Would restricting immigration from Muslims be Unconstitutional?

[UDS]

@Guinastasia

I don’t know if the US recognizes a distinction, do they? (Legally, I mean)

I don’t think they recognise such a distinction in Germany either, actually.

Notwithstanding what fire hazard says, the question that has been canvassed before the German courts is whether Scientology is a “religion or worldview” (either would be enough to secure it constitutional protection, so as long as it’s one of those two things it doesn’t matter which one) or whether it predominantly pursues commercial aims as a profit-making enterprise. The Federal Court of Justice, which is the highest court in the system, has never given a ruling on the matter. Lower courts and tribunals have given diverse rulings.

[John_Mace]

@Leo_Bloom

A religious “litmus test” is already in place. If you are a Yazidi, expedited refugee status is guaranteed.

No. If you were a Yazidi, living as a citizen of the UK, you wouldn’t be expedited into the US.

[Leo_Bloom]

I don’t think refugees from Britain is a thing…

[UDS]

@Flyer

Nonsense. The Constitution does not apply world-wide.

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.

@Flyer

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.

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.

[UDS]

@Leo_Bloom

I don’t think refugees from Britain is a thing…

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.

[Bone]

@Chronos

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.

No, restricting immigration by religion would not be a prohibited exercise of power, nor would it be unconstitutional. Can you provide a cite where this has ever been established?

As Iggy points out in post #8, immigration is the purview of congress. Here is an articletalking about some of the issues.

See also Denmore v. Kim:

Congress, justifiably concerned with evidence that deportable criminal aliens who are not detained continue to engage in crime and fail to appear for their removal hearings in large numbers, may require that persons such as respondent be detained for the brief period necessary for their removal proceedings. In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.

[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.

[puddleglum]

@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.

In order for something to be declared unconstitutional someone has to sue. In order to have standing that person has to have suffered a harm. The only persons to suffer actual harm would be the would be muslim refugee. These people are not in the US and so the constitution does not protect their rights.
It might be possible for a relative to sue on the basis that they were denied family reunification based on their religion.

[Shodan]

@puddleglum

It might be possible for a relative to sue on the basis that they were denied family reunification based on their religion.

This is what occurred to me as well. Some Muslim who was already here, had gained citizenship, and wanted to bring in some relatives who would be admitted if they were British or something, but who were denied because they were Muslim.

The argument would be that the Muslim citizens were being denied the equal protection of the law. And it would be a pretty strong argument, ISTM. Whether or not that meant Congress could exclude Muslims who didn’t have family or sponsors in the US I couldn’t say.

IANAImmigrationL.

Regards,
Shodan

[watchwolf49]

Article I, Section 8, Clause 4 of the US Constitution:

The Congress shall have Power … To establish an uniform Rule of Naturalization

[aldiboronti]

@MEBuckner

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).

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.

[AK84]

He could’nt get citizenship from you? (Are you American, or is he an adopted/ raised by you case?)

[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.

[Really_Not_All_That_Bright]

Chronos, you’ve been here long enough to know that your personal reading of constitutional provisions is not law, even if it happens to be the most sensible one.

@Sam_Stone

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.

Iggy basically got it. Where the Constitution specifically devolves certain powers to the other branches (such as the authority of the POTUS to make war) they will either defer heavily to their position or refuse to review decisions in that area.

In the specific case of immigration, SCOTUS has basically given Congress and the POTUS carte blanche to ignore the 14th Amendment where an “overriding national interest” is at issue. It’s considered to derive from the politicial branches’ supremacy over foreign affairs.

When the Federal Government asserts an overriding national interest as justification for a discriminatory rule which would violate the Equal Protection Clause if adopted by a State, due process requires that there be a legitimate basis for presuming that the rule was actually intended to serve that interest. If the agency which promulgates the rule has direct responsibility for fostering or protecting that interest, it may reasonably be presumed that the asserted interest was the actual predicate for the rule. That presumption would, of course, be fortified by an appropriate statement of reasons identifying the relevant interest. Alternatively, if the rule were expressly mandated by the Congress or the President, we might presume that any interest which might rationally be served by the rule did in fact giverise to its adoption.

