# Many of Trump's proposed policies are unconstitutional **URL:** \ **Category:** Politics & Elections\ **Created:** [July 14, 2016, 8:31pm UTC](https://boards.straightdope.com/t/many-of-trumps-proposed-policies-are-unconstitutional/759923 "2016-07-14T20:31:25Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [July 14, 2016, 8:31pm UTC](https://boards.straightdope.com/t/many-of-trumps-proposed-policies-are-unconstitutional/759923/1 "2016-07-14T20:31:25Z")
I thought it might be nice to have a thread devoted to legal arguments over Trump’s proposed policies. [Here’s](https://action.aclu.org/sites/default/files/pages/trumpmemos.pdf) the ACLU’s take on Trump’s policies in six different areas. They include: **[ol] [li]Immigration[/li][li]Surveillance of Muslims and the Creation of a Muslim “Database”[/li][li]Torture[/li][li]Libel[/li][li]Mass Surveillance[/li][li]Abortion[/li][/ol]** Here’s an excerpt, to give you the flavor of it: > [@](#): > > **A “Muslim ban” would violate the Establishment Clause of the First Amendment.** > > A policy categorically excluding members of a particular religion from the country would violate the Establishment Clause of the First Amendment by explicitly disapproving of one religion and implicitly preferring others.1 > > The history of U.S. immigration policy is rife with race discrimination, and a few commentators have argued that Trump’s religious ban might survive a legal challenge, just as those historical race discrimination measures did. But _Chae Chan Ping v. United States_2 and the other cases upholding and applying the Chinese Exclusion Act of 1882 and related legislation were decided in the same era as _Plessy v. Ferguson_,3 which established the now-discredited doctrine of “separate but equal,” and not long after _Dred Scott v. Sandford_,4 which upheld the legal foundations of slavery. Those cases, of course, have long been disavowed as the country has evolved to reject the racist premises on which the Supreme Court of that era relied.5 There can be no question that such racial exclusion laws would not pass constitutional muster today. > > But there has _never_, even during the period of racial exclusion, been an immigration ban on the basis of religion. In part, this likely reflects the priority of religious neutrality since the nation’s founding.6 In contrast, the Supreme Court did not formally recognize a right to equal protection against the federal government until 1954.7 Therefore, even under the now-dubious precedents regarding racial exclusion, a ban on Muslims would be unconstitutional. > > [ol] > [li]_See, e.g._, _Awad v. Ziriax_, 670 F.3d 1111, 1127, 1132 (10th Cir. 2012) (enjoining a state provision banning court consideration of Sharia law because the Establishment Clause prohibits any “programs or practices . . . which aid or oppose any religion” (quoting _Larson v. Valente_, 456 U.S. 228, 246 (1982) (alteration in original, internal quotation marks omitted))). While the Establishment Clause — like the rest of the First Amendment — is stated as a proscription on congressional action, it applies to executive branch action as well. _Cf. Shrum v. City of Coweta, Okla._, 449 F.3d 1132, 1140 (10th Cir. 2006) (holding the Free Exercise Clause applicable because “the First Amendment applies to exercises of executive authority no less than it does to the passage of legislation”).[/li][li]130 U.S. 581 (1889).[/li][li]163 U.S. 537 (1896).[/li][li]60 U.S. 393 (1856).[/li][li]_See, e.g._, _Brown v. Board of Education_, 347 U.S. 483 (1954).[/li][li]See U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .”). The Constitution’s emphasis on religious neutrality is underscored by Article VI, which provides that “no religious test shall ever be required as a qualification to any office or public trust under the United States.”[/li][li]_See Bolling v. Sharpe_, 347 U.S. 497, 499 (1954).[/li][/ol] Any disagreement? ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [July 14, 2016, 9:09pm UTC](https://boards.straightdope.com/t/many-of-trumps-proposed-policies-are-unconstitutional/759923/2 "2016-07-14T21:09:33Z")
