# Disgusting and Un-American, But Is A "Muslim Ban" Unconstitutional? **URL:** \ **Category:** Great Debates\ **Created:** [December 22, 2016, 3:09pm UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372 "2016-12-22T15:09:52Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [December 22, 2016, 5:33pm UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/21 "2016-12-22T17:33:34Z")
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, …” The question, as I apprehend it, is whether or not barring any non-citizen who practices a specific religion from entering the country violates this clause. That is, by doing so are we engaging in an “establishment of religion”, or are we “prohibiting the free exercise” of the specific religion in question in the United States. In looking at the constitutional law on this subject, one might start by looking at the examples **Bricker** cited. However, I will point out that the old exclusion laws were decided at a time during which the U.S. was generally accepting of such behavior (see _Korematsu_ for an example of application of anti-Asian discrimination to citizens). We are now not so happy in general as a country about such things (see for example the issuance of redress payments to interned Japanese-Americans). However, it should be noted that there have been no cases which have overturned the various exclusion holdings, so they are the only actual “law” we have to appeal to in that area. But they may be red herrings anyway; if I was attacking the concept, I would do so not by looking at anti-immigrant case law, but rather by looking for precedent in the First Amendment religion cases. It’s probably not fruitful either, but that’s the core issue at hand. I’m on vacation, so I am not going to devote the time to it today. 😉 ---
**Author:** ![Icarus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/icarus/32/72_2.png) [@Icarus](https://boards.straightdope.com/u/Icarus)\ **Post date:** [December 22, 2016, 5:42pm UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/22 "2016-12-22T17:42:15Z")
Does our immigration process recognize religion? It would seem to me that the first level of scrutiny is the country issuing the passport that the traveler or immigrant is holding. Is our policy based on treaties with issuing countries? How would that be managed to include religious affiliation? ---
**Author:** ![DrCube](https://avatars.discourse-cdn.com/v4/letter/d/a3d4f5/32.png) [@DrCube](https://boards.straightdope.com/u/DrCube)\ **Post date:** [December 22, 2016, 5:46pm UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/23 "2016-12-22T17:46:16Z")
How about a slight but hopefully relevant hijack: I own an apartment building. As an individual/small business, am I allowed to refuse to rent to Muslims if they are not US citizens but instead immigrants from another country? It seems to me that would be illegal discrimination regardless of the national origin or citizenship status of the prospective tenants. I understand that there are a lot of things the federal government can do that individuals and businesses can’t. But if the laws against that form of discrimination are based on the Constitution, and courts have routinely upheld them, how likely is it that the federal government will get a free pass for doing the exact same thing? ---
**Author:** ![quimper](https://avatars.discourse-cdn.com/v4/letter/q/7c8e57/32.png) [@quimper](https://boards.straightdope.com/u/quimper)\ **Post date:** [December 22, 2016, 6:05pm UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/24 "2016-12-22T18:05:41Z")
> [@DrCube](#): > > How about a slight but hopefully relevant hijack: I own an apartment building. As an individual/small business, am I allowed to refuse to rent to Muslims if they are not US citizens but instead immigrants from another country? > > It seems to me that would be illegal discrimination regardless of the national origin or citizenship status of the prospective tenants. I understand that there are a lot of things the federal government can do that individuals and businesses can’t. But if the laws against that form of discrimination are based on the Constitution, and courts have routinely upheld them, how likely is it that the federal government will get a free pass for doing the exact same thing? In some states (CA, NY) it is illegal for the landlord to request immigration/citizenship status. In the other states (presumably) the landlord could require all tenants have I-9 status and/or visa. EDIT: I’m not aware of any landlords that would require a USCIS status; just stating that it would be legal, provided that they submit all applicants to the same requirement. ---
**Author:** ![DrCube](https://avatars.discourse-cdn.com/v4/letter/d/a3d4f5/32.png) [@DrCube](https://boards.straightdope.com/u/DrCube)\ **Post date:** [December 22, 2016, 6:16pm UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/25 "2016-12-22T18:16:50Z")
> [@quimper](#): > > In some states (CA, NY) it is illegal for the landlord to request immigration/citizenship status. In the other states (presumably) the landlord could require all tenants have I-9 status and/or visa. The question is whether I, already knowing they are not US citizens, can legally refuse to rent to them _due to their religion_? And I’m almost 100% positive the answer is no, and that answer has been repeatedly supported by the courts. So that brings us to the further question about how likely the courts are to approve of the government doing that very same thing? It probably has something to do with whether the courts upheld these laws (“it’s constitutional to pass anti-discrimination laws”) versus mandating them (“It’s unconstitutional to allow these forms of discrimination to remain legal”). I don’t know the answer to that, hence my question. The government can get away with a lot of things I’m explicitly barred from doing myself. I’m wondering whether this is one of them. ---
