Musings on Muslim Ban 2.0

March 13, 2017
Guest Post

by Shoba Sivaprasad Wadhia, Samuel Weiss Faculty Scholar & Clinical Professor of Law; Director, Center for Immigrants’ Rights Clinic, Penn State Law

On March 6, 2017, President Donald Trump issued a “revised” Executive Order titled “Protecting the Nation from Foreign Terrorist Entry in the United States” in an attempt to avoid the catalogue of lawsuits brought against the first. However, the revised EO suffers from the same legal and policy flaws as the first by shutting the door on Muslims and refugees. Every country targeted by the revised EO is comprised of Muslim majority populations: Iran, Libya, Somalia, Sudan, Syria and Yemen. While the revised EO no longer lists “Iraq,” nationals from the country are singled out for special review in another section of the EO. Whether the list of countries is six or seven, Muslims remain the target.

The revised EO applies specifically to those outside the United States without a valid visa at 5:00 p.m. on Jan. 27, 2017 and on the effective date, which begins one minute after midnight on March 16, 2017. The revised EO makes a few adjustments to the first by carving out exceptions for select people like green card holders, dual nationals and those already granted refugee-related protection. It also creates a waiver process for nationals of the six countries who seek entry during the 90-day ban. Waivers may be issued on a case-by-case basis for those who at a minimum prove that denial of entry would cause “undue hardship,” entry would not pose a threat to national security and entry would be in the “national interest.” How these waivers will be implemented is unknown but the revised EO lists nine scenarios where a waiver may be appropriate like those with previous “significant” contacts,” business, or professional obligations in the United States and those coming to visit a close family member. Despite the long list of examples contained in the EO there is no assurance that people will actually receive waivers or that agencies will be equipped to adjudicate them. The revised EO maintains the 120-day suspension to the refugee program and slash in the total number of refugees by over one-half from 110,000 to 50,000. Exceptions are available on a case-by-case basis for qualifying refugees through a “national interest” formula. Unlike the first EO, the revised version no longer contains an exemption for religious minorities or an indefinite ban on Syrian refugee admissions. Notably, all refugees, including those from Iraq and Syria are affected by the revised EO.

These alterations made to the revised EO fail to undo the religious discrimination that informed both Executive Orders well before Election Day. The First Amendment to the United States Constitution provides that “Congress shall make no law respecting an establishment of religion.” As interpreted by the Supreme Court in Larson v. Valente, “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” As chronicled in a research paper here, President Trump first announced a plan to shut down Muslim immigration to the United States in December 2015 following the deadly attack in San Bernardino, California and continued an anti-Muslim platform while on the campaign trail and through election day. In Aziz v. Trump, a federal court judge in Virginia reached the same conclusion when she temporarily blocked the implementation of Muslim Ban 1.0: “The ‘Muslim ban’ was a centerpiece of the president’s campaign for months, and the press release calling for it was still available on his website as of the day this Memorandum is being entered …The president himself acknowledged the conceptual link between a Muslim ban and the EO when, asked if he has changed his position, he said ‘Call it whatever you want. We’ll call it territories, OK’.” The same Virginia judge rejected the argument that the EOs lack a religious animus because only a small proportion of world’s Muslim population are affected, concluding “[T]he Supreme Court has never reduced its Establishment Clause jurisprudence to a mathematical exercise. It is a discriminatory purpose that matters, no matter how inefficient the execution.” Together, these events reveal a continued discriminatory purpose behind the revised EO.

Beyond the legal concerns are the policy alarms with targeting people based on where they are from or the religion they practice. One need only look at the laws instituted after Sept. 11, 2001 against Arab, Muslim and South Asian communities. Many of these policies were discriminatory and failed to make the country safer. One program was called NSEERS (National Security Entry and Exit Registration System) or “special registration.” At one point the NSEERS program targeted certain males already in the United States. As I have explained: “Later in 2002, the NSEERS program was expanded to certain visitors already living in the United States. This expansion was known as “call-in” registration and announced through four “Notices” in the Federal Register. The call-in notices targeted certain males 16 years and older from 25 countries with Muslim-majority populations (one exception: North Korea). The enigma of NSEERS was not limited to the lack of notice to individuals, limited resources at local offices, or wide range of questions asked to those interrogated, but expanded to the premise that singling out Muslim males residing in the United States on valid visas would somehow improve national security.” In the end, NSEERs essentially functioned as an enforcement program against Muslims, insofar as thousands who complied with the program were detained, charged with deportation and/or deported. The NSEERS program stayed on the books for more than 15 years before it was shut down for good last December. Here and here, I have drawn parallels between President Trump’s proposal for a Muslim “ban” while on the campaign trail and the NSEERS program. The Muslim Ban not only repeats the mistakes of 9/11 but raises even more alarming legal and policy questions.