Trump’s Post-Orlando Statements Reveal the True Nature of His Proposed Ban on Muslim Immigration

Posted in: Constitutional Law

Following the horrific mass murder at a gay nightclub in Orlando this past weekend, pundits, politicians, and ordinary citizens expressed not only sympathy for the victims and their families, but views about the causes and proper responses to this and similar episodes. Inevitably, people viewed the tragedy through their respective pre-existing lenses.

For some, the Orlando attack underscored the need for stricter restrictions on the availability of either firearms in general or so-called assault weapons. For others, it highlighted the ongoing threat of violence perpetrated in the name of, even when not directed by, the Islamic State (or ISIS). Some members of the LGBT community reminded us that, sadly, anti-gay violence has been and continues to be committed by people claiming allegiance to a wide range of religions and ideologies.

And then there was presumptive GOP presidential nominee Donald Trump. Displaying his characteristic blend of tastelessness, xenophobia, and narcissism, Trump issued a series of statements boasting that the Orlando mass murder proved that he was right when, last December, he called for a “total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.”

To discuss this or any of Trump’s other statements as though they were carefully considered policy proposals risks attributing to him a level of thoughtfulness that appears to be beyond his capacity. Nonetheless, there is a non-trivial chance that Trump will actually become president. Although Trump’s multiple self-contradictions and professed preference for unpredictability make it difficult to say with confidence what he would actually do as president, it is likely that he would at least make efforts in the direction of his signature proposals: building a wall at the Mexican border and restricting Muslim migration. Thus, just as others have provided serious analysis of the Mexican border wall proposal, here it is worth considering what Trump might attempt with respect to Muslim migration.

Who Would Be Subject to the Ban?

In his initial announcement of the proposed ban and in some of his subsequent statements, Trump has said that he would bar all Muslims from entering the United States. Taken literally, such a policy would apply even to the millions of Muslims who are U.S. citizens or otherwise already lawfully present in the United States. However, U.S. citizens have a constitutional right to re-enter the country after traveling abroad. As applied to them, a policy that barred re-entry on the basis of religion would be obviously unconstitutional.

Accordingly, most commentators assume that Trump has in mind a “total and complete shutdown” of immigration to the United States by non-citizen Muslims seeking to enter the country, along with a change in the law governing who would be permitted to enter the country temporarily as tourists, students, and on other kinds of visas. Would that policy be valid?

My view is that it would not be. To be sure, the federal government has very broad power over immigration, so that rights that extend even to non-citizens once they are present in the United States often do not apply when they first arrive at the border. Nonetheless, I regard the Establishment Clause of the First Amendment as a structural principle, not merely an individual right. Accordingly, I believe that an immigration policy that conditioned entry to the country on religion would be unconstitutional, even as applied to non-citizens.

Admittedly, however, the question is open. A plausible case can be made for the view that, as Temple University law professor Peter Spiro put it in the title of an essay in The New York Times last December, “Trump’s anti-Muslim plan is awful. And constitutional” under the Supreme Court’s doctrine recognizing the “plenary power” of Congress over immigration.

Moreover, in a speech at Saint Anselm College on Monday afternoon, Trump offered a different version of his proposal. He promised to “suspend immigration from areas of the world [where] there is a proven history of terrorism against the United States, Europe or our allies, until we understand how to end these threats.” Because the new policy focuses on country of origin, rather than on each individual’s religion, it would have a better chance of surviving a constitutional challenge than Trump’s previously proposed “total and complete shutdown”—although Trump did not make clear whether he was offering his regional ban as a replacement for or a supplement to his proposal to ban Muslim immigrants wherever they come from.

But regardless of the fine details, how does the Orlando mass murder vindicate Trump? The killer, Omar Mateen, was a U.S. citizen living in the United States. Neither version of Trump’s policy would or could validly apply to him.

Trump’s Time Machine

Trump himself appeared to answer the question in one of his statements on the day of the murders. Mateen’s father is an immigrant from Afghanistan. And in criticizing the policies favored by presumptive Democratic presidential nominee Hillary Clinton, Trump complained that permitting Muslims to immigrate would lead to more terrorism because “we will have no way to . . . prevent the second generation from radicalizing.” Thus, Trump’s gloating appeared to be based on the premise that if his ban on Muslims entering the country had been in place over three decades ago, when Mateen’s father came to the United States, Mateen would not have been born here, and thus would not have committed the Orlando murders.

That is an amazing boast, even for Trump. After all, last December Trump said that he was calling for a future ban on Muslim migration into the United States. He did not say he was calling for a time machine to implement his ban decades in the past. But without a time machine, Trump’s plan—if constitutional—would do nothing to prevent the millions of Muslims and potential converts to Islam already in the United States from radicalizing.

Moreover, the acknowledgment that Trump’s Muslim immigration ban is meant to reduce violence by immigrants’ potential offspring decades later gives the lie to Trump’s contention that the ban would be short-lived. To do what Trump claims it would, the ban would have to be in place for decades.

Who Really Promotes ISIS?

In remarks on Monday, Trump darkly insinuated that President Obama is a secret agent for ISIS. The charge—like Trump’s earlier promotion of “birther” conspiracy theories about Obama—is of course baseless. But like many other lies, this one tells us more about the liar than about the object of the smear.

There is no reason to think that Trump is deliberately aiding jihadism, but the policies he promotes would have that effect. By communicating to American Muslims that they are all presumed to be terrorists, the chief impact of Trump’s proposed restrictions on Muslim immigration into the United States would be to foster resentment and radicalization in the small portion of the American Muslim community that has the potential for radicalization. If Donald Trump didn’t exist, ISIS would have invented him.

