Can A President Trump Legally Ban Muslims?

As any reader on Redstate who has read any of my entries is aware, this writer is not particularly a fan of Donald Trump.  Leaving those feelings aside, the knee-jerk reaction to Trump’s proposal to banning Muslims from entering the country has descended into heated rhetoric on both sides.  There is an appeal for outright rejection of the idea; it does not seem to square with our ideals as a nation.

But, if one reads any rational article on the idea, one is left with the unmistakable impression that from the legal standpoint, the jury is out.  Current immigration policy dictates that officials not inquire of a potential immigrant’s religion or religious background.  However, that is an administration policy directive that could be undone by a future administration.  Some argue that First Amendment’s religion clauses would apply, but that is patently false.  They may apply to Muslims already in the United States, but no potential refugee, visa applicant, or would-be immigrant is protected by the Constitution’s First Amendment.

And American history- right or wrong- has on occasion specifically excluded certain classes of people.  The Chinese Exclusion Act is one such law which kept Chinese immigrants out of the country for years.  More recently, during World War II Franklin Roosevelt authorized the internment of Japanese-Americans and the Supreme Court upheld that action in the Korematsu vs. United States decision.  Lest anyone forget, Korematsu has never been overturned by the Supreme Court and remains the law of the land, albeit by judicial fiat.  Whether we today want to go that route is a policy discussion, not a legal one.  Some scholars argue that the situation is different; we were in a declared state of war with Japan at the time.  Perhaps that is a fine argument before the Supreme Court in a hypothetical future case, but totally inconsequential to the discussion now.

Further, courts have upheld the denial of visas to known Marxists and even to unmarried couples.  They have never struck down an immigration classification based on race or ethnicity.  Hence, why would they strike down a classification based on religion?  The scholars who hold the opposite view generally trot out the slippery slope argument: If we ban Muslims, what’s to stop us from granting visas to blacks, or Asians?  Again, legally the answer is nothing.

There is even historical evidence that banning someone from entering the United States based on religion is legal and Constitutional.  In 1891, Congress passed a law denying entry to the United States for anyone who practiced polygamy.  The law was obviously directed at Mormons.  In 1907, they amended the law to prohibit the entry of anyone who even believed in the practice of polygamy (in effect, a not-well-thought-out mind crime).  The latter law was later repealed, but the 1891 law remains on the books.

Like most utterances by Trump this proposal was reactionary to the weak-kneed response to Obama’s Oval Office address to the nation.  It likely was not well thought out because he has since listed some exceptions to the proposed ban.  Further, he has stated that the ban would be in effect until “we find out what is going on.”  In that regard, he is not much off the mark from many in Congress opposed to Obama’s proposed resettlement of Syrian refugees in the United States.  In stark language, he expressed what others were pussy-footing around.  Some have argued that Trump is becoming a great recruitment tool for ISIS and Islamic terrorists.  It is great to know that our policy leaders are in the heads of ISIS and understand them.  Unfortunately, not too long ago they were a “JV team,” so these “leaders” are not exactly reliable.  Regardless, a terrorist does not need Donald Trump or anyone else to justify their acts.

Whether we want to go down that road and ban a member of a religion from entering the United States is a whole other question divorced from the legality of the proposal.  There is certainly legal precedent for such an action, including one upheld by the United States Supreme Court and never reversed.  Other changes such as the polygamy ban and the Chinese Exclusion Act were rescinded through the political process and legislative action.  The reality of the situation is that this is once again simply rhetoric from Trump in a highly-charged political atmosphere.  While too much time is spent attacking the proposal, the very real threat of terrorism is present every day.  It needs to remembered: the United States needs to be vigilant 100% of the time; the terrorist needs to be successful only once.