How would the Supreme Court rule on Trump's Muslim Ban?

[Stranger in a strange land]

While I don't think it's particularly likely to go into effect even if Trump gets elected, a blanket ban on all Muslims entering the United States with very narrow specified exceptions is pretty clearly a violation of both the Equal Protection Clause of the 14th Amendment and the Free Exercise Clause of the First Amendment. It would pretty quickly be appealed to the Supreme Court and struck down in short order. My guess is that the Court would rule 7-2 against, with only Scalia and Alito dissenting in favor of the ban, though a 9-0 vote isn't out of the question.

[Mr. Reactionary]

I would imagine it would be unanimous against. The Supreme Court requires strict scrutiny for laws which discriminate among religions, such as a law banning only Santeria sacrifices or a hypothetical ban on only Muslim immigration. Considering at least 95% of Muslims coming here are perfectly safe and not terrorist risks, the ban would be so overbroad that you could fly an airplane through it. Say what you will about Scalia and Alito fighting to expand executive power, but I don't see them doing so at the expense of the 1st Amendment.

https://en.wikipedia.org/wiki/Church_of_Lukumi_Babalu_Aye_v._City_of_Hialeah

[Bojack Horseman]

7-2 sounds about right. Anybody could figure out that Congress shall make no law respecting an establishment of religion, nor prohibiting the free exercise thereof does in fact apply to Muslims. But we also have to understand that Scalia and Thomas simply do not consult the Constitution, so it would probably be 7-2.

[Virginiá]

He could propose to ban people from certain countries (namely all majority-muslim countries), which if I'm correct, is perfectly legal. It obviously wouldn't be a total ban on Muslims, but it would be significant.

[Attorney General, Senator-Elect, & Former PPT Dwarven Dragon]

Scalia's rationale for ruling against SSM was that the practice was not "explicitly cited by the 14th amendment's text". In this case, free exercise of religion is of course explicitly cited in the constitution, so it appears he could support this.

Alito is tough to figure out. He's more of a mainstream conservative than Scalia and Thomas, but he did write the hobby lobby decision. Complete Toss-Up.

Thomas is the only one who would definitely rule in favor of the muslim ban. His rationale for opposing SSM included a quasi-defense of slavery.

[Antonio the Sixth]

Yeah, I have a hard time seeing how this could not be unanimous.

[Bojack Horseman]

Scalia's rationale for ruling against SSM was that the practice was not "explicitly cited by the 14th amendment's text". In this case, free exercise of religion is of course explicitly cited in the constitution, so it appears he could support this.

Alito is tough to figure out. He's more of a mainstream conservative than Scalia and Thomas, but he did write the hobby lobby decision. Complete Toss-Up.

Thomas is the only one who would definitely rule in favor of the muslim ban. His rationale for opposing SSM included a quasi-defense of slavery.

He'll probably use the Bryan Fischer argument, that the First Amendment only applies to Christianity, and the state can ban all other religions.

[Dereich]

I've said it before, but I think both of you are wrong about the conservative justices; their opinions come from well-thought out schools of constitutional interpretation and Justice Thomas's rejection of substantive due process is hardly comparable to slavery.

I wanted to do a bit more looking into this since I don't think its as clear cut as it at first looks. In fact, current precedent would actually seem to support such a policy. The Chinese Exclusion Cases are still controlling law and say this:

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Cases since then have always reinforced the central point that the Court won't second-guess immigration policy; the Courts don't want to create separation of power issues by interfering with something that is absolutely a plenary power of the other branches.

Figuring out how the Court could overturn this is an interesting question. I don't THINK they'd be able to use the Fourteenth Amendment/equal protection for this case. The EP clause reads "nor deny to any person within its jurisdiction the equal protection of the laws." Are potential immigrants within the jurisdiction of the United States? I'm not really sure they are and precedent points to the answer being "no". Similarly, its hard to say the state is depriving someone of due process when they're not even within its jurisdiction, though a big DP fan like Kennedy might look there.

If the court did want to step in, my guess is that they'd have to use the Establishment Clause. Look at the Establishment Clause test from Sch. Dist. of Abington Twp. v. Schempp:

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I am absolutely 100% sure that no Justice on the Court right now, if they used this analysis, would say that there was an overriding secular legislative purpose/effect. Courts have shown a willingness in the past to ignore the government's stated reasoning when it's obviously a lie and there's no way they'd be doing a some weak-tea rational basis analysis for this issue anyway. My guess is that if they don't just say "It's immigration, we're leaving it alone" you'd get 8 justices overturning the regulation on that.

Thomas wouldn't, not because of Wolverine's Christianity thing, but because of Thomas's originalist interpretation of the clause. Thomas laid out his opinion pretty clearly in his concurrence in Cutter v. Wilkinson. Looking at the wording of the clause and the debates among the founders, he came to the (probably true) opinion that the clause was ONLY meant to stop the actual establishment (requiring mandatory tithes and attendance) of a religion by Congress and nothing else. I guess he'd vote against an Establishment Clause usage.

You could probably also use a 13th amendment badge of servitude argument or try to apply the arbitrary and capricious standard from the Administrative Procedures Act to DHS's enforcement, but I don't think those are very good ideas.

[Mr. Reactionary]

Figuring out how the Court could overturn this is an interesting question. I don't THINK they'd be able to use the Fourteenth Amendment/equal protection for this case. The EP clause reads "nor deny to any person within its jurisdiction the equal protection of the laws." Are potential immigrants within the jurisdiction of the United States? I'm not really sure they are and precedent points to the answer being "no". Similarly, its hard to say the state is depriving someone of due process when they're not even within its jurisdiction, though a big DP fan like Kennedy might look there.

Do you think that could be overcome with a citizen plaintiff who, for example, is attempting to obtain entry and legal status for a foreign muslim spouse or adopt a foreign muslim child or sponsor a foreign muslim family member? The citizen would have a direct injury to a protected right, even though the ban is on the foreign person. And given that it is a reasonable assumption that family members are of the same religion, discrimination against only foreign muslims has an overwhelming discriminatory impact on the rights of domestic muslim citizens when compared to the rights of citizens of every other religion. That might mean a plurality opinion could narrow the ruling to only the specific visa program in question (family, H-1b, etc.), but I feel the Court would inevitably have to look at the 1st Amendment aspects of the law. And if there's a 1st Amendment analysis, I foresee death by strict scrutiny.

[Slander and/or Libel]

Yeah, I have a hard time seeing how this could not be unanimous.

Alito voted against the Westboro Baptist Church in an 8-1 decision that was basically tailor made to be a textbook example of the First Amendment protecting unpopular speech.