Fact-Check: No, Discriminating Among Immigrants on National Origin Is Not Unconstitutional

Members of the Islamic militant group Jihad burn U.S, Israeli and British flags over a mock coffin symbolic of Arab armies during an anti-American, British and Israeli rally April 11, 2003 at the Jabalia refugee camp, Gaza Strip.
Abid Katib/Getty

During Tuesday night’s vice presidential debate, Sen. Kaine (D-VA) — interrupting Indiana Gov. Mike Pence for the umpteenth time — accused Trump and Pence of “violating the Constitution by blocking people based on their national origin rather than whether they’re dangerous.”

Fact check: FALSE.

That is not unconstitutional. That is current U.S. immigration policy. We prefer some countries over others. That is constitutional, lawful, and logical.

There is no U.S. constitutional provision providing equal protection for people based on national origin — certainly when they are not yet in the United States!

Kaine went further, saying that it was unconstitutional for Donald Trump to “keep them out if they’re Muslim.” Trump has since softened that stance somewhat, and now wants to keep people out from terror-prone countries. But regardless, the constitutional protection against religious discrimination does not apply to people who are not yet immigrants, residents or citizens.

In fact, our current immigration policy “discriminates” against Muslims because it does not permit people to bring over their spouses from polygamous marriages, which are permitted in many Muslim countries. That kind of discrimination is constitutional and lawful.

It would, arguably, be appropriate for the U.S. to discriminate in favor of some religions — such as Christians and Yazidis — who are subject to discrimination and persecution in the Muslim world.

Regardless, it would be constitutional to do so.


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