Looking out my window in lower Manhattan, and with Donald Trump’s inauguration just a few days behind us, it’s hard to stop thinking that a Muslim man, sitting in a chair with shackles attached to it, could be interrogated at 26 Federal Plaza, hardly a mile from where I sit. For what? Immigrating to the United States from a Muslim-majority country.

Disturbing? Yes. But what’s more disturbing is that I’m not just envisioning a future Trumpian dystopia. I’m also thinking about a court case brought by a victim of the post-9/11 “NSEERS” program, which singled out immigrants from 24 Muslim-majority countries (and North Korea) for special interrogations and deportation enforcement.

Trump is already headed down a similar path, losing no time putting his campaign promises into action. On Wednesday, he’s expected to sign an executive order that would institute a temporary ban on most refugees and a suspension of visas for citizens of Syria, Iraq, Iran, Libya, Somalia, Sudan and Yemen, Reuters reported.

With the Trump administration in mind, I want to look at how the courts ruled on the constitutionality of the previous NSEERS program, and the question of whether different forms of discriminatory immigration programs would violate the Constitution.

In December, the regulatory framework for the NSEERS program, which has been inactive since 2011, was officially dismantled by the Obama Administration. But this move may only cause a slight delay (by requiring a new rulemaking process) if the Trump Administration wants to update and reintroduce the NSEERS screening and tracking system.

While the NSEERS program provides the most obvious precedent for what lies ahead, the debate about the constitutionality of Trump’s anti-Muslim immigration plans has largely focused on cases from the 1970’s (or earlier), and has omitted discussion of what the federal courts actually said when faced with another allegedly anti-Muslim immigration program just a few short years ago. 

The issue at the heart of the debate is the “plenary power doctrine” (a controversial doctrine that many scholars have criticized as incoherent). This constitutional principle requires the judicial branch to give exceptional deference to the government on certain immigration issues, allowing it to “make rules that would be unacceptable if applied to citizens.” The question is whether this deference even applies to policies that discriminate based on “suspect classifications” (e.g. race, religion, national origin), which is virtually always unconstitutional outside of the sphere of immigration policy.

Michael Price and Faiza Patel’s excellent post on Lawfare last month, begins a necessary post-Trump reevaluation of the NSEERS rulings, giving us a sense of how courts might apply the plenary power doctrine to Trump’s plans. They write:

Federal courts previously found the NSEERS program constitutional, but they also warned that they would reach a different conclusion if there were evidence that the program was based on religious animus.

I think that’s an accurate depiction of the Second Circuit precedent they link to, but here I want to offer a more granular analysis that provides more precision and nuance in how the courts actually ruled on the program. Specifically, I want to explain how the courts ruled on the question of whether a sufficiently discriminatory immigration program could violate the Equal Protection component of the Fifth Amendment’s Due Process Clause. (Note: There are several upcoming Supreme Court cases that could significantly change the law in this area, including Abbasi, on discrimination, and Jennings and Castro, on how the Constitution applies to different classes of immigrants to the United States).

To start, eight federal appellate courts addressed the equal protection argument, and as Price and Patel suggest, all of them upheld the program, noting that discrimination based on nationality is permissible in the immigration context. Crucially though, not all of the courts “warned that they would reach a different conclusion if there were evidence that the program was based on religious animus.”

For example, three courts upheld the program against Equal Protection challenges but were completely silent about whether such a case would violate the Constitution: the Fourth, Fifth, and Eleventh Circuits.

On the other end of the spectrum, two of the courts — the Second and the Seventh Circuit (drawing from the Supreme Court’s majority opinion in Reno v. American-Arab Anti-Discrimination Comm.) — did seem to warn (in a nonbinding statement) that there are some hypothetical discrimination policies that are so “outrageous” that they would violate the Constitution:

“We agree that a selective prosecution based on an animus [against a religion, ethnicity, gender, or race] would call for some remedy.” – Rajah v. Mukasey, (2d Cir. 2008) (emphasis added)

“Although a narrow exception remains for certain ‘outrageous’ cases, Ali’s bare allegations of discrimination are insufficient to invoke that exception.” Iqbal Ali v. Gonzales, (7th Cir. 2007) (emphasis added)

These views seem supported by Justice Ginsburg’s concurrence in Reno, where she accepts that some reasons for deportation would be “forbidden by the Constitution.’”

In Reno, the Supreme Court held that immigrants who are unlawfully in the country and targeted for deportation on the basis of their membership in the Popular Front for the Liberation of Palestine had no constitutional right to challenge their deportation on the ground that it resulted from discriminatory enforcement based on their political association. On the other hand, the Court explicitly left open “the possibility of a rare case in which the alleged basis of discrimination is so outrageous,” that it could be successfully raised as a defense to a deportation order.

