Donald Trump’s new call to profile American Muslims is being called illegal and unconstitutional, as well as – by Hillary Clinton – un-American, but it is none of these, and at one point Muslim profiling was even endorsed by Hillary Clinton herself, says a civil rights lawyer and law professor who has won over 100 legal actions fighting different forms of discrimination.
Targeted terrorist profiling, which is very different from racial or religious profiling – because it considers criteria such as religion as only one of several factors, and is employed in only very limited situations to protect against terrorist attacks – appears to be constitutional, and is supported by many.
In particular, profiling can hardly be called un-American when it has been endorsed by the Department of Justice and the TSA, as well as by major political figures, argues Prof. John Banzhaf.
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For example, Governor Jeb Bush stated that the U.S. should “absolutely” be profiling in order to prevent Islamic terrorists from being admitted to the U.S. Senator Ted Cruz has said the U.S. should accept Christian refugees but not Muslims. Rep. Peter King, Chairman of the House Subcommittee on Counterterrorism and Intelligence, said “This is not profiling. This is common-sense policing we have to do.”
Even Hillary Clinton, asked about profiling in the context of “How far do we go, for instance, on airline security?, answered: “Well I think we have to do whatever it takes . . . . we are in a war situation, and we’re going to have to do things people do in times of war.”
Moreover, President Barack Obama and Democratic Senator Chuck Schumer both said that NYPD’s Ray Kelly would make a good secretary of Homeland Security despite his extensive anti-terrorism programs which many said unnecessarily targeted Muslims and their mosques based solely on religion. So, at least by inference, both Democratic leaders seemed to be endorsing some profiling of Muslims.
Since Trump’s earlier call to temporarily ban non-American Muslims, especially refugees, from entering the country was also called un-American, it is well to recall that we have repeatedly limited people from entering this country on the basis of race, national origin, and political belief: e.g., the Chinese Exclusion Act of 1882, or the 1924 Immigration Act aimed at immigrants from Southern and Eastern Europe.
Eric Posner of Chicago Law School has even suggested that we should add religion: “Congress passed a statute that made inadmissible people who practice polygamy (directed, at the time, at Mormons), and in 1907 extended this ban to people who ‘who admit their belief in the practice of polygamy.'”
More recently, our own TSA has engaged in a form of religious profiling, selecting for secondary screening all citizens of 12 named countries. Aside from two communist nations, all of the others have large Muslim populations, including 8 which are at least 90% Muslim. Since this could hardly be just a coincidence, it provides still another example where Americans have openly engaged in religious profiling.
Looking beyond the issue of whether profiling on the basis of religion is un-American, and to the broader question of whether its unconstitutional, the answer also seems to be clear, says Prof. Banzhaf.
The U.S. Supreme Court has held on several occasions that governments may take into account criteria such as race (and presumably religion), provided that the decision serves a compelling governmental interest, and that the factor is only one of several considered.
That, after all, is the basis upon which, under so-called affirmative action, state colleges may discriminate on the basis of race in determining who is to be admitted, notes Banzhaf.
It seems clear that preventing mass murder by terrorists is at least as much a compelling interest as achieving diversity in the classroom, and therefore that religion may be considered – presumably together with other factors such as age, gender, country of origin, visits to suspicious countries, etc. – as one factor in fashioning and operating government programs. Thus. terrorist profiling is likely constitutional.
The Department of Justice [DoJ] likewise recognizes that, while so-called racial (and similar) profiling is illegal and probably unconstitutional in many situations, exceptions exist with regard to both preventing terrorist attacks, and in controlling who enters the country.
For example, recent DoJ guidance provides that: “in conducting activities directed at a specific criminal organization or terrorist group whose membership has been identified as overwhelmingly possessing a listed characteristic, law enforcement should not be expected to disregard such facts in taking investigative or preventive steps aimed at the organization’s activities.”
In addition, while Justice Department guidelines prohibit as unconstitutional any consideration at all of factors like race or ethnicity in routine police enforcement activities (e.g., traffic stops, drug interdiction, etc.), they did expressly provide that: “in investigating or preventing threats to national security or other catastrophic events (including the performance of duties related to air transportation security) . . . Federal law enforcement officers may not consider race or ethnicity except to the extent permitted by the Constitution and laws of the United States.”
In addition to the legal principles explained above, there is another reason why engaging in profiling based upon religion – in this case involving Muslims – would not be unconstitutional.
Under what has been called the Plenary Power Doctrine, at 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.
Law Professor Eric Posner of Chicago Law School described the doctrine this way:
“The Supreme Court has held consistently, for more than a century, that constitutional protections that normally benefit Americans and people on American territory do not apply when Congress decides who to admit and who to exclude as immigrants or other entrants. This is called the plenary power doctrine. The Court has repeatedly turned away challenges to immigration statutes and executive actions on grounds that they discriminate on the basis of race, national origin, and political belief, and that they deprive foreign nationals of due process protections. While the Court has not ruled on religious discrimination, it has also never given the slightest indication that religion would be exempt from the general rule.”
After quoting Posner, Prof. Eugene Volokh, of the UCLA School or Law, adds that following:
“I would add that, in Kleindienst v. Mandel (1972), the Supreme Court applied the ‘plenary power doctrine’ to the exclusion of people based on their political beliefs, despite the Free Speech Clause. The cases that Posner is referring to, together with Kleindienst, suggest that the exclusion of people based on their religious beliefs is likewise constitutional.”
Indeed, notes Banzhaf, the Supreme Court has repeatedly rejected claims that immigration statutes which discriminate on the basis of race, national origin, or political belief are unconstitutional.
So it would probably not violate the Constitution to provide greater scrutiny or additional screening for people who are Muslims and/or come from Muslim-majority countries, especially if the decision about screening or even admission was also based upon factors like age and gender. In some cases, additional measures might even be appropriate.
For example, rather than barring all Muslims, or ignoring the risks posted by admitting Muslim refugees about whom there isn’t any conclusive evidence, some – especially young males with 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 which 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 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 being actual or potential terrorists, but where there isn’t yet enough evidence to act. The Orlando killer, as well as those in Paris, are clear examples, suggests Banzhaf.