Disgusting and Un-American, But Is A "Muslim Ban" Unconstitutional?

[John_Mace]

@barath_s

Let me put forward this hypothetical in case of such a law :

An American catholic could have the pope visit. Arguably aiding the dissemination of the catholic religion in the US

Would an American Shi’ite have a case that the systematic denial of a visa to religious leaders of his persuasion impacts his right to practice and disseminate his religion ?

@Miller

If Congress passed a law that straight up said, “In order to maintain the character of the United States as a Christian nation, the immigration of Muslims etc. etc.” that would (or, at least, should) be struck down under the first, right? I recognize that it’s highly unlikely that the law would actually say that, but to what extent can/should the supreme court justices infer that intent?

Currently, they use the Lemon Test (from wikipedia):

*The Court’s decision in this case established the “Lemon test” (named after the lead plaintiff Alton Lemon),[3] which details the requirements for legislation concerning religion. It is threefold:

The statute must have a secular legislative purpose. (also known as the Purpose Prong)

The principal or primary effect of the statute must not advance nor inhibit religious practice (also known as the Effect Prong)

The statute must not result in an “excessive government entanglement” with religious affairs. (also known as the Entanglement Prong)
Factors.
Character and purpose of institution benefited.
Nature of aid the state provides.
Resulting relationship between government and religious authority.

If any of these prongs are violated, the government’s action is deemed unconstitutional under the Establishment Clause of the First Amendment to the United States Constitution.*

Whether that is what the court “should” do is a matter of how one interprets the establishment clause and (to some extent) the free exercise clause. Some folks think “In God We Trust” violates the establishment clause. Others might argue that as long as Congress isn’t explicitly declaring one religion to be “Established”, then Congress isn’t stepping over the line. But for now, we have The Lemon Test.

[aldiboronti]

I would find it quite bizarre if Constitutional protection applied to non-citizens but I bow to more learned opinion here if indeed it does.

[UDS]

@aldiboronti

I would find it quite bizarre if Constitutional protection applied to non-citizens but I bow to more learned opinion here if indeed it does.

It definitely does apply to non-citizens. It’s not expressed as a benefit conferred upon citizens, but as a limitation on the powers of the Republic - Congress shall make no law abridging etc etc. So if Congress were to make a law prohibiting non-citizens from attending church, say, or requiring them to attend a particular church, that would be a plain violation of the non-establishment clause, even though it imposed on obligation or disability on any citizen.

Plus, as a matter of principle, the philosophical notion underpinning the legal protection of human rights is that you have human rights because you’re, well, human. We wouldn’t think much of the democratic credentials of a constitution that held citizens to be entitled to due process, etc, but allowed the government to round up non-citizens and shoot them out of hand, would we?

Obviously there are particular rights, of which voting is the most obvious example, that arise in the context of a particular relationship between the state and the individual, and we call that relationship “citizenship”. But that’s the exception, not the norm; generally speaking the moral case for demanding protection of your human rights is simply that you are human.

[foolsguinea]

The anti-establishment clause says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. There is no qualification that this means when interacting with persons in our borders, citizens, or persons at all. Not there.

Restricting entry persons for being members of a Muslim sect certainly sounds like it is something, “respecting an establishment of religion,” to me.

I’m calling the ban unconstitutional, and I expect most jurists would tend to agree.

[T.M]

@Bricker

That is certainly fascinating.

But how does it apply to the Constitution?

The purpose of the constitution is to protect the people therefore parts of the constitution could be suspended if the protection of the people is paramount
eg. The privacy laws in Germany are hindering the security services when combatting terrorism, they are unable to publish photo’s of suspects they wish to interview, the only way around this is to suspend wholly or partially the privacy law enabling the security services to do their job.
In a rapidly changing world our laws and constitutions must have an inbuilt flexibility that allows rapid action to defend the constitutional rights of the citizen

[Bridget_Burke]

@T.M

The purpose of the constitution is to protect the people therefore parts of the constitution could be suspended if the protection of the people is paramount
eg. The privacy laws in Germany are hindering the security services when combatting terrorism, they are unable to publish photo’s of suspects they wish to interview, the only way around this is to suspend wholly or partially the privacy law enabling the security services to do their job.
In a rapidly changing world our laws and constitutions must have an inbuilt flexibility that allows rapid action to defend the constitutional rights of the citizen

Where in the Constitution does it say that its main purpose is “to protect the people”?

