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Legal experts agree: Trump’s proposal unconstitutional

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Republican presidential candidate, businessman Donald Trump, waves to supporters before his rally coinciding with Pearl Harbor Day at Patriots Point aboard the aircraft carrier USS Yorktown in Mt. Pleasant, S.C.

MADISON, Wis. >> Donald Trump’s call to block all Muslims from entering the United States is not only unconstitutional, but also impossible to carry out, legal experts said Tuesday.

Trump’s proposed ban, announced to cheers at a rally in South Carolina Monday, would apply to immigrants and visitors alike, a sweeping prohibition affecting all adherents of a religion practiced by more than a billion people worldwide.

Beyond inciting condemnation from Republican presidential rivals, GOP leaders and others, legal and immigration experts said Tuesday that Trump’s proposal violated the Constitution’s equal protection clause and freedom of religion granted under the First Amendment.

“It is blatantly unconstitutional and it’s an attack on the very foundation of the United States,” said Marci Hamilton, a law professor specializing in the First Amendment at Yeshiva University in New York City. She called his idea “laughable.”

“It’s never possible to fully ascertain what someone believes internally,” Hamilton added. “How does one recognize a Muslim, a Christian or a Jew? Do you look at where they were born, do you look at where they were raised? Do you look at the last religious service they attended?”

Trump’s proposal amounts to a religious test for anyone wanting to enter the country, something that is unprecedented in U.S. history, said Nancy Morawetz, a professor of Clinical Law at the New York University School of Law.

“If one has this kind of a rule, you have to figure out how you’re going to test it and verify it,” Morawetz said. “What this really means is there would be a religious identity card.”

Even an anti-immigration group that for decades has advocated curtailing the influx of immigrants to the U.S. disavowed Trump’s religion-based exclusion.

“Nobody’s interested in selecting people solely on their religion or their faith,” said Dan Stein, president of the Washington-based Federation for American Immigration Reform.

Trump’s comments highlight the broader concern over the immigrant vetting process, Stein said.

“Donald Trump is unartful, but it seems to us what he’s really putting his finger on is this broader question of suspending a significant swath of immigration until this country can reassert a better screening process,” Stein said.

U.S. immigration law has some “very, very ugly history” where people have been turned away based on their nation of origin, but never on their religion, Morawetz said.

In the late 1800s, Congress passed legislation broadly aimed at halting the immigration of Chinese laborers. Those were not fully repealed until 1943. Quotas limiting immigration based on race and national origin were also enacted in the early 1900s. Racial quotas were repealed in 1952, and those limiting people based on national origin were eliminated in 1965.

Legal scholars believe such bans, if proposed today, would not be found to be constitutional, Morawetz said.

Religion can factor into immigration decisions, but that typically happens when people are fleeing religious persecution. So people of a particular religion may get favorable treatment by the United States, as when Russian Jews sought to leave the Soviet Union.

Trump, who has built his Republican presidential candidacy around inflammatory rhetoric, stood by his latest statements Tuesday, saying stopping all Muslims from entering the U.S. is necessary because of hatred among “large segments of the Muslim population” toward Americans.

Trump said banning all Muslims “until our country’s representatives can figure out what the hell is going on” is warranted after attacks by Muslim extremists in Paris and last week’s shooting in San Bernardino, California, that killed 14.

35 responses to “Legal experts agree: Trump’s proposal unconstitutional”

  1. bumba says:

    Unconstitutional. Well, so is disarming the population. That doesn’t seem to be stopping the current administration.

    • Boots says:

      Who is disarming the population? Love the imaginary fears of the wacko right who prefer nut cases shooting up schools to common sense gun restrictions.

    • RichardCory says:

      I’d tell you to put your tinfoil hat back on, but I don’t think that will be enough. You probably need a Faraday cage.

      • Cellodad says:

        Well RC, you could go out to Kokohead range and see how many people have been disarmed. All of those people have complied with Hawaii’s very strict firearms regulations, enjoy shooting sports, are responsible and safe and very willing to help new shooters become the same. The Richard Cory of Edwin Arlington Robinson’s poem might not have qualified to purchase a firearm under our laws and might not have had such a tragic end.

  2. wrightj says:

    Pretty soon Donald will throw in the towel.

    • Boots says:

      Define pretty soon. lol People have been predicting his demise months ago. He is having too much fun to throw in the towel.

    • RichardCory says:

      Haha. Trump isn’t going anywhere. There are too many people who need him to stick around to continue doing astronomical levels of damage to the Republican Party. Hillary is probably his biggest financier.