Also drawing from Reno, the First, Third, and Ninth Circuits’ NSEERS decisions did not definitively recognize that some forms of discriminatory immigration enforcement would be unconstitutional. Instead, the First Circuit merely said that the Supreme Court did “leave open” the possibility. The Third Circuit merely noted that the Court “did not foreclose” the possibility. And the Ninth Circuit simply said that there “may be” such a case.

Sadly, it seems that while they weren’t silent on the matter (like the Fourth, Fifth, and Eleventh Circuits), none of these three courts provided the definitive warning I was hoping for either.
So what does all that mean for Trump’s plans?

As a general matter, we can confidently say that the federal courts are much more open to invalidating immigration policies that discriminate based on religion than many scholars have suggested.

Beyond that, these cases don’t tell us a whole lot. The only definitive statements on this point were made in dicta (a nonbinding statement) in the Second and Seventh Circuit cases. And the rest of the decisions were either equivocal about it or failed to address it entirely.

There are also several important potential differences between these NSEERS cases and future litigation over a possible Trump program.

All of the relevant NSEERS cases involved the deportation of undocumented immigrants.  That bodes well for challenges to a potential Trump program because they may be brought on behalf of immigrants lawfully in the United States, making it much harder for the government to deflect the Constitutional arguments. The decision in Reno turned on the undocumented status of the immigrants involved. An immigrant lawfully in the U.S. would be much more likely to prevail against such a program (or elements of that program).

Relatedly, if future litigants (including undocumented immigrants) merely seek an injunction to stop such a program, they will likely be on much firmer ground than those who sought to block their deportation. For one thing, even if an undocumented immigrant lacks a right to admission, they might still have a right not to be discriminated against. It’s unsurprising that the courts set a high bar in the NSEERS cases, given that ruling in the immigrants’ favor would have meant allowing an “ongoing violation” of immigration law. Essentially, these undocumented immigrants were arguing that because they were “outed” through a discriminatory process, that they should be allowed to stay. That’s obviously a significantly different and more ambitious claim—and it allowed the courts to avoid the equal protection question by arguing that it had no bearing on the immigrants’ legal status.

On the other hand, a ban on Muslims entering the country would be on stronger legal footing than a deportation program that targeted Muslim immigrants (which would in turn be stronger than an interrogation/registry program, which would be the most likely to be overturned). That’s because: (1) immigrants on U.S. territory generally have more protection than prospective immigrants abroad; and (2) deportation decisions receive more scrutiny than the decision to exclude in the first place. Therefore, even if courts found anti-Muslim immigration enforcement so “outrageous” that they would invalidate otherwise lawful deportation orders – they could simultaneously find that (1) individuals outside the U.S. lack standing to challenge a ban on entry; or (2) that such a ban would be permissible under the plenary power doctrine. Thus, while it might seem incoherent, the government could theoretically maintain a ban on Muslim immigration, yet be legally prevented from targeting undocumented Muslims who make it onto U.S. soil for deportation.

[As an aside, Trump’s campaign proposals were so egregious that courts may be willing to interpret standing broadly and other doctrines more creatively in these particular cases to confront the underlying harm.]

Another crucial consideration here is that Trump’s plan probably won’t explicitly discriminate based on religion, but will instead use nationality as a proxy for targeting Muslims. Even though Trump has admitted that this is a ploy to circumvent criticism, this certainly makes the legal argument against it more difficult.

Even if such religious discrimination is unconstitutional, it’s not clear what kind of evidence would be sufficient to demonstrate it’s the motivation behind the policy. The NSEERS decisions don’t provide much guidance. Briefs from previous cases suggest that virtually the only evidence courts were offered was the list of countries on the NSEERS list, along with the bare assertions that the program was motivated by anti-Muslim sentiment. The Trump Administration, on the other hand, is going to have to deal with mountains of evidence of animus from the campaign trail. In that light, I’m optimistic that Price and Patel (and David Cole) are correct, and that this will be enough to persuade at least some courts that an NSEERS 2.0 program would be unconstitutional. But unfortunately, reading Paul Rosenzweig’s critique has convinced me that it’s at least not obvious that these courts would be willing to invalidate a policy based primarily on comments made by a presidential candidate on the campaign trail.

One thing is obvious though: if Trump’s proposed immigration plans are upheld, the Muslim immigrants whose lives will be changed by it across the country will be rightfully “outraged” by such transparent anti-Muslim discrimination, even if the courts pretend not to see it. And I will be outraged along with them.

Image: Spencer Platt/Getty