Lyle Denniston, the National Constitution Center's constitutional literacy adviser, looks at the scholarly debate over Donald Trump's proposed Muslim ban and some possible court scenarios.
“We are not talking about isolation. We're talking about security. We're not talking about religion. We're talking about security….As far as people like in the migration, where they're going, tens of thousands of people having cell phones with ISIS flags on them? I don't think so. They're not coming to this country. And if I'm president and if Obama has brought some to this country, they are leaving. They're going. They're gone.”
– Answer by Presidential candidate Donald Trump to a question at the Republican candidates’ debate December 15 in Las Vegas, regarding his proposal to ban all Muslims from entering the United States as a security threat.
WE CHECKED THE CONSTITUTION, AND…
As a sovereign nation, the United States government has always had undoubted authority to decide who may enter the country, and the conditions for entry by those who seek it. It has long been understood that most of this power lies with Congress, under its authority to decide who may become a citizen and its power over foreign commerce. The president and the Executive Branch share some of this authority, through the power to manage foreign relations, globally and with individual nations.
With the rise of the national security threat posed by global terrorism, most recently by the Islamic State (ISIS or ISIL), a political debate has arisen and intensified over immigration of people of Muslim faith. It has not always been a rational debate; often, it seems to be driven by pure emotions, especially a fear of people of a different religious preference.
That anxiety gave rise, early on, to a movement to assure that the American Constitution would never be interpreted by the precepts of Sharia law, after the Supreme Court decided a series of constitutional cases by looking to the legal norms of other nations, a side effect of a nation operating increasingly in a richly diversified world.
With the recent terrorists’ attacks in the streets of Paris and in a neighborhood service center in San Bernardino, Calif., both linked to the influence of ISIS, political rhetoric has taken on a distinct anti-Muslim tone. It is in this context that the idea has gained some political favor that there be a flat ban on entry into the U.S. by Muslims from anywhere in the world. That is, of course, most closely associated with embrace of that idea by presidential candidate Donald Trump. It is almost a certainty that it will be debated throughout next year’s presidential primary elections and the fall campaign.
Immediately, this political argument led to a constitutional debate. Reputable legal scholars have taken directly opposite positions on the constitutionality of such a ban.
Despite the recital by both sides of competing court precedents, the Supreme Court has never decided specifically whether a religious preference could be a valid basis for exclusion of all of those who follow a given faith. The closest the court ever came to that was in a series of decisions in the 1890s, upholding several federal laws aimed at excluding Chinese immigrants. Those amounted, collectively, to a flat ban aimed at an entire group of foreign nationals, based on their race (not their faith), and the sentiment behind the laws has since been understood as pure hysteria.
Near the center of the current debate about a ban on Muslims is a 1972 decision, in the case of Kleindienst v. Mandel, upholding the Executive Branch’s refusal to allow a Belgian scholar who was an adherent of Marxist political philosophy to enter the U.S. to give a series of lectures.
The decision split the court 6 to 3. It is obvious that the majority opinion is filled with expressions of judicial reluctance to second-guess an Executive Branch decision in this field. That part of the ruling has led some scholars to the confident conclusion that a flat ban on Muslims would now be upheld, without judicial interference.
Scholars of the opposite view, however, have drawn encouragement from the fact that the court did not accept in that case an argument by the Executive Branch that such decisions were not open to review in the courts. And such scholars also note that the court majority accepted the decision to exclude Mandel on the explicit premise that the government’s reasons for doing so were “facially legitimate and bona fide.”
That phrase does create a constitutional test for judging a sweeping ban on entry based upon a broad classification. Given that not all Muslims who entered the country would undoubtedly pose a discernible threat, a total ban might not satisfy judicial demands that the policy have some proper foundation in fact and experience and was not a mere cover for hysteria or xenophobia. In the modern era of sensitivity to human rights, such broad-based classifications are quite suspect.
But who would have a right, or the opportunity, to challenge such a ban, assuming that it would be imposed? No one has a constitutional right to enter the country; that is clear. It probably would require, then, that some Muslims who had already entered the country as refugees – such as the thousands that the Obama administration has been admitting – could make a case that they have a personal stake in remaining, and the only reason for sending them away would be the discriminatory view of their religious faith. And perhaps some refugee service organization that has worked with Muslim refugees could come forward to speak for them in court.
It does seem reasonably clear that, if a proper challenger could be found, the courts very likely would be open to hear their claim. And it would not be a sure thing that they would lose in that forum.
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