Would Donald Trump’s proposed ban on Muslims in the U.S. be constitutional?

Donald Trump speaks during a rally coinciding with Pearl Harbor Day at Patriots Point aboard the aircraft carrier USS Yorktown in Mt. Pleasant, S.C., Monday, Dec. 7, 2015. (Photo: Mic Smith/AP)

Republican presidential frontrunner Donald Trump’s call to bar Muslim immigrants from the United States, a nation founded by immigrants, does not just offend American sensibilities — it would violate U.S. and international law, according to experts.

Laurence H. Tribe, a professor of constitutional law at Harvard Law School and co-founder of the American Constitution Society, said Tuesday that Trump’s proposed ban would be illegal, exceptionally difficult to implement and damaging to national security.

“Donald Trump’s plan to ban all Muslims from entering the U.S. — even as recently pulled back to make exceptions for U.S. citizens abroad, whether in the military or otherwise, who happen to be Muslims — would be illegal and therefore unconstitutional, as well as being a nightmare to administer,” Tribe said in an email to Yahoo News.

There was immediate backlash Monday when the Trump campaign called for “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.”

According to Tribe, such a prohibition would imperil our national security and give the ISIS terrorist group its greatest possible propaganda victory against the U.S. and its allies around the world. Jihadists routinely exploit anti-Muslim prejudice to attract new recruits to their cause. 

In the United States, the First Amendment guarantees freedom of religion and prohibits governmental preferences among religions. Furthermore, the Fifth Amendment guarantees due process and equal protection under the law to all people, not just all U.S. citizens.

Many law experts say that Trump’s proposed plan would violate freedoms protected by the U.S. Constitution. (Photo: Aleksandar Nakic/Getty Images)

“For Trump’s absurd and wildly un-American plan to be adopted would require either that we suspend the U.S. Constitution, which not even a formal declaration of war by Congress would accomplish,” Tribe continued, “or that we formally amend the U.S. Constitution to remove, or carve a gaping hole in” the aforementioned amendments. 

Leti Volpp, professor of law at UC Berkeley School of Law, agreed that there is no way that categorically barring Muslims from entering the country could be legal.

The Trump campaign initially indicated that the ban would apply to Muslim-Americans traveling abroad but he recent backpedaled on that position. Either way, experts say it won’t fly.

“Trump says this would cover citizens overseas. Citizens have a right to enter the country of their citizenship. In terms of noncitizens, while the political branches are given some deference in crafting exclusion laws, that deference is not absolute, and this would violate the Constitution’s guarantee of equal protection, not to mention the guarantee of freedom of religion,” Volpp said in an email.

U.S. Citizenship and Immigration Services has instructed officers who are conducting interviews with applicants for immigration benefits not to inquire about their religious beliefs.

“Avoid questions about a person’s religious beliefs or practices unless they are relevant to determine the individual’s eligibility for a benefit,” a policy memorandum reads. “Do not make any comments that might be taken as a negative reflection upon any other person, race, religion or country.”

Michael Walsh

December 8, 2015