Why Trump’s Proposed Targeting of Muslims Would Be Unconstitutional

This piece was originally published at Just Security on November 21, 2016. 

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.

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Comrade Marx

Show or link to where the US Constitution affords illegal immigrants/or anyone who will NOT assimilate, ANY rights. Bill of Rights is explicitly designated to and for US CITIZENS ONLY. To say that illegal aliens have rights is unconstitutional - since they are NOT citizens, they're not afforded rights of normal citizenry. The are, at best, law breakers needing immediate deportation, and at worst, foreign invaders who have no rights accept a military tribunal and prison.
There are hundreds of thousands of foreigners who are going through the citizenship process legally that LOVE America. They are getting SCREWED over by those who are breaking immigration laws. ACLU is a joke to defend such behavior and any "attorney" associated with them is an unAmerican hack!

Anonymous

If a woman wants to wear a veil, burka or Hijab, then it should be her right to if she is doing it voluntarily. Of course if you get a driver's license or other ID, then you have to show face, but in most cases woman should have the right to wear a veil or Burka. & just because a woman wears a veil or burka, that doesn't mean that she is forced to do so, nor does it mean that she is dumb-go to a university & you'll see Muslim students who wear the veils & burkas studying science, business, accounting, etc. But most Muslim women don't wear veils & the veil is going out of fashion. Yet, France is trying to make this a crime, when it's again, not worn by most Moslem women & most aren't interested in wearing it. There are serious problems in the world, yet France is trying to make it a crime to wear what's going out of fashion !

Anonymous

If a woman is forced to wear a burka, hijab or any clothing, then I'd be for punishing, just as I'd be for punishment if a woman is forced to wear shorts or a minskirt. However, if a woman wants to wear a burka or veil on her own free will, then we have no right to tell her that she can't just as we don't have a right to tell a woman she can't wear a mini-skirt.

I don't want women forced to wear a burka or minskirt, but I also don't want the govt. telling a woman she can't wear a burka, veil or miniskirt if she wants to just because some people are offended by it. Voluntary burka wearing only impacts the woman wearing it, yet France wants to tell a woman she can't wear it

Anonymous

If women don't want to wear it & it goes out of fashion, then that's fine with me. However, I don't believe the govt. should tell a woman that she can't wear a veil, burka or miniskirt if this is what she wants to do on her own free will. If a woman is forced to wear a burka & if there's domestic violence such as by husband to make her wear it, then the husband should go to jail for assault&battery. But if a woman wants to wear a burka because this is what she likes (non-Muslim women can wear veils too), then I have no right to tell her she can't wear it as she is doing it on her own free will. It's again, the same way with miniskirts-if a woman wears it on her free will, then fine.

A woman voluntarily wearing a burka, veil or hijab is victimless. Again if it disappears voluntarily because no women want to wear it anymore, then that's fine, but we must respect the right of a woman to wear a veil if this is what she wants to do.

Anonymous

Some women will wear a veil because she thinks it's pretty.
There are non-Hindu women who'll wear a sari because they think the sari is pretty. There are Christian & Jewess women who'll wear a burqa or Hijab because they think it makes them look pretty just as many women think that wearing a miniskirt makes them look pretty. Most women who wear veils will be Moslems, but there are enough non-Moslem women who think veils, burkas & hijabs are pretty & prefer them to miniskirts.

There are 4 billion women & you'll find individual non-Moslem women who will wear a veil, hijab or burka because they think it's fashionable & like to. Those # would be in the exception but there are exceptions. rance isn't giving much thought to are anecdotal non-Muslim women who'll wear a veil, burka or hijab because this is what they find beautiful. It's best to avoid absolutes like nobody, never, etc. because exceptions can be found & some women who aren't Muslim will find burkas pretty.

