Does the McCarran-Walter Act of 1952 Bar Muslims from Holding Public Office?

Such an interpretation of the 1952 law would not only be incorrect, it would betray an egregious ignorance of the U.S. Constitution.

  • Published 20 August 2018

Claim

The McCarran-Walter Act of 1952 bans Muslims from holding public office in the United States.

Rating

Origin

For those seeking a legal justification for keeping Muslims out of U.S. politics, the McCarran-Walter Act of 1952 has been the go-to law to misrepresent. During legal fights over President Donald Trump’s so-called “Muslim travel ban,” that law was commonly and erroneously cited as an example of a legal precedent that would allow for banning Muslims and other groups from entering the United States.

In August 2018, following Muslim politician Ilhan Omar’s win in a Democratic primary for Minnesota’s Fifth Congressional District, references to the McCarran-Walter Act (frequently referred to incorrectly online as a 1953 act) began appearing on social media in support of the claim that “No Muslims can hold public office within the USA according to this 1952 law.” Some commenters wondered online why the act wasn’t being enforced, posting exhortations such as the following:

The Act, which upheld a controversial quota system for immigration first established in 1924, was passed (over President Truman’s veto ) in the context of Cold War-era fears:

Espionage was a major concern of the era, as was the threat that foreigners might bring radical ideas into the country from outside. And so the sponsors of the 1952 Immigration and Nationality Act, Democrats Senator Pat McCarran of Nevada and Rep. Francis Walter of Pennsylvania, argued that the nation needed a new kind of immigration law for national security purposes.

The 1952 law tweaked but maintained the quotas established by the Immigration Act of 1924. Although it eliminated the racial conditions for citizenship that had long held back Asians, the law established new quotas in a manner that favored Western Europeans. A key provision, however, gave the President the ability to overrule those quotas.

One provision of the law (Chapter 2: Section 212) is most commonly cited by those spreading anti-Muslim rhetoric. That provision allows certain United States government officials to deny entry to anyone deemed to pose a threat to the government, and xenophobic interpretations of the law have simply replaced a previous era’s fear of communism with a contemporary fear of Islam:

Except as otherwise provided in this Act, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:

Any alien who a consular officer or the Attorney General knows, or has reasonable ground to believe, seeks to enter the United States to engage solely, principally, or incidentally in any activity a purpose of which is the opposition to, or the control or overthrow of, the Government of the United States by force, violence, or other unlawful means.

Asserting that this law bars Muslims from holding office would require several demonstrably false things to be true. First, it would require that the only Muslims in the United States be “aliens” who entered the country as immigrants. Since the 1952 act concerns only foreign nationals seeking to enter the U.S. and/or to obtain visas, it is wholly irrelevant to questions of suitability for public office for those Americans who are both Muslim and resident U.S. citizens.

Second, the notion that this law would be applicable to Muslims at all would require it be demonstrated that the entire Muslim faith, universally, seeks to engage in activities whose “purpose of which is the opposition to, or the control or overthrow of, the Government of the United States by force.”

The McCarran-Walter Act of 1952 allowed the U.S. to deny citizenship to persons belonging to organizations deemed to be a threat to the government. While that singular aspect of the law remains on the books, not one aspect of that law or its successors is concerned with the suitability of any person to hold public office, and therefore the claim that this act bars Muslims from holding office is false.

We note as well that the Constitution is clear on the impermissibility of imposing religious requirements on those seeking public office: “No religious test shall ever be required as a qualification to any office or public trust under the United States.”

A related meme asserted that the McCarran-Walter Act, which precluded Muslims from holding office, had been repealed by Congress in 1990:

This broad claim is false, because as we noted above, the McCarran-Walter Act never prohibited Muslims from holding public office in the U.S. Congress did vote on the issue in 1990, but that body only approved repealing the provision of the McCarran-Walter Act barring foreigners from visiting the U.S. because of their political beliefs, not repealing the entire act:

{T]he Senate gave final Congressional approval to repealing a provision of a McCarthy-era law that bars foreigners from visiting the United States because of their political beliefs.

The restriction has been anathema to civil liberterians and others for decades, but only in recent years have they gathered enough support in Congress to kill it.

The measure was passed 98 to 0 by the Senate, as an amendment to a State Department spending bill. It was approved by the House in November and President Bush is expected to sign it, Republican Senate aides said.

Legislation temporarily repealing the restrictions was passed in 1987 and again in 1988. The State Department objected, warning that repeal could have “potentially serious adverse consequences” for the conduct of foreign policy.

But this time the State Department has raised no objections to permanent repeal of the section of the McCarran-Walter Act that excludes aliens for ideological reasons.

Back in 1990, Chuck Schumer and Nancy Pelosi were members of the U.S. House of Representatives, and John McCain, Joe Biden, Al Gore, Johk Kerry, and Mitch McConnell were members of the U.S. Senate. Dick Cheney, however, was serving as secretary of defense in the George H.W. Bush administration and thus had no vote in the matter.

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