IS TRUMP’S PROPOSED BAN ON MUSLIMS UNCONSTITUTIONAL?

The presumptive Republican candidate for President, Donald Trump, has proposed a ban on all Muslims entering the U.S., with the possible exception of Muslims who are already U.S. citizens, or members of the U.S. military seeking legal immigration status here.
The general reaction in the media and among most constitutional experts was to declare immediately and categorically that such a ban would be unconstitutional. They argue that it was prohibited by the First Amendment protection of Freedom of Religion, or the Fourteenth Amendment’s “Due Process Clause,” which bars the states from depriving “any person” of their property without “due process of law.” However, the answer to the question as to whether such a ban is constitutional or not is more complex.
To address this question from a purely constitutional perspective, we must put aside for the moment consideration of whether it makes practical, moral or ethical sense to impose a blanket ban on 1.6 billion people from entering the U.S. based solely upon their religious beliefs. Nor is the constitutional question the same question as whether such an action is consistent with fundamental American values and heritage, as summed up by the Statue of Liberty’s promise to generations of poor and oppressed people around the world (“Give me your tired, your poor, your huddled masses yearning to be free….”). The constitutional issues do not necessarily take into account the fact that our country was largely built by immigrants seeking refuge from religious oppression. Groups such as the Puritans, the Quakers, the French Huguenots came to America because they were fleeing religious oppression elsewhere, just as Muslim Shia refugees from Iraq and Syria have been seeking asylum in the U.S. as a result of persecution by Muslim Sunni terrorist groups such as ISIS.
As we have sadly learned throughout U.S. history, there is often a divergence between what is legal or constitutional and what is right and moral. Some of the darkest stains on the American soul have resulted from decisions that were found to be legal and constitutional, but nevertheless constituted outrageous deprivations of fundamental human rights. For example, slavery was legal in the United States up until the Civil War, despite the fact that by 1860, virtually no one argued that it was morally justifiable. Several decades later, during the 1890’s, in response to public hysteria over the “Yellow Peril” of Chinese immigration on the West Coast, Congress enacted legislation, known as the Chinese Exclusion Act, which effectively banned Chinese immigration. In a series of decisions, the U.S. Supreme Court upheld this ban on Chinese immigration, finding that such blatantly discriminatory legislation was constitutional. The Court relied upon the so-called “plenary power doctrine,” a legal concept articulated by the Supreme Court, acknowledging that Congress and the Executive Branch have tremendous power and discretion over immigration laws, and giving great deference to Congressional legislation dealing with immigration.
Similarly, the decision by President Roosevelt to acquiesce to West Coast hysteria regarding the perceived “threat” of an imminent invasion of the West Coast by the Japanese and to order that 100,000 innocent Japanese-Americans be herded into detention camps following Pearl Harbor was regrettably upheld by the Supreme Court as legal, although it was recognized by many Americans at the time, and by the post-World War II generations, as being morally repugnant and totally inconsistent with fundamental American values.
This ban on Chinese laborers and the incarceration of Japanese-Americans, however, was based solely upon ethnicity and national origin, not religion, and there does not appear to be any Supreme Court case that squarely addresses the constitutionality of such a ban based purely on religious grounds.
There is no question that the U.S., as a sovereign nation, has virtually an unfettered right to decide who enters the country and who is eligible for citizenship status. Congress has the power to decide who may become a citizen and has broad powers over foreign commerce. The President and the Executive Branch also have broad powers to manage foreign relations and to control and secure the nation’s borders.
The most recent case that is directly relevant to the issue of whether a broad ban on Muslim immigration may legally be imposed is the Supreme Court’s 1972 decision in the case of Kleindienst v. Mandel, which upheld the Executive Branch’s refusal to allow a Belgian scholar who subscribed to a Marxist political philosophy from entering the U.S. to give a series of lectures. In a 6 to 3 split decision, the Supreme Court reluctantly declined to second-guess the Executive Branch’s decision to ban Mandel based upon his political philosophy. This decision, however, should not be interpreted as giving a clear green light to a ban on all Muslims from entering the U.S. because that decision also rejected the argument made by the Executive Branch that U.S. courts do not even have the power to review such decisions. Also, the Court found that the Executive Branch’s reasons for excluding Mandel were “facially legitimate and bona fide,” leaving open the door to a possible future finding by the Supreme Court that there is no rational basis for a blanket immigration ban on all Muslims, and that the only true motivation for such a proposal is to pander to current public hysteria and xenophobia triggered by terrorist acts by Muslim residents and citizens of the U.S. in San Bernadino and Orlando.
The power of Congress and the President to ban entire groups based upon national origin or religion is not unlimited under the Constitution. Some portions of the Constitution only protect “citizens,” but other important sections were designed to protect all “persons” or “people,” not just citizens. The First Amendment, for example, speaks of “people,” not “citizens,” and thus protects the right of all people to exercise Freedom of Religion and Speech. A ban on Muslims would also arguably violate the plain language – or at least the spirit — of the Equal Protection Clause of the Fourteenth Amendment, which prohibits state governments from denying any “person” the equal protection under the law.
It should also be kept in mind that there have been many proposals in the past to ban “foreigners” of one ilk or another, and with the few notable exceptions previously mentioned, such isolationist and xenophobic views have never been implemented. Throughout U.S. history, there have been “Nativist” movements, whereby American groups and even political parties have sought to lift the drawbridge into the U.S. by seeking to bar all further immigration into the country. But if there is any clear lesson in American history, it is that successive waves of immigration have infused this country with the dynamic energy that has built the U.S. into the economic powerhouse that it is today, and in all probability, present and future immigration will continue to provide this same kind of energy. Just take a walk around virtually every American city or town, take a ride in a taxicab (or Uber), dine at a local restaurant, take notice of who is mowing the lawns, and you can see the faces of immigrants doing the necessary work that natural born Americans chose not to do.
One important legal question is that if a President Trump made good on his promise to ban Muslims from the U.S., who would have legal “standing” to challenge such a policy. Certainly, a Muslim outside the U.S. would not have the right to mount such a challenge since no foreign national has a constitutional “right” to enter the U.S.. In all likelihood, a legal suit would be commenced by one of the thousands of Muslim refugees from Iraq and Syria who are already in the U.S. and who have sought asylum. Since they are already in the U.S., and there is a strong body of law already in place recognizing the due process rights of detainees in deportation cases, they would be in a strong position to argue that there is no legal or even rational basis for deporting them solely based upon the arbitrary and discriminatory views held by Mr. Trump and others regarding their religious beliefs. Moreover, given their physical location on U.S. soil, these Muslims could also argue that they have a huge personal stake and “property interest” in remaining here in the U.S.
Given the fact that legal scholars and Supreme Court justices must be painfully aware of the Court’s tragic record of jurisprudence upholding blatant discriminatory legislation targeting specific groups, such as the Chinese or Japanese-Americans, it would be expected that this Supreme Court would take a more enlightened – and critical – view of any legislation or executive action to ban all Muslims from entering the U.S. As P.T. Barnum was fond of saying, “No one ever lost money underestimating the intelligence of the American public.” Hopefully, the same will not be said about the current or future Supreme Court. But only time will tell. In the meanwhile, it is important to recognize that the question of whether Muslims may be barred from entering the U.S. solely based upon their religion is not just a legal and constitutional question, but also a fundamental moral and ethical one that may define what it means to be an American for generations to come.