Law Prof.: ‘Hysterical’ Criticism of Trump’s Temporary Muslim Ban ‘Unwarranted’

Jan Ting
Jan Ting/Twitter

Prior Supreme Court rulings strongly suggest that Donald Trump’s proposed temporary ban on Muslims entering the United States is constitutional, according to one of the country’s most esteemed immigration law scholars.

In a piece, Temple University Law Professor Jan Ting argues that “the hysterical response” to Trump’s “proposal to restrict Muslim immigration is unwarranted” because “contrary to the claims of Trump’s critics, the power to suspend the admission of ‘any aliens or any class of aliens into the United States’ is expressly reserved by statute to the president whenever the president finds that such admission ‘would be detrimental to the interests of the United States.’”

Ting believes that, according to Supreme Court case law, there seems to be no basis on which the government cannot exclude aliens.

According to Ting, “despite vigorous assertions by talking heads that suspending the admission of Muslim immigrants would be unconstitutional, prior Supreme Court opinions clearly suggest that courts would reject constitutional challenges to any president’s proposed suspension of Muslim admission into the United States in accordance with U.S. law”:

In the leading case of Fiallo v. Bell, the Supreme Court in 1977 noted, “Our cases ‘have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the government’s political departments largely immune from judicial control.’”

In upholding the authority of the government to deny admission to aliens, the high court observed that “in the exercise of its broad power over immigration and naturalization, ‘Congress regularly makes rules that would be unacceptable if applied to citizens.’”

The long line of cases referred to in Fiallo traces back to the Chinese Exclusion Case of 1889, in which the Supreme Court unanimously held that Congress could exclude by statute immigrant laborers of a particular race and ethnicity. If the government can exclude aliens on the basis of race and ethnicity, is there any basis on which it cannot exclude aliens?

The answer so far seems to be no.

Ting mentions that the Supreme Court “upheld the exclusion of a Belgian Marxist writer, rejecting First Amendment claims made on his behalf and on behalf of the U.S. citizens who had invited him and wished to meet with him,” and “has also sustained the exclusion of an alien on the basis of secret evidence, essentially for no stated reason at all. And earlier this year the high court upheld the exclusion of the spouse of a U.S. citizen, rejecting due process claims made on behalf of the alien and the spouse.”

He adds that when “President Jimmy Carter exercised presidential power to suspend admission of Iranians on the basis of their nationality during the Iranian hostage crisis,” the U.S. Court of Appeals for the District of Columbia even dismissed a constitutional challenge to “his registration requirement for Iranians already in the United States” by citing the Supreme Court’s opinion in the 1952 Harisiades v. Shaughnessy that held that “any policy toward aliens is … interwoven with … foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.”

Ting concludes by pointing out that “if the proposed suspension of the admission of Muslim aliens is authorized by statute and likely to be judged constitutional by the courts, the dispute is reduced to a policy judgment.”

“The political process is all about letting the American people decide who has better ideas and who they trust to be president,” Ting adds. “We should resist attempts to push the frontrunner or any candidate out of the race.”

Even left-wing legal scholars who believe in “progressive constitutional norms” have begrudgingly admitted this week that the Supreme Court would likely uphold a temporary ban on Muslims entering the United States

Read Ting’s complete column here.