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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Richard Tucker

As Someone who has sworn The Oath three times I could not agree more with this essay/letter.

Pissed off American

They are a threat and no one knows which one has it for the USA. We have a right to defend ourselves and we have the right to take any precautions that are needed in this country. You forget they are Not! Us citizens there for they have no rights in this country. You will not let this comment through I know because it goes against what you want. ButI thought ACLU stood for America's Civil Liberty Unions. Not Mexican not Muslim and Middle Eastern Union . We help refugees but we don't even help our own . I as a tax paying citizen am against all of this ! And I am Hispanic. But first I am an American . Time to send them all back .they hurt our economy for one thing they send most of their money away . And they file taxes getting lots of money back by claiming kids that don't even live here or that they probably don't even have. Our rent in America has sky rocketed because of them and blue collar jobs don't pay shit because of them . I'm tired of the ACLU fighting for people that are breaking the law in the first place by being here illegally .they have not rights here. My question is Are you an American ? You better decide who s side your on or move on!

Anonymous

Better get packing. And for that matter, we will all have to leave. Everyone of us is an immigrant, even back in the 1600's when my greatx12 grandmother arrived. Please go home.

Anonymous

My grandparents were Italian and Irish immigrants . In my family we have doctors , teachers, therapists,government workers, police, firemen ,and blue collar workers. My grandparents were welcomed into this country , were allowed citizenship, and contributions to society from them and their descendants is a source of pride. All Americans were once immigrants, with exception of indigenous tribes. What have you or your family contributed to society besides bigotry ????

Comrade Marx

Reponding the "Anonymous" post stating that we are all immigrants - well, no, I was BORN in the US. My parents and grandparents were BORN in the US. So, no, we are NOT all immigrants. That's a false and misguided narrative to try to gloss over the clear and very present danger of ILLEGAL IMMIGRATION. We have laws in place regarding illegal immigration and even though past administrations have failed to administer the law, irregardless, laws are in place addressing this pandemic and only need an administration like the newly elect one coming in to actually follow these laws, to plug the invasion and attack from foreign operatives under the guise of poor immigrants.

Andrew Fort

I personally agree with you. The Constitution gives us freedom of religion, but if, because of your religion, you harm someone intentionally, why would a human of another religion who didn't harm or kill anyone not want that first person gone? I'm sorry to anyone I'm offending, but Muslim Extremists have a history of terrorism. Unfortunately, there is almost no way to tell between non-Extremists and Extremists, so what is our country to do? Tell me, please.

Anonymous

Your the one who isn't American , this country is made up of immigrants and it will always be , the issue is that trump doesn't even seem to realize the terrorist attacks in the us have been mostly us citizens

Anonymous

I don't think the constitution gives our enemies the right to invade us. I really wish the American Communist Lies Union would stop telling us this garbage. We have to accept the fact that some cultures cannot and should not mix together. This country was not meant for everyone. This is a fact and we must accept this obvious truth.

Sheila Lauder

I distrust anyone who is posting but is not willing to give their name. This country was and is meant for everyone of goodwill who meets the strict immigration requirements. The USA is founded on cultures mixing together peacefully.

HolidayinCambodia

I am not sure I agree with this analysis, but mostly because I am unsure that justices who voted to okay keeping prisoners at Guantanamo without permitting access to U.S. courts would vote anything that would appear to be in any way favorable to Muslims, but that's not a "constitutional" consideration, only a "real life" one. Plus, it pains me to say, Korematsu is still "good law."

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