“offensive and unconstitutional” · legal and political strategies for defeating president...
TRANSCRIPT
“Offensive and Unconstitutional”1
Legal and political strategies for defeating President Trump’s Muslim
immigration ban2
By
XXXXXXXXX Harvard Law School
Class of 2017
1 Vice President Mike Pence responding to President Trump’s call for a ban on Muslim immigration, quoted by Madeline Conway, Trump stokes fears he’ll pursue Muslim ban, POLITICO (Dec. 22, 2016), http://www.politico.com/story/2016/12/trump-muslim-ban-kellyanne-conway-232912. 2 Photo courtesy of circa.com
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Table of Contents
FORWARD...............................................................................................................................................................2I.INTRODUCTIONANDBACKGROUND.........................................................................................................4II.APUREENTRYBANONALLMUSLIMS.....................................................................................................7
A.IMMIGRATIONANDTHECONSTITUTION:THEPLENARYPOWERDOCTRINE............................................................9B.LITIGATIONSTRATEGY#1:ATTACKTHEPLENARYPOWERDOCTRINE.................................................................10C.LITIGATIONSTRATEGY2:FIRSTAMENDMENTESTABLISHMENTCLAUSECLAIMS..............................................121.PossibleRuling#1:TheEstablishmentClauseStopsattheBorder........................................................132.PossibleRuling#2:StrictScrutinyAppliesbuttheGovernmentMeetsItsBurden..........................143.PossibleRuling#3:StrictScrutinyAppliesandtheGovernmentDoesNotMeetItsBurden.......154.PossibleRuling#4:GovernmentProhibitedfromDecidingWhoisaMuslim....................................155.TheEstablishmentClauseandaFaciallyNeutralBanthatResultsinaDisparateImpactAgainstMuslims..................................................................................................................................................................16
D.SECTIONIICONCLUSION..................................................................................................................................................18III.REINTRODUCINGTHENATIONALSECURITYENTRY-EXITREGISTRATIONSCREENING(NSEERS)PROGRAMORSOMESIMILARMEANSOFTRACKINGMUSLIMS......................................18
A.BACKGROUNDONNSEERS.............................................................................................................................................19B.OPTION1FORPRESIDENTTRUMP:ATTACKTHERULETHATREMOVEDTHERULE...........................................231.UsetheCongressionalReviewActtoOverridetheRemovalRule............................................................232.ChallengetheRemovalRuleinCourt...................................................................................................................27
C.OPTION2FORPRESIDENTTRUMP:USENOTICE-AND-COMMENTTOISSUEANEWRULE.................................32D.OPTION3FORPRESIDENTTRUMP:USETHELEGISLATIVEPROCESSTOPASSALAWTHATCREATESAREGISTRY.................................................................................................................................................................................33E.SECTIONIIICONCLUSION.................................................................................................................................................38
IV.EXTREMEVETTING.....................................................................................................................................39A.LITIGATIONSTRATEGY#1:ATTACKEXTREMEVETTINGUNDERTHEINA...........................................................39B.LITIGATIONSTRATEGY#2:ARGUETHATEXTREMEVETTINGLAWSWOULDVIOLATETHEESTABLISHMENTCLAUSE.....................................................................................................................................................................................41C.LITIGATIONSTRATEGY#3:ARGUETHATGOVERNMENT’SEXERCISEOFDISCRETIONUNDEREXTREMEVETTINGVIOLATESTHEESTABLISHMENTCLAUSE.........................................................................................................42D.LITIGATIONSTRATEGY#4:ATTACKTHESCOPEOFEXTREMEVETTING...............................................................44E.SECTIONIVCONCLUSION.................................................................................................................................................45
V.SUSPENDIMMIGRATIONFROMTHEMIDDLEEAST..........................................................................46A.IMMIGRATIONBANSENACTEDBYLAW.........................................................................................................................46B.BANSBYPRESIDENTIALPROCLAMATION.....................................................................................................................47C.REDUCINGREFUGEEINTAKETOZEROUNDERTHE1980REFUGEEACT..............................................................49D.SECTIONVCONCLUSION...................................................................................................................................................51
VI.CONCLUSION..................................................................................................................................................51
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Forward
Written March 21, 2017 – 52 Days after the implementation of President Trump’s first Muslim Ban
This paper began the day after the 2016 Presidential Election. I had been planning to
write about how technology should play a role in immigration reform, but I woke up on
November 9th to a country that was no longer interested in any immigration reform that did not
involve mass deportations, denial of refuge to refugees, and all manner of police state tactics
premised on racial and religious profiling. To me, a former Coast Guard officer who had seen the
inhuman reality of immigration enforcement firsthand, President Trump’s rhetoric on the
campaign trail represented the very worst of America. I decided to write this paper to help those I
knew who would be fighting for the very best. It would be a roadmap to mounting legal
challenges against one of the President’s most vile campaign promises: the Muslin Ban.
Coming back from final exams and winter break, I absconded to the library and wrote
this paper over ten cold, rainy days in January. My advisor received my first complete draft on
January 20th – Inauguration Day. By the January 27th, the hypothetical situation imagined in
Section V had become a reality and this paper began making its way to lawyers and law
professors around the country, including to Lee Gelernt of the ACLU. Since then, it has helped
inform multiple projects; most notably the Harvard Immigration and Refugee Clinic’s amicus
brief to the E.D.N.Y case Darweesh v. Trump.
A fair portion of this paper is outdated at this point, as the Ban became a reality after its
completion, the courts barred it, it came back in weakened form, and the appeals on that version
are still pending. Additionally, much ink has been spilt on nearly all of the topics covered within.
However, I don’t see that as a drawback. Rather, it highlights two important points. First, the
contents of this paper proved pertinent, and thus valuable. Second, that these topics have since
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been covered elsewhere is a testament to the broad swath of the citizenry that saw some ugly
happen and decided to stand up, decided to join the resistance. I am proud to have been there to
witness it and, I hope, to have helped in some small way.
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I. Introduction and Background
President Trump’s election sent shockwaves of fear through immigrant and minority
communities throughout the U.S. When not insulting reporters or starting Twitter wars with
celebrities, President Trump spent a sizeable portion of his campaign advocating for draconian
immigration reforms and other discriminatory domestic policies that promise to trample civil
liberties for broad swaths of the population. His favorite talking point seemed to be the “beautiful
wall” he intends to build between the U.S. and Mexico,3 insisting Mexico will pay for this wall
or face a ban on the export of remittances.4 The President of Mexico, Enrique Peña Nieto,
disagreed with this plan after then-candidate Trump’s visit to Mexico, sparking another Twitter
war.5 President Trump is also fond of saying that he will deport a record number of criminal
aliens, though it has been unclear how he defines criminal.6 Some of his assertions would seem
to indicate that he means extremely minor violations by those present in the U.S. without proper
immigration documents.7
While all of these statements and policies are troubling, one of President Trump’s most
frightening pronouncements for immigration and civil rights advocates has been his proposed
ban on Muslims entering the country. President Trump campaigned on the vague promise of
banning Muslims from entering the U.S., arguing that doing so would prevent terrorists from
3 Amy Chozick & Manny Fernandez, Trump Seeks Path for Mexico Barrier. But Will It Be a ‘Big, Beautiful Wall’?, N.Y. TIMES (Dec, 22, 2016), https://www.nytimes.com/2016/12/22/us/trump-mexico-wall.html. 4 See Bob Woodward & Robert Costa, Trump reveals how he would force Mexico to pay for border wall, WASH. POST (Apr. 5, 2016), https://www.washingtonpost.com/politics/trump-would-seek-to-block-money-transfers-to-force-mexico-to-fund-border-wall/2016/04/05/c0196314-fa7c-11e5-80e4-c381214de1a3_story.html?utm_term=.a656d34f93dc. 5 Elise Foley, Mexican President Enrique Peña Nieto and Donald Trump Are Now In A Twitter Fight: So did you guys discuss who’s paying for the wall or not?, HUFF. POST (Sep. 1, 2016), http://www.huffingtonpost.com/entry/mexican-president-trump-border-wall_us_57c882ade4b078581f11fc13. 6 Ben Casselman, There Aren’t 2 to 3 Million Undocumented Immigrants With Criminal Records For Trump to Deport, FIVETHIRTYEIGHT (May 14, 2016), https://fivethirtyeight.com/features/there-arent-2-to-3-million-undocumented-immigrants-with-criminal-records-for-trump-to-deport/. 7 Id.
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coming into the country.8 Originally announced as an outright ban, the President and his advisors
have since changed both rhetoric and policy multiple times.9 At various points he has continued
to talk about an outright ban, advocated for registering and tracking Muslims, declared that he
would ban immigration from many of the countries in the Middle East, and proclaimed that he
will refuse to accept any Syrian Refugees.10 His justification for these various takes on the
Muslim ban seems to be that several high profile terror groups, such as ISIS and Al Qaeda, are
Islamist organizations, so banning Muslims will prevent terrorists from entering the country.11
Additionally, ISIS has a large presence in Syria and Iraq, both predominantly Muslim countries,
so banning Muslims will keep ISIS out.12 While the logic behind these justifications is dubious
at best, not to mention morally questionable, it is unlikely that the President will walk back from
some form of a Muslim ban. Unfortunately, it is a popular proposal with a wide swath of the
population.13 Additionally, the President-Elect made the ban a major campaign promise, so he
needs to seek at least some form of the ban to save face.
Since the election, there have been indications that President Trump is drafting a plan to
implement some form of a ban. Shortly after winning the election, he met with Kansas Secretary
of State Kris Kobach.14 The two were photographed together while Kobach was holding a memo
8 Jeremy Diamond, Donald Trump: Ban all Muslim travel to U.S., CNN (Dec. 8, 20150), http://www.cnn.com/2015/12/07/politics/donald-trump-muslim-ban-immigration/. 9 Conway supra note 1. 10 Abby Phillip & Abigail Hauslohner, Trump on the future of proposed Muslim ban, registry: ‘You know my plans’, WASH. POST (Dec. 22, 2016), https://www.washingtonpost.com/news/post-politics/wp/2016/12/21/trump-on-the-future-of-proposed-muslim-ban-registry-you-know-my-plans/?utm_term=.4359dd52c4c3; see also Kris Kobach, Kobach Strategic Plan for First 365 Days; see also Caroline Kenny, Photo of Trump-Kobach meeting reveals apparent DHS proposal, CNN (Nov. 21, 2016), http://www.cnn.com/2016/11/21/politics/kris-kobach-donald-trump-department-of-homeland-security/. 11 Immigration: Donald J. Trump’s Vision, https://www.donaldjtrump.com/policies/immigration (last visited Jan. 18, 2017). 12 Id. 13 Steven Shepard, Polls show Trump with historically low approval ratings, POLITICO (Jan. 17, 2017), http://www.politico.com/story/2017/01/trump-low-approval-rating-transition-233678. 14 See Kenny, supra note 10.
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that appeared to be notes for the meeting.15 Several news organizations published a photo of the
memo, entitled, “Kobach Strategic Plan for First 365 Days” (Kobach Memo).16 This plan calls
for reinstating the failed National Security Entry-Exit Registration Screening (NSEERS)
program, denying admission to Syrian Refugees, and forcing applicants from “high risk areas” to
undergo “extreme vetting.”17 It is unknown if the President will adopt this plan, either in full or
in part, but it does provide insight into both the possible policy proposals he is considering and
fact that he still seems to prioritize enacting some sort of Muslim ban.
Any Muslim ban should trouble all Americans. It is a clear attack on civil liberties. Time
has shown that any erosion in civil liberties creates the potential for discrimination and
suppression for all groups. One only need to look at the incarcerations of labor leaders and
immigrants during the Red Scares or the Japanese internment during World War II to see how
easily such hateful policies can be employed against fellow citizens.18 Additionally, if allowed to
stand, a ban based on religion would erode or destroy the protections enshrined in the First
Amendment.19 Finally, the world is facing a refugee and humanitarian crisis in Syria and other
parts of the globe it is un-American not to do our part to alleviate it.20 America was built by
refugees, with many of our first settlers arriving after having fled religious persecution.