**Author:** ![marshmallow](https://avatars.discourse-cdn.com/v4/letter/m/df705f/32.png) [@marshmallow](https://boards.straightdope.com/u/marshmallow)\ **Post date:** [December 22, 2016, 6:31pm UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/26 "2016-12-22T18:31:23Z")
> [@Bricker](#): > > 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). Why is that interesting? How often does domestic labor support an influx of cheap foreign labor? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [December 22, 2016, 6:39pm UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/27 "2016-12-22T18:39:39Z")
> [@Bricker](#): > > 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. What about standing for a Muslim U.S. Citizen to challenge the policy as a violation of the First or Fifth Amendment because his family members/friends/prospective spouses have a higher bar to entry than non-Muslims due solely to race or religion? ---
**Author:** ![astorian](https://avatars.discourse-cdn.com/v4/letter/a/ad7895/32.png) [@astorian](https://boards.straightdope.com/u/astorian)\ **Post date:** [December 22, 2016, 6:41pm UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/28 "2016-12-22T18:41:00Z")
> [@boffking](#): > > 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. And Roof was promptly arrested and sentenced to death. And no white people are mourning for him or calling him a martyr. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [December 22, 2016, 6:47pm UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/29 "2016-12-22T18:47:11Z")
> [@Human\_Action](#): > > Cite? Such a measure was proposed, [but not enacted.](https://thinkprogress.org/what-a-19th-century-campaign-to-declare-mormons-non-white-tells-us-about-modern-islamophobia-231556790c58#.tyhonpm3q) > > 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. The [Immigration Act of 1891](https://www.loc.gov/law/help/statutes-at-large/51st-congress/session-2/c51s2ch551.pdf) banned polygamists, which (I believe) was understood to be aimed at Mormons. The [Immigration Act of 1907](http://www.historycentral.com/documents/immigrationact.html) was expanded to exclude not only polygamists but “persons who admit their belief in the practice of polygamy.” I mean, sure, strictly speaking, the act bans Muslims from immigrating, but the target was Mormons and I _think_ that was pretty explicit at the time. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [December 22, 2016, 6:53pm UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/30 "2016-12-22T18:53:25Z")
> [@astorian](#): > > And Roof was promptly arrested and sentenced to death. And no white people are mourning for him or calling him a martyr. Not even the Christian-identifying Aryan Nation? ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [December 22, 2016, 6:58pm UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/31 "2016-12-22T18:58:07Z")
Its the United States privilege to admit or refuse anyone it chooses. ---
**Author:** ![steronz](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steronz/32/11765_2.png) [@steronz](https://boards.straightdope.com/u/steronz)\ **Post date:** [December 22, 2016, 7:06pm UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/32 "2016-12-22T19:06:51Z")
What about a constitutional challenge from US citizens who would be hurt by such an immigration policy? Example, naturalized Muslim Iranian immigrants whose parents would be barred from moving to the US to, say, help raise their children could argue that naturalized Christian Iranian immigrants suffer no such hardship. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 22, 2016, 7:19pm UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/33 "2016-12-22T19:19:25Z")
> [@DrCube](#): > > How about a slight but hopefully relevant hijack: I own an apartment building. As an individual/small business, am I allowed to refuse to rent to Muslims if they are not US citizens but instead immigrants from another country? > > It seems to me that would be illegal discrimination regardless of the national origin or citizenship status of the prospective tenants. I understand that there are a lot of things the federal government can do that individuals and businesses can’t. But if the laws against that form of discrimination are based on the Constitution, and courts have routinely upheld them, how likely is it that the federal government will get a free pass for doing the exact same thing? The distinction here is immigration. The federal government cannot, for example, without a warrant or probable cause, search your bags as you cross from California to Nevada – and, indeed, neither can California or Nevada. But if you cross from Mexico into California, they can. So your question involves the treatment of persons already inside the country, but my issue happens outside or at the border. The government is entitled to do stuff there that they can’t do in the country. ---
