Much of the opposition to Donald Trump’s call for “immigration security” seems to be based upon two assumptions: that it is a form of racial profiling and therefore unconstitutional, and/or that the exclusions would be total or at least very widespread.

But both are wrong, says public interest law professor John Banzhaf, whose widely publicized legal analysis demonstrated that under the centuries-old Plenery Power Doctrine, and the Supreme Court’s recent rulings permitting factors like race to be considered in decisions designed to further a compelling state interest, considering religion in immigration decisions and policy would clearly be constitutional.

TSA photo
Photo by billypalooza

But merely because banning all immigrants who are Muslim might be constitutional doesn’t make it a good idea for many reasons, says Banzhaf, who has suggested other more practical ways religion could be taken into account in immigration policy. One, he suggests, might be to use it as a tie breaker.

When two applicants for a job appear to have equal qualifications, many employers may – under what is called affirmative action – consider race or ethnicity as a factor to break the tie, giving the spot to a African American, Hispanic person, etc. In the same way, since the U.S. receives far more requests for immigration than it can possibly accommodate, and the applicants may often seem equal in factors which would make them good candidates, preference might be given to those who are not Muslim.

Second, just as colleges often consider the race or ethnicity of applicants – not as the sole criteria, but rather as one of several factors to be considered – so too might immigration officials.

For example, not only may Muslims be given some extra scrutiny because of the somewhat higher risk they pose, they might be excluded if – in addition to their religion – there are other factors which authorities consider suspicious. These might include visits to suspicious countries or regions of countries, especially if the trips cannot satisfactorily be explained; reports of domestic abuse, public intoxication, or other similar offenses; etc.

Third, in cases where a refugee’s background and possible identity as a terrorist cannot be reliability determined, and their status as a Muslim creates enough anxiety such that they would ordinarily not be admitted, there might be an alternative to completely refusing them admission, or routinely admitting them and thus taking a chance that they might be a terrorist.

Immigration Security – Profling explained

Thus, rather than barring such Muslims, or ignoring the risks posted by admitting Muslim refugees about whom there isn’t any conclusive evidence, some – especially young males with, for example, prior criminal convictions and/or who have recently visited Syria or other suspect areas – could be given a choice of not being admitted, or of agreeing to wear a ankle GPS-based monitor.

Such a device would alert authorities to their location (both in real time, and retroactively during any subsequent investigations), or provide an immediate warning if the device were removed.

Such ankle monitors, which are already widely used in the U.S. for persons suspected (but not proven) of having committed a crime, would substantially reduce a problem law enforcement officials now face – both here and abroad – of lacking sufficient manpower and other resources to keep track of the movements of all persons who are under suspicion of possibly being terrorists, but where there isn’t yet enough evidence to act.

Immigration Security – Orlando

The Orlando killer, as well as those in Paris, are clear examples of such situations, says Banzhaf, who says admitting people even with ankle monitors is much kinder than excluding them