One of the main points at issue in the travel ban case currently before the Supreme Court is whether President Trump’s executive order temporarily barring entry by citizens of six Muslim-majority nations is unconstitutional because its purpose is to discriminate against Muslims, in violation of the First Amendment. The Fourth Circuit court of appeals ruled against the order on that basis.

The president’s main defense against this claim is that federal government policy on immigration is largely exempt from  the constraints of the Bill of Rights  that limit all other federal government policies. The government bases this claim on precedents expounding the so-called “plenary power doctrine,” which supposedly exempts immigration policy from most constitutional restrictions.

On Monday, fellow legal scholar Michael Mannheimer and I filed an amicus brief that challenges the administration’s position on this crucial issue. We wrote the brief on behalf of ourselves and several other constitutional law scholars from across the political spectrum. The other signers include  Professor Gabriel Chin of UC Davis (one of the nation’s leading experts on the constitutional law of immigration), Irina Manta (Hofstra),  Cassandra Burke Robertson (Case Western), and Erin Sheley (University of Calgary). Our brief  explains why the Bill of Rights limits federal power over immigration no less than any other exercise of federal power, and why this conclusion logically follows from the text, structure, and original meaning of the Constitution.

Here is a summary of our argument, from the brief itself:

The Bill of Rights was added to the Constitution in 1791, not just to protect individual rights, but also to impose structural constraints on the federal government.  These constraints sharply curb the powers granted in the unamended Constitution, divesting the federal government of some of the authority it would otherwise have.  Thus, [the President’s] claim, based on the so-called “plenary power” doctrine, of nearly unlimited authority over immigration that is immune from judicial review has it exactly backwards.  No federal power can override the Bill of Rights.  To the contrary, the Bill of Rights limits federal power in every sphere, including immigration.

In particular, the Establishment Clause was originally understood as preventing federal regulation of religion in order to preserve state autonomy in this sphere. Prior to the enactment of the Fourteenth Amendment in 1868, a State could establish a state religion, favor some religions over others, favor religion generally over non-religion, or adopt a policy of nondiscrimination. Whatever it opted to do, the Establishment Clause disqualified the federal government from interfering in that choice.  The authority of the States in the domain of religion has now been curtailed by the Fourteenth Amendment.  But the constraints the Establishment Clause imposes on the federal government remain in their original form:  The federal government can neither establish a national religion, nor engage in discrimination based on religious animus…..

The Executive Order, motivated by bias against Muslims, violates the Establishment Clause by disfavoring members of a particular minority religion in their efforts to enter the country. And because the Establishment Clause is a structural limitation on the power of the federal government, not just a source of individual rights, the Executive Order cannot be enforced even against foreign nationals, regardless of the extent of their connection to the United States.

The role of the Establishment Clause as a structural constraint on federal authority over immigration (as well as other federal powers) follows logically from the text, structure, and original meaning of the Bill of Rights.  It is also consistent with this Court’s precedents, properly understood.

Part I of the brief explains why the text, structure, and original meaning of the Bill of Rights imposes limits on all federal power, without any special exemption for immigration policy. The text of most of the Bill of Rights in no way distinguishes between different areas of policy or between aliens and citizens. We also explain how the Founding generation routinely applied the Bill of Rights as a constraint on US government actions abroad, including those directed at non-citizens, such as suspected pirates captured on the high seas.

While the Supreme Court, in the late nineteenth century, ruled that Congress has “plenary” power over immigration, the federal government also has plenary authority over other fields, such as the regulation of interstate commerce. Yet, as the brief explains, that does not give it unconstrained authority to use that power in ways that violate the Bill of Rights:

The claim that the federal government’s “plenary power” over immigration gives it the authority to override the constraints of the Bill of Rights is flatly inconsistent with the way the Supreme Court has treated other federal powers, which are all subject to the Bill of Rights, regardless of how “plenary” they otherwise are. For example, Congress has long been understood to have plenary power to regulate interstate commerce. That authority is “plenary as to those objects” to which it extends. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 197 (1824). Yet it does not follow that the federal government has the power to forbid the use of interstate commerce to disseminate ideas critical of the president, or that it can bar interstate trade carried on by Jews, Muslims, or atheists.

