A few weeks ago, I wrote a post here about the so-called “Muslim registry,” demanding clarity on the topic, and making a proposal for pre-emptive civil disobedience. Without retracting a word I said, I revisit the issue here in light of information that’s come to light since then. The post below is a revised and edited version of a comment I wrote in response to a post by Max Geller at the Mondoweiss website, which (pursuing a suggestion made by the Anti-Defamation League and others) called on non-Muslims to register for the so-called registry.
I applaud the sentiment, but not the tactic.
First, the most likely way of implementing a so-called “Muslim registry” is to implement it as a condition of entry or visa renewal on certain classes of foreign nationals wishing to enter or remain in the US. We had such a policy in the Bush years under the name of NSEERS (National Security Entry-Exit Registration System). Though it was much criticized, non-Muslim U.S. citizens could not, even in principle, apply to register for it. If the Trump version resembles the Bush version (as it probably will), the idea of inducing people to register for Trump’s version probably won’t work: they won’t be able to.
Anyway, even if they could register, they wouldn’t. Just try to imagine a mass movement of Americans engaging in civil disobedience to register as Muslims (foreign Muslim nationals from terrorism prone countries!) and you’ll realize that you’re in the realm of science fiction. People who believe (or suspect) that we all went out dancing in the streets of Jersey City after 9/11 are not going to flock to a crowded (and for suburbanites) inconveniently-located immigration field office to declare, implausibly, that they are Muslims–when they’re guaranteed to fail the very first question they get in the inevitable interrogation they’ll receive on the subject.
News flash: USCIS officials do not passively allow you to manipulate them into making obviously false declarations; they’re trained to detect prevarication, and have a gigantic bureaucracy at their disposal to follow through on their suspicions. If they don’t believe you, they not only won’t register you for the “Muslim registry,” they’ll probably arrest you for false declaration (or at least summarily throw you out of the field office), in which case literally nothing that Geller envisions will actually take place. I appreciate the sentiment, but the proposal is quixotic and uninformed.
It’s nearly impossible to fight a measure that will be applied to foreign nationals at a point of entry at an international border: virtually no procedural protections apply there. It’s also very difficult to fight a measure that will be applied to foreign nationals already in the country; non-citizens are by definition second-class citizens (if that). We’d have to consult immigration lawyers to know how to strategize on issues of that sort, and the most likely strategy will probably end up being: sit tight, lay low, and shut up.
But consider something simpler and clearer. The constitutionality of a registry imposed on U.S. citizens (and legal residents) is in one sense clear and in another unclear. It is clear that such a registry would be deemed unconstitutional by a competent court, if someone with standing were to bring a case against it. But as a legal matter, it is also clear that Korematsu vs. U.S. (justifying internment, and a fortiori registration) has never actually been overturned. In an uneasy sense, it remains precedent.*
Here is my proposal: Why not ask or demand pre-emptively that law enforcement take a position as to the constitutionality of a registry, treating the Korematsu decision as a proxy for the “Muslim registry”? In other words, why not ask law enforcement, pre-emptively, to declare Korematsu presumptively unconstitutional, and to declare their ex ante refusal to implement it, or anything resembling it in constitutionally or legally relevant respects? The proposal would require lawyerly tweaking (along with some reference to Hirabayashi vs. U.S.), but in broad outline I think it’s clear enough. (Indeed, I’m hoping for some input from any lawyers who might be reading this.)
Law enforcement officers are required to swear an oath to the U.S. Constitution (among other things). Their oath obliges them to be loyal both to the text of the Constitution and to its underlying principles. That loyalty supersedes any obligation they may have or think they may have to the President, to the Office of the Presidency, to the President’s Administration, or to any other government entity. Given that, they should–in advance of any executive order from the president–be able to declare, out loud (meaning: in a binding way, for public consumption), what they think about Korematsu or any policy resembling a registry or pre-emptive detention.
