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James Taranto, Constitutional Scholar

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Not only is the Donald’s plan to exclude Muslims from entering the United States brilliant politics, asserts James Taranto, it is also constitutional. But that’s absurd, you say. And you are correct!

All of these claims are mistaken. Quite obviously the Constitution’s provision on religious tests for public office has no application to immigration policy. The Equal Protection Clause of the 14th Amendment is equally irrelevant, as it applies only to states.

I happen to have the Supreme Court of the United States right here:

In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government. We hold that racial segregation in the public schools of the District of Columbia is a denial of the due process of law guaranteed by the Fifth Amendment to the Constitution. — Bollig v. Sharpe (1954)

And:

“[W]hile the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is ‘so unjustifiable as to be violative of due process.'” Schneider v. Rusk, 377 U. S. 163, 377 U. S. 168 (1964); see Shapiro v. Thompson, 394 U. S. 618, 394 U. S. 641-642 (1969); Bolling v. Sharpe, 347 U. S. 497 (1954). —Frontiero v. Richardson (1973) [holding that gender discrimination by the federal government violates the 5th Amendment

Or:

All racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny…

Cases decided after McLaughlin continued to treat the equal protection obligations imposed by the Fifth and the Fourteenth Amendments as indistinguishable; one commentator observed that “[i]n case after case, fifth amendment equal protection problems are discussed on the assumption that fourteenth amendment precedents are controlling.” —Adarand v. Pena (1995)

As far as I can tell, every single Supreme Court justice to have considered the question since has concluded that the Fifth Amendment binds the federal government with obligations fundamentally similar to those the equal protection clause of the 14th Amendment imposes on the states. When declaring the equal protection clause irrelevant to the question of whether the federal government can impose a major disability on a particular class of people, this seems highly relevant!

Under existing precedent, it is black-letter law that Trump’s plan would be subject to strict scrutiny, and it would plainly fail the least-restrictive-means requirement (as conflating “terrorists” with “Muslims” is simultaneously under- and over-inclusive.) If Trump’s plan were held constitutional, it would represent a doctrinal revolution.

I will grant that reverse incorporation is not, from a formalist perspective, exactly the sturdiest doctrine — Bolling and its progeny are evidence that pretty much everyone is a pragmatist in the end. Given that Taranto is predicting how the Court would rule, however, this is beside the point.

…I agree the best case for the constitutionality of some version of Trump’s proposal would be the plenary power doctrine, which the court has never explicitly overruled. I think this would be an appropriate opportunity to do so. At any rate, my central point — that it’s massively ignorant to assert that the equal protection clause is not binding because it’s a federal case — stands.

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