Instapundit second-stringer Elizabeth Price Foley has a SCORCHING HOT TAKE on Trump’s racist immigration proposal:
The latest iteration of PC-induced apoplexy over Trump’s comments comes in the form of comparing restricting Muslim entry to the Japanese internment camps during World War II. But once again, commentators on both the right and left seem to have conveniently forgotten that the Supreme Court upheld the internment of individuals of Japanese ancestry, including American citizens, in Korematsu v. United States (1944).
Uh, nobody is “forgetting” Korematsu or Hirabayashi. They are arguing that the decisions were wrong and have been plainly undermined by subsequent doctrinal developments. Foley in 1952: “Thurgood Marshall seems to have conveniently forgotten that the Supreme Court upheld the segregation of schools in Plessy v. Ferguson (1896).”
The Constitution is not a suicide pact. Protecting national security is a “compelling” government interest that should survive the strictest of judicial scrutiny. The only open constitutional question, it seems to me, is whether today’s Supreme Court would change its mind about these pragmatic realities, or instead sacrifice commonsense national security measures to the God of Political Correctness.
Protecting national security is indeed a compelling interest. Excluding all persons from a religious group from entering the country is clearly not the least restrictive means of advancing this interest. Maybe you could cobble together a bare Supreme Court majority to apply the plenary power doctrine even given such an extreme set of facts, although I wouldn’t bet on it. But if equal protection law applies, Trump’s proposal is not even close to being constitutional, hoary cliches notwithstanding.