I haven’t studied any of them other than the first point. I think on this one, yes a “Muslim ban” would violate the establishment clause. But Trump has shifted on this (unsurprisingly since he shifts positions hourly), to a ban on immigrants from certain countries (that just happen to be predominantly Muslim countries.) I do believe a ban like that would survive constitutional scrutiny, we’ve frequently blocked immigration from specific countries in our past. So he’d be able to achieve a large portion of his goal without it actually being an unconstitutional “Muslim ban.” Edit: The ACLU is also right if he tries to make it a “nationality ban” then it would probably also fail if it was constructed on racial lines (like anti-Asian bans were in the past.) But for example, right now we have restrictions on people who hold Iranian citizenship (even if they are dual-citizens of a friendly country) coming into the United States (IIRC visa restrictions.) Trump could achieve what he’s going here for with a combined country of origin/citizenship prohibition. ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [July 14, 2016, 9:32pm UTC](https://boards.straightdope.com/t/many-of-trumps-proposed-policies-are-unconstitutional/759923/3 "2016-07-14T21:32:35Z")
I remember when he said one of his first acts as President would be to make a mandatory death-sentence for anyone killing a police officer. Astonishing how unconstitutional that is! The guy seems to think we’re electing a tyrant, not an administrator. The only conceivable saving grace in all of this is that he’s just running his fat mouth, and doesn’t have the slightest intention of actually following through with anything he’s said. So far, just about every position he’s taken on any issue at all flatly contradicts another position he’s taken on the same issue! ---
**Author:** ![coremelt](https://avatars.discourse-cdn.com/v4/letter/c/4491bb/32.png) [@coremelt](https://boards.straightdope.com/u/coremelt)\ **Post date:** [July 15, 2016, 2:11am UTC](https://boards.straightdope.com/t/many-of-trumps-proposed-policies-are-unconstitutional/759923/4 "2016-07-15T02:11:15Z")
Yes however we do know that Trump has vowed to protect Article XII of the constitution! > **[Opinion | Trump wants to protect Article XII of the Constitution](https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/07/07/trump-wants-to-protect-article-xii-of-the-constitution/)** > > One problem: It doesn't exist. (There is no article XII) Even if we’re generous and assume that he meant Amendments I, II and XII, well Article I is freedom of religion and speech which we already know he vowed to trample all over with muslim bans and new libel laws. Article II, gun rights sure I can believe him on that one. And Amendment XII is the procedure for electing the President and Vice President? um, great he’ll uphold that??? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 15, 2016, 2:29am UTC](https://boards.straightdope.com/t/many-of-trumps-proposed-policies-are-unconstitutional/759923/5 "2016-07-15T02:29:09Z")
> [@coremelt](#): > > Yes however we do know that Trump has vowed to protect Article XII of the constitution! > [https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/07/07/trump-wants-to-protect-article-xii-of-the-constitution/](https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/07/07/trump-wants-to-protect-article-xii-of-the-constitution/) > > (There is no article XII) > > Even if we’re generous and assume that he meant Amendments I, II and XII, well Article I is freedom of religion and speech which we already know he vowed to trample all over with muslim bans and new libel laws. Article II, gun rights sure I can believe him on that one. And Amendment XII is the procedure for electing the President and Vice President? um, great he’ll uphold that??? I find it hilarious that you excoriate Trump for confusing Articles and Amendments… and then do the same thing in your post. Article I has nothing to do with freedom of religion. Sounds like you and Trump would make a great pair. You planning on a dramatic announcement tomorrow at 11? ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [July 15, 2016, 2:31am UTC](https://boards.straightdope.com/t/many-of-trumps-proposed-policies-are-unconstitutional/759923/6 "2016-07-15T02:31:43Z")
I think you’ve misinterpreted his or her post, specifically the “even if we’re generous and assume” portion. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 15, 2016, 2:33am UTC](https://boards.straightdope.com/t/many-of-trumps-proposed-policies-are-unconstitutional/759923/7 "2016-07-15T02:33:16Z")
As to the OP, I feel it might be easier to compile a list of Trump proposals that are manifestly constitutional. ---
**Author:** ![Johnny\_Ace](https://avatars.discourse-cdn.com/v4/letter/j/6bbea6/32.png) [@Johnny\_Ace](https://boards.straightdope.com/u/Johnny_Ace)\ **Post date:** [July 15, 2016, 3:34am UTC](https://boards.straightdope.com/t/many-of-trumps-proposed-policies-are-unconstitutional/759923/8 "2016-07-15T03:34:08Z")
1. Done. ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [July 15, 2016, 3:41am UTC](https://boards.straightdope.com/t/many-of-trumps-proposed-policies-are-unconstitutional/759923/9 "2016-07-15T03:41:35Z")
