On Religious Freedom, Bigotry, Donald Trump and Immigration

WMU-Cooley Professor Devin Schindler

WMU-Cooley Professor Devin Schindler

Blog author Professor Devin Schindler teaches Constitutional Law and Health Care Regulation at WMU-Cooley Law School’s Grand Rapids campus and is a frequent commentator on numerous healthcare and Constitutional issues, having been interviewed over 200 times by radio, television, print and internet media sources.  His comments have appeared in Time Magazine, The Huffington Post, The New York Times, The San Francisco Chronicle and numerous local media outlets, including this Dec. 8, 2015, WZZM13 story called Legal expert weighs in on Trump controversy.

One would think that Donald Trump’s proposal to temporarily prohibit Muslims from entering the country because of their religious beliefs would be flatly unconstitutional. After all, both the Equal Protection Clause and the First Amendment religion clauses have been interpreted as prohibiting government from discriminating based on religious belief, absent the most compelling of reasons.

Unfortunately, one would be wrong. The United States has a shameful history of discriminatory immigration policies that used national origin, race and even political ideology as a basis to exclude individuals from entering the country. Immigration laws that discriminate based on membership in a suspect class date back to at least 1882, when Congress passed the “Chinese Exclusion Act,” which forbid any laborer of Chinese descent from entering into the country. In a series of cases challenging the law, the Supreme Court ruled that Congress’ “plenary” Article I authority to  “establish a uniform Rule of Naturalization”  essentially gave Congress carte blanch to discriminate for  any reason, or no reason at all.

This plenary authority was exercised again in 1924, when Congress adopted the National Origins Act, which  imposed immigration quotas based on national origin. The quota system restricted immigration from Eastern Europe and made it practically impossible for Asians and non-Caucasians to enter  the country. The law was motivated by racial and religious animus against non-white, non-Christian immigrants.

More recently, in the 1972 opinion Kleindienst Mandel, the Supreme Court upheld the Secretary of State’s decision to exclude from the country a Belgian journalist who espoused Marxist ideology. Rejecting a First Amendment challenge,  the Supeme Court upheld the exclusion based on Congress’ “plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.”  Historically, the Supreme Court has been extremely deferential to Congress’ authority to exclude aliens from our borders, even when the exclusion is based on racism.

Congress is unlikely to enact a law banning individuals from entering the United States based on their religious beliefs. But even if Congress were to do so, hope remains. First, the opinions carving out Congress’ plenary authority over immigration issues largely predate the Equal Protection revolution that occurred in the 1950s and 1960s.  As cases like Brown v Board of Education evidence, our nation has more recently recognized the evils of race and ethnic origin discrimination. Second, our nation has, since its inception, considered religious discrimination to be particularly invidious. This commitment to religious equality is recognized (among other places) in Article VI of the Constitution, which forbids the government from imposing religious tests for  high office. Although not directly relevant to the immigration issue, Article VI reflects our shared history of accepting all people, irrespective of their religious beliefs.

In 2012, Congress enacted a resolution apologizing for enacting the blatantly racist Chinese Exclusion Act. Three years later, we find ourselves embroiled in a debate on whether Congress can or should exclude people because of their religious beliefs. We are reminded yet again that a country that does not learn from history is doomed to repeat it.

Do you agree that our country does not learn from history, but is doomed to repeat it? Share your opinions.

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Filed under Faculty Scholarship, Uncategorized

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