Just like Hitler...

Drumpf's Muslim registry wouldn't be illegal, constitutional law experts say

By Louis Nelson

The day after Donald Drumpf won the White House last week, the American Civil Liberties Union wrote on Twitter that if the president-elect attempts “to implement his unconstitutional campaign promises, we’ll see him in court.”

But when it comes to the immigrant registration program that would target Muslims entering the United States — outlined Wednesday by an adviser to Drumpf’s transition team — three constitutional lawyers say the ACLU won’t have much of a shot before a judge.

Kansas Secretary of State Kris Kobach, known for his hard-line stance on immigration, told Reuters in a story published Wednesday that he has been in regular contact with Drumpf’s immigration advisers and that the president-elect’s team is considering a system modeled after a controversial one implemented in the months after the Sept. 11, 2001, terrorist attacks. It fulfills Drumpf’s promise of “extreme vetting” for immigrants from countries affected by terrorism, a threshold he has yet to flesh out more fully.

That program, labeled the National Security Entry-Exit Registration System, required those entering the U.S. from a list of certain countries — all but one predominantly Muslim — to register when they arrived in the U.S., undergo more thorough interrogation and be fingerprinted. The system, referred to by the acronym NSEERS, was criticized by civil rights groups for targeting a religious group and was phased out in 2011 because it was found to be redundant with other immigration systems.

Robert McCaw, director of government affairs for the Council on American-Islamic Relations, said a reinstitution of NSEERS would be akin to “just turning back the clock.” CAIR will lobby heavily against the system as not only discriminatory but also ineffective, McCaw said, if it ends up being proposed by the Drumpf administration.

He also accused Kobach, an architect of the original NSEERS program when he was with the Justice Department under the George W. Bush administration, of having “a long ax to grind with the Muslim community.”

“NSEERS and registries like it are totally ineffective and burdensome and they’re perceived by Muslims and other minorities as just being a massive profiling campaign that, in the past, targeted Muslim travelers solely based on their religion and ethnicity,” he said. “When every country on that list happens to be a majority-Muslim country, it is religious profiling. Because there are threats from other nations and other communities and groups that don’t make it on NSEERS.”

But a program like NSEERS would likely pass constitutional muster before a judge, multiple experts said, in part because it already has. The system was never struck down by a court in the nearly nine years it was in place.

Jonathan Turley, a law professor at George Washington University, said Wednesday that “a president’s power is at its apex at the nation’s borders” and that the Supreme Court has “consistently reaffirmed the power of the president to control the entry and exit from the country as a matter of national security.” Such precedent, he said would give Drumpf’s administration a decided advantage in any litigation.

Immigration law would afford the government special advantages, Temple University international law professor Peter Spiro said, because it exists in a “parallel universe” where many of the constitutional protections afforded in other legal situations do not apply. He said “discrimination on the basis of nationality is something that, again, one finds all over the immigration law, and in a nonimmigration context would almost certainly not withstand the equal-protection challenges.”

Despite its ability to pass constitutional muster, Spiro is no fan of the NSEERS, which he called “a terrible policy” and “a silly program in a lot of ways.” He said the program failed to catch terrorists and created some “pretty tragic cases” in which immigrants already in the country registered under the system and wound up being deported because their immigration status had lapsed.

“You can’t say it’s not discriminatory. It’s only, you know, nationals of certain countries and they’re predominantly Muslim ones,” Spiro said. “It’s terrible policy, zero counterterrorism value, and yet, in this parallel universe, you know, constitutional universe that applies to immigration law, pretty constitutional.”

“It’s immigration security theater,” Spiro added. “It’s like the wall: It’s pretty clear that it just has no effect, but it’s a way of keeping the restrictions constituencies, or the alarmist counterterrorism constituency, happy.”

Even Drumpf’s original proposal to bar all Muslims from entering the country could potentially end up passing a constitutional test, Spiro said, telling POLITICO that “my guess is that a court would strike that down, but it’s not clear, actually.” That Drumpf has backed away from that position, taken during the GOP primary, and assumed the more legally defensible “extreme vetting” one, is evidence, Spiro said, that he was given legal advice on the issue. “Kris Kobach knows his stuff. And I assume it was Kobach or somebody else [who] got to Drumpf and Drumpf was changing his tune,” he said.

Like Spiro, University of Virginia international law professor emeritus David Martin said the NSEERS program is constitutionally sound but fraught with issues as a matter of policy. He said even when it was in effect, NSEERS was “more and more seen as potentially counterproductive” as the Sept. 11 attacks receded in America’s rear-view mirror and the government developed “more of an appreciation that doing certain things that singled out Muslims and were seen as discriminatory were strategically unsound.”

Martin, who was also the general counsel for the Immigration and Naturalization Service from 1995-8 and a principle deputy general counsel at the Department of Homeland Security early in the administration of President Barack Obama, said reconstructing an NSEERS-like system would be a “really bad idea, for a lot of reasons, absent some extreme danger to the country far beyond anything we face now.” But he added that such a program would be “not likely to meet with successful constitutional challenge.”

Still, he said, the cries of discrimination that have already begun from organizations like CAIR and others carry tremendous moral and political weight.

“It’s kind of an American tradition to claim that things you disagree with are unconstitutional, and sometimes are out of keeping with the spirit of constitutional values, even if ultimately a court might uphold them,” Martin said. “So, I think it’s quite legitimate to argue on the basis of constitutional values even if you don’t absolutely have a Supreme Court precedent that clearly establishes your point.”

"He said we will not cut Social Security, Medicare and Medicaid. Now I think that we should expand Social Security," Sanders continued. "That is what he said, and pay attention to see what he now does. The question that will be resolved pretty quickly is whether or not everything that he was saying to the working class of this country was hypocrisy, was dishonest or whether he was sincere — and we will find out soon enough."

Sanders recalled more promises made by the president-elect: "Mr. Drumpf says he wants to invest a trillion dollars in our crumbling infrastructure. That is a good sum of money, that is exactly what we should be doing and we will create millions of good-paying jobs if we do that. Mr. Drumpf, that's what you said on the campaign trail; that's what we look forward to seeing from you."

Sanders' speech comes as Drumpf grapples with reports that his transition team is struggling to make the necessary preparations for when Drumpf formally becomes president, as well as a time when he has appeared to waver over some of his key campaign promises.

Sanders wasn’t arguing that it is only important to call out Drumpf for any hypocrisy; he also said he would work with the incoming president if and where their policy positions intersected.

"Mr. Drumpf said that Wall Street, dangerous, doing bad things, he wants to re-establish Glass-Steagall legislation. I look forward to working with him," Sanders said.

The Vermont senator's speech also added to the growing demand among Democrats that Drumpf drop Steve Bannon, his incoming White House chief strategist. Bannon, while serving as executive chairman of Breitbart News, pegged the news outlet as the "platform for the alt-right," which is known for anti-Semitic politics and ties to white nationalism. Almost 170 House Democrats earlier in the day signed a letter demanding Drumpf fire Bannon.

"We will not be involved in the expansion of bigotry, racism, sexism," Sanders said. "Mr. Drumpf, we are not going backwards in terms of bigotry. We are going forward in creating a nondiscriminatory society."

The speech had the makings of one made by a leader of the Democratic Party. But Sanders shied away from fully hinting at running for president again. Asked whether he would run for president in 2020, Sanders demurred.

"The last thing the American people are worried about is who's going to run in 2020," Sanders said.