Experts: Blanket exclusion policy could lead to legal trouble
By Rebecca Santana and Ali Swenson
Associated Press
WASHINGTON (AP) — Donald Trump has announced a new campaign proposal on United States immigration — barring “communists” and “Marxists” from entering the country.
The Republican former president, who is making another bid in 2024, on Saturday said he would use “Section 212 (f) of the Immigration and Nationality Act” to “order my government to deny entry to all communists and all Marxists.”
The announcement was reminiscent of Trump’s ban on travelers from several predominantly Muslim countries during his first term, which was heavily criticized as anti-Muslim and ultimately revoked by President Joe Biden.
“Those who come to enjoy our country must love our country,” Trump said during a speech at the Faith and Freedom Coalition’s conference in Washington, adding, “We’re going to keep foreign, Christian-hating communists, Marxists and socialists out of America.”
He also said there needs to be a “new law” to address communists and Marxists who grew up in America, but didn’t elaborate on what it would include.
Trump’s proposal also raised questions about whether a decades-old law could actually be used to ban all communist and Marxist immigrants to the U.S., how it would work, and why Trump is so focused on these political theories in a country where few residents support them.
Here’s a look at existing U.S. laws and what Trump’s proposal could look like:
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What does current U.S. law say about this?
U.S. immigration law already bars people who are members of a Communist Party from becoming naturalized citizens or green card holders, said Andrew Arthur, a former immigration judge and fellow at the Center for Immigration Studies, which is a Washington, D.C.-based think tank that advocates for less immigration in the U.S.
U.S. immigration law says that any immigrant “... who is or has been a member of or affiliated with the Communist or any other totalitarian party (or subdivision or affiliate thereof), domestic or foreign, is inadmissible.”
The origins of that rule date back to 1918 when the U.S. government became concerned about “external threats of anarchism and communism,” according to the U.S. Citizenship and Immigration Services policy manual. At that time, it was also the end of World War I, communism was taking root in the Soviet Union, and the country would soon impose strict immigration quotas in the U.S.
But, it does have some exceptions. For example, people who had to join the Communist Party in order to get a job or if their membership was issued when under age 16, according to immigration code.
The prohibition also doesn’t currently apply to someone who wants to visit the U.S., such as on a tourist visa or as a student.
During his speech Trump said he would use a particular section of U.S. immigration law — Section 212 (f) — to bar “all communists and all Marxists.” That section gives broad authority to bar people who aren’t U.S. citizens entering the country if their entry would be “detrimental to the interests of the United States.”
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Is there precedent for this?
Trump’s comments on barring communists and Marxists harken back to one of the more controversial actions of his administration — often referred to by critics as a travel ban on Muslims. Opponents cited Trump’s own tweets and rhetoric in arguing that the travel ban discriminated against Muslims. But the high court ruled 5-4 in Trump’s favor. Chief Justice John Roberts said in the majority opinion at the time that the justices weren’t weighing in on whether it was good policy but that it was well within U.S. presidents’ considerable authority over immigration and responsibility for keeping the nation safe.
Arthur said that case was a key indicator making him think that Trump would be on sound legal ground if he tried to bar communists or Marxists from entering the U.S. Arthur also said that foreign nationals trying to enter the U.S. have little of the constitutional rights afforded to American citizens.
Trump wasn’t the first president to use this specific power of immigration law to limit who can come into the U.S. A 2020 Congressional Research Service report noted instances where it had been used by various presidents, but the report noted that Trump used the authority to impose broader restrictions than his predecessors.
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But how would this actually work?
Bill Hing, a professor at the University of San Francisco and general counsel to the California-based Immigrant Legal Resource Center, said Trump would run into legal trouble if he just did a blanket exclusion of all communists or Marxists.
In the travel ban that was eventually upheld by the Supreme Court, Hing said the court paid particular attention to the steps that the Trump administration had taken to check with U.S. embassies abroad on whether they could guarantee that people coming from those countries would not be a threat to the U.S.
“You have to have some justification,” Hing said.
That thought was echoed by immigration attorney Allen Orr, the former president of the Washington, D.C.-based American Immigration Lawyers Association. Orr said the version that eventually made it to the high court had a “whole list of exceptions.”
“It’s not a blanket ban if there are a ton of exceptions,” Orr said.
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If Trump is elected, who would be affected by this plan?
Analysts point squarely at one country: China, where tens of millions of people are members of the country’s Communist Party.
Bates Gill is the executive director of the Center for China Analysis at the Asia Society. He said such a ban would most heavily impact China and should be viewed through that lens. Gill said beyond the vast number of members being Chinese government officials, party membership has also traditionally been a pathway for the upwardly mobile in China who are often well-educated, urban and internationally oriented. Since the late 1990s, Gill said, businesspeople have also been joining the party.
“In essence you would be banning the elite of China from entering the United States,” he said. “It would be vast and sweeping and of course highly damaging to the relationship with China.”
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Are there communists and Marxists in America now?
There are some, but judging by the membership of the national Communist Party, it’s a fairly small number.
Communist Party USA has about 15,000 people on its membership list, said party co-chair Joe Sims. The list is “pruned regularly,” he said, but some of that group may not be active members.
The party is growing with about 2,000 to 3,000 new members a year, and has run some local school board and city council candidates, Sims added.
However, it doesn’t have anyone in federal or state elected office, and hasn’t run a presidential ticket since the mid-1980s, he said.
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Then why does Trump talk about them so much?
Seeding fears that communists and Marxists are poised to take over the country has proved an effective way for the former president to animate his base.
While there’s no real risk that the U.S. could soon become a “third world Marxist regime” as Trump has suggested, these attacks have helped him target voters’ emotions in a country with a long history of anti-communist sentiment.
The tactic has also helped Trump appeal to some immigrants whose families faced oppression and political persecution under Communist regimes in countries such as Venezuela, Cuba and Vietnam.
Trump has also baselessly referred to his Democratic rivals with these terms since he first appeared on the political scene, but Florida Gov. Ron DeSantis and other Republicans recently have piled on with similar attacks, claiming “woke” policies in America are part of a Marxist agenda.
Experts say it’s false to suggest that communists or Marxists rule major U.S. institutions.
Biden, for example, is a capitalism advocate who has taken executive action to promote economic competition.
