Jacob Gershman writing in the WSJ
* * * * *
Donald Trump’s plan for a “total and complete shutdown” of Muslims entering the U.S. was swiftly condemned by many Republican and Democratic presidential candidates.
But legal experts aren’t of one mind about whether the incendiary plan floated by the GOP candidate would survive judicial review.
* GOTTA LUV THE WAY THEY IMMEDIATELY STACK THE DECK, HUH? I'D SAY THE CONSTITUTION AND LEGAL PRECEDENTS CLEARLY POINT TO THE FACT THAT CONGRESS HAS FULL AND UNRESTRICTED AUTHORITY TO DEAL WITH ALL MATTERS RELATING TO "NATURALIZATION" - WHICH POWER EXTENDS MUCH FURTHER THAN SIMPLY THE AWARDING OF CITIZENSHIP. BUT LET'S READ ON, SHALL WE?
Mr. Trump said Monday that, if elected, he would bar all Muslims from entering the country with very limited exceptions, such as allowing Muslims serving in the U.S. military to return home. He said he would lift the restriction when more is known about the security threat posed by Islamic terrorism.
* JUST FOR WHAT IT'S WORTH... I'M NOT ON BOARD WITH THIS SUGGESTION. HOWEVER... I AM ON BOARD WITH PROFILING. ALWAYS HAVE BEEN! AND CERTAINLY PROFILING BASED UPON A COMBINATION OF NATIONAL ORIGIN AND RELIGION WITHIN THE CONTEXT OF THE COMMON BATTLE AGAINST SELF-PROCLAIMED "ISLAMIC" TERRORISM SEEMS TO ME NOT SIMPLE REASONABLE, BUT NECESSARY.
Some constitutional scholars say there’s no debate.
“Aside from being outrageous, it would be unconstitutional,” said William Banks, a constitutional law scholar at the Syracuse College of Law, pointing to guarantees of due process under law.
“I believe Trump’s unprecedented proposal would violate our Constitution,” said Harvard Law Professor Laurence Tribe, according to NBC News. He said it would also conflict with the First Amendment’s religion clauses.
* NOTICE, FOLKS, NO ACTUAL REASONING TO SUPPORT THE PROCLAMATIONS...
Other scholars who spoke to Law Blog were more hesitant to pronounce the Muslim immigration ban unconstitutional, at least as it applied to non-U.S. citizens and assuming such a plan was approved by Congress.
* WOW... FINALLY... CONGRESS IS MENTIONED!
Denying entry to American citizens, they said, would definitely not hold up in court.
* AGREED. (BUT NO ONE IS TALKING ABOUT THAT... SO, AGAIN... GOTTA LUV THE THUMB ON THE SCALE "JOURNALISM" ON DISPLAY...
Constitutional challenges to immigration restrictions “face unusually tough hurdles,” Stephen H. Legomsky, of Washington University School of Law, who was chief counsel at the U.S. Citizenship and Immigration Services agency under President Barack Obama from 2011 to 2013.
(Most recently the professor served briefly as senior counselor to the Secretary of Homeland Security on immigration issues.)
The hurdle he referred to is in the form of the so-called plenary power doctrine, a legal concept articulated by the Supreme Court giving Congress tremendous power over immigration laws.
* FINE AND DANDY TO IDENTIFY THE PLENARY POWER DOCTRINE, BUT... JUST TO CUT TO THE CHASE... WHAT WE’RE TALKING ABOUT IS THE CONSTITUTIONAL GRANT OF EXPRESSLY DESIGNATED POWER - SOLE POWER - REGARDING "NATURALIZATION" TO CONGRESS. PERIOD. END OF STORY.
It was first laid down by the Supreme Court in the late 1880s when justices upheld the Chinese Exclusion Act, a federal law that suspended immigration of Chinese laborers.
* AND, YEAH, FOLKS... THE BILL OF RIGHTS EXISTED IN THE LATE 1880's.
(*SMIRK FOLLOWED BY A $HIT-EATING GRIN*)
Repealed during World War II...
* "REPEALED" BY WHO...??? (THAT'S RIGHT... REPEALED BY CONGRESS....) WHAT CONGRESS LEGISLATES... CONGRESS CAN CHANGE OR EVEN REPEAL.
The Chinese Exclusion Act was the first major immigration restriction enacted into law and the first exclusion based on ethnicity.
* NOT THAT I'M CYNICAL OR SUSPICIOUS OF THE FINE FOLKS AT THE WSJ... BUT... THAT WORD "MAJOR"... KINDA MAKES ME WONDER WHAT "MINOR" LAWS - SIMILAR LAWS - HAD BEEN ENACTED OVER THE YEARS PRIOR TO THE 1880's WHICH WOULD FURTHER BUTTRESS THE ARGUMENTS OF THOSE WHO (LIKE ME) CAN ACTUALLY READ AND UNDERSTAND THE WORDS OF THE CONSTITUTION.
(*SMIRKING AS I SPIT ON THE GROUND*)
The plenary power doctrine “states that the courts should show exceptional deference to Congress when it legislates in the field of immigration,” Mr. Legomsky told Law Blog. “Whether modern courts would uphold a racial or religious immigration restriction is difficult to predict.”
* FOLKS. THE CONSTITUTION DOESN'T CHANGE BECAUSE IT'S 2015... UNLESS BY CONSTITUTIONAL AMENDMENT. IF THE PRESENT SUPREME COURT WERE TO IGNORE BOTH THE CLEAR LANGUAGE OF THE CONSTITUTION AND PRECEDENT THEY WOULD BE ACTING AS A ROGUE COURT.
The high court has reaffirmed the doctrine as recently in a 1972 ruling denying entry to a self-described “revolutionary Marxist” from Belgium who sought a temporary visa.
UCLA law professor Eugene Volokh told Law Blog that Mr. Trump’s plan “may be a very bad idea, but under the plenary power doctrine it may very well be constitutional.”
* FOLKS. IT IS CONSTITUTIONAL! CLEARLY! BUT TRUMP COULDN'T PUT IT INTO PLACE UNILATERALLY; CONGRESS WOULD HAVE TO CREATE SUCH A LAW.
Mr. Legomsky noted that courts have recognized exceptions to the doctrine. Deportation proceedings, for instance, may not be stripped of due-process protections.
* AND FRANKLY THE COURTS HAVE OVER-STEPPED THEIR LEGITIMATE AUTHORITY THERE; BUT THAT'S A DISCUSSION FOR ANOTHER DAY.
The obstacles to Mr. Trump’s proposal wouldn’t be just constitutional. The president couldn’t implement the plan unilaterally, said Mr. Legomsky, who said it would conflict with the Immigration and Nationality Act, the nation’s primary immigration law.
* Er... ISN'T THAT WHAT I'VE BEEN SAYING ALL ALONG...?!?! (FUNNY, THOUGH; BETCHA LEGOMSKY HAS NO PROBLEM WITH OBAMA IGNORING THE NATION'S PRIMARY IMMIGRATION LAW - THE IMMIGRATION AND NATIONALITY ACT.)
* FOLKS... I'M INTELLECTUALLY CONSISTENT. I'M HONEST.
Mr. Volokh said it’s also possible that the Trump plan could violate treaty agreements with American allies.