Abhorrent, Not Unconstitutional: Trump’s Would-Be Muslim Ban

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Abhorrent, Not Unconstitutional: Trump’s Would-Be Muslim Ban

Published in the Daily Record January 8, 2016

There is no question that Donald Trump’s plan to cut off all entry to the country by Muslims, immigrants and visitors alike, is widely and justly felt to be contrary to this country’s values. But I have heard it said that such a ban would also be unconstitutional or illegal. I’m far from convinced. To be abhorrent is not necessarily to be illegitimate. Look at Guantanamo, legal enough, apparently, no matter how much it affronts our values. The proposed ban on entry by Muslims is in a different category from Guantanamo, to be sure, because Guantanamo is a fact, while the ban will probably never happen. But speaking of it strictly as an academic exercise, the ban looks at least as lawful as Guantanamo.

I’ve heard it said that the ban would violate the First Amendment. Why? The First Amendment forbids Congress to make any law respecting establishment of religion and instead guarantees the free exercise thereof.  Does the proposed ban really do either?

We know what an established church is: a church supported by state funding and/or given some preferred place in the national laws, the way the Church of England is in Britain and the Greek Orthodox Church is in Greece. Trump’s ban wouldn’t fund any faith with public money. And the closest it would come to giving any faith a special place in our laws would be by a very indirect route: by predictably diminishing the number of Muslim worshippers who would otherwise join communities across the nation, while not similarly diminishing the number of adherents of other faiths. Since the legislation and regulations that would be called for here would obviously be aimed at national security, a very different goal, it is a safe bet that an argument under the Establishment Clause would have a tough time. In court tests, complaints about incidental effects secondary to legislation to protect the public seldom  succeed.

What about Free Exercise? Well, there would be no direct impact upon the ability of Muslims already in this country to worship freely. The impact would fall only upon non-citizens abroad. They couldn’t come here to worship or evangelize. But foreigners in a foreign land are a group to whom the guarantees of the First Amendment would not ordinarily extend. The cases giving any Constitutional guarantee of rights an extraterritorial application are few and far between. In the Guantanamo cases, the Supreme Court did hold that due process applied on what was technically Cuban soil which was totally under U.S. control. But the U.S. has no control over most places in the world. Where U.S. control lapses and the parties involved are not citizens or even legal immigrants, U.S. rights do not ordinarily enter.[1]

Professor Laurence Tribe has also been quoted as saying that the program would violate the spirit of Article VI of the Constitution which says that no religious test shall be required for any public office. This remark had me scratching my head. Being allowed into the country is quite different from being allowed to hold public office.

Meanwhile, we must acknowledge that ordinarily U.S. control over the granting or the denial of immigration benefits is ordinarily plenary. And religion seems to be almost deliberately left out of the statutory description of forbidden bases for denying immigration: “[N]o person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” And we are even as I write in the process of crafting a change in our non-immigrant visa policy that amounts to a new screen for Islamic extremism. Our so-called Visa Waiver Program currently allows passport-holders from many countries in the developed world to enter the U.S. as visitors with few formalities. That program is being tweaked to diminish or deny its benefits to those who have recently traveled to countries in the Middle East believed to be hotbeds of Islamic radicalization. In effect that travel is being used as a sort of proxy for a sort of Islam. Call these changes Trump Lite, a way of discriminating in providing immigration benefits based on feared adherence to a kind of Islam. In any case, they are permitted by law

That’s about as close as we have ever come, so far as I am aware, to any kind of classification of persons based on religion, and it’s a pretty weak kind of classification. Of course, here I venture into the taxonomy of a religion that is not my own, so I must be careful. But my understanding is that the forces the Obama administration is mainly concerned to exclude are not members of a particular sect; certainly, even if they are all or mostly Sunni, we are not looking to exclude the vast majority of Sunnis, only those whose religious views impel them toward militant enmity against the West.  And we do that only because of the enmity, not the religious views tied up with that enmity. And we do it only as a national security measure, because that enmity has wrought murderous attacks it is only rational to try to prevent. Legitimate national security and law enforcement goals have in the past justified certain discriminations against religion, even as to individuals who can claim the protection of the Bill of Rights, like Native Americans seeking to use peyote in their religious observances.

Moreover, though religion and nationality are not the same thing, we also have a long and strong and currently extant tradition of classifying people for immigration benefits based on their nationality. To this day, notwithstanding the general language I quoted above, your chances of being allowed to immigrate to the United States vary greatly based on what country you currently call home. They have ever since the Chinese Exclusion Act of 1882. It seems that there is now a strong feeling expressed by law professors and Supreme Court justices that that law was unconstitutional. But I have never seen a convincing arguments why, let alone how that arguments reconcile with current practice.

Another argument I have heard is that the International Covenant on Political and Civil Rights, a treaty to which the U.S. is signatory, forbids exclusion on the basis of religion. I’ve read the treaty, however, and while there is much there which protects the religious rights of persons within our borders, and while it would prohibit discrimination based on religion in determining who could exit, it says nothing interfering with the ability of signatories to impose religious tests for who may enter.

So yes, it’s loathsome demagoguery to deny people entry because of their religious faith, especially when many are fleeing violence at the hands of the very extremists we would lump them with. It won’t likely happen. But it’s hard to see where it’s unconstitutional or illegal.

[1] Professor Anna Su of the University of Toronto has sounded an interesting contrary note, suggesting that the free speech guarantees of the First Amendment do or should have extraterritorial application when U.S. public institutions control what happens abroad. Speech Beyond Borders: Extraterritoriality and the First Amendment, 67 Vand. L. Rev. 1373 (2014). But exclusion is such an indirect form of control of worship it hardly merits the description.

Copyright (c) Jack L. B. Gohn

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