Donald Trump has gotten massive (and free) coverage and has come under verbal assault from both inside and outside his party for claiming this week that no more Muslims should be admitted into the United States for an undetermined time.
Various commentators have gone on the air or into print, both both sides of the aisle, to claim that religious discrimination in immigration is prohibited by the First Amendment to the Constitution, either the establishment clause or the free-practice clause, or both.
I am setting aside the question of wisdom or the humanity of such a policy. The question in this post simply is whether it would pass legal and Constitutional muster.
In fact, it already meets both.
Constitutional protections apply to the persons who are US citizens or under the jurisdiction of the United States. Jurisdiction is physical space, geographically defined. It is the territories of the 50 states of the union plus territories of non-states such as Guam or Puerto Rico, governed by the US federal government. (There are complexities regarding the Constitutional protections of US citizens outside US jurisdiction, but that's not what Trump is talking about.)
Persons who are not US citizens and not physically present on US territory are called "foreigners." There are about seven billion of them. They have no Constitutional protections at all for the simple reason that they are under the sovereign authority of the entity wherever they may be located.
In the 1972 case, Kleindienst v. Mandel, The US Supreme Court ruled that Belgian national Ernest Mandel, who had applied for entry into the US, had no Constitutional right to enter. The ruling said in part,
It is clear that Mandel personally, as an unadmitted and nonresident alien, had no constitutional right of entry to this country as a nonimmigrant or otherwise.That means that the US federal government may, for any reason it chooses, bar entry onto US territory by anyone it chooses, for any reason it chooses, whether one person or many.
But wait, there's more! The president enjoys that actual power right now without consulting with Congress in the slightest.
... the Trump proposal requires an act of Congress, but that act has already been enacted. Title 8, Section 1182 of the U.S. Code provides in relevant part:So that's that.
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
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