Legal Experts Explain How Trump's Conservative Media-Backed "Ban Muslims" Proposal Is Unconstitutional

››› ››› ALEX KAPLAN & NICK FERNANDEZ

Right-wing media have defended Donald Trump's proposed ban on Muslims entering into the United States, despite multiple legal experts arguing the ban is likely unconstitutional, illegal, or lawless. Right-wing media have also cited prior country-specific restrictions on immigration to defend Trump's plan, despite the fact that these policies did not ban people based on their religious affiliation, and would be unlikely to survive judicial scrutiny today.

Trump Calls For "A Total And Complete Shutdown Of Muslims Entering The United States"

Trump: Muslims Should Be Banned From Coming Into The United States "Until Our Country's Representatives Can Figure Out What's Going On." On December 7, Republican presidential frontrunner Donald Trump published a press release "calling for a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on." Trump's statement claimed that "there is great hatred towards Americans by large segments of the Muslim population," and that "until we are able to determine and understand this problem and the dangerous threat it poses, our country cannot be the victims of horrendous attacks by people that believe only in Jihad, and have no sense of reason or respect for human life":

Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on. According to Pew Research, among others, there is great hatred towards Americans by large segments of the Muslim population. Most recently, a poll from the Center for Security Policy released data showing "25% of those polled agreed that violence against Americans here in the United States is justified as a part of the global jihad" and 51% of those polled, "agreed that Muslims in America should have the choice of being governed according to Shariah." Shariah authorizes such atrocities as murder against non-believers who won't convert, beheadings and more unthinkable acts that pose great harm to Americans, especially women.

Mr. Trump stated, "Without looking at the various polling data, it is obvious to anybody the hatred is beyond comprehension. Where this hatred comes from and why we will have to determine. Until we are able to determine and understand this problem and the dangerous threat it poses, our country cannot be the victims of horrendous attacks by people that believe only in Jihad, and have no sense of reason or respect for human life. If I win the election for President, we are going to Make America Great Again." [DonaldJTrump.com, 12/7/15]

Right-Wing Media Claim Trump's Proposal Is "Likely Constitutional"

Sean Hannity: No "Constitutional Right For A Foreigner To Get Into This Country." Talking to Republican presidential candidate Marco Rubio on the December 8 edition of Fox News' Hannity, host Sean Hannity disputed Rubio's claim that Trump's ban was unconstitutional, saying, "there's no constitutional right for a foreigner to get into this country":

SEAN HANNITY: You talked about Mr. Trump saying he has a habit of making offensive and outrageous comments. It sounds like, unless we can properly vet, in the case of Syrian refugee, you kind of agree with him. In other words, if we can't have a --

MARCO RUBIO: No, well --

HANNITY: If we don't have assurances from our intelligence officials, would you be comfortable letting them in

RUBIO: Well, it depends on who they are. But it wouldn't be a religious test. Look, the king of Saudi Arabia, a strong ally of the United States, his son attends Georgetown University. So he's not going to be allowed in? And what is that going to do to our relations with an important ally in the region? My point is that it's not constitutional to begin with. That sort of blanket denial of entry into the country and he even implied U.S. citizens who traveled abroad who are Muslim would not be allowed to come back in. That would not withstand initial scrutiny.

HANNITY: No no, I didn't hear him say anything about American citizens. I would agree with you constitutionality there's a great distinction. If you're an American, you should be allowed back in, but there's no constitutional right for a foreigner to get into this country. We make those laws. [Fox News, Hannity12/8/15]

National Review Online's Mark Krikorian: Non-Citizens Have "No Constitutional" And "Due-Process Rights To Challenge Exclusion." National Review Online contributor and executive director of the Center for Immigration Studies Mark Krikorian wrote that the issue with Trump's proposal is "not whether it would be lawful but whether it would be good policy," claiming "Non-Americans have no constitutional right to travel to the United States and no constitutional due-process rights to challenge exclusion":

First of all, it's important to underline that Congress can exclude or admit any foreigner it wants, for any reason or no reason. Non-Americans have no constitutional right to travel to the United States and no constitutional due-process rights to challenge exclusion; as the Supreme Court has written multiple times, "Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned."

What's more, while the president doesn't have the authority that Obama has claimed, to let in anyone he wants for any reason (under the guise of "parole"), he does have the statutory authority to keep anyone out, for any reason he thinks best. 

[...]

