McCarran-Walter Act

I have received multiple emails from right-wing friends referencing the McCarran-Walter Act, a.k.a. The Immigration and Nationality Act of 1952 (8 US Code Law 1182). The point of the email is that all Muslims “should or could be refused immigration to our country”  and asks the reader “what do you say about all of the criticism that Donald Trump received” from ordering a travel ban. What follows is my usual response.

Long before McCarran-Walter, President Hoover and the State Department essentially shut down immigration during the Great Depression as immigration went from 236,000 in 1929 to 23,000 in 1933. This was accompanied by voluntary repatriation to Europe and Mexico, and coerced repatriation and deportation of between 500,000 and 2 million Mexican Americans, mostly citizens, in the Mexican Repatriation.

Briefly, 8 US Code Law 1182 says:

“Inadmissible aliens: defines inadmissible aliens with health-related communicable diseases, conviction of certain crimes, multiple criminal convictions, controlled substance traffickers, prostitution and commercialized vice, certain aliens involved in serious criminal activity who have asserted immunity from prosecution, foreign government officials who have committed particularly severe violations of religious freedom, significant traffickers in persons, and money laundering if the Attorney General has reason to believe that the alien is engaged in terrorist activities, immigrant membership in totalitarian party [at the time, this was listed as Communist], participants in Nazi persecution, genocide, or the commission of any act of torture or extrajudicial killing, association with terrorist organizations, and recruitment or use of child soldiers, to name but a few of the details.”

While it was passed in 1952 and parts of the original Act remain, it has been amended many times and was modified substantially to become the Immigration and Nationality Services Act of 1965. It was this modified act that President Carter referred to in 1980 when he banned Iranians from entering the United States.

What Carter did was part of a larger program to pressure the Iranian regime in order to secure the release of American hostages without military intervention. In contrast, Trump's proposal comes in response to a mass shooting perpetrated by an American citizen and his immigrant wife. While President Carter targeted individuals by nationality, Trump’s plan targets individuals by ideology. Law experts say that Trump's plan would very likely be ruled unconstitutional.

Furthermore, regarding the Koran forbidding allegiance to the US Constitution, you may recall the kerfuffle when Trump lashed out at the Gold Star Muslim-American parents whose son was killed while serving in the US military in Iraq. There are many Muslims and children of Muslim immigrants who put their lives on the line to defend American values. Beyond dying to protect us from our enemies, I don't know what else Muslims could do to show their allegiance.

By the way, banning any particular religious group from entering the US would violate several parts of the Constitution, specifically the First Amendment's Religion Clauses and the equality dimension of the Due Process Clause of the Fifth Amendment; it would also conflict with the spirit of the No Religious Test Clause of Article VI. 

Cornell Law professor Michael Dorf, an expert in constitutional law, said that while U.S. policy ‘routinely applies different immigration rules for nationals of different countries,’ Trump’s proposal to only exclude ‘foreign nationals who are Muslim’ would likely be ‘unconstitutional.’

Stanford Law professor Jenny Martinez, an expert in international law, said ‘Excluding all people of a particular religion from entering the country on the sole basis of their religion would, in my view, clearly violate the Constitution’s guarantee of equal protection.’

Furthermore, an attempt to ban Muslims from the US would play right into the hands of jihadi propagandists. And how would we know that an immigrant was Muslim? Trump says an immigration office would ask them, "Are you Muslim?" How easy would that be to get around?  If a terrorist was intent on harming us, do you think he would answer truthfully?"

I'm all for banning individuals from our country if their intent is to harm us. But banning individuals according to their religion would be un-American and most likely destined to fail. We have to be smarter about it. There are similar problems with many of Trump's proposals: they are a knee-jerk reaction to a situation and are too simplistic, or too illegal, or too expensive, or too impractical to implement.