Donald Trump’s newly proposed ideological test for immigrants — one that he characterized as “extreme vetting” in a speech on Monday — has renewed debate over immigration reform in the presidential election.
It’s a debate worth having, and there are plenty of valid questions to be raised about his proposal. This is one occasion, however, when Trump may have the law on his side. As a general proposition, a litmus test for new immigrants isn’t unconstitutional or even unprecedented. Indeed, Trump could cite an unlikely figure in support of the authority for such changes: President Obama.
Trump wants to screen potential immigrants for “hostile attitudes towards our country or its principles” and ban those who harbor those views; or who, in his words, believe that sharia law should “supplant” our system of laws; or those who express “bigotry and hatred” with regard to gender equality or gay rights. Although Congress could block these conditions, Trump would have considerable leeway in requiring background checks and imposing such tests. It has happened before: During the Cold War, there was ideological screening under the 1940 Alien Registration Act, designed to prevent the entry of communists, anarchists and others. Immigrants are currently required to know basic civics as part of a citizenship test, and Trump’s extreme vetting would require visa applicants’ affirmative agreement with those principles — though he wasn’t clear whether he would do this with a legislative change (which would be unassailable) or a unilateral executive action.
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