The Alien & Sedition acts were instituted in 1798, when the threat of war with France was quite real. They “were never appealed to the Supreme Court, whose right of judicial review was not clearly established until Marbury v. Madison in 1803. Subsequent mentions in Supreme Court opinions beginning in the mid-20th century have assumed that the Sedition Act would today be found unconstitutional.”

[T.M]

I am hearing the same arguments from America that I was hearing in Europe 2/3 years ago we can all see the problems that we are now having in Europe’ it is worth noting that mainland Europe has the same open borders policy that the states in America enjoy and that is our greatest problem and we face reclosing our borders within the near future. America has to consider taking actions that will restrict the import of terrorism, both the bombers and those who preach extreme Islam.
Yes Islam is not a state but a religion, there is no reason why a religion known to harbour a threat against a country cannot be prescribed as an illegal organisation

[foolsguinea]

How closed does a border have to be to be considered closed enough? I don’t think liberal democracies are likely to all decide to act like North Korea.

[Eva_Luna]

@Bricker

I’m not at all in agreement with that summary. What appears to have worked is the election of Barack Obama and the appointment of Hillary Clinton; there was no case law set for the proposition you describe.

In other words, if President Trump and Secretary Tillerson issue a new order, we’re back at square one.

Perhaps reading the Second Circuit decision in the Tariq Ramadan case would be helpful. I’m kind of hamstrung in terms of large amounts of typing eight now due to the infant and toddler currently sleeping in the room where my actual computer is at the moment, but I’ll try to add more explanation later if nobody beats me to it.

[T.M]

@Bridget_Burke

Where in the Constitution does it say that its main purpose is “to protect the people”?

The Alien & Sedition acts were instituted in 1798, when the threat of war with France was quite real. They “were never appealed to the Supreme Court, whose right of judicial review was not clearly established until Marbury v. Madison in 1803. Subsequent mentions in Supreme Court opinions beginning in the mid-20th century have assumed that the Sedition Act would today be found unconstitutional.”

Then possibly the constitution needs to be amended so that it is effective in the present climate

[Bryan_Ekers]

@T.M

Then possibly the constitution needs to be amended so that it is effective in the present climate

If you’re going to “fix” the constitution to improve the safety of Americans, immigration policy isn’t your highest priority.

[Ruken]

@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?

I wondered this too. Am I harmed if my sister can’t move here but my neighbor’s can?

[Bricker]

@Eva_Luna

Perhaps reading the Second Circuit decision in the Tariq Ramadan case would be helpful. I’m kind of hamstrung in terms of large amounts of typing eight now due to the infant and toddler currently sleeping in the room where my actual computer is at the moment, but I’ll try to add more explanation later if nobody beats me to it.

Hugely helpful.

Thanks – this is immensely reassuring.

Based on the standards the Second Circuit highlighted, my tentative conclusion is that Trump and his cabinet, alone by executive order or rule-making, probably can’t do this.

The Ramadan court found that there was a statutory basis for Tariq’s visa denial but that the consular officer failed to establish a record that demonstrated Tariq met the statutory requirements.

And in mentioning with approval the earlier decision Kleindienst v. Mandel, 408 U.S. 753 (1972), the circuit court said:

We conclude that, where a plaintiff, with standing to do so, asserts a First Amendment claim to have a visa applicant present views in this country, we should apply Mandel to a consular officer’s denial of a visa. Since the First Amendment requires at least some judicial review of the discretionary decision of the Attorney General to waive admissibility, we see no sound reason to deny similar review to the decision of a consular officer to deny a visa. It seems counterintuitive to review a cabinet officer’s discretionary decision, but not a consular officer’s decision as to statutory ineligibility.

