In a recent post I took up the question of the constitutionality of Donald Trump’s proposed temporary halt to Muslim immigration into the United States. My point was that while the proposal may be bad from many points of view, it is hard to argue–as some have attempted–that it would be unconstitutional. It’s clearly not a violation of the No Religious Tests Clause, which is explicitly directed to the question of tests for holding public office; and to claim that it is a violation of the Establishment Clause would require turning that provision to purposes for which it has never been used and that were not contemplated by its authors.
In response, one reader (posting in the comments section) raised a question about other possible constitutional violations involved in Trump’s ban. These, too, are worth considering. The reader asks about the Due Process Clauses of the Fifth and Fourteenth Amendments, which protect the rights of “persons” generally and not just of citizens, and wonders how a ban like Trump’s could survive the constitutional test known as “strict scrutiny.”
Here’s my effort to answer.
First, we should take the Fourteenth Amendment out of the question, since by its terms it applies to the states and not to the federal government, which alone makes American immigration policy. We must then turn to the Fifth Amendment, which does indeed require that no person be “deprived of life, liberty, or property without due process of law.” Would a ban like Trump’s violate this provision?
I don’t think so, at least not based on the way the clause has been traditionally understood. The problem with invoking this clause is that potential immigrants–those who are outside the United States and want to be admitted–have no right that is protected in this language. Someone who wants to enter the United States but is not allowed to do so is certainly not deprived of life or property. Are they deprived of “liberty” within the meaning of Clause? Is there a constitutional “liberty” right to enter the United States? I have never seen any evidence that the founders thought this, and to my knowledge no ruling of the Supreme Court has said this. A Court that held this would be breaking radically new ground, without any support in the text or history of the Constitution. And if the Due Process Clause is not relevant to the question then the Supreme Court would not bring “strict scrutiny” to bear on the question at all. It’s not the only constitutional test. The usual approach–the one used when no fundamental rights are at stake–is one that presumes the constitutionality of what Congress chooses to do. On that approach it would be difficult for a Court to invalidate whatever immigration policy Congress chooses to adopt.
Moreover, you can see what problems would be caused by the Supreme Court holding that potential immigrants have Due Process rights in relation to their desire to immigrate to the United States. If the Court were to hold this, then the right would belong to every human being on earth. If this is the case, then almost any immigration policy will be constitutionally suspect, since it will operate to make it more likely for some immigrants to be admitted than others. The only policies that could escape suspicion would be either one that allows everyone to immigrate who wants to, or one that admits people at random. But nobody that I know of thinks that the Constitution requires this. And if every other immigration policy is constitutionally suspect, then you have a situation in which courts, not the Congress, will be determining immigration policy. This is plainly not what the Constitution intends. And it is not consistent with the idea of self-government.
None of this is to say that immigrants have no rights under the Due Process Clause. Immigrants who have been admitted to the United States have due process rights, including a right to due process in relation to the enforcement of immigration law itself. If the government decides to expel someone it has admitted, it has to observe due process. But that is very different from claiming that potential immigrants have a Due Process right to be admitted.
Also, none of this is intended as a defense of Trump’s proposal as sensible public policy. It is only to remind us that not every bad idea is also unconstitutional.