In this case the petitioners have identified several interests which the Congress or the President might deem sufficient to justify the exclusion of noncitizens from the federal service.

Hampton v. Mow Sun Wong, 426 U.S. 88, 103-04, 96 S.Ct. 1895, 1905 (1976).

[Really_Not_All_That_Bright]

Basically, it’s the POTUS’ job to make treaties and Congress’ job to implement them, so according to SCOTUS it’s nobody else’s business how foreign nationals are treated (for the most part).

One of the most important and delicate of all international relationships, recognized immemorially as a responsibility of government, has to do with the protection of the just rights of a country’s own nationals when those nationals are in another country. Experience has shown that international controversies of the gravest moment, sometimes even leading to war, may arise from real or imagined wrongs to another’s subjects inflicted, or permitted, by a government. 1This country, like other nations, has entered into numerous treaties of amity and commerce since its inception – treaties entered into under express constitutional authority, and binding upon the states as well as the nation. Among those treaties have been many which not only promised and guaranteed broad rights and privileges to aliens sojourning in our own territory, but secured reciprocal promises and guarantees for our own citizens while in other lands. And apart from treaty obligations, there has grown up in the field of international relations a body of customs defining with more or less certainty the duties owing by all nations to alien residents – duties which our State Department has often successfully insisted foreign nations must recognize as to our nationals abroad. In general, both treaties and international practices have been aimed at preventing injurious discriminations against aliens. Concerning such treaties, this Court has said: “While treaties, in safeguarding important rights in the interest of reciprocal beneficial relations, may by their express terms afford a measure of protection to aliens which citizens of one or both of the parties may not be able to demand against their own government, the general purpose of treaties of amity and commerce is to avoid injurious discrimination in either country against the citizens of the other.” Legal imposition of distinct, unusual and extraordinary burdens and obligations upon aliens – such as subjecting them alone, though perfectly law-abiding, to indiscriminate and repeated interception and interrogation by public officials – thus bears an inseparable relationship to the welfare and tranquillity of all the states, and not merely to the welfare and tranquillity of one.

Hines v. Davidowitz, 312 U.S. 52, 64-66, 61 S.Ct. 399, 402-03 (1941).

[kaylasdad99]

@Leo_Bloom

A religious “litmus test” is already in place. If you are a Yazidi, expedited refugee status is guaranteed.

@John_Mace

No. If you were a Yazidi, living as a citizen of the UK, you wouldn’t be expedited into the US.

@Leo_Bloom

I don’t think refugees from Britain is a thing…

Probably isn’t. But that doesn’t do anything for your contention that the Yazidis benefit from a religious litmus test.

It’s more accurate (and less disingenuous) to characterize it as a “peril” litmus test.

[Chronos]

Quoth RNATB:

Chronos, you’ve been here long enough to know that your personal reading of constitutional provisions is not law, even if it happens to be the most sensible one.

My reading is not law, but the Constitution itself is, and it says what it says.

[kaylasdad99]

@watchwolf49

Article I, Section 8, Clause 4 of the US Constitution:

The Congress shall have Power … To establish an uniform Rule of Naturalization

This is where I see there might be an opening. Can Congress get dinged on the Rule if it’s not uniform?

One suspects that if Congress makes a Rule that excludes Muslims from Syria, but not from, say, Jordan (or England), it could be attacked as not being uniform.

Or am I appealing to too broad a definition of “uniform” here?

[Really_Not_All_That_Bright]

“Uniform” in Clause 4 means uniform across the states, not uniform as to immigrants. In other words, it’s just saying Congress has exclusive power to establish the law of naturalization, rather than allowing states to set their own immigration policy.

[John_Mace]

@Chronos

My reading is not law, but the Constitution itself is, and it says what it says.

Well, yeah, the Constitution says Congress shall make no law…, so how do we get from there to “no prayer in school”. Are you suddenly a strict textualist???