Limited Law Suit May Succeed, But Executive Order Will Remain
WASHINGTON, D.C. (January 28, 2017): Lawyers have gone to court to challenge President Donald Trump’s new executive order barring citizens and refugees from seven Muslim-majority nations. But, since their law suit involves only a very small number of people in unusual circumstances – those being detained at ports of entry – it is unlikely to affect the major thrust of the order itself.

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In any event, even though it seems to discriminate on the basis of religion, the executive order itself is apparently constitutional and backed by many long-standing legal precedents, notes public interest law professor John Banzhaf, the author of a lengthy legal analysis.

One simple reason why our country has frequently been able to single out people by race, nationality, and perhaps even religion for immigration purposes is that we can, because not all the rights guaranteed by the Constitution apply to non-Americans outside the country.

Under what has been called the Plenary Power Doctrine, at least some of the protections guaranteed by the U.S. Constitution – and specifically the Equal Protection clause which generally prohibits discrimination on the basis of factors like race, ethnicity, religion, etc. – do not apply to non-citizens living abroad and seeking admission to the U.S.

The 1924 Immigration Act (targeting those from Southern and Eastern Europe), the Chinese Exclusion Act (aimed at Chinese), and President Jimmy Carter’s 1989 order banning virtually all Iranians from the U.S., are recent examples of valid immigration restrictions based upon national origin.

A much more recent example is NSEERS which mandates port-of-entry registration for nationals of Iran, Iraq, Libya, Sudan and Syria. Also, some non-citizens already in the U.S. have been required to register in person at an INS office if they come from certain countries – 24 of the 25 of which are predominantly Muslim. The program also required periodic re-registration. Although the program was indefinitely suspended, it is still in existence.

As another example, our own TSA has engaged in a form of religious profiling, selecting for secondary screening all citizens of 12 named countries. Aside from two communist nations, all of the others have large Muslim populations, including 8 which are at least 90% Muslim. Since this could hardly be just a coincidence, it provides still another example where America has openly engaged in profiling based upon religion.

So while those few refugees being detained at port of entry because they were traveling when the President’s executive order went into effect may have a stronger case, it is unlikely that the order could be successfully challenged as being unconstitutional, suggests Banzhaf.