12/8/2015 Trump’s Anti-Muslim Plan Is Awful. And Constitutional. - The New York Times

http://www.nytimes.com/2015/12/10/opinion/trumps-anti-muslim-plan-is-awful-and-constitutional.html?_r=0 1/5

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Philadelphia — DONALD J. TRUMP’S reprehensiblecall to bar Muslim immigrants from entering theUnited States tracks an exam question I’ve beengiving my immigration law students since Sept. 11.Would such a proposal be constitutional? The answeris not what you might think — but it also raises theissue of what, exactly, we mean when we saysomething is “constitutional” in the first place.

In the ordinary, nonimmigration world ofconstitutional law, the Trump scheme would beblatantly unconstitutional, a clear violation of both

equal protection and religious freedom (he had originally called for barringAmerican Muslims living abroad from reentering the country as well; hehas since dropped that clearly unconstitutional notion). But under a line ofrulings from the Supreme Court dating back more than a century, that’sirrelevant. As the court observed in its 1977 decision in Fiallo v. Bell, “Inthe exercise of its broad power over immigration and naturalization,Congress regularly makes rules that would be unacceptable if applied tocitizens.”

The court has given the political branches the judicial equivalent of a blankcheck to regulate immigration as they see fit. This posture of extreme

By PETER J. SPIRO DEC. 8, 2015 1 COMMENT

Trump’s AntiMuslim Plan Is Awful. And Constitutional.

Saul Loeb/Agence FrancePresse — Getty Images

12/8/2015 Trump’s Anti-Muslim Plan Is Awful. And Constitutional. - The New York Times

http://www.nytimes.com/2015/12/10/opinion/trumps-anti-muslim-plan-is-awful-and-constitutional.html?_r=0 2/5

deference is known as the “plenary power” doctrine. It dates back to the1889 decision in the Chinese Exclusion case, in which the court upheld theexclusion of Chinese laborers based on their nationality.

Unlike other bygone constitutional curiosities that offend ourcontemporary sensibilities, the Chinese Exclusion case has never beenoverturned. More recent decisions have upheld discrimination againstimmigrants based on gender and illegitimacy that would never havesurvived equal protection scrutiny in the domestic context. Likewise, courtshave rejected the assertion of First Amendment free speech protections bynoncitizens.

Nor has the Supreme Court ever struck down an immigration classification,even ones based on race. As late as 1965, a federal appeals court upheld ameasure that counted a Brazilian citizen of Japanese descent as Asian forthe purposes of immigration quotas.

In the context of noncitizens seeking initial entry into the United States,due process protections don’t apply, either. This past June, the courtupheld the denial of a visa for the spouse of an American citizen based onthe government’s sayso, with no supporting evidence.

The courts have justified this constitutional exceptionalism on the groundsthat immigration law implicates foreign relations and national security —even in the absence of a specific, plausible foreign policy rationale. The1977 Fiallo case, for instance, involved a father seeking the admission of hisoutofwedlock son from the French West Indies — hardly the stuff of

12/8/2015 Trump’s Anti-Muslim Plan Is Awful. And Constitutional. - The New York Times

http://www.nytimes.com/2015/12/10/opinion/trumps-anti-muslim-plan-is-awful-and-constitutional.html?_r=0 3/5

national interest.

Indeed, contrary to the conventional understanding, President Trumpcould implement the scheme on his own, without Congress’s approval. TheImmigration and Nationality Act gives the president the authority tosuspend the entry of “any class of aliens” on his finding that their entrywould be “detrimental to the interests of the United States.” PresidentObama has used this to the better end of excluding serious human rightsviolators.

But here’s the interesting thing: Just because Mr. Trump’s proposal has ajudicial pedigree, that doesn’t make it “constitutional” in a broader sense.The Constitution and the courts are not synonymous, nor do the courtshave a monopoly on constitutional interpretation. Politicians, the legalcommunity, scholars and the public at large are all a part of our continuingconstitutional conversation. Clear popular consensus can establishconstitutional norms, with or without the courts.

The leading example comes out of the internment of JapaneseAmericansduring World War II. The Supreme Court upheld the internment in its1944 Korematsu decision, and that ruling has never been judiciallyreversed. Technically, it remains good law. But it has been effectivelyoverridden by other actors, and in the court of public opinion. A formalapology and payment of reparations, enacted by Congress and signed intolaw by Ronald Reagan in 1988, supplies the formal evidence. Korematsucontinues to provoke popular shame.

12/8/2015 Trump’s Anti-Muslim Plan Is Awful. And Constitutional. - The New York Times

http://www.nytimes.com/2015/12/10/opinion/trumps-anti-muslim-plan-is-awful-and-constitutional.html?_r=0 4/5

We may be seeing that same shame at worktoday. Mr. Trump’s plan has triggered anuproar across the partisan divide. Perhaps areligionbased immigration bar may beconsistent with courtmade doctrine. But itdoesn’t reflect our deeper, broadlyassimilated understandings of theConstitution.

The fact that many Americans seem toassume Mr. Trump’s proposal isunconstitutional means that the courts needto catch up with the public on immigration.We don’t tolerate discrimination on the basisof national origin in hiring, housing or public

accommodation. But discrimination on the basis of nationality, oftencapricious, even illogical, is a central feature of immigration law.

If you were born in the Philippines and are seeking to join a sibling whohas American citizenship, for example, your wait in line is 10 years longerthan almost everyone else’s. There may be good reasons for some of thesedifferent approaches. But the Supreme Court shouldn’t be rubberstampingthem.

The court won’t get to rule on the Trump scheme. It now needs to take thecue from the rest of us and bring its reading of the Constitution in line withthe public’s own, more progressive constitutional norms.

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12/8/2015 Trump’s Anti-Muslim Plan Is Awful. And Constitutional. - The New York Times

http://www.nytimes.com/2015/12/10/opinion/trumps-anti-muslim-plan-is-awful-and-constitutional.html?_r=0 5/5