Donald J. Trump has advocated profiling U.S. Muslims and Muslim communities as a counterterrorism tool, stating that “We really have to look at profiling [of Muslims]” and “I think there can be profiling.” 58 He also has promoted surveillance of mosques, asserting, “We’re going to have to look at the mosques. We’re going to have to look very, very carefully,” and “We have to go and . . . check . . . the mosques.” He has called upon New York City Mayor Bill de Blasio to reinstitute the New York City Police Department’s surveillance of mosques and Muslim communities, saying that the surveillance was a “good thing” that yielded “frankly good information.” Trump “100 percent” supports Ted Cruz’s statement in favor of additional law enforcement patrols of Muslim neighborhoods, calling them a “good idea.” Trump has also stated he would “certainly implement” a national database requiring the registration of all U.S. Muslims to protect the country against terrorism.
Trump’s statements suggest that as president he would implement policies and programs that would subject American Muslims to surveillance or registration based solely on their religion. Any such federal action would single out and expressly discriminate against American Muslims, violating the U.S. Constitution’s guarantee of equal protection, as well as the First Amendment’s clauses relating to religion and freedom of expression. Trump’s proposal to implement a national database of Muslims would also result in government retention of records based on how a person exercises their First Amendment-protected activities. This would likely violate federal and state privacy laws, and the government’s discriminatory or arbitrary use of such information would violate due process guarantees.
Profiling American Muslims would violate the First and Fifth Amendments.
The U.S. Constitution guarantees equal protection of the laws, and a federal law or policy that intentionally treats Muslims differently on the basis of religion, as Trump has proposed, would be unconstitutional. 59 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.’” 60 Under the equal protection doctrine, courts deem classifications based on certain immutable characteristics “suspect” and analyze those classifications with a heightened degree of scrutiny. 61 Courts around the country have concluded that religion is a suspect classification akin to race and national origin, and they evaluate laws or policies based on an express religious classification with the most demanding scrutiny. 62 A law or policy expressly subjecting Muslims to heightened suspicion, surveillance, or special registration because of their religion, as Trump’s proposals would do, is presumptively invalid. A Trump administration would bear the heavy burden of demonstrating that its policies are narrowly tailored and serve a compelling interest, and it is highly likely that it would fail that test. 63
A law or policy under which American Muslims are subject to blanket surveillance or registration would plainly fail to satisfy the narrow-tailoring requirement of the strict-scrutiny analysis because it applies to an entire category of people based on their beliefs and not on wrongful conduct. 64 Categorical surveillance is unjustified, unnecessary, and ineffective — especially when the government has the alternative of investigating individuals on the basis of reasonable suspicion of actual wrongdoing. Moreover, there can be no compelling government interest in the surveillance of entire communities on the basis of religion. Even if Trump were to claim an interest in protecting national security, the government’s invocation of a categorical national security interest cannot justify wholesale discrimination of Muslims based on unfounded fears. 65 Indeed, the New York City Police Department’s policy of mass surveillance of mosques and Muslim communities, which Trump specifically stated should be reinstituted, was discontinued after its constitutionality was challenged in multiple venues, including by the ACLU. 66 In evaluating an equal protection challenge to that policy, the Third Circuit cautioned against unquestioningly accepting the government’s reliance on security considerations to justify discrimination: “We have learned from experience that it is often where the asserted interest appears most compelling that we must be most vigilant in protecting constitutional rights.” 67
Singling out Muslims for heightened law enforcement scrutiny based on religion would also violate the First Amendment’s Free Exercise and Establishment Clauses. The Free Exercise Clause bars government action that discriminates against religious beliefs or interferes with, restricts, or prevents religious practice related to a sincerely held belief. 68 As the Supreme Court has warned, “a law targeting religious beliefs as such is never permissible.” 69 The same decision notes that “it was ‘historical instances of religious persecution and intolerance that gave concern to those who drafted the Free Exercise Clause’” 70 and that “[t]he door of the Free Exercise Clause stands tightly closed against any governmental regulation of religious beliefs as such.” 71 Under the Free Exercise Clause, “a [law or policy] burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny.” 72 Such a law or policy is presumptively invalid unless the government can show that it is narrowly tailored to serve a compelling interest. Trump’s proposed policies rely on the express classification of, and intentional discrimination against, Muslims on the basis of their religious beliefs. Any such program or policy would burden the exercise of religious faith or practice and, for the reasons explained above, would be highly likely to fail both prongs of a strict-scrutiny analysis. 73 The Establishment Clause bars the government from enacting a law or policy that either favors religion generally, gives preference to one faith over another, or disfavors a particular religion. 74 As the Supreme Court has stated, “Neither a state nor the Federal Government . . . can pass laws which aid one religion, aid all religions, or prefer one religion over another . . . . No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance.” 75 Trump’s proposals to single out Muslims for discriminatory treatment based on their religious beliefs are anathema to these fundamental principles and would be subject to strict scrutiny. 76 For the same reasons set forth above, his suggested policies are unlikely to meet the requirements of this test and, therefore, are highly likely to violate the Establishment Clause. To the extent any Trump proposal is based on American Muslims’ speech or associations, it would also violate the First Amendment’s guarantee of freedom of expression. The First Amendment prohibits the government “from proscribing speech, or even expressive conduct, because of disapproval of the ideas expressed.” 77 Content-based regulations like these are presumptively invalid, subject to only a few narrow exceptions. 78 Those exceptions are not applicable here.
