Muslim Travel Ban Legal Fight Is Almost Irrelevant

[ Posted Monday, May 8th, 2017 – 16:21 UTC ]

Today, arguments were heard by the Fourth Circuit Court of Appeals over President Donald Trump's revised travel ban on a handful of Muslim countries. Next week, the Ninth Circuit will chime in as well. But we're fast approaching the point where the entire argument becomes irrelevant, to both sides.

Lost in all of the politics surrounding the Muslim travel ban court cases is the fact that this ban was only supposed to be temporary. Even when Donald Trump announced a "complete ban on Muslims" back on the campaign trail, it was pitched as a stop-gap measure which would quickly be lifted after "extreme vetting" was put into place. If you carefully read Trump's statements on the issue (which the Fourth Circuit is currently doing), he almost always presents the travel ban itself as merely a means to an end. This end, specifically, was supposed to arrive 90 days after the travel ban order was signed.

Trump's first executive order on the issue was signed on January 27th. That, if I've counted correctly, was 101 days ago. Eleven days longer than the initial ban was supposed to last, in other words.

Extreme vetting was supposed to be happening by now, and the Trump administration seems just about ready to announce that extreme vetting is fully in place. Secretary of State Rex Tillerson sent a cable to American embassies earlier which outlined the broad strokes of what extreme vetting was going to encompass. Last week it was reported that the Trump administration is about to sign off on the final plan. But before taking a look at what this means, consider that once the extreme vetting is in place, the travel ban was supposed to go away.

There has always been an obvious answer to this problem for Trump (which I pointed out back in February) -- leapfrog from the travel ban court fight to implementing the extreme vetting. Trump could then brag he had "outsmarted the courts" and his supporters would believe it. When you get right down to it, a legal battle over a 90-day ban -- which itself would take far longer than 90 days to settle in the courts -- has always been kind of silly. Sooner or later, one of the judicial decisions may in fact point this out, and call the entire issue moot: "Why should we even bother ruling on this temporary ban when events have moved beyond that period of time?"

I suppose, to be fair, Trump might force the issue all the way to the Supreme Court just on general principles. It is a question of the limits of executive authority, so it's a valid thing for the high court to rule on. But if extreme vetting were already in place, it would only be a symbolic victory for Trump at that point, since by the time the court ruled the temporary ban would be unnecessary (by Trump's own definition of what it was supposed to accomplish).

No matter how the court fight ends, though, by the time it arrives it will be irrelevant. Maybe the Supreme Court would surprise Trump and rule against him (even with the 5-4 conservative tilt). Maybe Trump'll win. Either way, by the time it happens, the entire fight over the issue will be pointless.

The extreme vetting process that was always supposed to be the permanent policy may result in its own court case. That is where the real battle over the heart of the issue will take place. From what has been reported so far, Trump's vetting will indeed be extreme, although it remains unclear which countries' citizens will be affected by them. Here's one recent report on what is being considered:

The new process would allow Homeland Security officials not only to go through social media content, but also to inspect cellphones for suspicious contacts. The process under consideration could apply to visitors from a broad cross-section of countries, possibly including the 38 countries whose citizens can usually enter the country without a visa per the Visa Waiver Program, such as Britain, France and Japan.

Even more alarming is a potential entrance questioning on ideology that would assess a visitor's beliefs on issues such as the treatment of women in society, ethics in military conflict and the "sanctity of life," according to the Wall Street Journal. Some have argued that these policies represent the president's effort to fulfill his campaign promises of "extreme vetting."

Homeland Security Secretary John F. Kelly succinctly articulated the administration's considered approach for the seven countries included in the administration's travel ban during a February congressional hearing: "If they come in, we want to say, what websites do they visit, and give us your passwords. So, we can see what they do on the Internet ... If they truly want to come to America, then they will cooperate. If not, next in line."

Personally, if a country asked me to provide all of that information before I was even allowed to travel within it, I would make other travel plans. You want to know my passwords? Um, no thanks.

Tillerson sent a cable out to embassies a few weeks ago, but the only country mentioned was Iraq. In it, he said these extreme vetting methods would be required for anyone who ever set foot on territory controlled by the Islamic State. The unanswered question is how wide this net will eventually be thrown. The Islamic State is, after all, not a real state. It has no citizens. It issues no passports any other country would consider valid. It has adherents and fighters, many of whom are from outside the region they currently control. So which countries will get the extra scrutiny? In Trump's first Muslim travel ban, there were seven countries listed. In the second one, only six. But this list doesn't cover every country with Islamic State fighters. Will extreme vetting be applied to Saudis? They've got some pretty extreme views on women, to state the obvious. How do you stop someone from Britain or France who has been trained by the Islamic State? Visitors from Europe don't currently need visas to visit the United States. So will the Visa Waiver Program be scrapped? What is that going to do to the international tourism industry?

