Donald Trump’s Muslim Ban: Unravelling Our American Immigration Jurisprudence

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The proposal by Donald Trump to “ban” Muslims from entering the United States was met with derision, revulsion, skepticism, not-to-mention staunch approval by many of his supporters. The scary thing: some experts saw it as being not so clear cut, not so clearly unconstitutional or at odds with our American immigration jurisprudence. Such a proposal brings to light in harsh and unflattering ways, the old and not-so-old cases. These cases still form a part of our jurisprudential catalogue. They are still “good law.” While some experts immediately mocked Trump’s proposal and declared such a “ban” patently unconstitutional, others were not so sure. On Trump’s part, the wholesale “ban” was walked back a bit, articulated in different ways by the candidate (now Republican nominee) in the days following his announcement. A close reading of the case law shows just how complex it will be to analyze such a seemingly straightforward “ban.” Given the Supreme Court’s interpretation of the immigration laws, including executive, legislative and judicial power in this area, it is not a clear-cut question. More importantly, it may reveal something inherently flawed about American immigration jurisprudence.

When viewed against the brutal history of American immigration enforcement a Muslim ban may not appear as far-fetched. From the 1840s when people who were against Irish immigrants burned down a convent in Boston and rioted against Irish Catholics in Philadelphia. To the Chinese Exclusion Act of 1882, one of our nation’s first laws designed to keep out a class of persons. To the laws of the 1920s, during the “Red Scare,” premised on anti-Communism where thousands of foreigners were subjected to arrest and worse. To the internment in the 1940s of more than 100,000 Americans of Japanese descent. To the so-called “Operation Wetback” of the 1950s where thousands of Mexican immigrants were rounded up, targeted for deportation and physically removed.

The starting place for any discussion on banning any group would have to be the Chinese Exclusion Act case. Before that case (decided in 1889) there were limited laws in effect but for the most part there was unfettered immigration without any “ban” on any particular ethnic group. Mr. Chan Ping complied with the law as it existed at the time, and obtained a re-entry permit before departing the U.S. to go back to China on a temporary visit to visit his family. However, upon his attempted return he was told that the re-entry permit was invalidated retroactively due to an amendment to the act excluding all Chinese whether they had been issued the permit or not. In upholding the law, the Supreme Court reasoned that Congress had virtually unlimited power to exclude noncitizens from entering the U.S, since in the words of the Court, “That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy.” According to Justice Field, the power to exclude foreigners was “an incident of sovereignty.” Although the Court did not point to any particular part of the Constitution, Justice Field wrote that it was part of the “sovereign powers delegated by the constitution” and thus could be exercised, or taken away, at any time.

Admittedly, the Chinese Exclusion Act represents the starting point and not the ending point or more to the point the current status of the so-called “plenary power doctrine.” As we teach in immigration law class in law schools, the doctrine has been “chipped away” over the years in subtle and not-so-subtle ways. Importantly, we know now there are due process rights at least for persons here in the U.S. in what we now call removal proceedings. We also know that certain types of “retroactive” legislation will be declared invalid and that Congress does not have plenary power at least with regard to persons who are seeking certain types of immigration relief. However when it comes to the rights of those currently outside the U.S. and seeking to enter there is one thing we know for certain: their rights are seriously curtailed and their options this severely limited.

Take, for instance, the case of Kleindienst v. Mandel in 1972, where American citizens had invited a Belgian Marxist scholar to speak at academic conferences in the U.S. The citizens asserted that their First Amendment rights were violated by the failure to grant a waiver to Mr. Mandel, because at the time the Immigration and Nationality Act of 1952 provided that aliens who advocated communism or wrote about communism would be excluded from admission but subject to a waiver. In siding with the government, the Supreme Court held that the citizen plaintiffs’ First Amendment rights were not infringed, citing the Chinese Exclusion Act case of 1889. More than that, the Supreme Court found that the Attorney General’s decision not to waive the bar to entry, was not subject to balancing and review, in other words beyond the protection of the First Amendment all together.

