Trump’s Muslim Ban Is Not ‘Fascist,’ and Is Not Unconstitutional

The Associated Press
The Associated Press

Because it has caused a great deal of controversy (to put it mildly), it seems appropriate to quote the “Donald J. Trump Statement On Preventing Muslim Immigration” in full:

Donald J. Trump is 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. According to Pew Research, among others, there is great hatred towards Americans by large segments of the Muslim population. Most recently, a poll from the Center for Security Policy released data showing “25% of those polled agreed that violence against Americans here in the United States is justified as a part of the global jihad” and 51% of those polled, “agreed that Muslims in America should have the choice of being governed according to Shariah.” Shariah authorizes such atrocities as murder against non-believers who won’t convert, beheadings and more unthinkable acts that pose great harm to Americans, especially women.

Mr. Trump stated, “Without looking at the various polling data, it is obvious to anybody the hatred is beyond comprehension. Where this hatred comes from and why we will have to determine. Until we are able to determine and understand this 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. If I win the election for President, we are going to Make America Great Again.”

It should be possible to disagree with this statement without describing Donald Trump as the new Hitler… but it seems to be rather difficult.  

Mediate has a roundup of newspapers making Hitler comparisons, complete with photos chosen to make it look as if Trump is giving his audiences the old Sieg Heil.  The Huffington Post declared Trump had gone “full fascist.”

“Is this what Germany looked like in 1933?” asked MSNBC host Joe Scarborough.

That last link comes courtesy of my friend David Harsanyi of The Federalist, who lost family members during the Holocaust, and speaks with authority when he replies to Scarborough, “No. Not at all.”  

David says he tries to be a good sport about “the occasional gratuitous Nazi analogy,” but feels obliged to throw a flag on this particular play:

Unless political demonstrations have been banned and something comparable to the Reichstag fire is about to go down, Trump is not going to be Führer. Marinus van der Lubbe may not have burned down the German Parliament, but Islamic terrorists actually did gun down a bunch of Americans last week. And yet Stormtroopers didn’t smash Muslim businesses in a fury of collective punishment; a concentration camp for political opponents of Trump was not established this year; there’s been no decree banning Muslims from practicing law and civil service jobs, and no prohibitions on Islamic dietary laws. Not even Trump has claimed to want to institute any of these things—and other than a few fringy Nazi types on Twitter, I’ve never seen anyone claim to want to institute these things. All of them, of course, would be unconstitutional.

He offers an interesting theory that the swift flurry of “Trump=Hitler” responses might be due to the Left’s effort to portray Muslims as an oppressed class in the Western world.  There’s a lively genre of European editorials and political speeches that explicitly claim “Muslim refugees are the new Jews.”

As for whether Trump’s proposed Muslim immigration ban would be unconstitutional, Mark Krikorian at National Review judges it would most likely pass Constitutional muster, with due allowances for varying interpretations (and some confusing responses from Trump campaign spokespeople) of exactly what Trump has in mind:

First of all, it’s important to underline that Congress can exclude or admit any foreigner it wants, for any reason or no reason. Non-Americans have no constitutional right to travel to the United States and no constitutional due-process rights to challenge exclusion; as the Supreme Court has written multiple times, “Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.”

What’s more, while the president doesn’t have the authority that Obama has claimed, to let in anyone he wants for any reason (under the guise of “parole”), he does have the statutory authority to keep anyone out, for any reason he thinks best.

We really ought to get past the habit of describing every idea we disagree with as “fascist,” “unconstitutional,” or “un-American,” with the latter term covering the angry denunciations of Trump’s Muslim immigration ban as going against everything Americans “stand for and believe in,” to quote former Vice President Dick Cheney on the matter.  

It’s fun to watch people who generally portray Cheney as a Dark Lord of the Sith embrace him as a prominent anti-Trump spokesman, but really, there is nothing in the charter or character of the United States that demands unlimited immigration from anywhere, or everywhere.  We should have the political language to denounce proposals in very strong terms without saying they run contrary to the basic character of the country – or, conversely, asserting that agreement with a proposal is mandatory for all good Americans.

