World / Politics

Trump backers baffled by outrage over call for Muslim ban but legal scholars split on its legality, precedents

AP

Tracy Hooker isn’t interested in debating the merits of Donald Trump’s proposal to temporarily block Muslims from coming into the United States.

She knows some people think it’s bigoted. That others argue it’s impractical, legally dubious or both. And that every other Republican running for president has, in some way or another, rejected the idea the plan is even worth talking about.

That’s why the hot dog stand worker in the conservative southern state of South Carolina says Trump is “my guy.”

In the wake of the attacks in Paris and shootings in San Bernardino, she and other Trump supporters say the Republican presidential front-runner is the only one is taking on what they believe is a clear and present danger to America and its citizens.

“Think about it. You don’t know what you’ve got here. You’ve got no clue,” she said of the Muslim tourists, immigrants and refugees Trump wants to temporarily bar from coming to the U.S.

“You don’t know if they like us. You don’t know if they hate us,” said Hooker, 47, of Greer, South Carolina. “You don’t know why they’re here.”

The widespread condemnation of the billionaire’s plan is simply baffling to Hooker and the dozens of Trump supporters interviewed in the past week by The Associated Press in Iowa, New Hampshire and South Carolina, the states that kick off the presidential nominating contests.

“When you’re in war, you have to take steps that are not American to protect yourself and defend the country,” said Margaret Shontz, of Iowa, as she arrived at a Trump campaign stop in Des Moines on Friday.

Iowa’s Dale Witmer, 90, a registered Republican and World War II veteran who likes Trump and conservative Texas Sen. Ted Cruz, embraced the Muslim ban as a “great idea.” He said he was taken aback by the backlash: “I don’t know how to comprehend that.”

Trump made the proposal a week ago, releasing a statement on Dec. 7 that called for “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what the hell is going on.”

An NBC News/Wall Street Journal poll released last week found that at 57 percent, a solid majority of Americans, oppose Trump’s proposal. A CBS News poll also found nearly 6-in-10 Americans opposed the ban, with two-thirds saying it goes against the country’s founding principles.

But Republicans are far more receptive; 54 percent voiced support for the ban in the CBS poll.

Trump’s campaign said the proposed ban would apply to “everyone,” including individuals seeking to immigrate to the U.S. as well as those looking to visit as tourists.

As the week progressed, Trump began to fill in additional details. He said American citizens, including Muslim members of the military, would be exempt, as would certain world leaders and athletes coming to the U.S. to compete.

“By the way, it’s not total and complete. And it’s temporary,” Trump said Sunday in an interview with CNN. “You’re going to have exceptions. You’re going to have people coming in and you are going to get people in.”

New Hampshire state Rep. Stephen Stepanek, Trump’s campaign co-chairman in the state, said the reaction to Trump’s proposal fit the pattern of his campaign: First outrage, then a realization Trump hit the nail on the head.

“He’s always one step ahead of all the other politicians in pointing out a problem. And everybody’s outraged. And then all of a sudden they start analyzing what he said and realize, ‘Oh my god, he’s right,’ ” he said.

While Trump has brushed back criticisms, including from some Republicans, that his idea smacks of bigotry, some of his backers take that charge personally.

At Cannon’s restaurant in Greer, South Carolina, not too far from Rosie’s hot dog stand, manager Tammy Holcombe argued “everybody’s getting too offended by this.” Another Cannon’s employee, 50-year-old Wayne Weathers, chimed in: “The drive-by media says everybody’s a racist who supports Trump. That’s ridiculous.”

Among some Trump supporters, even those who agree with his proposal, there are some concerns — usually about how the bombastic former reality TV star is selling his ideas.

“I agree with him, mostly,” said Greg Spearman, 46, who owns an electrical firm in Greer. “But there’s certainly a better way to say it.”

Still other backers said they simply don’t take Trump’s plan at face value. And Trump himself has even suggested his proposed ban was intended to stir up reaction.

“Without the ban,” he said Sunday, “you’re not going to make the point.”

