This will come as a great disappointment to Jeb Bush, Marco Rubio and the editorial boards of the nation’s major newspapers, but, according to the Los Angeles Times, Trump’s proposal is legal:
Donald trump’s attention-getting proposal for a “total and complete shutdown of Muslims entering the United States” struck many as blatantly unconstitutional because it discriminates against a class of people based on religion and punishes even those who have done nothing wrong.
When applied to Americans, such a policy would almost certainly violate constitutional guarantees of “due process of law” and “equal protection.” But legal scholars note that immigration law is different, and Trump’s ban, however controversial, could actually pass legal muster.
Federal law and the courts have long given Congress and the president nearly unchecked power to bar foreigners from entering the country.
“Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he deems necessary, suspend the entry of all aliens or any class of aliens,” according to the federal Immigration and Nationality Act. Moreover, non-citizens who live outside the U.S. usually cannot invoke rights protected by the Constitution.
The Left can’t have that, because it considers national borders discriminatory and thinks the Constitution ought to apply to just about everybody except conservatives. But the New York Times agrees:
Several legal scholars who specialize in immigration, international and constitutional law said a policy of excluding all foreign Muslims from visiting the United States would still be “ludicrously discriminatory and overwrought,” as Gerald L. Neuman, a Harvard Law School professor, put it. But he said that it was far from clear that the Supreme Court would block it.
Under a provision of immigration law, Congress has already delegated to the president broad power to issue a proclamation indefinitely blocking “the entry of any class of aliens into the United States” that he or she thinks would be “detrimental to the interests of the United States.” No president has ever used that power in such a sweeping way, but the text provides a potential statutory basis for a President Trump to carry out his plan, specialists said.