      • Denominator says:

        America voted for Obama, proving it can get elections terribly wrong. Thinking Trump can’t be elected is wishful thinking. Our country is not what is used to be and politicians are different too. Our worst possible leaders are both running ahead of the others. We better start hoping that internally Trump has an awareness that his behavior may appeal to voters but he can’t act that way as President. Similarly, let’s hope that Hilary has the ability to control her deceit and if elected be satisfied with Presidential powers and not try to surpass Obama and become Queen Dictator Righter of All Wrongs. Things look dark right now!

        • jkjones says:

          Hawaii dumped Abercrombie and elected Ige. The pond is full of beached whales. Hawaii is full of democraps.

    • HawaiiCheeseBall says:

      No way, I think Donald is having way too much fun. I think he loves the attention. RicharCory is correct, too many people need him to stick around. The so called liberal media will never confront him because he is just good for ratings. The republicans will not criticize him for fear of alienating their nut case base. The Democrats just love him for tarnishing the Republican brand. You just know somewhere in the world tonight Democratic operatives are whispering “Third Party Run” in the ears of Trump’s supporters. Only in America!

    • Denominator says:

      Perhaps he’ll wrap one around his head for his next conference?

    • kuroiwaj says:

      WrightJ, the Donald will never throw in his towel. He is right on his idea of placing a hold on Muslims, who are not American citizens, from entering the United States until the Congress and Administration develop policy to handle the current Radicalized Islamic Terrorist crisis. The Donald’s proposal is not unconstitutional as many are claiming. He is protecting Americans as mandated by the U.S. Constitution.

  3. butinski says:

    How do you recognize a Muslim? By his beard and mustache? Look out Santa, be prepared to get kicked out.

  4. Waterman2 says:

    Only place Trump missed is by keeping out only Muslims.

  5. bsdetection says:

    Guantanamo was one of Al-Qaeda’s greatest recruiting tools, but it doesn’t compare with the degree to which Trump has become a recruiting tool for ISIS. There is nothing ISIS wants more than to eliminate the “gray area,” to demonstrate that there is no tolerance for Islam in the West, to show moderate Muslims that the United States is against all Muslims and that only ISIS is defending Islam. Every time Trump opens his mouth, every time that his followers cheer his anti-Muslim statements, the leaders of ISIS are smiling. Trump is a strategic idiot whose fascist rantings will drive ever increasing numbers to join ISIS. Trump is a real and present danger to the US.

    • Ronin006 says:

      BS bsdetection. How was Guantanamo one of Al-Qaeda’s greatest recruiting tools? Guantanamo did not exist in 1992 when Al-Qaeda recruited people to bomb hotels in Yemen housing US military personnel, it did not exist in 1993 when Al-Qaeda recruited people in a failed attempt to bring down the two World Trade Center towers with a truck bomb, It did not exist in 1998 when Al-Qaeda recruited people to attack and kill 200 people at two of our embassies in Africa, it did not exist in 2000 when Al-Qaeda recruited people to attack the USS Cole in Yemen, and it did not exist in 2001 when Al-Qaeda recruited people to fly planes into the World Trade Center and into The Pentagon. So, exactly how has Guantanamo been one of Al-Qaeda’s greatest recruiting tool?

      • bsdetection says:

        “How Guantanamo Bay’s Existence Helps Al-Qaeda Recruit More Terrorists” by Therese Postel in the April 2013 issue of the Atlantic: “Anwar al-Awlaki issued a lecture discussing the plight of prisoners in Guantanamo Bay before his death by drone strike in 2011. Awlaki’s lectures still play an important role in recruiting impressionable individuals to jihad. As we know, Fort Hood shooter Nidal Hassan was impressed by Awlaki’s message and was encouraged (although not directed) to carry out an attack on the states by the cleric himself.

        The ramifications of the indefinite nature of Guantanamo have not been lost on American military and policy-makers, either.

        Air Force Officer Matthew Alexander, who was in charge of an interrogation team in Iraq, states that many of his subjects mentioned Guantanamo in their discussions and that it remains a strong recruitment tool. Not only does it aid recruitment, but in Alexander’s words, “the longer it stays open the more cost it will have in U.S. lives.”

        John Brennan, now director of the Central Intelligence Agency, echoed Alexander’s words just less than two years ago: “The prison at Guantánamo Bay undermines our national security, and our nation will be more secure the day when that prison is finally and responsibly closed.”

        General Colin Powel underlined U.S. awareness of this perception in 2010. Powell said unless Guantanamo is closed, it gives “radicals an opportunity to say, you see, this is what America is all about. They’re all about torture and detention centers.” In Powell’s words, the continuation of Guantanamo reinforces Al-Qaeda’s “own positions.”

        General David Petraeus’ own words on Guantanamo Bay now seem prophetic. Just a year into Obama’s first term Petraeus stated, “I’ve been on the record on that for well over a year as well, saying that it [Guantanamo] should be closed. . . . And I think that whenever we have, perhaps, taken expedient measures, they have turned around and bitten us in the backside. . . . Abu Ghraib and other situations like that are nonbiodegradables. They don’t go away. The enemy continues to beat you with them like a stick.”