And by “law enforcement,” I mean not just police departments (though I mean that, starting with sheriffs and police chiefs), but county prosecutors and state attorneys general. Their declarations would bind them not just to asserting the unconstitutionality of a registry, but to refusing to obey an order to enforce one on U.S. citizens or legal residents (at least).
It’s worth noting that virtually every public meeting in this country–whether of the town council, a zoning board, a high school graduation, a football game, or whatever–begins with the demand that all present stand and rise for the Pledge of Allegiance or the National Anthem. In other words, loyalty oaths are already par for the course in American life, and are widely considered as American as apple pie.
By parity of reasoning: if loyalty oaths can be demanded of anyone present in a meeting or at a game, they can certainly be demanded of those who enforce the laws over us, and in principle have the power of life and death over us. In fact, that understates the point: nothing in the Constitution demands that anyone stand for the Pledge of Allegiance or National Anthem at a town council meeting, but it is practically tautologous to say that the Constitution demands adherence by law enforcement sworn by oath to defend it. That’s what it’s for. Perhaps the time has come to demand a different kind of loyalty oath to it–one more specific and informative than the very abstract and general oath required to assume office or wear a badge. Call it a pre-emptive casuistry.
In a way, my proposal involves a declaration of the obvious that doesn’t do anything to impede the border or visa policy that is likely to come into existence under the Trump Administration. Unfortunately, I’m not sure what we can do about the imminent policy (or whether anything can be done). Americans seem widely oblivious to, or indifferent to, what are likely to be its wide-ranging consequences on the innocent. Too few of them are or know anyone up for deportation, exclusion, registration, indefinite detention, or even torture to care very deeply about such people. Water under the bridge, I suppose (or water under the board, as it may be).
That said, a policy of the sort I’m recommending would set a healthy precedent. A declaration of the obvious is actually something we desperately need at this point. Though life in a liberal (or apparently liberal) echo chamber may convince you that Korematsu is a dead letter, there is in fact substantial popular support for Muslim internment (and ex post facto, for the internment of Japanese-Americans), and has been for more than a decade. Consider the popularity (at least in some circles) of Michelle Malkin’s In Defense of Internment, as well as the book’s defense by such “luminaries” as Daniel Pipes; consider also polls indicating widespread support for the policy (see the preceding link), the recent defense of the policy by an individual until recently connected with the Trump candidacy, and the valorization (and popularity) of public intellectuals who have publicly called for the wholesale violation (indeed, wholesale abrogation) of the rights of Muslims in America. And the hard fact remains that Korematsu is, strictly speaking, non-overturned precedent and therefore the law of the land.
It might be objected that a rejection of Korematsu, or of citizen registries, or of citizen detention centers etc., is too obvious a thing to demand. Not so. It’s worth remembering that Selective Service is a compulsory (and explicitly discriminatory) citizen registry, that it exists already and has existed for decades, and that almost no one today objects to it (or has ever objected to it). (“It’s What a Man’s Got to Do: it’s quick, it’s easy, and it’s the law.”) If we can demand that 18-year-old men register for Selective Service (as we do), what prevents the demand that Muslim American adults register for a Muslim registry?
In any case, the obviousness of the demand is a point in its favor: who could object to it, barring those with malign or unjust intentions?
Finally, constructive citizen cooperation (or engagement) with law enforcement is also something we desperately need. Leftist activists have offered up some ridiculous suggestions for starting our resistance to the Trump Administration with violence and disruption. This is a good recipe for intensifying the suspicion that law enforcement already has of us while producing widespread resentment for us in the rest of the population–and accomplishing absolutely nothing of substance. It’s unclear to me what the proponents of these cheap gestures think will happen when we desperately need law enforcement in a time of duress or emergency, when we call 911 under those circumstance, and when we find to our surprise that the police take their time in getting to us, if they come at all.** Why would they rush to defend people who had, in lieu of having a hard conversation with them, decided to spit in their faces?