Furthermore, the U.S. has been quick to trumpet things like its role in ending the Holocaust when
claiming the moral high ground. It is time to live up to those boasts of superiority and do our part
15 Kobach, supra note 10. 16 Id. 17 Id. 18 See, e.g., Dennis v. United States, 341 U.S. 494 (1951); Toyosaburo Korematsu v. United States, 323 U.S. 214 (1944). 19 U.S. CONST. amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”). 20 UNHCR: Figures as a Glance, http://www.unhcr.org/en-us/figures-at-a-glance.html (last visited Jan. 18, 2017).
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to end the suffering of the 21.3 million refugees in this world.21 Nearly six million have fled
from Syria alone.22
No matter how the President chooses to proceed, he will face opposition. This paper is
meant to be a preliminary road map to that opposition. It will discuss the various ways that the
Trump administration and Congress may seek to enact a ban and then detail the possible legal
and political strategies for fighting those efforts. Not all of them will be successful. However,
even failing strategies can be effective at stalling policies while awaiting political change and
depleting resources available to fight on other fronts. In order to address the myriad technical
policies that President Trump could pursue, the four sections that follow group these potential
policies into four broad strategies that President Trump could use to enact a Muslim ban: an
outright ban on Muslims entering the U.S., tracking “all aliens from high risk areas” through
NSEERs or some similar program, adding “extreme vetting” questions to entry interviews
designed to ferret out Muslims, and banning immigration from certain “high risk countries” in
the Middle East. While a pure Muslim ban, whether by presidential fiat or legislation, and
extreme vetting are unlikely to survive legal challenges because they likely violates the
Establishment Clause of the First Amendment, NSEERs or a similar program will be difficult to
revive but likely legal and arguments against a ban that focuses on countries instead of religion
face challenging, though potentially not insurmountable, precedent that has allowed such bans in
the past.
II. A Pure Entry Ban on All Muslims
Initially, President Donald Trump seemed to advocate for a compete ban on Muslims
entering the country. On December 7, 2015, in the wake of the San Bernardino shootings, then-
21 Id. 22 Syrian Refugees: A Snapshot of the Crisis – In The Middle East and Europe, http://syrianrefugees.eu/ (last visited Jan. 18, 2017).
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candidate Trump called for a “total and complete shutdown of Muslims entering the United
States until our country’s representatives can figure out what is going on.”23 By “what is going
on,” he referred to the “great hatred towards Americans by large segments of the Muslim
population.”24 The statement earned widespread condemnation, including from Gov. Mike Pence,
now Trump’s incoming vice president, who called it “offensive and unconstitutional.”25
President Trump then toned down his rhetoric and began focusing his comments on other plans,
such as “extreme vetting.26
Since the election, President Trump’s advisors have toned down that message and made it
seem as though a full ban was never really on the table. For example, Campaign Manager
Kellyanne Conway has said that the President intended to focus on banning citizens from
countries believed to be exporting terrorists instead of banning all Muslims.27 President Trump’s
nominee for Attorney General, Senator Jeff Sessions, said in his confirmation hearing that he is
against a comprehensive Muslim ban.28 Given this evolution, it seems unlikely that the President
will pursue a complete ban and that he will instead adopt other policy provisions such as
reinstating some version of the NSEERS program. However, this paper assesses a ban
nonetheless for the purpose of addressing all potential possibilities. President Trump has never
retracted his previous statements, so there is still the chance that he will pursue a full ban.29
Additionally, assessing a full ban is useful as a means of discussing the unique Constitutional
23 Uri Friedman, Six answers to the question behind Donald Trump’s immigration ban, THE ATLANTIC (Jun. 16, 2016), http://www.theatlantic.com/international/archive/2016/06/trump-muslims-ban-orlando/486950/. 24 Donald J. Trump Statement on Preventing Muslim Immigration (Dec. 7, 2015), https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement-on-preventing-muslim-immigration. 25 See Conway supra note 1. 26 Id. 27 Kevin Liptak & Shachar Peled, Obama administration ending program once used to track mostly Arab and Muslim men, CNN (Dec. 22, 2016), http://www.cnn.com/2016/12/22/politics/obama-nseers-arab-muslim-registry/. 28 Matt Apuzzo et al., Hearing Highlights: Sessions Questioned on Links to Xenophobia, N.Y. TIMES (Jan, 10, 2017), https://www.nytimes.com/2017/01/10/us/politics/trump-confirmation-hearings.html?emc=edit_na_20170110&nlid=71828083&ref=cta&_r=0. 29 See Conway supra note 1.
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questions posed by any law or policy that raises the specter of religious discrimination in the
field of immigration law.
a. Immigration and the Constitution: The Plenary Power Doctrine
The power to regulate immigration is unique in Constitutional law, in that it is not
explicitly mentioned anywhere in the Constitution but has been read in as a nearly unrestricted
power for the federal government. In the famous 1889 case Chae Chan Ping v. United States,
also known as the Chinese Exclusion Case, the Supreme Court determined that the power to
deny noncitizens entry into the U.S. belongs to the federal government under what has become
known as the Plenary Power Doctrine.30 Under the Plenary Power Doctrine, powers inherent in
sovereignty belong to the federal government if not otherwise noted in the Constitution. The
Court determined immigration to be one of those powers inherent to sovereignty.31 In 1893, the
Court noted in Fong Yue Ting that this power also includes the absolute right to expel
noncitizens from the country.32
Left undecided by these cases is which branch of the federal government holds this
Plenary Power of sovereignty. Both cases make clear that Congress holds it with respect to its
right to make laws impacting immigration.33 However, it is unclear if the President could
exercise similar constitutional power to unilaterally ban Muslims by Executive Order. This
question need not be resolved under the current immigration framework, as the Immigration and
Nationality Act (INA) hands down that power to the President in Section 212(f):
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all
30 See Chae Chan Ping v. United States, 130 U.S. 581 (1889). 31 Id. 32 See Fong Yue Ting v. United States, 149 U.S. 698 (1893). 33 See id.; See also Chae Chan Ping, 130 U.S. at 581.
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aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.34
As such, either a law or Executive Order banning Muslims would have a potential hook under
both Constitutional and immigration law.
However, these hooks do not guarantee that these policies will be upheld in the face of
other constitutional challenges. As declared in INS v. Chadha, Congress may hold the Plenary
Power, but it must utilize “a constitutionally permissible means of implementing that power.”35
In making challenges to a Muslim Ban, there are two potential lines of arguments that
could be used against any sort of Muslim ban or registry. One involves the fact that a Muslim
ban likely incurs the wrath of the Establishment Clause of the First Amendment and is discussed
below. The other deals with attacking the Plenary Power Doctrine itself.
b. Litigation Strategy #1: Attack the Plenary Power Doctrine
The time might be ripe to challenge the unchecked power of the Plenary Power Doctrine
by overturning the antiquated cases that form the foundation of the precedent in this area of law.
Most of these cases are over 100 years old. The Court decided Chae Chan Ping in 1889 and
Fong Yue Ting in 1893. Additionally, these cases failed to fully deal with the true nature of
sovereignty in this country. Unlike in parliamentary systems where parliament is sovereign,
sovereignty in the U.S. is divided among several parties. True, Congress has a wide swath of the
sovereign powers under Article I of the Constitution, but so too does the President under Article
II.36 The Supreme Court may check both of those powers under Article III and its decision in
Marbury v. Madison (1803).37 The 10th Amendment reserves powers to the States and the
34 Immigration and Nationality Act § 212(f), 8 U.S.C. § 1182(f) (2013). 35 See INS v. Chadha, 462 U.S. 919, 941 (1983). 36 See U.S. CONST. art. I, II. 37 See U.S. CONST. art. III; see also Marbury v. Madison, 5 U.S. 137 (1803).
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People, while the 9th Amendment reserves “certain rights” exclusively for the People.38 The
common retort to these claims, including that noted in Chae Chan Ping, is that immigration
needs to be uniform, so Congress must hold the power.39 However, immigration has never really
been “uniform” in either law or in practice. For example, each Circuit effectively has different
immigration law based on the precedent in that Circuit that differs from the Board of
Immigration Appeals. 40 Asylum grant rates vary wildly between courts, as do visa approvals by
consulate officer.41 As noted by the Department of Justice, “…the fact that differences exist in
case law among the various circuit courts of appeals means that the location of an Immigration
Court hearing may ultimately determine the substantive outcome of a case.”42 Additionally,
Congress may hold the right, but, as in other areas of the law, that does not inherently mean that
such a right should not and is not constrained by the balance of restrictions placed upon Congress
and the balancing of the rights of other parties involved.43
There have also been significant changes to Constitutional and Administrative Law since
the Court decided even the most recent major cases. The court decided Knauff v. Shaughnessy
(1950) prior to Goldberg v. Kelley (1970) and Matthews v. Eldridge (1976). The Knauff decision
held that people attempting to enter the U.S. do not deserve due process rights because admission
is a privilege and not a right.44 Since Goldberg killed the rights/privileges distinction in other
forms of Administrative Law, there is an argument that such reasoning should no longer apply in
38 U.S. CONST. amends. IX, X. 39 See Chae Chan Ping, 130 U.S. at 581. 40 See Daniel L. Swanwick, Location, Location, Location: Venue for Immigration Appeals in the U.S. Circuit Courts, IMMIGRATION LAW ADVISOR, Vol. 5 No. 1 (Jan. 2011), https://www.justice.gov/sites/default/files/eoir/legacy/2011/02/03/vol5no1.pdf. 41 TRAC Immigration, http://trac.syr.edu/immigration/reports/judgereports/00051ELP/index.html (last visited on Jan. 18, 2017); see also Adjusted Refusal Rate, https://travel.state.gov/content/dam/visas/Statistics/Non-Immigrant-Statistics/RefusalRates/FY16.pdf ((last visited on Jan. 18, 2017). 42 See Swanwick supra note 40. 43 See Chadha, 462 U.S. at 919. 44 Knauff v. Shaughnessy, 338 U.S. 537 (1950).
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immigration as well.45 All of these claims together are probably not enough to completely
eliminate the Plenary Power Doctrine, but they might be sufficient to convince the Court that the
Plenary Power should not be inviolable and absolute.
c. Litigation Strategy 2: First Amendment Establishment Clause Claims
Petitioners can also make an Establishment Clause claim, which will likely succeed in
preventing an outright Muslim ban. Normally, any law explicit requirement for Muslims to
register would trigger the Establishment Clause for two reasons. First, a ban is a preferencing
based on religion, which is prohibited.46 Second, a ban would require the government to
determine who qualifies as a Muslim, which is also prohibited.47 If the ban triggers the
Establishment Clause, it then faces strict scrutiny.48 To survive strict scrutiny, the government
would need to show that a Muslim ban serves a compelling government interest and that it is
necessary for the fulfillment of that interest.49 However, immigration presents a host of unique
issues and has often been ruled to be beyond the scope of other constitutional protections.50
Following this line of precedent, President Trump’s administration will make several arguments
designed to shield immigration from the Establishment Clause. While the Supreme Court has
held that the government may limit or ban immigration on the basis of national origin, it has not
had the occasion to deal with limits or bans based solely on religion. It could choose to deal with
this issue in four ways.
45 Goldberg v. Kelley, 397 U.S. 254 (1970). 46 See Everson v. Board of Education, 330 U.S. 1 (1947). 47 See Watson v. Jones, 80 U.S. 679 (1871). 48 See Larson v. Valente, 456 U.S. 228 (1982); see also Brandenburg v. Ohio, 395 U.S. 444, 447–48 (1969) (per curiam). 49 See, e.g., Bolling v. Sharpe, 347 U.S. 497 (1954); Korematsu, 323 U.S. at 214; United States v. Carolene Products Co., 304 U.S. 144 (1938). 50 See, e.g., Knauff, 338 U.S. at 537; Fiallo v. Bell, 430 U.S. 787 (1977).
