Can Donald Trump Actually Take Care of “the Muslim Problem” and Make America Great Again?

Donald Trump. A man so American that bald eagles attack him in fits of jealous rage. Lately, he has also become the political poster boy for the Islamophobia that seems to be gripping certain constituents in the United States. However, what exactly are his proposed plans to resolve “the Muslim problem” in the United States, and are these plans even legally feasible?

1. Shut Down Mosques

Trump declared that select mosques within the United States should be shut down. This alone appears to be a systematic denial of religious freedom, which is protected by the First Amendment. Many of the original colonists in this country came here to avoid religious persecution. The most popular secular holiday in the United States, Thanksgiving, involves a celebration of the religious freedom achieved by the Puritans by coming to the new world. That is not to say that there has never been any effort to suppress certain religious practices by the government.

However, laws designed to prohibit certain religious practices, even Hileah’s attempt to ban the Santeria practice of animal sacrifice, have been declared to be unconstitutional as a violation of religious freedom. Any ban on religious worship in buildings specifically designated for religious worship will likely be declared to be unconstitutional under the First Amendment because while the interest of keeping American safe from “homegrown” terrorists is a compelling government interest, any law that permits the shutting down of mosques could not possibly be deemed to be narrowly tailored enough to truly advance that interest. 

Most likely, if such a law were enacted and then challenged in court, it would be seen as unconstitutional pursuant to Cutter v. Wilkinson, which was a challenge by prisoners in Ohio against the prison’s refusal provide them with an adequate space to worship within the confines of the prison. Just as the prison could not force the prisoners to restrict the practice of their religion to their cells, so the federal government cannot force Muslims to restrict the practice of Islam to their homes.

2. Bar All Non-Citizen Muslims from Entering the United States

If Donald Trump were to become president, he would not be able to actually enact his own ban on the immigration of Muslims, even under his power of commander in chief during wartime. Any ban by presidential order would be determined to be in violation of the United Nations’ International Covenant on Civil and Political Rights, which prohibits all participating countries, including the US, from banning immigration solely on religion.

Congress is the only government entity that can pass laws superseding any international treaties made through the United Nations, since Congress is responsible for the United States’ participation in that organization. Thus, Donald Trump would need to convince Congress to enact a ban on Muslim immigration. Although a mass ban on immigration based on religion is practically unheard of, Congress has enacted mass bans on ideological principles before, most notably against foreign Communists. These bans have been held as constitutional, despite the unconstitutionality of laws placing restrictions on Americans who hold the same views as the banned foreigners. Ergo, Congress could enact a ban on all Muslim immigration that may be held to be constitutional by the courts.

If Donald Trump wanted to avoid having to rely on Congress, he could ban all foreign Muslims on an individual basis. Congress has given the president the power to bar the immigration of anyone whose entry into the United States could have “potentially serious adverse foreign policy consequences” for the US under 8 U.S. Code § 1182. In the broadest sense, any president could make an argument that any foreign Muslim’s presence in this country could have adverse foreign policy consequences. Also, the president has the power to bar the immigration of anyone who fails to be “attached to the principles of the Constitution” in accordance with 8 U.S.C. § 1427(a). Thus, the president can deny immigration to anyone who professes to support Sharia law, or any other religion-based set of law, to the detriment of the enforcement of the Constitution. However, this would not necessarily work to bar all Muslims from immigrating to the United States.

3. Require All Muslim Americans to Carry Special Identification Cards and Be Registered on a National Database

Donald Trump has yet to clarify if his mandatory database for Muslims would involve self-registration or if it would be compiled in the same manner that the no-fly list is assembled, through the suggestion of others based on information gathered about the people on the list. The government has enacted self-registration policies before, where people register with the government for a certain purpose. The most infamous of these registrations have been the Communist registration during the “Red Scare” and the registration that preceded the American internment camps of the 1940s.

However, only mandatory self-registration policies based on race, national origin, familial status, and economic status have been held to be legal. Conversely, the Supreme Court of the United States held in United States v. Robel that mandatory self-registration for ideological purposes is a violation of freedom of association. Thus, mandatory self-registration for religion would likely also be found to be illegal.

Although the ACLU is currently challenging certain aspects of the no-fly list and other, similar databases, this type of surveillance database is legal. Thus, Donald Trump could choose to focus efforts on compiling a list of all Americans who attend Islamic religious services and/or profess to be a Muslim. However, there would not be any actual registration involved.

Requiring all Muslims to carry special identification cards would likely be unconstitutional under United States v. Robel. The issuance of such cards would likely require self-registration, which is unconstitutional.

4. Expand the New York Police Department’s Muslim Surveillance Program to the Whole Country, and Permit Warrantless Searches of Mosques

Donald Trump has expressed his desire to expand the surveillance tactics used by the New York Police Department (NYPD) on Muslims living in New York and New Jersey to be used on all Muslim Americans. These tactics included having plainclothes cops monitoring buildings at all hours of the day and infiltrating student organizations for the sole purpose of gathering information on all members of those organizations. The exact tactics appear to be perfectly legal, and even commonplace, on the surface. However, the legality of the NYPD’s extensive surveillance of people just based on their faith is currently being challenged in the federal courts. Until that case is determined, it is unknown whether or not Donald Trump would be able to legally expand their tactics to the whole of the United States.

Warrantless searches of buildings are only permitted in two instances: in the case of exigent circumstances and in order to secure the area in which the police are attempting to arrest a suspect. Exigent circumstances prompting a warrantless search only exist when evidence may be easily destroyed by the time a search warrant is issued. It is unforeseeable that exigent circumstances would be commonplace in mosques to allow for the warrantless searches that Donald Trump seems to want.

As for a search of the area while arresting someone, this is a very limited search that would not permit for a thorough search of a whole building, which is what Donald Trump appears to be after when he refers to searching a mosque. Any other kind of warrantless search is prohibited by the Fourth Amendment. That is not to say that such a search will never be permitted, as the ban on such searches may be ignored if the political climate is right. After all, Congress famously suspended habeas corpus, which is the right to challenge unlawful imprisonment, during the Civil War.

5. Deporting Syrian Refugees Who Have Entered under Obama’s Presidency

As president, Donald Trump may be able to seek the deportation of some of the Syrian refugees under the Smith Act, which permits the deportation of immigrants who are or have been affiliated with organizations that advocate the overthrow of the American government. Thus, so long as a Syrian refugee had actually belonged to Daesh, also known as IS or ISIS, or provided support to Daesh at some point prior to fleeing Syria, they could be deported in accordance with the Smith Act. However, such a deportation scheme would involve a lot of work, as the government would need to provide evidence showing that the involvement was more than just merely cooperating with Daesh in an effort just to survive or being sympathetic to Daesh’s cause.

Alternatively, Donald Trump’s administration could refuse to grant permanent resident status to Syrian refugees, deny renewal for any visas that were granted to the refugees, and then deport them for overstaying expired visas. However, as some Syrian refugees have been here for more than a year and are already able to apply for permanent residency, this plan may not work for all of the refugees.

As one can see, not all of Donald Trump’s presidential goals could actually be achieved. However, there are a surprising number of ways that some of his plans could actually be deemed to be completely legal, supported by both the Constitution and judicial decisions. It certainly serves as food for thought going into the 2016 presidential race.

 

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