Trump Could Reinvigorate Existing Muslim Registry Program by Himself, Without Congress
WASHINGTON, D.C. (November 21, 2016): Rumors that the Trump administration might implement a so-called Muslim Registry were strengthened when Kansas Secretary of State Kris Kobach, who just visited Donald Trump and may be considered for Homeland Security Secretary, had it literally at the top of his list of things to do which he presented to the president-to-be.
As predicted last week by public interest law professor John Banzhaf, Trump might be able to establish such a registry shortly after taking office, and without the need for Congress to act, simply by lifting the suspension of the existing National Security Entry-Exit Registration System (NSEERS).
NSEERS mandates port-of-entry registration for nationals of Iran, Iraq, Libya, Sudan and Syria. Also, some non-citizens already in the U.S. have been required to register in person at an INS office if they come from certain countries – 24 of the 25 of which are predominantly Muslim. The program also required periodic re-registration.
Although the program was indefinitely suspended, it is still in existence. Thus Trump, with a mere stroke of his pen, and without the need to wait for congressional action, could simply reinstate the program, replacing the list of countries with his own choices.
The fact that it has been existence for all these years without a successful legal challenge strongly suggests the it is constitutional, says Banzhaf. Indeed, the Boston Herald just quoted him as saying: “‘I think you can say with a great deal of certainty that [such a program] would be both constitutional and legal,’ said John F. Banzhaf, a law professor at George Washington University.”
Another reason why it is constitutional to single out people seeking admission to the U.S. based upon factors like race, national origin, and religion, is the Plenary Power Doctrine. Under it, least some of the protections guaranteed by the U.S. Constitution do not apply to non-citizens living abroad and seeking admission to the U.S.
So, while critics are making many strong policy arguments against any such program, the argument that it would be unconstitutional or even illegal isn’t really valid, he says.
“The mere fact that a program may be ineffective or seem counterproductive, or seem unfair or even un-American, doesn’t mean that it violates the Constitution. Critics will have to rely upon policy arguments, and not the courts, if they wish to fight against this proposal, argues Banzhaf.