You can’t Trump the constitution

In 1944, with tensions between the US and Japan at their peak, a moral panic resulted in one of the most infamous decisions in the constitutional history of the US: Korematsu versus The United States. Internment camps for Japanese-Americans were found constitutional. Writing for the majority of the court, Justice Black struggled to avoid the racist subtext surrounding the issue. It was not that these people were of Japanese ethnicity, he wrote, it was because the US was at war with Japan.

Fast-forward to the present. In Boston, an elementary school teacher was posed a constitutional query by a nine-year-old Muslim: “If Donald Trump gets elected, will me and my family be deported?” Trump has proposed that if he is elected president, he would ban Muslims from entering the country. After all this time, does the Constitution of the US permit another blemish like Korematsu to stain its rhetoric of equality?

Trump’s proposal rests on the presumption that people of the Islamic faith pose a greater threat to the country than everyone else. This is an argument regarding religious profiling. A scheme prohibited under the Constitution, which proscribes profiling on the basis of a person’s race or religion. There is a well-established legal framework that says that policies that pick out people for discriminatory treatment, on the basis of their religious faith, are unconstitutional.

Neither would the proposed plan stand on some national security rationale. Most commentators that have argued for this position cite Korematsu as precedent. This reliance is flawed as it misunderstands the lessons that the American constitutional jurisprudence has derived from that case. Korematsu has become the sort of case that, although technically still not overruled, is so universally reviled that it is difficult to fathom the government ever making an argument for a ban on Muslims by relying on this case. For example, in the wake of 9/11, the lawyers for the government, even when defending preventive detention regimes, never cited Korematsu. The case has actually come to be seen as standing for the opposite of what it held. The law now sees policies that facially discriminate against people on the basis of race or religion, even for the purpose of national security, as unconstitutional. Korematsu’s weight as precedent is further put into doubt when it is considered that the government lied and misrepresented facts before the courts to get the decision it wanted.

Other arguments have pointed to immigration law as a distinct line of reasoning that could justify the ban. These arguments rest on the misplaced assumption that immigration law is somehow an ‘exceptional’ area of law that could operate outside constitutional confines. This is pure fallacy. The constitutional trajectory of the US Supreme Court’s immigration decisions, post-World War II, shows that it has never upheld an immigration policy that openly discriminated on the basis of race, religion or ethnicity.

More sophisticated defences of the ban point to how none of the above-mentioned arguments would be relevant, because Muslims trying to enter the US, not being citizens, would have no standing to bring a case challenging the ban. This line of reasoning misunderstands and takes a shallow view of the standing rules in US Constitutional Law. The Guantanamo Bay cases show that even non-citizens have standing before the courts.

So, can Muslims rest easy, knowing that the Constitution of the US would never allow someone like Donald Trump to enact such a proposal? If a ban is openly discriminatory, as proposed by Trump, then yes. However, if Trump operates in a more sophisticated way, then things become problematic. For example, in the aftermath of 9/11, immigration policies were implemented that made it more difficult, because of more stringent protocols, for people from certain countries of origin to obtain visas to enter the US. The list of countries was predominantly Muslim. Although these policies discriminated against people of the Muslim faith, they were facially neutral i.e., they did not make explicit their targeting of Muslims. Couple that with how hard it is to prove that the government is indulging in profiling and you are out of luck with a constitutional challenge.

Armed with a team of cunning lawyers, Trump could achieve his plan without having to take the Constitution head-on. The best defence is for the people of the US to exercise the ballot to ensure that Trump never gets that far. 

Published in The Express Tribune, March 25^th, 2016.

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