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Extreme Vetting: Time’s Up

April 27, 2017

In December 2015, Republican primary candidate Donald Trump called for a “total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what the hell is going on.” The statement roused support from many voters, but concern from others. As a general election candidate in August 2016, in what was seen as an attempt to alleviate the concern without softening the support, Trump promised to implement “extreme vetting” procedures to keep out radical Islamists and their sympathizers.

One week into his presidency, Donald Trump issued Executive Order 13769, his first attempt to implement the anti-Muslim measures he had promised as a candidate. The executive order imposed a 90-day suspension on entry into the United States by nationals of seven countries – Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. The order imposed a 120-day suspension on all refugee admissions. And the order imposed an open-ended suspension on admission of refugees from Syria.

By then Trump knew not to call his order a “Muslim ban,” but several federal trial courts saw through the ruse and barred enforcement of the executive order’s provisions that suspended entry into the United States. On February 9, 2017, a federal court of appeals rejected Trump’s request for an emergency ruling allowing the executive order to remain in effect. A week later, the Trump administration notified the court of appeals that it intended to replace Executive Order 13769 with a revised order.

The Trump administration gave a lot more deliberation to revising the original order than it had given to writing the first one, which had been drafted without meaningful interagency input and had been issued without meaningful notice to immigration officials. The replacement order was issued on March 6, 2017, and it reflected a much greater level of attention to the factual and legal complexities involved in immigration. And whereas the first executive order was effective upon its issuance, the new executive order, Executive Order 13780, was to be effective ten days after its issuance, on March 16, to give immigration officials time to prepare for implementation and enforcement. There were many changes from the first to the second executive order, perhaps the best known being the omission of Iraq from the list of suspended countries based on concerns about how the Iraq ban might impair relations with that such an important military ally.

But despite the revisions, the new executive order remained, in intent and in effect, delivery on Trump’s campaign promise to ban Muslim immigration. A federal trial court in Hawaii broadly enjoined the critical sections of the new order, and a federal trial court in Maryland issued a narrower injunction. Two federal courts of appeals will hear oral arguments on Trump administration appeals in the two cases on May 15 and May 8, respectively.

Litigation tends to move quite slowly – even what is considered “expedited” litigation, as in these cases, can take many months, if not years, to resolve. Remember that both executive orders imposed 90-day suspensions on non-refugee entries from the specified countries and a 120-day suspension on all refugee entries. The rationale of the suspensions was that the federal government needed that time to ensure that vetting procedures are sufficient to identify and exclude people whose entry would pose a safety risk to Americans – the “extreme vetting” that Candidate Trump promised. The suspensions were presented as an interim step toward the final product, which was to be a new and improved system of enhanced vetting of refugee and visa applicants.

In the first executive order, Trump ordered his Secretary of Homeland Security to “immediately” begin a review and determination of the information needed to effectuate the new “extreme vetting” regimen. The Secretary was to report back within 30 days with a list of countries for which adequate information is not available, and the Secretary of State was then to give those countries 60 days to establish procedures for providing information deemed adequate by the United States. When the 60 days was up, the idea was, nationals from countries that complied would come off the list of banned countries. All of that was to be done by today, April 27, 2017 – 90 days after issuance of the first executive order.

None of the court rulings on Executive Order 13769 enjoined or even questioned the portions of the executive order that called for review and toughening of admissions standards and procedures. Furthermore, since those portions of the executive order constituted nothing more than instructions to the President’s direct subordinates, there was no need for an executive order to carry out that review. Therefore the fact that the first executive order was revoked by the second executive order in no way impeded completion of the contemplated 90-day period for development of “extreme vetting.”

But so far as has been publicly revealed, no 30-day report was issued, no request was made to countries determined to be providing inadequate information, no “extreme vetting” has been implemented, and no country’s suspension has been lifted.

Somewhat incongruously, Executive Order 13780 re-set the clock on both the suspensions and the development of an “extreme vetting” program. Instead of revoking only the portions of Executive Order 13769 that had been enjoined, the new executive order revoked it in entirety. It is as if no progress had been made, no work had been done, to develop the “extreme vetting” process during the 20 days that those portions of Executive Order 13769 were in effect.

