This week, scholars Josh Blackman and Michael Gerhardt will discuss on Twitter the constitutional aspects of issues arising at the Republican National Convention. Today, they look at the connection between immigration policies and national security.
To follow the discussion on Twitter, go to our Twitter account at @ConstitutionCTR On Monday, the Republicans released their 2016 convention platform. As expected, national security was an important issue for the party, especially in relation to immigration controls tied to countries associated with terrorism.
“We cannot ignore the reality that border security is a national security issue, and that our nation’s immigration and refugee policies are placing Americans at risk. To keep our people safe, we must secure our borders, enforce our immigration laws, and properly screen refugees and other immigrants entering from any country. In particular we must apply special scrutiny to those foreign nationals seeking to enter the United States from terror-sponsoring countries or from regions associated with Islamic terrorism,” the platform reads.
The constitutional argument over immigration and exclusions of certain groups of people dates back to the 19th century and World War II.
The Chinese Exclusion Acts, passed by Congress and signed into law by President Chester Alan Arthur in 1882, at first barred Chinese laborers from entering the United States, and restrictions were expanded to much ethnic Chinese, regardless of nationality, in subsequent laws. The Magnuson Act of 1943 and the Immigration Act of 1965 finally removed these restrictions. Several significant legal decisions upheld the legality of the Exclusion Acts.
In broader terms, scholars have been debating the First Amendment, the Fifth Amendment, and international legal agreements as topics when it comes to any proposed plan to exclude immigrants, especially when a religious group is targeted. But there are precedents where legal actions, not overturned by the courts, restricted immigration and allowed the incarceration of American citizens, based on ethnicity, during times of war.
The Korematsu decision involved the legality of Presidential Executive Order 9066, which was issued in early 1942 by President Franklin D. Roosevelt after fears generated by the Japanese attack made the safety of America’s West Coast a priority. The Court ruled on the ability of the military, in times of war, to exclude and isolate minority groups. “It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can,” Justice Hugo Black said in a majority opinion.
It remains to be seen how a contemporary Supreme Court would address these issues.
