I agree with Marty that this whole discussion is unnerving, but given the initial polls showing (1) substantial majority support for Trump's proposal among likely Republican primary voters, as well as support from a sizable minority of likely Democratic primary voters, and (2) Trump reaching new heights in the GOP primary, I think a discussion of the constitutionality of Trump's deplorable proposal is inevitable.
And even putting Trump's proposal aside, some of the proposals from more "conventional" candidates would seem to raise similar issues to those that we've been discussing here. For example, Governor Bush recently indicated that Christian refugees from Syria should receive preference over other Syrian refugees because there are "no Christian terrorists in the Middle East." When asked by a reporter about how the screening process would work, Bush responded: "You’re a Christian — I mean, you can prove you're a Christian. You can’t prove it, then, you know, you err on the side of caution.” This approach would potentially implicate both the "ecclesiastical question" rule and the "denominational discrimination" rule (assuming persecuted Christians are given preference over persecuted Yazidis, Shiites, etc.). Which brings us back to the question of whether these rules are best viewed as structural constraints on the federal government, rather than rights-oriented rules, and thus have extraterritorial reach. On the issue of the Establishment Clause's extraterritorial reach, many thanks to Paul and Jesse for the suggested resources. In the meantime, on the broader structural-v-rights issue, I went back and took another look at the opening chapters of Chip and Bob's book, and I commend to list members their discussion of the "evolution of rights talk as a mode of Establishment Clause discourse," which they counter with "an alternative account of nonestablishment, one framed as a jurisdictional limitation on civil authority." (Note: As I was writing this, Chip and Bob posted their ACS piece <http://www.acslaw.org/acsblog/the-legality-of-muslim-exclusion-part-ii-the-establishment-clause> elaborating on the applicability of their approach to the Trump proposal.) Finally, a question for those familiar with asylum and refugee proceedings: when addressing claims based on religious persecution, do the proceedings typically focus on how a claimant is likely to be treated by their home country based on their perceived religion or also on whether the claimant actually qualifies as a member of the persecuted religious group? To the extent the proceedings focus on the latter question, does that raise the problem Chip and Bob have flagged of the government answering ecclesiastical questions? (In some initial research, I have found a couple Seventh Circuit decisions and one Ninth Circuit dissent indicating that the proceedings should not focus on the latter question, albeit without any mention of the Establishment Clause). - Jim On Thu, Dec 10, 2015 at 7:24 AM, Marty Lederman <lederman.ma...@gmail.com> wrote: > This post by Steve Vladeck strikes me as just right: > > > https://www.justsecurity.org/28221/missing-constitutional-analyses-donald-trumps-muslim-immigration-ban/ > > Three relatively minor additional points: > > 1. I don't believe there have ever been any Supreme Court cases in which > the "plenary power" doctrine was ever applied as to expressly *racial or > religious* terms of exclusion; so even as a matter of *stare decisis*, > there's nothing there. > > 2. As Paul suggests, when it comes to the EC, there is the additional > complication of whether and how it applies to aliens overseas -- the old > *Lamont > v. Woods* question. This has practical implications, in that the US > government occasionally spends money overseas to promote certain forms of > religion that it could never do here in the States. > > 3. There's something a bit unnerving, frankly, about so many of us ConLaw > academics treating this question so seriously. Lends the whole thing an > air of "Trump has raised a serious, close, contested question," which, of > course, implies that this is something that should even be a topic of > public debate, rather than dismissed straight away as an abomination. Not > saying we shouldn't set the record straight once it's being discussed -- > Steve and Chip are 100% right not to let the Posner/Spiro view go > unchallenged. But the whole discussion is deeply disturbing (as are the > Court's precedents, of course!). > > On Thu, Dec 10, 2015 at 1:01 AM, Paul Horwitz <phorw...@hotmail.com> > wrote: > >> I'm sorry not to see reference in the discussion to preexisting scholarly >> discussions of the question of the extraterritorial reach of the EC or >> other clauses of the First Amendment. No offense to the worthy statements >> of those who have posted, or written elsewhere, although I do think >> academics generally have a comparative advantage at calm and slow >> reflection, not short-term reactions and predictions, in which they are >> largely as subject to cognitive limitations as all humans are. >> >> To that end, may I commend Timothy Zick's The Cosmopolitan First >> Amendment: Protecting Transborder Expressive and Religious Liberties >> (Cambridge University Press, 2015), >> >> http://www.amazon.com/The-Cosmopolitan-First-Amendment-Transborder/dp/1107547210. >> His endnotes point to other relevant and reflective treatments. See also >> this valuable report of a task force on religion and U.S. foreign policy >> sponsored by the Chicago Council on Global Affairs: >> http://kroc.nd.edu/sites/default/files/engaging_religious_communities_abroad.pdf. >> I think everyone will find both sources valuable, interesting, and >> time-consuming. >> >> >> On Dec 9, 2015, at 11:12 PM, James Oleske <jole...@lclark.edu> wrote: >> >> Although Rick and Chip agree that Trump's proposal violates the >> Establishment Clause, they travel different paths to that conclusion, and >> those different paths raise (I think) an interesting question: >> >> Under the Court's precedents, is it clear that the "denominational >> discrimination" rule Rick invokes is, like the "ecclesiastical question" >> rule Chip originally invoked, structural in nature and not rights oriented? >> >> Between O'Connor's opinion in Lynch, and the Court's opinions in Grand >> Rapids, Allegheny, Sante Fe, and McCreary, there is a a fair amount of >> language that makes the issue of endorsement or disapproval sound in >> individual rights ("person's standing in the political community" "not full >> members of the political community" “perceived by … nonadherents as a >> disapproval[] of their individual religious choices"). In its latest >> explanation of the denominational-discrimination rule in McCreary, the >> Court wrote that "Manifesting a purpose to favor one faith over another ... >> clashes with the 'understanding, reached ... after decades of religious >> war, that liberty and social stability demand a religious tolerance that >> respects the views of all citizens." If we're talking about non-citizens >> who are not part of the American political community, could one colorably >> argue that the denominational-discrimiantion rule -- as currently >> understood by the Court -- does not apply? >> >> - Jim >> >> On Wed, Dec 9, 2015 at 12:21 PM, Rick Duncan <nebraskalawp...@yahoo.com> >> wrote: >> >>> I missed Chip's great post before I asked my question. >>> >>> I agree completely with what Chip says here. It seems like a clear >>> violation of EC limitations on National power. The clearest command of the >>> EC forbids denominational discrimination by the National government >>> ("Congress shall make no law"). >>> >>> The only problem might be standing. Would a non-citizen-foreign-national >>> have standing to challenge the exclusion under the EC? >>> >>> Rick Duncan >>> Welpton Professor of Law >>> University of Nebraska College of Law >>> Lincoln, NE 68583-0902 >>> >>> >>> ------------------------------ >>> *From:* Ira Lupu <icl...@law.gwu.edu> >>> *To:* Law & Religion issues for Law Academics < >>> religionlaw@lists.ucla.edu> >>> *Sent:* Tuesday, December 8, 2015 7:10 PM >>> *Subject:* the unconstitutionality of barring Muslims from entering the >>> U.S. >>> >>> 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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