A “database” of Muslims would violate federal law and likely violate the Fifth Amendment.
In addition to being unconstitutional, Trump’s proposal to register all Muslims in a “database” is also likely to violate federal privacy law. For example, the Privacy Act of 1974 bars the federal government from maintaining records “describing how any individual exercises rights guaranteed by the First Amendment.” 79 This statutory protection is subject only to certain narrow exceptions, none of which would apply here. 80 The freedom to practice religion — or no religion — is guaranteed by the First Amendment. A categorical requirement that all American Muslims register with the government by virtue of the fact that they practice Islam, or the fact that the government identifies them as Muslim, is likely to fall afoul of the Privacy Act’s bar prohibiting the government from compiling and maintaining records on people and communities based solely on religion.
Trump has not elaborated on the purpose any such database would serve. To the extent that inclusion in the database has other consequences, such as barring Muslims from flying or singling them out for additional scrutiny at U.S. borders, it is likely also to violate the Fifth Amendment’s Due Process Clause, which “provides heightened protections against government interference when certain fundamental rights and liberty interests are involved.” 81 A federal court has recognized that the “Due Process Clause guarantees more than fair process, and the liberty it protects includes more than the absence of physical restraint.” 82 Any deprivation of a person’s rights or liberties as a result of inclusion in Trump’s proposed database would have to be weighed against both the government’s interest in the law or policy and the risk of erroneous deprivation of that right. 83 It is highly unlikely any law or policy creating a discriminatory, Muslim-specific database would satisfy due process.
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58 Th ese quotations, and others included here, are taken from the Trump On Surveillance/Profiling of Muslims & A Potential Muslim Database compilation of statements.
59 See U.S. Const. amend. XIV, § 1. Although the Fourteenth Amendment’s equal protection clause does not apply to the federal government, the Supreme Court has made clear that the Fifth Amendment’s guarantee of due process includes the right to equal protection with respect to federal laws and policies. Bolling v. Sharpe , 347 U.S. 497, 499 (1954) (“[T]he concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The ‘equal protection of the laws’ is a more explicit safeguard of prohibited unfairness than ‘due process of law,’ . . . [D]iscrimination may be so unjustifiable as to be violative of due process.”
60 Hassan v. City of New York , 804 F.3d 277, 302 (3d Cir. 2015) (quoting Bell v. Maryland , 378 U.S. 226, 228 (1964) (Goldberg, J. concurring)) (alterations in original).
61 See, e.g. , City of New Orleans v. Dukes , 427 U.S. 297, 303 (1976); Hassan , 804 F.3d at 302 (“Courts first have looked with particular suspicion on discrimination based on ‘immutable human attributes.’ Accordingly, a classification is more likely to receive heightened scrutiny if it dis- criminates against individuals based on a characteristic that they cannot realistically change or ought not to be compelled to change because it is fundamental to their identities.” (quoting Parham v. Hughes , 441 U.S. 347, 351 (1979) (plurality opinion))).
62 See, e.g. , Dukes , 427 U.S. at 303; see also Hassan , 804 F.3d at 299-305; Alpha Delta Chi-Delta Chapter v. Reed , 648 F.3d 790, 804 (9th Cir. 2011); Abcarian v. McDonald , 617 F.3d 931, 938 (7th Cir. 2010).
