Actually, Mr. Khan, Restricting Immigration Is Constitutional
- Philip Mauriello Jr.
- Aug 4, 2016
- 6 min read

One of the hottest controversies coming out of the Democratic National Convention did not involve either Hillary Clinton or any email scandals. The hottest controversy involves the speech made by Mr. Kzihr Khan with his wife by his side. Mr. Khan is the father of Captain Khan, who was killed in action protecting his fellow soldiers. Mr. Khan publicly decried the Republican nominee Donald Trump's immigration policy that banning all Muslims is unconstitutional. At the dramatic zenith of his speech, he pulled out a pocket-size Constitution and told Mr. Trump that if he has not read the Constitution he could borrow his.
It was incredible political theater. But putting aside the ensuing war of words that followed between Mr. Khan and Mr. Trump afterwords, Mr. Khan's assessment of Mr. Trump's immigration is both incorrect and a gross misrepresentation of both Constitutional and immigration law in the United States of America.
First, it may be time to put to rest the perceived notion of America's immigration policy as "Give me your tired, your poor, your huddled masses yearning to breathe free." It may symbolize America's public policy and view on immigration, but it is not the statutory law which is in existence today. The immigration laws in effect today are much more stringent, nuanced, and extensive.
Second, in an interview with Anderson Cooper on CNN, Mr. Khan (an attorney at law mind you) backed up his claim that Mr. Trump's immigration policy is unconstitutional by citing the Fourteenth Amendment as his authority.
COOPER: Let me ask you, just yesterday an official adviser on Veteran’s Affairs just the guy who was referencing before and the Trump campaign Al Baldasaro tweeted out this. He said, he tweeted out a link to a blog post which essentially accuses you of being a Muslim brotherhood agent who wants to advance Sharia Law in the United States adding that you used your son as a political pawn. I want you to be able to respond to that.
KHAN: Yeah. And I hope his surrogates are listening so they can take note of it what I’m about to say. I have no concern, I have no link, I have never been of that thought of that. I assure you I am an educated person. There is and I hope that other not so thoughtful Republican leaders are listening, there is constitutional amendment in the constitution of United States and that is called equal protection of law under 14th Amendment. Sharia Law as we have titled, there is no such thing as Sharia Law.
For those who don't have it memorized, the Equal Protection Clause of the Constitution simply holds that:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The Equal Protection Clause of the Fourteenth Amendment was one of the "Civil War Amendments" that were created after the end of the Civil War. Its main goal with to give disenfranchised slaves protection under the Constitution. Without going into any lengthy detail, the Equal Protection Clause has expanded and become one of the most powerful amendments to the Constitution, protecting numerous citizens of all different race, creed, religion, or belief.
But Mr. Khan got it completely wrong.
The text of the Fourteenth Amendment clearly states that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States". Mr. Khan completely misses who the Equal Protection Clause applies to. It does not apply to immigrants arriving from war-torn countries, only citizens of the United States. To extend the protection of the Fourteenth Amendment out to those who aren't even citizens of the United States is a dangerous slippery slope. If we follow Mr. Khan's logic that those immigrants who are arriving from countries with high activity of terrorism are afforded rights under the Fourteenth Amendment, then basically every person in the world is afforded Constitutional rights under the Equal Protection Clause. I doubt that was the intended effect of the Amendment when originally passed.
However, let's pretend that Mr. Khan didn't cite the Fourteenth Amendment as his authority and just flat out decried Mr. Trump's policy as unconstitutional. Does his claim hold water?
Assuming we are considering Mr. Trump's current policy, one where those immigrants are subject to higher scrutiny, would it be constitutional? Would Mr. Trump, if elected, be able to implement his policy? Would such a law even get passed without being struck down by the Supreme Court for being unconstitutional?
The good news is, we don't have to wait for a potential Donald Trump presidency, the law has already been written and signed into the U.S Code.
Title 8 of the United States Code § 1182, is titled "Inadmissible Aliens". In this section, the U.S Code lays out numerous immigrants who would be barred from entry into the U.S based on certain criteria. But lo and behold, there's a whole section dedicated to those connected to terrorist activities. Outlined below is just a small sample of the U.S Code that deals with immigrants who are connected to terrorist activities or organizations. If an immigrant meets the elements contained in the following section, they are not allowed into the United States.
(B) Terrorist activities
(i) In general
Any alien who--
(I) has engaged in a terrorist activity;
(II) a consular officer, the Attorney General, or the Secretary of Homeland Security knows, or has reasonable ground to believe, is engaged in or is likely to engage after entry in any terrorist activity (as defined in clause (iv));
(III) has, under circumstances indicating an intention to cause death or serious bodily harm, incited terrorist activity;
(IV) is a representative (as defined in clause (v)) of--
(aa) a terrorist organization (as defined in clause (vi)); or
(bb) a political, social, or other group that endorses or espouses terrorist activity;
(V) is a member of a terrorist organization described in subclause (I) or (II) of clause (vi);
(VI) is a member of a terrorist organization described in clause (vi) (III), unless the alien can demonstrate by clear and convincing evidence that the alien did not know, and should not reasonably have known, that the organization was a terrorist organization;
(VII) endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization;
(VIII) has received military-type training (as defined in section 2339D(c)(1) of Title 18) from or on behalf of any organization that, at the time the training was received, was a terrorist organization (as defined in clause (vi)); or
(IX) is the spouse or child of an alien who is inadmissible under this subparagraph, if the activity causing the alien to be found inadmissible occurred within the last 5 years, is inadmissible.
So there you have it, someone else has gone ahead and already created the law that implements Mr. Trump's policy. Fortunately for him, if elected, as the President his job would be to simply execute and enforce this law. More importantly, this law has yet to be reviewed or overturned by the Supreme Court, and since the Supreme Court is the highest authority on what is constitutional, it appears this law is indeed constitutional.
I don't dispute Mr. Khan is a highly educated man (as he stated in his interview with Anderson Cooper), but it appears he may not be well versed in basic Constitutional law.
Going back to the Statue of Liberty, it's important to remember even back then, America still had protectionist policies in place. There were quotas on immigrants from certain areas of Europe, and those coming over with connections to criminal organizations or had an illness were usually turned back.
The bottom line, restricting immigrants from entering the United States based on certain criteria, IS constitutional. No matter how many times it's said from the bully pulpit or by news pundits on TV, the facts, the law, and the history all say otherwise.
So while Mr. Khan waves his pocket-sized Constitution at Mr. Trump and lectures him about history and law, it may be more prudent of Mr. Khan (as a highly educated attorney), to remember to do his research before making such bold claims about what is and what isn't constitutional.
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