration controls as part of his plan to defeat Islamic State. In 2015, Trump vowed to temporarily ban Muslims from entering the US. In his speech on Monday, Trump appeared to revise that policy, calling for a temporary ban on immigrants from countries subject to terrorist attacks, though the original blanket ban on Muslims is still featured on his website.

Trump’s proposal is not unprecedented. America has a long history of extreme vetting – which includes ideological tests – dating back to its foundation, when the leaders of the young nation worried anarchists would arrive and undermine the fledgling democracy.

One of the earliest and most flagrant immigration laws was the Chinese Exclusion Act of 1882, which barred Chinese workers from entering the US. The ban, which was passed amid anxiety over job scarcity and a depressed economy, was later extended at the turn of the 20th century to in effect deny entry to all Asian immigrants.

But Trump’s proposal draws from more recent history – the anti-communism measures employed during the cold war.

“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,” he said during a speech at Youngstown State University in Ohio. “I call it extreme vetting.”

In 1952, Congress passed the McCarran–Walter Act, authorizing the federal government to refuse admission to classes of immigrants based on their political beliefs in an effort to keep members, former members and sympathizers of the communist party from entering the US. As the cold war came to a close, Congress revisited the law and in 1990 voted to greatly narrow the president’s ability to deny immigrant visas based on ideological grounds.

Trump has claimed, citing the act, that he would have the authority as president to suspend entry to any class of person who would be “detrimental to the interests of the United States”. While the law grants the executive branch broad discretion over matters of immigration, the president would not have “absolute” authority – Congress could act to limit the president’s power.

And yet if Trump managed to clear the initial hurdles and his proposal either passed Congress or survived the legal challenges experts say would surely arise, he would then have to contend with the operational difficulties of implementing such a sweeping proposal.

“If he does try to implement an ideological test, that leads to a question which came up early in the cold war: how do you administer that? Is that a questionnaire? Do you investigate the answers? And if you do, how do you do that? Who does that?” said Carl Bon Tempo, author of Americans at the Gate: The United States and Refugees during the Cold War.

“Enforcing an ideological litmus test takes an incredible amount of manpower and historically the result has been that it greatly slows the process.”

Stephen Yale-Loehr, an immigration law professor at Cornell University, is skeptical of Trump’s promise to enhance a process that is already extensive and lengthy. Immigrants applying to come to the US are already asked to respond to a questionnaire and are subject to a background check that vets for, among other things, links to terrorist or extremist groups.

“Immigration to the United States would grind to a near halt if millions of people are subject to background checks based on subjective criteria,” he said. “How is a consular officer or a border inspector supposed to determine whether an applicant is sufficiently ‘American’ in his or her thinking?”

Based on Trump’s speech on Monday, Yale-Loehr speculated that the Republican might propose screening applicants’ social media pages as part of the routine background check. Currently, officials only run social media checks in certain cases. He could also add requirements that family members be brought in for interviews as part of the application process. But he said it would be impossible to implement these changes, since they would require a vast mobilization of resources and manpower.

Trump’s campaign has said it would expand on his immigration proposals in the coming weeks, and did not respond to multiple requests for comment.

Still, experts say that on its surface, the proposal poses major logistical and practical problems that agencies grappled with during the cold war in the 1950s and, more recently, in the post-9/11 years.

In vilifying the immigrant, Trump is using a familiar playbook from American history, said Erika Lee, a professor of immigration history at the University of Minnesota. Throughout history, politicians exploited public anxiety over a scarcity of jobs and threats to national security to push through exclusionary laws.

“For many Americans, when they think back to America’s history, it’s the Ellis Island story. This is the way our mythology works,” Lee said. “But that has created some rose-colored glasses and helped to obscure the other side of the story, the one where we exclude whole groups of people based on race, ethnicity or ideological belief.”