# Would restricting immigration from Muslims be Unconstitutional? **URL:** \ **Category:** Factual Questions\ **Created:** [November 23, 2015, 11:14pm UTC](https://boards.straightdope.com/t/would-restricting-immigration-from-muslims-be-unconstitutional/738390 "2015-11-23T23:14:39Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [November 24, 2015, 10:13pm UTC](https://boards.straightdope.com/t/would-restricting-immigration-from-muslims-be-unconstitutional/738390/41 "2015-11-24T22:13:50Z")
Of course the government can take religion into account in making immigration decisions. This happens all the time when someone seeks asylum based on religious persecution. People from a given country who can show that they are of religion X get asylum and get admitted, while people from that same country who are religion Y do not. ---
**Author:** ![Sam\_Stone](https://avatars.discourse-cdn.com/v4/letter/s/ecccb3/32.png) [@Sam\_Stone](https://boards.straightdope.com/u/Sam_Stone)\ **Post date:** [November 24, 2015, 11:52pm UTC](https://boards.straightdope.com/t/would-restricting-immigration-from-muslims-be-unconstitutional/738390/42 "2015-11-24T23:52:50Z")
For those of you saying that religious determinants for immigration are allowed by the Constitution, does this mean that if President Carson announced that from now on only devout Seventh Day Adventists will be considered candidates for immigration, it would be completely legal? ---
**Author:** ![Leo\_Bloom](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/leo_bloom/32/10377_2.png) [@Leo\_Bloom](https://boards.straightdope.com/u/Leo_Bloom)\ **Post date:** [November 25, 2015, 12:07am UTC](https://boards.straightdope.com/t/would-restricting-immigration-from-muslims-be-unconstitutional/738390/43 "2015-11-25T00:07:38Z")
> [@Really\_Not\_All\_That\_Bright](#): > > **Chronos** , you’ve been here long enough to know that … 🙂 A shiver went down my back. You know who commonly precedes a post with that? We Know Who They Are. ---
**Author:** ![watchwolf49](https://avatars.discourse-cdn.com/v4/letter/w/e9c0ed/32.png) [@watchwolf49](https://boards.straightdope.com/u/watchwolf49)\ **Post date:** [November 25, 2015, 12:36am UTC](https://boards.straightdope.com/t/would-restricting-immigration-from-muslims-be-unconstitutional/738390/44 "2015-11-25T00:36:54Z")
> [@Tom\_Tildrum](#): > > Of course the government can take religion into account in making immigration decisions. This happens all the time when someone seeks asylum based on religious persecution. People from a given country who can show that they are of religion X get asylum and get admitted, while people from that same country who are religion Y do not. Nice … if government can choose a specific religion to be let in, then government can choose a specific religion to exclude. ---
**Author:** ![guizot](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/guizot/32/3636_2.png) [@guizot](https://boards.straightdope.com/u/guizot)\ **Post date:** [November 25, 2015, 12:44am UTC](https://boards.straightdope.com/t/would-restricting-immigration-from-muslims-be-unconstitutional/738390/45 "2015-11-25T00:44:08Z")
> [@Tom\_Tildrum](#): > > Of course the government can take religion into account in making immigration decisions. This happens all the time when someone seeks asylum based on religious persecution. People from a given country who can show that they are of religion X get asylum and get admitted, while people from that same country who are religion Y do not. Right, but _only_ when that is part and parcel of a case for persecution. It’s not a blanket rule. Did you see post #25 above? And you know that people who are seeking asylum are already admitted, right? The posting in this thread has too many people mixing up _immigration_, _refugee status_, and _asylum_. These are three very distinct things with different processes, but many here are talking about them as if they were all the same thing. [QUOTE=aldiboronti] My son, who’s English, lived in the US for 5 years. He had a green card, a good job, an American wife and everything seemed fine. Then one day he was called in to the immigration bureau. Because he came in originally on a tourist visa and even though he’d been given his green card they decided he should have exited the country and then applied for a work visa. So because of this he was stripped of all his possessions, locked up, denied access to a lawyer and summarily deported. If the Constitution applies to non-Americans why was he denied any rights at all? That’s why I found the idea of the Constitution protecting non-citizens bizarre. He was told that as an illegal immigrant he had no rights at all. [/quote] The problem, I think, with people in your son’s situation, is that immigration violations are _civil_ matters. Many of the constitutional rights one has with regard to due process (such as representation in court) apply only to _criminal_ matters–or at least, that’s how the courts have ruled on them. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [November 25, 2015, 2:23am UTC](https://boards.straightdope.com/t/would-restricting-immigration-from-muslims-be-unconstitutional/738390/46 "2015-11-25T02:23:15Z")
