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Sorry Would-Be Scholars, Trump’s Refugee Ban is Legal and Follows Example Set By Founders

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The founders passed the first immigration ban premised on fear of foreign radicals infiltrating the new nation. Sound familiar? Who pushed for and passed the law? President John Adams, our second President. That’s the John Adams HBO celebrated a few years back in a mini-series popular with liberals, and the same John Adams liberals loved in the biographical writings of David McCullough. (Maybe Trump was forecasting this with his reference to the Adams/Jefferson campaign of 1800, the book on his desk for the two TV interviews last week with both ABC’s Muir and Fox’s Hannity).

The precise language of the 1798 Act passed by John Adams reads much like the 1952 law Trump relied on for his executive order on aliens from certain countries. The law passed by the Fifth Congress provided: it was “lawful for the President of the United States at any time…to order all such aliens as he shall judge dangerous to the peace and safety of the United States” to be excluded from the United States.

The 1798 Aliens Act authored by Congress and overseen by Adams empowered President Adams to keep out any aliens who the President judges “dangerous to the peace and safety of the United States” or merely suspected of “secret machinations” against the people and the government.

Flash forward, past Abraham Lincoln’s suspension of habeas corpus (a much broader application of executive power than Trump’s action), to Teddy’s time. Teddy Roosevelt pushed and passed the Immigration Act of 1903, popularly known as the Anarchist Exclusion Act, excluding anarchist aliens, treated as “inadmissible” under immigration laws. Teddy Roosevelt extended the immigration restrictions again in 1907, with the Immigration Act of 1907, where Congress authorized the President to refuse admission to anyone the President thought “detrimental to labor conditions in the United States.”

The next Roosevelt, Franklin, extended the alien removal proceedings to people with memberships in a range of organizations, including Communist Party membership, through the Smith Act of 1940. Truman expanded this in the Internal Security Act of 1950 to barring a wide range of aliens from entry into the country, including former or current communists and “totalitarians”. Section 22 of the Act provided that “any alien who is a member of any one of the following classes shall be excluded from admission into the United States” which included aliens who “at any time” were anarchists, communists, or advocated for “governmental doctrines of any other form of totalitarianism.”  A Supreme Court decision in 1952 led to the law that broadened the President’s authority — the same law Trump now cites for exclusion of any aliens the President deems “detrimental to the interests of the United States.” As the law reads:

“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.” (8 USC 1182(f)).

At each step and stage, the Supreme Court assented, with little interference, reflecting their recognition of the Constitution’s delegation of alien exclusion to the democratically elected Congressional and Presidential branches of government. Immigration policies are to be determined by elections, not the unelected.

Following a line of Supreme Court cases, English common law precedents, and international scholastic opinions, the famed Justice Frankfurter (yes, liberals, that liberal icon Justice Frankfurter), opined in that famous 1952 case:

“Accordingly, when this policy [of open immigration] changed and the political and lawmaking branch of this Government, the Congress, decided to restrict the right of immigration about seventy years ago [1882], this Court, thereupon and ever since, has recognized that the determination of a selective and exclusionary immigration policy was for the Congress, and not for the Judiciary. The conditions for entry of every alien, the particular classes of aliens that shall be denied entry altogether, the basis for determining such classification, the right to terminate hospitality to aliens, the grounds on which such determination shall be based, have been recognized as matters solely for the responsibility of the Congress and wholly outside the power of this Court to control.” Harisiades v. Shaughnessy, 342 U.S. 580 (1952).

Thus Carter banned Iranians in 1980 and Obama banned Iraqis for a period of time in 2011, just as Reagan, Bush and Clinton exercised their alien exclusion authority at some point in time during their presidencies.

We may be a nation founded by immigrants, but we are also a country that has long strictly restricted which immigrants make up our nation.

This is an opinion piece. The views expressed in this article are those of just the author.

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