The strangest thing about this is that Carl Higbie mentions a key distinction between the two proposals early on in the clip below, before he brings up the Japanese example. The registry involves immigrants, and immigrants don’t get all of the same constitutional protections that citizens do. (Another key distinction: It’s, er, a registry, not an internment camp.) The Japanese interned during World War II were citizens; Trump’s registry would apply to non-citizens entering the United States from terror hot spots abroad. Why Higbie’s reaching for the former to explain the latter, especially when Team Trump has been at pains for months to turn their “Muslim ban” into a less identity-specific “close vetting for anyone from an extremist country” plan, is odd. Maybe he just goofed while scrambling for historical precedents to offer Kelly.
In any case, no, Trump’s registry wouldn’t be unconstitutional. The Bush administration implemented a variation of it, in fact.
That program, labeled the National Security Entry-Exit Registration System, required those entering the U.S. from a list of certain countries — all but one predominantly Muslim — to register when they arrived in the U.S., undergo more thorough interrogation and be fingerprinted. The system, referred to by the acronym NSEERS, was criticized by civil rights groups for targeting a religious group and was phased out in 2011 because it was found to be redundant with other immigration systems…
Jonathan Turley, a law professor at George Washington University, said Wednesday that “a president’s power is at its apex at the nation’s borders” and that the Supreme Court has “consistently reaffirmed the power of the president to control the entry and exit from the country as a matter of national security.” Such precedent, he said would give Trump’s administration a decided advantage in any litigation.
Immigration law would afford the government special advantages, Temple University international law professor Peter Spiro said, because it exists in a “parallel universe” where many of the constitutional protections afforded in other legal situations do not apply. He said “discrimination on the basis of nationality is something that, again, one finds all over the immigration law, and in a nonimmigration context would almost certainly not withstand the equal-protection challenges.”
Spiro thinks bringing back NSEERS is a stupid idea, but not every stupid idea is unconstitutional. (“It’s immigration security theater. It’s like the wall: It’s pretty clear that it just has no effect, but it’s a way of keeping the restrictions constituencies … happy.”) Vox, of all places, has a useful short history of NSEERS noting that that program has already withstood constitutional challenges, partly because it was careful not to make religion the key criterion for scrutiny. It’s okay to scrutinize visitors from certain nations that all (or almost all) happen to be majority Muslim. It might not be okay to scrutinize visitors because they themselves are Muslim. Team Trump will surely observe the formal distinction in writing the policy, especially if Kris Kobach ends up being the main author. Then again, Kobach and the Trumpers might not need to write anything. As Vox notes, NSEERS is still on the books but was suspended when the Obama White House eliminated all of the previously targeted countries from the program’s list of nations deserving special scrutiny. Presumably Trump could reactivate it by simply re-adding some nations and signing an executive order.
An interesting question is whether every majority Muslim country will end up on Trump’s version of the list or if it’ll be truly limited to terror hot spots. Do we need to track visitors from the UAE, for instance? And what about the jihadist problem in Europe? Do French and Belgian nationals require special scrutiny? Is there a constitutional way to write the law so that only Muslim visitors from those countries are required to register when they visit? This is why some people are nervous about Higbie reaching for the Japanese example. Bringing back NSEERS might be constitutional but expanding the program to other classes of people might not be, and we already know from his “Muslim ban” proposal last year that Trump seems pretty comfortable with expansion. A would-be strong-man president won’t get the benefit of the doubt on stuff like this. Hopefully Higbie bears that in mind the next time he’s reaching for analogies.