Madison, WI – Donald Trump’s call to block all Muslims from entering the United States is not only unconstitutional, but also impossible to carry out, legal experts said Tuesday.
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Trump’s proposed ban, announced to cheers at a rally in South Carolina Monday, would apply to immigrants and visitors alike, a sweeping prohibition affecting all adherents of a religion practiced by more than a billion people worldwide.
Beyond inciting condemnation from Republican presidential rivals, GOP leaders and others, legal and immigration experts said Tuesday that Trump’s proposal violated the Constitution’s equal protection clause and freedom of religion granted under the First Amendment.
“It is blatantly unconstitutional and it’s an attack on the very foundation of the United States,” said Marci Hamilton, a law professor specializing in the First Amendment at Yeshiva University in New York City. She called his idea “laughable.”
“It’s never possible to fully ascertain what someone believes internally,” Hamilton added. “How does one recognize a Muslim, a Christian or a Jew? Do you look at where they were born, do you look at where they were raised? Do you look at the last religious service they attended?”
Trump’s proposal amounts to a religious test for anyone wanting to enter the country, something that is unprecedented in U.S. history, said Nancy Morawetz, a professor of Clinical Law at the New York University School of Law.
“If one has this kind of a rule, you have to figure out how you’re going to test it and verify it,” Morawetz said. “What this really means is there would be a religious identity card.”
Even an anti-immigration group that for decades has advocated curtailing the influx of immigrants to the U.S. disavowed Trump’s religion-based exclusion.
“Nobody’s interested in selecting people solely on their religion or their faith,” said Dan Stein, president of the Washington-based Federation for American Immigration Reform.
Trump’s comments highlight the broader concern over the immigrant vetting process, Stein said.
“Donald Trump is unartful, but it seems to us what he’s really putting his finger on is this broader question of suspending a significant swath of immigration until this country can reassert a better screening process,” Stein said.
U.S. immigration law has some “very, very ugly history” where people have been turned away based on their nation of origin, but never on their religion, Morawetz said.
In the late 1800s, Congress passed legislation broadly aimed at halting the immigration of Chinese laborers. Those were not fully repealed until 1943. Quotas limiting immigration based on race and national origin were also enacted in the early 1900s. Racial quotas were repealed in 1952, and those limiting people based on national origin were eliminated in 1965.
Legal scholars believe such bans, if proposed today, would not be found to be constitutional, Morawetz said.
Religion can factor into immigration decisions, but that typically happens when people are fleeing religious persecution. So people of a particular religion may get favorable treatment by the United States, as when Russian Jews sought to leave the Soviet Union.
Trump, who has built his Republican presidential candidacy around inflammatory rhetoric, stood by his latest statements Tuesday, saying stopping all Muslims from entering the U.S. is necessary because of hatred among “large segments of the Muslim population” toward Americans.
Trump said banning all Muslims “until our country’s representatives can figure out what the hell is going on” is warranted after attacks by Muslim extremists in Paris and last week’s shooting in San Bernardino, California, that killed 14.
now let’s examine if everything Obama said & DID was “constitutional” or against what America’s Forefathers wrote ????????????!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
how about the executive motions by the white house – they’re UNCONSTITUTIONAL
This is ridiculous there is no law in the constitution stating we must except people that aren’t citizens into are country. Let’s be honest and not twist everything into something Donald didn’t say. He said Muslims from other country’s that aren’t American citizens. He’s dam right. 100% of all terrorists are Muslim so there is something seriously wrong with the Muslims and we have no way of vetting them as proven so we shouldn’t take any in to risk American lives!
The media should cease all their pediatric chatter. A little maturity is needed here.
Trump shoots from the mouth, and there are too few barriers in place to contain his rhetoric. While all campaigning politicians say rash things, most do so to convince the public, without much seriousness to implement much of what they say. Many make promises that are outrageous, and very few keep to anything. However, their speeches are here to inform us about their opinions, and the directions they will go in leadership.
Obama y”sh failed miserably. He never had the intention to anything other than to rape the public. His socialistic views were couched in liberal vocabulary, and the oilem goilem bought it. He is a true Muslim terror sympathizer and supporter, and all of his actions prove that he hates Israel while embracing evil.
Trump must know that his Muslim ban thing is impossible, which those of us with intellect have guessed. However, his broad brush opinion is consistent with much of America. One cannot trust a Muslim, whose siblings commit most of the terror. I dismiss the “ban” thing. But his distrust is rational. Just not PC. To h** with political correctness.
Trump is being routed for saying what everyone thinks. But the truth is, it shows extremely poor judgment and I wish he would just drop out already, lest we find Hillary in the oval office instead of a prison cell where she belongs
The “experts” are wrong. The Constitution does NOT apply to non citizens.