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The Trump administration's travel ban has certainly been the source of a fierce debate in and out of the courts. Whether or not the ban is good policy (I think it isn't), the question remains whether it is constitutional.

Let's put aside the issue of whether the ban, as written, contradicts the 1965 Immigration act or other immigration law passed by Congress, as this is a somewhat seperate issue. In fact, to focus on what I consider the crux of the issue, consider a government body X (either the congress of the president) issuing a blanket ban on all members of religion Y to travel to the US. Assume the ban does not apply to US citizens or green card holders.

What would be the legal argument for the unconstitutionality of such a ban? The ban, though unequivocally discriminating based on religion, would presumably effect non-US citizens who would not be covered by the first amendment.

One might argue the ban would still be unconstitutional because it would disproportionately restrict members of religion Y from using the immigration system to bring their families to the US, hence constituting a violation of the first amendment. If this is a reason for such a ban's unconstitutionality, would carefully designing the ban as to surgically allow members of Y to bring their families into the US affect its constitutionality?

  • If I remember right, and you look at the Supreme Court arguments with the ban, then I think they allowed it, while making sure that anybody with a bona fide relationship to a party in one of the affected countries would still be allowed to enter the United States. But I barely remember, and someone who is more current and knowledgeable with US laws and politics ought to answer than me. – Zizouz212 Aug 30 '17 at 2:23
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    The bill of rights is not limited in its application to US citizens. – phoog Aug 30 '17 at 17:45
  • @phoog The bill of rights applying to foreign nationals who have never lived in the US does not seem immediately obvious to me from reading the text of the bill of rights. Can you point to an example of case law in which this is affirmed. – Natural Contrarian Aug 31 '17 at 5:12
  • The right of freedom of religion is expressed as a restriction on the government. So it applies to everyone. – phoog Aug 31 '17 at 8:58
  • As to case law, aliens who have never been to the US have no standing to sue, but US citizens or others might have standing to sue on their behalf. And many aliens with different circumstances will have standing to sue in their own right. – phoog Sep 1 '17 at 12:42
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The government is prohibited by the first amendment from creating a law which gives preference to one religion over another. Banning entry to persons of one or more religions would do this.

  • Precisely; I don't see how it's any more complicated (or less simple, perhaps) than this. – Nij Aug 30 '17 at 6:15
  • Does it matter that the 1st amendment prohibits congress from "respecting an establishment of religion" but does not say anything about the president? The order is related to some law passed by congress, but the law itself doesn't say anything about religious preferences. It seems that congress didn't pass a law respecting an establishment of religion, but perhaps it is being applied in such a way that does? Do the courts interpret 1A to apply to lawful executive orders? – Matt Aug 31 '17 at 0:04
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    @Matt The Constitution doesn't give the President the power to do anything about religion (it actually gives that office very few powers). Most of the President's powers relate to the administration of laws (made by Congress and interpreted by the Judiciary) and since Congress can't make such a law the President can't administer it. – Dale M Aug 31 '17 at 0:33
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    @Matt Two things. First, the First Amendment has been interpreted to apply to all branches (executive, legislative, and judicial), and through 14A incorporation to all levels (national, state, and local). Second, executive orders can't be lawful unless they derive from one of two sources: the President's inherent constitutional authority or acts of Congress. If 1A stops Congress from passing a law, it also stops Congress from authorizing the President to make it a policy. The President's inherent authority is fairly limited (Trump's order is based on legislation, not inherent authority). – cpast Aug 31 '17 at 1:04

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