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This question includes multiple hypotheticals that may have seemed inconceivable a year or two ago, but now that we've shifted to debating about how they might be implemented, consider the following campaign promises of the current US President, which cannot be trivially dismissed:

  • "a total and complete shutdown of Muslims entering the United States"
  • a registry of Muslims in the United States

Also suppose:

  • A US citizen is in that registry as Muslim
  • That same citizen travels internationally, e.g. for a conference, business meeting, or tourism
  • In version B of the question, the citizen is attempting to re-enter the US from a "terror-prone country" from which entry might be even more restricted.

Can that person be denied entry to the US, if strict policies like those noted above are adopted?

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  • Close voters, feel free to explain why.
    – WBT
    Jan 26, 2017 at 4:25
  • It's been flagged as unclear. On a separate note, you might find this question helpful; it doesn't have perfect overlap but does discuss a related situation.
    – Pat W. ♦
    Jan 26, 2017 at 12:21

1 Answer 1

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Citizens likely have an absolute right to enter the US. This hasn't been addressed directly by the Supreme Court, but here are some cases that come close.

The Fifth Circuit, in William Worthy, Jr. v. US, 328 F.2d 386 (5th Cir. 1964):

We think it is inherent in the concept of citizenship that the citizen, when absent from the country to which he owes allegiance, has a right to return, again to set foot on its soil.

The Supreme Court, in Tuan Anh Nguyen v. INS 533 U.S. 53 (2001) said that conferring citizenship on a person would give "the absolute right to enter [the US]". This wasn't necessary for the holding in this case, which was about whether the person was a citizen, so this could be considered dicta.

Fikre v. FBI, 23 F. Supp. 3d 1268 (D. Or. 2014). (not an appellate case) said:

U.S. citizen’s right to reenter the United States entails more than simply the right to step over the border after having arrived there. At some point, governmental actions taken to prevent or impede a citizen from reaching the [border] infringe upon the citizen’s right to reenter the United States.

Even if we assume that citizens do not have an absolute right to re-entry, the Equal Protection Clause likely bars a religion-based criteria for citizen re-entry.

Citizens are protected by the Equal Protection Clause of the 14th Amendment. This prohibits the government discriminating based on a suspect classification (race, religion, national origin) unless such law passes strict scrutiny.

Without making a prediction about whether such a hypothetical statute could pass strict scrutiny, I'll go as far as I can and strongly guess that the government could not prohibit citizen re-entry to the United States based solely on their declared religion.

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  • How about if the discrimination is nominally based on a/the country they are coming from/visited while abroad, e.g. if it's a "terror prone" country?
    – WBT
    Jan 26, 2017 at 4:28
  • The edits improved the answer. Thanks! (It'd be interesting to explore more detail of that "probably" in your comment, though.)
    – WBT
    Jan 26, 2017 at 5:01
  • Check out Glenn Greenwald's post now linked to in the question - you might find it interesting reading.
    – WBT
    Jan 26, 2017 at 5:23
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    @WBT Even then. Arguably, one might have some legal consequences for visiting a foreign "terror prone" country (e.g. increased scrutiny at the border, considering that probable cause for surveillance via wiretap), but denial of entry to the U.S. for a U.S. citizen is prohibited. The exact remedy for a violation, however, is trickier as a recent case that I'll look for explains.
    – ohwilleke
    Jan 26, 2017 at 18:35

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