Constitutionality Conflated: The Trump Dilemma

So a guy shoots his mouth off, says a bunch of crazy shit, feeds into the worst prejudice and darkest whole of stupidity in the American psyche.  All because he wants to be president and taps into that ugliest portion of the public psyche grasping for the worst possible solution that makes them feel better.  And thinking people everywhere hate it. Hi, Donald Trump.

Trump came up with an idea about excluding Muslims from entry into the United States. The details of his scheme are both a moving target and irrelevant. Ain’t happening in any permutation, so who cares what noise emits from his yap?  But the knee-jerk response from the intelligentsia is that it’s “unconstitutional.”

When we hate an idea, we love to hear that it’s unconstitutional. It saves us from having to otherwise explain why it’s awful. We can just point to the Constitution (you remember the Constitution, it’s that thing you drag out when you like it and shove in the closet when you don’t), shrug and say, “yeah, well, it’s unconstitutional, so no point in discussing it. Move along.”  And everybody breathes a sigh of relief, because that insanity won’t fly.

Except it’s not.  At least not entirely, since Trump’s idea that he can exclude Muslims who are fully protected as American citizens is so far beyond wrong as to be unworthy of discussion. But what of Muslims who lack citizenship or legal connection to the United States, and seek entrance to our borders for immigration, tourism or work?  While no one thinks this is a sound policy approach, because it’s nothing more than pandering to sheer mind-numbingly outrageous prejudice, that doesn’t make it unconstitutional.

Eric Posner writes a scholarly post explaining that the determination of who is allowed to enter our borders is controlled by legal precedent that provides, essentially, for a limitation that would be totally unconstitutional if applied to any other situation. But not entry to our borders.

The Supreme Court has held consistently, for more than a century, that constitutional protections that normally benefit Americans and people on American territory do not apply when Congress decides who to admit and who to exclude as immigrants or other entrants. This is called the plenary power doctrine. The Court has repeatedly turned away challenges to immigration statutes and executive actions on grounds that they discriminate on the basis of race, national origin, and political belief, and that they deprive foreign nationals of due process protections.

Not that the Supremes couldn’t reverse their precedent, but the extant precedent provides no basis to say it’s unconstitutional.  Eugene Volokh agrees, ugly but constitutional.  This is where intellectual honesty by scholars gets tested, because they may despise the policy, but that doesn’t give them license to use their academic cred to deceive people about the state of the law.

Then comes Steve Vladeck at CNN. Oh boy.

It is true that, as a general proposition, non-citizens outside the United States have previously been held to have few—if any—constitutional protections. But there are two reasons to suspect that Mr. Trump’s proposed ban would still be invalidated by the courts:

First, the way the ban would have to be enforced, it would surely ensnare at least some non-citizens with prior connections to the United States. These are people who do have well-settled constitutional protections. As applied to them, the ban would clearly be unconstitutional.

Second, even as applied to non-citizens with no prior connections to the United States, the Supreme Court in recent years has suggested that at least some constitutional principles still apply. The Justices held in 2008 that terrorism suspects detained as “enemy combatants” at Guantánamo are protected by the Constitution’s Suspension Clause, which guarantees judicial review of the legality of their detention. And the Court has also suggested that the government needs an especially good reason to discriminate against undocumented immigrants who, like non-citizens outside the United States, don’t otherwise have constitutional protections.

Trying my damndest to explain how a smart guy could write such utter nonsense, perhaps American University lawprof Vladeck considers CNN readers too pathologically stupid, bored, easily confused, to get actual legal reasoning, so he throws some shit against the wall to see what sticks. His first point, that there could be mistaken applications, is merely a quasi-“as applied” argument, which has nothing whatsoever to do with the unconstitutionality of the action.

His second completely omits the distinction of foreign nationals seized by, and held in the custody of, the United States government. But what about the plenary power doctrine?  Crickets.

Then there’s the hybrid argument in an op-ed in the New York Times by Temple prawf Peter Shapiro.

In the ordinary, non-immigration world of constitutional law, the Trump scheme would be blatantly unconstitutional, a clear violation of both equal protection and religious freedom (he had originally called for barring American Muslims living abroad from re-entering the country as well; he has since dropped that clearly unconstitutional notion). But under a line of rulings from the Supreme Court dating back more than a century, that’s irrelevant. As the court observed in its 1977 decision in Fiallo v. Bell, “In the exercise of its broad power over immigration and naturalization, Congress regularly makes rules that would be unacceptable if applied to citizens.”

So far, so good, right?  But then, boom.

The Constitution and the courts are not synonymous, nor do the courts have a monopoly on constitutional interpretation. Politicians, the legal community, scholars and the public at large are all a part of our continuing constitutional conversation. Clear popular consensus can establish constitutional norms, with or without the courts.

What? So the Supreme Court is nice and all, but the Constitution means whatever reddit says it means?

