I’m actually not so sure how un-American it is. The Chinese Exclusion Act ran from the 1880s to the 1940s. It was generally upheld by the courts as constitutional (and, interestingly enough, opposed by Republicans and supported by labor).
The Immigration Act of 1924 essentially banned Arabs as well as other (non-Chinese) Asians. FDR invoked that Act to refuse entry to Jews during the late 1930s.
Carter’s ban on Iranian immigration as part of his effort to end the hostage crisis was also grounded in law.
There are a number of Supreme Court decisions that give wide latitude to the government in deciding immigration policy and upholding restrictions that would certainly in any other context violate due process restrictions on government action.
In other words, starting with Chae Chan Ping v. US in 1890 and continuing through US vs Ju Toy 20 years later, there’s a string of case law that says, in effect, that there’s no due process right associated with entry to the United States (as distinct from the due process rights associated with deportation proceedings). Kwong Hai Chew v. Colding in 1953 was consistent with this view as well. ("… ‘exclusion’ means preventing someone from entering the United States who is actually outside of the United States or is treated as being so.")
So with agreement (from me, in my view) that any “Muslim” ban is despicable, I am interested in any discussion of whether it could, if applied, survive a constitutional challenge.
The only part that comes to mind is the part about the First Amendment in which Congress cannot promote or hinder the expression of religion, but if this is applied to immigration, I think it would be hard for the First Amendment to strike it down.
I don’t question for an instant that the ban would be violative of the First Amendment if it were applied to people inside the United States, even if they were not citizens or lawful permanent residents.
I’m suggesting that the Constitutional guarantee does not apply to immigration policy.
We don’t just have a history of immigration restrictions for other protected classes. In the 1890s, we enacted an immigration ban on Mormons.
I don’t know what constitutional challenge would logically be mounted against this. If it was applied to US citizens (some discussion of that early on), there’s a clear issue. I can also imagine an Establishment Clause problem if, for example, an Administration enacted a “christian nation” policy and declared a ban on immigration on all non-christian aliens.
But if this is characterized a ban on aliens from Muslim-majority countries, then (while I agree it’s despicable) it strikes me as almost certainly constitutional.
Remember, with a ban on Muslims entering the country, we’re not just talking about immigration here, but tourism. I don’t know how that affects the legal argument but it makes the ban about as practical as a roasting pan made of ice.
Does it matter if the ban is not specifically on Muslims, but on applicants from majority-Muslim countries? Extending Carter’s ban on Iranian immigrants to other countries, IOW.
The constitution doesn’t protect non-citizens, so there’s nothing in the constitution from stopping us from diverting all incoming flights directly to the Soylent factory.
EDIT: Just want to make it clear that I’m not advocating this form of border control.
Yeah, IANAL but everything I’ve seen on the subject indicates that it’s absolutely not true that non-US citizens in the US don’t have constitutional rights.
Here’s a pamphlet from the National Lawyers Guild/Chicago explaining the constitutional rights of non-citizens engaging in protests, for example.
He or she is hopefully very unsure, because it’s not accurate. The Constitution doesn’t seem to apply in full measure to immigrants seeking admission; it certainly applies to non-citizens within our borders.
My understanding is that it protects non-citizens to some degree, once they are here in the US. It doesn’t do anything for non-citizens outside of the US. I gather that, for purposes of Constitutional analysis, until you have cleared Customs & Immigration, you are not yet in the US.
ETA: Ninja’d by someone with much better knowledge than I.
A country has a duty to protect its citizens, in some cases there has to be a restriction on immigrants from countries that can be seen as a threat. There is a extremist threat within Islam that can remain hidden until a terrorist attack is committed. At present Islam is not actively campaigning against the terrorist groups within Islam so restrictions should be put in place to filter Muslims entering western countries that have been proclaimed legitimate targets by Islamist terrorists
Seeing as how this is a discussion about immigration policy I thought it was self evident I was talking about how the Constitution applies outside the borders of the US. Which is to say, not at all. In other words, the Constitution applies only within the boundaries of the US.
Sure, but “Islam” is not a country, so I’m not seeing how your analogy applies.
Nation-states have a very highly developed system of how to interact with other nation-states, and what constitutes enmitry, neutrality, etc., between nation-states. The issues of how nation-states interact with much more nebulous non-state entities, including global aspects of human culture such as religion, are much less well defined.
[QUOTE=T.M.]
At present Islam is not actively campaigning against the terrorist groups within Islam
[/QUOTE]
What on earth does that even mean? You do realize that “Islam” is not a specific religious organization or institution, right? It’s a very diverse and widespread religious identity which has no official structure for “campaigning” of any kind.
That said, of course, the vast majority of individual Muslims and Muslim communities are opposed to terrorist groups within Islam.
But yeah, as Bricker notes none of this is relevant to the question of whether there are any Constitutional issues in denying Muslim non-citizens entry to the US.
Anyway, given that in the past several years all the radical-Islamist terror attacks within the US have been perpetrated by US citizens and/or long-term US legal residents, I’m very skeptical about the claim that banning all entry by Muslim non-citizens will have any appreciable effect in terms of “protecting” people in the US.
What is Trump going to do about White Supremacist terrorism? Foreign muslims are not the only perpetrators of terror. There might not be another 9/11, but I am 100% sure Dylann Roof will not be the last white nationalist to commit an act of terror.
Once there, Mormons continued to clash with regional and federal governments throughout the 19th century, but the most blatant rejection of them as a people came in 1879, when U.S. Secretary of State William M. Evarts asked President Rutherford B. Hayes to limit immigration of Mormon converts from abroad, whom he described as “prospective law-breakers” who engaged in polygamy upon reaching Utah and who were “drawn mainly from the ignorant classes, who are easily influenced by the double appeal to their passions and their poverty.”
The recommendation ultimately couldn’t cobble together a legal justification for excluding Mormon immigrants, but implicit damage had already been done.
What on earth does that even mean? You do realize that “Islam” is not a specific religious organization or institution, right? It’s a very diverse and widespread religious identity which has no official structure for “campaigning” of any kind.