On December 7th, 2015, Republican presidential candidate Donald Trump released a statement calling for the ban on an entire religion from entering the United States of America.
Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on. According to Pew Research, among others, there is great hatred towards Americans by large segments of the Muslim population. Most recently, a poll from the Center for Security Policy released data showing “25% of those polled agreed that violence against Americans here in the United States is justified as a part of the global jihad” and 51% of those polled, “agreed that Muslims in America should have the choice of being governed according to Shariah.” Shariah authorizes such atrocities as murder against non-believers who won’t convert, beheadings and more unthinkable acts that pose great harm to Americans, especially women.
Mr. Trump stated, “Without looking at the various polling data, it is obvious to anybody the hatred is beyond comprehension. Where this hatred comes from and why we will have to determine. Until we are able to determine and understand this problem and the dangerous threat it poses, our country cannot be the victims of horrendous attacks by people that believe only in Jihad, and have no sense of reason or respect for human life. If I win the election for President, we are going to Make America Great Again.” – Donald J. Trump
This is, by far, one of the most bigoted statements Trump, or any other politician, has made in my lifetime. The lies used to push a nationalistic agenda places him in history among the likes of France’s National Front.
Does a President have this authority?
Trump has asserted that U.S. immigration law would grant him the authority to institute
the ban. Although he has not cited any particular provision, it appears he is invoking 8 US Code § 1182(f) the authority vested in the president to suspend entry of “any class of aliens.”
But Congress cannot grant, and a president cannot exercise, authority that would violate the Constitution. In light of the constitutional flaws in Trump’s proposed ban, § 1182(f ) either must be read narrowly not to authorize such unconstitutional conduct, or it should be struck down as unconstitutional insofar as it authorizes such a ban.
Is Trump’s proposal constitutional?
A ban on Muslim U.S. citizens from entering the United States would be a blatant violation of due process and equal protection under the Fifth Amendment and the basic principle that the government may not banish its citizens or deny them entry to the United States.
In addition, any religion-based bar on the readmission of lawful permanent residents — who have a lawful right to readmission (particularly after a brief trip abroad) unless and until the government can prove they should lose that right — should fail under the Due Process Clause.
What about Trump’s evidence he used for justification of a ban?
While the study Trump cited does exist, it’s not at all clear that it supports his argument that “there is great hatred towards Americans by large segments of the Muslim population.” There are several important problems with the survey that call into question whether the results are representative of the entire U.S. Muslim population. It was an online, opt-in survey, which tend to produce less reliable samples because respondents choose to participate. In traditional polling methods, everyone in a population has a chance of being selected for the survey, meaning the results generally reflect the country’s demographics.