Chatter about Muslim registries and bans erupted again following recent violence in Europe and Turkey linked to terrorist organizations in late December last year. Afterwards, President Trump reiterated his certainty that banning Muslim immigrants, or halting immigration from countries with a history of extremism, is the only way to protect Americans from terrorism. Although a number of factors about a potential ban or registry will guide whether the ultimate framework is legally sound, the law is relatively clear—a ban or registry will likely survive legal challenge.
The biggest questions that remain unanswered about the plans of the Trump administration include: 1) what a ban/moratorium/registry will look like, 2) how it will be categorized, and 3) to whom will it apply? For instance, will it be based on religion or country of origin? Will it apply to all nationals of a foreign country, both immigrants and nonimmigrants? Refugees? Males only? Can we expect age restrictions? Finally, will it be a ban or a registry—or something new altogether?
Right now, the legal provisions guiding the analysis of potential prohibitions include: 1) the creation of the plenary power doctrine, 2) how/if the plenary power doctrine is constrained by other constitutional principles, 3) application of the plenary doctrine by political branches—namely the NSEERS program—and 4) statutory authority.
The Chinese Exclusion Act and resultant plenary power doctrine provide a strong legal basis supporting the legality of a bans/registries. Harking all the way back to the late 1800s, the Supreme Court reviewed the now famous Chinese exclusion cases, ultimately upholding the constitutionality of a troubling series of federal laws that banned immigration of Chinese people, and made resident Chinese individuals deportable unless they could show proof of residency in addition to securing testimony from a white witness.
By deferring to the judgment of the political branches, the Court established the plenary federal power to exclude non-citizens, essentially allowing Congress to discriminate based on race, nationality, or any other factor knowing their actions would be shielded from judicial review. The court reasoned that the plenary power—or full and complete power— of political branches in this area of the law emanated from the government’s prerogatives over national security, territorial sovereignty, and self-preservation. Sound familiar?
President Trump’s campaign rhetoric mirrors this analysis. In the context of immigration, the Supreme Court uses this doctrine today in American immigration and national security jurisprudence to refrain from intervening because Congress and the executive branch have complete power in this arena.
Fun fact: the Chinese Exclusion Acts were never overruled, ostensibly still making them good law. The eventual repeal of the the Acts and related laws came about because of political and diplomatic pressure around WWII—in no way due to legal challenges.
Constitutional Protections and the Plenary Doctrine
Our nation’s legal precedent in cases asserting plenary power paints a grim future for the likelihood that constitutional challenges to a potential ban or registry will succeed. Thus far, the plenary power is not constrained in any way by equal protection considerations, due process, or the First Amendment.
It is hardly the case that the Supreme Court is entirely hands-off when it comes to immigration and national security—they are not. In fact, there is a rich history of case law surrounding immigration and national security, but they do grant an enormous amount of deference to the political branches.
Within the dearth of immigration and national security case law, there is not one clear instance of the Supreme Court using constitutional principles to limit federal admission or exclusion policies.
In the 1977 Fiallo v. Bell decision, the Supreme Court upheld an immigration law that discriminated on the basis of gender and marital status, denying immigration benefits to unmarried fathers, but not unmarried mothers. Again, this law was later repealed by Congress, but not rejected legally by the Supreme Court, effectively establishing the ability of a law to discriminate based on gender.
Later, in the mid 1980s, the 11th Circuit court relied on many ‘classic’ plenary cases to hold in Jean v. Nelson that noncitizens who were not yet admitted into the United States have no constitutional rights connected to their applications, and must accept whatever privileges are granted by Congress. This holding solidified Congress’ ability to circumvent some constitutional protections for noncitizens.
Around 2000, the plenary power was also used to support laws detaining and deporting Muslims on the basis of ‘secret evidence’ or evidence the government could not reveal to the deportee or their counsel for national security reasons. As a result, it is constitutionally permissible for Congress to deny a number of constitutional provisions like the Fourth and Fifth Amendments, to deny review of deportation, and to withhold evidence.