We need both solidarity and symbolic gestures, but they have to take the right form and come from the right place: they have to be integrated with determinate political goals, and reflect adherence to the basics of instrumental rationality. My suggestion: a binding declaration by law enforcement not to enforce an unconstitutional registry or detention of citizens or legal residents.
I’ll be test-driving my proposal this coming Wednesday at an event I’m organizing at my university with the local police department and prosecutor’s office. If they’re amenable to my proposal, I hope to follow through with them, and to take the matter up with other police departments in the area and other county prosecutors in New Jersey. Stay tuned. And wish me luck–unless, of course, you’d rather see me on a registry.
*Yes, despite Noah Feldman’s recent arguments that it is not. Though I appreciate the cogency and utility of Feldman’s arguments, none of them individually or jointly entail that Korematsu has actually been overturned, or that it straightforwardly isn’t precedent, a fact that I think he’d be the first to concede.
**Like Samir Chopra (the blogger referred to in this paragraph), I’ve called for civil disobedience as well, up to and including the use of violent self-defense if that ever becomes genuinely necessary. (And I don’t take it back.) But unlike Chopra (and some of his defenders), I have not called–and would repudiate–the use of force against the person or property of uninvolved bystanders or third parties, certainly as a first resort (or even a second or third). And despite some very loose and rhetorical writing, it’s patently obvious that Chopra was calling for just that. Michael Dervin, one of Chopra’s vocal defenders on Facebook, has gone so far as to suggest that there are no bystanders or uninvolved third parties in a democracy, so that if Muslims’ rights are violated by a hypothetical registry, everyone else’s rights are up for grabs.
“There’s no such thing as “uninvolved third parties” in a democracy. You either choose one side, choose the other or choose to sit on the sidlines [sic and recieve [sic] the consequences. And just in case you are wondering how deep I hold this belief, I was in the WTC on 9/11, and I’m not an innocent victim of Bin Laden.”
Suffice it to say that I find this view (and views like it) entirely without merit. Naturally, since the discussion took place on Facebook, Dervin felt no obligation to offer an argument for what he said. And every attempted argument he did make was fallacious. I’ll give him one argumentative success: he successfully proved why it’s impossible to have a serious political discussion on Facebook.
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I generally think that calling on law enforcement officers to disregard the law is a very dangerous strategy. They do quite enough of that already, and do not need to be encouraged to do so more often. Law Enforcement is not our friend–having voted overwhelmingly for Trump.
However, I do like a variation on the theme. The movement to have political authorities declare cities as “sanctuaries” has terrific momentum. This generally means that local tax dollars cannot be spent reporting people who come in contact with law enforcement to Homeland Security. The same concept could easily to extended to any demand that local law enforcement cooperate in “registering” Muslims.
Finally, I am not as down on encouraging non-Muslims to register. If, as you posit, the requirement is limited to non-citizens, particularly if applied at ports of entry, then you are right, it will never work. However, that is not what Trump promised. He promised to register all Muslims, which would include both citizens, and citizens whose national origin is from countries friendly to the US (like Britain), or whose family origins go back in the US for centuries (like many Black Muslims). Any attempt to register them would be ripe for civil disobedience in the form of non-Muslims attempting to register.
Alan Mills, Executive Director, Uptown People’s Law Center
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Alan,
Thanks for the comment. A couple of points.
First, my proposal wasn’t intended precisely to get law enforcement to ignore the law. My point was this: If a registry is unconstitutional, it is not lawful. The Constitution is the supreme law of the land; an Executive Order that contradicts it is not. The problem we face is that, technically speaking, given the status of Korematsu as quasi-precedent, the unconstitutionality of a registry has not been made fully explicit. So in the absence of a case or legislation to overturn it (for more on that see below), I’m calling on law enforcement to make the unconstitutionality of a registry explicit (via claims about Korematsu etc.). In doing so, it would not be disregarding the law, but making explicit the unlawfulness of a (hypothetical) Executive Order implementing a registry. If that’s right, an Executive Order calling for a registry would itself be unlawful, and law enforcement would be justified in disobeying it on legal grounds. They would be disobeying their boss, not violating or disregarding the law.