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1. Possible Ruling #1: The Establishment Clause Stops at the Border
First, the Court could decide that the Establishment Clause stops at the border and, as
such, strict scrutiny does not apply. Such an outcome is unlikely. To arrive at that decision, the
court would have to employ the legal fiction that immigration law deals inherently with
situations at or outside the borders of the U.S. and then find that the Establishment Clause does
not apply beyond the border. Though the Court has not yet dealt with the question of whether the
Establishment applies extraterritorially, the Second Circuit has and rule that it does in Lamont v.
Woods.51 “The court held that the Establishment Clause applied to a USAID program that
provided aid to Catholic and Jewish schools abroad.”52 Additionally, there is a good case to be
made that though the decision might be made outside the U.S., the effect would be felt internally
in that there would be fewer Muslims in the U.S. as a result of state action.
Furthermore, the Establishment Clause should apply extraterritorially because a plain
reading of the First Amendment expressly limits government action without any note of
territorial limitation on that prohibition.53 It is true that the Supreme Court has limited the
applicability of certain prohibitions on government action beyond the borders of the United
States.54 However, those instances all pertained to purely individual rights and are thus
distinguishable from the Establishment Clause. The Constitution limits the federal government in
two different ways: protecting certain individual rights, and prohibiting certain government
actions. For example, the Sixth Amendment provides an individual right to a “fair and speedy
trial.”55 This right limits the government because it cannot violate the right of the individual.
51 Lamont v. Woods, 948 F.2d 825 (1991). 52 Jessica Powley Hayden, Mullahs on a Bus: The Establishment Clause and U.S. Foreign Aid, THE GEORGETOWN LAW JOURNAL Vol. 95:171 (2006). 53 See U.S. CONST. amend. I. 54 See United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) 55 See U.S. CONST. amend. XI.
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Individual rights require an individual with standing to challenge a government action by seeking
to have that right vindicated. This process is inherently internal to the country. Conversely, the
Establishment Clause does not protect any one individual’s rights in a contest with the
government. Rather, it patently forbids the government from taking action. “Congress shall make
no law respecting an establishment of religion.”56 There is no need for an individual to assert the
right and the prohibition is not limited to the confines of the country. The action is expressly
banned. Again, the Supreme Court has not dealt with this issue, but it would likely find that the
Establishment Clause, and thus strict scrutiny, applies beyond the border.
2. Possible Ruling #2: Strict Scrutiny Applies but the Government Meets Its Burden
Second, the Court could rule that strict scrutiny applies, but that it is met in this case.
Strict scrutiny still allows the government to take action that is necessary to its compelling
interests.57 The government will likely argue that its exercise of sovereignty and the need to
protect itself are vital interests and that it is up to the government, not the courts, to determine
what is necessary to accomplish those ends. This line of reasoning sounds like a gutting of strict
scrutiny, but a court could argue that it is instead strict scrutiny applied to the unique reality of
immigration. While not a perfect corollary, Korematsu highlights how the Court can be willing
to allow overly broad discriminatory policies when dealing with the intersection between
immigration and national security.58 In that case, the Court ruled that a racial classification was
necessary to the compelling government interest of safeguarding the homeland during WWII.59
As a result, the military was vindicated in its internment of 117,000 people of Japanese dissent,
56 See U.S. CONST. amend. I. 57 See Larson, 456 U.S. at 228 (1982); see also Brandenburg, 395 U.S. at 447. 58 See Korematsu, 323 U.S. at 214. 59 Id.
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including approximately 78,000 U.S. citizens.60 However, there is a good argument to be made
that banning Muslims is not necessary by proving that there are other means of accomplishing
the goal, such as closing borders to all immigration or specifying national origin in place of
religion.
3. Possible Ruling #3: Strict Scrutiny Applies and the Government Does Not Meet Its Burden
Third, the Court could rule that strict scrutiny does apply and that the government’s
burden is not met here. In any other type of case, this outcome would seem the most likely.
However, the interplay of the Plenary Power Doctrine makes immigration a unique case. The
best argument for petitioners here is that the ban is not necessary, as stopping terrorism and
controlling the borders are clear cut vital government interests. Petitioners would just need to
show that are other, less discriminatory ways of accomplishing the same exact thing. The
government will likely argue that none are as effective or as cheap. It may be possible to refute
these claims, though it would require diligent research into the alternatives. For example,
petitioners may be able to show that a total ban results in more illegal immigration, which costs
more to police than other alternatives and allows in too many potential terrorists. Again though,
such arguments require further empirical research.
4. Possible Ruling #4: Government Prohibited from Deciding Who is a Muslim
Fourth, and most likely, the Court could ignore the religious preferencing issue and rule
that any law banning Muslims “offends the Constitution because it would require the
government to decide who belongs to the Muslim faith.”61 That is, even if the government can
ban Muslims from entering by means of the Plenary Power or a territorial limitation on the
60 Japanese Rellocation During World War II, NATIONAL ARCHIVES, https://www.archives.gov/education/lessons/japanese-relocation (last viewed on Jan. 18, 2017). 61 Ira C, Lupu & Robert W. Tuttle, The Legality of Muslin Exclusion, Part II: The Establishment Clause, AMERICAN CONSTITUTION SOCIETY ACSBLOG (Dec. 10, 2015), http://www.acslaw.org/acsblog/the-legality-of-muslim-exclusion-part-ii-the-establishment-clause.
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Establishment Clause, the First Amendment prohibits it from making an independent
determination on who is a Muslim. Thus, it would have to rely on self-identification. Professors
Lupu and Tuttle of George Washington Law School have popularized this argument. Under
Watson v. Jones, the government is not allowed to decide matters that are “strictly and purely
ecclesiastical.”62 Making a determination on whether or not a person is in fact a Muslim would
be deciding a “matter which […] the conformity of the members of the church to the standard of
morals required of them,” which, according to Watson, is precisely what the Court meant by
“strictly and purely ecclesiastical.”63
5. The Establishment Clause and a Facially Neutral Ban that Results in a Disparate Impact
Against Muslims
If the ban does not explicitly say that no Muslims may enter the U.S. but has that
practical effect, it may run afoul of the Lemon Test. Announced in Lemon v. Kurtzman, the
Lemon test says that in order to avoid nullification on Establishment Clause grounds, a law must
have a secular legislative purpose, its primary effect must not be to inhibit or advance religion,
and it cannot involve excessive government entanglement with religion.64 A facially neutral ban
that results in a disparate impact against Muslims still satisfy this test, though it will depend on
the specifics of the ban and there are several legal arguments for why any ban with a disparate
impact should fail.
The government would likely argue that a law that has the practical effect of banning all
Muslims, or whose only effect is to ban some Muslims, meets the first prong of secular purpose
because it would be primarily designed to stop terrorists. As a counter, petitioners could argue
that all of the campaign rhetoric was about banning Muslims. However, even a purely
62 See Watson, 80 U.S. at 679. 63 Id. 64 Lemon v. Kurtzman, 403 U.S. 602 (1971).
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discriminatory effect in this instance probably doesn’t kill a law because the terrorism issue is a
real concern. That said, petitioners might be able to show that there are more effective ways to
accomplish the same goal, but it remains to be seen how the Court would rule.
With regard to primary effect, even a law that survived the secular legislative purpose
prong may get struck down if it can be shown not to have another primary effect. That is, a law
that has the result of banning all Muslims or only banning Muslims will have to show that it has
another actual effect, such as actually stopping terrorism. This prong presents both timing and
counterfactual issues. The timing issue depends on when the case is brought. If a case is brought
before the law has actually been implemented, then the Court would likely look at hypothetical
potential to stop terrorism. If it is brought some time after the law has been in effect, the Court
may require the government to show that the law has actually stopped terrorist threats. That
would lead to the counterfactual issue, as it is hard to show that something that would otherwise
have happened did not as a result of the ban. It is a common problem with deterrent measures. It
is hard to quantify what they actually deterred. Additionally, there is the potential that other pre-
existing government programs would have blocked any terrorist who may have been blocked by
the ban.
The government entanglement prong is essentially an administrability test. In Lemon, the
court said that laws violated the entanglement prong if they required, “comprehensive,
discriminating, and continuing surveillance.”65 It would be impossible to assess this prong
without seeing the language of the ban. For example, a national origin ban would not violate this
prong. Such bans have been upheld numerous times, including with NSEERS, whish is discussed
below. However, any ban that waded into the specific religious beliefs of an applicant, or
attendance at specific religious services probably fails this prong. The government could 65 Id.
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potentially subvert this prohibition by extending the ban to include the performance of
objectively acts, such as having attended services at a mosque, read portions of the Koran, or
performed any number of acts that may be indicative of being a Muslim. However, these
distinctions likely fail as well, as they are clearly a proxy for making an ecclesiastical
determination and they are bound to be exceptionally overbroad. Given the number and strength
of Establishment Clause arguments available to petitioners, it seems all but certain that the Court
would strike down a direct and explicit
d. Section II Conclusion
Again, it is unlikely that President Trump will seek a full and explicit ban on Muslims
entering the country, but should he change his mind, any such ban would likely be found
unconstitutional. Petitioners may be able to crack the government’s heretofore-inviolable right to
regulate immigration under the Plenary Power, as many of the key cases underpinning that
doctrine are ancient and there have been significant changes in constitutional law since even the
most recent were decided. If that strategy fails, petitioners can make strong arguments that the
Establishment Clause of the First Amendment prohibits a ban on the basis of religion, both
because it shows government preference and, more powerfully, because it forces the government
to engage in the “purely ecclesiastic” effort of determining who qualifies as a Muslim.66 Though
this issue presents a novel question for the Supreme Court, it is likely that petitioners would
triumph and the ban would be struck down.
III. Reintroducing the National Security Entry-Exit Registration Screening (NSEERS)
program or some similar means of tracking Muslims
President Trump may also seek to create a registry of Muslims entering the U.S. In fact,
his team has discussed reviving the now-dead National Security Entry-Exit Registration 66 See Watson, 80 U.S. at 679.
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Screening (NSEERS) program to do just that and the Kobach Memo advocates for reinstitution
of NSEERS.67 NSEERS was a program that the government established in the immediate wake
of the September 11th attacks to track certain non-citizens within the U.S.68 It was a complete
failure. Over the nine years that NSEERS was in service, it proved inefficient, difficult to use,
and incapable of functioning properly on the government computers used by immigration
officers.69 Additionally, many critics argued that it served a discriminatory purpose and violated
the civil liberties of those it tracked.70 Perhaps most condemning, NSEERS never helped the
U.S. catch any terrorism suspects, despite its steep price tag of $10 million a year. The
government shut it down in 2011.
a. Background on NSEERS
NSEERS was actually two registration programs.71 Under the Port-of-Entry program, all
individuals from listed countries had to register when entering and leaving the country.72 The
Domestic Registration program mandated that all males from listed countries aged 16 and over
register with and periodically report to immigration officials.73 This program included those men
from listed countries who were already legally present in the country.74 The government would
announce the countries for which it required registration by “listing” them in the Federal
Register.75 It “unlisted” countries in the same manner.76
67 See Kobach supra Note 10. 68 See Kaveh Waddell, America Already Had a Muslim Registry, THE ATLANTIC (Dec. 20, 2016), https://www.theatlantic.com/technology/archive/2016/12/america-already-had-a-muslim-registry/511214/. 69 See DEPARTMENT OF HOMELAND SECURITY OFFICE OF INSPECTOR GENERAL, INFORMATION SHARING ON FOREIGN NATIONALS: BORDER SECURITY (REDACTED) (Feb. 2012), https://www.oig.dhs.gov/assets/Mgmt/2012/OIGr_12-39_Feb12.pdf. 70 See ACLU Comment of Obama Rescinding Muslim and Arab Special Registration Program, ACLU (Dec. 22, 2016), https://www.aclu.org/news/aclu-comment-obama-rescinding-muslim-and-arab-special-registration-system 71 See Kaveh supra note 68. 72 Special Registration Procedures, ICE (Sep. 11, 2002), https://www.ice.gov/doclib/nseers/SRProc.pdf. 73 See Kaveh supra note 68. 74 Removal of Regulations Relating to Special Registration Process for Certain Nonimmigrants, 81 Fed. Reg. 94231 (proposed Dec. 22, 2016) (to be codified at 8 C.F.R. pt. 214, 264). 75 Id.
