Trump’s Islamophobia Will Take America Down a Path It Cannot Repeat
Immigration has proven to be perhaps the most important issue of the 2016 presidential race, and a deciding factor in recent primaries. Immigration came squarely to the forefront when polarizing Republican candidate Donald Trump, in his campaign announcement speech, declared that “[w]hen Mexico sends its people, they’re not sending their best. [. . .] They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.”
Such a statement would end most campaigns. For a short time, it looked like it would end Trump’s. Republican presidential candidates and politicians including former Governor Jeb Bush, Senator Marco Rubio, former Governor Rick Perry, Senator Lindsey Graham, and former Governor Mitt Romney were all quick to condemn Trump’s statement. Republican National Committee Director Sean Spicer said that Trump’s statement was “not helpful to the cause” of reaching out to Latino voters. Univision, NBC, Macy’s, NASCAR, ESPN, and the PGA, among others, all terminated business relations with Trump within days of his statement.
Rather than apologizing for his widely-condemned, racist, erroneous characterization of undocumented Mexican immigrants as criminals and rapists, Trump doubled down, reiterating over and over again that undocumented Mexican immigrants “are, in many cases, criminals, drug dealers, rapists, etc.” These comments should have destroyed his campaign, and many predicted that they would – that Trump was a joke candidate only in the race for publicity – but, nearly seven months later, Trump is coming fresh from major primary wins in New Hampshire and South Carolina. Rather than alienating voters with his racist, divisive attack, Trump has instead tapped into a deep font of xenophobia and nativism that has propelled him to primary success.
Trump hasn’t confined his anti-immigrant rhetoric to Hispanic immigrants, however. In the wake of the devastating San Bernardino shooting committed by ISIS supporters, Trump infamously called for a ban on immigration and travel by all Muslims to the U.S., citing fears of jihadists and Sharia law. The Trump campaign clarified that the proposed ban would apply to Muslim immigrants and tourists, but not to Muslim American citizens. Although Trump’s travel ban would not apply to citizens, Trump also called in statements for increased surveillance on mosques and the creation of a database of Muslim Americans. Far from shying away from his Muslim ban statements, Trump featured them in TV commercials in Iowa and New Hampshire. Despite being almost universally condemned as impossible to implement and potentially racist, like his statements on undocumented Mexican immigrants, Trump’s statements on Muslims proved disturbingly popular. Three quarters of South Carolina Republican primary voters expressed support for the proposition in an exit poll. Instead of damaging his campaign, Trump had once again bolstered his numbers by tapping a large, growing fear of Islam.
Trump’s statements are reflective of a burgeoning Islamophobia in America generally. Three Muslim students were shot dead in Chapel Hill, North Carolina in February 2015. Two days later, a Houston mosque was burned down in a possible act of arson. Al Jazeera America reported the verbal assault of two women in a Texas restaurant, the arson of a Somali restaurant in North Dakota, threats against a New Jersey mosque, and the beating of a Muslim shopkeeper in New York in the span of a few weeks. On December 12, 2015, a robber in Grand Rapids, Michigan called a store clerk a “terrorist” before shooting him in the head. Armed “protesters” intimidated worshippers at an Irving, Texas mosque and published the names and addresses of area Muslims online. The Council on American Islamic Relations has recorded 75 acts of violence or discrimination against Muslims between November 2015 and the first of this month. Making up less than one percent of the American population, Muslim Americans are an easy and vulnerable target for bigotry.
The rising tide of Islamophobia in America brings Trump’s seemingly-bombastic Muslim ban into the terrifying realm of possibility. Even worse, is that the law might actually allow it. Congress enjoys what is referred to as “plenary power” over immigration, which gives Congress practically unlimited power to deny foreigners entry into the U.S. The Supreme Court has described this power saying, “[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.” In 1889, the Supreme Court upheld a statute, referred to as the Chinese Exclusion Act, which prohibited the entry of Chinese workers into the U.S., saying “[t]he power of exclusion of foreigners [. . .] when, in the judgment of the government, the interests of the country require it, cannot be granted away or restrained on behalf of any one.” Despite the seeming adversity of this precedent and the extreme deference to Congress’s immigration power, it has been well over 100 years since Chae Chan Ping was decided, and the Court is well aware today of the shameful mark left on American history by anti-Chinese legislation. The Court has noted that the plenary power over immigration law is “limited by the Constitution itself and considerations of public policy and justice which control, more or less, the conduct of all civilized nations.” This proposition has never been construed to deny Congress the right to remove aliens, but given the strongly supported proposition that emerged in the twentieth century – that racial classifications are “odious to a free people” and subject to “the most rigid scrutiny” – there is a distinct possibility that the modern Court would find that arbitrary and naked racial or religious tests for admission into the U.S. are the exact sort of conduct that is repugnant to all civilized nations.
Trump’s proposed ban on Muslim immigration is the exact sort of bigotry that fuels the harmful narrative that the West is at war with Islam – that there is an inevitable clash of civilizations, which plays straight into the hands of terrorist recruiters. More dangerously, this type of rampant Islamophobia threatens the rights of American Muslims and immigrants with open racial and religious discrimination. The specters of slavery, Indian removal, and Japanese internment will always hang like a dark cloud over the home of the free and the land of the brave. We should be careful not to add more to that shameful list.