I have little hope of winning the war against political hyperbole today, even though it’s a day when Donald Trump is a commanding figure on both sides of the hyperbole battlefield.  I’m also not looking for a side job as interpreter of What Trump Really Meant.  I have to sleep sometime, and the oracles of What Obama Really Meant look absolutely exhausted these days.  

But going from his original statement and its title, and sifting through the rubble of the overnight attacks and clarifications, I think we’re talking about: (A) A ban on Muslim immigration to the United States, for (B) a limited period of time (“until our country’s representatives can figure out what is going on,” which may be the vaguest deadline ever proposed) because (C) the Muslim population includes an unacceptably high percentage of people prone to commit, support, or indulge terrorist violence (“it is obvious to anybody the hatred is beyond comprehension.”)

This may be a very bad idea, or an unworkable proposal; Trump can be criticized for failing to include extensive specifics for such an enormously controversial idea, or fully briefing his campaign staffers on the bombshell he was about to drop.  But it’s not fascism or Hitlerism.  Among other things, it is a proposal that would leave considerably fewer people under the authority of a prospective President Trump.  Hitlerism was not defined by closed borders, but by moving borders.  You didn’t have to immigrate to Nazi Germany – it came to you.

In his National Review piece, Krikorian gives Trump a little credit for starting a conversation about immigration and national security, topics which are too often dominated by thoughtless pieties.  We might also applaud Trump for dragging liberals out of their seven-year totalitarian stupor under Obama, and making them realize due process matters, legislative responsibility rests with Congress, and untrammeled executive authority is bad.  I knew they would instantly embrace all of those truths on the day a Republican President was inaugurated, but Trump woke them up over a year ahead of schedule.

It’s true that screening for religious affiliation in the manner Trump described would be logistically difficult and uncomfortable, but somehow Saudi Arabia pulls it off.  Good luck immigrating there with big plans to open a church or synagogue.  For that matter, good luck getting into the Kingdom as a Syrian refugee.

Most Americans don’t want to use Saudi Arabia as an immigration model, but let’s not pretend a very sizable portion of the U.S. electorate isn’t having doubts about indiscriminate open-door immigration policies.  Again, not to be an interpreter of What Trump Really Meant, but what if he proposed a temporary moratorium on immigration from a few particularly troublesome Muslim countries, the proximate example being Pakistan?  

In a post meant to dispel the “tiny minority of violent extremists” mythology of Islam, David French at National Review notes that in Pakistan, “a horrifying 72 percent couldn’t bring themselves to express an unfavorable view of ISIS.”  Is it still Hitlerism to say that maybe we ought to pump the brakes on granting visas to especially problematic regions?

The Americans who have qualms about Islam are not mindless bigots.  They’re looking at what’s actually happening across the Muslim world with open eyes.  “All Muslims are terrorists” is a foolish statement, but Hillary Clinton’s statement that “Islam has nothing whatsoever to do with terrorism” is equally foolish.  The cognitive dissonance of swallowing such officially-mandated pap has grown too great for many Americans to bear.  They’re nervous about donning the sensitivity blindfolds their political leaders insist they wear.

They’re also pushing back against demands that law-abiding citizens give up Constitutional rights and modify their lives in the name of security.  If that’s the price of mass immigration, it’s not xenophobic for citizens to decide it’s not worth paying.  The more sternly they are informed reasonable discussion of the matter is impossible, the more they will embrace less reasoned modes of discourse.  

If the choice is between Attorney General Loretta Lynch declaring an unconstitutional crusade against “anti-Muslim speech” after an Islamist massacre, and her boss daydreaming about using a no-fly list to short-circuit the Second Amendment, without the Beltway establishment batting an eye… and Trump’s undeniably extreme Muslim immigration ban… many people will find those alternatives comparably outrageous, and choose the outrage that injures them less.  Who wants their obituary on page A26 of the newspaper that uses its headline to declare they’re no better than the Islamist who murdered them?

Personally, I think we can handle these challenges without a total ban on any form of immigration, but we do need to understand that security screening, assimilation, and law enforcement are logistical exercises.  Numbers matter.  It is also sheer folly to pretend every group of prospective immigrants is exactly the same, or that every nation of origin is equally capable of providing the kind of background information solid vetting requires.

As long as our respectable political elite is willfully blind to those realities, and insists we all share their studied ignorance, outrageous voices can own the reasonable real estate in this debate.



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