Fact Checking Tim Kaine: There is No Constitutional Right for Any Foreign National to Enter the U.S.
In Tuesday’s vice presidential debate the issue of resettling Syrian refugees was discussed by the two leading candidates, Democratic nominee Sen. Tim Kaine and Republican nominee Gov. Mike Pence.Last month, President Obama announced a 30 percent increase in refugee resettlement in FY 2017 (which began Oct. 1), a position that is supported by the Democratic ticket. In criticizing Pence’s call for “suspending the Syrian refugee program and programs and immigration from areas of the world that have been compromised by terrorism,” Kaine asserted that such a policy would violate the U.S. Constitution. According to Kaine, taking such action would be “violating the Constitution by blocking people based on their national origin rather than whether they’re dangerous.”Sen. Kaine’s assertion is factually inaccurate. There is no affirmative right for any foreign national to enter the United States. Under federal statute, the president has the authority, by proclamation, to suspend the entry of “any aliens or of any class of aliens into the United States [who] would be detrimental to the interests of the United States,” for however long he deems necessary.The authority of the president to determine the circumstances under which foreign nationals may enter the United States has been repeatedly upheld by the Supreme Court. In an 1892 case, Ekiu v. United States, the Court held that, “It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.” Subsequent Supreme Court decisions have reaffirmed this accepted maxim.Thus, the president has the authority to bar the entry of foreign nationals for whatever reason he or she might deem appropriate. While the president has the authority to block the entry of people based on national origin, that is not even what is being discussed in this case. Almost nobody is suggesting that we prohibit the entry of Syrian nationals because they are Syrians. Rather, the argument against settling them in the United States is rooted in the rational fact that it is virtually impossible to adequately vet people from Syria to determine, as Sen. Kaine argues, “whether they’re dangerous.” There is broad consensus among top national security experts that we cannot make such determinations with any degree of certainty. And, if we cannot determine who poses a threat, suspending resettlement seems like a far more reasonable option than increasing resettlement.
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