Trump’s plan to reinstate a defunct national registry for Muslim immigrants may be illegal thanks to the anti-Islamic rhetoric of his campaign.
When the National Security Entry-Exit Registration System, (NSEERS) was first introduced in 2002 as part of the war on terror, most courts found it to be legal because it targeted specific nationalities rather than religious groups (although 24 out of the 25 countries included were majority Muslim).
Back then, “most courts found it to be legal but there are questions today since it comes on the heels of a campaign overtly targeting people based on religion, and that would make a difference,” said Nancy Morawetz, co-director of NYU’s Immigrant Rights Clinic.
Morawetz was speaking at NYU’s Immigration Rights Teach-In on November 28, which saw community members, allies, organizers and lawyers gather to discuss how to prepare and defend immigrant communities in the wake of Trump’s election.
Concerns have been sparked in the Muslim community after Kansas secretary of state, Kris Kobach, was spotted with documents outlining plans to reinstate the registry. Kobach is vying to be head of Homeland Security in Trump’s administration.
Because NSEERS was never struck down in the almost ten years it was active during the Obama administration, some legal experts say re-instituting the program would be legal.
However, Morawetz argued that the xenophobic nature of Trump’s campaign may render the program illegal, as it violates provisions under the First Amendment against discrimination based solely on religion.
“Right after 9/11, there were arguments about national security so courts allowed the program. Today it’s a little different,” Morawetz said.
Trump’s administration could try to find a loophole, in the same way that the original program was targeting nationalities not religious groups.
However, Trump’s xenophobic campaign rhetoric combined with fact that the old program was “not at all productive in any national security sense,” might make the registry more difficult to defend this time round, she added.
Photo via The Upstander