As the Trump transition rolls along, the infamous “Muslim ban” has returned to the forefront.

It all started on December 7, 2015, when then-candidate Donald Trump spoke to supporters after the San Bernardino mass shooting. He advocated a “total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” This proposal is still on his website.

It has been willfully forgotten or explained away since, but the fact remains: Trump’s first instinct was to call for a Muslim ban of indeterminate length.

It doesn’t stop there. Even in July, Trump said his plan had undergone an “expansion” and would bar individuals from places “compromised by terrorism.” This includes NATO allies like France and Germany. They “totally” meet this definition, Trump said, because they “allowed people to come into their territory.”

Early justifications

We then come to this week, when Trump surrogate Carl Higbie openly floated 1940s-era Japanese internment camps as legal precedent for a Muslim registry. When pressed, he fell back on the line: “Look, the president needs to protect America first.”

This, of course, might sound familiar — it’s the go-to justification for any number of grotesque policies which authoritarian regimes have implemented since time immemorial. And despite having been denounced in the decades since, the legal underpinnings for internment (as set out in Korematsu v. United States) have never been judicially overturned. All that is needed is for a president to give a similar order.

At his speech in Gettysburg earlier this year, Trump said he would suspend immigration from terror-prone regions where vetting cannot safely occur.

What are these countries? He didn’t say. But under the Immigration and Nationality Act of 1952, the president has the authority to bar non-citizens defined as “excludable aliens” from the United States — so it’s Trump’s decision.

Absurdity of the list

So now we’re talking about a Muslim registry. There are not just ethical reasons to be concerned about this type of list. Simply put, the list, by its very nature, is absurd.

Let’s start by asking: How does one go about assembling such a list? There are two sets of people who would need to be considered: citizens and non-citizens.

Non-citizens would presumably be tracked upon arrival. A framework exists for this process: the National Security Entry-Exit Registration System, which registers individuals entering the United States from designated countries. The program, which began under the George W. Bush Administration, is currently “on ice” since President Barack Obama cleared the list of qualifying countries.

Did the program work? No. It tore apart the relationship between law enforcement and local communities and didn’t catch a single terrorist.

It did, however, place over 13,000 out of 80,000 registrants (PDF) in deportation proceedings for minor visa violations in 2003 alone.

In other words, the federal government engaged in an opaque, selectively tough enforcement of visa laws for those of Muslim origin which served no counterterrorism purpose whatsoever.

Some, including Trump transition team member Kris Kobach, have suggested that Trump may restart the program by putting new countries on the NSEERS list.

But which countries? Here’s the problem: Trump wishes to “protect” us from questionable individuals entering from “compromised” countries. Under some definitions, including Trump’s, this could encompass much of Europe. Are we really going to track all Belgians, French and Germans entering the United States?

Probably not. But therein lies another wrinkle. Unless we are going to track all such persons, someone in the government will need to determine the exceptions. How do you determine a private individual’s religious beliefs? Someone who is Muslim could just say “I am not Muslim” to avoid going on the list, thus making it an entirely opt-in system. And unless public officials are tasked with determining the truth of religious professions, the list has zero utility.

This thought-crime problem is even more of an issue when you consider the roughly three million Muslims already in the United States, many of whom are citizens. Who determines whether somebody is sufficiently Muslim to be tracked? Will individuals within the Trump Administration compile this portion of the list themselves? Presumably it won’t be opt-in, because its very raison d’être would be to track hardened, homegrown terrorists. At least, that is what the argument has been. Surely, mere civil or criminal penalties for not voluntarily signing up could never be expected to coerce terrorist agents to reveal themselves to authorities.

How then can the government track whether somebody is substantially Muslim? Will the agency tasked with this mission track mosque attendance? Perhaps they’ll track purchases of Qurans, prayer rugs, hijabs and burqas.

But what if somebody wants to attend prayer services or purchase such items without subscribing to Islam?

In 2010, I took a college course which caused me to visit three mosques for my studies. Would that have got me on a deportation list? Or will there be a certain amount of freebies before an individual is considered suspect? Perhaps non-Muslims will have to sign a waiver indicating non-adherence to the tenets of Islam before engaging in “suspicious activities”?

What if someone on the list decides they don’t believe in Islam (anymore)? What will they have to do to prove they ought to be removed? Who will make the final judgment that an individual is no longer sufficiently Muslim to qualify? If it becomes possible to remove one’s self due to non-belief, the question becomes: Is it a good thing that federal policy encourages conversions away from Islam in exchange for more freedom?

Consider also the reverse. What if someone converts to Islam? Will they be required to fill out paperwork? Who will hand out this paperwork? Will it be mosques? What if converts do not choose to attend a mosque? Suppose someone reads the Quran and decides to convert but doesn’t tell anybody. What happens then?

It could happen

The whole concept is absurd and has horrifying historical parallels. As discussed, upon assuming the presidency, Trump could in fact legally initiate this type of monitoring. But more worrisome is the prospect of what could happen in the event of a latter-day September 11?

With Muslim paranoiacs like Steve Bannon, Michael Flynn and possibly Frank Gaffney advising him, who is to say we may not see these kinds of policies — or worse — following a major 9/11-style terror attack on American soil?

Given recent history, a panicked Congress could vote for anything the White House proposed as long as it looked tough. And as for those actions which the executive could initiate alone, it is unlikely Congress or the courts would stand in the way.

More worrisome: What if such an attack were to take place and the lists already exist?

A Muslim ban, registry or list is not a theoretical concept. It has been proposed by the president-elect of the United States. And to function as intended, such a construct would have to trample upon basic human rights. There is no way to implement such a ban without engaging in investigation of thought crimes. For the party which is presumably about freedom and nonintrusive government, this seems to be an anathema.

Either now or later, it will fall to Paul Ryan and congressional Republicans to determine their core values and understanding of history.