Muslim Registry along with Total Immigration Ban, Ankle Tracking Monitors, or Registering & Reporting might be legal
Rumors that the Trump administration might implement a so-called Muslim Registry – in which people seeking to enter the U.S. would be required to register (and perhaps more), either because they are coming from certain largely Muslim countries, or simply because they are in fact or believed to be Muslims – would be constitutional, and there are several recent precedents supporting it, says public interest law professor John Banzhaf.
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Indeed, Trump might be able to establish such a system shortly after taking office, and without the need to wait for Congress to act, simply by lifting the suspension of the National Security Entry-Exit Registration System (NSEERS) or INS Special Registration, notes Banzhaf.
One simple reason why our country has frequently been able to single out people by race, nationality, and perhaps even religion for immigration purposes is that we can because not all the rights guaranteed by the Constitution apply to non-Americans outside the country.
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.”
The 1924 Immigration Act (targeting those from Southern and Eastern Europe), the Chinese Exclusion Act (aimed at Chinese), and President Jimmy Carter’s 1989 order banning virtually all Iranians from the U.S., are recent examples of valid immigration restrictions based upon national origin.
A much more recent example is NSEERS which 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 ” Muslim Registry ” program was indefinitely suspended, it apparently 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.
As another example, 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 America has openly engaged in religious profiling.
Thus, if Muslims may be banned from entering the U.S., it would appear that a wide variety of restrictions could be placed upon any which are admitted. This has already included the need to register and report, and to be subjected to secondary screening by the TSA. Here’s another alternative.
Another possibility, especially 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 then taking a chance that they might be a terrorist.
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.
The Norwegian government is already investigating the possibility of putting ankle monitors on some asylum seekers in an effort to prevent terror attacks, and they are used routinely in the U.S. by ICE – which has over 9,000 in operation at any given time, says Banzhaf.
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 also 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.
At an estimated cost of only about $5 a day, they are far cheaper than requiring law enforcement officials to follow them around 24 hours a day, argues Banzhaf. A single agent could monitor in real time the locations of hundreds of those in the program, and be alerted by a computer if they visit certain suspicious locations. Similarly, if one is suspected of improper activity, a detailed record of his location during prior weeks or even months would be readily available.
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.
In summary, while there may be valid arguments against any program which singles out Muslims or those from certain Muslim-majority countries for different treatment, unconstitutionality is not one of them. Even a total ban, much less various lesser restrictions would be legal like a ” Muslim Registry “, says Banzhaf.