(Note: This commentary was written and posted in January, last year — 2016. It was based on then-candidate Trump’s statement, at that time, 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,” as pointed out in the 12th paragraph, below.)
In a recent commentary (Notables and Quotables), a regular reader to this site responded to comments I made about GOP presidential candidate Donald Trump:
“I would point out historically, that U.S. Code Law 1182, passed in 1952 by a Democratic House and Senate said the President of the United States has authority to bar immigrants from any country, regardless of race or religion if he believes they represent a threat to the United States…
“This was used by President Jimmy Carter to ban Iranians from coming here and was used to deport several thousand Iranian students (after the Hostage taking). … When people call Trump a nut-case for saying ‘no more Muslims until we figure this out’ he stands on law.”
I was curious about both the law and Carter’s actions, so I did some research. I quickly discovered that there are plenty of conservative-leaning websites that tout the legality of Trump’s proposed ban. However, I wanted to find objective information minus political spin.
The law began as The McCarran-Walter Act, sponsored by House Representatives Francis E. Walter (D-PA), and Pat McCarran (D-NV). The Act was designed to revise the laws relating to immigration, naturalization, and nationality. It passed a Democratic majority in both the House and the Senate. However, President Truman vetoed the bill on the grounds that it was “un-American” and discriminatory. Both the House and Senate overrode Truman’s veto, and the Bill formally became law on June 27, 1952.
Under the terms of the law, a U.S. President does have the power to ban individuals from entering the country. In fact, long before the 1952 law, “in 1932 President Herbert Hoover*and the State Department essentially shut down immigration during the Great Depression. As a result, immigration went from 236,000 in 1929 to 23,000 in 1933,” according to Wikipedia.
A closer look at the law reveals the following specifics.
Briefly, 8 U.S. Code Law 1182 – “Inadmissible aliens: defines inadmissible aliens with health-related communicable diseases, conviction of certain crimes, multiple criminal convictions, controlled substance traffickers, prostitution and commercialized vice, certain aliens involved in serious criminal activity who have asserted immunity from prosecution, foreign government officials who have committed particularly severe violations of religious freedom, significant traffickers in persons, and money laundering if the Attorney General has reason to believe that the alien is engaged in terrorist activities, immigrant membership in totalitarian party [at the time, this was listed as Communist], participants in Nazi persecution, genocide, or the commission of any act of torture or extrajudicial killing, association with terrorist organizations, and recruitment or use of child soldiers, to name but a few of the details.”
While it was passed in 1952 and parts of the original Act remain, it has been amended many times and was modified substantially to become the Immigration and Nationality Services Act of 1965. It was this modified act that President Carter referred to in 1980.
The National Archives and Records Administration (NARA) lists Carter’s “Executive Order 12172 — Delegation of authority with respect to entry of certain aliens into the United States.”
According to the conservative website Newsmax (Dec. 9, 2015), “In a 1980 speech, Carter stated, ‘The Secretary of Treasury [State] and the Attorney General will invalidate all visas issued to Iranian citizens for future entry into the United States, effective today. We will not reissue visas, nor will we issue new visas, except for compelling and proven humanitarian reasons or where the national interest of our own country requires. This directive will be interpreted very strictly.’
On the surface, this sounds like an apples-to-apples comparison between Trump’s statement – a “total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on” – and Carter’s executive order. However, Snopes (Dec. 9, 2015), a website dedicated to checking the veracity of rumors and stories, took a closer look.
“Stripped of context (and if readers squinted very hard), Carter’s remarks bore a passing resemblance to Trump’s proposal. However, the announcement’s title (‘Sanctions Against Iran Remarks Announcing U.S. Actions’) suggested that the passage was part of a larger foreign policy strategy undertaken in response to a specific crisis, which was clear to those who read [Carter’s] speech in full:
“ ‘Ever since Iranian terrorists imprisoned American Embassy personnel in Tehran early in November, these 50 men and women — their safety, their health, and their future — have been our central concern. We’ve made every effort to obtain their release on honorable, peaceful, and humanitarian terms, but the Iranians have refused to release them or even to improve the inhumane conditions under which these Americans are being held captive.’