        • jkjones says:

          Russia has the highest rate of Isis volunteers followed by Great Britan, France and Belgum among the western countries. Did not realize Donald Trumph had such a long reach of influence. Look you liberals are flakes and your pathetic arguments are meant as diversions from the real truth. why dont you all, including Gov Ige stand in line to adopt a muslim refugee from Syria.They tend to kill the people that help them most. Remember to ask for a female since Obama has labeled women as harmless.

    • DeltaDag says:

      It’s pretty naive to believe ISIS (aka ISIL and Daish) needs Donald Trump to fill their ranks to inflict further destruction on the Western democracies. Islamic State fighters already hold pluralistic societies like ours in utmost contempt and, as the recent PBS Frontline report on ISIS in Afghanistan disturbingly showed, indocrination of future offensive jihadist fighters begins early, starting as young as age five. Someone taught from that tender age to despise the West needs no Donald Trump for an excuse to cause grevious harm.

      • bsdetection says:

        Was Republican Senator Lindsey Graham “naive” when he made the following statements about Trump?

        “He’s a race baiting, xenophobic, religious bigot. He doesn’t represent my party; he doesn’t represent the values that the men and women who wear the uniform are fighting for. ”

        “He is the ISIL man of the year by the way… the way you win the war, just don’t kill terrorists, you invest in the lives of others.”

        “You know how to make America great again, tell Donald Trump to go to hell.”.

        “The one thing I can tell you is that what Mr. Trump’s saying about how to handle this war is empowering the enemy,”

        “ISIL loves Donald Trump because he is giving them an opportunity to bring people their way,”

    • d_bullfighter says:

      ISIS doesn’t need any help as their mission is to simply follow the dictates of the Quaran. Blaming Trump is like blaming the messenger – foolish thinking.

      • bsdetection says:

        Pentagon spokesman’s statement on 12/8/15: “We have troops serving that follow the Muslim faith. And, again, without wading into politics, anything that tries to bolster, if you will, the ISIL narrative that the United States is somehow at war with Islam is contrary to our values and contrary to our national security.

        We are, as I mentioned, working with Muslim nations right now. We want to, in essence, take the fight to ISIL with the help of — of Muslims and others around the world. And anything that — that somehow challenges that, we think would be counterproductive to our national security. “

  6. mikethenovice says:

    Neither a Democrat nor a real Republican, this man, Trump, is making his own rules as he goes along.

  7. Coldwater says:

    Just hope or pray no other radical islamic attack happen while Obama is still in office. That will only validate his reason for banning muslims.

    • DeltaDag says:

      President Obama has another year before handing off the war on terror to his successor. It’s a certainty the U.S. will suffer another Islamic State inspired (if not directed) attack before his term ends. If the next incident is actually a directed attack, expect it to claim more lives and casualties than was the case in San Bernardino.

      • justmyview371 says:

        Obama isn’t conducting a war on terror. He isn’t doing much of anything. A real lame duck!

        • gmejk says:

          Congress, who actually has the power to declare war, isn’t doing any better. They have no interest in getting involved in another full-scale war in the Middle East.

        • DeltaDag says:

          Well, he has authorized air strikes and drone attacks to the point where U.S. weapons stockpiles are running low. Air power and enjoying the luxury of air supremacy have the undesired effect of validating the Islamic States’ recruiting claims that we don’t have the stomach for a man-to-man confrontation unless by proxy fighters. Given the U.S. public’s weariness of Middle East adventures, this is an accurate assessment.

      • HanabataDays says:

        A certainty? So you’re saying you’ve already received the blueprints from your handler.

        • DeltaDag says:

          Do you honestly believe the Islamic State will grant President Obama a truce until he exits the White House? Why should they? It’s not as if Obama has taken their proper measure in the past. Anyway, please remember to revisit this question after the next fatalities are inflicted.

  8. MoiLee says:

    President Carter Banned Iranians from coming in and had Iranians here register,many were ,in fact DEPORTED…And YES! They were all Muslims! The POTUS has the power to deny entry to anyone, he deems neccesary! To “Protect” us against foreign and domestic threats…..Main job is to protect The American people….This is his JOB!

    When elected……What Donald needs to do,to be in compliance with the constitution.Is simply ban Immigration coming from these hot zones!( Just like Jimmy Carter)…..Problem solved! On the religious factor? This idea will not fly….However , I get his message,the U.S. needs to Pause,until we know who these guys (Muslims) are…Bottom line..Even though he’s not the POTUS yet,he’s looking out for your Safety…..and what’s wrong with that?IMUA

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