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Does Trump's Ban On Muslim Immigrants Violate The Constitution? Roger Algase

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Does Donald Trump's proposal to ban all Muslims from entering the US violate the constitution? Maybe this is the wrong question. Perhaps a better question would be whether Trump cares whether his proposal is constitutional or not, and whether he would be dissuaded from implementing it even if it were ruled to be unconstitutional by the US Supreme Court.

As originally presented, at least part of his proposal was obviously unconstitutional, because it was not limited to banning non-citizens on the basis of religion, but also would have banned Muslim US citizens who happened to be overseas from returning to the US.

According to news reports at the time, when a spokesperson for Trump was asked if the ban would apply to American citizen Muslims, the answer was "Mr. Trump says everybody." Other than an ambiguous statement on Fox News, I have not seen any subsequent clarification of this proposal, which would be the most egregious possible violation of the First Amendment's guarantee of freedom of religion, coming from Donald Trump.


Trump may not be a constitutional scholar, but he certainly must know about the First Amendment. The fact that he has never made clear that his proposed ban would apply only to non-US citizens is highly disturbing.

It could be a sign that he does not care about the constitution and has no intention of letting himself be bound by it if he becomes president.

But even giving Trump the benefit of the doubt and assuming that he only meant his proposal to apply to Muslim non-US citizens, is there a valid argument that the "plenary power" of the "political branches" of the government, i.e. Congress and the executive, over immigration, Trumps the First Amendment's guarantee of the free exercise of religion?

One of the most forceful arguments to the effect that plenary power over immigration overrides constitutional guarantees has been asserted by Temple University Law Professor Jan Ting, who writes:

"The hysterical response to Donald Trump's proposal to restrict Muslim immigration is unwarranted."


As will be seen in Part 2 of these comments, Professor Ting's statement is based almost entirely on precedents which were decided under the notorious Chinese exclusion laws in the late 19th Century.

As an audience member at an immigration seminar which took place a few years ago in New York, I had the opportunity to ask Professor Ting if he thought that the Chinese exclusion laws were a good model for America's immigration system.

Normally very forthright in arguing in favor of increased immigration enforcement and related restrictive immigration policies, Professor Ting, who (according to Wikipedia) is the US born son of Chinese immigrants who left that country after the Japanese invasion to come to the US, looked uncomfortable (which, I will admit, was one of the purposes of my question) and was silent for a brief time.

Then he finally said that the Chinese exclusion laws (which would have barred his own parents from becoming naturalized US citizens at the time they immigrated) were "constitutional". That did not answer my question, because everyone in the auditorium already knew that the Chinese exclusion laws had been held Constitutional in that period of rampant racial and religious prejudice and persecution in America.

But how valid are those decisions as precedents today? And how "plenary" is the "plenary power doctrine? Is this doctrine absolute in the sense that no immigration law or executive action can ever be reviewed by the courts on constitutional, as opposed to purely statutory grounds?

In Part 2, I will take a look at the cases that Professor Ting cites in favor of upholding Trump's proposed ban on Muslim immigrants from entering the United States and show that, according to these cases, the scope for review of immigration actions on constitutional grounds may be narrow, but it is not non-existent.

I will then turn to the question whether it would not more appropriate for a 21st Century America, which is demographically moving toward a diverse, multicultural, multi-racial, multi-religious society undreamed of in the late 19th Century and early 20th century era of Chinese exclusion laws and other forms of bigotry against immigrants on the basis of race or religion, to part company at long last with the precedent decisions from that era severely restricting or eliminating constitutional protections for non-US citizens seeking to enter the US as visitors or immigrants.
Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School who has been serving mainly skilled and professional immigrants from many different parts of the world and ethnic/religious backgrounds for more than 35 years. His email address is

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Updated 02-22-2016 at 10:14 AM by ImmigrationLawBlogs

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  1. Retired INS's Avatar
    We won't know until he becomes President - unless he tries to do it by executive action, it will never pass Congress. However, what he could legally do is refuse to take in refugees from Syria. The President decides which refugees to take in, and how many. It would be easy, and Constitutional, to simply ignore refugees from Syria.
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