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Dec 10 2015

Trump’s Stance on Muslim Immigration Would Very Likely Be Legal

He’s rude; he’s divisive; he’s boorish; he’s bombastic. But under the current state of the law, if Donald Trump became President and he issued a ban on all Muslim immigration, it would likely get upheld by the Supreme Court. If anything, Trump’s statement highlights the importance of making sure everyone votes in the 2016 election because just because an idea is legal, doesn’t make it a good one.

Since Trump made his pronouncement, I have heard pundits on TV and even lawyers in courthouses say that it would be “unconstitutional” to ban an entire religion’s entry into the US. While this would be the first time such a sweeping immigration ban would be placed into effect, it would be very likely upheld due to the great amount of power and deference provided to the Executive on issues of immigration.

As many of my law students and criminal defense clients can attest, one of my favorite phrases is “The Constitution is overrated.” That does not mean that I don’t have the utmost respect for the founding document of our democracy – I certainly do. What I mean is that folks should not expect that the Constitution will protect them from every wrong under the sun or even from every bad idea.

Doesn't quite have the same ring to it

Doesn’t quite have the same ring to it

The Supreme Court has already upheld a ban on the immigration of all Chinese immigrants in 1889 and it even allowed the internment of the Japanese in this country during World War II. That case Korematsu v. United States has since been looked down upon and reparations paid to the families of those interred, but its still on the books having never been overturned or repealed. More recently, in the late 1970s, President Jimmy Carter banned all immigration from Iran, when radical Islam first came on the worldwide stage and the Ayatollah Khoumeini was made leader of that country. Recent administrations have temporarily banned immigration from Afghanistan as well. It all comes down to the separation of power and the great deference and latitude given to the Executive Branch on issues of foreign policy. In fact, before the 1970s, SCOTUS even refused to hear an argument against a Presidential immigration ban. Since then, when they agreed they had the authority to review such pronouncements, the Supremes have never overturned a Presidential immigration ban.

And Congress has given the Executive broad and sweeping powers under the immigration law which specifically authorizes the President to unilaterally issue a proclamation indefinitely blocking “the entry of any class of aliens into the United States.” All the President has to do is declare that he or she thinks allowing entry of that class would be “detrimental to the interests of the United States.” That is some serious power.

Trump has made clear that he would not ban re-entry of Muslims who were American citizens; that would certainly be unconstitutional. He said he would ban non-citizen Muslim immigration “until our government can figure out whats going on.” While I hope a Presidential proclamation banning an entire religion would be more artfully framed than that, a ban, let’s say, until the visa program was examined, investigated and reformed, would likely be upheld. A President Trump would seemingly only have to point to the evidence that one of the San Bernadino shooters came into this country through a fiancee visa and had apparently been radicalized well before her entry. He could also point to the 9-11 hijackers, some of whom were here on student visas to illustrate why he thinks Muslim immigration would be detrimental to the US. I can’t see the current Court undermining the power given to the President on this issue by Congress and by their own prior decisions.

I believe such a ban is hateful; divisive; ill-advised; antagonistic to our allies; and provides fuel for our enemies. But it would also likely be legal. All I’m saying here is that folks should not lightly brush off Trump’s comments believing that they would never pass legal muster. If you disagree with the ban, then your only recourse will be the voting booth.

2 comments

  1. Stephen Scott

    Oscar, we agree on most issues. But the WWII ban on, and internment of, the Japanese, and Carter’s ban on Iranians were based on national origin and not religion. By your logic, it would be constitutional to ban Catholics or Jews. While the distinction seems minuscule, I believe the first amendment mentions the word “religion” while it makes no mention of national origin. Also, the first amendment, which refers to “‘congress’ (shall make no law)…” forbids congress from enacting legislation — which is THEN subject to a presidential veto — “respecting the establishment of religion, OR PROHIBITING THE FREE EXERCISE THEREOF…” The Japanese and Iranian bars above were executive orders that were not challenged, I believe, because they made no reference to “religion.” So, the issue becomes, can a president, via executive order, ban members of a particular religion entry and the exercise of that religion from entering the US. My answer is an unequivocal “no.” If religion is the only criteria, the notion violates every aspect of the first amendment.

    1. Oscar Michelen

      Steve: You are overlooking one important principle. Neither the First Amendment nor any other part of the Constitution applies to non-citizens outside the US. The US owes no rights to those who are not yet within our borders and are not yet our citizens. Please understand that I am 100% opposed to Trump’s proposal. I only wrote the article to highlight the importance of stopping him and his rhetoric because if someone with this ideology gets into the White House they could legally effect this policy. Congress and SCOTUS have made it easy for a US president to block an enter “class of aliens” (that’s the language). I don’t think basing the class on religion (due to established facts that members of that religion might come into the country to do harm) as opposed to national origin is that different. After all, discrimination based on national origin is as wrong and as protected-against as discrimination on religion. Lets hope we never have to find our which one of us is right.

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