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Muslim Registry or NSEERS Reboot Would Be Unconstitutional

Why Trump’s proposals of a Muslim registry and a reboot of the NSEERS program 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)