The unthinkable has happened. Donald Trump is the president-elect of the United States of America. That means it's time to start considering how and if President Trump will make good on his numerous, far-reaching campaign promises. Although there's many to choose from, one of Trump's promises stands out as particularly legally suspect: Trump's proposed ban on any Muslim person entering the country. But can President Trump really ban all Muslims? And what does that mean for American citizens who are Muslim?
The short answer is: it's complicated. When Trump first proposed "a total and complete shutdown of Muslims entering the United States" in December 2015, numerous legal experts at several major news networks denounced the idea as blatantly unconstitutional. The Constitution's guarantees of religious freedom, due process, and equal treatment under the law should preclude any American immigration official from demanding that an immigrant (or tourist, or businessperson, or student) announce their religion upon arrival. In fact, a 2012 policy memo from U.S. Citizenship and Immigration Services tells officials to "avoid questions about a person's religious beliefs or practices unless they are relevant to determine the individual's eligibility for a benefit. Do not make any comments that might be taken as a negative reflection upon any other person, race, religion, or country."
Importantly, current forms which immigrants or non-citizens must fill out to obtain a U.S. visa of any kind do not require disclosure of religion, reports CBS News. That means, at the very least, religious screening of incoming residents, workers, visitors, and students, would require a costly, time-consuming overhaul of the current federal paper trail that exists whenever anyone is approved to enter this country from another.
After his broad proposal earned sharp criticism from across the political spectrum (even House Speaker Paul Ryan said a ban on Muslims was unconstitutional), Trump clarified that his policy would allow American Muslims to remain in the country, and that Muslim-American citizens living abroad (either as members of the military or foreign residents) would be allowed to come back to the country. But in a June speech, Trump suggested broadening his proposed ban on Muslims, to include a ban on anyone who comes from any part of the world with a "proven history of terrorism."
There is a uniquely American legal precedent for categorically denying rights to people based on their heritage, which could be used to uphold a potential ban on Muslims. Because the U.S. has not seriously considered implementing a "religious test" for immigrants in many years, the existing case law on the question is dated — and open to interpretation.
The legal decision that allowed for the internment of hundreds of thousands of Japanese-Americans during World War II, Korematsu v. United States, has never been overturned. The ruling upheld a series of executive orders from then-president Franklin D. Roosevelt, giving the U.S. military sweeping authority to incarcerate foreign nationals and, ultimately, American citizens who military officials believed could have been spies for Japan or Germany. Roosevelt's justification for the sweeping orders were that those being interned represented a threat to American security and safety in a time of war.
Trump has already made clear that he believes Muslims and "radical Islam" are a direct threat to the nation's security. And judging by the race-baiting rhetoric of Trump and Republican leaders (who now control both chambers of Congress), these racially-tinged scare tactics are likely to be persuasive in a presumably conservative administration.
What's more, the commander-in-chief has broad authority when it comes to creating and enforcing immigration law. A president has the authority to "exclude people who he thinks might threaten society, or [be in] any way might be detrimental to the interests of the United States," said University of Chicago law professor Eric Posner during an MSNBC panel discussion on the Muslim ban last December.
Posner went on to highlight a rule known as the Plenary Power Doctrine, which declares that that most of the standard Constitutional protections to which we are accustomed "do not, generally speaking, apply to the immigration context."
The impact of this controversial doctrine is twofold: it means that policies that would be unconstitutional if imposed on American citizens are not subject to the same scrutiny if those policies regulate immigration. It also speaks to the harsh truth that Constitutional protections like the ones a potential Muslim ban would violate are not guaranteed to non-citizens.
Finally, from a historical perspective, a ban on an entire religion would be new ground for the United States. Previous instances of categorical rejection have focused on the nationality of potential immigrants, not their religious affiliation. The most notorious example is the Chinese Exclusion Act of 1882, which implemented a 10-year ban on new immigrants arriving in the U.S. from China, according to the U.S. Department of State's history page. "The Act also required every Chinese person traveling in or out of the country to carry a certificate identifying his or her status as a laborer, scholar, diplomat, or merchant," the State Department explains.
That registry requirement, outlined in America's first official immigration restriction, is eerily similar to Trump's call for a national registry of all Muslims living in the country. Designed to go hand-in-hand with Trump's warning that Muslim Americans who don't turn in their neighbors will face "big consequences," Trump said in November 2015 that his administration would "absolutely" implement such a registry. When pressed by reporters about the logistics of such an effort, Trump hedged, saying that America has no meaningful management.
When other reporters asked Trump how his plan to have Muslim citizens register differed from the mandatory registration of Jewish people in Nazi Germany, Trump just repeatedly said "You tell me," before walking away, according to NBC News.
Ultimately, the legal foundation for a categorical ban on Muslims entering the U.S. is shaky, but still standing. As is the case with most of Trump's campaign promises, it's entirely unclear if — or to what extent — President Trump will actually be able to put his proposal into action. But he will likely have the support of a Republican-controlled Congress, and the wind of a decisive (if upsetting) electoral victory at his back, possibly emboldening him to go even bigger — and more terrifying — with his actual policy than he did with his campaign rhetoric.