Will Donald Trump require Muslims to register?

Kris Kobach, the architect of hard-line immigration policies, has reportedly been working with the Trump team to prepare a law requiring Muslims to register. The law would be controversial, but not unconstitutional, experts suggest.

First Look

President-elect Donald Trump might be close to bringing back the Muslim registry, some reports suggest.

Kris Kobach, the Kansas secretary of State, who is responsible for tough immigration laws in Arizona and Kansas, said he has been working with a group of around a dozen immigration policy advisers close to the president-elect’s transition team. The policy group has discussed drafting an Executive Order that would require immigrants from Muslim countries to register with the US government.

President-elect Trump’s supporters would favor the proposal as a measure to “keep tabs” on immigrants, Great America PAC for Donald Trump co-chair Carl Higbie told Fox's Megyn Kelly on Wednesday. And though the law would be controversial, history suggests that it might not be unconstitutional.

The US Supreme Court has “consistently reaffirmed the power of the president to control the entry and exit from the country as a matter of national security,” Jonathan Turley, a law professor at George Washington University in Washington, D.C., told Politico.

Trump made immigration controls a centerpiece of his campaign. He called for a border wall between the United States and Mexico to keep out undocumented immigrants. Secretary Kobach says the wall, too, could be instituted by executive action, and financed – at least initially – by appropriating money from elsewhere in the Department of Homeland Security budget. He also committed to tougher action against undocumented immigrants already in the country, and there are now some suggestions that they could be deported before trial.

The proposal to register Muslims is a shift away from Mr. Trump’s stance during the primary campaign, when he called for all immigrants from Muslim countries to be banned from the US, at least temporarily. Constitutional scholars say the new position is more legally defensible.

There may also be precedent for the move. Mr. Higbie cited controversial measures such as the internment of Japanese immigrants during the Second World War.

More recently, the National Security Entry-Exit Registration System (NSEERS) was implemented by the Department of Justice during the George W. Bush administration, following the Sept. 11, 2001, attacks. People considered “higher risk” were subjected to interrogations and had their fingerprints taken on arrival in the country, while some males over the age of 16 who came from countries with militant threats were required to periodically “check in” with the government.

With one exception, NSEERS applied exclusively to immigrants from Muslim-majority countries.

The law was abandoned in 2011. It was considered ineffective at addressing terrorism threats and came under repeated fire from rights groups for targeting immigrants on the basis of religion.

“You can’t say it’s not discriminatory. It’s only, you know, nationals of certain countries and they’re predominantly Muslim ones,” Temple University professor of international law Peter Spiro told Politico. “It’s terrible policy, zero counterterrorism value, and yet, in this parallel ... constitutional universe that applies to immigration law, pretty constitutional.”

In the more than 9 years it was in effect, the law was never struck down by any court.

Trump’s transition team did not respond to a Reuters request for comment about Kobach’s role in the transition. The president-elect has not committed to following the recommendations of any given advisory group.

Material from Reuters contributed to this report.