So in considering Trump's statement, the question is not whether it would be lawful but whether it would be good policy. [National Review12/8/15]

Breitbart News: Trump's Muslim Immigration Ban Is Not "Fascist" Nor Unconstitutional. In a December 8 article titled "Trump's Muslim Ban Is Not 'Facist,' And Is Not Unconstitutional," Breitbart News' John Hayward echoed National Review Online to claim it is not unconstitutional to ban Muslims saying, "[w]e really ought to get past the habit of describing every idea we disagree with as ... 'unconstitutional'":

It should be possible to disagree with this statement without describing Donald Trump as the new Hitler... but it seems to be rather difficult. 

[...]

As for whether Trump's proposed Muslim immigration ban would be unconstitutional, Mark Krikorian at National Review judges it would most likely pass Constitutional muster, with due allowances for varying interpretations (and some confusing responses from Trump campaign spokespeople) of exactly what Trump has in mind. 

[...]

We really ought to get past the habit of describing every idea we disagree with as "fascist," "unconstitutional," or "un-American," with the latter term covering the angry denunciations of Trump's Muslim immigration ban as going against everything Americans "stand for and believe in," to quote former Vice President Dick Cheney on the matter.  

It's fun to watch people who generally portray Cheney as a Dark Lord of the Sith embrace him as a prominent anti-Trump spokesman, but really, there is nothing in the charter or character of the United States that demands unlimited immigration from anywhere, or everywhere.  We should have the political language to denounce proposals in very strong terms without saying they run contrary to the basic character of the country - or, conversely, asserting that agreement with a proposal is mandatory for all good Americans. [Breitbart News, 12/8/15]

But According To Constitutional Experts, Trump's Muslim Ban Is "Unconstitutional" And A "Religious Litmus Test"

University Of Michigan Law Professor: Trump's Proposal Does Not Have A Constitutionally Required "Legitimate [Government] Purpose." University of Michigan constitutional law professor Richard Primus wrote Trump's "flat ban on Muslim immigration would be unconstitutional" as it does not "have a legitimate purpose," noting it is "not rational national security polity to ban all entry into the country by any member of a billion-plus member group whose members have every possible racial, national, and political background." The real reason for the ban, wrote Primus, "could only be animus-based, or theological, or some combination of the two," which would not be "constitutionally valid motivations":

[A] flat ban on Muslim immigration would be unconstitutional under existing judicial doctrine, because it would flunk the basic doctrinal rule that every governmental action must have a legitimate purpose. 

Sure, such a law would be defended by the lawyer representing Trump's administration as having a valid purpose--presumably, the purpose of protecting national security. But just because a lawyer claims that a law is motivated by a certain purpose doesn't mean that the Court will accept the claim, even in areas where the Court gives Congress and the President a lot of deference. An outrageous claim can still be rejected as implausible. 

The standard method for assessing whether a law is plausibly motivated by the purpose that its defenders claim for it is to measure the fit between the ostensible end and the chosen means. In this case, the fit between the law and the claimed purpose is crazily bad. It is not rational national security polity to ban all entry into the country by any member of a billion-plus member group whose members have every possible racial, national, and political background (and a welter of different ideas about religion, too). I'm no national-security expert, but I have no trouble making that judgment. Neither, I suspect, would a panel of federal judges. The real motivation for such a broad ban on Muslim entry into the United States could only be animus-based, or theological, or some combination of the two. Under existing judicial doctrine, those are not constitutionally valid motivations. [Balkinization, 12/9/15]

New York Times: Immigration Lawyers "Predict The Supreme Court Would Strike Down" Any Congressional Act Enacting Trump's Proposal. The New York Times quoted immigration and legal experts calling Trump's proposal "antithetical to the history of the United States" and predicting it would be struck down by the Supreme Court "as an overly restrictive immigration policy under the equal protection clause of the 14th Amendment":

Experts on immigration law and policy expressed shock at the proposal Monday afternoon.

"This is just so antithetical to the history of the United States," said Nancy Morawetz, a professor of clinical law at New York University School of Law, who specializes in immigration. "It's unbelievable to have a religious test for admission into the country."

She added: "I cannot recall any historical precedent for denying immigration based on religion."

Putting the policy into practice would require an unlikely act of Congress, said Stephen Yale-Loehr, a professor of law at Cornell and a prominent authority on immigration.

Should Congress enact such a law, he predicted, the Supreme Court would invalidate it as an overly restrictive immigration policy under the equal protection clause of the 14th Amendment.