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For symbolic effect, NSEERS went into operation precisely a year after the September
11th Attacks, on September 11, 2002.77 It started out as a DOJ program, but soon moved to the
newly formed Department of Homeland Security.78 The government originally listed five
countries as requiring registration under the program: Libya, Iraq, Iran, Sudan, and Syria.79
Eventually the list would grow to include 25 countries.80 All but one, North Korea, were
majority Muslim Countries.81 However, the government stopped using the Domestic registration
program after only a year and three months, shutting it down in December 2003.82 At the time, it
claimed that other tools, such as US-VISIT, were more capable and that the domestic registration
program was largely redundant.83 By 2011, the government found the port-of-entry program
outdated and shut it down as well, saying that DHS had, “implemented several automated
systems that capture arrival and/or exit information, making the manual entry of this data via the
NSEERS registration process redundant, inefficient and unnecessary.”84 A 2012 DHS Inspector
General Report went further, noting the program’s “cumbersome design and frequent outages,”
despite it’s high price tag of $10 million a year.85 Additionally, it noted that:
CBP officers also told us that there was little value in the interviews they conducted with NSEERS registrants. NSEERS interviews rely on self-disclosure, and CBP officers noted that information obtained from fingerprints, flight manifests, travel and identification documents, and intelligence sources is more valuable in determining who poses a potential national security risk. CBP officers also noted that the time spent to process
76 See, e.g., Removing Designated Countries From the National Security Entry-Exit Registration System (NSEERS), 76 Fed. Reg. 23830 (proposed Apr. 28, 2011). 77 Kaveh supra note 68. 78 Id. 79 See National Security Entry-Exit Registration System: Stengthening Our Entry-Exit Registration System To Protect Americans From Possible Terrorist Threats, DEPARTMENT OF JUSTICE (Jun. 5, 2002), https://www.justice.gov/archive/ag/speeches/2002/natlsecentryexittrackingsys.htm 80 See 76 Fed. Reg. 23830. 81 Kaveh supra note 68. 82 See Fact Sheet: Changes to National Security Entry/Exit Registration System (NSEERS), DHS (Dec. 1, 2003), http://www2.gtlaw.com/practices/immigration/news/2003/12/01a.pdf; see also 8 C.F.R. § 264 (2003). 83 See 76 Fed. Reg. 23830 84 DHS Removes Designated Countries from NSEERS Registration, DHS (May 2011), https://www.dhs.gov/dhs-removes-designated-countries-nseers-registration-may-2011. 85 See DHS supra note 69.
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NSEERS registrations was an inefficient use of resources. They said that their time could be better spent on more targeted interviews to gather intelligence, identify illegal aliens, or intercept smugglers.86
However, the government did not fully dismantle the program, but rather just “unlisted” all of
the 25 previously listed countries.87 The regulatory framework remained in place and, in theory,
DHS could have just add countries to the list at any time to bring the program back to life.
The program finally died on December 23, 2016. The Obama Administration published a
final rule that day that removed the regulatory framework for NSEERS. The official summary of
the rule reads:
The Department of Homeland Security (DHS) is removing outdated regulations relating to an obsolete special registration program for certain nonimmigrants. DHS ceased use of the National Security Entry-Exit Registration System (NSEERS) program in 2011 after finding that the program was redundant, captured data manually that was already captured through automated systems, and no longer provided an increase in security in light of DHS's evolving assessment of the threat posed to the United States by international terrorism. The regulatory structure pertaining to NSEERS no longer provides a discernable public benefit as the program has been rendered obsolete. Accordingly, DHS is removing the special registration program regulations.88
The announcement went on to provide a complete regulatory history of the program and a
detailed analysis of how NSEERS has been “outmoded” by other programs that are less invasive
and more effective.89
It is unsurprising that Kobach would argue to reinstate the program. In addition to being
the type of vocal anti-immigration advocate who would love such a program, he has a personal
attachment to it: he led the team that established and administered NSEERs during his time
working at the Department of Justice.90 He has a vested interest in resurrecting this specific
program because it was his program and its rehabilitation would mean personal vindication.
86 Id. 87 See 76 Fed. Reg. 23830. 88 81 Fed. Reg. 94231. 89 Id. 90 Kaveh supra note 68.
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Kobach defended the program, even when others in the government, including then-Secretary of
State Colin Powell and Undersecretary of Homeland Security for Border and Transportation Asa
Hutchinson, the man who took over the program when it was transferred to DHS, claimed that it
was a waste of resources and caused more harm than good.91 As a fellow Kansas lawmaker
noted about NSEERS, “It was very clear that it was Kris Kobach’s baby.”92 President Trump’s
rhetoric of a Muslin ban is the opportunity Kobach has been looking for to rewrite the history on
his own massive personal failure.
Though the regulations are gone, NSEERS could still be revived. The underlying
statutory authority under which the regulations were promulgated still exists. The government
created the NSEERS regulations under the authority granted to it by Section 263(a) of the
Immigration and Natural Act (INA), 8 U.S.C. §1303(a).93 Section 263(a) grants the Secretary of
Homeland Security the power to:
…prescribe special regulations and forms for the registration and fingerprinting of (1) alien crewmen, (2) holders of border-crossing identification cards, (3) aliens confined in institutions within the United States, (4) aliens under order of removal, (5) aliens who are or have been on criminal probation or criminal parole within the United States, and (6) aliens of any other class not lawfully admitted to the United States for permanent residence.94
Absent a modification of this section, which, given the Republican hold on Congress and the
White House, is highly unlikely, NSEERS still has a legal hook. Thus, the Trump administration
could seek to reinstate the old regulations by either attacking the rule that removed the
regulations or by reissuing the original NSEERs regulations.
91 See Amanda Terkel, Potential Trump Attorney General Created a Muslim Registry During The Bush Administration, HUFF. POST (Nov. 17, 2016), http://www.huffingtonpost.com/entry/kris-kobach-muslim-registry_us_582cd1e2e4b058ce7aa901ff. 92 Id. 93 Immigration and Nationality Act § 263(a). 94 Id.
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b. Option 1 for President Trump: Attack the Rule that Removed the Rule
President-Elect Trump could potentially reinstate the NSEERS regulations by attacking
the final rule that removed those regulations. Changes or removals to regulations need to be
done by regulations must themselves follow the requirements outlined in the Administrative
Procedures Act (APA).95 In order to remove the NSEERS regulations, the Obama administration
issued a Notice of Final Rulemaking.96 If the Trump administration successfully challenges the
removal rule, then the Federal Register reverts to the pre-removal rule status quo and the
NSEERS regulations reappear. President Trump can challenge this rule by either getting
Congress to overturn it via the Congressional Review Act or by mounting a court challenge to
rule as arbitrary and capricious for failing to go through Notice-and-Comment. He is likely to
succeed if he used the Congressional Review Act, so long as he does so within the 60 session
day window required by the Act, but he has much worse chance of succeeding on a legal
challenge to the removal rule.
1. Use the Congressional Review Act to Override the Removal Rule
Overturning the removal regulation by means of the Congressional Review Act (CRA) is
President Trump’s easiest option and is also the one most likely to survive subsequent
challenges. After the Supreme Court eliminated the legislative veto in INS v. Chadha, Congress
passed the Congressional Review Act in 1996 to streamline its own internal process for passing
laws that undo recently enacted regulations.97 If Congress acts within 60 session days of the day
that the administration issues the final rule, it can pass a joint resolution to veto the regulation by
95 Administrative Procedures Act, 5 U.S.C. § 553 (b) and (c) (2015) 96 81 Fed. Reg. 94231. 97 See Stuart Shapiro, The Congressional Review Act, rarely used and (almost always) unsuccessful, THE HILL (Apr. 17, 2015), http://thehill.com/blogs/pundits-blog/lawmaker-news/239189-the-congressional-review-act-rarely-used-and-almost-always.
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a simple majority.98 The resolution still needs to go through presentment, so it is largely
symbolic, as the sitting president will almost never veto a regulation issued his or her own
administration.99 However, the removal regulation presents that rare instance when there will be
a different administration in the White House within window that Congress is authorized to use
this power. This law provides some additional help in this case. While Congress can always send
such a resolution to the President, the CRA prevents a filibuster in the Senate.100
In reality, Congress is unlikely to use the CRA to overturn the removal regulation. The
CRA has only ever been used successfully one time, during the transition from President Clinton
to President Bush.101 Congress used it then to override the highly unpopular ergonomics
regulations issued by the department of labor.102 Several commentators have noted that Congress
likely would have found a way to overturn these regulations anyways, as they were very costly
and many Democrats disliked them.103 To be sure, this transition is likely to see greater use of
the CRA. Congress is much more divided than it has been at any point since the signing of the
CRA.104 However, there are other more major targets that Congress will likely attack and there
is only a limited window in which Congress can do so.105
Additionally, using it on a removal rule would set a precedent that is sure to make even
Republicans squeamish. It would call attention to removal rules and raise their status to that of
regular rules, making it harder to argue that they are merely agency procedure and thus do not
98 Congressional Review Act § 251, 5 U.S.C. § 801 (1996). 99 Id. 100 Id. 101 See Shapiro supra note 97. 102 Id. 103 See The Mysteries of the Congressional Review Act, 122 HARV. L. REV. 2162. 104 Christopher Ingraham, A stunning visualization of our divided Congress, WASH. POST. (Apr. 23, 2015), https://www.washingtonpost.com/news/wonk/wp/2015/04/23/a-stunning-visualization-of-our-divided-congress/?utm_term=.69654d633329. 105 Stacy Cowley, With Trump’s Signature, Dozens of Obama’s Rules Could Fall, N.Y.TIMES (Nov. 15, 2016), https://www.nytimes.com/2016/11/16/business/with-trumps-signature-obamas-rules-could-fall.html.
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need to go through Notice and Comment. Given the deregulatory stance of the both
Congressional Republicans and President Trump, it is unlikely that either is going to push for
using the CRA in this instance.106
Finally, using the CRA to revive the regulations for a long-dead and ineffective program
probably stretches President Trump’s patience for nuance and wonkish legal battles. He seems
to favor creating new programs with his own name on them and staging battles that give at least
the appearance of a big victory. It is doubtful that he wants to fight over the regulations for a
program like NSEERS. Rather, he just wants to set one up. For all of these reasons, it is
unlikely that Congress and the President will use the CRA to attack the removal rule.
If Congress does use the CRA, then petitioners should make a legal argument in court
that the CRA does not apply to rules deleting regulations. The first hurdle in taking such a case
to court would be establishing standing and reviewability, which will be especially difficult in
this case. Regarding reviewability, Section 805 of the CRA states, “No determination, finding,
action, or omission under this chapter shall be subject to judicial review.”107 Additionally, the
joint resolution is an act of Congress, not an administrative procedure by an agency, and internal
Congressional procedures are typically considered non-justiciable so long as the final product
meets the requirements set out in the constitution (Bicameralism and Presentment).108 As such,
acts under the CRA are likely not reviewable. On standing, it would be difficult to convince a
judge that anyone suffered an injury in fact under Data Processing.109 Democratic Members of
Congress could claim standing, as the misapplication of the CRA would greatly reduce their
106 See Budget, http://paulryan.house.gov/issues/issue/?IssueID=9974; see also Amita Kelly & Barbara Sprunt, Here Is What Donald Trump Wants To Do In His First 100 Days, NPR (Nov. 9, 2016), http://www.npr.org/2016/11/09/501451368/here-is-what-donald-trump-wants-to-do-in-his-first-100-days. 107 5 U.S.C. § 805. 108 See U.S. CONST. art. I; see also Chadha, 462 U.S. 919. 109 See Association of Data Processing Service Organizations, Inc. v. Board of Governors of the Federal Reserve System, 397 U.S. 150 (1970).
