Could Trump Ban Muslims? Thanks To This 1940’s Law, Yes He Can

Smith Act To Muslim Bans — Trump’s Most Dangerous Idea.

Current topics lately are centered around Trump’s misogynistic comments from years past. But as horrifying as they are, they remain pale compared to what he has uttered on the campaign trail.

It was only a year ago that Donald Trump gave a terrifying response to one man’s question on eliminating Muslims from the United States.

We are going to be looking at a lot of different things.

He has, as of yet, not renounced this position.

Now, some may be dismissive. How could Trump would even be able to perform such a ban, after all? Certainly our laws would protect citizens from such oppression, right? Sadly, this is not the case, as there remains on the books a law which actually would allow such a ban. And even worse, it is one that is intentionally built to make it very difficult to even defend against.

Yes He Can.

In the 1940’s, Congress, fearing foreign spies, passed the Smith Act, altering the Alien and Sedition Acts in a way to grant broad, new powers to both Congress and the President. Designed to target foreign nationals, the Smith Act was instead primarily used not against foreigners with the intent to hurt the United States, but against US Citizens themselves. The Dies Committee, which was organized to help support World War 2, oversaw the internment of Japanese-Americans under the Act. But with the war winding down, so too did the reasoning for the Dies Committee.

On January 3, 1945, the house created a new, now permanent committee, the House Un-American Activities Committee (HUAC) to continue the work of the Dies Committee. This new committee was tasked to eliminate unwanted and dangerous subversives. In short order, it began attacking liberals, progressives, socialists and communists, all using the authority granted under the Smith Act.

Smith Act Abuse Rampant.

FBI director J. Edgar Hoover, long an anti-Communist, made it his goal to find “un-American activity” for trial. He used the power granted under the Smith Act to set about dismantling the American Left. With the Cold War on the horizon, the easiest target were members of the Communist Party USA (CPUSA). The American Communists did, after all, reject such “all American” ideas such as racial segregation and Jim Crow.

By 1948, the leaders of the CPUSA were standing trial, accused under the Smith Act. The Smith Act trials are now considered show trials, with the goal of eliminating the American left. The judge even took a personal hand in jury selection, eliminating potential jurors who did not hold anti-Communist views. Justice Harold Medina even held the defendants’ attorneys in contempt for defending the accused. All under the auspices of the Smith Act. Even the Supreme Court in 1951 ruled that the Smith Act was Constitutional, despite the protests of civil liberty advocates nationwide.

Expanding Power.

For this abuse of authority, Congress gave not only its blessing, but gave expanded powers to the Smith Act. Augmenting it, they first passed the Internal Security Act and then the Communist Control Act, resulting in making it a federal crime even hold sympathies with those accused. To further make it difficult to defend against charged, these acts removed the citizenship of anyone who shared the aims, goals, ideologies, or held sympathies with those even accused under the auspices of the Smith Act. By removing the citizenship of anyone even remotely tied to an accused, and the loss of all protections granted under the Constitution as a result, the show trials could continue, resulting in the death penalty for falsely accused Julius and Ethel Rosenberg.

With the power granted, and the Red Scare underway, the FBI witch hunt was in full swing. Through their show trials, opposition was silenced, undesirables removed. Targets shifted, with progressives and liberals then arrested under the auspices of the Smith Act. Even the early civil rights movement was suppressed through the Smith Act.

It took until 1957 to slow this program. When the Supreme Court issued its decision against the HUAC, and with the disgrace of Joe McCarthy, the push under the Smith Act began to slow. But, these laws still stand today. It has been cited in cases as recently as that of Chelsea Manning, showing that the power, ready for abuse, remains in place.

President Trump And Abuse Of Power.

With these laws still on the books, it becomes not if, but when, will some Administration choose to eliminate some unwanted group using the Smith Act. Trump has already declared Muslims as a target, and with the Smith Act still on the books, his proposal to ban Muslims could actually happen. It is not as if this power has not been used before, either, as the victims of Japanese-American Internment can attest to.

Congress needs to repeal the Smith Act, the Internal Security Act and the Communist Control Act in order to secure civil liberties from any future abuse. That they remain on the books, decades after the world war, then cold war, which created them, is a mark of shame for the US. So long as these laws remain in the books, we will forever be one election away from an administration willing to abuse them.

Trump’s inflammatory comments are not just rhetoric. As president, he would not only hold the power to carry them out, but has already given his clear intent to do so. He cited these very laws in explaining how he would carry out his policy.

A presidential candidate who has expressed a desire, willingness and ability to carry out the unimaginable cannot hold the oval office come January.
Photo of Syrian refugees in Hungary taken by Mstyslav Chernov

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A former candidate for State Representative in Washington state, Nathaniel is a seasoned political writer who brings an analytical and informed eye to politics. He is currently promoting his newest book, "The People's Constitution," now available in both paperback and Kindle.