REPUBLICAN presidential candidate Donald Trump’s proposal for suspending immigration from parts of the world with a history of terrorism could have a legal basis, but his assertion that it be part of a broader ban on Muslim immigrants makes it constitutionally untenable, legal scholars say.
The new twist in Trump’s anti-Muslim rhetoric came in the aftermath of a weekend shooting massacre at a Florida nightclub by the American-born son of Afghan immigrants.
In a fiery speech on Monday, he expanded on his proposed temporary ban on Muslims entering the United States, vowing if elected to halt immigration from any area of the world where there is a “proven history of terrorism” against America or its allies.
He also accused the Muslim-American community of broad complicity in attacks such as the Orlando shooting, which was carried out by a gunman pledging allegiance to Islamic State, and threatened “big consequences” for those who fail to inform on their neighbors.
Many legal experts said Trump’s proposal for a religion-based ban would be unlikely to pass the test of U.S. constitutional guarantees of religious freedom, due process and equal protection and would likely be struck down by the courts if he tried to implement them by presidential decree.
However, a ban on immigrants from certain countries has some precedent and might pass muster.
Some see that new proposal as reminiscent of the congressional Chinese Exclusion Act of 1882, which was used for years to halt the influx of Chinese laborers and has been widely considered a black mark on America’s immigration record.
But Trump’s overall immigration plan would go beyond that, targeting not just a country or a region of the world but also a religion, something that no modern U.S. president has done.
“This is an absurd proposal to build a Fortress America and pull up the drawbridges,” said John Bellinger, former legal adviser to the Bush administration.
President Barack Obama took a veiled swipe at Trump on Tuesday, saying such ideas represented a “dangerous” mindset.
But U.S. presidents have wide latitude on immigration matters, and some conservative scholars said that the fate of any proposed ban would hinge on how narrowly Trump framed it.
They note, for instance, that Democratic President Jimmy Carter barred Iranian nationals from entering the United States during the 1979 Iran hostage crisis.
“If a Trump administration cut off immigration from certain countries, rather than certain religions, it would not violate the Constitution,” said John Yoo, a law professor at the University of California Berkeley and former Justice Department official who advised the George W. Bush administration on interrogation methods used on terrorism suspects.
Herman Schwartz, a law professor at American University in Washington, said if Trump stuck to his proposal for a temporary prohibition on Muslim immigrants, that raises significant constitutional questions and “shows his shaky command of the legal facts.”