David Cole writes: As a candidate, Donald Trump notoriously called for a ban on the entrance of all Muslims, a database to track Muslims in the United States, for aggressive surveillance of “the mosques,” and for closing down mosques. When many pointed out that such religiously targeted enforcement actions would be unconstitutional, he began talking instead about “extreme vetting” – apparently not getting that what the Constitution forbids is selective targeting of a religious group, regardless of the type of burden imposed. Now that he’s President-elect, his transition team is reportedly discussing requiring immigrants from Muslim-majority countries to register with the immigration authorities. Reince Priebus said on “Meet the Press” Sunday that “we’re not going to have a registry based on a religion.” But this is semantics; the transition team is reportedly planning just that, only under the guise of focusing on countries that happen to be majority Muslim. Kansas Secretary of State Kris Kobach, a virulently anti-immigrant hard-liner who introduced a similar registration scheme when he worked for President George W. Bush, is now working with the Trump transition, and told Reuters that the team was discussing reviving the registration scheme, which President Obama had ended in 2011. Kobach maintained that because the program he was discussing would be focused not on religion, but on countries that have a terrorist presence, the scheme would survive constitutional challenges. But there’s a huge difference between what Bush did and what Trump is proposing. Bush’s scheme had a disparate effect on Muslims, but there was no evidence that Bush himself had adopted it to target Muslims. Trump, by contrast, has left a long trail of smoking guns making clear his anti-Muslim intent.
When executive action is challenged as targeting religion, the critical question is intent: If the government can be shown to have intentionally targeted a religious group, its actions violate the Free Exercise Clause. The law need not name the religion by name. It is enough to show that an anti-religious intent was at play. As with race or sex discrimination, if the government takes action that appears neutral on its face but was adopted for the purpose of singling out a racial minority, it is subject to stringent scrutiny and virtually always invalid. [Continue reading…]