by ANDREW C. MCCARTHY
This contention borders on the frivolous. I was sorry to see Charles Krauthammer rely on it last night – even if it was fodder for a few much needed laughs as Dr. K evoked the “George Washington cherry-tree standard of not telling a lie to an infidel immigration officer,” and Chris Stirewalt quipped that maybe, as an assurance that they were not Muslims, would-be immigrants could be forced to eat a ham sandwich. Funny … but also suggestive of basic misconceptions about immigration law.
While many commentators acknowledge that aliens have no right to enter the United States, they miss the legal significance of this fact: In federal admission proceedings, the burden of proof is on the immigrant. It is the alien who must demonstrate, to the satisfaction of the examining official, that he or she is not subject to exclusion under any provision of the immigration law. It is not up to the government to prove that the alien should not be admitted – or, as relevant here, to prove that the alien is lying.
Because the decision about whether to admit an alien into the country is left to the government’s discretion, the alien loses if the examiner is not satisfied. The legal theory that immigration enforcement is a federal responsibility is based on the central government’s being sovereign, particularly at the border. An alien has no judicially enforceable right to enter over the sovereign’s objection. So while an alien, in trying to satisfy his burden of persuasion, may offer to eat a ham sandwich, it is highly unlikely that a government examiner would try to force him to do so.
In many circumstances, Charles would be right to point out that Islamists and other Muslims could defeat proposed regulations simply by lying. For example, when it was alleged that Trump had proposed a Muslim registry, I pointed out that this suggestion was not only illegal – because it would subject Muslim Americans to discriminatory investigation – but impractical because some Muslims would simply defy the registration requirement and dare the Justice Department to prosecute them.
Two last points.
1. Both my column and yesterday’s National Review editorial point out that applicants for immigration have long been required to provide assurances of fidelity to American constitutional principles – and during the Cold War, assurances that they were not adherent to the ideology of our enemies. These mandates are worthwhile not only for what we learn from the applicants but as an expression of what we expect – and what we reject – as a nation.
2. I contend, as do the editors and Mark Krikorian, that there is nothing unconstitutional about Trump’s proposal. (I’m referring to the proposal in its final form. As originally floated, the proposal of “a total and complete shutdown of Muslims entering the United States” would have included Muslim American citizens and lawful permanent resident aliens. That would be lawless, and recklessly so). It is probably true, as Jim Geraghty suggested yesterday, that a majority of the Supreme Court would hold Trump’s proposal unconstitutional, but if so the justices would be doing politics, not law – something for which the Court has become notorious.