Early Sunday, a gunman entered a gay nightclub in Orlando, Florida and killed at least 49 people and injured 53 others. Law enforcement officials identified the gunman as Omar Mateen, 29, who lived in Port St. Lucie, Florida, according to the New York Times. When he entered the nightclub, Mr. Mateen was “well-armed and well-prepared,” according to the police, who are calling the attack a “terror incident.” The attack is the worst mass shooting in U.S. history.
Since the attack, various details about Mr. Mateen have come to light.
We know that he was an American citizen who was born in New York. We know that he was a body builder and a security guard. We know that he was “on the radar” of U.S. security officials for some time, but was not under investigation or surveillance at the time of the shooting.We know that he used an assault rifle and handgun he had recently legally purchased. And we know that he called 911 during the attack and pledged allegiance to the Islamic State. Those close to Mr. Mateen have provided clues about who he was and what might have motivated him to commit such an atrocity. A former coworker described him as “unhinged and unstable.” His ex-wife said he was physically abusive and may have been bipolar. Mateen’s father, Seddique Mir Mateen, suggested he was homophobic, telling NBC News a story about how his son got angry when he saw two men kissing in Miami a couple of months ago.
Only one fact seemed to matter to Donald Trump, though: Omar Mateen was Muslim.
Trump, the presumptive Republican nominee for president of the United States, responded Monday to the worst mass shooting in U.S. history – and the worst terror attack singe 9/11 – with a no-holds-barred attack on Muslims. “People that are around him, Muslims, know who they are, largely. They know who they are. They have to turn them in. They know who they are, they see them,” Trump said on Fox and Friends of the Orlando shooter. Then, on CBS’s This Morning, Trump said “very shortly you’ll find out that many people knew that he was bad, many people knew that he had some kind of an idea, you know, for an attack.”
He went on to portray refugees as terrorists.
Trump said “thousands and thousands” of radicalized Muslims are flowing into the country as refugees, a claim that is belied by the facts. He claimed that the Orlando shooting is reflective of a deeper danger in the American Muslim community: “That’s just one person. Can you imagine what they’ll do in large groups, which we’re now allowing to come here?” And he argued that the proper response to the shooting was to ban Muslims from entering the nation.
This wasn’t the first time Trump has suggested banning Muslims as his preferred (and only?) method to combat domestic terrorism. Trump initially proposed the ban after the San Bernardino attack in December, and received criticism from both Republicans and Democrats alike. The proposed ban “is not what this party stands for, and, more importantly, it’s not what this country stands for,” House Speaker Paul Ryan, who recently endorsed Trump, said at the time.
Trump’s response has always been that calling for a ban was the right thing to do. “I called for a ban after San Bernardino and was met with great scorn and anger, but now . . . many are saying that I was right to do so,” Trump said. And on Monday, he made the case that it would also be perfectly legal and constitutional:
The immigration laws of the United States give the President the power to suspend entry into the country of any class of persons that the President deems detrimental to the interests or security of the United States, as he deems appropriate. I will use this power to protect the American people. When I am elected, I will suspend immigration from areas of the world when there is a proven history of terrorism against the United States, Europe or our allies, until we understand how to end these threats.
What makes Trump particularly dangerous here? He may be right.
On its face, Trump’s proposal to ban Muslims is an overreach that appears inconsistent with U.S. practices. “The only respect in which religion is a legal criterion in immigration choices is that fleeing religious persecution weighs in someone’s favor on the question of being refugee status,” Richard Primus, a constitutional law professor at the University of Michigan law school, told CBS News in December. “Saying ‘no Muslims allowed’ or ‘no Christians allowed’ would not be legal. It would probably be unconstitutional.”
That statement, however, overlooks a critical fact – namely, that federal law and the judiciary have long given the president nearly unchecked power to bar foreigners from entering the country. And that precedent provides reason to believe that Trump’s proposed ban on Muslims could be legal.
There is historical precedent for the “temporary ban” that Trump is proposing. In the late 1800s, for example, Congress passed the Chinese Exclusion Act, which was aimed at halting the immigration of Chinese laborers. The Supreme Court, in Chae Chan Ping v. U.S. (1889), upheld the law, declaring that the “power of exclusion of foreigners” was a “part of the sovereign powers delegated to” the federal government. Those laws were not fully repealed until the 1940s. In addition, we can point to laws from the early 1900s establishing quotas based on race and national origin for immigration purposes. Racial quotas were repealed in 1952; quotas based on national origin weren’t eliminated until 1965.
But lest you believe that this so-called “plenary power” is a historical artifact irrelevant to today’s jurisprudence, consider the fact that just last year, Justice Anthony Kennedy delivered a concurring opinion in which he affirmed the federal government’s power to exclude immigrants.
The authority for this “plenary power” is derived from the U.S. Code, in particular the Immigration and Nationality Act. In pertinent part, the Act reads: “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 deems necessary, suspend the entry of all aliens or any class of aliens.”
The “plenary power” doctrine is loathed by many lawyers and civil libertarians. But its continued existence, at least for now, means that unless the federal courts were to depart sharply from prior precedent, a Trump-like ban on Muslims would likely be found constitutional. The Court has certainly departed from precedent in the past, but a constitutional challenge to a broad immigration ban would face an uphill fight in the Supreme Court.
Of course, simply because a President Trump may be able to legally ban Muslims from entering the country doesn’t mean that he should. As Americans, we should find oppression of people on the basis of religious faith morally wrong and unacceptable. We should strive to protect people who are threatened because of their beliefs. And we should encourage the free exercise of religion. Of all religions, creeds, faiths and beliefs.
That’s clearly not what Donald Trump believes.
Here’s Trump’s immigration prevention system, as explained by the candidate:
Willie Geist: Donald, a customs agent would ask the person his or her religion?
Donald Trump: They would be probably, they would say, “are you Muslim?”
Geist: And if they said, “yes,” they would not be allowed in the country?
Trump: That is correct.
This is an absurd, and dangerous, proposal. It is morally wrong. It is contrary to our values.
Trump has painted the entire American Muslim community as a devious enemy secretly undermining the very nation in which they live. He is tapping into some of the darkest aspects of American history, and it should scare you. Even more so because Trump could probably do what he is proposing to do.
Is that the version of America you want to live in?
The massacre in Orlando was tragic. With each passing day, we will learn more about the attack – about the killer, about the victims, about the people who’s lives are forever changed after losing loved ones. But in our frustration and anger, we cannot succumb to hate. There’s one more thing we know that I left out above. We know that one hateful person committed this terrible crime – not an entire people or an entire religion. To think otherwise would make us no different than him.
Featured Image Credit: Gage Skidmore on Flickr (via creative commons)