Donald Trump raised his biggest protests yet last week when he proposed a temporary ban on all Muslim immigration until the nation can be assured our system can weed out the ones who pose a threat to national security, and while many condemned the proposal as a violation of various constitutional principles, a prominent conservative law professor says the plan is undoubtedly legal.
Trump issued the plan on Dec. 7, while reading his own proclamation.
“Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what the hell is going on,” read Trump. “We have no choice. We have no choice.”
After his campaign initially indicated the plan meant Muslims who are American citizens could not return to the U.S., Trump later said that would be permitted.
His policy drew immediate, fierce criticism from all all political corners, and all other GOP presidential candidates rejected it. No lawmakers supported it, either, including prominent border security leaders like Sen. Jeff Sessions, R-Ala. Polls show a majority of Republican voters back the plan, but a strong majority of all voters reject it. A CBS poll shows 56 percent of Americans opposed and just 38 percent support it.
Arguments against the plan run the gamut, from allegations that it is unconstitutional to have a religious test for determining who enters the country or even an infringement on the free exercise of religion. Others say it is counterproductive to treat every Muslim like a suspect and that it’s impossible to tell who is a Muslim if the applicant does not reveal it.
But Temple University School of Law Professor Jan C. Ting says, while the merits of the Trump plan ought to be fully debated, there’s no doubt the Constitution permits it.
“The proposed temporary suspension would be completely legal and completely constitutional. And if that’s the case, then it’s reduced to a policy dispute,” said Ting, who served as deputy commissioner of the Immigration and Naturalization Service at the Justice Department in the George H.W. Bush administration.
“There’s a statute that makes clear that the president has the authority to exclude any alien or any class of aliens, any group of aliens,” he said. “Congress has delegated that power to the president. President Obama or President Trump could do that.”
Listen to the WND/Radio America interview with Temple University School of Law Professor Jan C. Ting:
Ting also emphasized that critics who believe prospective immigrants are having their rights infringed are forgetting something.
“In this case, we’re talking about people outside the United States who want to come into the United States,” he said. “They’re outside knocking on our door. The Supreme Court has clearly said, ‘You know what? We can use any criteria we want in letting people in or out.’
“The people outside the United States do not have any constitutional right to come into the United States if the government of the United States doesn’t want them to,” Ting said.
In addition to existing statute, Ting said Trump has ample constitutional precedent on his side.
“The Supreme Court has really taken a hands-off position with regard to immigration,” he said. “As anyone who studied immigration law in law school knows, immigration is different from all other areas of U.S. law. And as the Supreme Court has clearly said, we routinely do things in immigration that would not be permissible if we were dealing with American citizens.”
He said the landmark case on immigration came in the late 19th century with respect to the Chinese Exclusion Act, which became law in 1882.
“The Supreme Court unanimously held at the end of the 19th century that the United States could exclude people if it wanted to on the basis of race or ethnicity,” said Ting, noting the decision was never overturned.
“I call it the fountainhead of immigration law,” he said. “If we can exclude people on the basis of race or ethnicity, and the Supreme Court unanimously says we can, is there any ground on which we can’t exclude people?”
The professor said it is legal for the U.S. to ban immigration to individuals or groups based on secret information, meaning no public reason ever need to be given.
He also said current immigration law openly discriminates in that people from friendly Western nations can come to the U.S. without a visa, while people from developing nations must apply for one. He also pointed to the green-card lottery, which offers legal entry to the U.S. but bars people from Mexico or the Philippines from winning any spots.
For Ting, the legal debate is simple, and he said that should narrow the debate to whether it’s a good idea.
“It is a policy dispute and ought to be debated as such, and [we should] not pretend there is some big legal or constitutional impediment to what is being proposed,” Ting said.