The following is a section of a longer piece analyzing the constitutionality of some of Donald Trump’s policy proposals. Click here to read “Donald Trump: A One-Man Constitutional Crisis” in full.
“And so we’re going to have to do certain things that were frankly unthinkable a year ago.”
Donald Trump has a Muslim problem, and it includes about 3.3 million American Muslims. In the aftermath of high-profile attacks in Europe and the United States, Trump has put forth counterterrorism proposals that wrongly stigmatize American Muslim communities as suspect and are grounded in discrimination.
Trump told NBC News last November that “we should have a lot of systems” to track American Muslims. They would be obligated, for example, to register with a special database for Muslims in the country. When asked by Yahoo News whether he would support requiring Muslims to carry a special ID card, he didn’t rule it out, noting “we’re going to have to have to do certain things that were frankly unthinkable a year ago.”
To that end, Trump would monitor mosques and American Muslim communities across the country. “We’re going to have to look at mosques,” he told the reporter. “We’re going to have to look very, very carefully.” In response to the Brussels attack in March, Trump agreed “100 percent” with Sen. Ted Cruz’s statement that U.S. law enforcement must have the power “to patrol and secure Muslim neighborhoods before they become radicalized.”
If a President Trump acted unilaterally — or somehow convinced Congress — to implement a surveillance program explicitly targeting Muslims because of their faith, he would face an impossible task of defending such a policy as constitutional in court. This is because the discriminatory profiling and surveillance of American Muslims would violate the First and Fifth Amendments to the Constitution.
Thanks to the right to equal protection under the law guaranteed by the Fifth Amendment, courts are rightly very suspicious of any law or government policy that singles out groups of people united by a core characteristic, like race or religion. Therefore any law passed or policy pursued by a Trump administration that specifically subjects Muslims to heightened suspicion, surveillance, or special registration because of their religion would be met by the courts with a heightened degree of scrutiny.
Judges do so with good reason. It’s worth remembering that the New York City Police Department program didn’t just alienate people from law enforcement — it also made for bad policing. In fact, NYPD Police Commissioner Bill Bratton has admitted that no actionable intelligence came out of a core component of the Muslim surveillance program. In its settlement of an ACLU lawsuit against the program, the city of New York explicitly recognized that law enforcement can do its job without resorting to discriminatory practices.
Targeting Muslims for law enforcement scrutiny based on their faith would also make a mockery of the First Amendment, which bars government action that singles out particular faiths for disfavored treatment or restricts or interferes with religious practices. The NYPD case makes the reasons for this foundational protection abundantly clear.
The police department’s practice of infiltrating houses of worship with informants and undercover cops resulted in diminished attendance at mosques, pervasive mistrust among congregants, and community-wide self-censorship. Some community members went so far as to change their dress and trim the length of their beards out of fear of unwarranted surveillance. Trump’s proposals are precisely the types of assaults on religious communities that the First Amendment was designed to prevent.
The Supreme Court has warned that “a law targeting religious beliefs as such is never permissible.” This apparently doesn’t give Trump pause when he calls for unmerited law enforcement attention devoted to American Muslim communities across the country.
Trump’s proposed Muslim database would also violate the Fifth Amendment’s due process clause if it were used by the government to restrict the ability of an American Muslim to fly or if it triggered more unjustified attention at border crossings. No one in America should be treated like a criminal and deprived of their liberty and dignity when they have done nothing wrong.
Beyond the constitutional problems with a Muslim database, the policy would almost certainly violate federal law. The Privacy Act of 1974 bars the federal government from maintaining records “describing how any individual exercises rights guaranteed by the First Amendment.” That, of course, includes records on expressions of faith.
When considered fully, the effect of Trump’s anti-Muslim policies would be to reproduce the same stigma and discrimination that Muslim New Yorkers suffered, only this time it would be national in scope. Entire Muslim communities would be gripped by fear of their own government.
By continuing to push these policies, Trump demonstrates that he will try and turn religious bigotry into government policy in flagrant violation of one of this country’s bedrock principles. As the Third Circuit Court of Appeals has recognized, “Religious discrimination, ‘by [its] very nature,’ has long been thought ‘odious to a free people whose institutions are founded upon a doctrine of equality.’” The belief in religious freedom has made America a beacon to the world for more than two centuries.
Donald Trump, it seems, is not so impressed.