{"id":855,"date":"2015-12-09T10:43:11","date_gmt":"2015-12-09T15:43:11","guid":{"rendered":"https:\/\/www2.law.temple.edu\/voices\/?p=855"},"modified":"2016-07-28T11:54:10","modified_gmt":"2016-07-28T15:54:10","slug":"trumps-anti-muslim-plan-is-awful-and-constitutional","status":"publish","type":"post","link":"https:\/\/www2.law.temple.edu\/voices\/trumps-anti-muslim-plan-is-awful-and-constitutional\/","title":{"rendered":"Trump\u2019s Anti-Muslim Plan Is Awful. And Constitutional."},"content":{"rendered":"

Donald J. Trump’s reprehensible call to bar Muslim immigrants from entering the United States tracks an exam question I\u2019ve been giving my immigration law students since Sept. 11. Would such a proposal be constitutional? The answer is not what you might think \u2014 but it also raises the issue of what, exactly, we mean when we say something is \u201cconstitutional\u201d in the first place.<\/p>\n

In the ordinary, non-immigration world of constitutional law, the Trump scheme would be blatantly unconstitutional, a clear violation of both equal protection and religious freedom (he had originally called for barring American Muslims living abroad from re-entering the country as well; he has since dropped that clearly unconstitutional notion). But under a line of rulings from the Supreme Court dating back more than a century, that\u2019s irrelevant. As the court observed in its 1977 decision in Fiallo v. Bell, \u201cIn the exercise of its broad power over immigration and naturalization, Congress regularly makes rules that would be unacceptable if applied to citizens.\u201d<\/p>\n

The court has given the political branches the judicial equivalent of a blank check to regulate immigration as they see fit. This posture of extreme deference is known as the \u201cplenary power\u201d doctrine. It dates back to the 1889 decision in the Chinese Exclusion case, in which the court upheld the exclusion of Chinese laborers based on their nationality.<\/p>\n

\n

“Indeed, contrary to the conventional understanding, President Trump could implement the scheme on his own, without Congress\u2019s approval.”<\/strong><\/em><\/p>\n<\/blockquote>\n

Unlike other bygone constitutional curiosities that offend our contemporary sensibilities, the Chinese Exclusion case has never been overturned. More recent decisions have upheld discrimination against immigrants based on gender and illegitimacy that would never have survived equal protection scrutiny in the domestic context. Likewise, courts have rejected the assertion of First Amendment free speech protections by noncitizens.<\/p>\n

Nor has the Supreme Court ever struck down an immigration classification, even ones based on race. As late as 1965, a federal appeals court upheld a measure that counted a Brazilian citizen of Japanese descent as Asian for the purposes of immigration quotas.<\/p>\n

In the context of noncitizens seeking initial entry into the United States, due process protections don\u2019t apply, either. This past June, the court upheld the denial of a visa for the spouse of an American citizen based on the government\u2019s say-so, with no supporting evidence.<\/p>\n

The courts have justified this constitutional exceptionalism on the grounds that immigration law implicates foreign relations and national security \u2014 even in the absence of a specific, plausible foreign policy rationale. The 1977 Fiallo case, for instance, involved a father seeking the admission of his out-of-wedlock son from the French West Indies \u2014 hardly the stuff of national interest.<\/p>\n

\n

Related: Professor Jan Ting writes that hysteria over Donald Trump’s immigration proposal is unwarranted.<\/a><\/p>\n<\/div>\n

Indeed, contrary to the conventional understanding, President Trump could implement the scheme on his own, without Congress\u2019s approval. The Immigration and Nationality Act gives the president the authority to suspend the entry of \u201cany class of aliens\u201d on his finding that their entry would be \u201cdetrimental to the interests of the United States.\u201d President Obama has used this to the better end of excluding serious human rights violators.<\/p>\n

