Would Proposed Targeting of Muslims Would Be Unconstitutional?

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Mosque-TrumpBy David Cole

As a candidate, Donald Trump notoriously called for a ban on the entrance of all Muslims, a database to track Muslims in the United States, for aggressive surveillance of “the mosques,” and for closing down mosques. When many pointed out that such religiously targeted enforcement actions would be unconstitutional, he began talking instead about “extreme vetting” — apparently not getting that what the Constitution forbids is selective targeting of a religious group, regardless of the type of burden imposed.

Now that he’s President-elect, his transition team is reportedly discussing requiring immigrants from Muslim-majority countries to register with the immigration authorities. Reince Priebus said on “Meet the Press” Sunday that “we’re not going to have a registry based on a religion.” But this is semantics. The transition team is reportedly planning just that, only under the guise of focusing on countries that happen to be majority Muslim. Kansas Secretary of State Kris Kobach, a virulently anti-immigrant hard-liner who introduced a similar registration scheme when he worked for President George W. Bush, is now working with the Trump transition and told Reuters that the team was discussing reviving the registration scheme, which President Obama had ended in 2011.

Kobach maintained that because the program he was discussing would be focused not on religion, but on countries that have a terrorist presence, the scheme would survive constitutional challenges. But there’s a huge difference between what Bush did and what Trump is proposing. Bush’s scheme had a disparate effect on Muslims, but there was no evidence that Bush himself had adopted it to target Muslims. Trump, by contrast, has left a long trail of smoking guns making clear his anti-Muslim intent.

When executive action is challenged as targeting religion, the critical question is intent: If the government can be shown to have intentionally targeted a religious group, its actions violate the Free Exercise Clause. The law need not name the religion by name. It is enough to show that an anti-religious intent was at play. As with race or sex discrimination, if the government takes action that appears neutral on its face but was adopted for the purpose of singling out a racial minority, it is subject to stringent scrutiny and virtually always invalid.

In Church of Lukumi Babalu Aye v. City of Hialeah, for example, the Supreme Court in 1993 struck down a local Florida ordinance banning animal sacrifice because it found that the laws were triggered by animus against the Santeria religion, an Afro-Cuban sect that had recently moved into Hialeah and practiced animal sacrifice. The law did not mention Santeria on its face, but the surrounding circumstances made it clear that its intent was to single out that religion.

Of course, it is often difficult to prove improper intent. Even where they might be acting for impermissible purposes, the architects of a program rarely admit it outright. As a result, the Supreme Court has ruled that circumstantial evidence can support a finding of unconstitutional intent — things like the history of the act, its impact, the sequence leading up to its adoption, any unusual departures from business as usual, etc.

So what’s the evidence on Trump? It’s almost too numerous to detail, but here’s a sampler.

  • On December 7, 2015, the Trump campaign issued a press release stating that “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.”
  • In July 2016, he effectively admitted that his revamping of the proposal was designed to target Muslims without expressly saying so. In an interview on “Meet the Press” with NBC’s Chuck Todd, Trump said he would target immigrants from certain countries, but he resisted the suggestion that this was a retreat from his proposal to target Muslims. “I actually don’t think it’s a rollback. In fact, you could say it’s an expansion. … People were so upset when I used the word Muslim. Oh, you can’t use the word Muslim. Remember this. And I’m OK with that because I’m talking territory instead of Muslim.”
  • In November 2015, Trump told NBC News he “would certainly implement” a database to track Muslims in the United States … “I would certainly implement that. Absolutely.” Would Muslims be legally required to register? “They have to be — they have to be,” Trump replied.
  • In March 2016, Trump said, “Frankly, look, we’re having problems with the Muslims, and we’re having problems with Muslims coming into the country.”

The Trump team has even sought to defend its proposed plan to target Muslims by citing the Japanese internment of World War II (which in itself is another admission that the registry is not simply based on geography but religion and descent). In November, Carl Higbie, a spokesman for the pro-Trump Great American PAC, argued that a registry of immigrants from Muslim countries would pass constitutional muster, citing the internment of Japanese-Americans during World War II. But Korematsu v. United States, the case that upheld the Japanese internment, is more an anti-precedent than a precedent. As of 9/11, every justice on the Supreme Court except David Souter was on record condemning the decision. Congress ultimately issued a formal apology for the wrong and paid reparations. When Trump supporters have to resort to citing a decision like Korematsu, it only underscores how dubious their proposals really are.