  • Mike Moran

    Left-wing jerk.

    • g kelly

      Mike, this is an adult website, and grade-school style (Trump-style?) name calling is not enough.

      Tell us what part of Prof. Dorf’s analysis you disagree with? His analysis of Mr. Trump’s statements of intent? His perspectives on what a president can or cannot do? Or the generally negative attitude he has expressed toward the Republican “presumptive nominee?”

      • Mike Moran

        If this is an “adult” website, then possibly start with publishing articles that handle adult issues with fact-based statements. I am not a rah-rah Trump guy, but the overall negativity and flat-out wrong statements made by Dorf make me wonder if the NY Times has him on payroll.

        “Some members of the LGBT community reminded us that, sadly, anti-gay violence has been and continues to be committed by people claiming allegiance to a wide range of religions and ideologies.”

        Really? Name another religion that persecutes and perpetrates violence routinely against gays. And don’t cite Westboro or other small fanatical groups- try to go with a group that maybe has over 100 members. Conservatives are overwhelmingly against any violence, and do not “hate” gays. Just another case of stereotyping with no foundation in fact.

        “Trump [‘s] xenophobia”. Get concrete, here, Mr. Dorf. Name an example during his private and professional (and now, political) life where that word is accurate. Maybe YOU think the policies of the last eight years have been awesome, but a majority of this country is fed up with PC and placating people who mean us harm at the expense of innocent lives. I often wonder what exactly it would take to open the eyes of people like you who live in the land of unicorns; Islamic Extremista want to kill YOU, and me, and every other American, straight, gay, black, white, yellow or green and all of the great varieties of non-Muslim Americans (and many Muslim Americans too).

        Trumps plan is not “anti-Muslim”. It is about thoroughly screening people from countries where fanaticism is a real problem; at this juncture, we do not have the capability to do so, according to DHS, FBI and others in a position to know.

        “In remarks on Monday, Trump darkly insinuated that President Obama is a secret agent for ISIS.”

        Wrong, but that’s how you want to interpret the anger that many of us feel toward a President who is feckless and way in over his head.

        I could keep tearing this article apart, but I have neither the time nor the inclination at the moment. Looking at the other articles written by Mr. Dorf, he is quite obviously an adherent to the “thought” processes of the left, reality be damned.

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        • MoidP

          For Trump’s xenophobia, see his comments regarding Mexicans. If you feel that the word implies a broad dislike of foreigners and Trump has manifested only a particularized dislike of foreigners (1.2 billion Muslims and 119 million Mexicans) then perhaps we can agree that he is simply a bigot.

          Regarding the treatment of lesbians and gays, several African countries that are Christian (Cameroon and Liberia, by way of example) and Russia (Russian Orthodox) persecute them. Bigotry is not the domain of any one group of people.

          Until the SCOTUS decision in Lawrence v. Texas in 2003, sodomy was illegal in 14 states. And, since the decision split 5-4, had there been a conservative judge, it would still be illegal. That the law and sentiment regarding gay rights has (partially) recently shifted in the U.S. does not make up for the decades of persecution. A simple internet search will prove the point.

          Trump’s insinuation regarding the President being part of or sympathetic to Daesh (ISIS) is not a figment of Mr. Dorf’s imagination. Most commentators and news organizations reported it as such. One ought to be careful that one isn’t an “adherent to the “thought” processes of the right, reality be damned.”

          • Mike Moran


            Apparently the definition of “phobia” is something you’re not familiar with, or you make up your own definition when you write. It is considered an anxiety disorder characterized by irrational fear.

            There is nothing irrational about wanting to secure our borders from foreigners; Trump has made it very clear that he is referring to illegal aliens and immigrants, not those who are going or have gone through the process legally. No country on the planet can afford unlimited immigration of even peaceful people, and with regard to Muslims, implementing a moratorium on immigration from countries with a documented history of Islamic Fanaticism is an intelligent thing to do. Millions of people in this country (both citizens and lawful residents) are absolutely stunned by people like you who put the interests of foreigners ahead of the safety and security of people living here. Quite frankly, it’s sickening, and to those who say foreigners have Constitutional Rights, you’re just flat-out wrong. The Constitution applies to Americans.

            Painting many or all religions with a broad brush regarding persecution of LGBT because of some sects in the world is illegitimate. For the record, reasonable people would not want those groups emigrating here either. So if were to declare (and I surely would) that I don’t want any Christians from Cameron or Libya coming here either, would that make me a “Christophobic”? Of course not, but holding that same standard to another group where well over 70% feel that Sharia Law, and by extension, the entirely repugnant viewpoint that women, gays and kafirs are sub-human is somehow bigotry.

            I cannot and will not defend the Texas law; it was rightly overturned 13 years ago. Still hanging on to that, huh?

            Finally, if you are of the belief that the Obama administration has done anything meaningful in the war against ISIS, you live in a world of unicorns. To the contrary, he has made it clear since 2008 (and prior, in the books he “wrote” with that wonderful guy Bill Ayers) that he’ll stand with Muslims when push comes to shove. Not my words, HIS. Do you pay any attention at all to the PC garbage (and much worse) he has inflicted upon police, the DOJ, the FBI and others who are here to protect Americans? Why will he not call the enemy by their name? WHY would he scrub all references to Islam and ISIS made by the Orlando terrorist? Why are terms like “jihad” verboten?

            Trump may have insinuated Obama’s sympathies, but I sure won’t. HE IS SYMPATHETIC, PERIOD.