The Legality of Donald Trump’s Proposal for “Extreme Vetting”

By Sanjay Dureseti
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Sanjay Dureseti is a sophomore at the University of Pennsylvania and an associate editor of the Penn Undergraduate Law Journal.

Immigration has been a cornerstone of American culture since the colonial era. The country’s political principles of Lockean liberalism are rooted in the early colonists’ cross-Atlantic voyage for self-governing autonomy. As an early destination for religious dissidents, opportunistic entrepreneurs, and the outcasts of European society, the United States and its constitutional principles are deeply intertwined with the idea of a social sanctuary, a secular haven for freedom from oppression of any kind.

When these ideals have been put into practice, however, the results have left much to be desired. Despite their massive role in perpetuating rapid industrialization and technological innovation throughout America’s short history, immigrants have long been singled out as social pariahs. In the early twentieth century, the federal government, in response to waves of immigration from Central and Eastern Europe, enacted a variety of restrictive statutes to stop this flow of foreigners. The most prominent and far-reaching was known as the Johnson-Reed Act, which implemented quotas that allowed greater allocations of visas to Western European countries and lowered visa availability for other European countries to a paltry two percent of the existing foreign-born population. [1] Most non-white immigrants were banned entirely, as Johnson-Reed prevented influxes from the “Asiatic Barred Zone,” which included Southeast Asia, the Indian subcontinent, and Japan. [2] Though they were not included in this law’s provisions, China could not allow emigration to the U.S. under the purview of the 1884 Chinese Exclusion Act.

Although its complexities have increased due to globalization, federal immigration law no longer exhibits such explicit racial bias. Recent proposals from Republican presidential nominee Donald Trump, however, have threatened to reverse immigration policy to its early twentieth century status quo. Initially, Trump proposed a ban on all Muslim immigration, an unprecedented condemnation of an entire religion. Other than presenting a moral conundrum, the barring of Muslims raises thorny constitutional questions. An obvious challenge to Trump’s plan can be found in the text of the Fourteenth Amendment, which states “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The Trump ban would deny naturalized Muslim citizens the right to leave the country as their reentry, according to his sweeping declaration, would be denied, representing a clear violation of the rights of citizenship outlined in the 14th Amendment. The Equal Protection Clause, also found in the 14th Amendment, has been broadly applied to the rights of all persons, prevents any codified law explicitly based on discrimination against a particular group.

Trump has, however, recently walked back his comments to settle for a plan of “extreme vetting” of persons arriving from particularly volatile conflict zones. However obvious his intentions are of profiling people from Muslim-majority nations, Trump’s removal of any mention of religion in his plan might allow it to pass constitutional muster. Congress and, to an extent, the executive branch have been given powers to decide who enters the country and no one has a right to do so. A case that proponents of Trump’s plan might cite is the 1972 case of Kleindienst v. Mandel, in which Attorney General Richard Kleindienst denied the temporary nonimmigrant visa of a Belgian Marxist professor who had been invited to deliver a series of lectures. A lower court ruling had determined that the First Amendment right of assembly extended to a foreigner when US citizens were involved. The Supreme Court, however, upheld Kleindienst’s action, determining that the AG had provided a “legitimate and bona fide” reason to exclude Ernest Mandel. [4] Should Trump win the presidency and should Congress adopt his “extreme vetting” test, American citizens might have little precedent to stake a legitimate legal challenge.

[1] "Who Was Shut Out?: Immigration Quotas, 1925–1927." History Matters, George Mason University. Accessed October 20, 2016. http://historymatters.gmu.edu/d/5078.
[2] "The Immigration Act of 1924 (The Johnson-Reed Act)." Milestones: 1921-1926, Office of the Historian. Accessed October 20, 2016. https://history.state.gov/milestones/1921-1936/immigration-act.
[3] United States v. Bhagat Singh Thind. 261 U.S. 204 (1923).
[4] Kleindienst v. Mandel. 408 U.S. 753 (1972).
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