Democrats on the Senate’s judiciary committee are planing to ambush the GOP majority today with a deceptively simple amendment that would both bash Donald Trump and help radical Islamists win entry into the United States, according to a congressional aide.
The amendment will be brought to a vote shortly after the Senate judiciary committee begins deliberations on several bills Thursday morning.
The short amendment says:
It is the sense of the Senate that the United States must not bar individuals from entering into the United States based on their religion, as such action would be contrary to the fundamental principles of which this Nation was founded.
On Dec. 7, Trump announced he wanted to conditionally bar admission of foreign Muslims into the United States pending the development of an effective anti-jihad strategy. “Until we are able to determine and understand this [Islamic radicalization] problem and the dangerous threat it poses, our country cannot be the victims of horrendous attacks by people that believe only in Jihad, and have no sense of reason or respect for human life,” Trump said in his statement.
If the Democrats’ amendment is blocked, Democrats could portray the GOP Senators as anti-religious bigots — even though huge numbers of Americans want tougher rules to prevent more of the Muslim jihadi attacks that have killed many Americans — and hundreds of Europeans — since September 2001. The latest attack came Dec 2. when two militant Muslims — the U.S-born son of Pakistani immigrants and his Pakistani-born immigrant wife — murdered 14 Americans in San Bernardino, California. They were killed by police, leaving their infant without parents.
But if the Democrats’ measure is approved and added to one of the pending bills by a majority of the 11 Republicans and 9 Democrats, the Democrats and their media allies could portray it as bipartisan rejection of Trump, now the leading candidate for the GOP’s 2016 nomination.
If the full Senate passes the amendment, then excluded foreigners could cite it in courtrooms to claim they were excluded for unconstitutional religious reasons. “This proposal is an audacious attempt to create a new right [to immigrate] out of thin air,” said a congressional staffer. “It’s a classic leftist tactic.”
Currently, the courts have not questioned at least one uncontroversial law — including a 2013 extension — that allows the immigration of religious groups which are persecuted, and that does not help the immigration of religious groups which are not persecuted.
That hands-off attitude reflects the long-standing view by Congress and the courts that foreigners should not be allowed to sue their way into the United States. “There are no rights in the Constitution, for example, for radical, Sharia Law supporters to come to America. Or for anyone to come here, for that matter,” the aide said.
“We welcome great additions to our nation, because that’s a smart and good thing to do, but we have no legal or constitutional requirement to do so,” the aide added.
However, progressives are already making the claim that the constitution doesn’t allow the federal government to exclude members of religious groups — for example, a sharia-boosting radical seeking to preach to Muslims in the United States.
A Dec. 9 report by National Public Radio, for examples, quotes Laurence Tribe, a progressive law professor at Harvard, who said that he:
is certain that Trump’s proposal would violate the Constitution.
Yes, he says, some court decisions have found that the some parts of the protective mantle of the Constitution don’t extend to foreigners. But according to Tribe’s interpretation, some of the most well-known protections — such as the First Amendment’s guarantee of religious freedom and the Fifth Amendment’s guarantee of due process — are not limited by nationality or geography.
“The [Fifth Amendment] applies to U.S. conduct with regard to any ‘person,’ wherever located and of whatever citizenship,” Tribe writes in an email. “And [the First Amendment] is a flat prohibition on actions that the U.S. government may take, including those actions that respect ‘an establishment of religion’ or prohibit ‘the free exercise thereof.’
The article also quoted Michael Dorf, at Cornell University Law School, who claimed that “immigration policy based on religious prejudice would be equally odious, and thus unconstitutional.”
So far, the claim that foreigners have some right to enter the United States is politically weak. A Wall Street Journal report said:
Constitutional challenges to immigration restrictions “face unusually tough hurdles,” Stephen H. Legomsky, of Washington University School of Law, who was chief counsel at the U.S. Citizenship and Immigration Services agency under President Barack Obama from 2011 to 2013…
It doesn’t appear that Mr. Trump would have to get congressional approval before advancing the Muslim ban, said Temple University law professor Peter Spiro. Congress has already given the president broad powers to suspend the entry of “any class of aliens as immigrants” if their entry would “be detrimental” to the nation’s interests.
The [courts’] plenary power doctrine, explains UCLA law professor Eugene Volokh, “basically says all bets are off, constitutionally speaking, when it comes to admission of aliens to the United States, [and] historically we have discriminated based on race, national origin and speech.”
That historical deference to the political branches, says Volokh, a First Amendment expert, suggests “from a constitutional perspective, it may well be that Muslims could be excluded, just like people could be excluded based on their speech and political opinions, and historically their race.”
The Democrat measure may pass the committee, partly because the GOP members of the panel include several advocates for much greater immigration — South Carolina’s Sen. Lindsey Graham and Arizona Sen. Jeff Flake — who oppose of Trump’s promises to enforce existing immigration law.
The GOP roster also include several business-aligned Republicans who favor large-scale immigration of migrants who are both lower-wage workers and taxpayer-funded consumers — Sen. Orrin Hatch, and Sen. Thom Tillis.
The Democrats can probably count on at least eight out of nine votes. Sen. Dianne Feinstein may oppose it.
Muslim migrants tend to be unskilled, heavily reliant on taxpayer-funded welfare programs, reluctant to integrate into Americans’ society, are under intense internal pressure to preserve their own mix of religion, culture and politics, are relatively likely to join jihad groups —56 Muslims were indicted on jihad charges in the first 11 month of 2015, and to support pro-jihad political groups.
Yet the federal government is set to increase their population in the United States up to 6.2 million by 2030. For example, a record 680,000 migrants from Muslims countries were granted Green Cards from 2009 to 2013. Also, two million people from Muslim-majority countries were admitted to the United States since the jihad atrocity on 9/11, 2001.
GOP leaders have been reluctant to back the public’s calls for reduced migration.