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power, but this argument likely falls into the political realm as non-justiciable. Similarly,
noncitizens at risk of being forced to register under NSEERS might make a claim by arguing that
there is an increased risk of threatened injury under Clapper v. Amnesty International.110 The
government would likely cite both the Plenary Power over immigration and the fact that any
such claim would be made against a presumptively legal statute, not a regulation, and therefore
should fail. Given all of these issues, it is unlikely that a legal case would survive a motion to
dismiss.
Should any petitioners get into court, they could claim that this does not fall within the
jurisdiction of the CRA since it was issued under Section 533(b)(A) of the APA. If it does not
fall under the CRA, it is not subject to the modified parliamentary procedure that would shield it
from a Democratic filibuster. In the Notice of Final Rule published for the removal rule, DHS
claimed that it was issuing this rule under APA section 553(b)(A) (5 U.S.C. 553(b)(A)) for “rules
of agency organization, procedure, or practice.”111 It made note of this provision because that
section allows agencies to issue rules without Notice-and-Comment, which DHS did in this
instance.112 Section 804(3)(B) of the CRA excludes from the definition of rule, “any rule of
agency organization, procedure, or practice that does not substantially affect the rights or
obligations of non-agency parties.”113 If DHS properly issued this rule under APA Section
553(b)(A), then the first part of the exclusion in the CRA is met. The remaining question would
be whether or not the removal rule substantially affects the rights or obligations of non-agency
parties. The defense should win here as well, as the purpose at the time the rule was issued did
not substantially effect the rights of any non-agency parties, as the rule was technical in nature
110 See Clapper v. Amnesty International USA, 568 U.S. _ (2013). 111 81 Fed. Reg. 94231. 112 See Id.; see also 5 U.S.C. § 553(b)(A). 113 5 U.S.C. § 804(3)(B).
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and merely deleted regulations that were no longer used. Here Republicans could counter that
the removal rule substantially affected the rights of the President-Elect, but that is a stretch. He
did not have any real presidential “rights” at the time DHS published the rule and calling the
regulations to implement NSEERS a “right” is unlikely to succeed, given that President Trump
still has the underlying statutory authority to issue new regulations for these purposes under the
INA.114
If the first argument fails, petitioners could argue that the CRA should not apply to
repeals because a plain reading of the statute would make their inclusion untenable under Section
801(b)(2).115 The section says that agencies cannot issue substantially similar rules rejected by
joint resolution.116 It seems incredulous that the intent of the statute would have been to
permanently ban agencies from repealing regulations.
It should be noted that all of these arguments can and should be made by Congressional
Democrats during any deliberations on a joint resolution under the CRA. In doing so, they
would set themselves up for a negotiation on the future uses of the CRA, circumvent the standing
requirement (as they clearly have standing to make statements in Congress by virtue of their
membership), and would help establish the legislative record as being conflicted on the issue.
Given that this rule is not a major rule and that there are several other major rules that are already
targets of the new Congress and Administration, these Congressional tactics may persuade
Congressional Republicans to let this rule stand.
2. Challenge the Removal Rule in Court
The second way that President Trump could challenge the rule that removed the NSEERS
regulations would be to bring a suit against DHS, arguing that the agency’s action was arbitrary
114 See Immigration and Nationality Act § 263(a). 115 5 U.S.C. § 801(b)(2). 116 Id.
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and capricious under Motor Vehicles Manufacturers Association v. State Farm for failing to go
through Notice-and-Comment.117 Under State Farm, rules that rescind regulations are subject to
the same arbitrary and capricious review as rules that issue regulations.118 Rules to repeal
regulations normally must go through Notice-and-Comment, just like any other rule.119
However, the APA allows agencies to issue rules without Notice and Comment if they are
merely “rules of agency organization, procedure, or practice.”120 The Notice of Final
Rulemaking in the Federal Register noted that DHS deemed this removal rule to be a procedural
rule, saying:
This final rule is a procedural rule promulgated for agency efficiency purposes. DHS is removing regulations related to an outdated, inefficient, and decommissioned program. Thus, removing these regulations, which have not been used since 2011, reflects the current practice and procedure of DHS and will not affect the substantive rights or interests of the public.121
The APA also allows agencies to forgo Notice-and-Comment rulemaking when doing so would
be, “impracticable, unnecessary, or contrary to the public interest.”122 DHS also cited this
provision in its Notice of Final Rulemaking, saying:
DHS finds good cause to issue this rule without prior notice or comment, as such procedures are unnecessary. The removal of these regulations will have no substantive effect on the public because the regulations relate to a program which has not been utilized since 2011 and which has been made obsolete by DHS's more advanced and efficient processes, programs, and systems.123
Finally the APA requires a 30 day delayed effective date for substantive rules.124 DHS subverted
this requirement, saying, “This rule, however, is merely procedural and does not impose
117 Motor Vehicles Manufacturers Ass’n v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983). 118 Id. 119 5 U.S.C. § 553; see also State Farm, 538 U.S. at 408. 120 5 U.S.C. § 553(b)(A). 121 81 Fed. Reg. 94231. 122 5 U.S.C. § 553(b)(3)(B). 123 81 Fed. Reg. 94231. 124 5 U.S.C. § 553(d).
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substantive requirements; thus DHS finds that a delayed effective date is unnecessary.125
President Trump could seek to challenge any or all of these determinations as arbitrary or
capricious.
Before detailing the mechanics of and defenses to a legal challenge, it is important to note
that mounting a challenge may actually be contrary to President Trump’s strategic objectives and
defending against one might be contrary to the strategic objectives of many would-be opponents.
President Trump has made deregulation a top priority for his administration.126 The removal rule
is an act of deregulation and any legal fight to undo this act would likely result in precedent that
would make it nearly impossible to use similar tactics in the future. Winning in this instance
would essentially remove a powerful tool in his fight to deregulate. Conversely, a win for
petitioners would mean that this tool would remain available for the President. It is beyond the
scope of this paper to consider all of the various positions opponents might hold on other
regulations, but it is an important fact to consider in any legal battle surrounding regulation.
In order to mount a legal challenge, President Trump and other concerned parties would
need to enlist petitioners who could show standing. Under Data Processing, petitioners must
show that they have suffered an injury in fact as a result of the agency action and that their claim
is arguably within the zone of interest that the underlying statute is intended to protect.127 The
most clear cut injury would be someone who has been harmed by the removal of NSEERS.
However, the program has been dead for several years and it is nearly impossible to show that
NSEERS would have stopped that harm from occurring. The injury could also be the removal of
125 81 Fed. Reg. 94231. 126 See Kelly supra note 106. 127 See Data Processing, 397 U.S. at 150; see also National Credit Union Administration v. First National Bank & Trust Co., 522 U.S. 479 (1998).
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the authority to conduct the program, in which case the petitioner would need to be a government
official who otherwise had that authority.
This particular scenario raises another interesting question, as the primary parties seeking
to overturn the removal rule would actually be the parties required to defend it in court.
Petitioners would sue DHS and the administration in order to seek a court remedy. President
Trump and his Secretary of Homeland Security would be defendants. In theory, the President
could rig the outcome by ordering his administration not to defend against the challenge, as
President Obama did with the Defense of Marriage Act.128 The Secretary could also refuse to
commit adequate resources to defend against the challenge or limit the arguments that the
General Counsel of DHS would be allowed to make, citing the need to ensure that the specific
outcome of this case did not limit agency power moving forward. Either way, the case could
result in an inadequate defense that all but ensures that the rule gets overturned. Such an outcome
is unlikely though, as a loss in this case could limit the government’s future ability to repeal
regulations without Notice and Comment. However, should the President pursue such a path,
there may be an opportunity for coordinated campaign of amicus briefs. Any such campaign
should be well-rounded, including both substantive and procedural arguments from a wide array
of attorneys, such as high profile Constitutional and Administrative Law lawyers who could
argue that the procedural posture of the case sets bad precedent in both fields.
Such a lawsuit would also face a steep challenge in terms of reviewability. Since there
has been a change of administration since the Notice of Final Rulemaking, there is a strong
argument that the issue has not been exhausted. Additionally, the underlying statutory authority
still exists, which implies that there is still an agency action available in the form of issuing a
128 Charlie Savage & Sheryl Gay Stolberg, In Shift, U.S. Says Marriage Act Blocks Gay Rights, N.Y. TIMES (Feb. 23, 2011), http://www.nytimes.com/2011/02/24/us/24marriage.html?pagewanted=all.
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new rule. Still, there is a presumption of reviewability.129 However, DHS has issued a final rule,
so the Court will likely find that the issue is reviewable.
Finally, such a challenge should fail on the merits and the court should rule that the
reasons cited by DHS were sufficient. This case is easily distinguishable from State Farm. In
that seminal case, the agency rescinded a major rule about seatbelts for failing to consider the
potential impact and the availability of alternatives, such as airbags.130 In this case, NSEERS had
been out of use for several years.131 As such, it is highly unlikely that comments would not have
changed the government’s mind on using NSEERS. The alternatives, programs like US-VISIT,
have already been considered through independent rulemaking and are already in place.132 The
underlying statutory authority and its employment in the NSEERS regulations implies that the
authority to create a registry is fluid and that it may be employed, changed, or removed as the
executive sees fit.133 As such, it should be allowed to issue regulations when threats arise and
then remove them when the threat has passed. Allowing agencies to remove unused regulations
without the costly burden of notice and comment is a highly functionalist approach to the reality
that the government bureaucracy is bloated with byzantine regulations that no longer serve the
intended purpose.134
The plaintiffs would likely counter that these arguments might be sound in another
context, but that they were not the actual impetus for this agency action. President Obama and
his administration had several years to remove these regulations. Yet, they waited until the
incoming Trump administration insinuated that it planned to revive NSEERS shows that it was
129 See Abbott Laboratories v. Gardner, 387 U.S. 136 (1967). 130 State Farm, 538 U.S. at 408. 131 Kaveh supra note 68. 132 See 81 Fed. Reg. 94231. 133 Immigration and Nationality Act § 263(a). 134 See Over-Regulated America, ECONOMIST (Feb. 18, 2012), http://www.economist.com/node/21547789.
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done to hinder the practical ability of the new administration to carry out its agenda. This
argument will likely fail, because it requires an inquiry into motive of both a former president
and former agency officials. The real question is not one of motive, but of process and scope of
authority.135 Additionally, there is a plausible argument for the President’s decision to wait
several years before dismantling the program, as he may have been waiting to prove the
predication that stopping NSEERS would not limit the government’s ability to police its borders
and protect its citizens. Had it become apparent that there was still a need for NSEERS, DHS
could have turned it back on without going through the cumbersome rulemaking process. Having
tested the hypothesis that the program was unnecessary for five years and deeming it to be
proven, it is entirely plausible and logical that DHS decided it was safe to dismantle the
regulatory architecture.
c. Option 2 for President Trump: Use Notice-and-Comment to Issue a New Rule
President Trump could attempt to reinstate NSEERS by issuing a new rule to revive the
old regulations. As President, he has the authority to issue regulations regarding registration and
fingerprinting of certain classes of noncitizens under INA Section 263(a).136 However, any new
regulations would need to go through Notice-and-Comment and the agency officials responsible
for crafting the regulations and managing this process must be diligent in following the process
to avoid an arbitrary and capricious challenge.137 Additionally, the final rule cannot trample
constitutional rights.138 Both of these restrictions on the agency pose the best bases for attacking
potential regulations.
135 State Farm, 538 U.S. at 408. 136 Immigration and Nationality Act § 263(a). 137 State Farm, 538 U.S. at 408; see also 5 U.S.C. § 706(2)(a). 138 5 U.S.C. § 706(2)(b).
