In a truly shocking and facially unconstitutional plan, Republican Presidential Candidate Donald Trump is calling for a “total and complete shutdown” of Muslims entering the United States. The plan would violate a host of domestic and international protections, as I discussed today with the Washington Post.
Trump stated that “[i]t is obvious to anybody the hatred [among Muslims] 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.”
Trump said he would ease the ban in the case of Muslims serving in the U.S. military and allow them to return home. that is still well short of constitutional — or rational — plan. For Muslim citizens, such a plan would be grossly unconstitutional under the first and fifth amendments. The latter prohibits The depriving of individuals of “life, liberty, or property,” without due process of the law and an implicit guarantee of equal protection of the laws.
It is certainly true that the constitutional protections often turn on whether someone is consider a “person” under the United States Constitution. In Plyler v. Doe, 457 U.S. 202 (1982), the Supreme Court struck down a Texas statute denying funding for education to unauthorized immigrant children. Being present within the United States does afford protections of due process and equal protection. Outside of the country immigrants without resident status face a more difficult challenge. However, international law and conventions afford protections for travel and religion.
The law would harken back to the disgraceful period of the Chinese Exclusion laws. We have long rejected immigration limits based discriminatory classes of this kind. Indeed, the Immigration and Nationality Act protects potential refugees facing “fear of persecution” on account of their “religion.” Yet under President Trump we would now formally impose such a discriminatory element, a move that would make the United States a pariah around the world and immediately extinguish our relations with Islamic countries.
Immigration policy has cleared resonated as a draw for Trump. However, this proposal would openly embrace raw prejudice and blind rage as motivating factors for governmental policy. It would clearly fail in denying reentry for citizens or residents. As for non-citizens abroad, they are accorded protections under international law. Under Article 13 of the Universal Declaration of Human Rights, people have the right to leave or enter a country and that “everyone has the right to leave any country, including his own, and to return to his country.” There is no doubt murky aspects to such rights and a long-standing question of their enforceability. However, this proposal rests on flagrant religious discrimination against one group. It seeks to “protect” the United States by denying the very essence of who we are as a nation.