Editor's Note: (Rose Cuison Villazor is a professor of law at the University of California at Davis School of Law and Visiting Professor of Law at Columbia Law School. She is co-editor of "The Immigration and Nationality Act of 1965: Legislating a New America" (with Gabriel Chin). The views expressed are her own.)
(CNN) Republican presidential candidate Donald Trump's proposal this week to ban all Muslims from entering the United States has been widely denounced. And rightly so; the Constitution of the United States should not tolerate this type of discrimination. Unfortunately, the reality is that historically, the law has been used to do exactly that: exclude categories of noncitizens from entering or returning to the United States.
We need to stop history from repeating itself.
In the days since Trump's announcement, many legal scholars have asserted the proposal is most likely unconstitutional, not least because of the Due Process Clause of the Fifth Amendment. Ordinarily, courts would subject discrimination on the basis of religion to the strictest form of constitutional analysis. So, for such a law to survive, the government would have to show a compelling government interest (in this case, preventing terrorist acts) and prove the discrimination (in this case against Muslims) is narrowly tailored to serve that interest. The problem for Trump is that he has not provided any evidence the exclusion of all Muslims is necessary to serve that compelling interest.
Other scholars argue the proposal is constitutional. Trump's proposal is, after all, about the exclusion of noncitizens. And according to the Supreme Court, choices about who gets into the country are treated differently than ordinary discrimination because Congress is said to have plenary or absolute power in this area.
Indeed, there already is, unfortunately, legal precedent for the exclusion of a broad category of immigrants. In 1882, Congress passed the Chinese Exclusion Act banning the immigration of Chinese laborers to the United States. In the case of Chae Chan Ping v. United States (The Chinese Exclusion Case) in 1889, the Supreme Court upheld this odious law, explicitly recognizing the plenary power of Congress to exclude noncitizens. With this power in hand, Congress did not stop with the Chinese; it later expanded the ban to all Asians by 1924.
Thankfully, although the history of U.S. immigration is replete with racial exclusion, the tide eventually began to shift. Between 1943 and 1952, various groups of Asians were allowed to immigrate. Then, in 1965, amid the civil rights revolution, Congress passed the Hart-Celler Act, which abolished the use of "race, sex, nationality, place of birth or place of residence" in our nation's immigration laws. In 2012, Congress recognized the way it had misused its plenary power in the past, issuing an apology for passing the Chinese Exclusion Act.
The question, though, is whether the exclusion of Muslims, albeit a discrimination based on religion, would be sufficiently tied to race or nationality to run afoul of the Hart-Celler Act. It might well be, and it certainly violates the civil rights norm that Congress established 50 years ago and the broader equality principles under our Constitution
This history, and the current threats to repeat it, also calls into question whether the federal government's power over immigration should really be as unfettered as it has been allowed to be in the past. Courts have come to insist that although Congress retains significant power in immigration law, the exercise of such power should still be rational. Seen in this light, Trump's proposal lacks rational basis; clearly not all Muslims are terrorists, and not all terrorists are Muslims. His proposal is so wildly both over- and under-inclusive, there seems to be only one way to explain it: pure animus against a religious minority.
But what is perhaps most troubling about the proposal -- in addition to its obvious wrongheadedness -- is the fact that Trump is not only ignoring the mistakes of history but he also appears willing to repeat them. For example, he has admitted his proposal would be similar to executive orders issued by President Franklin Delano Roosevelt that led to the internment of Japanese-Americans and Japanese nationals. It seems astonishing that he would not dismiss out of hand a chapter in U.S. history described in a 1993 presidential apology as "deeply rooted in racial prejudice, wartime hysteria and a lack of political leadership."
It is clear the proposal to ban Muslims from entering the United States is repugnant and inconsistent with constitutional principles. But it is also clear that just because our courts interpreted the Constitution to allow that kind of discrimination in the past does not mean they should or would do so now.
Fortunately, America's courts, like most of the rest of us, have learned from the past, and are unwilling to let history repeat itself.
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