Constitutional Law, Politics

'Unconstitutional': The New Liberal Catchphrase

Whatever you might think of Trump’s plan as a policy matter, it is in full accordance with the Constitution, as columnist Kayleigh McEnany explains.

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“Unconstitutional” has become the new liberal buzz word for “I don’t like this.”

This flagrant, haphazard use of the Constitution was on full display in the reaction to Donald Trump’s plan to temporarily ban Muslim immigrants. With no regard for precedent or the text of the Constitution, scholars, politicians, and pundits hurriedly stumbled over one another to be the first to label Trump’s plan “unconstitutional.”

Meanwhile, these same ideologues dubbing Trump’s plan “unconstitutional” were exalting President Obama’s executive order last year granting legal status to five million undocumented immigrants as perfectly constitutional.

Ironically, it is just the opposite: Trump’s plan enjoys constitutional sanction while Obama’s does not. Nonetheless, that did not stop the left from mischaracterizing our Constitution and advancing their political agenda at the expense of accuracy.

In reaction to Trump’s plan, Obama advisor Ben Rhodes told CNN, “We have, in our Bill of Rights, respect for freedom of religion.” Michigan Law Professor Richard Primus concurred, writing that Trump’s plan would violate the Constitution. Politicians followed suit, labeling Trump’s plan unconstitutional. A few Republicans even joined in the hasty condemnation, like Chris Christie and Marco Rubio (both of whom are lawyers who might benefit from digging up their old constitutional law outlines).

Whatever you might think of Trump’s plan as a policy matter, it is in full accordance with the Constitution.

In arguing that Trump’s plan was “probably not” unconstitutional, Chicago Law Professor Eric Posner notes that in 1891 Congress passed a law banning immigrants who practice or even believed in polygamy. No court struck down this law. The diversity lottery, which excludes based on national origin and ethnicity, likewise has never been found unconstitutional. Temple University Law Professor Peter Spiro emphasizes that the Supreme Court has never “struck down an immigration classification, even ones based on race.”

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The answer to why is firmly embedded in history.

In the 1889 Chinese Exclusion case, the Court upheld a law banning all immigration of Chinese laborers, explaining that “[t]he power of the legislative department of the government to exclude aliens from the United States is an incident of sovereignty….” With these words, the plenary power doctrine was born, giving the federal government broad, vast, and unilateral power over immigration.

Indeed, “[t]he Supreme Court has held consistently, for more than a century, 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,” Posner writes. (See Fiallo v. Bell.)

And Congress has explicitly empowered the President to bar certain immigrants from the homeland. The Immigration and Nationality Act clearly states: “Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental… he may… suspend the entry of all aliens or any class of aliens.”

Thus, not only could Trump constitutionally ban Muslim immigrants, he could do so unilaterally.

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The argument that Trump’s ban runs afoul of the Constitution is not only contradicted by precedent but by the Constitution itself.

While many have argued that such a ban would violate the First Amendment, they fail to recognize that “courts have rejected the assertion of First Amendment free speech protections by noncitizens,” writes Spiro.

Those who reference the Equal Protection Clause of the Fourteenth Amendment neglect to note that the Court has explicitly upheld distinctions based on gender and illegitimacy in immigration law.

Likewise, Due Process is unhelpful. Spiro writes: “In the context of noncitizens seeking initial entry into the United States, due process protections don’t apply, either. This past June, the court upheld the denial of a visa for the spouse of an American citizen based on the government’s say-so, with no supporting evidence.”

Some have argued that Trump’s Muslim ban would violate the spirit of the No Religious Test Clause in Article VI. Since the text of the No Religious Test clause only bars a religious test for those seeking public office, advocates must refer to the “spirit” of the provision as barring Trump’s proposal.

But the “spirit” of the provision is of no moment. Do restrictions on citizen ownership of grenade launchers collide with the “spirit” of the Second Amendment? What a nightmare that would be for the left!

Finally, Primus counters that Trump’s ban would fail in court for having “no valid purpose.” Posner points out, however, that the Court has upheld denying entry based on Marxist beliefs and “just how much of a threat is a Marxist journalist, after all?” Posner notes that Trump could argue that his national security rationale is likewise facially legitimate.  He writes, “Indeed, the post-9/11 sweeps of Muslim as well as Arab men relied on just such an assumption.”

In the face of contrary precedent and plain language, scholars and politicians nonetheless concluded that the Trump ban is unconstitutional. We are left to wonder why. Posner suggests an unsavory but likely motive: scholars “are likely being abetted by journalists and headline writers who don’t like the idea that Trump’s ban would be lawful. Not everything that is stupid or offensive is unconstitutional.”

Perhaps this same political motivation is what prompted a divergent reaction from the Trump naysayers to Obama’s executive order granting de facto legal status to some five million illegal immigrants. Unlike Trump’s plan, Obama’s was greeted with heart-warming praise by the likes of Nancy Pelosi, Harry Reid, and Democrats generally.

The Fifth Circuit, however, had less than welcoming words for Obama. The court last month granted a preliminary injunction, halting the agency action spurred by Obama’s executive order and declaring it “an unreasonable interpretation that is ‘manifestly contrary’ to the INA.” The court continued: “[T]he INA flatly does not permit the reclassification of millions of illegal aliens as lawfully present… .”

This should have come as no surprise to the President, who said on 22 separate occasions that he lacked authority to grant widespread legal status to millions of undocumented immigrants.

A Univision Townhall exchange in 2011 is emblematic of the President’s continual denial of his constitutional authority to reclassify millions of illegal immigrants. In response to the question of whether Obama could stop deportations of students via executive order, Obama replied: “With respect to the notion that I can just suspend deportations through executive order, that’s just not the case, because there are laws on the books that Congress has passed… for me to simply through executive order ignore those congressional mandates would not conform with my appropriate role as President.”

The Washington Post labeled the President’s cataclysmic shift from denying constitutional authority to acting unconstitutionally a “royal flip-flop.” But despite the President’s own previous denial of his constitutional authority to abuse prosecutorial discretion and grant unprecedented legal status to millions of illegal immigrants, Democrats high and low commended his bold – and now unconstitutional – action.

The words “constitutional” and “unconstitutional” are now synonyms for “like” and “dislike.”   If you do not like the Constitution, by all means, undertake the Herculean task of amending it, but please do not contort it to fit your political agenda.

Kayleigh McEnany is a conservative writer and commentator who appears regularly on Fox and CNN. She is currently in the third year of pursuing her J.D. at Harvard Law School. Kayleigh graduated from Georgetown University’s School of Foreign Service and also studied politics at Oxford University. You can reach her by email at Kayleigh@PoliticalProspect.com or follow her on Twitter: @kayleighmcenany.

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