> [@Bricker](#): > > As to the OP, I feel it might be easier to compile a list of Trump proposals that are manifestly constitutional. 1. Wall on Mexican Border. Astoundingly stupid, but probably not unconstitutional. ---
**Author:** ![Arcite](https://avatars.discourse-cdn.com/v4/letter/a/67e7ee/32.png) [@Arcite](https://boards.straightdope.com/u/Arcite)\ **Post date:** [July 15, 2016, 3:58am UTC](https://boards.straightdope.com/t/many-of-trumps-proposed-policies-are-unconstitutional/759923/10 "2016-07-15T03:58:02Z")
> [@Richard\_Parker](#): > > I thought it might be nice to have a thread devoted to legal arguments over Trump’s proposed policies. > > [Here’s](https://action.aclu.org/sites/default/files/pages/trumpmemos.pdf) the ACLU’s take on Trump’s policies in six different areas. They include: > > **[ol] > [li]Immigration[/li][li]Surveillance of Muslims and the Creation of a Muslim “Database”[/li][li]Torture[/li][li]Libel[/li][li]Mass Surveillance[/li][li]Abortion[/li][/ol]** > Here’s an excerpt, to give you the flavor of it: > > Any disagreement? Yes. Foreign nationals don’t have constitutional rights. ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [July 15, 2016, 4:15am UTC](https://boards.straightdope.com/t/many-of-trumps-proposed-policies-are-unconstitutional/759923/11 "2016-07-15T04:15:12Z")
> [@Arcite](#): > > Yes. Foreign nationals don’t have constitutional rights. Well, they have some. Maybe not all, but, for instance, you can’t torture them in prison, as the eighth amendment still pertains. ---
**Author:** ![running\_coach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/running_coach/32/15836_2.png) [@running\_coach](https://boards.straightdope.com/u/running_coach)\ **Post date:** [July 15, 2016, 4:15am UTC](https://boards.straightdope.com/t/many-of-trumps-proposed-policies-are-unconstitutional/759923/12 "2016-07-15T04:15:29Z")
> [@Arcite](#): > > Yes. Foreign nationals don’t have constitutional rights. They do if they’re on U.S. soil. The only exception(I think) is at airports ( and I assume ships and land border crossings), you can be turned back before going through some sort of pre-entry screening. ---
**Author:** ![UDS](https://avatars.discourse-cdn.com/v4/letter/u/ecae2f/32.png) [@UDS](https://boards.straightdope.com/u/UDS)\ **Post date:** [July 15, 2016, 4:19am UTC](https://boards.straightdope.com/t/many-of-trumps-proposed-policies-are-unconstitutional/759923/13 "2016-07-15T04:19:01Z")
> [@Arcite](#): > > Yes. Foreign nationals don’t have constitutional rights. Not all of the provisionos of the US Constitution purport to confer rights on individuals. (In fact, most of them don’t purport to do that.) For example, a provision which says that Congress shall make no law respecting an establishment of religion doesn’t confer rights on individuals; it limits the legislative power of Congress. So the question will be whether legislation to implement Trump’s suggested ban on Muslim immigration amounts to an establishment of religion. Questions of individual rights and of nationality don’t enter into that. Of course, a related question will be whether someone who is affected by that law and who challenges its constitutionality has the standing to do so, and it might be argued that a non-citizen lacks the standing to enforce the provisions of the US Constitution. Even if it were held that the non-citizen lacks standing, that wouldn’t mean that the law was constitutional, though. A citizen affected by the law - say, a citizen wishing to sponsor the migration of a relative who was rejected on account of being a Muslim - could still challenge the law. ---
**Author:** ![Flyer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/flyer/32/7298_2.png) [@Flyer](https://boards.straightdope.com/u/Flyer)\ **Post date:** [July 15, 2016, 4:55am UTC](https://boards.straightdope.com/t/many-of-trumps-proposed-policies-are-unconstitutional/759923/14 "2016-07-15T04:55:38Z")
> [@Trinopus](#): > > I remember when he said one of his first acts as President would be to make a mandatory death-sentence for anyone killing a police officer. > > Astonishing how unconstitutional that is! The guy seems to think we’re electing a tyrant, not an administrator. How exactly would it be unconstitutional? I personally think that capital punishment is the only appropriate sentence for first-degree murder. ---
**Author:** ![Smapti](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smapti/32/17938_2.png) [@Smapti](https://boards.straightdope.com/u/Smapti)\ **Post date:** [July 15, 2016, 5:38am UTC](https://boards.straightdope.com/t/many-of-trumps-proposed-policies-are-unconstitutional/759923/15 "2016-07-15T05:38:39Z")
> [@Flyer](#): > > How exactly would it be unconstitutional? > > I personally think that capital punishment is the only appropriate sentence for first-degree murder. I’m fairly sure 10th amendment makes it clear the president can’t dictate sentencing guidelines to _the states_. ---
