GOP presidential hopeful Donald Trump’s proposal to ban all Muslims worldwide from visiting the United States isn’t likely to go anywhere. Met with wide criticism from both the left and the right, Trump’s proposal is overtly discriminatory and would be virtually impossible to enforce.
But experts consulted by The Huffington Post say it would be legal for the U.S. to enact such sweeping restrictions without violating the Constitution because the Supreme Court has upheld flatly racist immigration restrictions in the past.
Most notably, in 1889 the Supreme Court upheld the constitutionality of the Chinese Exclusion Act, a law passed in 1882 to prohibit Chinese laborers from entering the United States.
The U.S. had recruited laborers from China since the 1840s, according to Natsu Taylor Saito, a professor of law at Georgia State University. But in response to economic depression, Congress voted in 1882 to ban Chinese laborers from immigrating to the U.S. for 10 years. The Chinese Exclusion Act also forbade Chinese migrants from becoming American citizens.
Chae Chan Ping, a Chinese immigrant who had lived in the U.S. for 12 years, filed a lawsuit against the government after being detained and barred from reentering the country following a family visit to China. Before visiting his home country, he had obtained a certificate of reentry, as the law required. But while he was away, Congress altered the law, prohibiting Chinese citizens from entering the country whether or not they held certificates of reentry.
The Supreme Court ruled against Chae Chan Ping. The majority opinion in the case stated that Congress had complete power, known in legal circles as “plenary power,” to determine which immigrants may enter the United States.
In words that echo Trump’s, Justice Stephen Field wrote that if “the government of the United States, through its legislative department, considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security, their exclusion is not to be stayed because at the time there are no actual hostilities with the nation of which the foreigners are subjects.”
Congress would go on to amplify the racist cast of the law, requiring in 1892 that Chinese laborers already in the country could only remain if they obtained a certificate vouched for by a “credible white witness.” In 1893, the Supreme Court upheld that law too. Congress didn't repeal the act until 1943.
Saito, an expert on the legal history of race and the application of the plenary power doctrine to immigration law, told HuffPost Trump’s proposal mirrored the Chinese Exclusion Act.
“I don’t think this is significantly different,” Saito said of Trump’s call to reject all Muslim visitors to the United States. “It is targeting people on the basis of religion rather than national origin. But we all know that this particular targeting of Muslims is highly racialized and tied to national origins. So I think it’s very similar.
“To me the important thing to look at here is not just how blatantly racist Trump’s position is,” Saito continued, “but how this proposal is an extension of this entire body of law that we’ve had for the last 130 years or so. If you’re willing to accept a body of laws that racializes and excludes people, then you shouldn’t be surprised when someone takes it to its logical extreme.”
Stephen Legomsky, former general counsel for U.S. Citizenship and Immigration Services, agreed that the Supreme Court’s decision in upholding the Chinese Exclusion Act would allow for a Trump-style mass exclusion of Muslim visitors to the United States. He noted that Congress would have to pass legislation to carry it out.
“The [Supreme] Court over 100 years ago did uphold racial discrimination in immigration,” Legomsky, who now works as a professor at the Washington University School of Law, told HuffPost. “But if Trump means he would do it unilaterally as president, he clearly has no legal authority to do that. Congress spells out who may immigrate and who may not. That’s not a presidential decision.”
Legomsky added that Trump’s call to extend the exclusion to Muslims visiting on tourist visas would be very difficult to implement, if Trump were to convince Congress to pass such a law.
“We have tens of millions of tourists coming to the United States every year,” Legomsky said. “So how he plans to screen them to determine their religion is a mystery.”
Trump’s proposed plan would, however, raise constitutional questions if Muslim U.S. citizens were to travel abroad and then be barred from reentering. The billionaire real estate mogul hasn't clarified such details.
When the Associated Press asked the Trump campaign if the proposal would include U.S. citizens who practice Islam and travel abroad or serve in the military, Trump responded through a campaign spokeswoman saying: "Because I am so politically correct, I would never be the one to say. You figure it out!"
Trump issued his call for a ban on Muslim visitors in response to recent terrorist attacks in Paris and San Bernardino, California.
Nearly a quarter of the world's population practices Islam.