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The best option for influencing the outcome and setting up potential legal challenges is to
flood the agency with comments that offer reasonable alternatives or concerns that DHS must
then address. Doing so will both slow down the process and open up the potential for lawsuits if
the final rules do not adequately consider the comments. However, it should be noted that
participating in the process does open up the potential that the agency will diligently address all
comments and issue a well-crafted rule. Such a rule may be harder to challenge in court than one
that clearly violates constitutional protections or commits some other fatal error. That said, it is
impossible to know how DHS will proceed, so it is probably better to take an active role in the
process than to boycott it and hope that the agency makes fatal mistakes without prompting.
The rules may also be subject to constitutional challenges. It will be difficult to challenge
the new regulations if they merely mirror the old NSEERS ones because those regulations have
already survived several legal challenges and they were crafted in a way that adhered to the
limits of constitutional power.139 The underlying regulations for NSEERS created a framework
for requiring people to register. Under that framework, the government either listed or de-listed
specific countries. However, the Trump administration will run afoul of the constitution if they
seek to list religious groups instead of countries. As discussed above in Section II.c., efforts to
single out one religious group or to make a determination that an individual belongs to a
religious group violate the Establishment Clause.140
d. Option 3 for President Trump: Use the Legislative Process to Pass a Law that Creates a
Registry
The President could always seek to reinstate NSEERS by getting Congress to pass a law
that reinstates the former regulations. While Congress may delegate regulatory authority to
139 See, e.g., Kandamar v. Gonzales, 464 F.3d 65 (1st Cir. 2006). 140 See supra Section II.c.; see also Watson, 80 U.S. at 679.
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Executive agencies, it always maintains the authority to regulate through law under Article I of
the Constitution.141 Such laws are not subject to the restrictions on regulations under
Administrative Law. However, such a law will be difficult to pass and may still face
constitutional challenges.
A Democratic Senate filibuster will make a new law codifying NSEERS almost
impossible to pass. Under Senate rules, each Senator has the right to hold the floor
indefinitely.142 Choosing to do so to prevent a vote to proceed on a piece of legislation is known
at a filibuster.143 Under modern Senate rules, a Senator must merely state her intent to filibuster
to prevent legislation from getting a vote.144 However, the Senate may vote to invoke what is
known as cloture with 60 votes.145 Cloture limits debate on the subject piece of legislation to 30
hours, after which it goes up for a vote.146 While the legislation itself only needs a simple
majority to pass, the motion to invoke cloture needs 60 votes, so most legislation will not pass
unless 60 Senators support it.147 Republicans currently control 52 senate seats, so they have a
majority but not one immune to filibuster.148 Democrats will likely to object to any legislation
involving registries, especially an obsolete and dismantled program like NSEERS, so it is
unlikely that nine Democrats would betray their party to vote for such a law.149
Additionally, Congressional Republicans are not likely to push for a vote on a program
like NSEERS, as it has already proven to be a failure, it cost a lot of money, it will further clog 141 See U.S. CONST. art. I; see also Chadha, 462 U.S. 919. 142 See Valerie Heitshusen, The Legislative Process on the Senate Floor: An Introduction, CRS (Aug. 13, 2014), http://www.senate.gov/CRSpubs/5c970bdd-ed33-446c-a646-cda331d7b108.pdf. 143 Id. 144 Id. 145 See Christopher M. Davis, Invoking Cloture in the Senate, CRS (Apr. 24, 2015), http://www.senate.gov/CRSpubs/be873e40-a966-4feb-9d72-cf23a93cbe46.pdf. 146 See Walter J. Oleszekm Cloture: Its Effect on Senate Proceedings, CRS (May 19, 2008), http://www.senate.gov/CRSpubs/271e65d0-6862-4e62-938c-8e65249ae391.pdf. 147 See Davis supra note 145. 148 See Senate History, https://www.senate.gov/history/partydiv.htm (last viewed on Jan. 20, 2017). 149 See Jordain Carney, Senate Dems introduce bill to block Trump Muslim registry, THE HILL (Jan. 5, 2017), http://thehill.com/blogs/floor-action/senate/312955-senate-dems-introduce-bill-to-block-trump-muslim-registry.
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the immigration system with non-serious immigration offenders at a time when Republicans are
seeking to increase the number of criminal alien deportations, and its functionality has been
replaced by other systems. NSEERS did not lead to any convictions for terrorists.150 After setup
costs, it costs the taxpayer $10 million a year.151 In spite of never identifying any real terror
suspects, it led to 13,800 deportations, overwhelmingly for minor immigration infractions.152 The
stated priority of the incoming Trump administration is to deport record numbers of criminal
aliens.153 The Republican Congress is worried about the national debt and tax rates, so will be
looking for ways to accomplish the President’s agenda without spending extra money.154 Each
deportation costs approximately $10,070.155 Given the choice between paying an additional
$148,966,000 (= $10,070 X 13,800 + $10,000,000) just to maintain the current criminal
deportation level or devote that money to deporting criminal aliens, it seems likely that Congress
will opt not to spend the money on NSEERS. Finally, other government programs, such as US-
VISIT and the Student and Exchange Visitor Information System (SEVIS), now largely perform
the functions once performed by NSEERS.156 The only major differences in these programs are
that they do little to track people once they are in the U.S. and none of these systems is directly
targeted at people from Muslim countries.157 These are relatively minor practicalities, as the
functional capabilities are all present in these other systems.158 Even if they could overcome the
150 See Kaveh supra note 68. 151 Id. 152 Id. 153 See Brian Bennett, When Trump says he wants to deport criminals, he means something starkly different than Obama, L.A. TIMES (Nov. 14, 2016), http://www.latimes.com/politics/la-na-pol-trump-immigration-criminals-20161114-story.html. 154 See Budget supra note 106. 155 See Philip E. Wolgin, What Would It Cost to Deport 11.3 Million Unauthorized Immigrants?, CENTER FOR AMER. PROG. (Aug. 18, 2015), https://www.americanprogress.org/issues/immigration/news/2015/08/18/119474/what-would-it-cost-to-deport-11-3-million-unauthorized-immigrants/. 156 See 81 Fed. Reg. 94231. 157 Id. 158 Id.
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filibuster and win, it seems doubtful that Congressional Republicans are going to want to go
through floor fights that will publicize all the flaws and costs of a program like NSEERS.
It seems more probable that Congress and the President would create an entirely new
program if it decided to take a legislative route to the Muslim Registry issue. While it would be
impossible to predict the exact nature of such a hypothetical program, it may be helpful to
explore a couple potential challenges to any such legislation. First, any new legislation would be
subject to a renewed constitutional review by the courts, which would face the same issues
discussed above in the section on a direct Muslim ban. It will also be subject to review under the
Equal Protection Clause of the Fourteenth Amendment’s ban on racial classifications. The Court
would likely uphold a new law as constitutional, so long as it conformed with the basic tenets of
NSEERS, as Circuit Courts across the country upheld NSEERS without it ever getting to the
Supreme Court.159 As noted by the 1st Circuit in Kandamar v. Gonzales:
Nowhere is the scope of judicial inquiry more limited than in the area of immigration legislation. Indeed, the Supreme Court has “long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control.” The political character of this intrinsically executive function renders it “subject only to narrow judicial review.”160
The only hope for such a claim is that the President’s direct statements about establishing a
Muslim ban or registry will lead the Court to declare that the new law violates the Constitution
either for outrageous discrimination or the fact that it was driven by an impermissible
discriminatory motive under either the First or Fourteenth Amendments.
Under Washington v. Davis, the fact that a new NSEERS law is likely to have a disparate
impact is not enough to prove that it is unconstitutional under the First or Fourteenth
159 See, e.g., Kandamar, 464 F.3d at 65. 160 Id.
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Amendments.161 Since the new law will likely be written as facially neutral, petitioners will
need to prove that it was motivated by the intent to discriminate on either the basis of religion or
race.162 Normally, proving such motivation is extremely difficult.163 However, the President’s
numerous statements about enacting a Muslim ban may be enough to show discriminatory
motive. Such a case probably fails given the broad scope of the Plenary Power and the fact that
such a law would be rationally related to stopping terrorism.
Petitioners could also challenge enrollment under a new NSEERS law as outrageous
discrimination, though such a claim is unlikely to succeed. In Reno v. American-Arab Anti-
Discrimination Committee, the Supreme Court left open the possibility that a showing of
“outrageous” discrimination might be sufficient to trump the presumption of government
legitimacy in immigration cases.164 “[T]he possibility of a rare case in which the alleged basis of
discrimination is so outrageous that the foregoing considerations can be overcome.”165 However,
outrageous discrimination has never been successful in immigration or selective enforcement
cases.166 The burden on petitioners would be extremely high, as Reno compared it to the burden
on a criminal defendant in proving selective enforcement, “requiring a criminal defendant to
introduce “clear evidence” displacing the presumption that a prosecutor has acted lawfully.”167
Additionally, Reno did not even say that such an exception actually exists, just that there might
be the possibility that it exists, saying, “Whether or not there be such exceptions, the general rule
certainly applies here.”168 Finally, Reno dealt with deportation and defendants in deportation
hearings are entitled to greater constitutional protection than those seeking admission to the 161 See Washington v. Davis, 426 U.S. 229 (1976). 162 See id. 163 See, e.g., Mobile v. Bolden, 446 U.S. 55 (1980). 164 Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 491 (1999). 165 Id. 166 See, e.g., Kandamar, 464 F.3d at 65; Rajah v. Mukasey, 544 F.3d 427, 445 (2d Cir. 2008). 167 Reno, 525 U.S. at 491. 168 Id.
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country.169 Given these limitations, it seems unlikely that an outrageous discrimination claim
would work against a new NSEERS law.
e. Section III Conclusion
There are several ways that President Trump could seek to reinstate NSEERS, though
most are either not likely to succeed or consume vast amounts of time and resources. He could
attack the rule that dismantled the program’s regulatory framework, either by means of the
Congressional Review Act or through legal challenges. It is an open question if the CRA would
apply in this situation and he will be severely limited by time, other priorities, and the fact that
the President does not control Congress. Legal challenges pose difficult procedural questions, as
those seeking the rule to be overturned will be in office. Additionally, absent a decision from his
administration not to defend the government in court, the removal rule likely survives on the
merits because it is easily distinguishable from State Farm. The President could issue new
regulations to reestablish NSEERS, but doing so would require Notice-and-Comment, which
presents opportunities for opponents to slow and shape the regulation, as well as plant the seeds
of an arbitrary and capricious challenge. Any moves to include bans of religious groups in these
new regulations could trigger the Establishment Clause of the First Amendment. Finally, the
President could ask Congress to recreate NSEERS by law, though it will be nearly impossible to
do in the face of a Democratic filibuster in the Senate and such a new law would still be subject
to constitutional challenges if it directly targeted Muslims. Given all of the potential ways to
challenge or slow the recreation of NSEERS, it seems likely that the effort may not succeed and
will at least face massive delays if it does.
169 See id.; see also Landon v. Plasencia, 459 U.S. 21 (1982).
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IV. Extreme Vetting
During the campaign, President Trump spoke frequently about the need to institute
“extreme vetting” to ensure that terrorists are not allowed to enter the country. He made a major
policy announcement on August 15, 2016, in which he said the he would put in place an
“ideological screening test” to ensure that the country only admitted “those who share our values
and respect our people.”170 He went on to explicitly call this proposed process “extreme vetting,”
saying:
In the Cold War, we had an ideological screening test. The time is long overdue to
develop a new screening test for the threats we face today. I call it extreme vetting. I call
it extreme, extreme vetting. Our country has enough problems. We don't need more.171
He and his advisors stated that extreme vetting would be used to ensure that an applicant’s
beliefs and values conformed to U.S. values on religious freedoms, gay rights, gender equality,
and other social values.172 The Kobach Memo also included extreme vetting as a priority for the
first 365 days, saying that the President should, “Add extreme vetting for high risk aliens:
question them regarding support for Sharia law, jihad, equality of men and women, and the
United States Constitution.”173
a. Litigation Strategy #1: Attack Extreme Vetting under the INA
As proposed, extreme vetting appears to violate the INA because it would exclude
individuals for conduct that would not be illegal here in the U.S. Section 212(a)(3)(C) of the
INA states that:
170 Jeremy Diamond, Trump proposes values test for would-be immigrants in fiery ISIS speech, CNN (Aug. 15, 2016), http://www.cnn.com/2016/08/14/politics/donald-trump-isis-fight/index.html. 171 Id. 172 See Lauren Said-Moorhouse & Ryan Brown, Donald Trump wants ‘extereme vetting’ of immigrants. What is the US doing now?, CNN (Aug.16, 2016), http://www.cnn.com/2016/08/16/politics/how-us-vets-immigrants-donald-trump-extreme-vetting/. 173 Kobach supra note 10.