I’m in favor of the sanctuary city idea as well (I live next to one and spend time in another), but sanctuary cities are vulnerable to subversion by the federal government, and have been since well before the election. See here, here, and here. My thought is: if you add my proposal to the sanctuary city idea, you add resistance by law enforcement to resistance by municipal government. Neither idea is foolproof, but both combined are better than either on its own.
I agree that despite Trump’s refusal to make it explicit, he has left the door open for a registry for all Muslims in just the way you describe. I also agree that if that were to happen, there should be civil disobedience. But contrary to you and the ADL (and others), I don’t think mass non-Muslim registration is going to work. If women tried to overwhelm Selective Service by registering, it would be easy to deal with them: women would simply be turned away at the door of their local post offices. If non-Muslims try to register for a registry, they will be dealt with similarly. My view is that disobedience will have to take the form of mass refusal to register by those called to register, not mass willingness to register by those not called to do so.
A registry of Muslim citizens is outlandish precisely because there are no proxies for someone’s being of the Muslim faith. If the government ever enacted a “Muslim registry,” it would have to invent a proxy for “being Muslim,” however dumb it turned out to be. But I can guarantee that the proxy it invents will screen out the people the government doesn’t want on the registry (including lots of “good,” compliant Muslims). If lots of people show up at a USCIS field office (and trust me: they won’t), all that USCIS has to do is keep these pseudo-Muslim civil disobedients outside the field office, give them a preliminary questioning on the street or in the parking lot, and either order away or haul away the ones who don’t meet some arbitrary criteria for satisfying some “threat threshold.” Since they will order some non-threatening Muslims away in the same breath, they will be free to declare that the real issue was whether or not someone met the threat threshold, not whether they were Muslim per se. The civil disobedience will be thwarted, and everyone will go home. So as I see it, the mass registration gambit is a recipe for self-defeat.
We should probably remind ourselves that Trump’s people (e.g., Kris Kobach et al) are not stupid. They are not going to come out and announce that they are discriminating against Muslims, any more than the Ferguson Police Department announced that it was discriminating against African Americans. If there is a registry, the discrimination it relies on will be concealed within some facially neutral framework based on “threat matrix” mumbo jumbo. No one knows or cares whether I believe in Allah or the inerrancy of the Qur’an, but it wouldn’t take much effort to establish that I not only have a Muslim name, but have a Muslim prayer on my office wall, and (in the course of teaching in Palestine) have probably met and interacted with members of Hamas (aka “students”). Oh, and I’ve been to a bunch of terror-prone regions in the last few years, and am booking a flight to Beirut this August after my usual stay in the West Bank. That is the kind of thing that will make me a candidate for registration, whether or not it meets any legal threshold for a search or seizure.
My point is: if the framework is unconstitutional, the putative victims are the only ones in a position to refuse compliance. This is hard to palate, but we might as well get used to it. If we ever get to a registry, I will have to refuse to register, and hope that someone defends me when I’m cited for non-compliance; a Reconstructionist Jewish rabbi’s attempt to register as a Muslim in my place will fail.
It’s true that the Fraternal Order of Police supported for Trump, and that police officers voted overwhelming for him. That is to their (eternal) discredit, but it doesn’t absolve us of the task of engaging constructively with them. You don’t just engage with your friends, after all. For one thing, not all of them voted for Trump. For another, even those who did swore an oath to the Constitution. My gamble is that all of the first and some of the second can be counted on to uphold that oath and uphold constitutional values. (I’m not sure how prosecutors voted, but I’d say the same thing of them.) Honestly, at this point, I have more faith in law enforcement than I do in the American people as a whole. The former swear an oath; the latter do not.
