There has been much discussion in the press and on blog posts re: the constitutionality of of Trump's proposal to bar (non-citizen?) Muslims from entering the U.S. Several commentators have suggested the "plenary power" doctrine, governing Congressional power over immigration, would insulate such a proposal from a finding of unconstitutionality. I think the strongest constitutional argument against this proposal is based on the Establishment Clause, which severely limits the government's power to decide who is and who is not a Muslim. Suppose the person seeking entry disputes the label; how will immigration officials adjudicate the question? What criteria would the government apply to decide who fits the disqualification? This is an ecclesiastical question, the decisions of which are off-limits to the government. (See Hosanna-Tabor v. EEOC; more generally, see Lupu & Tuttle, Secular Government, Religious People, chaps. 1-2.) Because the Establishment Clause is structural, and not rights-oriented, It does not matter whether or not the decisions pertain to American nationals. The plenary power doctrine cannot undo this structural limitation, any more than it can undo limitations based on separation of powers (e.g., Congress may not delegate to a congressional committee the power to process immigration cases).
Reactions from list members to this argument? -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 Co-author (with Professor Robert Tuttle) of "Secular Government, Religious People" ( Wm. B. Eerdmans Pub. Co., 2014)) My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
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