But here\u2019s the interesting thing: Just because Mr. Trump\u2019s proposal has a judicial pedigree, that doesn\u2019t make it \u201cconstitutional\u201d in a broader sense. The Constitution and the courts are not synonymous, nor do the courts have a monopoly on constitutional interpretation. Politicians, the legal community, scholars and the public at large are all a part of our continuing constitutional conversation. Clear popular consensus can establish constitutional norms, with or without the courts.<\/p>\n

The leading example comes out of the internment of Japanese-Americans during World War II. The Supreme Court upheld the internment in its 1944 Korematsu decision, and that ruling has never been judicially reversed. Technically, it remains good law. But it has been effectively overridden by other actors, and in the court of public opinion. A formal apology and payment of reparations, enacted by Congress and signed into law by Ronald Reagan in 1988, supplies the formal evidence. Korematsu continues to provoke popular shame.<\/p>\n

\n

“In the ordinary, non-immigration world of constitutional law, the Trump scheme would be blatantly unconstitutional, a clear violation of both equal protection and religious freedom.”<\/strong><\/em><\/p>\n<\/blockquote>\n

We may be seeing that same shame at work today. Mr. Trump\u2019s plan has triggered an uproar across the partisan divide. Perhaps a religion-based immigration bar may be consistent with court-made doctrine. But it doesn\u2019t reflect our deeper, broadly assimilated understandings of the Constitution.<\/p>\n

The fact that many Americans seem to assume Mr. Trump\u2019s proposal is unconstitutional means that the courts need to catch up with the public on immigration. We don\u2019t tolerate discrimination on the basis of national origin in hiring, housing or public accommodation. But discrimination on the basis of nationality, often capricious, even illogical, is a central feature of immigration law.<\/p>\n

If you were born in the Philippines and are seeking to join a sibling who has American citizenship, for example, your wait in line is 10 years longer than almost everyone else\u2019s. There may be good reasons for some of these different approaches. But the Supreme Court shouldn\u2019t be rubber-stamping them.<\/p>\n

The court won\u2019t get to rule on the Trump scheme. It now needs to take the cue from the rest of us and bring its reading of the Constitution in line with the public\u2019s own, more progressive constitutional norms.<\/p>\n

\n

This blog post originally appeared as an op-ed in the New York Times<\/a>.\u00a0<\/em><\/p>\n

Image credit: Gage Skidmore (Flickr)<\/a><\/i><\/p>\n","protected":false},"excerpt":{"rendered":"

Donald J. Trump’s reprehensible call to bar Muslim immigrants from entering the United States tracks an exam question I\u2019ve been giving my immigration law students since Sept. 11. Would such a proposal be constitutional? The answer is not what you might think \u2014 but it also raises the issue of what, exactly, we mean when we say something is \u201cconstitutional\u201d in the first place. In the ordinary, non-immigration world of constitutional law, the Trump scheme would be blatantly unconstitutional, a clear violation of both equal protection and religious freedom (he had originally called for barring American Muslims living abroad from re-entering the country as well; he has since dropped that clearly unconstitutional notion). But under a line of rulings from the Supreme Court dating back more than a century, that\u2019s irrelevant. As the court observed in its 1977 decision in Fiallo v. Bell, \u201cIn the exercise of its broad power over immigration and naturalization, Congress regularly makes rules that would be unacceptable if applied to citizens.\u201d The court has given the political branches the judicial …<\/p>\n","protected":false},"author":3,"featured_media":856,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[8],"tags":[226,189],"audience":[],"coauthors":[13],"class_list":["post-855","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-faculty-commentary","tag-donald-trump","tag-immigration"],"yoast_head":"\r\nTrump\u2019s Anti-Muslim Plan Is Awful. 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In the ordinary, non-immigration world of constitutional law, the Trump scheme would be blatantly unconstitutional, a clear violation of both equal protection and religious freedom (he had originally called for barring American Muslims living abroad from re-entering the country as well; he has since dropped that clearly unconstitutional notion). But under a line of rulings from the Supreme Court dating back more than a century, that\u2019s irrelevant. As the court observed in its 1977 decision in Fiallo v. 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