There’s no legal or historical precedent for closing U.S. borders to the world’s 1.6 billion Muslims, but neither is there any Supreme Court case that clearly prevents a president or Congress from doing so.

Legal experts are divided over how the high court would react to Trump’s call for a temporary halt to Muslims entering the United States.

“The court has never been faced with a challenge against a whole religion. I think that would raise interesting and novel questions for the court,” said Stephen Yale-Loehr, who teaches immigration law at Cornell University’s law school.

Any such blanket action based on a person’s religion would be unconstitutional if applied to U.S. citizens, scholars agree.

But courts have given Congress and the president wide discretion when it comes to immigration.

“I don’t actually think it would be unconstitutional. The president has a huge amount of discretion under the immigration statute,” said Eric Posner, a constitutional law professor at the University of Chicago. The same protections given citizens do not apply to people who are neither American nor in the United States, Posner said.

Courts have upheld the denial of visas to enter the country to Marxists and people born to parents who were not married, among many categories. The Supreme Court has never struck down an immigration classification on the basis of race or any other reason, said Temple University immigration expert Peter Spiro.

Other scholars offer a different take. They say the court would not grant the president a blank check and would instead rely on constitutional provisions that protect religious freedom and prohibit discrimination to strike down a ban on Muslim visitors to the United States.

“Imagine that instead of banning Muslims, we banned blacks from any country,” said Vanderbilt University’s Suzanna Sherry, describing a hypothetical reaction to a period of intense racial unrest in the United States. “If you’re black, you can’t come into the country. … I don’t think a court today would ever hold that constitutional,” Sherry said.

Sherry acknowledged that she cannot cite any case involving immigration to support her view, and that a Supreme Court decision to uphold bans on Chinese laborers in the late 1800s points in Trump’s favor.

“But developments in discrimination law and First Amendment law suggest that the court would not today uphold an exclusion on the basis of religion,” she said.

The Supreme Court also upheld the internment of Japanese-Americans during World War II.

Both the anti-Chinese laws and the internment camps now are widely seen as shameful episodes in American history.

But no less an authority than Supreme Court Justice Antonin Scalia has said it is naive to think the country would never again resort to such harsh measures, particularly during wartime.

“That’s what was going on — the panic about the war and the invasion of the Pacific and whatnot. That’s what happens,” Scalia said on a visit to Hawaii in 2014, describing the mood in America following Pearl Harbor that led to the internment camps. “It was wrong, but I would not be surprised to see it happen again, in time of war. It’s no justification, but it is the reality.”

Predictions about how the court might rule do not matter as much as public reaction at the moment. While 58 percent of Americans oppose a temporary ban on Muslim visitors in a CBS News poll, Trump’s proposal finds much more favorable reaction from Republicans. Fifty-four percent Republicans support the ban, the poll found.

Trump has remained at the head of the Republican field for months, and his tough words about Muslims may be tapping into fears among Republican voters about immigrants from the Middle East. His proposal to keep Muslims from entering the United States followed the Dec. 2 shootings in San Bernardino, California, that left 14 dead and 21 wounded.

Tashfeen Malik, a Muslim from Pakistan who with her husband was killed by police in a gunbattle after the rampage, entered the country on a fiancee visa that is issued abroad to people who plan to marry American citizens, authorities have said. Last year, Malik married the other suspect in the shooting, U.S. citizen Syed Farook.

Trump said he would prevent Muslims from entering the United States “until our country’s representatives can figure out what the hell is going on.”

Trump’s proposal turns traditional ideas about the United States as a beacon for political and religious refugees upside down, said Mary Meg McCarthy, executive director of the National Immigrant Justice Center in Chicago.

“In all honesty, I never in my whole entire life thought that we’d be fighting for the human and due process rights of refugees,” including many who have fled religious persecution, McCarthy said. Efforts to halt the flow of refugees risks disturbing the balance “our commitment to fairness and refugee protection with our national security interests,” she said.