Muslim Registry or NSEERS Reboot Would Be Unconstitutional

November 22, 2016
Cross-posted with Lawfare.
 

During the course of his campaign, President-elect Donald Trump made a series of deeply concerning statements about how he would use the power of his presidency to officially discriminate against Muslims. There are varying reports about what his administration will actually attempt to do, but there are two broad proposals at issue: (1) a mandatory “registry” of Muslims in the country, which would seem to include citizens and legal permanent residents; and (2) a reboot of the post-9/11 “NSEERS” program (National Security Entry-Exit Registration System), which required male visitors from predominantly Muslim and Arab countries to register with immigration authorities and was suspended in 2011.

Both of Trump’s proposals would be unconstitutional. Here’s why:

The Muslim “Registry”Korematsu Is Not “Good Law”

In this scenario, Donald Trump orders (somehow) all Muslims inside the United States to “register” with the federal government. It is not clear whether those who register would be required to take any additional steps or would be questioned by federal agents. The registration and internment of Japanese-Americans during World War II has been cited as precedent for doing so by at least one prominent Trump supporter.

The Supreme Court upheld Japanese internment in Korematsu v. United States and the Court has never directly overruled the decision because—thankfully—it has not had to hear another case involving the mass detention of citizens. It is widely recognized across the political spectrum as one of the most shameful decisions in American history, not a precedent. In 1988, President Reagan signed legislation that formally apologized for the “civil rights disaster” of internment and provided payments to Japanese-Americans who were forcibly relocated under the program validated by Korematsu. Justice Scalia compared the decision to the Dred Scott case (also never overturned), which held that black slaves were property. And Justice Breyer described it as a “decision [that] has been so thoroughly discredited that it is hard to conceive of any future court referring to it favorably or relying on it.”

Any law or policy requiring American Muslims to register with the government would violate the right to equal protection guaranteed by the Fifth and Fourteenth Amendments, as well as the First Amendment, which forbids the government from burdening the free exercise of religion or officially disfavoring a religion.

Such a policy would constitute facial discrimination, which rarely survives legal challenge when it singles out a racial or religious minority for unfavorable treatment. The government would have to demonstrate a “compelling interest” for the policy and show that it is “narrowly tailored” to meet that interest. While national security can be a compelling interest, it is not a blank check. It is hard to fathom that measures affecting all adherents of a major world religion would be considered sufficiently tailored. In a far more complicated case challenging the New York City Police Department’s spying on Muslim communities, the Third Circuit Court of Appeals held that police could not target Muslims for surveillance just because some terrorists are Muslim. The court forcefully rejected Korematsu and the internment of Japanese-Americans as “fueled not by military necessity but unfounded fears,” noting that “it is often where the asserted interest appears most compelling that we must be most vigilant in protecting constitutional rights.”

In short, it is almost inconceivable that any court would uphold a requirement for Muslim Americans to register with the federal government.

The NSEERS RebootEvidence of Actual Animus

A more likely scenario is a reboot of the National Security Entry-Exit Registration System (NSEERS) program, which was implemented a year after the 9/11 attacks. The program required visitors from 25 specific countries to register with immigration officials and submit to fingerprinting, photographs, and invasive interrogations about their background and family. All of the countries listed had predominantly Muslim and Arab populations except for North Korea. Although NSEERS was meant to identify and apprehend terrorists, it did not produce a single terrorism conviction. In 2011, the Department of Homeland Security “delisted” all 25 countries, effectively ending the fruitless program, but left the underlying legal framework intact. A new administration could theoretically revive the list, adding countries with predominantly Muslim populations.

An NSEERS-type program would not directly affect American citizens or legal permanent residents (green card holders). Rather, it would target “nonimmigrants” in the United States for reasons such as education, tourism, or employment. Individuals inside the United States, even if they are visitors, have constitutional rights to due process and equal protection under the law.

By building the program around national origin instead of religion, the administration may hope to take advantage of judicial deference to the president’s authority to conduct foreign policy and enforce immigration laws. But as a matter of constitutional law, the government cannot preserve an intentionally discriminatory policy by cloaking it in neutral terms. Yet that is precisely what Mr. Trump has said he would do, announcing that “I'm looking now at territory. People were so upset when I used the word Muslim. Oh, you can't use the word Muslim . . . . And I'm OK with that, because I'm talking territory instead of Muslim.”

Some legal observers view the President’s authority over immigration security as absolute, but that is not truly the issue here. The issue is whether the President can use his “plenary” power in one realm to violate constitutional guarantees in another. Unlike the original NSEERS program, there is evidence, lots of it, demonstrating that religious animus is the driving force behind Mr. Trump’s NSEERS proposal. And unlike the post-9/11 years, there is no non-discriminatory need for the program given the current automated entry-exit database for all foreign visitors.

Federal courts previously found the NSEERS program constitutional, but they also warned that they would reach a different conclusion if there were evidence that the program was based on religious animus. The trouble for the President-elect is that animus toward Muslims was a hallmark of his presidential campaign. As a candidate, Mr. Trump called for “a total and complete shutdown of Muslims entering the United States,” claiming that “there is great hatred towards Americans by large segments of the Muslim population.” He not only rallied supporters over the ban but also demanded that mosques in America to be put under surveillance or shut down.

Moreover, a principal argument the government advanced in support of NSEERS was that the immigration system was vulnerable to terrorism because there was no system to keep track of international visitors once they were in the country. And in the aftermath of 9/11, courts were willing to accept NSEERS as an emergency stopgap. Today, however, the United States has an automated entry-exist system for all foreign visitors (US-VISIT), rendering the NSEERS registration process “redundant, inefficient, and unnecessary,” according to the Department of Homeland Security’s own assessment.

In sum, while courts have in the past upheld registration of visitors from certain countries, there are strong reasons to believe that they would be far more reluctant to do so now.

(Photo: Thinkstock)