The Supreme Court upheld the internment in its 1944 Korematsu decision, and that ruling has never been judicially reversed. Technically, it remains good law. But it has been effectively overridden by other actors, and in the court of public opinion. A formal apology and payment of reparations, enacted by Congress and signed into law by Ronald Reagan in 1988, supplies the formal evidence. Korematsu continues to provoke popular shame.

While it’s certainly possible that “clear popular consensus,” which range from things that are now near-universally appreciated to the tyranny of the majority, can sway the Supreme Court’s decisions, and perhaps should inform the Court, for a law professor, a purported scholar, to use his good offices to write something for public consumption so flagrantly false as “nor do the courts have a monopoly on constitutional interpretation” is insufferable.

I might have said intolerable, but plenty of other scholars, gutless to the core, will cringe and say nothing unpleasant about a colleague who utters such a ridiculously stupid notion, thereby making people stupider for the goal of furthering ideology at the expense of reason.

The likelihood of Trump’s scheme ever being decided in court is slim to none, so it’s easy to say later than the claims remain untested. But politicians come and go. Intellectual dishonesty is forever. Then again, so too is getting one’s name in the paper, and that apparently is more important in the Academy these days than anything else.


17 thoughts on “Constitutionality Conflated: The Trump Dilemma

  1. William Doriss

    It’s not so much that the Supremes have “monopoly on constitutional interpretation”, but that they should NOT have such a monopoly: Not the Amerikan Way. Maybe that is where Shapiro was heading? We do not want to misunderestimate the lawprawf from Temple. After all, they [the Supremes] have a history of failing to “get it right”. In fact, often getting it terribly wrong: Korematsu and Dred Scott, etc. Maybe Brown v. Board of Ed.!?! Who knows, who cares? If Andrew Jackson didn’t care, why should we?

    You think too much. That is your problem. Nothing worse on the face of the Earth than a lawyer’s lawyer.
    Or a sharp-tongued law blogger. We don’t give much nevermind to the Supremes and their periodic, idiotic Kabuki dances. Nina Totenberg, we are not. Today, we are an apologist for the Temple prawf.
    As for TrumpMaster Flash, well let me say this about that, …!?! Hint: We’re not taking him seriously.

    1. SHG Post author

      Well, Bill, you’re always free to urge your fellow Americans to construct an entirely different tripartite governmental system to improve upon the existing one that gives rise to bad Supreme Court decisions. Let me know how that works out for you.

      1. William Doriss

        Working on it as we speak. Stay tuned. Ha. Accountability is key to success. You herd it hear first.

  2. Scott morrell

    Interesting but past my knowledge base. All I thought I knew was Trump’s newest Fascist (which is tough to argue to the contrary) rhetoric seemed a complete 100% unconstitutional no bainer with an guaranteed 9-0 decision. That still may be the case, but the arguments put forth seems to make it remotely possible that the constituion can apply differently in certain unique situations to citizen and non-citizens.

    That might just be theoretical. Politcially it is a non-starter and wholly un-American. The people I am the most shocked that support this xenophobia and broad strokes against certains religions are the Jewish people. Oh how soon they forget because they are now mostly rich and fat. Just shameful.

  3. Spencer McGrath-Agg

    If I recall correctly, the Posner post said that the analysis of Trump’s proposed policy should begin with executive authority to decide who is admitted to the United States under the plenary power doctrine, but it didn’t say the analysis ended there. If the Department of State refuses to issue a visa to a Muslim, that decision generally can’t be reviewed under the doctrine of consular non-reviewability. An exception applies, however, if the decision of the consular officer affects the constitutional rights of a US citizen. So, if a Muslim visa applicant is the spouse of a US citizen who qualifies for an immigrant visa as such, then there may be a legitimate constitutional challenge to the Trump policy. This may describe the “as applied” challenge you mentioned in sufficient detail to be taken more seriously.

    If this same applicant is issued a visa and denied admission to the US at a port of entry based on being Muslim, and no other ground of inadmissibility as defined by the Immigration and Nationality Act, then I think this policy would be getting into the territory of ultra vires agency action and violation of separation of powers. Some might counter that this is the same argument that Texas is currently making against the executive branch regarding Deferred Action for Parental Arrivals, and that argument is BS. However, an important, but subtle distinction arises in the context of enforcing immigration laws due to the executive branch’s power to both adjudicate and prosecute in the immigration context. Texas is challenging prosecutorial discretion, which is well within the scope of executive power. A challenge to a finding of inadmissibility is a challenge to adjudicative discretion, which is broad and rarely reviewable, but cannot exceed the limits defined by Congress in the Immigration and Nationality Act.

    Admittedly, I haven’t done extensive research on these points but neither has Trump, nor the people debating the constitutionality of his proposal. If nothing else, I hope it underscores the challenge of having meaningful debate about complex issues in an era of 24 hour (24 seconds?) news cycles.

    1. SHG Post author

      That’s why the post (as well as Posner’s and Volokh’s) is limited to non-citizen related immigrants.

      Except it’s not. At least not entirely, since Trump’s idea that he can exclude Muslims who are fully protected as American citizens is so far beyond wrong as to be unworthy of discussion. But what of Muslims who lack citizenship or legal connection to the United States, and seek entrance to our borders for immigration, tourism or work?

