So a guy shoots his mouth off, says a bunch of crazy shit, feeds into the worst prejudice and darkest whole of stupidity in the American psyche. All because he wants to be president and taps into that ugliest portion of the public psyche grasping for the worst possible solution that makes them feel better. And thinking people everywhere hate it. Hi, Donald Trump.
Trump came up with an idea about excluding Muslims from entry into the United States. The details of his scheme are both a moving target and irrelevant. Ain’t happening in any permutation, so who cares what noise emits from his yap? But the knee-jerk response from the intelligentsia is that it’s “unconstitutional.”
When we hate an idea, we love to hear that it’s unconstitutional. It saves us from having to otherwise explain why it’s awful. We can just point to the Constitution (you remember the Constitution, it’s that thing you drag out when you like it and shove in the closet when you don’t), shrug and say, “yeah, well, it’s unconstitutional, so no point in discussing it. Move along.” And everybody breathes a sigh of relief, because that insanity won’t fly.
Except it’s not. At least not entirely, since Trump’s idea that he can exclude Muslims who are fully protected as American citizens is so far beyond wrong as to be unworthy of discussion. But what of Muslims who lack citizenship or legal connection to the United States, and seek entrance to our borders for immigration, tourism or work? While no one thinks this is a sound policy approach, because it’s nothing more than pandering to sheer mind-numbingly outrageous prejudice, that doesn’t make it unconstitutional.
Eric Posner writes a scholarly post explaining that the determination of who is allowed to enter our borders is controlled by legal precedent that provides, essentially, for a limitation that would be totally unconstitutional if applied to any other situation. But not entry to our borders.
The Supreme Court has held consistently, for more than a century, that constitutional protections that normally benefit Americans and people on American territory do not apply when Congress decides who to admit and who to exclude as immigrants or other entrants. This is called the plenary power doctrine. The Court has repeatedly turned away challenges to immigration statutes and executive actions on grounds that they discriminate on the basis of race, national origin, and political belief, and that they deprive foreign nationals of due process protections.
Not that the Supremes couldn’t reverse their precedent, but the extant precedent provides no basis to say it’s unconstitutional. Eugene Volokh agrees, ugly but constitutional. This is where intellectual honesty by scholars gets tested, because they may despise the policy, but that doesn’t give them license to use their academic cred to deceive people about the state of the law.
Then comes Steve Vladeck at CNN. Oh boy.
It is true that, as a general proposition, non-citizens outside the United States have previously been held to have few—if any—constitutional protections. But there are two reasons to suspect that Mr. Trump’s proposed ban would still be invalidated by the courts:
First, the way the ban would have to be enforced, it would surely ensnare at least some non-citizens with prior connections to the United States. These are people who do have well-settled constitutional protections. As applied to them, the ban would clearly be unconstitutional.
Second, even as applied to non-citizens with no prior connections to the United States, the Supreme Court in recent years has suggested that at least some constitutional principles still apply. The Justices held in 2008 that terrorism suspects detained as “enemy combatants” at Guantánamo are protected by the Constitution’s Suspension Clause, which guarantees judicial review of the legality of their detention. And the Court has also suggested that the government needs an especially good reason to discriminate against undocumented immigrants who, like non-citizens outside the United States, don’t otherwise have constitutional protections.
Trying my damndest to explain how a smart guy could write such utter nonsense, perhaps American University lawprof Vladeck considers CNN readers too pathologically stupid, bored, easily confused, to get actual legal reasoning, so he throws some shit against the wall to see what sticks. His first point, that there could be mistaken applications, is merely a quasi-“as applied” argument, which has nothing whatsoever to do with the unconstitutionality of the action.
His second completely omits the distinction of foreign nationals seized by, and held in the custody of, the United States government. But what about the plenary power doctrine? Crickets.
In the ordinary, non-immigration world of constitutional law, the Trump scheme would be blatantly unconstitutional, a clear violation of both equal protection and religious freedom (he had originally called for barring American Muslims living abroad from re-entering the country as well; he has since dropped that clearly unconstitutional notion). But under a line of rulings from the Supreme Court dating back more than a century, that’s irrelevant. As the court observed in its 1977 decision in Fiallo v. Bell, “In the exercise of its broad power over immigration and naturalization, Congress regularly makes rules that would be unacceptable if applied to citizens.”
So far, so good, right? But then, boom.
The Constitution and the courts are not synonymous, nor do the courts have a monopoly on constitutional interpretation. Politicians, the legal community, scholars and the public at large are all a part of our continuing constitutional conversation. Clear popular consensus can establish constitutional norms, with or without the courts.
What? So the Supreme Court is nice and all, but the Constitution means whatever reddit says it means?
The Supreme Court upheld the internment in its 1944 Korematsu decision, and that ruling has never been judicially reversed. Technically, it remains good law. But it has been effectively overridden by other actors, and in the court of public opinion. A formal apology and payment of reparations, enacted by Congress and signed into law by Ronald Reagan in 1988, supplies the formal evidence. Korematsu continues to provoke popular shame.
While it’s certainly possible that “clear popular consensus,” which range from things that are now near-universally appreciated to the tyranny of the majority, can sway the Supreme Court’s decisions, and perhaps should inform the Court, for a law professor, a purported scholar, to use his good offices to write something for public consumption so flagrantly false as “nor do the courts have a monopoly on constitutional interpretation” is insufferable.
I might have said intolerable, but plenty of other scholars, gutless to the core, will cringe and say nothing unpleasant about a colleague who utters such a ridiculously stupid notion, thereby making people stupider for the goal of furthering ideology at the expense of reason.
The likelihood of Trump’s scheme ever being decided in court is slim to none, so it’s easy to say later than the claims remain untested. But politicians come and go. Intellectual dishonesty is forever. Then again, so too is getting one’s name in the paper, and that apparently is more important in the Academy these days than anything else.