When Donald Trump escalated his provocative rhetoric with a proposal to ban Muslims from entering the United States, it was not only condemned as divisive and racist, but also dismissed by many who questioned whether he would have the legal authority as president to impose the policy.
The short answer: No.
And it’s a standard Trump strategy, where in an effort to incite his supporters, he offers ideas that as president he could not implement on his own.
For Trump to make statements as if “in a snap it can happen” is just not reality, said Edwin Smith, a professor of law and political science at the University of Southern California.
“Clearly, it’s not how democracy works,” he said, noting that it would require an act of Congress, which has authority to create laws, to ban Muslims from entering the United States. And even if that far-fetched scenario were to occur, such a law "would face tremendous legal hurdles if passed,” said Smith, noting that it could then be overturned by the Supreme Court if found to conflict with the Constitution.
The proposal appears to violate both the First Amendment guarantee of freedom to practice religion and the Constitution’s equal protection clause, legal experts say.
"It is blatantly unconstitutional and it's an attack on the very foundation of the United States," Marci Hamilton, a law professor at Yeshiva University, told the Associated Press.
Since the terrorist attacks in Paris last month, and last week’s massacre in San Bernardino, in which one of the attackers allegedly pledged allegiance to Islamic State, Trump’s campaign has focused largely on what he has described as the threat to the United States from the extremist group.
In addition to calls for a ban on Muslims entering the United States, Trump noted he’s open to shuttering mosques, saying there’s “absolutely no choice” -- another proposal that would be in violation of the First Amendment.
Many of his Republican challengers, including Sen. Lindsey Graham of South Carolina, have denounced Trump's rhetoric and said Trump is not offering realistic proposals to combat terrorism.
“I want to talk to the Trump supporters for a minute. I don't know who you are, and I don't know what you like about this,” Graham, a foreign policy hawk, told CNN on Tuesday, calling himself “disgusted” and adding that Trump is “a race-baiting, xenophobic, religious bigot.”
In several polls from early nominating states, such as Iowa and New Hampshire, Trump continues to lead the crowded GOP field.