> [@](#): > > Quoth **John Mace** : > > Well, yeah, the Constitution says Congress shall make no law…, so how do we get from there to “no prayer in school”. We don’t, of course. So far as I know, there has never once in this nation ever been anyone attempting to ban prayer in any school. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [November 25, 2015, 5:35am UTC](https://boards.straightdope.com/t/would-restricting-immigration-from-muslims-be-unconstitutional/738390/47 "2015-11-25T05:35:58Z")
> [@UDS](#): > > It doesn’t have to. It only has to apply to the United States in order to provide a basis for challenging the propriety of an action of the United States. > > It’s not suggested that the Constitution prohibits the US government from securing the borders of the US; merely that it requires the US government to do so in a manner not forbidden by the Constitution - i.e. that it cannot secure its borders by making a law “respecting an establishment of religion, or prohibiting the free exercise thereof”. The question would be whether a legal ban on immigration by Muslims would be a law respecting an establishment of religion, or prohibiting the free exercise thereof. > [@Chronos](#): > > But the matter here isn’t actually a matter of rights, but a matter of the powers of Congress. If the First Amendment had been phrased as “The People shall have the right to free exercise of religion”, then one might make a case that “The People” means citizens, and that noncitizens thus don’t have that right. > > But it’s not phrased that way. Instead, it’s “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”. The Constitution certainly applies to Congress, and so Congress is limited in that way, no matter what citizenship any individuals might hold. Think of it as a somewhat tautological implied restriction, that the Constitution only prohibits infringement of the rights of people who are protected by the Constitution. The first amendment has never, to my knowledge, been extended to non-citizens abroad, and if there is no one who has the right to sue for a supposed violation of constitutional rights, then no protected rights have been violated. > [@UDS](#): > > Precisely. Being a Yazidi doesnt’ get you in. You have to a Yazidi _fleeing a country in which it is established that Yazidis have a well-founded fear of persecution_. It’s the well-founded fear that gets you in, not the religion. > [@kaylasdad99](#): > > It’s more accurate (and less disingenuous) to characterize it as a “peril” litmus test. These aren’t accurate. Asylum is not generalized protection against peril. Only certain specific harms are protected against, one of which is religious persecution. Further, I don’t think an applicant necessarily has to prove individualized danger; once our government has identified a religious group as persecuted in a particular country, it’s sufficient simply to show membership in that religious group. > [@guizot](#): > > Right, but _only_ when that is part and parcel of a case for persecution. It’s not a blanket rule. Did you see post #25 above? And you know that people who are seeking asylum are already admitted, right? Surely you don’t mean to suggest that people already admitted have fewer rights than those who have not been? In other words, if the government can apply a religious test to asylum-seekers who are already here, presumably it can do so to would-be immigrants who have not yet even left home, right? > [@Sam\_Stone](#): > > For those of you saying that religious determinants for immigration are allowed by the Constitution, does this mean that if President Carson announced that from now on only devout Seventh Day Adventists will be considered candidates for immigration, it would be completely legal? For most of its history, US immigration law was set up to permit immigration only from countries that were predominantly white and Christian, and no one has ever suggested that that would be impermissible. ---
**Author:** ![UDS](https://avatars.discourse-cdn.com/v4/letter/u/ecae2f/32.png) [@UDS](https://boards.straightdope.com/u/UDS)\ **Post date:** [November 25, 2015, 5:49am UTC](https://boards.straightdope.com/t/would-restricting-immigration-from-muslims-be-unconstitutional/738390/48 "2015-11-25T05:49:17Z")
> [@watchwolf49](#): > > Nice … if government can choose a specific religion to be let in, then government can choose a specific religion to exclude. Not necessarily. If we admit Yazidis from country X on the basis that it is established that Yazidis from country X have a well-founded fear of persecution on account of religion, it doesn’t follow that we exclude non-Yazidis from country X. We’ll admit non-Yazidi too, if they also have a well founded fear of persecution on account of on account of race, religion, nationality, membership in a particular social group or political opinion. In other words, we’re applying the same rule to everyone: do you have a well founded fear of persecution on account of on account of race, religion, nationality, membership in a particular social group or political opinion? The circumstance of being a Yazidi from country X is enough to establish that you do; people who are not Yazidis from country X need to point to some other circumstance. If we announced that we would _not_ accept Muslims from country X, regardless of whether they had a well-founded fear of persecution on account of race etc, that would be a substantially different kind of decision. The fact that the courts would allow the first decision to stand doesn’t mean that they would allow the second decision to stand. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [November 25, 2015, 6:41am UTC](https://boards.straightdope.com/t/would-restricting-immigration-from-muslims-be-unconstitutional/738390/49 "2015-11-25T06:41:51Z")