 Michelle Ye Hee Lee, Donald Trump’s False Comments Connecting Immigrants and Crime, Wash. Post (July 8, 2015), https://www.washingtonpost.com/news/fact-checker/wp/2015/07/08/donald-trumps-false-comments-connecting-mexican-immigrants-and-crime/.
 Esther Yu-Hsi Lee, What Republican Leaders Have to Say About Donald Trump, Think Progress (July 6, 2015), http://thinkprogress.org/immigration/2015/07/06/3676622/donald-trump-republicans-stance/.
 Dara Lind, The Real Costs of Donald Trump’s Anti-Mexican Slur Controversy, Explained, Vox (July 8, 2015), http://www.vox.com/2015/7/8/8911467/donald-trump-immigrants-boycott.
 See, e.g., Lee, supra note 1; Jessica Vaughan & Steven A. Camarota, Immigration and Crime: Assessing a Conflicted Issue, Ctr. for Immigr. Studies (Nov. 2009), http://cis.org/ImmigrantCrime; Phillip Bump, Surprise! Donald Trump is Wrong About Immigrants and Crime, Wash. Post (July 2, 2015), https://www.washingtonpost.com/news/the-fix/wp/2015/07/02/surprise-donald-trump-is-wrong-about-immigrants-and-crime/.
 Lee, supra note 1.
 Stephen Collinson & Maeve Reston, Donald Trump, Hillary Clinton Win Big; Jeb Bush Drops Out, CNN (Feb. 21, 2016), http://www.cnn.com/2016/02/20/politics/republicans-south-carolina-primary-highlights/.
 Donald J. Trump Statement on Preventing Muslim Immigration, Trump (Dec. 7, 2015), https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement-on-preventing-muslim-immigration.
 Jeremy Diamond, Donald Trump: Ban All Muslim Travel to U.S., CNN (Dec. 8, 2015), http://www.cnn.com/2015/12/07/politics/donald-trump-muslim-ban-immigration/.
 Trump Revisits Muslim Ban In First TV Ad, Al Jazeera America (Jan. 5, 2016), http://america.aljazeera.com/articles/2016/1/5/trump-revisits-muslim-ban-in-first-tv-ads.html.
 Jonathan Easley, SC Exit Poll: 75 Percent Agree With Trump’s Muslim Ban, The Hill (Feb. 20, 2016), http://thehill.com/blogs/ballot-box/presidential-races/270156-sc-exit-poll-75-percent-agree-with-trumps-muslim-ban.
 Jonathan M. Katz, In Chapel Hill, Suspect’s Rage Went Beyond a Parking Dispute, N.Y. Times (Mar. 3, 2015), http://www.nytimes.com/2015/03/04/us/chapel-hill-muslim-student-shootings-north-carolina.html.
 Wilson Dizard, Arson Eyed In Houston-Area Mosque Fire, Al Jazeera America (Feb. 13, 2015), http://america.aljazeera.com/articles/2015/2/13/arson-eyed-in-houston-area-mosque-torching.html.
 Wilson Dizard, US Muslims Experience Rise in Islamophobia, Al Jazeera America (Dec. 9, 2015), http://america.aljazeera.com/articles/2015/12/9/us-muslims-experience-surge-in-islamophobic-attacks.html.
 John Agar, Robber Called Store Clerk ‘Terrorist’ Before Shooting Him in the Face, Worker Says, Mich. Live (Dec. 14, 2015), http://www.mlive.com/news/grand-rapids/index.ssf/2015/12/robber_called_store_clerk_terr.html.
 Justin Moyer, Armed Anti-Muslim Protesters Stage “Strange” Protest Outside Mosque in Clock Kid’s Hometown, Wash. Post (Nov. 23, 2015), https://www.washingtonpost.com/news/morning-mix/wp/2015/11/23/armed-anti-muslim-protesters-stage-strange-protest-outside-mosque-in-clock-kids-hometown/; Niraj Chokski, Man Who Led Armed Protest at Texas Mosque Publishes List of Muslims’ Home Addresses, Wash. Post (Nov. 27, 2015), https://www.washingtonpost.com/news/morning-mix/wp/2015/11/27/man-who-led-armed-protest-at-texas-mosque-publishes-list-of-muslims-home-addresses/.
 Wilson Dizard, Poll: Muslim Voters Says Islamophobia Top Issue in Primaries, Al Jazeera America (Feb. 1, 2016), http://america.aljazeera.com/articles/2016/2/1/poll-of-muslim-voters.html.
 U.S. ex rel. Knauff v. Shaughnessy, 338, U.S. 537, 544 (1950).
 Chae Chan Ping v. United States, 130 U.S. 581, 609 (1889).
 Zadyvas v. Davis, 533 U.S. 678, 695 (2001).
 Loving v. Virginia, 388 U.S. 1 (1967).