      Was this really that unclear?

  4. Scott Morrell

    Your words are sometimes too esoteric for me. Haha.

    Regarding the constitution, it seems that you mean that equal protection under the law, the litmus case for religion can be construed differently depending on precedent and constituional interpretation.

    1. SHG Post author

      A guy living in Kabul with no connection to the United States has no claim to equal protection under the United States Constitution. Hard as it may be to imagine, the entire world doesn’t have rights under our Constitution.

      1. Tom

        “…the entire world doesn’t have rights under our Constitution.”

        Why is this so hard for people to understand?

        1. Scott Morrell

          Tom. I assume you are a lawyer. I am not. However, I am surprised you would feel “Why is this so hard for people to understand?”

          Well, I am a caterer. If I commented on the techniques and art of making a magnificent wedding event, you would probably have no clue how to do it if you were not an upscale caterer. I would in fact totally understand how you would have no idea how to do it.

          Notwithstanding the above, I do a lot of reading and try to educate myself. In many parts of the constitution, regarding especially the Equal Protection Clause under the law, I can see where if one was not a citizen than immigration laws might supersede that provision since they are not yet in the country to have the federal protection cover those rights.

          However, I copied a piece I read in NPR from and online site called “The two-way” which quotes the leading constitutional scholars on this issue.

          “Laurence H. Tribe, a professor of constitutional law at Harvard University, says he’s certain that Trump’s proposal would violate the Constitution.

          Yes, he says, some court decisions have found that the some parts of the protective mantle of the Constitution don’t extend to foreigners. But according to Tribe’s interpretation, some of the most well-known protections — such as the First Amendment’s guarantee of religious freedom and the Fifth Amendment’s guarantee of due process — are not limited by nationality or geography.

          “The [Fifth Amendment] applies to U.S. conduct with regard to any ‘person,’ wherever located and of whatever citizenship,” Tribe writes in an email. “And [the First Amendment] is a flat prohibition on actions that the U.S. government may take, including those actions that respect ‘an establishment of religion’ or prohibit ‘the free exercise thereof.’ ”

          What’s more, Tribe says, a religious litmus test like the one proposed by Trump would violate the spirit of Article VI of the Constitution, which prohibits the government from requiring a religious test to qualify for public office.

          Daniel Halberstam, a constitutional law professor at the University of Michigan, brings up another issue. He says foreign nationals would have a hard time successfully suing the United States over a policy like this, because they have to have “a constitutionally recognized interest in coming here” before a court even decides to hear the case.

          But the right one, Halberstam says, could make it to the courts. For example, if a Muslim abroad applied for a visa to come to the United States to speak at a university and was denied, the courts would take up the case. Halberstam says the law would be found “unconstitutional in a heartbeat.””

          Perhaps this might clarify the issue why Trump’s idea of putting a religious litmus test is grossly immoral and probably deemed unconstitutional?

          1. SHG Post author

            And I might add, a fabulous caterer. But if you were a lawyer, you would immediately realize how ridiculously irrelevant this is:

            What’s more, Tribe says, a religious litmus test like the one proposed by Trump would violate the spirit of Article VI of the Constitution, which prohibits the government from requiring a religious test to qualify for public office.

            If he’s saying this as a policy argument, that it’s a terrible idea and offensive to American ideals, then that’s fine, and I completely agree. If he’s saying this makes it unconstitutional, then he’s dead wrong. These are very different issues.

            1. Scott Morrell

              Thanks for the compliment!

              I agree with you. That was totally irrelevant to the topic at hand. Apples and Oranges.

              Great post as always. Love to hear your perspective. I learn more from your posts than if I went to a law school. You use real life situations and show most things are not black and white.

          2. Patrick Maupin

            “The [Fifth Amendment] applies to U.S. conduct with regard to any ‘person,’ wherever located and of whatever citizenship,”

            That wacky Fifth is a good example of the difference between theory and practice.

            Sure, some parts of it kinda, sorta work inside the US. The part about self-incrimination works if you have a good lawyer who can convince the jury that they really don’t need to hear it in the defendant’s own words, and the rest of it can sometimes be made to work if you have a few decades to wait for the appeals court to sort it out.

            But none of it works particularly well outside the US. The president wants a new AUMF, but nonetheless he’s been killing plenty of people using the old AUMF — since we’ve always been at war with Eastasia, it’s obviously a scrivener’s error that the old one doesn’t call out Eastasia by name.

            It’s only a matter of time before someone conflates a couple of the current legal theories the government is operating under, and the border patrol starts using drones to shoot illegal aliens before they make it 25 miles inland. The occasional dead citizen will be a small price to pay to keep our borders safe. To be really safe, we should probably use a tactical nuke on Manhattan, preferably while Trump is in residence.

  5. Bob

    “nor do the courts have a monopoly on constitutional interpretation”

    So, is William Marbury’s judicial commission in the mail?

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