I should mention that Rep. Suzan DelBene (D-WA) has proposed legislation in Congress to prohibit a faith-based registry. In some ways (I won’t belabor them), this legislative strategy is better than either of the two discussed above. So I fully support it (and have a query out to my congressional representative asking him where he stands on it).
The problem with it is that it only protects us against a registry that classifies individuals on the basis of faith affiliation. But those who want a registry will find a way to circumvent that stipulation. That is why I would insist that whatever its flaws, prosecutorial discretion is our ally here. We have to demand that prosecutors use that discretion in a way that reflects a reality that no legislation can entirely close off: a registry will be based on some invidious form of profiling, but profiling is a covert activity that can be concealed in clever ways. There is no way to anticipate the forms it will take. For that reason, law enforcement has to declare itself committed to being against the covert forms of profiling as well as the open declarations of war against minorities. That is the only way for us to know that they are on our side, or to know that they aren’t.
Bottom line: Whether we call on them to protect us against crime, or ask them to reject a registry, we have no choice to engage with them. When you dial 911, you get the police department, not a political activist or a defense attorney. Our reliance on them is ineliminable. Our engagement with them has to be conceived the same way.
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My preliminary thoughts: The idea of police officers deciding what is and is not constitutional is a scary one. While it is true that not all police officers obey the law, they are duty bound to do so, at least until a court declares a law unconstitutional. And some laws are good. I say that without intending to say that I support a registry. That said, do we really want police deciding what should or should not be enforced? Selective enforcement may be a means of challenging a law, but, historically, it has resulted in gross injustices too.
I also wonder if a registry could ever be declared unconstitutional. That doesn’t mean it shouldn’t be challenged, but that just leaves the question of how. I agree with the idea of states and municipalities suing.
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The proposal is more directed at prosecutors than the police per se (prosecutors would take the lead, and the police would follow their direction). Prosecutors already operate with huge amounts of discretion, so this would be one more exercise of the same discretion that they’ve always had, and that they exercise all the time. Ordinarily, you wouldn’t want prosecutors deciding the constitutionality of a policy, but my point is: they would be doing so to pre-empt an Executive Order that presumed that the policy *was* constitutional. Neither thing is desirable, but prosecutorial discretion against a registry is preferable to an uncontested Executive Order in favor of one.
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What are the obstacles to challenging the constitutionality of a registry?
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There would be no one to bring a suit until the registry was in place and had harmed someone, and even if someone did bring a suit, it would be years before the suit was settled.
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I see the primary obstacle as being the president’s authority when it comes to national security. The legitimacy of such an assertion would need to be tested. Also, the judiciary yields to the authority of the executive branch and the legislature regarding regulation related to immigration. One more argument, which I think should be viewed with skepticism, is that non-citizens do not enjoy the same constitutional protections that citizens do.
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But Trump did not limit the registry to immigrants. He claims it will apply to all Muslims in the US. This includes thousands of people whose families have been here for centuries.
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Alan, assuming the court applies a strict scrutiny analysis, which I suspect it would, the question would be whether or not the law serves a compelling purpose and that the law is narrowly tailored or the least restrictive way to achieve that purpose. So again, we get to the primary obstacle: national security. If the purpose is national security, is the registry the least restrictive way to achieve that purpose? I certainly hope not, but I wouldn’t be overly optimistic.
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Just got a note from a well-known law professor agreeing with my idea…so that’s something.
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Three very useful sources for follow-up: an interview (podcast) with Sen. Chris Coons and Professor Neal Katyal on Korematsu and the “Muslim registry” at Slate, an excellent piece by Corey Brettschneider (Political Science, Brown) on federalism and constitutionalism in Time magazine, and a piece by Ilya Somin on federalism and sanctuary cities in The Washington Post.
h/t: Michael DeFilippo for the Slate interview.
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