**Author:** ![Human\_Action](https://avatars.discourse-cdn.com/v4/letter/h/ac91a4/32.png) [@Human\_Action](https://boards.straightdope.com/u/Human_Action)\ **Post date:** [December 22, 2016, 7:20pm UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/34 "2016-12-22T19:20:02Z")
> [@Falchion](#): > > The [Immigration Act of 1891](https://www.loc.gov/law/help/statutes-at-large/51st-congress/session-2/c51s2ch551.pdf) banned polygamists, which (I believe) was understood to be aimed at Mormons. The [Immigration Act of 1907](http://www.historycentral.com/documents/immigrationact.html) was expanded to exclude not only polygamists but “persons who admit their belief in the practice of polygamy.” > > I mean, sure, strictly speaking, the act bans Muslims from immigrating, but the target was Mormons and I _think_ that was pretty explicit at the time. The Mormon Church renounced polygamy in 1890, though. ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [December 22, 2016, 7:31pm UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/35 "2016-12-22T19:31:09Z")
> [@astorian](#): > > And Roof was promptly arrested and sentenced to death. And no white people are mourning for him or calling him a martyr. [I wouldn’t say “no white people.”](https://forbiddentruthblog.com/2016/12/15/dylann-storm-roof-martyred-for-revealing-truth/) (to be fair, I do not consider them representative of… well anything other than themselves, but just pointing out, yeah, there were. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [December 22, 2016, 7:34pm UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/36 "2016-12-22T19:34:16Z")
> [@Bricker](#): > > 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. I agree. It might not. But I think if the ban was applied solely on religion, there could well be a issue- which the SCOTUS may well decide is OK. . If the ban was applied on\* nationality\*, there is no issue. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [December 22, 2016, 7:38pm UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/37 "2016-12-22T19:38:02Z")
> [@Human\_Action](#): > > The Mormon Church renounced polygamy in 1890, though. Fair point (I admit I did not know the timing). Although I am fairly certain that the addition of polygamists to the 1891 immigration act was a direct response to the inability of the immigration officials to justify the exclusion of Mormon immigrants under the existing law (although, I think, they tried to declare some of them paupers, which was an excludable category). The 1890 Manifesto was in October, the 1891 Act was passed in March. I don’t know when the act was introduced. But to me that’s close enough to continue to believe in causation. It’s all against the backdrop of the height of the anti-Mormon effort. I don’t know why the 1907 act was expanded the way it was, though. ---
**Author:** ![RickJay](https://avatars.discourse-cdn.com/v4/letter/r/bb73d2/32.png) [@RickJay](https://boards.straightdope.com/u/RickJay)\ **Post date:** [December 22, 2016, 8:21pm UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/38 "2016-12-22T20:21:12Z")
> [@Bricker](#): > > 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. Well, parts do and parts don’t. A visitor to the United States has the rights to a speedy and public trial, for instance, to not be forced to testify against themselves, etc. But they do not have, for instance, the right to vote. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [December 22, 2016, 8:22pm UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/39 "2016-12-22T20:22:58Z")
> [@RickJay](#): > > Well, parts do and parts don’t. A visitor to the United States has the rights to a speedy and public trial, for instance, to not be forced to testify against themselves, etc. But they do not have, for instance, the right to vote. You dont have any right to demand a warrant for searching your bags, either, when entering the country. ---
**Author:** ![quimper](https://avatars.discourse-cdn.com/v4/letter/q/7c8e57/32.png) [@quimper](https://boards.straightdope.com/u/quimper)\ **Post date:** [December 22, 2016, 8:28pm UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/40 "2016-12-22T20:28:50Z")
> [@UltraVires](#): > > What about standing for a Muslim U.S. Citizen to challenge the policy as a violation of the First or Fifth Amendment because his family members/friends/prospective spouses have a higher bar to entry than non-Muslims due solely to race or religion? > [@steronz](#): > > What about a constitutional challenge from US citizens who would be hurt by such an immigration policy? Example, naturalized Muslim Iranian immigrants whose parents would be barred from moving to the US to, say, help raise their children could argue that naturalized Christian Iranian immigrants suffer no such hardship. Disparate impact is a good angle to consider, since a Muslim ban would affect US citizens inside the US. Of course, to establish standing they’d have to pass the ban first and then wait for the visa rejections to come pouring in. What about the commerce clause? Let’s say an American company relies heavily on H1B1 visas from Pakistan and the Muslim ban cuts off the supply entirely. A competing company gets their H1B1s from India and are unaffected. Would the first company have standing to claim the ban is a violation of the commerce clause? [Previous page](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372.md?page=1) [Next page](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372.md?page=3)