Under Title 8, Section 1182 of the U.S. Code, Congress delegated to the President the authority to use a proclamation to suspend 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,” for as long as he deems necessary.
This delegation of power by the Legislative Branch to the Executive Branch, however, cannot exceed Congress's actual authority under the Constitution. In other words, Congress cannot grant to the President authority that it does not have.
The First Amendment of our Constitution provides, in part,
"Congress shall make no law respecting an establishment of religion . . . ."
This First Amendment prohibition is broad in its scope. It does not state that Congress is prohibited only from establishing a national religion. It prohibits Congress from "making" "a[ny] law" "respecting an establishment of religion."
Trump's Executive Order, which bars refugees and citizens of seven Muslim countries, and promises priority for Christians, arguably violates the First Amendment's Establishment Clause, by unduly discriminating against Muslims and expressing a religious preference for Christians for admission to the United States.
If this Executive Order is allowed to stand, Congress through Title 8, Section 1182 of the U.S. Code, will have in effect made a law via an Executive Order respecting the establishment of religion. This is prohibited by the letter and spirit of the First Amendment.
Maurice F. Baggiano, Esq.
Member of the Bar of the United States Supreme Court