Trump’s proposal is unconstitutional say legal experts

U.S. Republican presidential candidate Donald Trump waves to the crowd at a Pearl Harbor Day rally aboard the USS Yorktown Memorial in Mount Pleasant, South Carolina

U.S. Republican presidential candidate Donald Trump waves to the crowd at a Pearl Harbor Day rally aboard the USS Yorktown Memorial in Mount Pleasant, South Carolina


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.

Trump’s proposed ban, announced to cheers at a rally in South Carolina on 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 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 the 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 New York University’s law school.

“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.

‘Ugly history’

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’s comments have been condemned by all sides of the political spectrum. The White House on Tuesday said Trump’s comments disqualified him from becoming president and called on Republicans to reject him immediately.

White House spokesman Josh Earnest said Trump’s campaign had a “dustbin of history” quality to it and said his comments were offensive and toxic.

Earnest said other Republican presidential candidates, who have pledged to support the person who eventually wins their party’s nomination, should disavow Trump “right now.”

But Trump on Tuesday stood by his call, even as the idea was widely condemned by rival Republican presidential candidates, party leaders and others as un-American.

“I don’t care about them,” Trump told CNN in an early-morning phone interview, when asked about denunciation by Republican Party leaders. “I’m doing what’s right.”

Trump’s campaign has been marked by a pattern of inflammatory statements, dating back to his harsh rhetoric about Mexican immigrants. He has taken a particularly hard line against Muslims in the days since the Paris attacks, advocating enhanced surveillance of mosques due to fears over radicalization.

Despite his controversial rhetoric, Trump has held on to his status as the front-runner for the 2016 Republican nomination, with less than two months to go before the first primary contests.

Many Republicans worry that his rise will damage the party’s chances of winning the White House in November, as Hillary Rodham Clinton consolidates her own front-runner status on the Democratic side.

“Quite simply wrong”

“This is not conservatism,” House Speaker Paul Ryan told reporters after a closed-door Republican caucus meeting in response to Trump’s comments. “What was proposed yesterday is not what this party stands for and more importantly, it’s not what this country stands for.”

British Prime Minister David Cameron slammed Trump’s proposal as “divisive, unhelpful and quite simply wrong.”

Muslims in the United States and around the world denounced it as unconstitutional or offensive. The front page of the Philadelphia Daily News featured a photo of Trump holding his right hand out as if in a Nazi salute with the headline “The New Furor.”

But Trump, who appears to revel in controversy, didn’t back down, saying that banning all Muslims “until our country’s representatives can figure out what the hell is going on,” is warranted after last month’s attacks by Muslim extremists in Paris and last week’s shooting in San Bernardino, California, that killed 14.

“We are now at war,” said Trump, who further defended his plan by comparing it with President Franklin Roosevelt’s decision to intern Japanese Americans during World War II.

Trump’s proposed ban would apply to immigrants and visitors alike, a sweeping prohibition affecting all adherents of a religion practiced by more than a billion people worldwide.

The current Republican poll-leader announced his plan to cheers and applause at a Monday evening rally in South Carolina, where many supporters welcomed the proposal.

Since the Nov. 13 attacks in Paris that killed 130 people and wounded hundreds, a number of Republican presidential contenders have proposed restrictions on refugees and tighter surveillance in the U.S..

But Trump’s proposed ban goes much further, and his Republican rivals were quick to reject the latest provocation from a candidate who has delivered no shortage of them.

“Donald Trump is unhinged,” Jeb Bush said via Twitter. “His ‘policy’ proposals are not serious.”


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