During the course of the campaign and since the election, President-elect Trump has offered shifting policy proposals regarding the treatment of those who identify as Muslim.
He first proposed “a total and complete shutdown of Muslims entering the United States.” Later, Trump slightly amended the proposal from a ban on Muslims to a call to “temporarily suspend immigration from some of the most dangerous and volatile regions of the world that have a history of exporting terrorism.” He further suggested a system of “extreme vetting” of immigrants to ensure that they “share our values and respect our people.”
When reporters questioned Trump about whether he supported a policy requiring Muslims to register with a government entity, he declined to rule it out and signaled support for the idea.
Perhaps more troubling than his proposals, Trump has surrounded himself with advisers and he has nominated individuals to Cabinet-level positions who have expressed opinions that civil rights organizations have deemed anti-Muslim and offensive. Many of these people will be instrumental in crafting the policies of a Trump administration. This will be answered in two parts in print.
Since the election, Trump hasn’t offered specifics on how he would implement “extreme vetting” or how it would differ from the current process. The current vetting system involves multiple federal intelligence and security agencies as well as the United Nations. Refugee vetting typically takes one to two years and includes numerous rounds of security checks. Refugees from certain countries, like Syria, must present more identity documents than those from other countries. In addition, U.S. naturalization law already requires adherence to “the principles of the Constitution” and rejects advocates of a variety of ideological positions and those who, in the judgment of immigration officials, have proclivities to commit various crimes.
How or whether Trump will alter the current system is uncertain. Regardless, federal law provides the president significant discretion. The Immigration Naturalization Act says the president can refuse entry to “any alien or class of aliens he deems detrimental to the interests of the U.S.” As long as Trump doesn’t specifically target individuals based on religion, he will likely be able to implement a stringent vetting system.
Trump has expressed support for reactivating the national registration of all Muslim immigrants, a program called National Security Entry-Exit Registration System or NSEERS. The system, created by President George W. Bush following 9/11, required noncitizens from 25 countries to register when they arrived in the U.S., undergo more thorough interrogation, and be fingerprinted.
Under the program, nearly 100,000 individuals were registered and thousands detained and investigated without resulting in any convictions for terrorism-related activities, although 14,000 were deported for overstaying visas. While President Barack Obama discontinued NSEERS in 2011, the program remains technically intact.
The American Civil Liberties Union (ACLU) has pledged to challenge as unconstitutional any efforts by Trump to reinstate NSEERS. On the one hand, any registry program targeting a specific religious group would violate equal rights and religious freedom protections guaranteed under the Constitution. But as noted earlier, Congress has given the president significant discretion in this area and courts have been reluctant to second-guess executive decisions regarding immigration.
National Security Adviser
Trump has appointed Lt. Gen. Michael Flynn to be the White House national security adviser. Flynn has described Islam as a “cancer” and a “political ideology” that the Founding Fathers would reject. MTrump has come under fierce criticism for the appointment, which does not require Senate consent. Flynn has been criticized for spreading false stories, re-tweeting anti-Semitic threats, dabbling in conspiracy theories and Islamophobia, for his questionable ties to foreign governments, and for mishandling classified information while at the Defense Intelligence Agency (DIA), a post he was forced to leave.
Shortly after the election, Trump appointed Steve Bannon as chief strategist and senior advisor. Bannon ran Breitbart News from 2012 to 2016. The conservative news outlet is known for promoting a nationalist line that portrayed Muslims as a threat to the U.S. and which critics have called bigoted.
Department for Homeland Security Nominee
Many of Trump’s policies will be implemented through the Department of Homeland Security (DHS). Although the DHS was created to coordinate the battle against terrorism, it is now equally known for its immigration role. Trump has nominated Ret. Marine General John Kelly to run the DHS. Kelly, who is described as “hawkish,” has significant military experience in both the Middle East and Latin America. He finished his career overseeing Guantanamo Bay and described Obama’s decision to close it as “misguided.” Compared to Trump, however, he has offered more measured rhetoric on Islam, stating that U.S. troops “respect and even fight for the right of your neighbor to venerate any God he or she damn well pleases.”
Given his advisers and nominees, Trump appears poised to implement some of the policies he discussed on the campaign trail. Congress and the courts will need to act as checks on whether his actions are within constitutional boundaries.
Santa Barbara and Ventura Colleges of Law (COL) Dean Jackie Gardina’s extensive experience in higher education includes both academic and administrative positions.
Established in 1969, COL, an accredited nonprofit institution was founded to expand opportunities and broaden access to legal education. For more information, visit www.collegesoflaw.edu.