How Trump's Muslim Ban Idea Helps ISIS

This article first appeared on the Verdict site.

Following the horrific mass murder at a gay nightclub in Orlando, Florida, pundits, politicians and ordinary citizens expressed not only sympathy for the victims and their families but views about the causes and proper responses to this and similar episodes. Inevitably, people viewed the tragedy through their respective pre-existing lenses.

For some, the Orlando attack underscored the need for stricter restrictions on the availability of either firearms in general or so-called assault weapons. For others, it highlighted the ongoing threat of violence perpetrated in the name of, even when not directed by, the Islamic State militant group (ISIS).

Some members of the LGBT community reminded us that, sadly, anti-gay violence has been and continues to be committed by people claiming allegiance to a wide range of religions and ideologies.

And then there was presumptive GOP presidential nominee Donald Trump. Displaying his characteristic blend of tastelessness, xenophobia and narcissism, Trump issued a series of statements boasting that the Orlando mass murder proved that he was right when, last December, he called for a "total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on."

To discuss this or any of Trump's other statements as though they were carefully considered policy proposals risks attributing to him a level of thoughtfulness that appears to be beyond his capacity. Nonetheless, there is a nontrivial chance that Trump will actually become president.

Although Trump's multiple self-contradictions and professed preference for unpredictability make it difficult to say with confidence what he would actually do as president, it is likely that he would at least make efforts in the direction of his signature proposals: building a wall at the Mexican border and restricting Muslim migration.

Thus, just as others have provided serious analysis of the Mexican border wall proposal, here it is worth considering what Trump might attempt with respect to Muslim migration.

Who Would Be Subject to the Ban?

In his initial announcement of the proposed ban and in some of his subsequent statements, Trump has said that he would bar all Muslims from entering the United States.

Taken literally, such a policy would apply even to the millions of Muslims who are U.S. citizens or otherwise already lawfully present in the United States. However, U.S. citizens have a constitutional right to re-enter the country after traveling abroad. As applied to them, a policy that barred re-entry on the basis of religion would be obviously unconstitutional.

Accordingly, most commentators assume that Trump has in mind a "total and complete shutdown" of immigration to the United States by noncitizen Muslims seeking to enter the country, along with a change in the law governing who would be permitted to enter the country temporarily as tourists, as students and on other kinds of visas. Would that policy be valid?

My view is that it would not be. To be sure, the federal government has very broad power over immigration, so that rights that extend even to noncitizens once they are present in the United States often do not apply when they first arrive at the border.

Nonetheless, I regard the Establishment Clause of the First Amendment as a structural principle, not merely an individual right. Accordingly, I believe that an immigration policy that conditioned entry to the country on religion would be unconstitutional, even as applied to noncitizens.

Admittedly, however, the question is open. A plausible case can be made for the view that, as Temple University law professor Peter Spiro put it in the title of an essay in The New York Times last December, "Trump's anti-Muslim plan is awful. And constitutional," under the Supreme Court's doctrine recognizing the "plenary power" of Congress over immigration.

Moreover, in a speech at Saint Anselm College on Monday afternoon, Trump offered a different version of his proposal. He promised to "suspend immigration from areas of the world [where] there is a proven history of terrorism against the United States, Europe or our allies, until we understand how to end these threats."

Because the new policy focuses on country of origin, rather than on each individual's religion, it would have a better chance of surviving a constitutional challenge than Trump's previously proposed "total and complete shutdown"—although Trump did not make clear whether he was offering his regional ban as a replacement for or a supplement to his proposal to ban Muslim immigrants wherever they come from.

But regardless of the fine details, how does the Orlando mass murder vindicate Trump? The killer, Omar Mateen, was a U.S. citizen living in the United States. Neither version of Trump's policy would or could validly apply to him.

Trump's Time Machine

Trump himself appeared to answer the question in one of his statements on the day of the murders.

Mateen's father is an immigrant from Afghanistan. And in criticizing the policies favored by presumptive Democratic presidential nominee Hillary Clinton, Trump complained that permitting Muslims to immigrate would lead to more terrorism because "we will have no way to…prevent the second generation from radicalizing."

Thus, Trump's gloating appeared to be based on the premise that if his ban on Muslims entering the country had been in place over three decades ago, when Mateen's father came to the United States, Mateen would not have been born here, and thus would not have committed the Orlando murders.

That is an amazing boast, even for Trump. After all, last December Trump said that he was calling for a future ban on Muslim migration into the United States. He did not say he was calling for a time machine to implement his ban decades in the past.

But without a time machine, Trump's plan—if constitutional—would do nothing to prevent the millions of Muslims and potential converts to Islam already in the United States from radicalizing.

Moreover, the acknowledgment that Trump's Muslim immigration ban is meant to reduce violence by immigrants' potential offspring decades later gives the lie to Trump's contention that the ban would be short-lived. To do what Trump claims it would, the ban would have to be in place for decades.

Who Really Promotes ISIS?

In remarks on June 14, Trump darkly insinuated that President Obama is a secret agent for ISIS. The charge—like Trump's earlier promotion of "birther" conspiracy theories about Obama—is of course baseless. But like many other lies, this one tells us more about the liar than about the object of the smear.

There is no reason to think that Trump is deliberately aiding jihadism, but the policies he promotes would have that effect. By communicating to American Muslims that they are all presumed to be terrorists, the chief impact of Trump's proposed restrictions on Muslim immigration into the United States would be to foster resentment and radicalization in the small portion of the American Muslim community that has the potential for radicalization.

If Donald Trump didn't exist, ISIS would have invented him.

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University. He blogs at dorfonlaw.org.