November 22, 2016 (Fault Lines) — As our nation gets ready to have Donald Trump assume the presidency, the question on all of our minds is, “Can he really do that?” The “that” being just about any of his once-unmentionable suggestions; from building The Wall to withdrawing from NATO.
A national registry of Muslim immigrants seems about as good an example as any of the kind of terrifying/outrageous policy suggestions endorsed by Trump. Suggestions of implementing such a database, of course, could just be Trump’s vague pandering to white supremacists. But assuming that it is actually something he wants to do, could he?
To answer this question, it is necessary to define just what we are talking about. The whole thing started about a year ago when Trump was asked by a reporter if he would support a database system tracking Muslims in the United States, and he responded, “I would certainly implement that. Absolutely.”
Now that less than half of the voters have elevated him to the status of President-Elect, Trump has preposterously claimed he never supported such a registry, while his advisors and surrogates continue to rely on George W. Bush’s use of the National Security Entry-Exit Registration System and Japanese Internment Camps as examples of the registry done right.
For the sake of this intellectual exercise, let’s assume that an actual policy would be a mix of the most extreme and the most defensible suggestions, and would require any non-citizen present in the United States to register his or her religion with authorities. This is, perhaps, the closest approximation of a coherent policy we can glean from Trump’s own commentary on the matter.
Would such a database be permissible?
The U.S. Constitution applies in full force to citizens on American soil. But, when dealing with non-citizens, the Constitution applies in limited ways.
When someone is either outside the country or is an arriving alien who is seeking admission, they get almost no constitutional protection at all. In Kleindienst v. Mandel, 408 U.S. 753 (1972), the Supreme Court made it clear that the Executive may exclude any non-citizens it wants to from the U.S., even when that exclusion relies on what would be an infringement of that person’s constitutional rights if they were a citizen.
Ernest E. Mandel was a Belgian citizen who was a self-described “revolutionary Marxist” who sought entry into the U.S. for six days so that he could participate in a conference at Stanford University. He was denied admission though because of his political beliefs, based on a statute that barred certain political dissidents from entering the country. Mandel cried foul, arguing his First Amendment rights were violated.
The Court agreed that excluding him from the country based on his beliefs was an affront to the First Amendment, but the Court also decided that it didn’t matter.
The Court said, with citations omitted:
Recognition that First Amendment rights are implicated, however, is not dispositive of our inquiry here. …
[T]he power to exclude aliens is inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers — a power to be exercised exclusively by the political branches of government.
But what about due process?
The only limit is procedural. That is, due process says that a non-citizen seeking admission receives only the right to apply whatever unfair laws we have enacted in a minimally fair way. As long as we write the rules saying no commies can enter, there’s no problem blocking them based on those rules.
It is worth noting, as well, that this class of persons includes anyone who is seeking initial admission to the country, even if they are actually on American soil. In fact, the Third Circuit recently concluded that this class of people includes anyone entering the country who never made it past either the airport or close proximity to the border before being apprehended, even if they ultimately were being held in the interior of the country.
Non-citizens who are already lawfully in the United States might get some greater protection, but how much is uncertain. For the most part, non-citizens in the country only have the substantive rights granted by the immigration laws themselves, and the procedural due process rights to have the government follow those laws. As the Supreme Court explained in Landon v. Plasencia, 459 U.S. 21 (1982), these procedural protections are slightly more robust, and require things like a hearing and actual notice of alleged violations before an alien can be kicked out of the country, but there aren’t really any substantive limits.
Some courts have suggested non-citizens who are lawfully present in the country might have some protections against the application of otherwise impermissible laws, subject to some sort of special deference to the Executive. For example, it’s an open question whether immigration laws that overtly discriminate based on gender are permissible. The Supreme Court has ducked this question three times already, and will be considering it for a fourth time this coming term. But several justices have espoused the view that these kinds of constitutional protections simply don’t apply to non-citizens at all. Given the composition of the Court, and Trump’s power to nominate a new justice, it is highly doubtful that Court will go out of its way to enhance protections for non-citizens.
What this all means is that the plenary immigration powers held by the Executive and by Congress in setting immigration law could almost certainly allow a religious registry for immigrants, potentially even one applicable only to Muslims.
Taking for granted that such a registry would offend the Free Exercise Clause of the First Amendment, for a potential immigrant seeking admission, Kleindienst makes it clear that such a policy would be acceptable.
Even immigrants already in the country could almost certainly be required to register. As long as a registration requirement complied with procedural due process it would probably be permitted. People who refused to register might be entitled to a hearing before removal on whether or not they were really subject to the requirement, but the substantive validity of the requirement wouldn’t be at issue.
Indeed, even if the Supreme Court decided to provide non-citizens with some level of substantive rights in the context of gender discrimination, that wouldn’t necessarily doom a religious registry. If the issue is discrimination, the administration could just make every immigrant register his or her religion. That’s arguably worse for religious freedom, but isn’t discriminatory. If the issue is Free Exercise, it is still easy to imagine a court approving of a facially neutral religious registration, particularly when applying some high level of deference to the Executive.
Ultimately, while Trump might (hopefully) get distracted by another shiny objection or perceived personal slight, and so might not actually follow through with the registry, he certainly could.