What may be challenged in court, however, is the ideological purity test. Anecdotal evidence already exists that questioning people at the borders has indeed already gotten more extreme. Muhammad Ali's son was the most famous, to date, to be asked about his religious beliefs at a border crossing. And he's an American citizen.

It's unclear currently what views will not be permissible for foreign visitors to America. Does a belief in honor killings bar someone? A belief that God ordained women to be treated as property? A belief in the validity of guerrilla warfare tactics? And that's before we consider what the questions would be on the "sanctity of life."

Many American citizens probably hold views on these subjects which diverge from what Donald Trump or Rex Tillerson or Mike Pence think about them, obviously. Pence, in particular, seems to have some extreme views towards women himself. But, thankfully, American citizens don't have to pass an ideological purity test their leaders devise. The question that will likely wind up in court is whether they will have to at the country's borders. Once again, Muhammad Ali Jr. is an American citizen, and he was asked about his religious beliefs at the border, on two separate occasions within one month. Sooner or later, someone's going to take umbrage at the existence of the question, and sue.

That is likely to be the important court case over Donald Trump's policy. For the next few weeks, the media will be talking about the Fourth and Ninth Circuit decisions on the Muslim travel ban policy, but this is little more than a distraction from the bigger legal questions to come. Whether a 90-day temporary ban is allowed or not, these questions will remain. Should the United States government have the power to question people entering the country about their personal religious beliefs and values? Or their views on women or warfare tactics? Which people get questioned, and which questions should be allowed? Which answers should mean a denial of entry? Is any of this constitutional? Those are the questions I'm waiting to hear answered, personally.

-- Chris Weigant


Cross-posted at The Huffington Post

Follow Chris on Twitter: @ChrisWeigant


20 Comments on “Muslim Travel Ban Legal Fight Is Almost Irrelevant”

  1. [1] 
    Elizabeth Miller wrote:

    As long as Trump plans to send yet more troops to Afghanistan to defeat the terrorists and the Taliban, extreme vetting in seven countries will be the least of his and his country's concerns ... if you know what I mean, and I'm sure that you do!

  2. [2] 
    Elizabeth Miller wrote:

    Slashing the budget of the State Department will also render the extreme vetting quite ineffective in keeping the country safe.

    In fact, come to think of it, the extreme vetting envisioned by the Trump crew, is very like to have some worrying consequences when it comes to the national security of the US.

    But, these sorts of issues, complicated as they are, seem above the competency of the Trump administration.

  3. [3] 
    Elizabeth Miller wrote:

    In other words, the really big question is what should US policy be with respect to Afghanistan, Syria, and the Greater Middle East?

  4. [4] 
    Kick wrote:

    Trump's main problem is the animus contained in the rhetoric behind the Executive Orders he and his campaign surrogates previously referred to as a "Muslim ban" and the fact that they can't change history... particularly the handiwork of one Rudy Guiliani wherein his admission is a textbook case of drafting an Executive Order in a manner to avoid the declaration of overt animus against a religious group. It also didn't help that Trump stood in front of a large crowd after his Muslim Ban 2.0 being declared unconstitutional and stating he wanted to argue the original ban.

    How would Trump fare in the right-leaning high court? In U.S. v. Windsor writing for the Supreme Court, a justice argues that an executive order or law displays unconstitutional animus and therefore is a violation of the Equal Protection Clause when it has the "purpose and effect of disapproval of a class recognized and protected by state law," and that was none other than Justice Anthony Kennedy.

    Who knew the United States Constitution was so complicated and that motive actually matters? :)

  5. [5] 
    dsws wrote:

    What matters, politically, is that Trump gets to be in the news being hostile to Muslims and/or foreigners. (The electorate doesn't really distinguish between the two categories: they're all "terrorists".) If it's a court case, fine. If it's a new policy, that works too. Even a protest helps.

  6. [6] 
    Balthasar wrote:

    dsws: Exactly right!

  7. [7] 
    TheStig wrote:

    Lazy thinking or Stasi light? All these proposed "extreme methods" seem extremely easy to game and therefore extremely ineffective at combating terrorism. Slightly better than hanging a Dream Catcher on the X-ray machine or having a life sized Trump cutout glowering at the beginning of the line. That suggests a proper acronym for this branch of Homeland Security.

    Questionable Efforts Underwhelming Effects = QuEUE

    Do we have any genuine professionals left in the US Government decision making process? Has our political circus finally weeded out the last of 'em?

