How Legal Is Donald Trump’s “Plan” for Muslim Immigrants?


This week, GOP presidential candidate Donald Trump made somehow more inflammatory than usual headlines by proposing to a group of South Carolina supporters that he would ban any travel to the U.S. by Muslim immigrants visiting from any country in the world. While the idea is unlikely to have any traction in U.S. politics (both right and left wing leaders panned the plan as wildly discriminatory and practically unenforceable) some experts believe Trump’s plan could be considered constitutional, given precedent set by historically racist U.S. immigration law.

Scholars looked primarily to the 1889 Chinese Exclusion Act, a law passed in 1882 and upheld in 1889 by the U.S. Supreme Court, barred Chinese laborers from entering the United States or becoming citizens after arrival. Although Chinese laborers had been summoned to the U.S. to meet labor needs throughout the 1800s, an economic depression in the latter half of the century created political incentive for leaders in the U.S. to scapegoat Chinese workers. The Court ruled that Congress had plenary power (complete power) to determine which immigrants may or may not enter the U.S. Justice Stephen Field wrote for the majority that “the government of the United States, through its legislative department, considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security, their exclusion is not to be stayed because at the time there are no actual hostilities with the nation of which the foreigners are subjects.”

Natsu Taylor Saito, a historian at Georgia State University, thinks the comparison between Trump’s proposal and the Chinese Exclusion Act, is not unreasonable. “To me the important thing to look at here is not just how blatantly racist Trump’s position is, but how this proposal is an extension of this entire body of law that we’ve had for the last 130 years or so. If you’re willing to accept a body of laws that racializes and excludes people, then you shouldn’t be surprised when someone takes it to its logical extreme,” he told the Huffington Post.

Stephen Logomsky, former general counsel for USCIS, agreed that the comparison is not far off base, though he added that Congress would have to sign on. Current Speaker of the House Paul Ryan has already made statements that no such actions will be taken in Congress should Donald Trump be elected President.

Huffington Post reporters, who first pointed to this comparison, finish their coverage on the matter most succinctly:

When the Associated Press asked the Trump campaign if the proposal would include U.S. citizens who practice Islam and travel abroad or serve in the military, Trump responded through a campaign spokeswoman saying: “Because I am so politically correct, I would never be the one to say. You figure it out!”

Trump issued his call for a ban on Muslim visitors in response to recent terrorist attacks in Paris and San Bernardino, California.

Nearly a quarter of the world’s population practices Islam.