Donald Trump's call to ban Muslims from entering the US temporarily last December 7 still has everyone talking about it from ordinary citizens to legal experts and politicians in America. While main criticism condemns his proposal as discriminatory, hateful, and "unconstitutional", experts are now saying it may be legal.
In his report for the Associated Press, Mark Sherman points out the loophole in the law. He says that although there has been no historical or legal precedent for denying Muslims entry into the US, there is also no existing Supreme Court case that prevents a US president from doing so. It is precisely this detail that makes Trump's Muslim ban proposal open to the possibility of being a legal action, despite how atrocious it is for the majority.
Cornell Law School immigration law professor Stephen Yale-Loehr says the Supreme Court has never before been faced with this kind of challenge of going against an entire religion. He thinks that it "would raise interesting and novel questions for the court". Meanwhile, Temple University immigration expert Peter Spiro points out that although the Supreme Court has never denied immigration on the basis of race, there have been incidences of exceptions. Courts have upheld the right to deny visas to known Marxists and individuals whose parents are unmarried. The Supreme Court upheld bans on Chinese laborers during the 1800s, as well as the internment of Japanese-Americans during the Second World War. Both were embarrassing periods in American history, but these particular cases may be considered to support Trump's proposal.
Prof. Jan C. Ting of Temple University's School of Law, explained to The Daily Caller that since there was a unanimous ruling of the Supreme Court in enacting the Chinese Exclusion Act in 1889, the judiciary along with the executive and legislative branches of the US government have upheld the authority "to make immigration law as they see fit and to exclude foreigners on grounds that would not be applicable to American citizens". Ting, a former Immigration and Naturalization Services commissioner for the Department of Justice, revealed that the US government discriminates on the basis of ethnicity and race in matters of immigration "every day".
In an interview with MSNBC chief legal correspondent Ari Melber for NBC News, foremost and often-cited law expert Eric Posner said that Trump's proposal may be considered constitutional on the basis of the US immigration law delegating extensive powers to the president, which includes powers to exclude people who the president thinks are a threat to national security, or might be detrimental to the interests of the United States in any way. Posner, a professor at the University of Chicago Law School who specializes in immigration laws and executive powers, estimates that the odds are "50/50" that the Supreme Court would uphold Trump's proposal, if ever enacted. He concludes that despite the proposal being a "terrible idea" and one that doesn't contribute to "enhance security", there are currently no clear and definitive grounds for it to be called unconstitutional.