Anonymous

There are 4 billion women & you'll find individual non-Moslem women who will wear a veil, hijab or burka because they think it's fashionable & like to. Those # would be in the exception but there are exceptions. rance isn't giving much thought to are anecdotal non-Muslim women who'll wear a veil, burka or hijab because this is what they find beautiful. It's best to avoid absolutes like nobody, never, etc. because exceptions can be found & some women who aren't Muslim will find burkas pretty.

Lawyer

While I am a huge fan of the ACLU, I have strong doubts about David Cole's understanding of basic aspects of Constitutional law, or the law generally. This would absolutely be allowed, but it would be analyzed "strict scrutiny." Any attorney that doesn't understand this, should cease practicing law as they do not have the necessary understanding or knowledge to do so. Sad day for the ACLU. Please look into hiring someone with a law degree (or at least basic understanding of Constitutional law).

Anonymous

Because he lost MONEY not because he cares about our dead loved one. He's NEVER been interested in doing it for that reason, only using that as a "justification" for why he's doing it. That's never been the reason.
It was pretty damn UNCONSTITUTIONAL to take away every single right that Eric, including his right to eat, sleep, breathe & wake up in the morning. That's what terrorists did to him and thousands more on September 11, 2001. I don't care WHAT they have to do to find future terrorists because I don't want any other family to go through what we've been given.

Eduardo

While religious liberty is afforded through the 1st Amendment, it does not guarantee any constitutional rights to foreign nationals. Many claim that Islam is a religion, when their precepts dictate that it is a political structure, where strict laws forbid certain alienable rights that are included in the US Constitution. Islam precepts and Sharia Law are not compatible with the liberties of the Bill of Rights or the Constitution. Any religion that demands their believers to lie to unbelievers to gain their trust, then take advantage, or to strike unbelievers in their necks, and demands believers to kill unbelievers, denies equal rights to women, demands that believers murder homosexuals by throwing them from high places, has no place in the United States. The list of incompatible rules of Islam that violate constitutional rights is too long to mention in this comment, but by reading the Koran, the reader can determine by himself/herself, that Islam is a political system that requires believers to violate basic human rights under the disguise of religion.

Anonymous

I would like to say this... It seems that some of you have the same stance as London " We are not afraid" May said.. No she is not SHE and the rest of parliament are surrounded by heavily armed guards. This did not help the poor people on the sidewalk now did it. The same thing will happen here if we don't put it in check. So let me say that i am skeptical of all religion. I believe there is some thing but the vision of some loving caring god is a little far fetched. Why do children suffer?? If GOD is so great why? So enough of that point... The problem is their religion! They are commanded to kill the infidels "anyone who does not believe as they do" So its islam or nothing. If islam is so great why do they want to come here? No this is not a religion of any sort in my book. I was raised a catholic but was never told to kill anyone who did not believe. If Adolf Hitler had made a bible or scroll or what ever and commanded his followers to kill jews brits french italians Americans all non believers and said amen would that be ok with all of you?. Sure maybe not all muslims are going to kill americans or even want to. But the risk is far to high look at what is going on around the world. Like the two young men accused of rape of a 14 year old in school. They are here illegally in the first place. That word is left out ILLEGALLY! That is the first crime to show they don't have any regard for our laws. But I think I have an idea that would help all involved. First lets be nice to these people... Let the two out of jail until the trial. Give them first class treatment... It will be months for the trial so lets be real good to em... LET EM OUT AND PUT THEM IN MICHELLE OBAMA"S bedroom at night for a week, then put them next to Hillary Clinton's bed for a week then so on and so on.. WHY NOT YOU WANT EM RUNNING AROUND WITH US JUMP ON.. NO cowards! Move all the Muslims next door to Pelosi Then Schumer Oh and while your at it if there is time put the rapist in with Chelsea for a week or two HOW ABOUT YOUR DAUGHTER WIFE come on you all want this RIGHT??? YOU WONT PRINT THIS BUT IT IS THE TRUTH AND WE ARE IN BIG TROUBLE AS AMERICANS. I am not against anyone any religion at all. This is an army not a religion.....

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