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“Offensive and Unconstitutional” 1 “Offensive and Unconstitutional” Legal and political strategies for defeating President Trump’s Muslim immigration ban2 COPY NOT By XXXXXXXXX DO Harvard Law School Class of 2017 1 Vice President Mike Pence responding to President Trump’s call for a ban on Muslim immigration, quoted by Madeline Conway, Trump stokes fears he’ll pursue Muslim ban, POLITICO (Dec. 22, 2016), http://www.politico.com/story/2016/12/trump-muslim-ban-kellyanne-conway-232912. 2 Photo courtesy of circa.com Table of Contents FORWARD ............................................................................................................................................................... 2 I. INTRODUCTION AND BACKGROUND ......................................................................................................... 4 II. A PURE ENTRY BAN ON ALL MUSLIMS ..................................................................................................... 7 A. IMMIGRATION AND THE CONSTITUTION: THE PLENARY POWER DOCTRINE ............................................................ 9 B. LITIGATION STRATEGY #1: ATTACK THE PLENARY POWER DOCTRINE ................................................................. 10 C. LITIGATION STRATEGY 2: FIRST AMENDMENT ESTABLISHMENT CLAUSE CLAIMS .............................................. 12 1. Possible Ruling #1: The Establishment Clause Stops at the Border ........................................................ 13 2. Possible Ruling #2: Strict Scrutiny Applies but the Government Meets Its Burden .......................... 14 3. Possible Ruling #3: Strict Scrutiny Applies and the Government Does Not Meet Its Burden ....... 15 4. Possible Ruling #4: Government Prohibited from Deciding Who is a Muslim .................................... 15 5. The Establishment Clause and a Facially Neutral Ban that Results in a Disparate Impact Against Muslims .................................................................................................................................................................. 16 D. SECTION II CONCLUSION .................................................................................................................................................. 18 III. REINTRODUCING THE NATIONAL SECURITY ENTRY-EXIT REGISTRATION SCREENING (NSEERS) PROGRAM OR SOME SIMILAR MEANS OF TRACKING MUSLIMS ...................................... 18 A. BACKGROUND ON NSEERS ............................................................................................................................................. 19 B. OPTION 1 FOR PRESIDENT TRUMP: ATTACK THE RULE THAT REMOVED THE RULE ........................................... 23 1. Use the Congressional Review Act to Override the Removal Rule ............................................................ 23 2. Challenge the Removal Rule in Court ................................................................................................................... 27 C. OPTION 2 FOR PRESIDENT TRUMP: USE NOTICE-AND-COMMENT TO COPYISSUE A NEW RULE ................................. 32 D. OPTION 3 FOR PRESIDENT TRUMP: USE THE LEGISLATIVE PROCESS TO PASS A LAW THAT CREATES A REGISTRY ................................................................................................................................................................................. 33 E. SECTION III CONCLUSION ................................................................................................................................................. 38 IV. EXTREME VETTING ..................................................................................................................................... 39 A. LITIGATION STRATEGY #1: ATTACK EXTREME VETTING UNDER THE INA ........................................................... 39 B. LITIGATION STRATEGY #2: ARGUE THAT EXTREME VETTING LAWS WOULD VIOLATE THE ESTABLISHMENT CLAUSE ..................................................................................................................................................................................... 41 C. LITIGATION STRATEGY #3: ARGUE THAT GOVERNMENT’S EXERCISE OF DISCRETION UNDER EXTREME VETTING VIOLATES THE ESTABLISHMENT CLAUSE ......................................................................................................... 42 D. LITIGATION STRATEGY #4: ATTACK THE NOTSCOPE OF EXTREME V ETTING ............................................................... 44 E. SECTION IV CONCLUSION ................................................................................................................................................. 45 V. SUSPEND IMMIGRATION FROM THE MIDDLE EAST .......................................................................... 46 A. IMMIGRATION BANS ENACTED BY LAW ......................................................................................................................... 46 B. BANS BY PRESIDENTIAL PROCLAMATION ..................................................................................................................... 47 C. REDUCING REFUGEE INTAKE TO ZERO UNDER THE 1980 REFUGEE ACT .............................................................. 49 D. SECTION V CONCLUSION ................................................................................................................................................... 51 VI. CONCLUSIONDO ................................ .................................................................................................................. 51 1 Forward Written March 21, 2017 – 52 Days after the implementation of President Trump’s first Muslim Ban This paper began the day after the 2016 Presidential Election. I had been planning to write about how technology should play a role in immigration reform, but I woke up on November 9th to a country that was no longer interested in any immigration reform that did not involve mass deportations, denial of refuge to refugees, and all manner of police state tactics premised on racial and religious profiling. To me, a former Coast Guard officer who had seen the inhuman reality of immigration enforcement firsthand, President Trump’s rhetoric on the campaign trail represented the very worst of America. I decided to write this paper to help those I knew who would be fighting for the very best. It would be a roadmap to mounting legal challenges against one of the President’s most vile campaignCOPY promises: the Muslin Ban. Coming back from final exams and winter break, I absconded to the library and wrote this paper over ten cold, rainy days in January. My advisor received my first complete draft on January 20th – Inauguration Day. By the January 27th, the hypothetical situation imagined in Section V had become a reality and this paper began making its way to lawyers and law professors around the country, includingNOT to Lee Gelernt of the ACLU. Since then, it has helped inform multiple projects; most notably the Harvard Immigration and Refugee Clinic’s amicus brief to the E.D.N.Y case Darweesh v. Trump. A fair portion of this paper is outdated at this point, as the Ban became a reality after its completion,DO the courts barred it, it came back in weakened form, and the appeals on that version are still pending. Additionally, much ink has been spilt on nearly all of the topics covered within. However, I don’t see that as a drawback. Rather, it highlights two important points. First, the contents of this paper proved pertinent, and thus valuable. Second, that these topics have since 2 been covered elsewhere is a testament to the broad swath of the citizenry that saw some ugly happen and decided to stand up, decided to join the resistance. I am proud to have been there to witness it and, I hope, to have helped in some small way. COPY NOT DO 3 I. Introduction and Background President Trump’s election sent shockwaves of fear through immigrant and minority communities throughout the U.S. When not insulting reporters or starting Twitter wars with celebrities, President Trump spent a sizeable portion of his campaign advocating for draconian immigration reforms and other discriminatory domestic policies that promise to trample civil liberties for broad swaths of the population. His favorite talking point seemed to be the “beautiful wall” he intends to build between the U.S. and Mexico,3 insisting Mexico will pay for this wall or face a ban on the export of remittances.4 The President of Mexico, Enrique Peña Nieto, disagreed with this plan after then-candidate Trump’s visit to Mexico, sparking another Twitter war.5 President Trump is also fond of saying that he will deport a record number of criminal aliens, though it has been unclear how he defines criminal.6 Some of his assertions would seem to indicate that he means extremely minor violations by thoseCOPY present in the U.S. without proper immigration documents.7 While all of these statements and policies are troubling, one of President Trump’s most frightening pronouncements for immigration and civil rights advocates has been his proposed ban on Muslims entering the country. President Trump campaigned on the vague promise of banning Muslims from entering NOTthe U.S., arguing that doing so would prevent terrorists from 3 Amy Chozick & Manny Fernandez, Trump Seeks Path for Mexico Barrier. But Will It Be a ‘Big, Beautiful Wall’?, N.Y. TIMES (Dec, 22, 2016), https://www.nytimes.com/2016/12/22/us/trump-mexico-wall.html. 4 See Bob Woodward & Robert Costa, Trump reveals how he would force Mexico to pay for border
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