Plan to Bar Foreign Muslims by Donald Trump Might Survive a Lawsuit

WASHINGTON — When Donald J. Trump called on Monday for “a total and complete shutdown of Muslims entering the United States,” many legal scholars were aghast and said that such a ban would certainly be struck down by courts as blatantly unconstitutional.

But on Tuesday Mr. Trump clarified his proposal, saying that he would exclude only foreign Muslims, not Muslim American citizens who travel abroad and then seek to come home. That distinction, legal specialists said, made it far less likely the courts would strike it down.

“If a person is a Muslim, goes overseas and comes back, they can come back,” Mr. Trump said on ABC. “They’re a citizen. That’s different.”

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.

Still, if Mr. Trump won the White House and invoked that power as a justification to bar all foreign Muslims, people affected by that policy inside the United States — like a person seeking reunification with a family member, or a university that wanted to invite someone to come speak — could file a lawsuit challenging it.
Several legal questions would be raised by such a policy.

First, as a matter of international law, a treaty the United States has ratified, theInternational Covenant on Civil and Political Rights, bars laws that discriminate against people because of their religion. It protects “all persons,” not just citizens of a member state. - Read More at NYT

Plan to Bar Foreign Muslims by Donald Trump Might Survive a Lawsuit

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