WASHINGTON — If Donald Trump is elected president, there are lots of things he has promised to do that would require an act of Congress. Barring immigration from Muslim nations — as a way to keep Muslims out of the U.S. — is probably not among them.
The nation’s immigration laws give enormous power to the president to determine who and how many immigrants to allow into the U.S. And experts largely agree that if Trump, the presumptive Republican nominee, wanted to ban immigration from certain nations to keep out Muslim newcomers as he has proposed, he could probably do so.
“I think there is good reason to believe he has ample authority to exclude, for at least some period of time, anyone he wants,” said Muzaffar Chishti, a lawyer and director of the Migration Policy Institute’s office at the New York University law school. “There is an operational aspect to this that makes it absolutely clear that the president has the authority to do what Mr. Trump suggests.”
That doesn’t mean it would be easy: Political backlash, pressure from American allies, legal battles and more could make such a program untenable. Congress could curtail, block or shut down any such effort, if it could muster the votes. And there are clear limits on any attempt to keep Muslims who already have legal residency status in the U.S. from re-entering the country if they travel abroad, as Trump also has suggested in the past that he might be interested in doing.
It would also be virtually impossible to implement under the current system — if he only wanted to keep Muslims out and not people of other faiths from those countries, that is — because immigrants aren’t screened by religion and such information isn’t supplied on a person’s passport. And, of course, Islam is one of the world’s largest religions: If he truly wanted to keep all Muslims from entering the country, he’d probably have to shut down immigration from practically everywhere.
To employ a phrase Trump likes to use, not gonna happen.
The last word
But that’s different from saying Trump couldn’t do what has never been done before — effectively barring immigrants from specific countries, based on the major religion in those countries, as a way to keep potential terrorists out of the U.S. The standing jurisprudence is that when it comes to deciding who comes in and who doesn’t, the president and his administration gets the last word.
In fact, Trump last week — as he reiterated his immigration plans in the wake of the shootings of 49 people in Orlando, despite the fact that the 29-year-old shooter was born in the U.S. — started laying the legal groundwork for such a proposal, saying he would “suspend immigration from areas of the world where there is a proven history of terrorism against the United States, Europe or our allies.”
While that sounds nondenominational, Trump made it clear in a speech in which he spoke at length about the threat posed by “radical Islamic terrorism” that he wasn’t talking about Christians, Jews or followers of other faiths. He was talking about the “more than 100,000 immigrants from the Middle East, and many more from Muslim countries outside the Middle East,” who come into the U.S. each year, saying they threaten our security.
President Barack Obama and Hillary Clinton, the presumptive Democratic nominee for president, as well as many others, lambasted Trump for such an idea. They said any effort to treat all Muslims as potential terrorists because of their religion would not only weaken our standing abroad, it would likely create more homegrown radicals out of people feeling like they were being targeted by the federal government.
“We don’t have religious tests here,” Obama said, rebuking Trump’s proposal. “Our founders, our Constitution, our Bill of Rights are clear about that. And if we ever abandon those values, we would not only make it a lot easier to radicalize people here and around the world, but we would have betrayed the very things we are trying to protect.”
But, again, that’s not to say Trump couldn’t do it.
The statute at hand
The key statute is found in Section 212(f) of the Immigration and Nationality Act, and it says, that “Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States” he can keep them out for “such period as he shall deem necessary.”
It’s a statute that gets used somewhat regularly, too: In 1993, President Bill Clinton used it to bar the entry of Haitian nationals interested in impeding negotiations to restore a constitutional government there after President Jean-Bertrand Aristide was overthrown; in 2011, Obama used it to keep out anyone who had committed war crimes or otherwise violated recognized human rights and humanitarian laws.
President George Bush used it in 1992 to block Haitian refugees attempting to reach the U.S. by boat and returned them to Haiti. In a case that went to the U.S. Supreme Court, critics said Bush’s order violated other statutes not to deport or return any immigrant to a country where his or her life could be threatened; the court ruled that only applied to people who made it into the U.S — not those found at sea.
There is already a statute that allows the U.S. to bar potential immigrants suspected of terrorist activity, which can include even raising money or acting as a spokesman for a terrorist group. But the Supreme Court has found that when it comes to people outside the U.S. trying to get in, even people who may have family ties in the U.S. or who insist on seeing what evidence the U.S. has of suspected terrorist activity, there is little if any due process owed them under the Constitution.
“Would the Supreme Court feel the same way under a ban on all Muslims? It presents a real constitutional challenge,” said William Stock, an immigration lawyer in Philadelphia and incoming president of the American Immigration Lawyers Association. “As a general matter, the Supreme Court has said a lot of these substantive immigration decisions are related to foreign powers and political questions that (it) prefers not to adjudicate.”
Depending how far a President Trump might take such a policy, however, there could be legal questions: If he tried, for instance, to keep permanent legal residents in the U.S. from re-entering while traveling abroad, they could invoke due process rights to challenge it. And if he attempted to specifically limit the number of Muslims entering the country, there would be the possibility of a legal argument that such an act constituted a sort of federal establishment of a religion. That’s constitutionally barred under the First Amendment.
But barring all immigrants from specific countries deemed a threat by Trump because of what he refers to as “radical Islamic terrorism?” That’s entirely possible.
“The Constitution tends to stop at the water’s edge,” said Stock. “The president could say or the Congress could say all left-handed people are barred from the United States.”
A sweeping success?
From a practical standpoint, such a program would have to be sweeping to work: It would probably have to bar not only Muslims but Christians, Catholics, Jews and people of any other faith from the targeted countries, without a religious test to somehow screen immigrants that would face constitutional scrutiny and backlash at home and abroad.
As such, a program to bar all immigrants from those countries would likely generate huge political pressures on the administration and on Congress to stop it. And it would alienate American Muslims, who have widely denounced the shootings in Orlando, as well as those at Ft. Hood in Texas and at San Bernardino, Calif., as being unrepresentative of followers of their faith.
Trump’s comments, meanwhile, are already having “a very negative impact on the community,” said Fay Beydoun, executive director of the American Arab Chamber of Commerce, a national business group based in Dearborn. She recalled not only Japanese internment during World War II, but programs after the attacks of Sept. 11, 2001, that required foreign nationals from Muslim-majority nations to register with the government, as well as have their fingerprints taken and movements monitored.
“The impact of Trump trying to do anything similar to this will continue to divide our country. Then they (Arab Americans) are going to feel more targeted, especially the youth,” said Beydoun. “All of our mosques, all our agencies have been working with government officials to help with the fight against terrorism.”
“Trump’s banning Muslim immigration plan is not only alienating American Muslims, but would also not make us safer if enacted,” said Dawud Walid, executive director of the Council on American-Islamic Relations, Michigan’s chapter. “His hyperbole may play well to his base, but the majority of Americans don’t share his views.”
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