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.