**Author:** ![UDS](https://avatars.discourse-cdn.com/v4/letter/u/ecae2f/32.png) [@UDS](https://boards.straightdope.com/u/UDS)\ **Post date:** [July 15, 2016, 5:46am UTC](https://boards.straightdope.com/t/many-of-trumps-proposed-policies-are-unconstitutional/759923/16 "2016-07-15T05:46:44Z")
> [@Flyer](#): > > How exactly would it be unconstitutional? Legislation mandating the death penalty for those convicted of specified crimes, with no opportunity for the court to take account of the character of the individual and the circumstances of the particular offence, is arbitrary and falls foul of the “cruel and unusual” clause; _Woodson v. North Carolina_ 428 U.S. 280 (1976) > [@Flyer](#): > > I personally think that capital punishment is the only appropriate sentence for first-degree murder. But the important question in the present context is not whether you personally think it’s appropriate, but whether the Supreme Court collectively thinks it’s constitutional. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [July 15, 2016, 8:31am UTC](https://boards.straightdope.com/t/many-of-trumps-proposed-policies-are-unconstitutional/759923/17 "2016-07-15T08:31:57Z")
The President already has authority under current immigration law ([8 U.S. Code § 1182(f)](https://www.law.cornell.edu/uscode/text/8/1182) to bar entry to “any aliens or of any class of aliens” and may do so “by proclamation, and for such period as he shall deem necessary”. The non-citizen abroad cannot exert constitutional rights so would lack standing. In _[Kerry v. Din](https://en.wikipedia.org/wiki/Kerry_v._Din)_ the Supreme Court ruled that a naturalized citizen spouse could not challenge denial of a visa to her spouse. It is not clear who might have standing to challenge such a sweeping denial of visas to Muslims. So it seems mass denial of immigration to Muslims might be abhorrent, but not apparently unconstitutional. ---
**Author:** ![coremelt](https://avatars.discourse-cdn.com/v4/letter/c/4491bb/32.png) [@coremelt](https://boards.straightdope.com/u/coremelt)\ **Post date:** [July 15, 2016, 9:00am UTC](https://boards.straightdope.com/t/many-of-trumps-proposed-policies-are-unconstitutional/759923/18 "2016-07-15T09:00:29Z")
> [@Bricker](#): > > Sounds like you and Trump would make a great pair. You planning on a dramatic announcement tomorrow at 11? Well Trump’s people did contact me, but turned them down, doesn’t fit with my future plans. And yeah sorry I typed too quickly and mixed up amendments and articles in my second sentence. But A) I’m not running for President of the US B) I’m not even a US citizen so I never had to study this stuff. So yes Trump seems to be claiming he’ll support the I, II and XII Amendments… and number XII is a bit odd to mention as an important thing to fight for. ---
**Author:** ![UDS](https://avatars.discourse-cdn.com/v4/letter/u/ecae2f/32.png) [@UDS](https://boards.straightdope.com/u/UDS)\ **Post date:** [July 15, 2016, 9:00am UTC](https://boards.straightdope.com/t/many-of-trumps-proposed-policies-are-unconstitutional/759923/19 "2016-07-15T09:00:52Z")
But it was relevant in Kerry -v- Din that Din was denied entry under a provision of the legislation which precludes those with connections to terrorist organisations. The controlling opinion in the case was that of Kennedy; he held that due process notice requirements didn’t apply where a visa application is denied due to terrorism or national security concerns. In a case where the facts are similar except that the visa application is denied because of the applicant’s religion, the decision might go the other way. ---
**Author:** ![boffking](https://avatars.discourse-cdn.com/v4/letter/b/858c86/32.png) [@boffking](https://boards.straightdope.com/u/boffking)\ **Post date:** [July 15, 2016, 11:40am UTC](https://boards.straightdope.com/t/many-of-trumps-proposed-policies-are-unconstitutional/759923/20 "2016-07-15T11:40:43Z")
> [@Trinopus](#): > > I remember when he said one of his first acts as President would be to make a mandatory death-sentence for anyone killing a police officer. > > Astonishing how unconstitutional that is! The guy seems to think we’re electing a tyrant, not an administrator. How is that unconstitutional? IIRC, the only time the death penalty is used in New Hampshire is for murder of a police officer. [Next page](https://boards.straightdope.com/t/many-of-trumps-proposed-policies-are-unconstitutional/759923.md?page=2)