Under the new executive order, the new 90-day suspension of non-refugee admissions from the six named countries expires on June 14, 2017, and the 120-day suspension on refugee admissions from all countries expires on July 14, 2017. Again, so far as has been publicly revealed, none of the interim reports called for in the new executive order have been issued. There has been discussion – but so far only discussion – of requiring applicants for admission to turn over their social media accounts to immigration authorities as part of the vetting process. The problems with such a requirement would be numerous, starting with the fact that the clearest and most immediate impact of such a requirement would be the deletion of any radical-sounding content from any social media accounts that applicants might actually have. (Do we seriously imagine that the widowed Syrian mother applying for refugee status after the murder of her husband maintains an active Facebook presence? Do we imagine that, after filing her application, she posts radical propaganda on her Facebook page during the 18 months or so that the existing application system takes?)

What I’m leading up to is that I think the suspension periods were fake, and were intended to be fake. They were not intended as interim steps on the road to extreme vetting, but as an end state unto themselves.

If the Trump administration was going to take 90 days to develop and implement “extreme vetting” procedures for visa-based entry to the U.S., the new procedures would be in place by now. The premise of Trump’s executive orders was that existing entry application procedures are inadequate to protect the safety of Americans, and that the inadequacies were so great and the danger so serious that immediate action was needed to protect us during the short time it would take to develop longer term protections.

Whatever the dangers created by the status quo, those alleged dangers continue unaddressed due to the courts’ injunctions against Trump’s executive orders. Trump’s attempts to contain the imagined threat were enjoined, leaving the supposedly deficient system in place for the indefinite future. Under those circumstances, if the Trump administration truly believed that the existing immigration system posed a serious and imminent threat to American security, the administration would have increased the urgency of its development of new vetting procedures after the injunctions were issued; obviously, the administration did not do so.

If the suspension periods were intended to be suspensions pending development of “extreme vetting” and not more permanent prohibitions, there would have been no need to re-set the “extreme vetting” deadlines in the second executive order. It is as if the 90-day and 120-day suspensions were the lynchpins of the executive orders, not the enhanced vetting that was supposed to come after the suspensions were over. It is as if the intention never was to enhance the vetting, only to reduce Muslim immigration. But then that’s what the courts have said, isn’t it?

Both executive orders expressly contemplated requests that governments make additional information available to American immigration authorities who vet applicants for entry to the United States. There is no way to know what the additional information might be, since the Secretary of Homeland Security has apparently issued neither 30-day report required by either executive order.

The second executive order makes explicit that the information requirements may vary by country. There is every reason to expect that, for countries from which Trump would prefer to have little or no immigration, the information requirements are likely to be considerable, maybe even impossible to satisfy. There is every reason to believe that the requests for additional information would be formulated to ensure non-compliance – either because the host country could not provide the information or because the request for the information would be too insulting to the host country’s rulers or populations.

The object here is not and never was to enhance the safety vetting of our immigration system; vetting is already extreme. The object here is to impair Muslim immigration. So the good news is that the courts have so far stood up to Trump’s gestures toward a Muslim ban, but the bad news is that Trump’s casting of those bans as 90-day and 120-day suspensions pending review of entry procedures was a sham. There was never any intention to resume anything close to previous levels of Muslim immigration, regardless of the particulars of the vetting process. The intention was to foster, and pander to, the popular anti-Muslim impulse that contributed to Trump’s nomination and election. That impulse remains, and Trump will continue to foster and pander to it.

I think the legal odds are against Trump’s executive orders in the appellate arguments scheduled for May 8 and May 15. Regardless, at those arguments and thereafter, judges need to ask some new questions:

If you believe that America is under imminent threat of attack by inadequately vetted immigrants, and if the 90-day and 120-day suspensions were intended to allow time to develop and implement adequate vetting procedures, are those procedures ready?

If they are ready, why are you continuing to fight for the 90-day and 120-day suspensions?

If they are not ready, doesn’t your failure to produce those procedures disprove your claim to believe that inadequate procedures has placed America under imminent threat of attack by inadequately vetted immigrants?


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