December 12, 2015
By: John E. Fiorentino
Republican Presidential hopeful Donald Trump set off a firestorm of criticism this week when he proposed a ban on Muslims entering the United States.
The criticism of Trump's idea came from many corners including some in the media, the general public, academics and politicians, including many in his own party,
Trump has never been and probably never will be the favorite of many in the GOP establishment who view him as an outsider and threat to the status quo. It is however this rebel persona and disregard for political correctness that has helped propel him to the front runner spot in the race for the Republican nomination for President of the United States. Mr. Trump has tapped into a rather pervasive feeling among voters that many of those in Washington are incompetent at best and in some cases worse. His frequent use of the term 'stupid' to describe the current leadership in our country has resonated loudly and clearly with many.
Media bias and journalistic incompetence
While it's readily apparent to anyone with a brain our ability to report the news without error and bias has declined in recent years, the most influential and in your face examples arguably are what some have referred to as the “Three Stooges” of cable “news”, CNN, FOX and MSNBC. It is precisely the drool that has emanated from these media outlets that has fueled much of the criticism of Donald Trump's travel proposals. Being seemingly incapable of reporting the news accurately, (either because of incompetence or purposeful intent) the media through its reporters or paid talking head “analysts” twists and turns itself into an indistinguishable and convoluted faded reflection of the truth.
Some of the more well known “pundits” such as FOX's Bill O'Reilly shout the loudest and pontificate the most. Just several nights ago, O'Reilly stumbled and bumbled his way through an interview with Donald Trump about his Muslim travel ban where he misrepresented much of what Trump said. Odd that any criticism at all would be coming from the blustery O'Reilly (or even more succinct even that O'Reilly is still on the air) after his blatant misrepresentations about his involvement in the JFK assassination and the suicide of an acquaintance of accused assassin Lee Harvey Oswald, one George de Morsenschildt. O'Reilly claims he was standing on the porch of the home where de Morenschildt was staying and heard the shot when he pulled the trigger on a shotgun he had stuffed in his mouth, ending his life. O'Reilly wasn't on the porch.
Nothing about O'Reilly's fabrication seems to bother anyone at CNN, MSNBC, O'Reilly's own employer FOX News or apparently anyone else. Lesser misdeeds have of course brought down others in the media. O'Reilly continues to bloviate and tout his “Killing” series of books as factually based.
The fact is, much of what is attributed to Donald Trump regarding his Muslim 'ban' springs from this twisting by the media. For instance the assertion that his ban would apply to US citizens is simply not true. The media claims of course that Trump has “walked this back” when in reality he indicated from the beginning his proposal didn't apply to citizens, Mr. Trump stated in an interview with ABC News on Tuesday, Dec. 8, 2015 that his ban would not apply to U.S. citizens. In his words, "If a person is a Muslim, goes overseas and comes back, they can come back. They're a citizen. That's different," Trump said. "But we have to figure things out."
I have had my own run in with one of the triumvirate. CNN stonewalled me for over a month as I tried to break my story about the acoustic impulses recorded by the ship Ocean Shield in the case of the missing airliner MH370. CNN finally broke the story on Newday Saturday, May 10, 2014. As it turns out, I was right. You can read about much of my battle on my Newsvine column here: http://research-investigations.newsvine.com.
It's “unconstitutional” - But is it?
Although terrorism here and around the globe has been with us for some time now, the recent events in both Paris, France and San Bernardino, California have acted as catalysts raising both public awareness of the threat and escalating fears about public safety.
Many of those who are opposed to Trump's idea have used many terms to describe it including “Un-American,” “ridiculous,” “bigoted,” “reckless,” and “unconstitutional.” It is the latter we will attempt to address in this article.
On surface, the use of the term unconstitutional to describe Trump's plan may appear appropriate. After all our country was founded on a fleeing from Kings and religious persecution. The idea that we would ban an entire religious group from entering our shores is an anathema to most Americans. It certainly was that to me when I first heard Trump's proposal - my own knee-jerk reaction to a very distasteful scenario.
While many were disturbed by Mr. Trump's plan, the fact remains that we are at war. We are at war with an unconventional enemy of radical Islamic terrorists, whose purpose is to disrupt our way of life, create an atmosphere of fear, foment terror and yes, even maim and kill us. These sub-humans have no regard for the lives of innocent men, women and children. They are often indistinguishable from our neighbors and friends. An unconventional force for evil that requires an unconventional response from those who seek to protect themselves and their families from harm or who are responsible for the safety of the general citizenry.
The history of this nations response to our enemies has often been controversial. Many of these actions of the past were also referred to with such terms as Un-American, reckless, unconstitutional, etc.
Lessons from the past
The first US law placing restrictions on immigration was the Page Act of 1875, named after its sponsor Republican Representative Horace F. Page. The law prohibited the entry of any alien who was considered “undesirable.” Undesirable in this case included Asians coming here as forced laborers, Asian women engaging in prostitution and others who were considered convicts in their home country.
Wartime and other crisis controversies
Several US Presidents have issued controversial orders in time of war or other crisis including Jimmy Carter and Franklin Roosevelt. Carter issued this order, (among others) during the Iranian hostage standoff: “….the Secretary of Treasury [State] and the Attorney General will invalidate all visas issued to Iranian citizens for future entry into the United States.... 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.”
Franklin Roosevelt, In February of 1942 issued Executive Order 9066 which authorized the deportation to internment camps of Japanese, German, Italian Americans and others. It was this action that gave rise to several Supreme Court cases dealing with the issue. These cases, while not dealing with the specific instance of the banning of Muslim entry into the United States gives us the closest look available into the Supreme Courts thinking regarding Presidential power during wartime and other national emergencies.
Three Supreme Court cases dealt with Executive Order 9066, Yasui vs. United States, Hirabayashi vs. United States and Korematsu vs. United States. In all three cases the Court sided with the government and upheld the constitutionality of President Roosevelt's Order.
In its decision the court opined about the seriousness of the Order:
“…...we are not unmindful of the hardships imposed by it upon a large group of American citizens.... But hardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities, as well as its privileges, and, in time of war, the burden is always heavier.
Compulsory....exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. But when, under conditions of modern warfare, our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.
Laws already on the books for years give the President wide latitude in deciding who may enter the country and for how long. For instance:
Title 8 U.S. Code § 1182 - Inadmissible aliens
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
Of course this article or any article for that matter cannot conclusively settle the issue of the constitutionality of Trump's proposed temporary Muslim travel ban. We can however get a good feel for the mood of the Court in deciding these matters.
In 1988 President Reagan signed the Civil Liberties Act which compensated many who were incarcerated in internment camps and offered a formal apology. In 2011 the Justice Department filed official notice that Korematsu was in error. This erased the value of the case as a precedent for internment. It is still true however that the Korematsu decision has never been explicitly overturned. And while the Supreme Court has never specifically ruled on the exclusion of an entire group from entry to the US based on religion, there is little in the way of support indicating the Court would find such actions unconstitutional.
Copyright 2015 – J. E. Fiorentino – All Rights Reserved
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