Looking for a factual answer to this, preferably from a lawyer or someone with some good cites.
It seems to me that singling out Muslims as being ineligible for immigration would be a violation of the First Amendment. I would think that filtering out immigrants by religious affiliation would run afoul of the Establishment Clause. However, there are some wrinkles - immigrants aren’t American citizens, for one thing. But is that important here? I thought the Establishment Clause was about the overall character and nature of the government, not necessarily an individual rights issue.
Even if it was, would an American Muslim have standing to challenge a Muslim-filtering immigration policy on the grounds that it was an intentional attempt to alter the religious balance in the country, and therefore was promoting the establishment of one religion over another?
Are there any legal precedents in this area?
BTW, I’m aware of other places in the constitution where religious tests can be applied to determine refugee status and the like, but that’s not really relevant to this question - I don’t think.
I don’t think the court would look favorably on it, but as far as I know, there aren’t any direct precedents either way, or at least not any recent ones.
The closest example I can think of was the Chinese Exclusion Act, which was upheld by SCOTUS in the late 19th century.
That Act was based on racial/ ethnic distinctions rather than a religious category, so that is one ground of distinction.
More significantly, there has been a lot of developments in equal protection law since then, so I don’t know how much weight that line of cases would still have today.
The political branches of government are said to have plenary power to determine immigration policy and the courts don’t review such decisions. It’s considered a political question the courts do not review.
If Congress and the President decided to pass a law to bar adherents of any one religion the high court would be breaking new ground to examine that decision.
Further, the high court has ruled that immigration enforcement is not punishment and thus persons being denied immigration do not have a Constitutional right to appeal in the courts.
The First Amendment is not expressed as granting a right to any particular people, but rather as limiting the government’s power. Restricting immigration by religion would be a prohibited exercise of power, and thus unconstitutional.
That said, I’m not sure by what route such a case would reach the courts.
I was thinking that an American Muslim or a group of them might have standing to sue the government on the grounds that the government was de-facto establishing a state religion by excluding their fellow believers from immigrating based on religious affiliation. They could show harm if it meant lowering membership in their church, lower tithing or fundraising, or something like that. Would that be enough to launch a lawsuit?
It’s just hard for me to see how the U.S. could ever announce that henceforth only Christians need apply for citizenship without running afoul of the Constitution.
They can say that no Syrians need apply, or that no one at all can come in, but I would have thought a religious test would be a non-starter.
There were also a bunch of cases upholding the Naturalization Act of 1906 (Only “Free white persons” and “Aliens of African nativity and persons of African descent” could be citizens); Ozawa v US, US v Thind, Wadia v US, etc.
One of the closest things I can find is in In Re Ahmed Hassan, which is a 1942 district court case from Michigan, which asks the question, “Is Ahmed Hassan, an Arab from Yemen, white under the Naturalization Act, and therefore eligible for citizenship?”
It points out, in part,
So, Arabs, partly because of their religion, are culturally distinct from Christian Europe, and not easily assimilable.
I think what happened was, about the same time the courts were starting to say that racial discrimination was unconstitutional, Congress was also lifting racial restrictions on immigration and citizenship, so there wasn’t really that gap where a court case could come about.
The route would be that Congress passes a law saying that Muslims can’t enter the US, a foreign Muslim applies for a visa, gets turned down because of his or her religion, and sues.
There’s a bill in Congress that would grant Christians and Yazidis in Iraq, Syria, Pakistan, Iran, and Libya expedited refugee status, but it hasn’t passed yet.
As I understand it, it applies to everyone living in the US, whether citizen or not. It also applies to US citizens living abroad, at least as far as their interactions with the US government goes. But it would not apply to foreign nationals not living in the US.
The constitution applies to the United States. That means it applies to non-citizens who are in the United States. You can’t sell tourists into slavery, or toss them into prison without due process of law. Conversely, U.S. citizens in other countries who pound their fists on the nearest table and demand their (First)(Second)(Fifth) Amendment rights! are going to be out of luck (they might have more luck citing the relevant provision of the constitution of whatever country they’re actually in, depending on just what right it is they’re claiming).
The constitution applies to the United States government; the U.S. government cannot tax American citizens in order to fund missionary efforts to bring the poor benighted heathens the Good News about Jesus Christ (or alternatively to educate the backwards foreigners out of their superstitious and unscientific god-delusions and make them all into good Secular Humanists).
Why would that be bizarre? In so far as the Constitution requires respect for basic human rights, unless you think that non-citizens are actually subhuman it stands to reason that in their interactions with the United States their rights should be respected to the same extent as the rights of a US citizen.
Nonsense. The Constitution does not apply world-wide.
Furthermore, the right and power of the government to rule and secure its borders is an inherent power of government, and thus cannot be prohibited by the Constitution. To even attempt such a thing would be illogical and fundamentally inconsistent.