So as I read things, this decision does not affect the application of statutory exclusions, but it does allow judicial review of cabinet and consular denials of visas that implicate First Amendment concerns, and it establishes something several posters hinted at above: while the excluded person has no direct standing to sue:

Ramadan is also a Plaintiff-Appellant, but because he has no constitutional right to a visa, see id. at 762, he is what the organizational plaintiffs in Mandel called a “symbolic” plaintiff.

Meaning others within the US may assert their own First Amendment rights are affected by the denial.

Good. This is a principle I did not know and the hope of learning it was exactly why I started this thread.

[Human_Action]

@Falchion

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.

@TokyoBayer

Sort of. The 1890 Manifesto was written to appear to comply with the federal law, but was intentionally false. It was also stated advice rather than a formal rule stated: The church continued to practice polygamy for well more than 10 years after, although to only a select few. There was an second manifesto in 1904 which finally stated There were a couple of Mormon apostles and a number of other leaders who rejected this and were subsequently sanctioned.

It wasn’t until after 1910ish and up to somewhere in the late 1910s that the LDS church finally go a handle on the problem.

It was certainly very well known in 1891 that the LDS church was still officially performing plural marriages while also proclaiming that they were not.

There would still have been plural marriages performed in 1907, the the date of the second act, albeit against the wishes of the president. The actual history was quite messy but there would have been rumors of plural marriages and such rumors would have been known to non-LDS people.

Point was, Mormons-as-Mormons have never been prohibited from immigrating.

[Human_Action]

@T.M

Yes Islam is not a state but a religion, there is no reason why a religion known to harbour a threat against a country cannot be prescribed as an illegal organisation

To the best of my knowledge, the United States doesn’t have “illegal organizations”. That would violate the right to free assembly.

It goes without saying that banning a religion would violate the right to free exercise of religion.

[John_Mace]

@foolsguinea

The anti-establishment clause says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. There is no qualification that this means when interacting with persons in our borders, citizens, or persons at all. Not there.

Restricting entry persons for being members of a Muslim sect certainly sounds like it is something, “respecting an establishment of religion,” to me.

I’m calling the ban unconstitutional, and I expect most jurists would tend to agree.

Which religion is being established? “Non-Muslim” is not a religion.

[HumbleThinker]

@Bricker

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.

While I would also see such a law as despicable, I don’t see anything unconstitutional about it. The government has the power to control immigration into its country however it sees fit. Non-US citizens do not have First Amendment protections from the US government’s interference; only US citizens do.

[Ruken]

@HumbleThinker

Non-US citizens do not have First Amendment protections from the US government’s interference; only US citizens do.

Wasn’t this already pointed out to be false very early in the thread?

[John_Mace]

@Ruken

Wasn’t this already pointed out to be false very early in the thread?

It’s important in these types of discussions to distinguish between non-citizens on US soil and non-citizen NOT on US soil.

[HumbleThinker]

@Ruken

Wasn’t this already pointed out to be false very early in the thread?

Not that I’ve seen. Perhaps I should have been more explicit that I was talking about people outside of the country instead of relying on implication.

From a strictly Constitutional perspective, though, I find it weird that Articles and Amendments of a country’s Constitution would apply to non-citizens. When I think of a founding document of a government, I think of it as applying to those who initiated (and in our case inherited) the social compact expressed in the Constitution. So in my mind, it seems like it would be implied that the constitution is only addressing the relationship between the US government and US citizens. If we pass laws or amendments that extend certain protections to non-citizens within the country (or conceivably outside the country), then sure I can see those specific protections applying then. But it seems weird to me to claim that some or all of them inherently apply to the government’s relationship to non-citizens within or without of the country.

In principle, I’m generally all for it. But from a legal perspective I find it weird.