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Trump’s ‘Ideology Test’ Could Bring Back a Hated McCarthy-era Law

Donald Trump's plan would dredge up a Cold War-era law that critics say betrayed U.S. values without improving security.

ERIE, PA - AUGUST 12: Republican presidential candidate  Donald Trump gestures as he arrives to speak to supporters at a rally at Erie Insurance Arena on August 12, 2016 in Erie, Pennsylvania. Trump continues to campaign for his run for president of the United States. (Photo by )
ERIE, PA - AUGUST 12: Republican presidential candidate Donald Trump gestures as he arrives to speak to supporters at a rally at Erie Insurance Arena on August 12, 2016 in Erie, Pennsylvania. Trump continues to campaign for his run for president of the United States. (Photo by )

Donald Trump’s policy proposals share little in common with Republican Party orthodoxy, and seldom do his “facts” accord with the historical record.

But at least one of his proposals — to resurrect a Cold War-era practice of banning foreigners who hold “incorrect” political beliefs — has somewhat of a basis in reality. The self-proclaimed billionaire rolled out the idea Monday during a rambling foreign policy address, citing the decades-old test as a model for how he’d keep Islamic radicals out of the U.S.

“In the Cold War, we had an ideological screening test. The time is long overdue to develop a new screening test for the threats we face today,” he said.

It appears he was referencing the highly controversial McCarran-Walter Act, a McCarthy-era regulation that critics say violated American values without benefitting the country’s security.

The 1952 law, which took effect after lawmakers overrode a veto by President Harry Truman, codified the exclusion of foreigners on the basis of ideological belief even if they posed no direct threat to U.S. national security.

Before Congress repealed it in 1990, the government could ban any non-U.S. citizen who had ever expressed support for communism or anarchism or associated with known advocates of those causes. The law inevitably swept up thousands of people innocent of malicious intent, even turning such prominent figures as Gabriel Garcia Marquez, Charlie Chaplin, and Pierre Trudeau before he became prime minister of Canada into blacklisted public enemies.

It “excluded people not for what they did or for fear of what they might do but rather simply for what they said or with whom they associated,” said David Cole, a Georgetown law professor who litigated the case that declared the act unconstitutional.

The government didn’t “have to show you’ve done anything illegal or reason to believe you’d do anything illegal once arriving, it just had to say you’re associated with a group that has politically incorrect views.”

To tell if somebody fell on the wrong side of the political spectrum, Cole said the government didn’t hand out tests, per se, but relied instead on intelligence gathering and an assumption that someone holding anti-U.S. beliefs would inexplicably choose to reveal them to American authorities.

This means that a Trump administration would have to drastically expand the job of intelligence agencies to collect intelligence not only on potential terrorists, but also on people who are simply expressing views that may sound vaguely sympathetic to those espoused by radicals.

Cole said that doing so is unnecessary, and worse yet, “flatly inconsistent with our commitment to the free exchange of ideas.” 

The appropriate national security question to ask, Cole said, is not “has this person said something that we’re afraid of,” but instead, “is this person likely to engage in terrorism, and has this person provided material support to a terrorist group?”

That’s a standard Trump’s proposed test is unlikely to pass.

Photo credit: JEFF SWENSEN/Getty Images

Henry Johnson is a fellow at Foreign Policy. He graduated from Claremont McKenna College with a degree in history and previously wrote for LobeLog. @HenryJohnsoon

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