Remember the November Syrian refugee ban firestorm? The one fanned by the Republicans including presidential candidates governors and legislators after the Paris massacre to wrongfoot President Obama and his attempts to contribute to resolution of Europe's refugee crisis?

Here's a memory assist:

In a letter to Ryan Ben Carson called for Congress to block funding for any programs “that seek to resettle refugees and/or migrants from Syria into the United States effective immediately.”

“Until we can sort out the bad guys we must not be foolish” Carson said

In addition Govs. John Kasich and Bobby Jindal of Ohio and Louisiana respectively said they would work to keep refugees out of their states.

Religious litmus tests didn't start with The Donald either:

[Cruz] has also said Christians from war-torn Syria are victims and do not pose a risk of terrorism whereas letting in Muslim refugees would be “lunacy.”

Then came the San Bernardino massacre committed by non-Syrians so some epistemological backfilling was necessary; and it was an opportunity for Trump to kick it up another notch with a bigger more grandiosely Donaldesque ban. Not just Syrians; all Muslims!

Genuinely appalled members of the public and press as well as elements of the Republican establishment desperate to stop Trump as a loose cannon not beholden either to the party or its decisive megadonors labored mightily to make Trump's Muslim ban blather a huge issue the killer gaffe that would disqualify him as presidential material.

However efforts to neutralize Trump through public censure–'bigot' 'fascist' etc.do not appear to be getting much traction.

I believe there's a good reason for that.

When confronted by discriminatory speech and actions some make the high-minded appeal to Americans' better nature: 'this isn't us.'

Not so unfortunately. It's more like 'actually this is us pretty much.” As a look at the historical record shows.

Discrimination against non-US citizens is legal and constitutional. Discrimination against US citizens is also legal and constitutional as long as the government doesn’t get tripped up by overtly discriminating against a protected class. Both are wildly popular in times of distress.

For discrimination against foreigners of a certain type look no further than the Chinese Exclusion Act which strictly limited the entry of Chinese into the United States from 1882 until 1943.

In excluding Chinese laborers the Federal government was following the political wave out of California. In its 1879 constitution the State of California had Article XIX. Section 2 embodies the essence of the law:

No corporation now existing or hereafter formed under the laws of this State shall after the adoption of this Constitution employ directly or indirectly in any capacity any Chinese or Mongolian. The Legislature shall pass such laws as may be necessary to enforce this provision.

Article XIX was never challenged successfully in court. The California legislature voluntarily repealed it 1952.

At the national level the Chinese Exclusion Act was renewed several times at the federal level and tweaked to make sure that legal recourse by the Chinese was limited. The government simply transferred responsibilityto the executive branch:

Believing that courts gave too much advantage to the immigrants the government succeeded in cutting off Chinese access to the courts and gradually transferred administration of Chinese-exclusion laws completely to the Bureau of Immigration an agency operating free from court scrutiny. By 1910 the enforcement of the exclusion laws had become centralized systematic and bureaucratic.

In 1942 when the Chinese Exclusion Act was repealed to mollify the Republic of China as America’s World War II ally it was immediately replaced by a reformed immigration regime that allocated quotas by region and neatly converted the “exclusion” headache into an “admission” opportunity–by allocating a grand total of 105 slots per year to Chinese.

As the Chinese precedent shows a blanket ban on a particular class of foreigners was set U.S. policy for seventy years.

In considering the treatment non-U.S. Muslims could expect from the U.S. government the U.S. can do pretty much what it wants: kidnap them (rendition) detain them without due process (Guantanamo) and on frequent occasions murder them (drone strikes etc.).

Barring them from entering the United States isn’t too much of a stretch.

What about Muslim American citizens?

After all one thing that the War on Terror Guantanamo and NSA collection has driven home is that the U.S. plays with a different much rougher book of rules when it is dealing with aliens and not U.S. citizens. Citizenship does have its privileges.

However American citizens abroad have only one absolute right: that’s to return to the United States…if they’re not on the No Fly List. Then it gets a little tricky.

It gets a lot trickier when Mr. or Mrs. Unpopular Citizen presents himself at the U.S. border. “Letting him or her in” does not directly translate into “Welcome to the United States. You are free to move around the country.”

Remember the Ebola panic? Seems like a long time ago I know. But it was only the summer of 2014. And at that time it became clear that the United States had to admit returning U.S. citizens–but it could quarantine them.

And it turns out that there is no constitutional protection against preventive detention.

The Weekly Standard quoted a research pieceby two scholars Ben Wittes and Adam Klein on the subject. It’s not terribly reassuring:

Preventive detention is not prohibited by U.S. law or especially frowned upon in tradition or practice. The circumstances in which it arises are not isolated exceptions to a strong rule against it; rather they are relatively frequent. The federal government and all 50 states together possess a wide range of statutory preventive detention regimes that are frequently used…The best way to understand preventive detention under American law and practice we submit is not that some broad principle prohibits it. It is rather that American law eschews it except where legislatures and courts deem it necessary to prevent grave public harms.

As to whether the U.S. government (or the states; they have extensive rights in this area) applies preventive detention carefully and consistently let’s consider its most famous application: Executive Order 9066.

Executive Order 9066provided the grounds for internment of Japanese-Americans on the West Coast during World War II. That act did not overtly stipulate the internment of Japanese-Americans. It simply gave the Secretary of War and military commanders authority to set up exclusion zones at their discretion:

[T]o prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine from which any or all persons may be excluded and with respect to which the right of any person to enter remain in or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion.

Lieutenant General John De Witt in charge of Western Defense Command covering the west coast of the continental United States exercised his discretion to first to curfew then relocate and ultimately confine over 100000 Japanese Americans. The implementation of E.O. 9066 was strictly a matter of De Witt’s interpretation. Military authorities in Hawaii by contrast chose only to intern 2270 of their 140000 Japanese and Japanese-Americans residents.

When Gerald Ford got around to rescinding E.O. 9066 in 1972 a commission determined that the internment was not justified by military necessity so there was an apology and some financial restitutionbut no legal sanction.

Apparently the whole wartime necessity/executive order thing was constitutional and its interpretation as the basis for preventive detention of an entire class of people was well within legal bounds. As alert readers are well aware the state of emergency President George W. Bush declared after 9/11 by proclamation is still in effect today having been renewed on a yearly basis both by Bush and Obama. Here's a link for the curious and/or anxious.

And Wittes and Klein provided some more food for reflection:

If the practice of detaining terrorists and their supporters is judged to be 'necessary and tailored to encompass only the truly dangerous' Wittes and Klein argue 'it fits relatively comfortably in conceptual terms alongside the many powers state and federal legislatures have given governments to detain citizens and non-citizens alike.'

Anyone who says the United States cannot “ban Muslims from entering the country” is not only underestimating the ingenuity of American bureaucrats and lawyers; he or she is fundamentally misrepresenting the historical and current security policies and mindset of this country.

Long story short various streams of bigotry continually burble along in American society. When politicians sense an opportunity in an atmosphere of crisis fear and dissatisfaction they can convert these toxic sidestreams into the mainstream and institutionalize them in the generous nooks and crannies offered by the constitution.

Hate is as American as apple pie. So is pandering to it. So is institutionalized discrimination. So is Trump.

Peter Lee runs the China Matters blog. He writes on the intersection of US policy with Asian and world affairs.

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