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Dhaka Tribune

Legal doubts over Trump’s immigration proposals

Update : 20 Jun 2016, 05:58 PM

Republican presidential candidate Donald Trump’s proposal for suspending immigration from parts of the world with a history of terrorism could have a legal basis, but his assertion that it be part of a broader ban on Muslim immigrants makes it constitutionally untenable, legal scholars say.

The new twist in Trump’s anti-Muslim rhetoric came in the aftermath of a weekend shooting massacre at a Florida nightclub by the American-born son of Afghan immigrants.

In a fiery speech on Monday, the day after the Orlando massacre, he expanded on his proposed temporary ban on Muslims entering the US, vowing if elected to halt immigration from any area of the world where there is a “proven history of terrorism” against America or its allies.

He also accused the Muslim-American community of broad complicity in attacks such as the Orlando shooting, which was carried out by a gunman pledging allegiance to Islamic State, and threatened “big consequences” for those who fail to inform on their neighbours.

Many legal experts said Trump’s proposal for a religion-based ban would be unlikely to pass the test of US constitutional guarantees of religious freedom, due process and equal protection and would likely be struck down by the courts if he tried to implement them by presidential decree.

However, a ban on immigrants from certain countries has some precedent and might pass muster.

Some see that new proposal as reminiscent of the congressional Chinese Exclusion Act of 1882, which was used for years to halt the influx of Chinese labourers and has been widely considered a black mark on America’s immigration record.

But Trump’s overall immigration plan would go beyond that, targeting not just a country or a region of the world but also a religion, something that no modern US president has done.

But US presidents have wide latitude on immigration matters, and some conservative scholars said that the fate of any proposed ban would hinge on how narrowly Trump framed it.

They note, for instance, that Democratic President Jimmy Carter barred Iranian nationals from entering the US during the 1979 Iran hostage crisis.

In Monday’s speech in New Hampshire, Trump showed little sign of scaling back his call to ban Muslims from entering the US, which he first laid out in December after an Islamic State-linked deadly mass shooting in San Bernardino, California.

Debate over the legality of Trump’s proposals was complicated by the vagueness of his pronouncement and questions on how broadly he would extend any immigration ban if elected.

Under the broadest interpretation of Trump’s pronouncement, immigration could be barred not only from the Muslim world but from US-allied countries in Europe and Asia where militant attacks have taken place. This could include India, the source of many skilled engineers for the US technology sector.

Legal experts also raised doubts about the legality of Trump’s demand that members of the American Muslim community “cooperate with law enforcement and turn in the people who they know are bad” or else they will be “brought to justice” themselves.” Critics have accused him of anti-Muslim fear-mongering to win votes.

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