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An alien…shall not be excludable or subject to restrictions or conditions on entry into the United States under clause (i) because of the alien's past, current, or expected beliefs, statements, or associations, if such beliefs, statements, or associations would be lawful within the United States, unless the Secretary of State personally determines that the alien's admission would compromise a compelling United States foreign policy interest.174
Some commentators note that this provision might not have any practical power, as the current
version of U.S. Immigration Form DS-260 asks if aliens are a “member of or affiliated with the
Communist or other totalitarian party.”175 However, such analysis is wrong, as the ban on
members of the Communist Party or other Totalitarian parties is codified in the next section of
the INA, 212(a)(3)(D), which reads:
(D) Immigrant membership in totalitarian party.- (i) In general.
-Any immigrant who is or has been a member of or affiliated with the Communist or any other totalitarian party (or subdivision or affiliate thereof), domestic or foreign, is inadmissible.176
Section 212(a)(3)(C) does allow the Secretary of State to make a determination that admitting an
alien “would compromise a compelling United States foreign policy interest.”177 The new
Secretary of State could attempt to issue a blanket ruling that failure to pass extreme vetting
meets this exception, but that argument likely fails because the statute says “personally” with
reference to specific alien. There might also be a question of what constitutes a “compelling
United States foreign policy interest,” but the Court would likely leave such determinations to
the Executive Branch under its Article II powers and the Political Question Doctrine.178 As such,
the Secretary of State could likely use extreme vetting to exercise this authority, but would have
to do so on an individual basis. If extreme vetting were to be struck down under INA Section
174 Immigration and Nationality Act § 212(a)(3)(C). 175 Immigration Form DS-260 176 Immigration and Nationality Act § 212(a)(3)(D). 177 Immigration and Nationality Act § 212(a)(3)(C). 178 See Baker v. Carr, 369 U.S. 186 (1962).
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212(a)(3)(C), President Trump could ask Congress to change the law. As with other legislative
solutions, this proposal would face an uphill battle against a Democratic filibuster in the Senate.
b. Litigation Strategy #2: Argue that Extreme Vetting Laws Would Violate the
Establishment Clause
Extreme vetting can be attacked on First Amendment grounds because it violates the
Establishment clause. The government would argue that this type of vetting is constitutional,
pointing to the 1952 decision in Harisiades v. Shaughnessy, which upheld the deportation of an
alien for membership in the Communist party. Though Harisiades represents longstanding
precedent, it is unlikely to stand up to current First Amendment doctrine and corollary principles
in a case about extreme vetting. At the time the Court decided Harisiades, membership in the
Communist Party was a punishable criminal offense.179 As such, the government was technically
deporting an alien for violation of a U.S. law. The First Amendment has expanded greatly since
1952 and such a law would not survive today.180 Additionally, the Court relied on the now-
defunct rights/privileges distinction in this case, arguing that aliens might have a right to join the
Communist Party, but they did not have a right to stay here. Such distinctions are archaic in the
aftermath of Goldberg v. Kelly.181
The government would seek to distinguish this case from Harisiades on the grounds that
the latter dealt with a deportation, whereas extreme vetting deals with admission at the border.
Aliens are afforded greater due process rights in deportation hearings, as they have already been
admitted and have a reliance interest on their status.182 Someone at the border has not been
179 See, e.g., Dennis, 341 U.S. 494. 180 See, e.g., National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977). 181 See Goldberg, 397 U.S. at 254. 182 See Plasencia, 459 U.S. at 21.
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granted any status, so cannot claim a reliance interest.183 This argument will be difficult to
defeat, as there is a great body of case law to support the government’s position. However,
petitioners could make an argument that Harisiades should be further distinguished, as it dealt
with a verifiable action (joining the Communist Party), not a personal belief (equality of men and
women). Such “thought control” is prohibited by the First Amendment’s ban on laws “abridging
the freedom of speech.”184 Thought is not speech, yet it is required for speech and thus protected.
The First Amendment draws a line at action, namely the speech itself, which cannot be protected
without also protecting thought. Therefore the government ought not to be permitted to pas such
a law. The Supreme Court adopted this view in Palko v. Connecticut, writing, ‘Freedom of
thought... is the matrix, the indispensable condition, of nearly every other form of freedom.”185
c. Litigation Strategy #3: Argue that Government’s Exercise of Discretion Under Extreme
Vetting Violates the Establishment Clause
Even if the President achieves the ability to ask his desired extreme vetting questions, it
may be possible to limit the way the government can interpret those answers. Any questioning
scheme faces three issues. First, people can lie. If the answers were only to be taken at face
value, they would be easily defeated with prior preparation. While such a scheme would be
more legally defensible, it would be practically worthless.
Second, any type of “credibility review” used by the government is inherently subjective
and would face several legal challenges, though none are very likely to succeed. Such regimes
are already used in all consular and asylum determinations, so they are well-established aspects
183 See Shaughnessy v. Mezei, 345 U.S. 206 (1953); see also Knauff, 338 U.S. at 537. 184 See U.S. CONST. amend. I. 185 Palko v. Connecticut, 302 U.S. 319, 326-27 (1937).
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of the immigration system.186 This type of credibility determination is a bit unique in that it
pertains solely to what the person thinks, not what she has done. Most credibility reviews deal
with the likelihood that the person has done or said something in the past, or that some event
occurred. These are both acts and they are both verifiable with accurate proof. The events either
happened or they did not. Thought is different. It is impossible to know if the thought ever
happened, and it is impossible to assess its sincerity or importance to the person who had it.
However, the INA does already allow consular officers to make determinations on intent, such as
the intent to enter in order to commit crimes.187 One could argue that even those determinations
are dependent on future acts. Believing that Sharia law is a good thing is different than having
the intent to take action to bring Sharia law into effect here in the U.S. However, a favorable
ruling would require the Court to both adopt this distinction and choose to limit the broad
discretion granted to immigration officials. It has proven reluctant to do the latter in the past, so
this challenge is unlikely to succeed.188
Third, the government would have to clarify what determination it was making on the
basis of the answers to the questions, opening itself up further to legal challenges. Are the
answers used to determine that the applicant is a Muslim? Perhaps a radical Muslim? Either of
these determinations would be unconstitutional under the Establishment Clause of the First
Amendment, as discussed above in Section II.c.189 Are the answers used to determine that the
individual does not hold “American Values”? Such a determination would be trickier to upend,
but it probably still fails because any questions about Sharia law or anything else associated with
186 Making an Asylum Decision, § III(B), USCIS Asylum officer’s Basic Training Course (Dec. 5, 2002), https://www.uscis.gov/sites/default/files/USCIS/Humanitarian/Refugees%20%26%20Asylum/Asylum/AOBTC%20Lesson%20Plans/AOBT-Making-an-Asylum-Decision-3aug10.pdf. 187 Immigration and Nationality Act § 212(a)(3)(A)(ii). 188 Knauff, 338 U.S. at 537 189 Supra Section II.c.
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Islam as a faith still triggers the Establishment Clause and proves that the classification is really
just a proxy for religion. The case becomes harder still if the government removed questions
about Sharia law and jihad and instead used broader terms that accomplished the same objective.
Still, any such determination is likely suspect under the First Amendment, because the
government would be regulating thoughts, not actions. The best option for the government would
be to determine that the applicant is inadmissible under INA Section 212(a)(3)(A)(ii) for a
reasonable belief that she will engage in unlawful activity or 212(a)(3)(A)(iii) for seeking to
overthrow the Government of the United States.190 Assuming that the Court rejects the intent/
thought distinction, it will likely just apply the test in Kleindienst v. Mandel and find that these
reasons are facially legitimate and bona fide, even if they are substantially just a ruse.191
d. Litigation Strategy #4: Attack the Scope of Extreme Vetting
If extreme vetting survived these hurdles, there are three basic ways that President Trump
could seek to institute extreme vetting. He could apply it to all noncitizens seeking to enter the
country, only those seeking to enter from certain regions, or only those identified as Muslims.
Statements by the President and his advisors conflict on this issue, pointing alternately at all
arrivals and only “high risk aliens.” Each of the three possible ways presents unique issues and
all are open to challenges. Applying extreme vetting across all noncitizens would be a logistical
and fiscal nightmare. It would require massive changes to the current immigration system and
would greatly prolong the processes of obtaining a visa and gaining admission into the
country.192 The only answer to these problems would be increased funding and bureaucracy.
However, obtaining either will be difficult in the face of a conservative Congress and a staunch
Democratic opposition to the underlying policy agenda.
190 Immigration and Nationality Act § 212(a)(3)(A)(ii), 212(a)(3)(A)(iii). 191 See Kleindienst v. Mandel, 408 U.S. 753 (1972). 192 See Moorhouse supra note 172.
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Any plan that only subjected Muslims to extreme vetting is doomed to fail because it
violates the First Amendment in two different ways. First, it requires that the government make a
determination on who is a Muslim, which is unconstitutional because doing so would be
violation of the ban on the government engaging in issues that are “purely ecclesiastic.”193
Second, it would be a clear case of the government preferencing religions by favoring all others
over Islam. As noted above, the government could argue that this power does not extend beyond
the border, and, given the history of Plenary Power Doctrine, such an argument does actually
pose a viable legal question. That said, those arguments should fail for all of the reasons
discussed in Section II of this paper.194
The most viable option for the President would be to insist that these questions apply
only to “high threat areas.” The government has the clear right to ban immigration from specific
countries all together.195 The President has statutory authority to do so under INA Section 212(f).
However, denying entry on the basis of thought is still a novel legal question and is still subject
to attacks under the First Amendment.
e. Section IV Conclusion
President Trump’s extreme vetting plan likely requires changes to the INA and may not
survive an Establishment Clause challenge. His proposed questions would deny people entry to
the U.S. for behaviors that would not be illegal if they were present in the U.S., which is
prohibited by INA Section 212(a)(3)(C).196 The Secretary of State may attempt an end around on
this prohibition by using his personal authority to deny entry for these issues. However, he can
only do so if he personally certifies that each admission “would compromise a compelling
193 See Watson, 80 U.S. at 679. 194 Supra Section II 195 See Chae Chan Ping, 130 U.S. at 581. 196 Immigration and Nationality Act § INA 212(a)(3)(C).
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United States foreign policy interest.”197 Failure to follow the exact process for exercising this
authority likely opens extreme vetting to legal challenges. Even if the Secretary of State
appropriately uses this authority or the President secures a legislative change that would allow
extreme vetting, the proposed format suffers constitutional deficiencies because it violates the
Establishment Clause of the First Amendment by impermissibly policing thought and by
requiring government agents to make religious determinations. Given the wide array of issues
with extreme vetting, it seems likely that any such proposal will ultimately fail.
