No legal precedent for Trump's proposed Muslim ban, experts say

WASHINGTON - There's no legal or historical precedent for closing U.S. borders to the world's 1.6 billion Muslims, but neither is there any Supreme Court case that clearly prevents a president or Congress from doing so.

See Full Article

Legal experts are divided over how the high court would react to Republican presidential candidate Donald Trump's call for a temporary halt to Muslims entering the United States.

"The court has never been faced with a challenge against a whole religion. I think that would raise interesting and novel questions for the court," said Stephen Yale-Loehr, who teaches immigration law at Cornell University's law school.

Any such blanket action based on a person's religion would be unconstitutional if applied to U.S. citizens, scholars agree.

But courts have given Congress and the president wide discretion when it comes to immigration.

"I don't actually think it would be unconstitutional. The president has a huge amount of discretion under the immigration statute," said Eric Posner, a constitutional law professor at the University of Chicago. The same protections given citizens do not apply to people who are neither American nor in the United States, Posner said.

Courts have upheld the denial of visas to enter the country to Marxists and people born to parents who were not married, among many categories. The Supreme Court has never struck down an immigration classification on the basis of race or any other reason, said Temple University immigration expert Peter Spiro.

Other scholars offer a different take. They say the court would not grant the president a blank check and would instead rely on constitutional provisions that protect religious freedom and prohibit discrimination to strike down a ban on Muslim visitors to the United States.

"Imagine that instead of banning Muslims, we banned blacks from any country," said Vanderbilt University's Suzanna Sherry, describing a hypothetical reaction to a period of intense racial unrest in the United States. "If you're black, you can't come into the country. ... I don't think a court today would ever hold that constitutional," Sherry said.

Sherry acknowledged that she cannot cite any case involving immigration to support her view, and that a Supreme Court decision to uphold bans on Chinese labourers in the late 1800s points in Trump's favour.

"But developments in discrimination law and First Amendment law suggest that the court would not today uphold an exclusion on the basis of religion," she said.

The Supreme Court also upheld the internment of Japanese-Americans during the Second World War.

Both the anti-Chinese laws and the internment camps now are widely seen as shameful episodes in American history.

But no less an authority than Supreme Court Justice Antonin Scalia has said it is naive to think the country would never again resort to such harsh measures, particularly during wartime.

"That's what was going on - the panic about the war and the invasion of the Pacific and whatnot. That's what happens," Scalia said on a visit to Hawaii in 2014, describing the mood in America following Pearl Harbor that led to the internment camps. "It was wrong, but I would not be surprised to see it happen again, in time of war. It's no justification, but it is the reality."

Predictions about how the court might rule do not matter as much as public reaction at the moment. While 58 per cent of Americans oppose a temporary ban on Muslim visitors in a CBS News poll, Trump's proposal finds much more favourable reaction from Republicans. Fifty-four per cent Republicans support the ban, the poll found.

Trump has remained at the head of the Republican field for months, and his tough words about Muslims may be tapping into fears among Republican voters about immigrants from the Middle East. His proposal to keep Muslims from entering the United States followed the Dec. 2 shootings in San Bernardino, California, that left 14 dead and 21 wounded.

Tashfeen Malik, a Muslim from Pakistan who with her husband was killed by police in a gun battle after the rampage, entered the country on a fiancee visa that is issued abroad to people who plan to marry American citizens, authorities have said. Last year, Malik married the other suspect in the shooting, U.S. citizen Syed Rizwan Farook.

Trump said he would prevent Muslims from entering the United States "until our country's representatives can figure out what the hell is going on."

Trump's proposal turns traditional ideas about the United States as a beacon for political and religious refugees upside down, said Mary Meg McCarthy, executive director of the National Immigrant Justice Center in Chicago.

"In all honesty, I never in my whole entire life thought that we'd be fighting for the human and due process rights of refugees," including many who have fled religious persecution, McCarthy said. Efforts to halt the flow of refugees risks disturbing the balance "our commitment to fairness and refugee protection with our national security interests," she said.

-----

Associated Press writer Kathleen Hennessey contributed to this report.



Advertisements

Latest Canada & World News

  • Skydiver wearing a wingsuit crashes, dies in California

    World News CTV News
    SAN FRANCISCO -- The skydiver who fell to his death in a California vineyard was wearing a specialized jumpsuit that resembles a flying squirrel and undertaking an extreme but growing sport that can send people soaring through the air at speeds of more than 200 miles per hour (322 kilometres per hour. Source
  • Shocking images show torture, executions by Iraqi soldiers

    World News CTV News
    Warning: This story and the accompanying video include graphic images and descriptions of torture. A photojournalist who embedded with an elite group of Iraqi soldiers has documented point-blank executions and brutal torture of what appear to be civilians. Source
  • Maryland day care worker allegedly recorded herself torturing baby

    World News Toronto Sun
    BALTIMORE — A day care worker in Maryland was captured on video “torturing” an 8-month-old girl who later died, authorities said Thursday. She has been charged with murder. Leah Walden, 23, is charged with murder, assault, child abuse and reckless endangerment in the death of Reese Bowman at Rocket Tiers Learning Center on Tuesday, Baltimore Police said in a statement. Source
  • Donald Trump's son-in-law Jared Kushner now a focus of Russia probe [Video]

    World News Toronto Sun
    Investigators are focusing on a series of meetings held by Jared Kushner, U.S. President Donald Trump's son-in-law and an influential White House adviser, as part of their probe into Russian meddling in the 2016 election and related matters, according to people familiar with the investigation. Source
  • Spry woman jumps on hood of SUV to thwart carjacking [Video]

    World News Toronto Sun
    What would you do if someone tried to steal your vehicle right in front of you? For one Wisconsin resident, the answer is simple: Go all Martin Riggs and jump on its hood. Melissa Smith was the victim of an attempted carjacking while filling up at a gas station in downtown Milwaukee Tuesday afternoon. Source
  • Grits fork over another $30M to keep Canada at F-35 table

    Canada News Toronto Sun
    OTTAWA — Canada has quietly paid another $30 million toward development of the F-35 — money that could become insurance in the trade dispute between U.S. aerospace firm Boeing and Canadian rival Bombardier. The annual payment was made to the U.S. Source
  • Annual G7 meeting coming to Quebec next year

    Canada News CBC News
    Canada will play host to next year's meeting of G7 leaders at a remote luxury resort in the Charlevoix region of Quebec, The Canadian Press has learned. Prime Minister Justin Trudeau is expected to make the announcement at some point during this year's G7 meetings, which get underway Friday in Sicily. Source
  • Trump administration to appeal latest block to travel ban to U.S. Supreme Court [Video]

    World News Toronto Sun
    WASHINGTON - President Donald Trump’s revised travel ban “speaks with vague words of national security, but in context drips with religious intolerance, animus and discrimination,” a federal appeals court said Thursday in ruling against the executive order targeting six Muslim-majority countries. Source
  • Nigel Wright broke ethics rules during Duffy affair: Watchdog

    Canada News Toronto Sun
    OTTAWA — Former prime minister Stephen Harper’s one-time chief of staff was never prosecuted for his role in Mike Duffy’s Senate expenses fiasco, but now Nigel Wright is getting a belated slap on the wrist from the federal ethics watchdog. Source
  • Security guard suspended after he's caught on video throwing shoes at a homeless man

    Canada News CBC News
    A Toronto security guard has been suspended following the release of a video that appears to show him violently hurling a pair of shoes at a homeless person lingering on Yonge Street this week. Toronto police apologize for 'you're going to get AIDS' comment caught on videoThe quarrel between the pair began just after 8 a.m. Source