Is Trump’s Ban on Muslims Legal/Constitutional?

(12/08/15) On 12/7/15 Donald Trump announced a plan to ban all Muslims from entering the United States.  Despite near global outcry condemning his plan Mr. Trump continues to insist we are at war and we must protect Americans.   Unfortunately for Mr. Trump, his plan appears to both violate international laws and constitutional law here in the United States.  I am not a legal scholar, so therefore I defer to experts in the field.  Below is a list of quotes from a broad spectrum of media sources explaining the legality of Mr. Trump’s plans.

“Oh, for the love of God,” said Jonathan Turley, a constitutional law expert at George Washington University. “This would not only violate international law, but do so by embracing open discrimination against one religion. (Washington Post)

“That’s blatantly unconstitutional if it excludes U.S. citizens because they are Muslims. It’s ridiculous,” said Richard Friedman, a law professor at the University of Michigan. Citing the U.S. Constitution’s equal protection clause and the First Amendment’s doctrine of freedom of religion. (Washington Post)

“We have treaties, all sorts of relationships with other countries,’’ said Palma Yanni, a D.C. immigration lawyer and past president of the American Immigration Lawyers Association. “I’m sure it would violate innumerable treaties if we suddenly started banning citizens of NATO countries, of Southeast Asian countries.’’ (Washington Post)

Tuesday on MSNBC’s “Andrea Mitchell Reports,” the Secretary of Homeland Security, Jeh Johnson said “irresponsible, probably illegal, unconstitutional and contrary to international law, un-American, and will actually hurt our efforts at homeland security.” (MSNBC)

Legal scholars said the Constitution forbids the sort of ban Mr. Trump envisions. John Yoo, a conservative law professor at the University of California, Berkeley, said the” proposal is unconstitutional”, pointing to First Amendment guarantees of the free exercise of religion.

“The United States cannot discriminate on the basis of religion,” Mr. Yoo said. He added that in the past, the U.S. has discriminated based on country of origin, but that is different from a wholesale religious ban.

William Banks, a constitutional law scholar at the Syracuse College of Law, agreed that Mr. Trump’s plan would not pass constitutional muster, pointing to 14th Amendment guarantees of due process under law.

“Aside from being outrageous, it would be unconstitutional,” Mr. Banks said. (Wall St. Journal)

“I believe Trump’s unprecedented proposal would violate our Constitution,” said Harvard Law Professor Laurence Tribe. “Both the First Amendment’s Religion Clauses and the equality dimension of the Due Process Clause of the Fifth Amendment.  It would also conflict with the spirit of the No Religious Test Clause of Article VI.” (NBC News)

Cornell Law professor Michael Dorf said that while U.S. policy “routinely applies different immigration rules for nationals of different countries,” Trump’s proposal to only exclude “foreign nationals who are Muslim” would likely be “unconstitutional.” (NBC News)

Stanford Law professor Jenny Martinez said “Excluding all people of a particular religion from entering the country on the sole basis of their religion would, in my view, clearly violate the Constitution’s guarantee of equal protection.” (NBC News)

There are a some Scholars who believe it may be constitutional, but it would require an act of congress and support from the Supreme Court to become a reality.  See the full article here: Top Scholars Say Trump Muslim Immigrant Ban May Be Constitutional.


Written by Dave Van Zandt

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1 Comment on "Is Trump’s Ban on Muslims Legal/Constitutional?"

  1. I hate Drumpfff’s agenda as much as anybody, but pretty sure that 1st Amendment argument is garbage. The only people protected under the constitution are citizens of the US, not foreigners trying to enter the country.

    I may be a lowly Canadian, but I can confidently say that constitutional laws are designed to protect their own, not *everyone under the sun.*


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