Ted Cruz, on the Brussels attacks:
We will do what we can to help them fight this scourge, and redouble our efforts to make sure it does not happen here. We need to immediately halt the flow of refugees from countries with a significant al Qaida or ISIS presence.
We need to empower law enforcement to patrol and secure Muslim neighborhoods before they become radicalized. We need to secure the southern border to prevent terrorist infiltration. And we need to execute a coherent campaign to utterly destroy ISIS.
This is very craftily worded. Cruz is stopping just short of saying that neighborhoods should be targeted by law enforcement for additional patrolling and securing precisely because they are Muslim neighborhoods. However, it is perfectly reasonable to take away exactly this meaning from Cruz’s remarks.
If Cruz meant this in the latter sense, it’s constitutionally problematic, according to Richard Primus, a professor of constitutional law at the University of Michigan who focuses on anti-discrimination law.
“If we interpret this to mean that law enforcement should count the fact that a neighborhood is heavily Muslim as a reason to increase resources devoted to policing it, that’s an equal protection problem,” Primus tells me, adding that it might run afoul of the 5th or 14th amendments, depending on whether it were undertaken by state or federal law enforcement agencies.
“That’s because it selects on the basis of a suspect classification — religion,” Primus says. “If the government wanted to defend such a thing, it would have to go into court and say, ‘We have a compelling national security interest that overrides the normal rules against discrimination.'”
Primus says that, while the courts have a history of sometimes deferring to the government’s claim of a compelling enough interest to override such constitutional protections, he thinks it’s unlikely that Cruz’s prescription would survive the courts.
Of course, it’s conceivable that Cruz didn’t mean it this way, Primus notes. He may have meant that Muslim neighborhoods should be subject to increased scrutiny along with other neighborhoods, rather than selected because they are Muslim.
“He may have meant that we need to increase law enforcement across all neighborhoods where threats might be growing, including Muslim neighborhoods,” Primus says. “That would not raise equal protection problems.”
Cruz spokesperson Alice Stewart issued the following statement clarifying Cruz’s initial comments:
We know what is happening with these isolated Muslim neighborhoods in Europe. If we want to prevent it from happening here, it is going to require an empowered, visible law enforcement presence that will both identify problem spots and partner with non-radical Americans who want to protect their homes.
Local, state and federal law enforcement agencies all have divisions that target threats like drugs, gangs, human trafficking, and organized crime. Radical Islamic terrorism is a significant and growing threat in this country, but this administration refuses to recognize it because they are afraid of being labeled “politically incorrect.” In New York City, Mayor de Blasio succumbed to unfounded criticisms and eliminated the efforts of law enforcement to work with Muslim communities to stop radical Islamic terrorism.
Ted Cruz will never allow political correctness to drive decisions about our security. Innocent, peaceful Americans, no matter their faith, deserve to live in safe neighborhoods; that is what law enforcement exists to do, and that includes preventing radical Islamic terror cells from taking root in them. The police should have every tool available to follow leads and take action against those who would do us harm. That is what Cruz is calling for and it is the basic responsibility of our elected leaders — to prioritize the safety of our citizens.
This does not appear to clarify the precise nature of Cruz’s proposal, at least in terms of whether it raises constitutional problems. “The statement doesn’t clearly disavow a policy of counting the fact that a neighborhood is Muslim, as a reason to increase its policing,” Primus says. “In an environment where we need to worry about both security and anti-Muslim prejudice, it would be helpful if political leaders were clear in saying they do not mean that Muslim neighborhoods should be policed at a higher level simply because they are Muslim.”
Beyond the specific meaning of Cruz’s comments, this is yet another reminder of just how Trump-ified the GOP primaries have become. Remember, Trump has called for temporarily banning Muslim non-citizens from entering the United States and has floated the idea of closing Mosques. Even if you view Cruz’s comments today in the more benign light, they are a reminder of the degree to which Trump has defined the terms of the debate in the GOP nominating contest.
Also: Given that Cruz is a very serious constitutional scholar who has argued cases before the Supreme Court, you’d expect him to be eager to clarify his proposal further and explain why it does not raise constitutional problems.