Others, including law professors Eric Posner and Eugene Volokh, have argued that the “plenary power” doctrine would permit an immigration measure targeted at Muslims. To be clear, Posner and Volokh think such a proposal would be “stupid and offensive” and “a very bad idea,” respectively, but not unconstitutional. In their view, “plenary power” trumps all, so to speak. But theirs is a vast overreading of the doctrine, which grants the political branches broad discretion over who may enter the United States. It is true that in the 19th century the Supreme Court cited “plenary power” to permit the exclusion of Chinese immigrants and that the doctrine has often been cited to exclude foreigners based on nationality and political associations. But while the power over immigration is broad, the court has also insisted, in Carlson v. Landon, that “this power is, of course, subject to judicial intervention under the ‘paramount law of the constitution.’” The plenary power is not a blank check. And of course, surveilling and closing mosques is not an exercise of immigration authority and would directly burden the rights of citizens.

What is more, the fact that the court has been lenient with respect to nationality distinctions in immigration law governing admission does not mean it would tolerate religious distinctions even at the border. It is difficult to imagine how one might regulate immigration without making nationality-based distinctions, and our immigration laws have long drawn such lines. We have different visa rules for immigrants and visitors from different countries, and we not infrequently adopt country-specific immigration rules to address particular problems, such as a refugee crisis in a particular country. So making distinctions on the basis of nationality is intrinsic to immigration. But it is another thing entirely to use the immigration power to target people of a specific religion. We have no history of doing so and no legal precedent allowing it.

There is simply no reason why religion should be relevant to immigration.

Moreover, under the Establishment Clause, which protects all of us from government actions favoring or disfavoring particular religions, the government is precluded from taking actions that make people of a particular religion feel that they are outsiders, especially once they are in the country. This is why it is unconstitutional, for example, for a city to display a Christian cross — it makes those who are not Christian feel excluded. If citizens have a constitutional right to object to the mere display of a cross because of the message it sends, surely they have at least as strong a right to object to a policy that treats Muslim human beings as suspect based on nothing more than their religious identity.

It’s true that President Bush’s special registration program, targeted at 25 majority-Muslim countries and North Korea, withstood constitutional challenge. (The courts relied on the history of drawing distinctions based on nationality cited above). Special registration was eventually scrapped not because courts declared it unconstitutional but because DHS itself found that it was a counterproductive waste of resources: It generated no terrorist convictions and caused widespread resentment in the very communities with which law enforcement sought to work to identify potential terrorists.

But under President Bush, there was no smoking gun evidence that the program was intentionally targeted at Muslims. It had that effect, but effect alone is rarely enough to demonstrate intent. With Trump, by contrast, the evidence of anti-Muslim intent is overwhelming. Imagine that as a candidate, Trump had announced plans to ban the admission of Blacks, create a national database of Blacks, and investigate Black churches, and then, upon election, instituted a registration requirement for immigrants from African countries. Would anyone doubt that his action was based on racial animus?

Trump’s targeting of Muslims is just as blatant — and just as unconstitutional.

David Cole is the Incoming Legal Director of the ACLU

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22 thoughts on “Would Proposed Targeting of Muslims Would Be Unconstitutional?”

  1. Jerry Waszczuk

    Trump had announced plans to ban the admission of Blacks, create a national database of Blacks, and investigate Black churches, and then, upon election, instituted a registration requirement for immigrants from African countries. Would anyone doubt that his action was based on racial animus?

    DG

    I never heard about  Trump ‘s intention toward Blacks and Black Churches .Any  legitimate sources of this information ?

  2. Barack Palin

    Law enforcement officials told NBC News the suspect’s name is Abdul Artan, an 18-year-old student at the university. He was a Somali refugee who left his homeland with his family in 2007, lived in Pakistan and then came to the United States in 2014 as a legal permanent resident of the United States, officials said.

    Abdul Artan was one of the attackers on the Ohio State campus today.

    This certainly won’t help all those that are sympathetic to letting in more Muslim refugees and will just play into Trump’s hand.

    1. Davis Progressive

      i support armed police.

      you think blanket exclusion is the answer?  the guy has lived here for a decade, how do you defend against that?  he didn’t come here as a radical, he became one while living here.  how does that support trump’s policy?

        1. hpierce

          Please contact the FBI with your apparent knowledge that the culprit was indeed “radicalized”… you seem to have information that the authorities do not…

          Or perhaps, “… you have no clue…” is the operative phrase…

        2. hpierce

          And, have not seen any indication that the culprit was ‘Muslim’, even less that he ‘practiced’ Islam…

          The investigation as to motive has just begun… am thinking “jets should be cooled” as to today’s events…

          The government did not send the officer out to OSU to harass or assassinate a Muslim this morning… certainly the president-elect had nothing to do with it. [only a hardened conspiracy theorist would believe the PE paid the dude to do what he did, to embarass Kasich…]

          Discrimination was definitely involved though… the officer was prejudiced against an individual who drove a car through a group of people, brandished a knife, then attacked yet others, and refused the officer’s demand that the weapon be dropped… resulting in ‘suicide by cop’.  There are times when “discrimination”, and “prejudice” have a legitimate place… depending on context.

