Legal experts agree: Trump’s proposal unconstitutional

MADISON, Wis. — Donald Trump’s call to block all Muslims from entering the United States is not only unconstitutional, but also impossible to carry out, legal experts said Tuesday.

Trump’s proposed ban, announced to cheers at a rally in South Carolina Monday, would apply to immigrants and visitors alike, a sweeping prohibition affecting all adherents of a religion practiced by more than a billion people worldwide.

Beyond inciting condemnation from Republican presidential rivals, GOP leaders and others, legal and immigration experts said Tuesday that Trump’s proposal violated the Constitution’s equal protection clause and freedom of religion granted under the First Amendment.

“It is blatantly unconstitutional and it’s an attack on the very foundation of the United States,” said Marci Hamilton, a law professor specializing in the First Amendment at Yeshiva University in New York City. She called his idea “laughable.”

“It’s never possible to fully ascertain what someone believes internally,” Hamilton added. “How does one recognize a Muslim, a Christian or a Jew? Do you look at where they were born, do you look at where they were raised? Do you look at the last religious service they attended?”

Trump’s proposal amounts to a religious test for anyone wanting to enter the country, something that is unprecedented in U.S. history, said Nancy Morawetz, a professor of Clinical Law at the New York University School of Law.

“If one has this kind of a rule, you have to figure out how you’re going to test it and verify it,” Morawetz said. “What this really means is there would be a religious identity card.”

Even an anti-immigration group that for decades has advocated curtailing the influx of immigrants to the U.S. disavowed Trump’s religion-based exclusion.

“Nobody’s interested in selecting people solely on their religion or their faith,” said Dan Stein, president of the Washington-based Federation for American Immigration Reform.

Trump’s comments highlight the broader concern over the immigrant vetting process, Stein said.

“Donald Trump is unartful, but it seems to us what he’s really putting his finger on is this broader question of suspending a significant swath of immigration until this country can reassert a better screening process,” Stein said.

U.S. immigration law has some “very, very ugly history” where people have been turned away based on their nation of origin, but never on their religion, Morawetz said.

In the late 1800s, Congress passed legislation broadly aimed at halting the immigration of Chinese laborers. Those were not fully repealed until 1943. Quotas limiting immigration based on race and national origin were also enacted in the early 1900s. Racial quotas were repealed in 1952, and those limiting people based on national origin were eliminated in 1965.

Legal scholars believe such bans, if proposed today, would not be found to be constitutional, Morawetz said.

Religion can factor into immigration decisions, but that typically happens when people are fleeing religious persecution. So people of a particular religion may get favorable treatment by the United States, as when Russian Jews sought to leave the Soviet Union.

Trump, who has built his Republican presidential candidacy around inflammatory rhetoric, stood by his latest statements Tuesday, saying stopping all Muslims from entering the U.S. is necessary because of hatred among “large segments of the Muslim population” toward Americans.

Trump said banning all Muslims “until our country’s representatives can figure out what the hell is going on” is warranted after attacks by Muslim extremists in Paris and last week’s shooting in San Bernardino, California, that killed 14.

Talk to us

> Give us your news tips.

> Send us a letter to the editor.

> More Herald contact information.

More in Local News

Olivia Vanni / The Herald 
The Mukilteo Lighthouse. Built in 1906, it’s one of the most iconic landmarks in Snohomish County.
The Mukilteo Lighthouse. Built in 1906, it’s one of the most iconic landmarks in Snohomish County. (Olivia Vanni / The Herald)
Mukilteo mayor vetoes council-approved sales tax

The tax would have helped pay for transportation infrastructure, but was also set to give Mukilteo the highest sales tax rate in the state.

Marysville Mayor Jon Nehring gives the state of the city address at the Marysville Civic Center on Wednesday, Jan. 31, 2024, in Marysville, Washington. (Ryan Berry / The Herald)
Marysville council approves interim middle housing law

The council passed the regulations to prevent a state model code from taking effect by default. It expects to approve final rules by October.

x
State audit takes issue with Edmonds COVID grant monitoring

The audit report covered 2023 and is the third since 2020 that found similar issues with COVID-19 recovery grant documentation.

Bothell
Bothell man pleads guilty to sexual abuse of Marysville middle schoolers

The man allegedly sexually assaulted three students in exchange for vapes and edibles in 2022. His sentencing is set for Aug. 29.

Larsen talks proposed Medicaid cuts during Compass Health stop in Everett

Compass Health plans to open its new behavioral health center in August. Nearly all of the nonprofit’s patients rely on Medicaid.

Snohomish County Health Department Director Dennis Worsham on Tuesday, June 11, 2024 in Everett, Washington. (Olivia Vanni / The Herald)
Snohomish County Health Department director tapped as WA health secretary

Dennis Worsham became the first director of the county health department in January 2023. His last day will be July 3.

Police Cmdr. Scott King answers questions about the Flock Safety license plate camera system on Thursday, June 5, 2025 in Mountlake Terrace, Washington. (Olivia Vanni / The Herald)
Mountlake Terrace approves Flock camera system after public pushback

The council approved the $54,000 license plate camera system agreement by a vote of 5-2.

Community members gather for the dedication of the Oso Landslide Memorial following the ten-year remembrance of the slide on Friday, March 22, 2024, at the Oso Landslide Memorial in Oso, Washington. (Ryan Berry / The Herald)
The Daily Herald garners 6 awards from regional journalism competition

The awards recognize the best in journalism from media outlets across Alaska, Idaho, Montana, Oregon and Washington.

Logo for news use featuring the municipality of Gold Bar in Snohomish County, Washington. 220118
Lynnwood man dies in fatal crash on US 2 near Gold Bar

The Washington State Patrol said the driver was street racing prior to the crash on Friday afternoon.

Thousands gather to watch fireworks over Lake Ballinger from Nile Shrine Golf Course and Lake Ballinger Park on Thursday, July 3, 2025 in Mountlake Terrace, Washington. (Olivia Vanni / The Herald)
Thousands ‘ooh’ and ‘aah’ at Mountlake Terrace fireworks show

The city hosts its Independence Day celebrations the day before the July 4 holiday.

Liam Shakya, 3, waves at a float passing by during the Fourth of July Parade on Friday, July 4, 2025 in Everett, Washington. (Olivia Vanni / The Herald)
Everett celebrates Fourth of July with traditional parade

Thousands celebrated Independence Day by going to the annual parade, which traveled through the the city’s downtown core.

Ian Saltzman
Everett Public Schools superintendent wins state award

A group of school administrators named Ian Saltzman as a top educational leader.

Support local journalism

If you value local news, make a gift now to support the trusted journalism you get in The Daily Herald. Donations processed in this system are not tax deductible.