Application of the Plenary Doctrine
Perhaps the most influential immigration and national security policy indicating the breadth of and deference to the plenary power in this area erupted during the decade following 9/11, when it was used to defend a broad range of surveillance, questioning, and detention provisions for noncitizens—notably the aforementioned NSEERS program.
The Department of Justice and later the Department of Homeland Security (it wasn’t yet formed) created the National Security Entry-Exit Registration System (NSEERS) program. The most notable features were the clear racial, national origin, and religious criteria that guided provisions requiring certain noncitizens—namely, non-immigrant males over the age of 16 from countries on President G.W. Bush’s list of terrorist-supporting countries—to submit fingerprints and photos, and to check in at regular intervals for interviews.
A number of federal courts of appeal rejected challenges to NSEERS in the early 2000s. Among those challenges were allegations of violation of equal protection, Fourth and Fifth Amendment evidentiary procedures, and of the Attorney General’s administrative authority to enact the program.
Citing the plenary power doctrine, the 2nd Circuit Court of Appeals used a 2008 challenge to bolster deference to the political branches in this area of the law. Essentially, the court held that immigration regulation is fundamentally different from other legal contexts and that nationality classification is unavoidable in immigration matters—even the concept of ‘alien’ is a nationality-based classification. Thus, discrimination based on national origin is not only legally permissible in this context, but is unavoidable in this area of the law.
The Department of Homeland Security eventually discontinued NSEERS, and late last year, President Obama dismantled its regulatory structure to make it more difficult for the Trump administration to reactivate it—but it’s important to note that there is no legal reason prohibiting its resurgence.
The Immigration and Nationality Act—the preeminent immigration law—also points to broad deference in support of the seemingly bulletproof executive branch when dealing with immigration and national security.
INA 212(f) allows the president to suspend immigration of specific groups of people upon his finding that the admission of a particular group is detrimental to national security interests. Simply put, this provision allows the president to state that a group is detrimental to national security and suspend entry of whomever he chooses, for as long as he wants, based on whatever evidence he feels is sufficient, including no evidence.
In a 2014 executive order, President Obama used this provision to ban both immigrants and nonimmigrants from south Sudan and the surrounding regions due to widespread human rights abuses. Earlier, President Clinton and President G.W. Bush used it to ban entry of noncitizens from Burma, Bosnia Herzegovina, and Kosovo. The use of this provision in the past makes it especially fair game for use in the future, and it requires absolutely no Congressional authority to do so.
A Light at the End of the Tunnel
Even though options for legal recourse seems bleak, there are nonetheless a number of other factors that will influence how anti-Muslim sentiment materializes under the Trump administration.
First, our vetting processes are extremely thorough—significantly more so than during the Bush Administration and the NSEERS days.
Second, there is more robust support for Muslims—specifically refugees—than immediately following 9/11. The grave humanitarian reasons for rejecting a total ban of Muslims from countries like Syria are persuasive and support a circumspect ban, if any.
Third, the makeup of the Supreme Court could guide a different interpretation or application of the plenary power doctrine to decisively apply long-standing constitutional principles to cases involving immigration and national security—even in limited circumstances.
Finally, depending on the policies of the Department of Justice, the federal courts may be more or less likely to strike down challenges. Although a Jeff Sessions’ led DOJ is highly unlikely to be more deferential to the rights of immigrants, there is a chance that federal courts may unilaterally push back against rigid DOJ guidance and allow constitutional considerations to play a more active role in the federal circuits.
It is critical to remember that although the legality of the plenary doctrine is supported broadly, it is historically rooted in the desire to exclude a disfavored minority—foreigners—and not in immigration or national security law per se. The legal community has an obligation to continue to challenge these kinds of provisions to ensure that American jurisprudence balances our interests in territorial sovereignty and national security with careful protection of the most vulnerable populations’ rights and privileges within the bounds of the law. To do so adequately requires close scrutiny of laws and conscientious review of equal protection and due process considerations that constitute the fabric of our society and our rule of law.