Donald Trump's proposed ban on Muslim immigrants could be legal, scholars say

[The Nature Boy 7,659]

http://www.latimes.com/nation/la-na-muslim-ban-legality-20151214-story.html

“If you take seriously the cases that have been decided in the past, they would find it constitutional,” he said of a Trump-like ban on Muslims. Though past restrictions have been based on race, nationality or political beliefs — not religion — Posner said he did not see that distinction as crucial.

“As a matter of law, I don't see why it should matter,” he said. “If someone can be excluded from this country merely for having the wrong political beliefs, he could be excluded for having the wrong religious beliefs.”

But he and other legal scholars agree that some members of the current high court -- including Justice Stephen Breyer -- would likely expect the government to have a strong reason for excluding all people of the same religion.

“If a restriction on Muslims were to become law, it would not surprise me to see the courts strike it down as irrational -- and probably because it sweeps too broadly,” said UCLA law professor Hiroshi Motomura, who teaches immigration law.

Other legal experts said religion is a bit of a wild card. The high court in the past has not ruled directly on mass exclusions based on religion, and today's justices are particularly sensitive to discrimination based on religion.

Earlier this year, the high court with near unanimity ruled for a Muslim girl who had been turned down for a sales job because she wore a head scarf at the job interview, and for a Muslim inmate whose beard violated prison rules. Justice Antonin Scalia wrote the first decision, and Justice Samuel A. Alito Jr. the second.

See the most-read stories this hour >>

“Religion is one of the few areas that crosses the left-right divide. It is a point of common cause,” said Stephen Vladeck, a law professor at American University in Washington.

“The people who say this will be easily upheld are missing the reality of the current court's views on religion,” he said.

And most agree such any ban could be enforced only against immigrants.

“The plenary power doctrine applies only to foreigners,” Posner said. “If [Trump] really tried to ban Muslim Americans from entering