WASHINGTON — The Trump administration would likely prevail in the face of threatened legal challenges to any plan to register or otherwise monitor Muslims entering the country, legal experts said — but it’s more likely to use a tested, broader-based Bush/Obama-era program to keep track of people from regions plagued by terrorism.
“I think you can say with a great deal of certainty that would be both constitutional and legal,” said John F. Banzhaf, a law professor at George Washington University.
While religion-based policies aimed at U.S. citizens would be constitutionally perilous, Trump will have much broader constitutional authority to focus on non-citizens, whether based on their faith or their country of origin.
“Courts have generally deferred to executive power when it comes to increasing scrutiny from a particular country,” said constitutional law scholar and legal analyst Jonathan Turley.
“There is a great deal of precedent for that,” he said. “Jimmy Carter did that with Iran after the hostage-taking incident.”
But focusing the plan narrowly on people from regions with high terrorist activity rather than their religion will spare Trump political strife as well as lawsuits, even if the challenges are not successful, he said.
“The most problematic action would be a system based on religion,” Turley said. “That type to approach would be both unwise and unnecessary.”
Last week, Kris Kobach, Kansas secretary of state and a member of Trump’s transition team, said Trump was mulling a plan to register aliens from Muslim countries. During his campaign, Trump proposed a ban on Muslims entering the country but later modified that plan to an “extreme vetting” program for entrants from regions that are terrorism hotbeds.
The ACLU threatened to challenge any Muslim registry in court. When asked about a Muslim registry yesterday on NBC’s “Meet the Press,” Trump’s incoming White House chief of staff, Reince Priebus, said: “Look, I’m not going to rule out anything. But, we’re not going to have a registry based on a religion.”
Kobach later said he was referring to the existing National Security Entry-Exit Registration System, or NSEERS, which operated from 2002 to 2011 and registered nationals of 25 countries — 24 of which were predominantly Muslim — on entering the U.S. It could be reinstated with the stroke of Trump’s pen, and there is little legal challengers can do about it, Banzhaf said.
“It could be something Trump could do without congressional authorization or statute,” Banzhaf said.”Even if it were a total religious test it would not violate the Constitution. Many of the rights and protections set by the Constitution simply do not apply abroad to non-citizens seeking to come here.”
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