Despite post-election threats that if the president-elect attempts "to implement his unconstitutional campaign promises, we’ll see him in court," Politico reports that three constitutional lawyers say the ACLU won’t have much of a shot before a judge. 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," giving Trump’s administration a decided advantage in any litigation.
A week after the ACLU tweeted…
Should President-elect Donald Trump attempt to implement his unconstitutional campaign promises, we'll see him in court.
— ACLU National (@ACLU) November 9, 2016
Reuters reports that the president-elect’s team is considering an immigration system modeled after a controversial one implemented in the months after the Sept. 11, 2001, terrorist attacks. It fulfills Trump’s promise of “extreme vetting” for immigrants from countries affected by terrorism, a threshold he has yet to flesh out more fully. As Politico notes,
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.
Robert McCaw, director of government affairs for the Council on American-Islamic Relations, said a reinstitution of NSEERS would be akin to “just turning back the clock.” CAIR will lobby heavily against the system as not only discriminatory but also ineffective, McCaw said, if it ends up being proposed by the Trump administration.
He also accused Kobach, an architect of the original NSEERS program when he was with the Justice Department under the George W. Bush administration, of having “a long ax to grind with the Muslim community.”
“NSEERS and registries like it are totally ineffective and burdensome and they’re perceived by Muslims and other minorities as just being a massive profiling campaign that, in the past, targeted Muslim travelers solely based on their religion and ethnicity,” he said. “When every country on that list happens to be a majority-Muslim country, it is religious profiling. Because there are threats from other nations and other communities and groups that don’t make it on NSEERS.”
But, as Politico concludes, a program like NSEERS would likely pass constitutional muster before a judge, multiple experts said, in part because it already has. The system was never struck down by a court in the nearly nine years it was in place.
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.
University of Virginia international law professor emeritus David Martin said the NSEERS program is constitutionally sound but fraught with issues as a matter of policy. He said even when it was in effect, NSEERS was “more and more seen as potentially counterproductive” as the Sept. 11 attacks receded in America’s rear-view mirror and the government developed “more of an appreciation that doing certain things that singled out Muslims and were seen as discriminatory were strategically unsound.”
But the cries of discrimination that have already begun from organizations like CAIR and others carry tremendous moral and political weight.
“It’s kind of an American tradition to claim that things you disagree with are unconstitutional, and sometimes are out of keeping with the spirit of constitutional values, even if ultimately a court might uphold them,” Martin said. “So, I think it’s quite legitimate to argue on the basis of constitutional values even if you don’t absolutely have a Supreme Court precedent that clearly establishes your point.”
President-Elect Trump's immigration group had also discussed ways of overturning President Barack Obama's 2012 executive action that has granted temporary deportation relief and work permits to more than 700,000 undocumented people or "dreamers" who came to the United States as children of illegal immigrants.
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