Trump called earlier this week for a “total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on.”
Some mistakenly believe such a policy would be unconstitutional or illegal. Just to be clear, there are no clear-cut constitutional protections for immigrants/visitors that would prevent this. So if a hypothetical President Trump was to issue an executive order barring entry to all visitors or immigrants who are Muslim, such an order would likely be legal. Prez Trump could also likewise bar entry to people he deemed disgusting, weak, low energy or whatever the heck else he wanted. This might contravene treaties with other nations, or bilateral agreements, but there’s nothing clearly “unconstitutional” about it.
I’ve pointed out before that our country’s immigration laws have been heavily based on race in the past (and they still are to some extent). The Naturalization Act of 1790, limited immigration to "free white persons of good character" (no Southern or Eastern Europeans need apply). The Chinese exclusion act of 1882 did exactly what it's name suggests. The National Origins Formula of 1921 sought to limit immigration from countries based on the existing ethnic makeup of the US. The Immigration act of 1924, which sought to limit immigration from Africa, southern/eastern Europe was also known (correctly) as the Asian Exclusion Act, it changed the basis for the ethnic determinations to the census of 1890 to skew the numbers towards northern europe.
Peter Spiro analyses the legal issues in today’s NY Times and concludes Trump’s Anti-Muslim Plan Is Awful. And Constitutional:
As the [supreme] court observed in its 1977 decision in Fiallo v. Bell, “In the exercise of its broad power over immigration and naturalization, Congress regularly makes rules that would be unacceptable if applied to citizens.”
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 “plenary power” 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.
Unlike other bygone constitutional curiosities that offend our contemporary sensibilities, the Chinese Exclusion case has never been overturned.
Spiro goes on to note that the internment of Japanese-Americans was upheld by the Supreme Court in Korematsu v. US. That decision too was never overturned. Many legal experts agree with Spiro, a few others believe the court would find a ban on Muslim visitors violates the spirit of the constitution or rely on international law and treaties to strike down such an order.
Muslim citizens could not be refused entry to the US. Though Trump could follow established tradition and order a drone strike to kill them. I suspect Trump was briefed on the legal distinction, which is why he clarified that his ban would not apply to citizens. He also seems to have read the mood among GOP voters correctly, since 65% say they would support such a ban. 52% of them “strongly support” the proposal.
This is the second time Trump has invoked a well-respected president to justify a regressive policy. He invoked Ike’s Operation Wetback to condone his plan to forcibly deport millions of undocumented immigrants. And he’s now invoked FDR’s internment of Japanese-Americans to justify this proposal. What’s next, advocating bonded labor because George Washington owned a couple of hundred slaves?