Did Trump Just Win, or Lose?

Daily Best of the Web   —   Posted on December 8, 2015

Did Trump Just Win, or Lose?

The following is an excerpt from OpinionJournal’s “Best of the Web” at WSJ written by the editor, James Taranto.

Did Trump Just Win, or Lose?
For our part, we’ve forecast the end of Trump’s campaign maybe four or five times. But not this time. Trump’s proposal, whatever the merits, looks to us like a political masterstroke, in large part because of the overwrought reactions it has prompted from Democrats, Republicans and the media alike.

Here’s the proposal, as announced in a press release yesterday titled “Donald J. Trump Statement on Preventing Muslim Immigration”:

Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on. According to Pew Research, among others, there is great hatred towards Americans by large segments of the Muslim population. Most recently, a poll from the Center for Security Policy released data showing “25% of those polled agreed that violence against Americans here in the United States is justified as a part of the global jihad” and 51% of those polled, “agreed that Muslims in America should have the choice of being governed according to Shariah.” Shariah authorizes such atrocities as murder against non-believers who won’t convert, beheadings and more unthinkable acts that pose great harm to Americans, especially women.

Mr. Trump stated, “Without looking at the various polling data, it is obvious to anybody the hatred is beyond comprehension. Where this hatred comes from and why we will have to determine. Until we are able to determine and understand this problem and the dangerous threat it poses, our country cannot be the victims of horrendous attacks by people that believe only in Jihad, and have no sense of reason or respect for human life. If I win the election for President, we are going to Make America Great Again.”

The Washington Post has a summary of reactions from Trump’s rivals for the GOP nomination:

Most of Trump’s GOP rivals issued statements opposing Trump’s idea. [Jeb] Bush wrote Monday on Twitter that Trump is “unhinged,” while Ohio Gov. John Kasich said the proposed ban “is just more of the outrageous divisiveness that characterizes his every breath.” New Jersey Gov. Chris Christie called it “a ridiculous position,” and Sen. Marco Rubio (Fla.) tweeted: “His habit of making offensive and outlandish statements will not bring Americans together.” [Ted] Cruz said in an NBC interview that “there are millions of peaceful Muslims around the world.”

Sen. Lindsey O. Graham (S.C.) said Trump’s escalating rhetoric about Islam endangers U.S. soldiers and diplomats operating in the Muslim world: “The effects of this statement are far-reaching.”

Democratic reactions were similar in tone and even higher in volume. And in an interview with radio host Hugh Hewitt, Dick Cheney said: “I think this whole notion that somehow we can just say no more Muslims, just ban a whole religion goes against everything we stand for and believe in. I mean, religious freedom’s been a very important part of our history and where we came from.”

As for the pundits, the left-wing ones said what you’d expect. Self-proclaimed centrist John Avlon declared at the Daily Beast: “This is a time for choosing between our best traditions and our worst fears. If you care about the Constitution, the time has come to take a stand against Trump.” But Avlon only fulminates; he offers not a word of legal analysis.

National Review’s Jim Geraghty does offer a few words. He cites Article VI of the Constitution, which provides that “no religious test shall ever be required as a qualification to any office or public trust under the United States,” and the First Amendment’s Free Exercise clause.

In the New York Times, an Ivy League law professor weighs in:

Putting the policy into practice would require an unlikely act of Congress, said Stephen Yale-Loehr, a professor of law at Cornell and a prominent authority on immigration.

Should Congress enact such a law, he predicted, the Supreme Court would invalidate it as an overly restrictive immigration policy under the equal protection clause of the 14th Amendment.

“It would certainly be challenged as unconstitutional,” he said. “And I predict the Supreme Court would strike it down.”

All of these claims are mistaken. Quite obviously the Constitution’s provision on religious tests for public office has no application to immigration policy. The Equal Protection Clause of the 14th Amendment is equally irrelevant, as it applies only to states. (It does prohibit state discrimination against aliens, including in some contexts illegal aliens, but decisions about which aliens to admit are entirely under federal purview.)

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 nonimmigrants, 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 pass muster.

