Leahy’s speech was full of outrageous sanctimony and moral dyslexia, distorting our values, history, and Constitution. While we almost never want to categorically bar entire categories of people, a sovereign nation must always reserve the prerogative, from a legal sense, to do so. Moreover, were this bill to become legally binding it would prohibit even the consideration of religion as a contributing factor, even as it relates to refugee policy. As we’ve noted before, the entire premise of refugee and asylum is built upon identifying religious and ethnic minorities persecuted by a majority in a given region.
Only four Republicans—Sens. Sessions, Cruz, Vitter, and Tillis—opposed the Leahy amendment.
Following Leahy’s remarks, Sessions delivered a rebuttal that not only destroyed his entire premise and false sense of morality, but expressed a set of important principles regarding the philosophical and moral underpinnings of a just and ideal immigration policy. All other GOP politicians would be wise to read every word of this speech. This is the mature conversation on immigration the rest of the “conservative” establishment is unwilling to have.
Here is Senator Sessions delivering his remarks. A full transcript follows the video:
"With regards it immigration, it is the job of Congress to defend the rights and well-being of American citizens. That means we must look at how immigration is impacting Americans in their wages, in their salaries, in their national security.
It was five months ago that Kate Steinle died in her father's arms on a pier in San Francisco because a repeatedly deported criminal alien was set free. What about the American workers at Disney forced to train their guest worker replacements? They claim they were discriminated against because they were Americans. Where is the bill for them?
We have these fights over and over but we never seem to advance a bill or proposal that actually results in more protections for American citizens.
So that is the context today in which we consider this unprecedented effort to extend American's constitutional rights and protections to foreign citizens living in foreign countries.
The adoption of Leahy Amendment would constitute a transformation of our immigration system. In effect, it is a move toward the ratification of the idea that global migration is a “human right”, and a civil right, and that these so-called “immigrants’ rights” must be supreme to the rights of sovereign nations to determine who can and cannot enter their borders.
Fundamentally, foreign nationals living in foreign countries have no constitutional right to enter the United States. If they did, any alien denied entry could file suit to demand entry and claim damages for lost employment, lost welfare benefits, lost income.
Our immigration system derives exclusively from Article I, section 8, clause 4 of the United States Constitution, which vests the exclusive power in the Congress to establish a uniform system of immigration. Through acts of Congress, the United States can – and does – exclude aliens from entry into the United States for any reason provided by Congress.
The rules governing the selection of immigrants are, by definition, opposite the rules governing the treatment of citizens living or naturalized in the United States. There are 7 billion people in the world. Choosing who can immigrate into the United States is, by definition, an exclusionary process. The goal is to select immigrants for admission based on the benefits they provide to society based on skills, ages, values, philosophy, incomes, etc. Our goal is to choose for admission those likeliest to succeed and flourish and, crucially, to support our Constitutional system of government and our values of pluralism and Republican governance.
So whereas we consider it improper to deny employment to a U.S. citizen based on, say, their age, we consider it necessary and important to consider immigrants according to their age and whether they will be able to contribute productive years of work to American society.
As stated by the United States Supreme Court, “Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.”
What this amendment would do would be to turn this fundamental principle on its head, and to apply some of our core domestic legal and constitutional protections to foreign nationals with no tie to the United States. The natural extension of this concept would fundamentally undermine entire provisions of immigration law, and the results quickly become radical.
In the United States, we have protections against discrimination by religion, age, disability, country of origin, etc. We have freedom of association. Rights of due process.
Now imagine extending these as part of our immigration system. The logical extension of this concept results in a legal regime in which the United States cannot deny an alien admission to the United States based upon age, health, skill, family criminal history, country of origin, and so forth. If an elderly alien needing 24-hour medical care applied for entry and was denied, under this scheme of immigrant rights, they could file lawsuit, demand entry, and taxpayer-funding.
But let's consider the question of religion more carefully. If we say it is improper to consider religion, then that means it is improper for a consular official to even ask about a candidate's religious beliefs when trying to screen an applicant for entry.
It would mean that even asking questions of a fiancé seeking a visa about his or her views on any religious matter – say on the idea of pluralism vs. religious supremacy – would be improper, because if it is improper to favor or disfavor a religion, it is improper to favor or disfavor any interpretation of a religion. Even if it is a perversion of a religion, it is still a religion to that person.
Are we really prepared to disallow, in the consideration of tens of millions of applications for entry to the United States, any questions about religious views and attitudes?