Kleindienst is a relatively recent case in terms of Supreme Court jurisprudence, and it should give one pause that as recently as 1972 we have the Supreme Court rejecting a First Amendment claim on behalf of a person seeking entry into the U.S. based on their political beliefs. One possible argument is that the high court in Kleindienst was careful to mention that the bar to entry represented in the statute was “facially legitimate” and “bona fide,” a conclusion that the Supreme Court or any court for that matter hopefully would not be willing to make with respect to Donald Trump’s outrageous proposal.

In Harisiades v. Shaughnessy, the Alien Registration Act of 1940 authorized the deportation of a legally resident alien because of membership in the Communist party, even if the membership had terminated before the Act. The Supreme Court Court in Harisiades held that such a rule was within Congressional power and did not violate the Constitution. The Court specifically ruled that such a law did not violate due process, First Amendment, or the prohibition against ex post facto laws. The Court also saw that the power to deport was exclusively entrusted to the political branches of government so as to be “largely immune” from judicial interference or even inquiry. The decision on 1952 arguably may be decided differently today but it stands as a stark reminder that the high court has time and time again upheld the Executive’s authority to decide who to deport and, even more expansively, who to exclude from the United States.

In a more recent case, from 1999, Reno v. American-Arab Anti-Discrimination Committee, the Supreme Court again wrestled with a First Amendment claim, this time on behalf of resident aliens who argued they were subject to “selective deportation” because of their affiliations with a politically unpopular group. Justice Scalia writing for the majority rejected their argument, reasoning that “The Executive should not have to disclose its ‘real’ reasons for deeming nationals of a particular country a special threat--or indeed for simply wishing to antagonize a particular foreign country by focusing on that country’s nationals. . . .” While Reno v. AADC was not able barring entry to a certain class of persons, the language of the late Justice Scalia certainly suggests a position that the Executive Branch should be given wide latitude in determining who would or would not pose a “threat” to the U.S. According to Justice Scalia the “threat” apparently did not even have to be a “real” one. On a positive note, the opinion of the court left the door open for certain claims as follows:  “we need not rule out the possibility of a rare case in which the alleged basis of discrimination is so outrageous that the foregoing considerations can be overcome.”  The Muslim ban again seems “so outrageous” to be almost the paradigm case that Scalia may had in mind, although his decision related to selective deportation once persons were in the U.S. and not necessarily to selective exclusion for persons at the border before entry.

In all of these immigration cases in not one has the Supreme Court ever struck down an immigration classification which was based on one’s race, religion or ideology. To the contrary, as all-too-evident from the Chinese Exclusion Act case and its storied progeny, the high court has been all-too-ready to defer to classifications mandated by Congress and to their subsequent implementation by the Executive Branch.

It is really interesting to consider how a decision this summer in the pending U.S. v. Texas case might impact Trump’s proposed Muslim ban. If the Supreme Court were perhaps to rule against President Obama and reign in executive power by finding that the President in instituting expanded DACA and DAPA had exceeded his authority, then that decision might have the effect of reigning a future President Trump. Paradoxically maybe Trump should be rooting for DACA and potential DAPA recipients, lest his authority be curtailed in a future possible Trump presidency. Maybe we should hope for a decision that gives more credence to following administrative rules in the hopes that even if a President Trump overreaches he too can be reigned in?

In another recent case, Zivotofsky v. Kerry, in 2015, the Jerusalem passport case, the Supreme Court sided with the Executive and against Congress. The parents of a twelve year-old boy sought to have the State Department allow his passport to read “Jerusalem, Israel” rather than "Jerusalem", as his place of birth. The State Department rejected the request. Congress passed a law to require the State Department to list people born in Jerusalem as being born in Israel.  The Court held that the President had exclusive power over recognition of foreign states. Therefore, Congress could not require the State Department to consider Jerusalem as a part of Israel. The separation of powers dispute was resolved squarely in the President’s camp and against Congressional interference.

The Zivotofsky case could be seized upon by a President Trump in the support of his presidential powers over foreign affairs and even in the face of a hostile Congress. Fortunately Zivotofsky does not address immigration but instead the power of the President over the recognition of sovereign states and thus would be distinguishable. Nevertheless, the troubling trajectory of all these cases is that there is a real hesitancy and a great deference applied not only to Congressional power but presidential authority in the context of immigration.

