A handful of scholars have argued, however, that immigrants seeking admission into the United States are
not protected by the First Amendment. As University of Chicago law professor Eric Posner writes:
The Supreme Court has held consistently, for more than a century, that constitutional protections that normally benefit Americans and people on American territory do not apply when Congress decides who to admit and who to exclude as immigrants or other entrants. This is called the plenary power doctrine. The Court has repeatedly turned away challenges to immigration statutes and executive actions on grounds that they discriminate on the basis of race, national origin, and political belief, and that they deprive foreign nationals of due process protections. While the Court has not ruled on religious discrimination, it has also never given the slightest indication that religion would be exempt from the general rule.
It’s an interesting argument, and one that could prove quite vexing for the Supreme Court if it were not for two other developments — a federal law placing additional limits on the federal government’s ability to place burdens on people’s faith, and a broadly worded decision by Justice Alito.
The federal law is the
Religious Freedom Restoration Act, which provides that “government shall not substantially burden a person’s exercise of religion,” except in certain limited circumstances. Trump is part of the government. A Muslim refugee is a person. So the text of the law clearly appears to prohibit Trump from excluding refugees because of their faith.
The purpose of RFRA, however, was to
restore the rule governing First Amendment free exercise claims that existed before a 1990 decision narrowed the scope of those claims. Indeed, the RFRA statue explicitly states that it should be read to “
restore the compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder,” two decisions which laid out that old rule.
Accordingly, there’s a very strong argument that RFRA
incorporates all pre-1990 First Amendment law. So if the plenary power doctrine that Professor Posner references, which existed well before 1990, applies to free exercise claims, then there’s also a very strong argument that the plenary power doctrine trumps RFRA.
Except that Justice Alito cut off this argument with his opinion in
Burwell v. Hobby Lobby.
In
Hobby Lobby, Alito’s majority opinion claimed that a 2000 amendment to RFRA was “an obvious effort to effect a complete separation from First Amendment case law.” This was, frankly, a
highly dubious claim. But it is also part of the holding of an opinion by the Supreme Court of the United States. Whether it’s actually true or not is irrelevant. It’s the law now.
So
Hobby Lobby severed RFRA from the body of cases interpreting the First Amendment. That would include any case law suggesting that immigrants seeking entry into the United States don’t enjoy protection from religious discrimination. RFRA limits Trump’s ability to discriminate against Muslim refugees, and he has Justice Alito to thank for it.
Admittedly, RFRA does not absolutely prohibit the government from burdening religion. Such burdens are permitted if they are “in furtherance of a compelling governmental interest” and if the government uses “the
least restrictive means of furthering that compelling governmental interest.”
But even if you assume that Trump’s discrimination against Muslims advances some compelling interest, such as his stated goal of helping to keep dangerous people out of the country, we already know there is a less restrictive way of accomplishing this goal.
Between the September 11th attacks and 2015, 784,000 refugees settled in the United States. Of those, as ThinkProgress has previously reported, “
exactly three resettled refugees have been arrested for planning terrorist activities — and it is worth noting two were not planning an attack in the United States and the plans of the third were barely credible.”
The United States, in other words, already did an effective job of screening out potentially dangerous refugees long before Trump became president.