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Friday, January 1, 2016

Trump Phenomenon Part III: New York Times v. Reality

Mainstream Media Mislead Public and Themselves Over Constitutionality of Donald Trump's Proposed Immigration Policy

New York Times Blathering Nonsense


Roger J. Katz, Attorney at Law

Stephen L. D’Andrilli

Edited by Brian Anse Patrick

Republican Party bigwigs remain frustrated at the American electorate’s continued refusal to support their hand-selected favorite, Jeb Bush. But while their money may not buy public support it can certainly buy media coverage.

The latest episode in the big media attack on establishment outsider Donald Trump falsely asserts that Mr. Trump’s ideas on limiting immigration are unconstitutional. The assertion is absurd on its face. Syrians and citizens in foreign countries do not enjoy the rights privileges and immunities granted under the U.S. Constitution. In legal terms, they are not party to the U.S. social contract.
The more the threat of Mr. Trump’s popularity grows, the more desperately the leftist-leaning New York Times and the big business-centric Wall Street Journal have attacked him. Mainstream media attempt to demonize Trump by sheer name-calling, using “devil words” such as demagogue, toxic, extremist and racist. Even though FBI Director James Comey admits that the hundreds of thousands of potential Middle-eastern immigrants cannot be vetted, and clear evidence shows that Islamic terrorists pose a tangible threat to the U.S, media bigwigs treat Mr. Trump’s appeal for a reasonable exercise of prudence as if were an outrage.

Mr. Trump simply proposes to protect Americans from Islamic terrorists by employing the temporary expedient of banning non-citizen Muslims from entering the U.S. But there is nothing in the U.S. Constitution that precludes Congress from enacting quotas, consistent with its authority under Article I, Section 8 of the Constitution. And the editors of The New York Times must know this.

Nevertheless an NYT editorial of December 10, 2015,“The Trump Effect, and How It Spreads,asserts:

Trump has not deported anyone, nor locked up or otherwise brutalized any Muslims, immigrants or others. The danger next year, of course, is giving him the power to do so. And the danger right now is allowing him to legitimize the hatred that he so skillfully exploits, and to revive the old American tendency, in frightening times, toward, vicious treatment of the weak and outsiders.

Beyond its yellow journalism aspect, this passage comprises a classic straw man argument. The newspaper attempts to beat up Mr. Trump on matters he has never countenanced. Mr. Trump has never said, nor suggested, that he would take or wish to take any illegal action against U.S. citizens who happen to be Muslims, or who happen to practice Islam, or that he would encourage Congress to do so. And Mr. Trump has never said nor intimated that America’s Muslims cannot or ought not be able to practice their religion. Nor has Mr. Trump ever said or suggested that American Muslims should be deported or interned. If it were not for the U.S. constitution’s guarantee of Freedom of the Press concerning political speech, such wild assertions as made by The Times would be deemed actionable as character defamation.

The same NYT edition conveniently features an essentially misleading article, “Is Trump’s Plan Legal?” by Peter J. Spiro, constitutional law professor at Temple University. This article seems intended to support The Times’ quasi-legalistic mumbo jumbo, but this legal expert has virtually nothing to say on supposedly unconstitutional aspects of Mr. Trump’s proposal. Can it be because there is no sound legal argument to be made? Instead Mr. Spiro dithers on about history and morality.
Even The Times editors appear to admit that their assertions do not stand, at least not on any legal footing. This is reflected when the original title of the article, Is Trump’s Plan Legal?” was altered in the digital version to read: “Trump’s Anti-Muslim Plan is Awful. And Constitutional.” With the professor’s academic reputation on the line, one suspects that he could hardly have been pleased with the original title that seemed to advance NYT’s ridiculous unconstitutionality claim under his name. Mr. Spiro apparently, one guesses, requested a change to the title after the print version of the newspaper had gone to press. The digital version of the article reflects the change.

Since Mr. Spiro cannot sensibly assert the illegality, under the U.S. Constitution, of Mr. Trump’s proposal, temporarily barring non-citizen Muslims from entering this Country, he instead argues that the proposal is “awful,” that is to say, immoral. Deep philosophy this is not. Mr. Spiro then makes a tortuous attempt to tie morality and constitutionality together by drawing a distinction between a colloquial meaning for the word constitutional and the legal meaning of the word.

Mr. Spiro claims, highlighted by the Times, that Mr. Trump’s proposal might pass judicial muster.” That doesn’t make it constitutional.”

But once again this appears as an absurd remark. It is doubly absurd in that it appears paradoxical in view of the altered title of Mr. Spiro’s article: Trump’s Anti-Muslim Plan is awful. And Constitutional. That Mr. Trump’s proposal would pass judicial muster remains the only salient point. And it certainly would.

Mr. Spiro, however, appeals to a vague metaphor, asserting that Mr. Trump’s proposal is illegal in the court of public opinion. But unless there is something in our system of laws that demonstrates that Mr. Trump’s proposal, if implemented, would be illegal as determined by a court of law, whatever the fictive court of public opinion has to say about the matter counts for nothing. One must suppose that the editors of The Times imagine themselves as the chief spokespersons for this illusory court. But it is the legal sense of the meaning of constitutional that is relevant here. And, what is the legal meaning of the word, ‘constitutional?’ The word means, “consistent with the constitution; authorized by the constitution; not conflicting with any provision of the constitution or fundamental law of the state.” And this is certainly true of Mr. Trump’s proposal.

The bottom line is that Mr. Trump’s proposal is legally sound, despite NYT’s assault on Mr. Trump policies, principles and character. One wonders after reading the above cited articles, who exactly is it that The Times editors are trying so very hard to mislead —the public or themselves? We suggest that they are doing a fine job of the latter. 

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