Ernest Mandel, a Belgian journalist and self-described “revolutionary Marxist,” planned to visit the U.S. for an academic conference. He was denied entry pursuant to a (since-repealed) law that excluded aliens “who advocate the economic, international, and governmental doctrines of world communism or the establishment in the United States of a totalitarian dictatorship” or “who write or publish . . . the economic, international, and governmental doctrines of world communism or the establishment in the United States of a totalitarian dictatorship.”

Mandel and his colleagues argued that the exclusion violated the right to free speech. In a decision for a 6-3 majority, Justice Harry Blackmun wrote (citations omitted):

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.

The appellees concede this. Indeed, the American appellees assert that “they sue to enforce their rights, individually and as members of the American public, and assert none on the part of the invited alien.”

The case, therefore, comes down to the narrow issue whether the First Amendment confers upon the appellee professors, because they wish to hear, speak, and debate with Mandel in person, the ability to determine that Mandel should be permitted to enter the country or, in other words, to compel the Attorney General to allow Mandel’s admission.

To that question, the justices also answered “no.” That’s not to say Mandel had no free-speech rights under the U.S. Constitution. Had the government sought to forbid publication of his work, or to prevent or punish his participation in the conference by electronic means from outside the country, he would have had a strong claim.

But the government’s authority to set immigration policy, at least as applied to nonresident aliens, outweighs any free-speech claim an alien may wish to assert. Logic would suggest the same is true of the First Amendment’s other protections.

(The Hill’s Ben Kamisar reports that he asked the Trump campaign yesterday if the ban would also apply to U.S. citizens, and a spokesman replied: “Mr. Trump says, ‘everyone.’ ” Excluding U.S. citizens from re-entering the country would be plainly unconstitutional. Trump later backtracked, consistent with the generally offhand character of his campaign. It’s worth emphasizing that like “Muslim databases,” this very bad idea originated with a reporter, not Trump.)

The proposal itself, however, was not so offhand. Andrew Prokop of the young-adult website Vox argues that Trump had two “strategic objectives” in mind:

First, he ensures his continued dominance of the headlines.

Second, he proves to the segment of Americans who might secretly agree with him that, once again, he’s willing to say the things ordinary politicians of both parties won’t.

But why “secretly”? Another Vox article, written by Zack Beauchamp and also published yesterday, calls attention to a poll by the Public Religion Research Institute [PPRI] that asked respondents if they agreed with the statement “The values of Islam are at odds with American values and way of life.”

Vox’s headline announces the results for Republicans, 76% of whom agree. But the view is shared by a majority of all respondents (56%) and independents (57%) and a substantial minority of Democrats (43%). Blacks and Hispanics are evenly divided, and majorities of every Christian subpopulation, including black Protestants, agree.

Our own view of the question is complicated. Certainly Islam and the American way of life are compatible inasmuch as America is capable of welcoming Muslims who are not Islamic supremacists. On the other hand, it’s always struck us that categorical statements to the effect that Islam is “a religion of peace” are far more hortatory than empirical—which is to say that there is a gap between Islam as it actually exists and Islam as President Bush or President Obama would like it to be. How wide that gap is, and how dangerous, we do not know.

Thus Trump’s proposal for a pause in Muslim immigration “until our country’s representatives can figure out what is going on” strikes this columnist as entirely reasonable. That’s not to say it’s necessarily a good idea. There are potential costs in American-Muslim relations both internationally and domestically, and humanitarian costs as well. There are practical questions about how it would be implemented. The religious-freedom argument, although legally empty, is not without moral force.

Instead of debating the proposal in a reasoned way, the political class—both parties—and many in the media are treating it as a thoughtcrime. Yet the PRRI poll suggests a large majority of Americans are thinking along similar lines.

The Washington Examiner’s Philip Klein summed up the politics in a tweet yesterday: “@realDonaldTrump will get days of coverage in which GOP rivals, Obama, Clinton, media, will all sound same. This is bad for him how?”

For more “Best of the Web” click here and look for the “Best of the Web Today” link in the middle column below “Today’s Columnists.”