“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.
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?
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.
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.
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?
The Immigration Act of 1891 banned polygamists, which (I believe) was understood to be aimed at Mormons. The Immigration Act of 1907 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.
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.
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.
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.
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.
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?