          The officer might have thought that based on the evidence he witnessed, that the culprit was likely to continue maiming/injuring more folk… yet, of course, we are a nation of laws, and the dead student was denied his right to life without a trial nor conviction (and there should be no death penalty, right?).

           

    2. South of Davis

      My left leaning friends have been in a funk since Trump won and nothing would have made them happier than to see a white Christian gun lover go crazy at a school.  Hearing that person of color that is a follower of the religion of peace went nuts and a white guy with a gun saved the day will have them going home from work early today to cry…

      1. Don Shor

        nothing would have made them happier than to see a white Christian gun lover go crazy at a school.

        No, SOD, hearing that would not make anyone happy. I really don’t know why you post stuff like this.

        1. South of Davis

          Don wrote:

          > hearing that would not make anyone happy

          I wonder if Don also thinks that there is not a single right winger who is happy that a cop shop shot a Muslim guy giving president – elect Trump one less ISIS follower to deport…

          [moderator] edited; we don’t allow nicknames for political leaders

          1. Don Shor

            I wonder if Don also thinks that there is not a single … blah blah blah….

            Don really never knows how to answer your bizarre questions, false analogies, and strained efforts at political equivalences.

      2. Tia Will

        South of Davis

        My left leaning friends have been in a funk since Trump won and nothing would have made them happier than to see a white Christian gun lover go crazy at a school. “

        Once again demonstrating the complete futility of projecting how someone else might feel. Just as accurate as usual SOD.

        1. hpierce

          Careful, Tia… not so long ago you were projecting how men would feel about restrictions to medical access for vasectomies or prostate treatment… I think you could make stronger points without raising questions about yours… actually intended as a helpful suggestion…

        2. South of Davis

          Tia wrote:

          > Once again demonstrating the complete futility of projecting how someone else might feel.

          I’m not “projecting” how someone else might feel I’m telling you why my actual friends have said.

          They are not the only ones that feel this way as the Clinton team were upset when the “workplace shooter” in San Bernardino had a muslim sounding name.

          http://www.breitbart.com/wikileaks/2016/10/16/wikileaks-clinton-teams-shocking-reaction-san-bernardino-terror-aattack/

          It is Don that is “projecting how someone else might feel” when hs says “hearing that would not make anyone happy”

          Then Don (talking in the third person) says:

          > Don really never knows how to answer your bizarre questions

          It is OK to say you don’t “want” to answer my questions (they are not “hard” to answer).

          To make it easier for Don he can tell is if he think the following statement is true or false:

          “Not a single right winger in America is happy that a cop shop shot a Muslim guy attacking people with a knife”

           

  3. tribeUSA

    I don’t know that Trump’s platform “targets” Muslims (the usual hyperbolic choice of words, it seems); although it does propose more thorough vetting/screening of Muslim immigrants. It seems to me that if an Imam or other Muslim religious representative is inciting jihad or terrorism; he should be arrested and charged in the same way as a priest or bishop or rabbi that incites their own version of jihad or terrorism. Might be a good idea to have passive surveillance in some Muslim mosques; and also some Christian churches if they need to be even-handed (I’m a Christian and don’t object)–my Dad tells me during his boyhood there was a Catholic priest who preached fire & brimstone awaited the congregation after death (unless they repented and made things right with God); but not for the congregation to visit fire & brimstone on heathens or apostates. Those agents screening the Christian sermons will likely get very bored; or maybe they’ll convert to Christianity (alert progressives–a further danger of religious surveillance leading the sheep astray from their horned gods!).

    I’d like to find out what the Trump teams platform is re: a registry; more about what their current stance is on this. Off the top of my head, it seems like this might be a good idea for some Muslim refugees (e.g. those that have been let in with minimal or no vetting), but not all; would like to find out more about specifics of any proposed registry.

  4. Tia Will

    hpierce

    not so long ago you were projecting how men would feel about restrictions to medical access for vasectomies or prostate treatment”

    Not so long ago, I enquired or asked men to consider how the might feel about restrictions to medical access for these procedures and treatments. I do not see how enquiries and requests to consider can be equated to “projecting”.

    I would probably take your “helpful suggestions” more to heart if they were not consistently accompanied by misrepresentations of what I have written.

    1. hpierce

      BTW… Tia, do you intend the different font sizes between your quotes of others, and your posts? Simple yes or no is all I ask…

      FYI, as I can easily deal with it…

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