To say that the Trump announcement got people talking last night would be an understatement in the extreme. (Our own readers expended a lot of energy on that subject through the wee hours of the morning.) We provided most of the political fallout throughout the evening, but I found myself pondering the mechanics of the question. I had a brief Twitter exchange on the subject with Jim Geraghty of National Review, who had asked if anyone was even arguing that it was constitutional. Jim was citing the First Amendment’s Religion Clause and the Article VI “No Religious Test” provisions. (At least in spirit.) Well, you know me. I love a good argument on such things no matter how you might feel about the policy itself so it was time for some reading. This wasn’t a question of would you institute such a ban quite so much as one of… could you?

More than a few cable news talkers rapidly declared that it was either “illegal” or “would be struck down by the Supreme Court.” MSNBC quickly came up with a constitutional opinion from Laurence Tribe, but you can assign whatever value you wish to that. Tribe’s arguments ran essentially along the same lines as Geraghty’s, but we still seemed to be missing some key documentation. Where is the precedent in the courts or the history of laws to guide those opinions? Sure, it might sound wrong to propose such a thing, (depending who you ask) but we need to be able to back it up on paper.

The Founders, unsurprisingly, had rather little to say on the subject of immigration since pretty much all of the people eligible to vote, hold office or own land in those days were either immigrants themselves or only a few generations into the American experiment. The question heated up quite a bit in the 1800s though, with many rounds of immigration law coming and going depending on the moods of the day. As for the Supreme Court, there have been a couple hundred cases which at least tangentially deal with the subject of immigration, but they mostly nibble around the edges or deal with challenges to specific provisions of laws and executive orders. The big one which was more sweeping in nature was Henderson v. Mayor of the City of New York in 1875, wherein the court determined that immigration policy was the purview of the federal government and would not be handled by a patchwork of laws passed by the individual states.

Beyond that, however, the Supremes don’t seem to have been overly inclined to play referee on the question. We’ve passed all sorts of laws which were later amended or entirely repealed by Congress, but not generally tossed out by the judicial branch. We had the Chinese Exclusion Act of 1882 and the Alien Contract Labor laws of 1885 and 1887. These placed all sorts of restrictions on immigration which I’m sure would be declared morally bankrupt today, but they stood on their own in the legal system at the time. (It’s worth noting that during that period we legally barred the entry of “idiots, lunatics, convicts, and persons likely to become a public charge.”)

The Immigration Act of 1891 (which was also never struck down by the courts, though later largely rolled back) barred the immigration of polygamists. It doesn’t require much of stretch of the imagination to understand that there are some built in religious restrictions in that one. In the early 1900s we placed quotas on immigration based on race. It’s true that Congress repealed that portion in the 1950s, but they did it under their own volition, not at the direction of the courts. In its place, however, we placed quotas on immigration based on nation of origin which we still keep in place to this day. Considering the racial makeup of many of the countries on the list, we may not be flatly stating that we’re limiting immigrants based on race, but that’s the de facto result, particularly when it comes to many African, eastern Asian and south or central American nations. None of these quotas have been thrown out by the courts. Some of these nations have almost homogeneous religious profiles as well.

Taking all of that into account, I don’t know that we can flatly state that it couldn’t be done, at least without the Supremes weighing in with a 21st century perspective. The Constitution grants a lot of rights, but we need to remember that it’s talking about people who are citizens of this country or, at a minimum, people who are physically residing here. A devil’s advocate argument could be made that banning the immigration of Muslims isn’t restricting their freedom to practice their religion. They’ll just have to practice it elsewhere. And those already living here as citizens remain free to practice the religion of their choice. The Article VI question seems to not have much weight behind it at all because even proponents of that argument have to add the phrase “in spirit” to their case. Article VI deals with a test for “elected office” and the act of legally immigrating is not one of taking or holding office by definition.

There’s a lot of rushing to conclusions going on across the country on this question right now, but I’d like to hear some better formed and documented answers before simply saying, “you can’t do that.” It may indeed prove to be either illegal or unconstitutional, but I’ll wait to hear the specifics of how and why.

UPDATE: Our friend Popehat pointed out to me on Twitter that one case at least strongly hints that the courts have found that there are no limits on the power of the federal government to restrict immigration, even if it appears blatantly “racist” in liberal society.

@JazzShaw @dmataconis I could be wrong. See Sale v. Haitian Centers Council https://t.co/IHq30MElHL. Arguably permits racial discrimination.

— IncitementToResurrectionHat (@Popehat) December 8, 2015

Here’s Sale v. Haitian Centers Council, Inc. 509 U.S. 155 (1993)

An Executive Order directs the Coast Guard to intercept vessels illegally transporting passengers from Haiti to the United States and to return those passengers to Haiti without first determining whether they qualify as refugees, but “authorize[s] [such forced repatriation] to be undertaken only beyond the territorial sea of the United States.” Respondents, organizations representing interdicted Haitians and a number of Haitians, sought a temporary restraining order, contending that the Executive Order violates §243(h)(1) of the Immigration and Nationality Act of 1952 (INA or Act) and Article 33 of the United Nations Convention Relating to the Status of Refugees. The District Court denied relief, concluding that § 243(h)(1) does not protect aliens in international waters and that the Convention’s provisions are not self-executing. In reversing, the Court of Appeals held, inter alia, that §243(h)(1) does not apply only to aliens within the United States and that Article 33, like the statute, covers all refugees, regardless of location.

Held: Neither §243(h) nor Article 33 limits the President’s power to order the Coast Guard to repatriate undocumented aliens intercepted on the high seas. pp. 170-188.

Interesting to say the least.