Does U.S. Law Permit a Ban on Entry into the United States Based on Religion?
Juriste International, 2016
4 Pages Posted: 23 Jan 2017 Last revised: 9 Aug 2017
Date Written: August 19, 2016
On December 7, 2015, U.S. Presidential hopeful Donald Trump issued a Press Release in which he 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.” His statement triggered much controversy, including denouncements from legal scholars who contend the ban would violate U.S. constitutional and international law. This short article considers whether his proposal to ban persons from entering the United States based on their actual or perceived religion violates U.S. constitutional, statutory, or international law. It also considers some of the practical implications of implementing such a proposal.
The article begins with an examination of U.S. constitutional law as the “Supreme Law of the Land.” On the one hand, constitutional guarantees of religious freedom and equal protection may be violated by the proposed ban. On the other hand, the standing doctrine and the plenary power doctrine in the context of immigration suggest that the president has extensive power to limit immigration.
Second, the article will examine whether the proposal violates the nondiscrimination provision of the Immigration and Nationality Act (INA). In this regard, section 202(a)(1) of the INA, which bans discrimination in the issuance of immigrant visas on a variety of grounds including “race, sex, nationality, place of birth and place of residence,” does not expressly ban discrimination based on religion. Third, the article will consider the United States’ obligations under international treaties that ban discrimination based on religion, including the United Nations Charter, the International Covenant on Civil and Political Rights, and the Convention Relating to the Status of Refugees. In addition, there are customary international law obligations that prohibit religious discrimination that may apply, such as those reflected in the Universal Declaration on Human Rights and the American Declaration on the Rights and Duties of Man. However, these international law obligations also have territorial and other limitations on their application, which must be carefully examined to determine their applicability.
Finally, the article considers practical problems with the implementation of the proposal. Such problems include how a U.S. immigration official would determine whether an applicant for entry is Muslim and how the United States would investigate an applicant’s background and attribute a religion to that person in case of doubt.
Keywords: trump, immigration, religion, Muslims, constitutional law, international law
JEL Classification: K37
Suggested Citation: Suggested Citation