“Carter addressed the then-ongoing Iranian hostage crisis,” Snopes writes, “(which lasted for 444 days between 1979 and 1981) in the opening portion of his remarks:
“ ‘The events of the last few days,’ Carter said, ‘have revealed a new and significant dimension in this matter. The militants controlling the Embassy have stated they are willing to turn the hostages over to the Government of Iran, but the Government has refused to take custody of the American hostages. This lays bare the full responsibility of the Ayatollah Khomeini and the Revolutionary Council for the continued illegal and outrageous holding of the innocent hostages. The Iranian Government can no longer escape full responsibility by hiding behind the militants at the Embassy.’
“In a broader context of an ongoing, direct conflict between Iran and the United States,” Snopes says, “Carter announced immediate sanctions on Iran, which included a cessation of diplomatic relations, a prohibition on trade, and assessment of previously-frozen Iranian Government assets. Along with several other sanctions, Carter ordered the cancellation of Iranian-U.S. visas and a moratorium on new visas, with exceptions for humanitarian and otherwise compelling situations. After listing the intended sanctions, Carter explained the United States’ impetus for them:
“ ‘In order to minimize injury to the hostages,’ Carter announced, ‘the United States has acted at all times with exceptional patience and restraint in this crisis. We have supported Secretary-General Waldheim’s activities under the U.N. Security Council mandate to work for a peaceful solution. We will continue to consult with our allies and other friendly governments on the steps we are now taking and on additional measures which may be required.
“ ‘I am committed to resolving this crisis. I am committed to the safe return of the American hostages and to the preservation of our national honor. The hostages and their families, indeed all of us in America, have lived with the reality and the anguish of their captivity for five months. The steps I have ordered today are those that are necessary now. Other action may become necessary if these steps do not produce the prompt release of the hostages.’
“Carter,” Snopes continues, “explicitly outlined the reasons behind the issuance of sanctions (including visa cancellation for Iranian nationals) and underscored his intent to pressure Iran’s regime. By contrast, Trump’s proposal was markedly different: not a sanction, but a security measure framed as a counterterrorism strategy, and one directed at all adherents of a particular religion (regardless of their nationalities) rather than citizens of a particular country. Moreover, Carter’s sanctions occurred during a lengthy period of escalating conflict between Iran and the United States (while U.S. hostages remained in foreign captivity), but Trump’s proposal came in response to a mass shooting perpetrated by an American citizen and his immigrant wife.
“Finally, Carter’s sanctions were applied to Iranian nationals as part of a clear objective to secure the release of the U.S. hostages without military intervention, whereas Trump’s suggestion applied to a far broader cross-section of visa applicants, which he described as a measure to prevent terrorist attacks.”
On the matter of whether Trump’s ban is constitutional, Harvard Law Professor Laurence Tribe said, “I believe Trump’s unprecedented proposal would violate our Constitution. Both the First Amendment’s Religion Clauses and the equality dimension of the Due Process Clause of the Fifth Amendment.”
“Tribe, a constitutional law expert,” NBC News reports, “said Trump’s proposal also conflicts with the Constitution’s general prohibition on religious tests outside of the immigration context. ‘It would also conflict with the spirit of the No Religious Test Clause of Article VI.’ ”
“Beyond the law, Tribe said it was also notable that using religious discrimination for immigration would be ‘impossible to administer’ and ‘stupidly play into the hands of extreme Islamic terrorists.’ ”
When asked how his plan would work in practice, Trump responded “They [border agents] would ask, ‘Are you Muslim?’ ”
In typical Trump fashion, when asked days later if would like to modify his stance, Trump cited Franklin Roosevelt’s forced internment of Japanese-Americans at the beginning of World War II as justification – a move that most scholars have long viewed as a black mark on the Roosevelt legacy.
Would Donald Trump’s plan calling for a ban on all Muslims entering the U.S. hold up based on 8 U.S. Code Law 1182? It’s highly doubtful. While President Carter targeted individuals by nationality, Trump’s plan targets individuals by ideology.
Read my rebuttal to comments on this post.
Read the latest commentary.
* Correction: This passage originally said that President Roosevelt was in part responsible for the shut down of immigration. Actually, it was President Herbert Hoover.