John F. Banzhaf III is a professor of public interest law at George Washington University Law School. The opinions expressed in this article are the author’s own.
In criticizing Donald Trump’s proposal to temporarily limit entry to this country by Muslims, President Barack Obama spoke in very broad terms, suggesting that treating people any differently based upon their religion would violate “our Constitution” as well as “our values.” For example, he said: “This is a country founded on basic freedoms, including freedom of religion. We don’t have religious tests here. Our founders, our Constitution, our Bill of Rights, are clear about that.”
But, as a civil rights lawyer and law professor who has won over 100 legal actions fighting many different forms of discrimination, I respectfully suggest that the President is wrong on the law, and perhaps also wrong about whether even considering religion, even as only one factor and in the context of possibly preventing terrorist attacks, is necessarily contrary to America’s values.
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 a concept supported by many.
CONTRARY TO AMERICAN VALUES?
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 Secretary 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, Sam. . . . But we are in a war situation, and we’re going to have to do things people do in times of war.”
When President Harry S. Truman vetoed the Immigration and Nationality Act of 1952, which gave presidents very broad powers to exclude people from the country, he said that: “It repudiates our basic religious concepts, our belief in the brotherhood of man.” But a bi-partisan super majority in both the House and Senate strongly disagreed and overrode his veto, suggesting very broad public support, at least at that time, for this concept.
And whether we like to remember it or not, our “values” presumably weren’t offended when 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.
One scholar, Professor Eric Posner of Chicago Law School, has even suggested that to this list we should add religion: “In 1891, 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 admit their belief in the practice of polygamy.’”
More recently, the 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 of the 10 which are at least 90% Muslim. So it seems clear that the selection is based in very large part on religion.
Moreover, since it occurred during Obama’s presidency, such religious profiling presumably does not necessarily offend American values as he sees them, any more than it offended Americans values in all of the other instances cited above.
CONTRARY TO THE CONSTITUTION?
Many recognized legal scholars believe, as I do, that a plan to limit refugees eligible to come to the U.S., based in whole or in part on religion, would not necessarily be unconstitutional, regardless of its wisdom and/or feasibility, for at least two reasons.
First, 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.
It seems clear that preventing mass murder by terrorists is at least as much a compelling governmental interest as achieving racial 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 determining which refugees should be admitted.
The Department of Justice likewise recognizes that, while so-called racial (and similar) profiling is illegal in many situations, exceptions exist with regard to both preventing terrorist attacks and in determining who enters the country.
For example, its recent 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.”
The second reason is the so-called “plenary power doctrine” which Prof Posner has described in these words:
“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 Prof. Posner, law professor 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.”
CONTRARY TO STATUTE?
Under 8 U.S.C. 1182, a president has authority to suspend the entry of “any aliens or of any class of aliens into the United States [who] would be detrimental to the interests of the United States,” for however long he deems necessary. This was included in a 1952 statute.
Even this president has used this very statutory authority. By proclamation in 2011, Obama suspended the entry of “any alien who planned, ordered, assisted, aided and abetted, committed or otherwise participated in” war crimes or other violations of humanitarian law.
And in 2015, the Supreme Court held that a president, and/or those to whom he delegates the authority, are permitted to deny someone a visa on national security grounds without a specific reason.
So, at least until a court rules otherwise, it seems that an order temporarily barring non-American Muslims from the U.S. would have a firm statutory basis, and not be unconstitutional.
SOMETHING SHORT OF BANS?
Even those who believe that barring all non-American Muslims from entering the country for a limited period of time might not be unconstitutional may think it might be going too far. So the question which arises is whether procedures which are more practical and more fair – and therefore even more likely to withstand legal scrutiny – might be effective. Here are some possibilities.
First, non-citizens boarding flights to the U.S. from any (or at least some) foreign countries who are or at least appear to be Muslim (e.g., based upon their names, personal appearance including dress, traveling companions, or other factors) [hereinafter “Muslim”] could be required to go through a more comprehensive pre-boarding screening process. This process could include a more thorough physical screening for weapons and bombs, a more careful check of credentials, more detailed questioning about recent trips to suspicious destinations and associations with certain suspicious persons, an updated check against various watch lists and/or with additional governmental agencies both here and abroad, etc.
Second, persons disembarking in the U.S. from such flights could likewise be required to go through a more thorough screening, but this time by U.S. officials on American soil.
Third, refugees who are not Muslim could be given preference in being admitted to the U.S. Those applicants who are Muslim could be put through a more rigorous and more far-reaching vetting process than those who are not Muslim, and presumable denied admission if there are any reasonable doubts; even doubts which might be overlooked in the case of non-Muslims,
Fourth, rather than barring Syrian and other refugees from entering individual states (as many of their governors have proposed), or admitting them with few if any restrictions and therefore free to roam at will, refugees who are suspected of being terrorists – or those which cannot confidently be vetted – could be required to wear an 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, which are today already used in thousands of situations where there is likewise only suspicion, and usually of less serious crimes than potential terrorism, would substantially reduce a problem law enforcement officials now face both here and abroad – lacking sufficient manpower and other resources to keep track of the movements of all persons who are merely under suspicion of being actual or potential terrorists, but where there isn’t enough evidence to act. The Orlando killer, as well as those in Paris, are clear examples.
It usually takes three different teams, each working eight hour shifts, to keep tract of the movements of any one person under suspicion, and even then clever ones can elude surveillance teams. This law enforcement technique is often prohibitively expensive, and may be of only limited usefulness.
In contrast, at only a tiny fraction of the costs of such teams, a simple ankle tracking monitor with GPS would permit one agent to monitor dozens if not hundreds of suspects around the clock, with no opportunity for the suspect to slip out the back door, use a disguise to evade surveillance, or use other similar tactics.
Properly programmed computer monitors could alert an agent on duty in a room with dozens of monitors showing suspect locations on a map if a suspect goes near certain areas (e.g., a nuclear plant, airport, stadium, etc.), if two or more persons with monitors meet together in one place, if the suspect is out and about at unusual hours, etc. so that other agents can then investigate in real time, or by doing follow up investigations later.
So, rather than barring all Muslim refugees, or ignoring the clear risks posed by admitting all Muslim refugees about whom there isn’t any conclusive evidence, some – especially young male Muslims 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 monitor as a condition of admittance.
These four initial ideas are only a few of the possibilities law enforcement and others would be free to consider, evaluate, and possibly test once we overcome the blinders imposed by third-rail beliefs that any consideration of religion (or ethnicity, gender, age, etc.) is either automatically and completely unconstitutional (which it is not), or somehow unfair to the great majority of people of the Muslim faith who are law abiding and pose no threat to anyone’s safety.
The latter is certainly untrue. For example, if I, as a white person, were living in a country like South Africa, and a tiny group of radical whites seeking to end black rule declared war on the country, and starting carrying out suicide bombings on planes and terrorist acts elsewhere, I would certainly hope that the government would provide more thorough screening of all white airline passengers, including me.
After all, I don’t want to be blown up or otherwise injured in any terrorist action (by whites or by anyone else). Moreover, concentrating airport searches on whites, rather wasting its limited resources by treating all black passengers and all white passengers exactly the same, would also reduce my waiting time at airports.
While it is certainly true that the overwhelming majority of Muslims are law abiding people who would do us no harm, it is also true that the overwhelming majority of recent terrorist attacks both here and aboard have been carried out by people who are (or at least apparently believe themselves to be) Muslim. In view of this, as Obama’s Justice Department itself has noted, “law enforcement should not be expected to disregard such facts in taking investigative or preventive steps aimed at the organization’s activities.”
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