V. Suspend Immigration from the Middle East
After the initial storm over his comments on a complete Muslim ban, President Trump’s
campaign began making promises to "temporarily suspend immigration from some of the most
dangerous and volatile regions of the world that have a history of exporting terrorism."198 This
modification represents a shift in rhetoric from banning Muslims to banning nationals of specific
countries. Unfortunately for immigration advocates, immigration policies enacted under the
guise of national origin are much more difficult to challenge. There are three ways that the
President can seek to enact such bans. First, he can seek a law from Congress that bans
immigration from specific countries. Second, he can attempt to issue a unilateral ban using his
authority under Section 212(f) of of the INA. Third, he can refuse to accept refugees from those
countries under the 1980 Refugee Act.
a. Immigration Bans Enacted by Law
If Congress were to assist the President with this ban and enact it into law, there would be
little that opponents could do to challenge such a law in court. Congress has long claimed the
authority to limit immigration by national origin under the Plenary Power Doctrine. In 1882,
197 Id. 198 See Diamond supra note 170.
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Congress passed the Chinese Exclusion Act, which prohibited all Chinese immigration for 10
years.199 The Supreme Court upheld this law in Chae Chan Ping.200 Congress then banned
immigration from most other Asian countries with the 1917 Immigration Act.201 It went further
with the Immigration act of 1924, instituting maximum immigration quotas for the first time.202
These laws and those that followed have never faced a successful legal or constitutional
challenge. Though highly unlikely to succeed, petitioners could attempt to attack the Plenary
Power Doctrine. Immigration constraints based on National Origin are at the heart of the Plenary
Power imagined in Chae Chan Ping and overturning such longstanding precedent is probably too
radical for the current Court. A better option would be to argue that these countries are merely
being used as a proxy for religion. However, this claim too likely fails, as there reasons here are
facially legitimate and bona fide.203 The government will merely need to show that ISIS is a
threat and that ISIS exists in the countries included in the ban. As with any other legislative
issue, the best option would be to mobilize a filibuster in the Senate to kill the proposal before it
becomes a law.
b. Bans by Presidential Proclamation
President Trump could attempt to ban immigration from certain countries by
proclamation using his INA Section 212(f) authority, but doing so would be a controversial
expansion of that power and might be legally assailable. As noted above in Section II.a., 212(f)
grants the President the authority to “suspend the entry of all aliens or any class of aliens as
immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to
199 Chinese Exclusion Act (1882): Document Info, NAT. ARCHIVES, https://www.ourdocuments.gov/doc.php?flash=true&doc=47 (last viewed Jan. 20, 2017). 200 See Chae Chan Ping, 130 U.S. at 581 201 The Immigration Act of 1924 (The Johnson-Reed-Act, OFFICE OF THE HISTORIAN, DEP. OF STATE, https://history.state.gov/milestones/1921-1936/immigration-act (last viewed Jan. 20, 2017). 202 Id. 203 See Kleindienst, 408 U.S. at 753.
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be appropriate.”204 President Trump could declare national origin to be a class and execute the
ban that way. However, he would be stretching that power further than any other president has
ever done and may extend beyond the actual scope of the authority. In discussing the possibility
of a large-scale ban in the wake of Ebola, the Congressional Research Service noted:
In most cases, executive action pursuant to INA §212(f) has been used to bar the entry of
persons (typically associated with specified foreign governments) who have engaged in
conduct deemed contrary to U.S. interests, such as undermining democratic institutions in
a particular country, or engaging in human rights abuses or other conduct deemed
objectionable.205
As noted by the Cato Institute, Section 202 of the INA may prevent the President from
declaring nationality to be a class.206 Section 202(a)(1)(A) declares the “no person shall receive
any preference or priority or be discriminated against in the issuance of an immigrant visa
because of the person's race, sex, nationality, place of birth, or place of residence.”207 However,
this argument likely fails because it only applies to the issuance of a visa, not admission at the
border.
Opponents to such a ban could attack the President’s interpretation of the statute and
argue that nationality does not fit within a class and that the President’s ban exceeds the intent of
the statute. Again, these probably fail, as the act gives the President broad power to ban all aliens
or any class. A ban based on nationality is less severe than banning all, so it is likely included
unless the prior argument on nationality being a prohibited distinction were to succeed.
204 Immigration and Nationality Act § Section 212(f). 205 See Michael John Garcia, Legal Sidebar: Can the President Bar Foreign Travelers from Ebola-Stricken Countries from Entering the United States?, CRS (Oct. 23, 2014), https://fas.org/sgp/crs/misc/travelers.pdf. 206 See David Bier, Trump’s Ban on Immigration from Certain Countries Is Illegal, CATO INSTITUTE: CATO AT LIBERTY (Dec. 8, 2016), https://www.cato.org/blog/trumps-presidential-ban-immigration-certain-countries-illegal. 207 Immigration and Nationality Act § 202(a)(1)(A).
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Opponents also could argue that President Trump is using territory as a proxy for religion
and thus runs afoul of the Establishment Clause. Normally such cases would be nearly
impossible, as there are other facially legitimate reasons than religion for banning immigrants
from places such as war-torn Syria. However, President Trump has repeatedly spoken about the
need to ban Muslims and has equated this ban with a ban on Muslims. When asked if his shift in
rhetoric was meant as a “rollback,” he responded:
I don't think so. I actually don't think it's a rollback. In fact, you could say it's an expansion. I'm looking now at territory. People were so upset when I used the word 'Muslim': 'Oh, you can't use the word "Muslim."' Remember this. And I'm okay with that, because I'm talking territory instead of Muslim.208
The Supreme Court might find that his own statements amount to clear and convincing proof of
an impermissible motive and animus.209 That said, such an outcome is probably unlikely, given
the other facially legitimate reasons the President could cite for enacting such a ban.
c. Reducing Refugee Intake to Zero Under the 1980 Refugee Act
The President may also refuse to accept any refugees from these countries included in his
ban. The Kobach Memo argued for this action, saying that the President should “reduce the
intake of Syrian refugees to zero under 1980 Refugee Act.”210 Under the 1980 Refugee Act,
which amended Section 207 of the INA and is codified at 8 U.S.C. 1157, the President sets the
number of refugees who are to be admitted each year.211 President Trump could decide to
suspend all refugee intakes, as was done after September 11th.212 Section 207(a)(3) states that
refugee admissions, “shall be allocated among refugees of special humanitarian concern to the
208 Jenna Johnson, Donald Trump is expanding his Muslim ban, not rolling it back, Wash. Post (Jul. 24, 2016), https://www.washingtonpost.com/news/post-politics/wp/2016/07/24/donald-trump-is-expanding-his-muslim-ban-not-rolling-it-back/?utm_term=.699b07b32917. 209 See, e.g., Mukasey, 544 F.3d at 437. 210 See Kobach supra note 10. 211 Immigration and Nationality Act § 207(a)(2). 212 See Andorra Bruno, Refugee Admissions and Resettlement Policy, CRS (Nov. 30, 2016) https://fas.org/sgp/crs/misc/RL31269.pdf.
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United States in accordance with a determination made by the President after appropriate
consultation.”213 The determination authority in this authorization allows the President to choose
the criteria by which refugees are chosen for admission. It is under this authority that President
Trump can stop refugee flows from specific countries, such as Syria. Presidents typically outline
quotas for each region or country in their annual determination.214
Additionally, 207(a)(3) gives President Trump the authority to issue more specific
determination guidelines that could effectively prevent any Muslims from coming into the U.S.
as refugees. President Trump could, “order that only certain persecuted groups – say, Christians
in Syria or Iraq – be considered for admission, while excluding Muslims from that protected
category, though they may have fled the same dangers.”215 Challenging any such carve out will
be difficult, as so much of this area is purely discretionary. Under current law, the president does
not need to take in any refugees. Additionally, the limitations that would prevent Muslim
refugees from coming into the U.S. are facially legitimate, given the definition of “refugee.”216
The government will be able to argue that filtering is necessary because the U.S. cannot take in
every refugee and the carve outs are designed to prioritize those refugees who fall most clearly
within the 101(a)(42) definition.
While terrible, it is important to remember that this authority only extends to refugees.
Those individuals already present or arriving at the borders can still apply for Asylum through
the process outlined in Section 208 of the INA.217 There is no ceiling for the number of asylum
213 Immigration and Nationality Act § 207(a)(3). 214 See, e.g., Barack Obama, Presidential Determination on Refugee Admissions for Fiscal Year 2016 (Sep. 29, 2015) https://www.whitehouse.gov/the-press-office/2015/09/29/presidential-determination-presidential-determination-refugee-admissions. 215 Victoria Macchi, Can Trump Ban Refugees to the US?, VOA (Nov. 17, 2016) http://www.voanews.com/a/can-trump-ban-refugees-to-the-us/3601145.html. 216 Immigration and Nationality Act § 101(a)(42). 217 Immigration and Nationality Act § 208.
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claims that may be approved each year.218 Nor will the restrictions apply to other types of
immigration. Still, there is not much to be done for the case of refugees, except exerting political
pressure on the President to change his policies.
d. Section V Conclusion
President Trump may well succeed in his bid to suspend immigration from countries he
deems hostile, such as Iraq and Syria. He has unilateral authority under INA 212(f) to close the
borders, either completely or for particular classes of people.219 Though there are legal
arguments that could be employed against such action, their chances of success are low. The
President can also seek a legislative ban, though it would have to over come a Democratic
filibuster in the Senate. Were it to pass, a legislative ban based on nationality would almost
certainly survive legal challenges, as such bans have ling been upheld under the Plenary Power
Doctrine. Finally, the President has vast authority to stop or limit the flow of refugees into the
country under the authority granted to him by Section 207 of the INA.220 The best challenges to
all of these efforts will be a claim that these nationality-based bans are mere ruses for a Muslim
ban, which would violate the Establishment Clause. However, even these claims are not likely to
succeed, given the fact that the actions at issue are not facial religion bans and there are other
facially legitimate reasons that the President may need to ban people from predominantly
Muslim countries.
VI. Conclusion
President Trump made a Muslim immigration ban a major campaign issue. Though he
and his advisors have changed their rhetoric on what form that the ban may take, including
registration instead of an outright ban, they have nevertheless maintained their commitment to
218 Id.; see also Bruno supra note 212. 219 Immigration and Nationality Act § 212(f). 220 Immigration and Nationality Act § 207.
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instituting some version of a xenophobic and discriminatory control on immigration for the
express purpose of keeping Muslims out of the country. The various proposals under
consideration can be grouped into four broad strategies. The President could seek an outright ban
on Muslims, work to reinstitute NSEERS or some other registration and tracking program,
institute extreme vetting questions for admission at the borders, and seek a ban based on country
of origin instead of religion. In all likelihood, his administration will work to simultaneously
implement more than one, and possibly all, of these strategies. Regardless of how President
Trump proceeds, individuals and organizations intent on opposing his efforts can wage
devastating political and legal attacks on his efforts. Most options available to the President
require legislative action, which opponents should be able to thwart by pressuring Democratic
Senators to filibuster any such legislation. His pure ban on Muslims violates the Establishment
Clause of the First Amendment because it picks favorites among religions and because it forces
the government to make impermissible determinations on who qualifies as a Muslim. NSEERS
may survive a constitutional challenge, but the President faces a long and difficult road in trying
to get regulations or a new law instituted. Extreme vetting has similar constitutional issues to an
outright ban. It violates the First Amendment because it both polices thought and forces the
government to make religious determinations on the basis of an applicant’s answers to the
vetting questions. Unfortunately, the ban by country will be very difficult to oppose on
constitutional grounds, as there is longstanding precedent allowing such bans. However, there
proposed ban may exceed the President’s current statutory authority under the INA, which gives
opponents a viable option for commencing a lawsuit to roadblock his efforts.
Many of these opposition efforts may fail, but they should be undertaken nonetheless.
Even in failure, they will delay the implementation of many policies, possibly until politics
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catches up with these issues and leads to a change in political leadership. Efforts to fight the
administration cast light on its vile intent, which in turn can help bring about that political
change. Perhaps most importantly, even failing opposition efforts are worth undertaking in these
instances because fighting the President’s discriminatory policies is the right thing to do.
President Trump’s Muslim ban, no matter what form it ultimately takes, will surely land on the
wrong side of our national sense of the promise of America, just as Korematsu, Dred Scott,
Plessy, and other embarrassing instances of discrimination, fear, and hate in our history have
before it. Conversely, the opposition, whether victorious or not, will follow in the footsteps of
many great and heroic civil rights lawyers, towering figures like Thurgood Marshall and Jack
Greenberg. In doing so, they will show the world that there is still hope, that America can still
shine.
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