  8. [8] 
    nypoet22 wrote:

    extreme vetting. i wonder if that's like extreme kayaking in a convenience store...

  9. [9] 
    Paula wrote:

    Well gee whiz, now it turns out Comey's election-torpedoing-email-gambit was pretty much wrong in every way, although the holier than thou man can't bring himself to admit it. But the FBI has admitted it.

    According to two sources familiar with the matter — including one in law enforcement — Abedin forwarded only a handful of Clinton emails to her husband for printing — not the “hundreds and thousands” cited by Comey. It does not appear Abedin made “a regular practice” of doing so. Other officials said it was likely that most of the emails got onto the computer as a result of backups of her Blackberry.

    Y'know -- this whole thing about having a cell phone be synced with another computer for backup? One of those things most people set up and really don't know or care about the technicalities?

    Huma Abedin had said she didn't know how the copies got on her computer but naturally that was dismissed as lying by all the people invested in the "Clinton is a liar meme" (even though Clinton has been investigated to death and never charged with anything because she is fundamentally NOT a liar).

    Lying Republicans + want-to-believe-the-worst-by-Clinton-hating-assholes + New York Times and horserace journalism = the mess we're in now.

    Oh well, that's what happens when you trust a Republican to do the right thing.

  10. [10] 
    Balthasar wrote:

    One way to exemplify the wrongheadedness of the 'extreme vetting' regimen is to imagine doctrinal questions that might be asked by other countries:

    Britain: Do you believe in Monarchy?

    France: Do you believe that coffee should can served in a bowl?

    Canada: Do you believe healthcare is a human right?

    Mexico: Do you believe in Machismo?

    Ireland: Do you dislike the Catholic Church?

    And so on...

  11. [11] 
    altohone wrote:


    Response is up in FTP.


  12. [12] 
    Paula wrote:

    And now Trump fires Comey. Time for Special Prosecutor.

  13. [13] 
    Kick wrote:


    And now Trump fires Comey. Time for Special Prosecutor.

    I joked in a meeting just this morning that Trump would fire Comey by the end of the week. Now my phone is ringing off the hook. I was KIDDING!

    Yes, it's time for a Special Prosecutor. Does anyone actually think that Trump is firing Comey over the things from last year and not the Trump/Russia investigation?

    This firing is actually tantamount to obstruction of justice. Seriously.

  14. [14] 
    Balthasar wrote:

    I absolutely agree with Paula. Anything other than a Special Prosecutor would, given these events, be just a joke.

  15. [15] 
    nypoet22 wrote:


    This firing is actually tantamount to obstruction of justice. Seriously.

    maybe, but does the GOP congress have the balls to impeach? if not, it's all academic.


  16. [16] 
    ListenWhenYouHear wrote:

    nypoet22 [8]

    When I first heard the term extreme vetting, I pictured it as what veterinarians called things like giving a mountain lion a vasectomy while skydiving.


  17. [17] 
    nypoet22 wrote:


    giving a mountain lion a vasectomy while skydiving.

    whoa, now that really IS extreme vetting!

    dude, on a scale of 1 to 10, 1 being not so extreme and 10 being extremely extreme, i give it a 9.5!
    ~harold and kumar go to white castle

  18. [18] 
    Chris Weigant wrote:

    LizM [1-3] -

    I wouldn't exactly hold my breath waiting for a comprehensive MidEast policy from this bunch...

    Kick [4] -

    Good point about Kennedy. All the conservatives seem positive that the court will rule for them in any number of different cases, but it's still really a 4-1-4 split, with Kennedy swinging in the middle.

    Paula [9] -

    Looks like the only thing everyone can currently agree on is seeing Comey exit the scene. Different sides of the aisle have different reasons for being glad to see him go, but nobody seems to want to speak up for him at this point...

    Instead, it's a chorus of "good riddance!"

    Balthasar [10] -

    France: Do you believe that coffee should can served in a bowl?

    OK, now THAT was funny! [Although I think there's an extra coffee "can" in that sentence...]

    As for Ireland...

    They dropped the probe, but still...

    Paula [12] -

    Special proscutor time indeed! I think it might even be half-past-Special Prosecutor...


    I also hasten to point out I have already posted my snap reaction column on Comey's firing, if anyone hasn't read it yet...


  19. [19] 
    Kick wrote:


    extreme vetting. i wonder if that's like extreme kayaking in a convenience store...

    Too funny! :)

  20. [20] 
    Kick wrote:


    maybe, but does the GOP congress have the balls to impeach? if not, it's all academic.

    At some point, JL, I think they'll be left with no choice.

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