Legal Experts: Trump Muslim Ban Plan is constitutional and historical
By Voltova Dmitri - December 9, 2015

Many in the news today claimed that Donald Trump's Muslim immigration temporary ban is illegal (ie: unconstitutional) and without historic precedent.

Mark Levin, a legal scholar, has weighed in, as have many experts, including the New York Times legal team.

Ny Times:

In the ordinary, non-immigration world of constitutional law, the Trump scheme would be blatantly unconstitutional, a clear violation of both equal protection and religious freedom (he had originally called for barring American Muslims living abroad from re-entering the country as well; he has since dropped that clearly unconstitutional notion). But under a line of rulings from the Supreme Court dating back more than a century, that's irrelevant. As the court observed in its 1977 decision in Fiallo v. Bell, "In the exercise of its broad power over immigration and naturalization, Congress regularly makes rules that would be unacceptable if applied to citizens."

The court has given the political branches the judicial equivalent of a blank check to regulate immigration as they see fit. This posture of extreme deference is known as the "plenary power" doctrine. It dates back to the 1889 decision in the Chinese Exclusion case, in which the court upheld the exclusion of Chinese labourers based on their nationality.

Unlike other bygone constitutional curiosities that offend our contemporary sensibilities, the Chinese Exclusion case has never been overturned. More recent decisions have upheld discrimination against immigrants based on gender and illegitimacy that would never have survived equal protection scrutiny in the domestic context. Likewise, courts have rejected the assertion of First Amendment free speech protections by noncitizens.

Nor has the Supreme Court ever struck down an immigration classification, even ones based on race. As late as 1965, a federal appeals court upheld a measure that counted a Brazilian citizen of Japanese descent as Asian for the purposes of immigration quotas.

In the context of noncitizens seeking initial entry into the United States, due process protections don't apply, either. This past June, the court upheld the denial of a visa for the spouse of an American citizen based on the government's say-so, with no supporting evidence.

The courts have justified this constitutional exceptionalism on the grounds that immigration law implicates foreign relations and national security — even in the absence of a specific, plausible foreign policy rationale. The 1977 Fiallo case, for instance, involved a father seeking the admission of his out-of-wedlock son from the French West Indies — hardly the stuff of national interest.

Indeed, contrary to the conventional understanding, President Trump could implement the scheme on his own, without Congress's approval. The Immigration and Nationality Act gives the president the authority to suspend the entry of "any class of aliens" on his finding that their entry would be "detrimental to the interests of the United States." President Obama has used this to the better end of excluding serious human rights violators.

Wall St Journal:

UCLA law professor Eugene Volokh told Law Blog that Mr. Trump's plan "may be a very bad idea, but under the plenary power doctrine it may very well be constitutional."

Mr. Legomsky noted that courts have recognized exceptions to the doctrine. Deportation proceedings, for instance, may not be stripped of due-process protections.

The obstacles to Mr. Trump's proposal wouldn't be just constitutional. The president couldn't implement the plan unilaterally, said Mr. Legomsky, who said it would conflict with the Immigration and Nationality Act, the nation's primary immigration law.

Mr. Volokh said it's also possible that the Trump plan could violate treaty agreements with American allies.

GOP Heavy Weights:

While many in the GOP are fiercely condemning Donald Trump for his proposal to temporarily ban all Muslim from entering the U.S., there's a whole lot of other Republicans who are saying, hey, he has a point.

From established party figures such as

Sen. Ted Cruz (R-TX)
97%
and Rick Santorum to the more hardcore right-wing personalities such as Ann Coulter, numerous Republicans are either stopping short of condemning Trump's audacious proposal or are outright applauding the billionaire businessman as finally offering a common-sense solution to terrorism threats.

They are offering a glimpse into why Trump has continued to zoom ahead in the polls, despite a series of jaw-dropping comments that the many in the media, and now the White House, have presented as not only offensive but disqualifying for the leader of the free world.

Santorum, who is at the bottom of the polls in the GOP race, aligned himself with the man at the top in a radio interview on Sirius XM's "Breitbart News Daily" Tuesday, while stopping short of endorsing his proposal. The former Pennsylvania senator said that he hasn't proposed banning all Muslims, "but a lot of them."

"I've proposed actual concrete things and immigration law that would have – not the effect of banning all Muslims, but a lot of them because we need to get rid of the visa lottery system, which is the way in which a lot of radicals have come into this country," Santorum said.

"I think the way Trump has proposed it, it may have some constitutional infirmity. We can do it in a more practical way than in the way Donald Trump is suggesting," he continued.

Cruz caused even more waves by repeatedly saying that Trump's proposal is "not my policy" but refusing to outright condemn the billionaire businessman whose voters could conceivably move over to Cruz in significant numbers if Trump implodes.

"I do not agree with his proposal. I do not think it is the right solution," Cruz said Tuesday as he unveiled his own plan to protect against Islamic terrorism. Twice Cruz said he did not agree with Trump, before praising him.

"I like Donald Trump," Cruz said. "I commend Donald Trump for standing up and focusing America's attention on the need to secure our borders."

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