This article does not pertain to your situation in the UK, but is a hot political issue in our current presidential campaign. I would not presume to offer an opinion as to what you in the UK should do. But I would question how you can tell the "good" guys from the "bad" guys, and whether more government encroachment upon individual freedom and personal liberty will make us safer, or whether it simply invokes fear into the general populace which serves the interest of the supposed enemy:
http://www.breitbart.com/2016-presidenti...-american/
Limiting or Even Prohibiting Immigration by Muslims Is Not Illegal
Current federal law [Title 8, Section 1182 of the U.S. Code, the Immigration and Nationality Act of 1952] gives the President legal authority to suspend — by a simple proclamation, and without any action by Congress — the entry of “any aliens or of any class of aliens into the United States [who] would be detrimental to the interests of the United States,” and to do so indefinitely. President Obama has in fact already used this power.
This existing statutory grant of authority to the President, and to those to whom he may delegate this power, is very broad, and a very recent Supreme Court decision held that he could withhold visas on national security grounds without providing any reason at all. Thus, even without any action by Congress to give him additional authority, it is likely that the President could at least temporarily ban immigrants who are Muslim.
If Congress were to back this proposal by enacting specific legislation to carry it out, the case for its legality would be even stronger. And there is clear precedent. Indeed, over a period of more than 100 years, Congress has repeatedly limited immigration by many different groups of people seeking admission. The 1924 Immigration Act (targeting those from Southern and Eastern Europe) and the Chinese Exclusion Act (aimed at Chinese) are only two examples.
One simple reason why our country has frequently singled out people by race, nationality, and perhaps even religion for immigration purposes is that we can; because not all the rights guaranteed by the Constitution apply to non-Americans outside the country. Here’s why:
Under what has been called the Plenary Power Doctrine, at least some of the protections guaranteed by the U.S. Constitution do not apply to non-citizens living abroad and seeking admission to the U.S. Law Professor Eric Posner of Chicago Law School described the doctrine this way:
“The Supreme Court has held consistently, for more than a century, that constitutional protections that normally benefit Americans and people on American territory do not apply when Congress decides who to admit and who to exclude as immigrants or other entrants. This is called the plenary power doctrine. The Court has repeatedly turned away challenges to immigration statutes and executive actions on grounds that they discriminate on the basis of race, national origin, and political belief, and that they deprive foreign nationals of due process protections. While the Court has not ruled on religious discrimination, it has also never given the slightest indication that religion would be exempt from the general rule.”
After quoting Prof. Posner, Law Professor Eugene Volokh, of the UCLA School or Law, adds that following: “I would add that, in Kleindienst v. Mandel (1972), the Supreme Court applied the ‘plenary power doctrine’ to the exclusion of people based on their political beliefs, despite the Free Speech Clause. The cases that Posner is referring to, together with Kleindienst, suggest that the exclusion of people based on their religious beliefs is likewise constitutional.”
Moreover, the Supreme Court has repeatedly rejected claims that immigration statutes which discriminate on the basis of race, national origin, or political belief are unconstitutional. Therefore for these reasons, and for some additional ones cited below, it seems very clear — and something few legal scholars would doubt — that the immigration of persons who are Muslims can be halted, at least temporarily, without violating the Constitution.
II. Considering Religion as a Factor in Formulating Anti-terror Policy and Tactics Is Not Necessarily Unconstitutional
So what happens when we try to move beyond the limited area of immigration, where virtually everyone agrees that non-Americans abroad are not entitled to the same constitutional guarantees, and seek to consider religion in making other decisions: e.g., added scrutiny by the TSA when boarding airline flights.
The answer appears to be the same, especially when we consider the crucial difference between racial or religious profiling (which is unconstitutional) and terrorist profiling (which can be constitutional). Failure to understand this crucial difference, and a tendency to think narrowly just in terms of phrases and labeling, is apparently what has led many to overgeneralize, and assume that any consideration of race or religion whatsoever is wrong and unconstitutional, at least when it occurs domestically.
A classic example of unconstitutional racial profiling occurs when police, intent on making a dent in the drug trade, decide to primarily stop African Americans traveling down a major highway, based upon the assumptions that blacks are much more likely to be transporting drugs than whites. If Rastafarians rather than blacks were singled out, it would constitute religious profiling. Both would clearly violate the Equal Protection clause of the U.S. Constitution.
But the U.S. Supreme Court and the U.S. Justice Department have recognized that there are exceptions to the general rule prohibiting decision making based upon factors like race or religion.
The U.S. Supreme Court has held on several occasions that governments may take into account factors such as race (and presumably religion), provided that the decision serves a compelling governmental interest, and that the factor is only one of several considered.
That, after all, is the basis upon which, under so-called affirmative action, the Supreme Court has held that state colleges may discriminate on the basis of race in determining who is to be admitted. They may do so because achieving racial diversity in classrooms is, according to the Court, a compelling state interest. Thus, so long as other factors are also considered, and race is not the sole defining characteristic, it may be considered in making these important governmental decisions.
However, because preventing mass murder by terrorists is at least as much a compelling governmental interest as achieving diversity in the classroom, courts have also recognized that the same exception which permits race or religion to be considered alone with other factors regarding college admissions also applies to preventing terrorism. In summary, while it would be unconstitutional to subject people to additional scrutiny to deter illegal drug sales solely because they happened to be African Americans or Rastafarians. it would not be unconstitutional to single out people for additional terrorism scrutiny based in part on their belief in Islam, provided that other factors were also considered.
This is hardly in doubt. For example, the Department of Justice [DoJ] under President Obama likewise publicly recognizes that, while so-called racial (and similar) profiling is illegal and probably unconstitutional in many situations, exceptions exist with regard to both preventing terrorist attacks, and in controlling who enters the country.
Consider that its recent guidance provides that: “in conducting activities directed at a specific criminal organization or terrorist group whose membership has been identified as overwhelmingly possessing a listed characteristic, law enforcement should not be expected to disregard such facts in taking investigative or preventive steps aimed at the organization’s activities.”
In other words, since terrorists overwhelmingly (but not necessarily all) possess the characteristic of being Muslim, TSA and other law enforcement agencies can consider this factor, among others, “in taking investigative or preventive steps aimed at the organization’s activities.”
In addition, while Justice Department guidelines prohibit as unconstitutional any consideration at all of factors like race or ethnicity in routine police enforcement activities (e.g., traffic stops, drug interdiction, etc.), they did expressly provide that: “in investigating or preventing threats to national security or other catastrophic events (including the performance of duties related to air transportation security) . . . Federal law enforcement officers may not consider race or ethnicity except to the extent permitted by the Constitution and laws of the United States.”
So, since they may not consider race “except to the extent permitted by the Constitution and law of he United States,” there must be some extent to which such consideration is constitutional.
Another major federal agency which has not only recognized that terrorist- (as contrasted with racial-) profiling can be constitutional, but which has also actually engaged in it, is the TSA. It was not selecting for so-called secondary screening all passengers equally — i.e., treating a young Muslim male as presenting the same probability of being a terrorist as an elderly Asian female or a child — but rather deliberately selecting for secondary screening all citizens of 12 named countries. Aside from two communist nations, all of the others have large Muslim populations, including 8 which are at least 90% Muslim.
Since this could hardly be just a mere coincidence, it provides still another example where Americans, believing that it was constitutional to do so, have engaged in religious profiling.
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