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.
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upon and reparations paid to the families of those interred, but its still on the books having never been overturned or repealed.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.