"It would certainly be challenged as unconstitutional," he said. "And I predict the Supreme Court would strike it down." [The New York Times12/7/15]

Associated Press: "Legal Experts Agree" A Ban Would Be "Unconstitutional" And "Impossible To Carry Out." The Associated Press reported that "legal experts agree" the proposed ban is "not only unconstitutional, but also impossible to carry out" and constitutes "an attack on the very foundation of the United States." The AP also quoted a law professor saying the ban would "amount to a religious test for anyone wanting to enter the country," which would be "unprecedented in U.S. history":

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.

[...]

"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." [Associated Press, 12/8/15]

Harvard Law Professor: "The First Amendment's Guarantee Of Religious Freedom... [Is] Not Limited By Nationality Or Geography." Speaking to NPR, Harvard constitutional law professor Laurence Tribe, said, "he's certain that Trump's proposal would violate the Constitution" and "a religious litmus test like the one proposed by Trump would violate the spirit of Article VI of the Constitution, which prohibits the government from requiring a religious test to qualify for public office":

Laurence H. Tribe, a professor of constitutional law at Harvard University, says he's certain that Trump's proposal would violate the Constitution.

Yes, he says, some court decisions have found that the some parts of the protective mantle of the Constitution don't extend to foreigners. But according to Tribe's interpretation, some of the most well-known protections -- such as the First Amendment's guarantee of religious freedom and the Fifth Amendment's guarantee of due process -- are not limited by nationality or geography. 

"The [Fifth Amendment] applies to U.S. conduct with regard to any 'person,' wherever located and of whatever citizenship," Tribe writes in an email. "And [the First Amendment] is a flat prohibition on actions that the U.S. government may take, including those actions that respect 'an establishment of religion' or prohibit 'the free exercise thereof.' " 

What's more, Tribe says, a religious litmus test like the one proposed by Trump would violate the spirit of Article VI of the Constitution, which prohibits the government from requiring a religious test to qualify for public office. [NPR, 12/9/15]

Washington Post: "Trump's Muslim Entry Ban Idea 'Ridiculous,' 'Unconstitutional.'" In a December 7 article in The Washington Post, constitutional experts lambasted Trump's proposal, saying "[t]his would not only violate international law, but do so by embracing open discrimination against one religion. It would make the United States a virtual pariah among nations":

Donald Trump's proposal to bar all Muslims from entering the United States violates U.S. and international law and would never be allowed by the courts, legal scholars said late Monday.

"Oh, for the love of God," said Jonathan Turley, a constitutional law expert at George Washington University. "This would not only violate international law, but do so by embracing open discrimination against one religion. It would make the United States a virtual pariah among nations.'' 

The GOP presidential candidate on Monday called for a "total and complete shutdown" of Muslims entering the United States, including immigrants, tourists and even Muslims who are U.S. citizens and travel abroad. His plan to bar U.S. citizens drew particular ire from legal experts, some of whom fumbled for words as they tried to explain its illegality, since none had considered the matter before. 

"That's blatantly unconstitutional if it excludes U.S. citizens because they are Muslims. It's ridiculous," said Richard Friedman, a law professor at the University of Michigan. He cited the U.S. Constitution's equal protection clause and the First Amendment's doctrine of freedom of religion. [Washington Post12/7/15]

Right-Wing Media Also Cite Jimmy Carter's Iranian Visa Ban To Defend Trump's Proposal ...

Fox's MacCallum Compares Trump's Plan To Jimmy Carter's: "There Wasn't A Lot Of Outcry" For Banning Iranians During The Iran Hostage Crisis. On the December 10 edition of Fox News' America's Newsroom, co-host Martha MacCallum compared Jimmy Carter's 1980 restrictions on allowing Iranians into the United States during the Iran hostage crisis to justify the legality of Donald Trump's proposal to ban all Muslims from entering the United States saying, "there wasn't a lot of outcry" for Carter's plan:

MARTHA MACCALLUM (HOST): That is all he is saying. Donald Trump speaking about that, sparking an uproar with his plan to temporarily ban Muslims from entering the country. Critics saying that they believe it is unconstitutional. But there is a precedent for immigration restrictions that has happened many times in our country's history. In the late 1800s Asians were barred from entering the country or becoming citizens. In more recent times during the Iranian hostage crisis in the '70s, President Jimmy Carter banned Iranians from entering the country and forced thousands already here to leave the country and really there was not a lot of outcry across the nation. I mean there was pushback in some courts but ultimately they made it through.

[...]

