As Scott noted this morning, Donald Trump has 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.” Is this a good idea? Is it constitutional?
As to the second question, I’m not sure. However, I think I agree with Eric Posner, who argues that an immigration ban on Muslims probably is constitutional but blocking American Muslims overseas from entering the country would not be.
As to the first question, I think there should be a strong presumption against a measure as harsh and discriminatory as shutting down Muslim entry, or even just entry by non-American Muslims, into the U.S. To overcome the presumption, I would want to see a strong case that doing so would meaningfully enhance our security; that no less burdensome and less discriminatory alternative exists that would substantially accomplish the same objective; that any marginal increase in security would not be outweighed by disadvantages; and that Trump’s ban is practicable (how, for example, do we determine who is and who isn’t a Muslim?).
Trump hasn’t made this case. Nor, to my knowledge, has anyone else.
Trump, in effect, is reversing my presumption. He’s not calling for a permanent ban; rather, he wants a ban until we can fully analyze the issue. In other words, he’s presuming that we should ban Muslim immigration — given the existence of Muslims in the world who want to conduct terrorism in the U.S. and terrorist organizations that want to get them into our country — until it can be shown that we don’t need to because, for example, there’s another way to accomplish our goals.
I understand why reasonable people would prefer to approach the matter this way, so I’m not going to denounce Trump’s proposal as racist, immoral, and/or un-American. I just think that Trump’s bar first on the basis of religion, ask the relevant analytical questions about the ban later approach is seriously misguided in this context.