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Donald Trump’s proposed ban on Muslim immigrants could be legal, scholars say

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Republican presidential candidate Donald Trump speaks at the Republican Jewish Coalition Presidential Forum in Washington earlier this month.

WASHINGTON >> Donald Trump’s attention-getting proposal for a “total and complete shutdown of Muslims entering the United States” struck many as blatantly unconstitutional because it discriminates against a class of people based on religion and punishes even those who have done nothing wrong.

When applied to Americans, such a policy would almost certainly violate constitutional guarantees of “due process of law” and “equal protection.”

But legal scholars note that immigration law is different, and Trump’s ban, however controversial, could actually pass legal muster.

Federal law and the courts have long given Congress and the president nearly unchecked power to bar foreigners from entering the country.

“Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he deems necessary, suspend the entry of all aliens or any class of aliens,” according to the federal Immigration and Nationality Act.

Moreover, non-citizens who live outside the U.S. usually cannot invoke rights protected by the Constitution.

After the initial public uproar, Trump quickly clarified that he did not mean to include U.S. citizens in the ban and was referring only to foreigners.

For its part, the Supreme Court throughout history has steadily upheld the federal government’s so-called “plenary power” over immigration.

In 1889, for example, the justices upheld the Chinese Exclusion Act, which kept out Chinese laborers and declared that the “power of exclusion of foreigners” was a “part of the sovereign powers delegated to” the federal government. That decision remains on the books.

In June of this year, the high court upheld the State Department’s decision to deny a visa to the Afghan husband of a California woman. Fauzia Din, a U.S. citizen living in Fremont, was asking the court to require immigration officials to give a better explanation for why her husband’s visa was denied, but Justice Anthony Kennedy in a concurring opinion cited the government’s plenary or complete power to exclude immigrants and said the government’s reference to an anti-terrorism statue was sufficient.

University of Chicago law professor Eric Posner said the “plenary power” doctrine is viewed with contempt by many lawyers, but because of legal precedents it has set, civil libertarians would face an uphill fight if they challenged a broad immigration ban in the Supreme Court.

“If you take seriously the cases that have been decided in the past, they would find it constitutional,” he said of a Trump-like ban on Muslims. Though past restrictions have been based on race, nationality or political beliefs — not religion — Posner said he did not see that distinction as crucial.

“As a matter of law, I don’t see why it should matter,” he said. “If someone can be excluded from this country merely for having the wrong political beliefs, he could be excluded for having the wrong religious beliefs.”

But he and other legal scholars agree that some members of the current high court — including Justice Stephen Breyer — would likely expect the government to have a strong reason for excluding all people of the same religion.

“If a restriction on Muslims were to become law, it would not surprise me to see the courts strike it down as irrational — and probably because it sweeps too broadly,” said University of California, Los Angeles, law professor Hiroshi Motomura, who teaches immigration law.

Other legal experts said religion is a bit of a wild card. The high court in the past has not ruled directly on mass exclusions based on religion, and today’s justices are particularly sensitive to discrimination based on religion.

Earlier this year, the high court with near unanimity ruled for a Muslim girl who had been turned down for a sales job because she wore a head scarf at the job interview, and for a Muslim inmate whose beard violated prison rules. Justice Antonin Scalia wrote the first decision, and Justice Samuel A. Alito Jr. the second.

“Religion is one of the few areas that crosses the left-right divide. It is a point of common cause,” said Stephen Vladeck, a law professor at American University in Washington.


“The people who say this will be easily upheld are missing the reality of the current court’s views on religion,” he said.

And most agree such any ban could be enforced only against immigrants.

“The plenary power doctrine applies only to foreigners,” Posner said. “If (Trump) really tried to ban Muslim Americans from entering the United States, the courts would almost certainly rule against him.”


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26 responses to “Donald Trump’s proposed ban on Muslim immigrants could be legal, scholars say”

  1. Denominator says:

    Interesting how the papers/news 1st report Trump is crazy and idea is unconstitutional, then they wait for someone to research the idea. So Obama has the power to keep us safer and won’t use it unless it involves carbon dioxide.

  2. cojef says:

    “Plenary power” was used back in 1989 in regards to the Chinese Exclusion Act to establish is legality when Communist China was just emerging as major economic power coincidental to fall of Berlin Wall, when national sentiment that these were enemy states. However currently our national sentiment on how we look at a political situations has changed dramatically to the counter that the justices can side with the prevailing thoughts of the majority? Moral high ground would prefer the current thinking!

  3. mikethenovice says:

    Trump’s current wife is not exactly born in America, neither.

    • Ronin006 says:

      The issue is not being foreign born. The issue is allowing into the US virtually unchecked a class of foreigners who have demonstrated quite clearly that many, if not most, hate our guts, want to kill us, and want to destroy our way of life. It is a matter of fact that many have already killed many AQmerican here at home. No system is foolproof, but we need to immediately stop allowing Muslims to enter the US until reasonable and sensible procedures are established and implemented to ensure those wanting to come a properly vetted, thus minimizing the risk to Americans. Please do not forget that the primary function of the federal government under the Constitution is to protect its citizens.

      • Waokanaka says:

        Ronin, which is a Japanese-based name, YOU of all people SHOULD understand the ugliness of this ridiculous law. “Many” muslims have killed Americans ??? Let’s see, there were 2, maybe 3 involved in San Bernadino, 1 in San Antonio, and maybe a dozen in the 9/11 massacre. Sounds like YOU are an uneducated , small minded, bigot. You can’t add, obviously. But, if you want to count Muslims trying to kill US SOLDIERS in Afghanistan, Iraq, Saudi Arabia, and Kuwait, THAT is a different story. There were wars going on there. If YOU want to make THAT statement, MANY Japanese tried to kill Americans in WWI, as did Germans. Tons of Koreans tried to kill Americans during the Korean War, etc, etc. What would YOU call the Civil War, where Americans were killing Americans ??

