Although Rick and Chip agree that Trump's proposal violates the
Establishment Clause, they travel different paths to that conclusion, and
those different paths raise (I think) an interesting question:
Under the Court's precedents, is it clear that the "denominational
discrimination" rule Rick invokes is, like the "ecclesiastical question"
rule Chip originally invoked, structural in nature and not rights oriented?
Between O'Connor's opinion in Lynch, and the Court's opinions in Grand
Rapids, Allegheny, Sante Fe, and McCreary, there is a a fair amount of
language that makes the issue of endorsement or disapproval sound in
individual rights ("person's standing in the political community" "not full
members of the political community" “perceived by … nonadherents as a
disapproval[] of their individual religious choices"). In its latest
explanation of the denominational-discrimination rule in McCreary, the
Court wrote that "Manifesting a purpose to favor one faith over another ...
clashes with the 'understanding, reached ... after decades of religious
war, that liberty and social stability demand a religious tolerance that
respects the views of all citizens." If we're talking about non-citizens
who are not part of the American political community, could one colorably
argue that the denominational-discrimiantion rule -- as currently
understood by the Court -- does not apply?
- Jim
On Wed, Dec 9, 2015 at 12:21 PM, Rick Duncan <nebraskalawp...@yahoo.com>
wrote:
> I missed Chip's great post before I asked my question.
>
> I agree completely with what Chip says here. It seems like a clear
> violation of EC limitations on National power. The clearest command of the
> EC forbids denominational discrimination by the National government
> ("Congress shall make no law").
>
> The only problem might be standing. Would a non-citizen-foreign-national
> have standing to challenge the exclusion under the EC?
>
> Rick Duncan
> Welpton Professor of Law
> University of Nebraska College of Law
> Lincoln, NE 68583-0902
>
>
> ------------------------------
> *From:* Ira Lupu <icl...@law.gwu.edu>
> *To:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
>
> *Sent:* Tuesday, December 8, 2015 7:10 PM
> *Subject:* the unconstitutionality of barring Muslims from entering the
> U.S.
>
> There has been much discussion in the press and on blog posts re: the
> constitutionality of of Trump's proposal to bar (non-citizen?) Muslims from
> entering the U.S. Several commentators have suggested the "plenary power"
> doctrine, governing Congressional power over immigration, would insulate
> such a proposal from a finding of unconstitutionality.
> I think the strongest constitutional argument against this proposal is
> based on the Establishment Clause, which severely limits the government's
> power to decide who is and who is not a Muslim. Suppose the person seeking
> entry disputes the label; how will immigration officials adjudicate the
> question? What criteria would the government apply to decide who fits the
> disqualification? This is an ecclesiastical question, the decisions of
> which are off-limits to the government. (See Hosanna-Tabor v. EEOC; more
> generally, see Lupu & Tuttle, Secular Government, Religious People, chaps.
> 1-2.)
> Because the Establishment Clause is structural, and not rights-oriented,
> It does not matter whether or not the decisions pertain to American
> nationals. The plenary power doctrine cannot undo this structural
> limitation, any more than it can undo limitations based on separation of
> powers (e.g., Congress may not delegate to a congressional committee the
> power to process immigration cases).
>
> Reactions from list members to this argument?
>
> --
> Ira C. Lupu
> F. Elwood & Eleanor Davis Professor of Law, Emeritus
> George Washington University Law School
> 2000 H St., NW
> Washington, DC 20052
> (202)994-7053
> Co-author (with Professor Robert Tuttle) of "Secular Government, Religious
> People" ( Wm. B. Eerdmans Pub. Co., 2014))
> My SSRN papers are here:
> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
>
>
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