In a piece titled “Stop Importing Jihad,” former US Special Forces Master Sergeant Jim Hanson argues that Presidential candidate Donald Trump’s proposed pause on Muslim immigration goes too far.  “[W]e have Muslim allies, the King of Jordan for example, who would be affected by such an action,” he writes.  As an alternative, he proposes an innovative reading of existing immigration law.  Existing law raises a bar to immigration against anyone who belongs to a totalitarian political party.  Existing law also raises a bar against those who would overthrow the Constitution.  Hanson argues that sharia qualifies on both counts.

There are differing versions of Sharia, but they agree that the practice of all aspects of life is governed by the unassailable word of Allah and not one single bit of it may be questioned. That includes an ironclad prohibition on any man-made law superseding Sharia and a requirement for believers to actively work to impose it everywhere. This makes it impossible for a Sharia-adherent Muslim to swear an oath to obey the U.S. Constitution or any other country’s governing document.

Emphasis added.  The concept here is that “totalitarian” means something equivalent to a system of law governing “the practice of all aspects of life.”  Is that what the law considers “totalitarian” to mean?  In a recent white paper, the Center for Security Policy argues that existing law could be adapted for this purpose, but that some changes to the law would make the case stronger.

The current definition is as follows:

The term “totalitarian party” means an organization which advocates the establishment in the United States of a totalitarian dictatorship or totalitarianism. The terms “totalitarian dictatorship” and “totalitarianism” mean and refer to systems of government not representative in fact, characterized by (A) the existence of a single political party, organized on a dictatorial basis, with so close an identity between such party and its policies and the governmental policies of the country in which it exists, that the party and the government constitute an indistinguishable unit, and (B) the forcible suppression of opposition to such party.

Now, sharia can be read to violate this definition insofar as it is “not representative.”  Insofar as it rejects man made law, it rejects any representative system of government.  In addition, it is by nature not representative in the sense that it has an in-built bias in favor of one particular religion.  The practice of sharia in Iran and Saudi Arabia shows that the “forcible suppression of opposition” is also a key feature of sharia systems.

However, the law would be stronger — the Center argues — if it were adapted as follows:

The term “totalitarian” refers to individuals, ideologies and organizations that advocate the establishment in the United States of a system of government not representative in fact, characterized by (A) absolute submission to a supreme political authority or a party, that is organized on a dictatorial basis, with so close an identity between such party and its policies and the governmental policies of the country in which it exists, that the party and the government constitute an indistinguishable unit, and (B) the forcible suppression of opposition to such party. This applicability of this definition to an otherwise qualifying system of government, organization or party is unaffected by its attachment to beliefs and practices that may be commonly associated with a religion (e.g., belief in a Supreme Being, community worship, daily rituals, etc.)

This is unbiased language insofar as it affects both religious and non-religious ideologies equally, and applies without regard to which religion is being considered.  It happens to be the case that Islam is the only religion currently numbering many adherents who would like to establish a totalitarian government according to the tenets of their faith.  However, should other religions shift in that direction — or should new religions arise — this proposed change would raise a bar to such of their practitioners as advocated a move to totalitarian law.

The proposed change should be consistent with the First Amendment’s anti-Establishment clause, as that clause is intended to prevent the establishment of an official religion.  The purpose of this change is exactly that:  to reject the importing of religious systems that call for the establishment of an official religion.

Would it violate the Free Exercise clause?  Here it turns out to be important that the law is an immigration law, rather than a law governing US citizens.  As Hanson puts it, “U.S. citizens have rights. But clearly, there are no rights for non-citizens to visit or migrate to the United States. It is a privilege.”  The right to freely exercise your religion in the United States applies to those who are here legally.  In terms of raising a bar to admission, the Free Exercise clause should not be a problem.

Another issue this affects is the burden of proof requirement.  In criminal law, the state is obliged to prove that you are guilty.  In immigration law, however, the burden of proof is reversed.  Thus, while the state can submit evidence of your adherence to sharia — the burden is on potential immigrants to prove they are not a threat.  Existing authority, 8 U.S. Code § 1182, allows the President to exclude categories of immigrants he finds “detrimental to the interests of the United States.”  The past six Presidents have all used this power to bar certain categories of immigrants.

The argument seems plausible, and certainly worth consideration by members of Congress (as well as the Trump campaign).  A number of the most obvious objections, such as the First Amendment, turn out to be successfully answered either by Hanson or the paper he cites.