Therefore, it is not the case that someone could point squarely to one case or another which would show clearly and beyond a doubt that the ban on Muslims from entering the U.S. is patently unconstitutional. Rather, one would have to look outside the right to entry and deportation cases and determine by analogy what level of scrutiny would be applied to a clearly discriminatory immigration classification which was so blatantly discriminatory because based on a person’s religion. The question thus becomes what level of scrutiny would the Supreme Court apply to the proposed Muslim ban, to people seeking to enter the U.S. and who are not actually here on U.S. soil.

In answering this question, the problem becomes whether one could apply equal protection, the First Amendment’s freedom of religion, or some other Constitutional protection extraterritorially. A very distant proposition. Were the Constitution able to even apply then one might rely on cases like Graham v. Richardson, where the Supreme Court held the government to strict scrutiny since an alien classification was disadvantaging legal aliens and favor citizens in terms of welfare benefits. One might argue that the heightened rational basis or intermediate basis scrutiny of Plyler v. Doe should be applied since in that case the Supreme Court struck down Texas’ attempt to deny funding for primary and secondary education to undocumented immigrant children. But again Graham and Plyler were not entry cases and they involved immigrants who were here physically in the United States and not seeking entry.

This distinction unfortunately is crucial. The Supreme Court has rarely held the Constitution to be applied extraterritorially. Application of our laws abroad is severely limited and usually to cases involving for example the Alien Tort Claims Act, which allows expressly for the reach of U.S. laws abroad in certain special cases.  It has also been held that U.S. citizens are subject to constitutional protections if abroad, such as in Reid v. Covert, holding that American civilians outside the territorial jurisdiction of the U.S. cannot be tried by a U.S. military tribunal. In Rasul v. Bush, the Supreme Court established that U.S. courts do have authority to decide whether foreign nationals held in Guantanamo Bay were wrongfully imprisoned.  Unfortunately a close reading of Rasul v. Bush reveals that the court was not making a wholesale application of constitutional protections to non-citizens but only answered the “narrow question” whether courts had jurisdiction under habeas corpus to hear their claims.  As Jordan Paust, the renown international legal scholar has written, the “relevant law” which must be addressed during habeas review should include “constitutionally sound extraterritorial laws of the United States, which in turn necessarily include treaties of the United States and customary international law.

Despite the limitations of Rasul v. Bush, it might be the best starting place. In another important landmark case, Boudmediene v. Bush, from 2008, the Supreme Court again came down in favor of habeas jurisdiction for Guantanamo detainees. In that decision, the Supreme Court noted that “[t]o hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say ‘what the law is.’” Clearly, therefore, the high court is not willing to wholly and completely cede to the President free reign in all cases where constitutional violations are alleged just because non-citizens are located outside the U.S. and not within its borders.

In United States v. Verdugo-Urquidez, the Supreme Court held that the Fourth Amendment protection against unreasonable searches and seizures did not apply to property owned by a nonresident alien located in a foreign country. In so reasoning, however, the court suggested that while the Fourth Amendment was designed to protect “the people” of the U.S., other constitutional protections were not so limited, and the Fifth and Sixth Amendment were may be more broadly construed to protect the accused in a criminal case. Unhelpfully, the Supreme Court in Verdugo-Urquidez cited a World War II era case, Johnson v. Eisentrager for the proposition that “the claim that extraterritorial aliens are entitled to rights under the Fifth Amendment -- which speaks in the relatively universal term of "person" -- has been emphatically rejected.” But Eisentrager is wholly distinguishable because it involved German war criminals and not immigrants seeking entry into the U.S. who are discriminated against based upon their particular religion.

Thus, the courts would have to “make new law” and find Trump’s ban invalid on same appropriate basis as applied to persons located outside the U.S. either as a violation of due process, equal protection, First Amendment or on some other ground – and this is the important point – this is something the courts have not done before. This question truly would require the unravelling of our American immigration jurisprudence.

This post originally appeared on Law Professor Blogs © 2014-2016 by Law Professor Blogs, LLC. All rights reserved. Reprinted with permission.


About The Author

Geoffrey A. Hoffman Geoffrey A. Hoffman is Clinical Associate Professor and Director; Houston Law Center Immigration Clinic.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.