        • 8082062424 says:

          I suggest you do some research your number are way off. not to mention they not only a threat to the US but just about every country in the world. here a few to add to your list this has been going on for a long time.United States April 18, 1983 – The April 1983 U.S. Embassy bombing, in Beirut, Lebanon by the Islamic Jihad Organization. 63 dead, 120 injured.[1]

          September 20, 1984 – The 1984 United States embassy annex bombing in Beirut, Lebanon. 24 dead.

          January 25, 1993 – 1993 shootings at CIA Headquarters in Langley, Virginia. 2 killed, 3 injured

          United States February 26, 1993 – World Trade Center bombing, in New York City. 6 killed, 1,042 injured

          many many more over the year across the us. you want to feel good about your self fine.. But it the government job to protect us not those wanting to come here

        • butinski says:

          Don’t look at a screen name to try to profile the sender. Bet over half of the screen names are not what or who they appear to be. For all it’s worth, your Hawaiian sounding screen name could very well come from a caucasian mainlander.

        • Ronin006 says:

          One is too many.

  4. mikethenovice says:

    Trump is neither a Democrat, nor a Republicans. He is a business man with a motive to make money on his terms.

  5. mikethenovice says:

    It’s also legal for the Muslims not to vote for Trump, too.

  6. klastri says:

    Mr. Trump did not limit his ridiculous Muslim ban to non-U.S. citizen immigrants, and it’s not shock that his supporters are changing his words at this point. Mr. Trump can’t make sense – obviously – so he leaves it to others to make sense for him. When pressed on how he would find out if people at entry points are Muslim, he said that someone at the border or airport would ask their religion. That’s his plan. That’s what he said. As if he had just suffered some kind of head injury.

  7. Marauders_1959 says:

    Instead of “…blatantly unconstitutional because it discriminates against a class of people based on religion”
    I would think it’s “…blatantly unconstitutional because it discriminates against a class of people based on terrorist activities including mass killings and be-headings”

  8. bsdetection says:

    Sen. Lindsey Graham, R-S.C., a retired Air Force Reserves colonel and one of the GOP’s leading voices on national security issues in Congress: “If you want to make America great again, reject this (Trump’s Muslim ban) without any doubt or hesitation. It puts our troops and diplomats at risk over seas. I just got back from Iraq a week ago Monday, and they were worried about his behavior and statements even before this. He’s putting people at risk. I’ve been to Iraq and Afghanistan 36 times. Remember when the guy in Florida was threatening to burn the Quran? General Petraeus was really worried about this. And the enemy takes statements like this and they use it against us. This helps the enemy. It puts our soldiers and diplomats at risk, it undermines the war effort, and it’s ruining the Republican party…He is helping the enemy of this nation. He is empowering radical Islam.”

    Department of Homeland Security Secretary Jeh Johnson: “As the Secretary of Homeland Security, I have avoided responding to the political season and what candidates have said running for president. However, I believe that it’s the responsibility of those of us in national security and homeland security when a leading candidate for office proposes something that is irresponsible, probably illegal, unconstitutional, and contrary to international law, un-American, and will actually hurt our efforts at homeland security and national security, we have to speak out.”

    White House Deputy National Security Advisor Ben Rhodes: “Muslim Americans have made extraordinary contributions to our country, but it’s also contrary to our security, Wolf. The fact of the matter is ISIL wants to frame this as a war between the United States and Islam. And if we look like we’re applying religious tests who comes into this country, we’re sending a message that essentially we’re embracing that frame. And that is going to make it very difficult to partner with Muslim communities here in the United States and around the world to prevent this scourge of radicalization that we need to be focused on. We should be making it harder for ISIL to portray this as a war between the United States and Islam, not easier.”

    Rear Adm. John Kirby (Pentagon press secretary and spokesman for former Joint Chiefs Chairman Adm. Mike Mullen): “I’m not going to get up here and parse the comments by people running for office, but what we have said repeatedly, separate and distinct from this, is that a group like ISIL — and we saw this with Al Qaida years ago — they certainly feed on fear. And when we’re afraid, and when we act out of fear or contempt, that emboldens their narrative and their message, this idea of this grievance against the West. There’s no excuse, none, for violence, let me make that very clear. Terrorism has no justification or rationale. But we have seen in the past, when terrorist groups try to use these — those kinds of divisive comments and rhetoric to fuel their own self-delusional narrative about why they are what they, and who they are and what they — with the ideology that they try to propagate. So I can’t predict the degree to which those comments will or will not incite recruitment and further activity by ISIL, but clearly as the secretary said, it is counterproductive and it is not helpful.”

    • DeltaDag says:

      Just say Donald Trump recants everything he’s said in the last year. Would the Islamic State then take all their marbles back and return home, never to trouble the West again? A difference that make no difference IS no difference.

  9. bsdetection says:

    Pentagon spokesman Peter Cook: “Anything that bolsters ISIL’s narrative and pits the United States against the Muslim faith is — is certainly not only contrary to our values, but contrary to our national security,”

  10. bsdetection says:

    Retired Rear Admiral John Hutson, the former Judge Advocate General of the Navy, said Trump “has proven himself useful in defining the outer limits of the spectrum of thought” and his ideas are “short of internment camps, but not much. As a lawyer, I’d suggest that among other reasons it is a bad idea is that it violates the freedom of religion clause of the 1st Amendment. Victory for the bad guys is to cause us to change what we stand for in fundamental ways. This would do that.”

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