Indeed, it would be strange to give the government greater deference when it wields a federal power that is not specifically enumerated, and whose origins are dubious, than when it exercises vital powers specifically listed in the Constitution, such as those over defense and interstate commerce:

As Justice Scalia explained [in his dissent in Arizona v. United States (2012)], “after the adoption of the Constitution there was some doubt about the power of the Federal Government to control immigration,” and “with the fleeting exception of the Alien Act [of 1798], Congress did not enact any legislation regulating immigration for the better part of a century….”  James Madison, Thomas Jefferson, and other leading Founding Fathers argued that the Alien Friends Act was unconstitutional because the federal government lacked any general power to regulate immigration. See James Madison, Virginia Resolutions of 1798 (Dec. 24, 1798) (stating that the Act “exercises a power nowhere delegated to the federal government”)… Thomas Jefferson, Draft of Kentucky Resolutions (Oct. 4, 1798)… It would be perverse to allow the plenary power doctrine to give a merely implied — and historically contested — federal power over immigration higher status than the federal government’s specifically enumerated powers.

Nor does it matter that aliens do not have a constitutional right to enter the United States.  There is equally no constitutional right to engage in interstate commerce that Congress chooses to forbid. Yet it does not follow that Congress can restrict interstate commerce in ways that violate the Bill of Rights, such as discrimination on the basis of religion.

The brief further explains (pp. 19-22) why treating immigration policy as subject to the Bill of Rights indicates that it is perfectly permissible for courts to consider President Trump’s numerous statements indicating that his travel ban order was intended to target Muslims. Such analysis is standard practice in other cases involving pretextual discrimination, and there is no reason to treat this one differently.

There is a widespread perception that Supreme Court precedent requires courts to forego normal application of the Bill of Rights in immigration cases. But, as we show in the brief (pp. 11-17), that perception is,  at the very least, greatly overblown. The cases cited by the administration mostly either apply the same constitutional standards as those that prevailed in domestic litigation at the time, or involve situations where the plaintiffs did not challenge the general principle that the government could expel aliens on the basis it asserted, but merely questioned a specific application of the rule in question.

For example, the administration relies on a 1952 case in which the Supreme Court allowed the deportation of aliens because they were members of the Communist Party. But, at that time, the Court allowed even US citizens to be imprisoned for membership in the Party.   In the early 1950s, Communist Party membership was effectively not protected by the First Amendment at all. In Kleindeinst v. Mandel (1972), the case that the administration and its supporters cite the most, the plaintiffs did not challenge the constitutionality of the law under which an alien could be barred for  advocating “the economic, international, and governmental doctrines of world communism,” but merely took issue with the Attorney General’s refusal to grant a waiver to the Belgian Marxist Ernest Mandel. If it was constitutional to bar communists generally, it was also constitutional to to refuse to give a waiver to Mandel specifically.

In sum, the Court can rule that the Bill of Rights is fully applicable to immigration cases without greatly disturbing its precedents. Even if overruling or limiting precedent is necessary, we argue it would be justified for the purpose of vindicating the crucial principle that the Bill of Rights is a structural constraint on all federal powers (pp. 17-19).

The federal government may have the power to limit immigration in a wide range of ways, just as it has broad power to restrict interstate commerce. But it cannot restrict either in ways that violate the Bill of Rights.

In the last part of the brief, we explain how the Establishment Clause, in particular, is a structural constraint on federal power, not just a protection for citizens or some other discrete subset of people. The original purpose of the Clause was to keep the federal government from involving itself in matters of religion, in part to protect state autonomy in that sphere.  State power over religion has been greatly limited since the “incorporation” of the Bill of Rights against the states through the Fourteenth Amendment. But the Establishment Clause’s limitations on federal authority remain in force. So long as they do not engage in unconstitutional discrimination themselves, states such as Hawaii (the lead plaintiff in one of the cases before the Court) should be free to attract immigrants and visitors of all religions, uninhibited by religious discrimination imposed by the federal government.

I would like to thank Michael Mannheimer for coming up with the idea for this brief and inviting me to coauthor, and the law firm of Wilkinson, Walsh & Eskovitz for their generous pro bono assistance with the process of formatting, printing, and filing the brief.