George Washington University Law School Professor John Banzhaf was a guest on Tuesday’s Breitbart News Daily, where he discussed the constitutionality of Donald Trump’s proposed ban on Muslim immigration with SiriusXM host Stephen K. Bannon.
Bannon asked if Democratic National Convention speaker Khizr Khan was correct to assert that Trump’s idea violated the Constitution, a point he made by waving a pocket copy of the document and asking if Trump has ever read it.
Banzhaf said it was the view of “virtually all constitutional professors who have written on the topic” that Khan was wrong.
“First of all, it is legal under current law for the president – by himself, without even getting the consent of Congress – under current law, Title VIII, Section 1182, to prohibit – well, I’ll read it.” He read, “‘Any aliens, or any class of aliens, into the United States would be detrimental to the interests of the U.S.'” Therefore, he said, “He doesn’t have to provide any reason for doing it. If Congress joins him, it makes it even stronger, more likely to be constitutional.”
“We’ve done this for over a hundred years,” Banzhaf noted. “We had something called the Chinese Exclusion Act, which is excluding, obviously, people on the basis of race.”
“Reason Number One why it is constitutional is something called the Plenary Power Doctrine. What this says, in simple terms, is that the ordinary constitutional protections, primarily equal protection, do not apply to people who are not U.S. citizens, and who are trying to enter the country,” he said. “This has been true for over a hundred years. Our Supreme Court has, time after time, turned away objections to restrictions based upon race, national origin, political belief, even under free speech grounds.”
So, on that ground, very clearly it’s constitutional. The other is, even if we just look within the United States at people who are already here, what the courts have said is that you can distinguish on the basis of factors like race or religion, if it serves a compelling state interest, and if it is only one of several factors.
Elaborating, Banzhaf stated:
That’s the reason why, for example, we have affirmative action. Colleges can discriminate on the basis of race because we want to have diversity. Well, preventing terrorism is at least as important as having diversity in the classroom, and so as long as race is used as only one factor – or, in this case, religion is used as only one factor – we can apply different standards even in the U.S., for example in secondary searches on airplanes.
Banzhaf said it was a problem for the U.S. that “a lot of people haven’t read the Constitution,” but they “kinda think anything which they don’t like, any proposal which they don’t like, is both unconstitutional and un-American.”
He pointed to the current controversy regarding the Muslim immigration ban, which he again noted was a perfect mirror image of affirmative action, and rattled off a list of prominent politicians who have no doubts about the constitutionality of the latter: “Governor Jeb Bush, U.S. Senator Ted Cruz, Rep. Peter King, a woman named Hillary Clinton, President Barack Obama, and one of our most Democratic senators, Chuck Schumer.”
He further noted that effective anti-terrorism programs involve this sort of allegedly unconstitutional discrimination based on race and religion, but support for such initiatives has not harmed the political fortunes of such figures as the NYPD’s Ray Kelly, who has been touted as a potential secretary of Homeland Security.
“A lot of people have supported the basic idea that, particularly to protect against terrorism, we can, to some extent, distinguish on the basis of factors like religion,” Banzhaf said, adding:
So, for example, rather than treating all passengers exactly the same – same risk, 6-year-old child, 98-year-old Asian woman, no greater risk than a young Arabic or Muslim male, which makes no sense at all – we could provide more secondary screening to people who are, for example, young Muslim males or young Arabic males. That only makes sense, with regard to people coming into the country.
“I’m not saying whether it’s a good idea or a bad idea, but it would be constitutional, as we said, to bar all Muslims trying to come in.” He then suggested:
Another compromise proposal might be, because we can’t vet them very well when they’re coming in as refugees, we don’t have the paperwork and so on, we could say, “Okay, where there are doubts, we’re going to let you in, but we’re going to ask you to wear an ankle tracer.”
Banzhaf offered further details of how such a program would work and analyzed its constitutionality:
We do that for people who are arrested for drunk driving and so on. It makes it a lot easier to track them – and, as you know, from our Paris experience and for others, one of the big problems is, there are a lot of people out there. The authorities are worried about them. There are lots of red flags, but they can’t track them 24 hours a day. Therefore, they don’t do anything.
If you have ankle bracelets, one guy can sit in a room with a hundred television screens, track their movements – either in real-time or retroactively if something happens. If they wander near airports, or nuclear facilities, or some place which is suspicious, then the authorities can do something.
Would it work? I don’t know. Would it be constitutional? Almost certainly yes.
Banzhaf allowed that he has not followed everything Trump has said about his proposal to temporarily ban Muslim immigration. “Quite frankly, I get the impression that his plan is not too clear or precisely spelled out,” he said.
But the basic idea of limiting, or even preventing, the importation of non-citizens into the U.S. to become citizens, based upon factors like religion, or race, or nationality, I think virtually all constitutional scholars would say they may not like it, but we can’t say it’s unconstitutional, particularly given this Plenary Power Doctrine, the equal protection clause does not apply to foreigners seeking admission to the U.S. That’s been the law for over a hundred years.
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