> [@Chronos](#): > > My reading is not law, but the Constitution itself is, and it says what it says. Your interpretation in post #9 is unsupported. There is no evidence that your interpretation is accurate and lots of evidence that you are wrong. > [@Sam\_Stone](#): > > I came here looking for such cites, or other legal justification. > > Congress may make rules ‘unacceptable’ to citizens, but not rules that violate the Constitutional rights of the people. > > I still don’t get your argument. Immigration may be the purview of Congress, but that doesn’t mean Congress can order actions that violate the Constitution in defence of the border. For example, if the U.S. government decided it needed to quarter soldiers in the homes of people along the border in order to secure it, that just might run into problems at the Supreme Court. > > Similarly, I suspect that if Obama formally announced that no Christian refugees would be allowed into the country (not that he would, but hypothetically), I suspect the Christian Right would be arguing that such an action is in violation of the First Amendment, as the U.S. government is now using religion as a selector for new citizens, and that’s exactly the kind of thing the establishment clause was written to protect from, isn’t it? > > It’s not about the rights of an immigrant. It’s about the nature of the U.S. government and the separation between church and state. To clarify - all persons in the US enjoy the protections of the constitution through the 14th amendment. Your examples of quartering troops isn’t on point since those are people already in the US. There is no constitutional right for foreign nationals to immigrate to the US. As has been stated, congress controls the rules for immigration and the executive enforces those rules. SCOTUS gives wide latitude, even deference, to those branches in the area of immigration. > [@Sam\_Stone](#): > > For those of you saying that religious determinants for immigration are allowed by the Constitution, does this mean that if President Carson announced that from now on only devout Seventh Day Adventists will be considered candidates for immigration, it would be completely legal? Well, congress would first need to enact those immigration rules, then the executive could enforce them. Then, yes. ---
**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:** [November 25, 2015, 10:26am UTC](https://boards.straightdope.com/t/would-restricting-immigration-from-muslims-be-unconstitutional/738390/50 "2015-11-25T10:26:27Z")
Immigration case law is full of what might politely be called dick moves by the US government that were nonetheless permitted by the court. On May 6, 1882 President Arthur signed the [Chinese Exclusion Act](https://en.wikipedia.org/wiki/Chinese_Exclusion_Act)\* into law which essentially barred immigration by Chinese laborers. But at least if you were Chinese and living in the United States you were ok. For a while. Then on October 1,1888 the [Scott Act](https://en.wikipedia.org/wiki/Scott_Act_%281888%29) was passed barring Chinese from reentering the United States if they left. This led to a [Supreme Court challenge](https://en.wikipedia.org/wiki/Chae_Chan_Ping_v._United_States) by Chae Chan Ping. Ping was a resident of California since 1875, but returned to China to visit family in 1887 or early 1888. Prior to leaving he got a reentry permit, supposedly guaranteeing the right to reenter the United States. Ping boarded a ship in Hong Kong on September 7, 1888 for his return to the United States. The Scott Act was passed and signed into law during his voyage and upon arrival in San Francisco on October 8, 1888 he was denied entry into the United States. Ping was screwed. Legal maneuvers began with a lower court ruling that Ping’s detention aboard the ship that brought him to San Francisco was lawful. And his denial of entry was not a violation of a previous treaty between the US and China. The Supreme Court heard Ping’s appeal and unanimously ruled against him. The Court essentially said the political branches of government can do whatever they want as that is an inherent right of sovereignty. - The Chinese Exclusion Act was later repealed on December 17, 1943. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [November 25, 2015, 2:16pm UTC](https://boards.straightdope.com/t/would-restricting-immigration-from-muslims-be-unconstitutional/738390/51 "2015-11-25T14:16:09Z")
> [@guizot](#): > > The problem, I think, with people in your son’s situation, is that immigration violations are _civil_ matters. Many of the constitutional rights one has with regard to due process (such as representation in court) apply only to _criminal_ matters–or at least, that’s how the courts have ruled on them. Many of the constitutional rights one has with regard to criminal proceedings do not apply, such as (most of) the Fifth, Sixth and Seventh Amendments. The right to due process still applies, which is why a hearing is required for deportation. He could not have been denied _access_ to an attorney in any case, though; the government just wasn’t required to provide him with one. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [November 25, 2015, 2:26pm UTC](https://boards.straightdope.com/t/would-restricting-immigration-from-muslims-be-unconstitutional/738390/52 "2015-11-25T14:26:52Z")
