Posted on 11/17/2016 2:53:50 PM PST by SeekAndFind
The strangest thing about this is that Carl Higbie mentions a key distinction between the two proposals early on in the clip below, before he brings up the Japanese example. The registry involves immigrants, and immigrants don’t get all of the same constitutional protections that citizens do. (Another key distinction: It’s, er, a registry, not an internment camp.) The Japanese interned during World War II were citizens; Trump’s registry would apply to non-citizens entering the United States from terror hot spots abroad. Why Higbie’s reaching for the former to explain the latter, especially when Team Trump has been at pains for months to turn their “Muslim ban” into a less identity-specific “close vetting for anyone from an extremist country” plan, is odd. Maybe he just goofed while scrambling for historical precedents to offer Kelly.
In any case, no, Trump’s registry wouldn’t be unconstitutional. The Bush administration implemented a variation of it, in fact.
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…
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.
Immigration law would afford the government special advantages, Temple University international law professor Peter Spiro said, because it exists in a “parallel universe” where many of the constitutional protections afforded in other legal situations do not apply. He said “discrimination on the basis of nationality is something that, again, one finds all over the immigration law, and in a nonimmigration context would almost certainly not withstand the equal-protection challenges.”
Spiro thinks bringing back NSEERS is a stupid idea, but not every stupid idea is unconstitutional. (“It’s immigration security theater. It’s like the wall: It’s pretty clear that it just has no effect, but it’s a way of keeping the restrictions constituencies … happy.”) Vox, of all places, has a useful short history of NSEERS noting that that program has already withstood constitutional challenges, partly because it was careful not to make religion the key criterion for scrutiny. It’s okay to scrutinize visitors from certain nations that all (or almost all) happen to be majority Muslim. It might not be okay to scrutinize visitors because they themselves are Muslim. Team Trump will surely observe the formal distinction in writing the policy, especially if Kris Kobach ends up being the main author. Then again, Kobach and the Trumpers might not need to write anything. As Vox notes, NSEERS is still on the books but was suspended when the Obama White House eliminated all of the previously targeted countries from the program’s list of nations deserving special scrutiny. Presumably Trump could reactivate it by simply re-adding some nations and signing an executive order.
An interesting question is whether every majority Muslim country will end up on Trump’s version of the list or if it’ll be truly limited to terror hot spots. Do we need to track visitors from the UAE, for instance? And what about the jihadist problem in Europe? Do French and Belgian nationals require special scrutiny? Is there a constitutional way to write the law so that only Muslim visitors from those countries are required to register when they visit? This is why some people are nervous about Higbie reaching for the Japanese example. Bringing back NSEERS might be constitutional but expanding the program to other classes of people might not be, and we already know from his “Muslim ban” proposal last year that Trump seems pretty comfortable with expansion. A would-be strong-man president won’t get the benefit of the doubt on stuff like this. Hopefully Higbie bears that in mind the next time he’s reaching for analogies.
CLICK ABOVE LINK FOR THE VIDEO
Duh, we are at war.
A very, very bad choice of words.
I am more Triggered than a Marine Corps Firing Range!
Safe zone in Syria with help of Russia and Syria.
Repatriate the refugees from here and Europe.
Even I cringed a little when he brought up the Japanese issue.
There is ample evidence that a non-trivial portion of the Muslim population here (including those naturalized) are Islamist terrorist supporters or sympathizers waiting for the right opportunity to strike.
There is no reason to think a “religious ban” is unconstitutional.
Guess some lawyers could make some money off litigating it though.
He should have just brought up Jimmy Carter and left it at that
islam should be no more welcome in the USA than Nazism.
They are both cults of dominance and death.
Recently I saw a panelist make a "bad choice of words," in a discussion of deportation of illegals, by suggesting that illegals could travel back to Mexico by train. The faux horrified reaction of the liberals on the panel (in unison now): "CATTLE CARS!"
Michelle Malkin iirc wrote a book about the Japanese internment that took a less knee-jerk angle. I haven't read it but am now going to look it up.
Like the lefties always tell us, there’s nothing wrong with registries, they never lead to confiscations or bans, you’re just paranoid if you’re against a common sense measure like a registry.
This is called DOCUMENTED immigrant. AKA LEGAL immigration. All immigrants are suppose to be documented and registered. Geesh. When I got my work visa in Germany I had enough documents to make a government worker envious.
Anyone who belongs to an organization that tells its members to murder non-members is a hate group.
Their group advocates the violent overthrow of the government of the USA.
Reasons enough to put them on a list.
And Carter did something similar with Iranians in the country after the hostage crisis, even deporting some.
Back in WWII, they did registries for Italian & German immigrants also.
Only the Japanese-Americans born in the US were citizens. Those who had immigrated were not because they were not allowed to become citizens. How many would have taken out US citizenship if they had been allowed to, I don’t know—I would guess most of them. But there were some who were fanatically devoted to the emperor. The US government could not reveal what it knew about these would-be fifth columnists because that would alert the Japanese government to the fact they had cracked the Japanese code.
Yep. Facts are a b*tch. We are at war. Who cares whom is offended.
Quite the contrary: It lets the enemy know f**k around time is done.
I’ll also point out that Italians and Germans were also watched.
“The other important difference is that there were only a handful of Japanese or Japanese Americans who were not loyal to the United States.
“
There were more than a handful not loyal to the United States, plus take in to the consideration MAGIC - it lends proof to a spy ring among the Japanese. It is hard to say how big or small it was, but more than a handful. And Tule Lake was ground zero for those not loyal to the United States which had a peak population of almost 19,000 including family members.
Internment in WWII was just and a safe measure to protect this country from a threat. If the internment prevented one act of sabotage, it was worth it.
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