Since Republican presidential front-runner Donald Trump called Monday for a “complete shutdown of Muslims entering the United States,” he has been met with widespread criticism from politicians, policymakers and experts. Rivals slammed the discriminatory proposal as “reprehensible,” “unhinged,” and even “fascist” — while legal scholars noted it is almost certainly unconstitutional.
While a blanket plan for religious discrimination violates several general provisions of the U.S. Constitution, Harvard Law Professor Laurence Tribe stresses that Trump’s attempts to justify his plan’s legality Monday actually further revealed its shortcomings. The legal scholar had the following exchange with MSNBC chief legal correspondent Ari Melber.
Ari Melber: Is it possible that Trump’s call to ban Muslims from entering the U.S. would face less judicial scrutiny if it applied only to foreigners and not American citizens?
Laurence H. Tribe: If Trump argues that the First and Fifth Amendments apply only to U.S. citizens, and not to foreigners, then he is just wrong about American law.
It is true there are some court decisions ruling that a few parts of the Constitution do not apply to people who are not U.S. citizens and who are abroad, such as protections against unreasonable searches that would otherwise be illegal if conducted on Americans in the U.S. But those precedents have nothing to do with the Constitution’s limits on government in this area — there is no such limit on the First Amendment’s bar against declaring an official religion, or such a limit on the Fifth Amendment’s protection of due process. Under Supreme Court precedent, that protection applies to U.S. conduct impacting any “person” — American citizen or not, wherever located.
The Constitution’s First Amendment has long been interpreted as a flat prohibition on actions that the U.S. government may take, including those actions that respect “an establishment of religion” or prohibit “the free exercise thereof.” Targeting groups of persons, including non-U.S.-citizens, seeking to enter the U.S. based on religion — whether as Muslims, Jews, Christians, Buddhists, or Hindus — would violate the First Amendment. Back in the late 19th century, the U.S. Supreme Court upheld the imposition of a receivership on a Mormon Church on the basis that Mormonism was not genuine Christianity, but everyone agrees that nothing of that sort would be thinkable today and that the Religion Clauses reach to every imaginable religious group.
Trump is also invoking President Franklin Roosevelt to support his position — is that legally relevant to his proposal for religious discrimination?
Today Trump cited several FDR’s proclamations (EO 2525s, 2526, and 2527) on "Morning Joe," those were based on the infamous Alien and Sedition Acts of 1798, now widely regarded as of dubious constitutionality at best.
In the Supreme Court’s major First Amendment ruling in NYT v. Sullivan, the Court noted those now ancient laws, purporting to criminalize “seditious” speech, have basically been found unconstitutional in the court of history. In any event, the FDR proclamations were not even about religion — they were to limited to German, Italian, and Japanese nationals in direct response to those countries’ war against the U.S.
Many people are asking Trump to explain how his discrimination plan would work, or if he cares whether it is constitutional. What would you ask him?
I’d ask Trump whether he really means to treat all Muslims, regardless of their citizenship as Turks or Indonesians or whatever — except perhaps U.S. citizens returning home from their military service or travel — as nationals of the Islamic Caliphate, the amorphous and self-declared “government” with which we are arguably at war, even without a declaration by Congress, let alone UN recognition of the Caliphate as a nation. In other words, I’d ask Trump whether he really wants to accord that kind of significance and national recognition, of all things, to the territory in Syria or Iraq ruled by Abu Bakr al-Baghdadi’s bloody sword.
If he does not, then he certainly cannot seriously invoke FDR’s actions, directed against citizens of the Axis Nations, as justifications for how he wants to treat Muslims, regardless of their nationality. In other words, the few references he has made to historical or legal support for his statements do not really add up.
This exchange has been edited for clarity and length.