Muslim Migrants: A Constitutional Right to Be Here? Don't Bet The Farm...

"A nation that cannot control its borders is not a nation." - Ronald Reagan

The presumptive nominee of the GOP (Donald Trump) was the only candidate that was bold enough, on the campaign trail, to reflect the grave concern of the majority of Americans: unfettered and unvetted Muslim migration.

If confusion exists concerning Muslim migrants coming to the US, then one needs only look across the Pond at Europe to see the heinous consequences of open borders and the flood of unvetted hordes of Muhammadans: masses that have among them ISIS supporters and participants.

Recently, addressing this issue, Mr Trump stated that he'll investigate the issue with a committee which he's asked former NYC Mayor Rudy Giuliani to head... a wise choice.

Although Giuliani knows the facts concerning this problem, on Hannity he said,

I think we have to be very careful about who we let in. I don't think we should let any of the refugees in. I think they should be put in a safe zone in Syria, but if you do a ban on all Muslims, I have no question that you violate the first amendment. The reality is if you let no one in, you could say well, they have no Constitutional rights but once the government sets up a system, the government cannot discriminate in the way it applies that system. So the minute the government sets up an immigration system it can't use religion as a test or race or gender as a basis for why someone can't come in.

I beg to differ with the good Mayor. Well actually, some legal experts also disagree...

Judge Hal Moroz, author of Breaking Trust with the Constitution, said:

The First Amendment prohibits our government from interfering with the fundamental rights of American citizens and, in limited circumstances, those within the territorial confines of America. It does not apply to foreign nationals outside the jurisdiction of the United States.

Even the arguments of those who say it 'could' apply to Muslim refugees seeking to migrate to the United States fail when the Supreme Court's standard of Strict Scrutiny are applied, that is, does the government have a compelling reason to deny entry to this group? The answer is yes, they pose a real and reasonable threat to the safety of Americans based on the evidence of the actions of this group in other nations they have migrated to. They pose a real and imminent threat to the United States.

Any constitutional prohibitors are specifically against the powers of our government in relation to us citizens. That does not extend to foreign nationals seeking to come here. They have no standing to enjoy our constitutional protections. That's established law, and the mayor should know that.

Immigration moratoriums have historically been for any reason, including racial and political considerations.

Jan C. Ting, a professor at Temple University's School of Law and a former Immigration and Naturalization Services commissioner for the Department of Justice, explained (to The Daily Caller) that Trump’s plan is in keeping with over a hundred years of legal precedent:

No kind of immigration restriction is unconstitutional... The U.S. government can exclude a foreign national on any basis.

The statutes are clear: immigration is different from all other aspects of the law... The Supreme Court has ruled we can enact laws against foreign nationals that would not be permissible to apply to citizens. The courts historically have no role in these decisions ... it's unlikely for the [Supreme] Court to reverse 100 years of legal history and overturn it. It would be giving foreign nationals civil and constitutional rights to do so.

Eric Posner, professor at the University of Chicago Law School and the fourth-most cited legal expert in the U.S., concurs with the constitutionality of Trump's proposed moratorium in posts on his blog:

Constitutional protections that normally benefit Americans and people on American territory do not apply when Congress decides who to admit and who to exclude as immigrants or other entrants.

Although Posner admitted that there is no specific precedent for exclusion based on religious association, he did cite a congressional measure passed in 1891 that "made inadmissible people who practice polygamy (directed, at that period, toward Mormons)."

It's a political season and I'm sure the Mayor was employing a plausible deniability with his answer (let's hope this is not a glimpse of politispeak to come).

I concur with these legal experts and believe the government can choose who they admit and who they don't, based upon ideology (like Islam), recalling specifically how some in the Muslim community could be moderate, before they weren't (e.g. Fort Hood jihadist, Boston bomber jihadists), and slaughter innocent American lives.

Let's do something novel, and start applying the Constitution as written. It's worked for almost 229 years with sterling results. And, because one more innocent American life lost is worth the application.

Shalom through strength.

******

Audrey Russo is host of the weekly REELTalk Radio Show based in New York City. Her articles on the Middle East, national security, terrorism and cultural issues have been published widely. Audrey is also an active member of the NYC performing arts community as a singer and actor.