This post is primarily focused on law and politics, but I am posting it here on this blog because of the connection to the Establishment Clause of the U.S. Constitution and to the theme of religious freedom which is one that I have often written about here.

In response to Donald Trump’s disgraceful proposal to ban all Muslim immigrants from this country, many prominent scholars wrote that while they found Trump’s proposal distasteful it wasn’t clear that it was unconstitutional. There scholars rely on the vast plenary power that the Federal government has over immigration, and the fact that Congress can regulate immigration based on national origin, contrary to settled principles of Constitutional law in other spheres. But while there is no settled case law on point, the tilt of constitutional  law in the past several decades has made it increasingly clear that while the government may enjoy vast or even plenary powers, it may not exercise those powers in ways that discriminate against freedom of expression and against freedom of religion.

One of the Supreme Court’s cases which heralded a dramatic shift in the understanding of the Government’s exercise of its power came in R.A.V v St. Paul. In that case, the Supreme Court struck down a ban on burning a cross for certain ideological purposes. Even though cross burning will frequently constitute unprotected true threats or fighting word, the majority led by Justice Scalia declared the statute unconstitutional because it discriminated based on the viewpoint of the speaker/actor. Even though the government had total power to suppress all true threats, it could not do so in an ideologically motivated fashion. In other words, the greater power to ban all true threats was nevertheless restrained by the governments obligation to be content neutral. The greater power most emphatically DID NOT include the lesser.

Something similar may be seem with the free exercise clause. Justice Scalia in Employment Division v. Smith granted government great power to limit religious conduct under neutral and generally applicable laws. Nevertheless, in the Lukumi case, the court unanimous struck down an ordinance that was intended to preclude the religious ritual of a particular faith. A similar law based on neutral principles would have likely survived scrutiny, but a law expressly targeted on ideological lines failed. Again, the greater power did not include the lessor.

One additional analogy that seems appropriate to me is with the prison context. States have vast power over prisoners and can deprive them of many freedoms. Likewise, it has long been understood that parole is a complete act of grace and that no one has a liberty interest in parole. Nevertheless, there is a growing consensus that a state cannot condition the right to parole on a violation of Constitutional rights. Looking specifically at the Establishment Clause, many circuits have held that parole for an individual may not be conditioned on attending Alcoholics Anonymous meetings because of the religious nature of those meetings. Even in an area where the state has complete and total discretion, it may not exercise its discretion along discriminatory or religiously motivated lines.

And this principle that the greater power does not include the lesser power has even greater force with regard to the Establishment Clause which scholars have long noted presents a structural bar on governmental power. In other words if a law violates the Establishment Clause it is void because it exceeds the scope of governmental power. There is no opportunity for the government to justify an Establishment Clause violation because it has a compelling interest as as it can with violations of freedom of speech, free exercise of religion, or substantive due process. Thus, the compelling nature of national security interests cannot justify discrimination on the basis of religion.

Is this complicated or changed by the plenary powers that the federal government has over immigration? I don’t believe so. The scholar’s arguing that Trump’s proposal is constitutional point to Supreme Court case law where discrimination on the basis of national origin is permitted in the immigration system. There are two very real possibilities however. The first is that this precedent has been called into question by the developments of R.A.V. and other cases. The second which seems even more likely is that the Establishment Clause is unique because of the structural concerns discussed above. By effectively telling Muslims that they need not apply, the government is establishing a religion, or at the very least establishing hostility to Islam as its tenant.* This is simply not a power available to the government under the Constitution.

• Of course, whether the policy actually violates establishment clause principles is a different and more lengthy topic outside of the scope of this post. But even under the more conservative interpretations of the Establishment Clause on the court today, this proposal seems flawed. Clearly, by enacting such a policy the government is no longer engaged in neutrality between religious groups. Instead, it is creating a religious test oath for admission into the United States. I struggle to see how this could not violate the modern interpretation of the Establishment Clause