This amendment would mean, for instance, that the United States could not favor for entry the moderate Muslim cleric over the radical Muslim cleric. We have huge unrest in the Middle East. An argument has been made by some that we should prioritize resettling Muslim immigrants in the region and prioritizing the entry of persecuted Christians; this measure would forbid such considerations. Keep in mind, current refugee law requires us to consider persecution on account of an individual’s religion; this would ask us to discard, or undermine, that longstanding practice.
A U.S.-born citizen who subscribes to theocratic Islam has a freedom of speech that allows them to give a sermon denouncing the U.S. constitution or demanding it be changed. But, under this amendment, a foreign religious leader living overseas could demand a tourist visa to deliver that same sermon and claim religious discrimination if it is not approved. I think it is a dangerous step.
The next step, of course, if we say religion cannot be considered in any way is to say we cannot consider history, or geography, or culture.
We need to make a holistic decision about applicants.
We cannot labor under the illusion that these are simple binary decisions. It is not as though every applicant is either clearly tied to terrorists on the one hand, or is absolutely safe on the other. Many people are radicalized after they enter. How do we screen for that possibility, if we cannot even ask about an applicant's views on religion? Would we forbid questions about politics? Or theology?
Furthermore, some of the same supporters of this very Amendment supported the ‘Lautenberg Amendment’ that gave special preferences for admission under our refugee program to Jews, Evangelical Christians, Orthodox Christians, Baha’is, and religious minorities – all to the exclusion of others. The import of this is that hundreds of thousands of individuals have been admitted to the United States based exclusively on their religion.
The rights that have been neglected by this Congress are the rights of the American people. The rhetoric today would have you believe we have been operating some kind of closed-door immigration policy. The opposite is true. No nation on earth has ever let in more people over a shorter period of time. We have admitted 59 million immigrants since 1965. We have admitted 1.5 million immigrants from Muslim countries since 9/11. We have the largest foreign-born population in our history as a raw number, and soon the largest percentage of non-native-born in the history of the Republic. As a share of population, it will soon eclipse every historical record. Meanwhile, large companies are exploiting programs to replace American workers and undermine their wages. Poor screening has resulted in thousands of crimes against Americans. Our entitlement programs are stretched. Wages have been flattened for decades. Every year, we admit another 1 million permanent immigrants, nearly 100,000 refugees and asylees, and 700,000 foreign guest workers.
Though it appears that day will not be today, perhaps we should have a conversation soon about how to help the tens of millions of Americans who are only just barely scraping by.”
"Senator Leahy presents us a bold, dramatic Sense of the Senate resolution that strikes at our hearts and pulls at our values because we favor free exercise of religion. A serious discussion, colleagues, I believe, is needed before we take this step. Certainly, the point is pressed as a result of political statements, and I have tried to avoid commenting on those statements because I don’t know how to firmly answer it. I don’t know what the right response is, frankly. We need to be careful how we think about this. Certainly Jefferson and Madison spent years of contemplation and work on their founding of America’s philosophies.
We celebrate America’s commitment to the free exercise of religion.
The question of religion and the violence religious disagreements engendered in Europe prior to our founding were well known to the Founding Fathers. Jefferson and Madison had the answer they felt in the Virginia Statutes of Religious Freedom. Gary Wills writes insightfully about it in his book, ‘Head and Heart’. We do not allow a religious test for holding office, we allow the free exercise of religion, and we ban the establishment of a State-sponsored church. It’s in the Constitution explicitly.
Encompassed in the right of free exercise of religion is the duty to permit others to exercise their own religion, freely, and not in some diminished state. But, as with all rights, none can be absolute. I remember Federal Judge Virgil Pittman in Mobile agreeing to hear the petition of a prisoner who declared he was a Bishop in the Church of the New Song and that its doctrines called for steak and wine every Friday night and he demanded the federal prison provide it. After hearing his case, the Judge found his demands were not justified. Nor can a person declare their religion allows the use of illegal drugs. Nor use violence to enforce its doctrines, nor physically abuse women, nor marry underage children – no matter how deeply held those views may be.
But, that’s not the question here.
It is well settled that applicants don’t have the constitutional right or civil right to demand entry to the United States. In fact, the INA has this provision: ‘whenever the president finds that the entry of any aliens or any class of aliens into the United States would be detrimental to the interest of the United States, he may by proclamation and for such period as he shall deem necessary suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants or impose on the entry of aliens any restrictions he deems appropriate’. I assume similar provisions abound in most countries the world over. We accept those who we believe will advance the nation’s interests. That’s what secular states do – and we are a secular government.
