President Trump has recently signed an executive order, titled “Protecting the Nation from Terrorist Attacks by Foreign Nationals,” that restricts visits and immigration from seven Muslim-majority countries: Iraq, Libya, Somalia, Sudan, Syria, Yemen, and Iran. Trump’s executive order has sparked widespread protest and backlash from Muslim support groups, and has routinely been characterized as “racist.” Some critics of the executive order argue that the immigration ban targeting solely Muslim-majority countries is unconstitutional. Current United States law and court cases, however, grant the President broad authority to restrict immigration from particular countries.

In the decades following the ratification of the Constitution, the Supreme Court determined that the Legislative Branch and the Executive Branch had “plenary power”—absolute power— over issues concerning immigration. Since then, Congress has given away much of its shared plenary power over immigration to the Executive Branch. For example, Congress delegated to the Executive Branch the power to determine whether foreigners should be granted temporary protected status, whether a person is permitted to work in the United States, whether a person’s deportation should be deferred, and whether to grant a person permission to be in the United States when the person does not qualify for a visa. Despite the President’s expansive decision-making power over immigration issues, however, he still may not sign executive orders that violate the Constitution.

Currently, the Supreme Court recognizes religion as a constitutionally protected class, but country of current residence is not protected to the same degree. Trump’s executive order to restrict immigration on Muslim-majority countries presents a challenging scenario because it is difficult to determine whether the executive order is targeting religion (Muslims) or targeting countries of residence (“terror states”). However, this distinction may not be consequential because the Judiciary has been extremely deferential to the Executive Branch when it makes country-based distinctions. Additionally, when the Executive Branch claims that its orders concern “national security”, the Judiciary is likely to defer to the Executive Branch. Despite the presence of certain statutory protections such as 8 U.S.C. § 1152, which forbids discrimination in visa administration because of an individual’s place of residence, as a matter of constitutionality, the Supreme Court has not yet recognized country of current residence as a distinct constitutionally protected class.

Trump’s executive order is not the first instance in which the U.S. government treated Muslim-majority countries differently. After 9/11, the Immigration and Naturalization Service, created the National Security Entry-Exit Registration System (NSEERS), which required adult males from designated countries to come into immigration offices for fingerprinting, photos, and specially designed interviews. Of the 25 designated countries, 24 of them were Muslim-majority countries. In reviewing the constitutionality of the NSEERS program, courts blindly accepted that the program was an issue of national security. They were thus required to give special deference to the Executive Branch. For example, in Kandamar v. Gonzalez, the First Circuit rejected a Moroccan’s claim that the NSEERS program unconstitutionally targeted Muslim-majority countries because national security concerns required giving deference to the Executive Branch.

Thus, while President Trump’s executive order may divide families, ruin careers and perpetuate long-standing anti-Muslim sentiments, the Supreme Court will likely find the order to be constitutional on the grounds that the Executive Branch contains plenary powers over immigration, particularly when the Executive Branch relies on national security justifications.

 

Suggested citation: Donovan Suh, Trump’s Muslim Immigration Ban – Concerning but Likely Constitutional, Cornell J.L. & Pub. Pol’y, The Issue Spotter, (Feb. 8, 2017), http://jlpp.org/blogzine/trumps-muslim-immigration-ban-concerning-but-likely-constitutional/.