Reading this, I am amazed once again as to how, “backward” (for the want of a better term) U.S administrative law is. Deference sounds so early 20th century and apparently is enough to justify executive actions. Waiting for U.S lawyers to tell me how wrong I am. Seriously no Wednesbury type reasonableness there? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [November 25, 2015, 2:45pm UTC](https://boards.straightdope.com/t/would-restricting-immigration-from-muslims-be-unconstitutional/738390/53 "2015-11-25T14:45:29Z")
This isn’t an administrative law issue. Deference on immigration matters applies to both executive and legislative action. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [November 25, 2015, 4:37pm UTC](https://boards.straightdope.com/t/would-restricting-immigration-from-muslims-be-unconstitutional/738390/54 "2015-11-25T16:37:19Z")
> [@](#): > > Quoth **Bone** : > > Your interpretation in post #9 is unsupported. There is no evidence that your interpretation is accurate and lots of evidence that you are wrong. Beg pardon? It’s supported by the Constitution, and there is literally nothing else that could be a basis for support for any claim on this topic. Yes, I’m aware that the courts have not ruled on any such matter. But that’s irrelevant. If that were the only form of support that were possible, then upon what would the courts themselves base their decisions? ---
**Author:** ![guizot](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/guizot/32/3636_2.png) [@guizot](https://boards.straightdope.com/u/guizot)\ **Post date:** [November 25, 2015, 4:46pm UTC](https://boards.straightdope.com/t/would-restricting-immigration-from-muslims-be-unconstitutional/738390/55 "2015-11-25T16:46:41Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Many of the constitutional rights one has with regard to criminal proceedings do not apply, such as (most of) the Fifth, Sixth and Seventh Amendments. The right to due process still applies, which is why a hearing is required for deportation. He could not have been denied _access_ to an attorney in any case, though; the government just wasn’t required to provide him with one. Yes, sorry, that’s what I meant. And in complicated immigration cases like that one, if you don’t have an attorney, you’re probably going to lose. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [November 25, 2015, 4:55pm UTC](https://boards.straightdope.com/t/would-restricting-immigration-from-muslims-be-unconstitutional/738390/56 "2015-11-25T16:55:08Z")
> [@Chronos](#): > > Yes, I’m aware that the courts have not ruled on any such matter. The courts have ruled on this matter, and they disagree with you. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [November 25, 2015, 5:00pm UTC](https://boards.straightdope.com/t/would-restricting-immigration-from-muslims-be-unconstitutional/738390/57 "2015-11-25T17:00:33Z")
> [@Chronos](#): > > Beg pardon? It’s supported by the Constitution, and there is literally nothing else that could be a basis for support for any claim on this topic. > > Yes, I’m aware that the courts have not ruled on any such matter. But that’s irrelevant. If that were the only form of support that were possible, then upon what would the courts themselves base their decisions? The courts have ruled, and they have ruled contrary to your interpretation. Court decisions are perfectly responsive to support the claims on this topic and their rulings are completely relevant. You are wrong here. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [November 25, 2015, 5:12pm UTC](https://boards.straightdope.com/t/would-restricting-immigration-from-muslims-be-unconstitutional/738390/58 "2015-11-25T17:12:44Z")
Where are any of these rulings? The courts ruled the Chinese Exclusion Act permissible, for instance, _but that wasn’t based on religion_, and as such has no relevance to the present question. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [November 25, 2015, 5:23pm UTC](https://boards.straightdope.com/t/would-restricting-immigration-from-muslims-be-unconstitutional/738390/59 "2015-11-25T17:23:28Z")
To explore the bounds of the disagreement here, let me ask those on the “unconstitutional” side: Do you believe that it would be permissible for Congress to pass a new Immigration and Nationality Act that sets forth a list of countries from which no immigrants will be permitted, and to have that list include every Muslim-majority country? And then one step further: Would it be permissible for that Act’s list of exclusions simply to say “all Muslim-majority countries”? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [November 25, 2015, 5:39pm UTC](https://boards.straightdope.com/t/would-restricting-immigration-from-muslims-be-unconstitutional/738390/60 "2015-11-25T17:39:40Z")
> [@Chronos](#): > > Where are any of these rulings? The courts ruled the Chinese Exclusion Act permissible, for instance, _but that wasn’t based on religion_, and as such has no relevance to the present question. Why do you think that distinction is significant? [Previous page](https://boards.straightdope.com/t/would-restricting-immigration-from-muslims-be-unconstitutional/738390.md?page=2) [Next page](https://boards.straightdope.com/t/would-restricting-immigration-from-muslims-be-unconstitutional/738390.md?page=4)