As leaders we are to seek the advancement of the Public Interest. While billions of immigrants may benefit by moving to this country, this nation state has only one responsibility. We must decide if such an admission complies with our law and serves our national interest.
Now, religion is highly respected in America. Jefferson and Madison believed one’s relationship to God was a matter between the believer and God. It was not a matter to be dictated by the state. Jefferson’s words, chiseled in his monument, reflect this unique American view: ‘I have sworn upon the altar of God eternal hostility against every form of tyranny over the mind of man.’
So, we must respect our brothers and sisters across this globe who have different views about God, faith, and religion, even as we may disagree. In America, we even value free discussion as a method of reaching higher truth – even changing our minds or another’s mind in the course. Wills says – as I remember, Washington, and others at the time, used the phrase ‘toleration’ of other religious views. But, he says, Jefferson and Madison went further, giving more respect to dissenting views than mere toleration.
Based on Supreme Court interpretations of the Constitution, we can say with confidence that the establishment of an immigration policy has been given to the Congress. Congress has not given rights to foreigners to go to court to demand entry into the United States. Neither does the Constitution. That is plain fact.
Senator Leahy’s resolution doesn’t explicitly assert that his demands are required by the law or the Constitution, but on America’s founding principles. He insists we must all agree that it is ‘un-American’ to deny entry into America on account of one’s religion. Un-American is a strong word. Liberals have never liked it used against their world visions. The Communists certainly didn’t like it used. To affirm such a resolution would mean that religion can never be taken into account to determine admissibility – throughout all the ages this great Republic might exist.
I think we must apply a prudent cast of mind to our analysis. If there are circumstances we can foresee that would cause open-minded, logical, fair persons acting in the national interest to decide to act contrary to this resolution, and to be morally and legally justified in so doing, then it must not pass. We have conducted no analysis of this prospect. Unless we are sure, we cannot pass such a broad resolution.
Most religions focus on one’s relationship with God. But, many religions are much broader, covering all aspects of life – including government, public policy, and law. Religions today too often are under appreciated for the good they do. In marriage, in divorce, in birth, in death, in sickness, in health, in poverty, and in wealth, religious faith, in millions, in billions of daily actions, is a force for good. Reality would be denied, however, if we do not recognize that dangerous and damaging religions and sects have arisen. At least at some points in history, most religions or segments of them, have sought to overcome human laws and rules and impose doctrinal ideas that are contrary to good common sense and good policy, even seek to destroy established governments because they perceive that god has ordered them to do so. We may say this is not religion. But, the adherents would say its religion indeed. They say they are adhering to their text, their leader, or their revelation. Didn’t the people of Jonestown believe theirs was a religion, even as they took their own lives? Don’t suicide bombers think they are religiously faithful? There are countless other examples that need not be listed.
What if a strong and growing religion believes that their leader directly talks to God, believes that existing world governments are satanic and corrupt and must be violently overthrown? They insist that the divine solution is a theocracy where God alone rules and rules justly. And now the time has come to move to challenge America to carry out their evangelization?
Secretary Carter says ISIS is growing. What if it expands ever more rapidly and decides to focus its believers on a long term effort to change the corrupt America? And their doctrines justify force, do they not? Can we say that ISIS’s form of religion is not a religion just because it is not consistent with classical Islam? Why could they not demand as strong a right to enter as a peaceful meditating Buddhist? Is it in the national interest to admit the ISIS member equally with the Buddhist? Is it wrong to say that immigration must serve the legitimate interests of America and that others are more likely than those committed to violent ideologies? After all, we can’t admit everybody.
Is it better to admit those who admire America, affirm its constitutional order, than those who would be unhappy and unfulfilled until their vision for the country more closely parallels their religious vision – a government faithful to their theology? A theocracy?
Again, sometimes religions believe that their goals go beyond personal salvation. They believe they are commanded to control the government and their doctrines must dominate over other religions, denying them freedom. Such religious people would have an unhappy time in the United States.
Maybe Senator Leahy’s resolution is correct. Maybe the common sense interests of our nation must fall to this rather extreme vision. But, I do not think so. This is a dangerous injunction, colleagues. It goes beyond being unwise. It is reckless. It is absolute and without qualification. It could have pernicious impacts for decades, even centuries to come. It may be even a step from the concept of the nation-state to the idea of “global citizenship.”
Such understandings have never been part of our immigration law. The resolution lacks limits. Let’s not act quickly, let’s think this through. In a time of intense political debate, we do not need to be reacting to make political points. Let’s think deeply about what this means and what the ramifications of it might be. I urge a no vote on the Leahy resolution."