MARTHA MACCALLUM: It's actually the early '20s. There is a 40 year period from the '20s to the early '60s where we had essentially a ban on anybody entering the country except for very small percentages. And then you have Jimmy Carter basically locking things down and saying absolutely no Iranians allowed in to the country. So why is this getting an uproar? [Fox News, America's Newsroom12/10/15]

Rush Limbaugh: Trump's Ban Has "Been Used Before," Pointing To Carter's Iranian Policy. During the December 9 edition of Premiere Radio Networks' The Rush Limbaugh Show, host Rush Limbaugh cited Jimmy Carter's Iranian restrictions to defend Trump's proposal, claiming, "it's been used before":

RUSH LIMBAUGH: I've got to remind you of something here, folks. The Jimmy Carter stuff that I just told you about. All of these statements that Jimmy Carter made were made in public, and the announcements that he made that he was gonna send Iranians home, Iranian students home, that they had to report to immigration, they had to confirm they were here legally, those who weren't were sent back. They put a moratorium on all Iranians being allowed in the country back in 1979. Carter did that publicly. He announced it in public, and he announced it proudly. Cookie has been scouring our archives and all of the other archives that are out there to try to find Carter audio. But she can't. And the reason is, the networks are not digging it up and playing it for anybody. The networks have it, is the point. 

There is video of Jimmy Carter making these announcements. ABC, CBS, NBC, the odds are, have video of Jimmy Carter, just as they do of Reagan and Nixon and all the way back to Kennedy, when television started, they've got it. They're just not interested in finding it. They're not interested in dredging it up and playing it for anybody. But it was made, these are not proclamations on a Friday night document dump where nobody was paying attention. Carter proudly announced these maneuvers in public. And the drive-bys, if they were doing their jobs, would be digging into their archives trying to find this. But it's not in their interests, because right now they're all trying to say that what Trump has proposed is unconstitutional, it's ugly. What Trump wants to do is dangerously ugly. It ignores the law, it ignores the Constitution, and it feeds into our worst impulses. It feeds into the worst aspects of who we are, just ugly. In fact, it's not, it's been used before. [Premiere Radio Networks, The Rush Limbaugh Show12/9/15]

Breitbart News: Trump's Ban "Similar" To Carter's Treatment Of Iranian Citizens. Breitbart News' Susan Berry cited President Jimmy Carter's restriction on Iranian citizens from obtaining US visas in response to the Iranian hostage crisis to defend Trump's plan, calling Trump's policy "similar to the 1979 policy adopted by Democratic President Jimmy Carter":

Is Donald Trump's conditional bar on Muslims' entry into the United States a shocking outrage, or just similar to the 1979 policy adopted by Democratic President Jimmy Carter?

As liberal media and the D.C. establishment pummel GOP frontrunner Trump for his plan to exclude foreign Muslims until officials get a solution to the Islamic jihad problem, few of the complainers are recognizing that Carter expelled Iranians from the country during the extended hostage crisis that was caused by the Islamic takeover of the U.S. embassy in Tehran.

In fact, Carter did much more in 1979 -- he signed an Executive Order allowing his deputies to make 50,000 Iranian students then living in the United States report to an immigration office.

[...]

In addition, Iranians entering the United States were forced to submit to extra border screening, and many Iranians' existing visas were cancelled. [Breitbart News, 12/9/15]

But Carter's Policy Applied To A Country's Citizens, Not To A Religion

Carter's Ban Focused On "Iranian Citizens," Not A Specific Religion. Carter's announcement of the Iranian visa ban in April 1980 specifically noted it was referring to "Iranian citizens," and no classification of anyone's religion as a basis for entry was mentioned:

JIMMY CARTER: Fourth, the Secretary of Treasury [State] and the Attorney General will invalidate all visas issued to Iranian citizens for future entry into the United States, effective today. We will not reissue visas, nor will we issue new visas, except for compelling and proven humanitarian reasons or where the national interest of our own country requires. This directive will be interpreted very strictly. [American Presidency Project, accessed 12/10/15]

Carter Administration Cited Religion As A Permitted Grounds For Entry If Religious Persecution Occurred, Not As A Religious Test For Banning US Entry. The Washington Post, when reporting on Carter's 1980 announcement, noted his administration would consider "religious or political persecution in Iran" as a possible exception to the visa ban. From The Washington Post:

State Department and immigration officials said yesterday that concern about religious or political persecution in Iran would be viewed as a valid humanitarian reason for revalidating the visas of those now being barred from the United States. [The Washington Post4/9/80]

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