63 See, e.g. , Grutter v. Gratz , 539 U.S. 306, 326 (2003); Plyler v. Doe , 457 U.S. 202, 216-17 (1982). Trump’s proposals rely on the express classi- fication of Muslims. But even a facially neutral law or policy that applied to American Muslims with a greater degree of severity than it did to other religious groups, or that intentionally had an adverse effect on Muslims, would also violate the Constitution’s guarantee of equal protection. See, e.g. , Village of Arlington Heights v. Met. Hous. Dev. Corp. , 429 U.S. 252, 264-65 (1977); Yick Wo v. Hopkins , 118 U.S. 356, 373- 74 (1886); Jana-Rock Constr. v. New York State Dep’t of Econ. Dev. , 438 F.3d 195, 204 (2d Cir. 2006) (“A law which is facially neutral violates equal protection if it is applied in a discriminatory fashion. Government action also violates principles of equal protection if it was motivated by discriminatory animus and its application results in discriminatory effect.”).
64 A n alternative, more tailored policy would, for example, require fact-based investigations of suspected criminal conduct. See, e.g. , Hassan , 804 F.3d at 306 (“[S]trict scrutiny requires that ‘the classification at issue . . . fit with greater precision than any alternative means.’” (quoting Wygant v. Jackson Bd. of Educ. , 476 U.S. 267, 280 n.6 (1986) (plurality opinion)).
65 See id . at 306 (“To be clear, we acknowledge that a principal reason for a government’s existence is to provide security. But while we do not question the legitimacy of the City’s interest, ‘[t]he gravity of the threat alone cannot be dispositive of questions concerning what means law enforcement officers may employ to pursue a given purpose.’” (quoting City of Indianapolis v. Edmond , 531 U.S. 32, 42 (2000)); id . at 307 (“Given that unconditional deference to the government’s invocation of ‘emergency’ has a lamentable place in our history, the past should not preface yet again bending our constitutional principles merely because an interest in national security is invoked.” (internal citations, quotations, and alterations omitted)).
66 See generally Stipulation of Settlement and Order, Raza v. City of New York , No. 13 CV 3448 (S.D.N.Y., Jan. 7, 2016), available at https://www. aclu.org/legal-document/raza-v-city-new-york-settlement-stipulation-and-order ; Hassan , 804 F.3d at 277.
67 Hassan , 804 F.3d at 306-07.
68 Church of Lukumi Babalu Aye, Inc. v. City of Hialeah , 508 U.S. 520, 533 (1993).
69 Id .
70 Id . (quoting Bowen v. Roy , 476 U.S. 693, 703 (1986)).
71 Sherbert v. Verner , 374 U.S. 398, 402 (1963) (citation omitted).
72 Lukumi , 508 U.S. at 546.
73 Id . at 533.
74 U .S. Const. amend. I.
75 Everson v. Bd. of Educ. of Ewing Township , 330 U.S. 1, 15-16 (1947) (citation omitted).
76 See Awad v. Ziriax , 670 F.3d 1111, 1130-31 (10th Cir. 2012) (holding, in ACLU case, that Oklahoma did not have a compelling state interest in enacting an anti-Muslim constitutional amendment that prohibited courts from considering so-called “Sharia law,” and that the amend- ment was not narrowly tailored under the strict-scrutiny test); see also Larson v. Valente , 456 U.S. 228, 246-47, 254-55 (1982) (ruling that a law or policy that discriminates among religions is subject to strict scrutiny).
77 R.A.V. v. City of St. Paul, Minn. , 505 U.S. 377, 382 (1992) (internal citations omitted).
78 Id . (citations omitted) (objections include obscenity, defamation, or “fighting words”).
79 5 U .S.C. § 552a(e)(7).
80 Id . (these exceptions include express authorization by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity).
81 Ibrahim v. Dep’t of Homeland Security , 62 F. Supp. 3d 909, 928 (N.D. Cal. 2014) (citing Washington v. Glucksberg , 521 U.S. 702, 720 (1997)).
82 Glucksberg , 521 U.S. at 720 (quotations and citations omitted).
83 See, e.g. , Ibrahim , 62 F. Supp. 3d at 928 (citing Mathews v. Eldridge , 424 U.S. 319, 335 (1976)).