Los Angeles Times
By Noah Bierman
June 15, 2016
Donald Trump’s expansion of his proposal to bar Muslims from entering the U.S. to include people from countries with a history of terrorism has been panned in both parties. Homeland Security Secretary Jeh Johnson called it “overly simplistic.” House Speaker Paul Ryan (R-Wis.) said it’s neither in American interests nor “reflective of our principles.”
Yet after the Orlando massacre heightened fears of terrorism, Trump renewed and expanded his call for such a ban, and polls have shown a high level of support, particularly among Republican primary voters. But as with many of Trump’s proposals, the details have been sketchy at best. Immigration specialists say that most, but not all, of the elements would be impossible to apply, and that diplomatic repercussions could be severe on those provisions that could be enacted.
What did Trump propose?
After the San Bernardino attack, Trump called for “a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on.”
Then, this week, after a gunman killed dozens at a a gay nightclub in Orlando, Fla., Trump claimed vindication. He also seemed to expand the parameters of his proposal to include “areas of the world where there’s a proven history of terrorism against the United States, Europe or our allies, until we fully understand how to end these threats."
What did Trump mean?
Trump’s spokeswoman, Hope Hicks, did not respond to a request to explain the statement. On its face, the indefinite ban could include a broad group of countries, including the U.S., where Orlando gunman Omar Mateen was born. It could also include Russia, controversial allies such as Saudi Arabia, and closer allies such as France.
Trump probably did not intend to include close allies and was more likely to trying to insulate himself from criticism that he was targeting people purely based on religion, said David Martin, a former top official in the Department of Homeland Security in the Obama administration. But it’s “conceivable you could have a country like Belgium on the list,” given the country’s emergence as a breeding ground for terrorist plots, he said.
Is it legal?
Probably, though such a ban has not been tested in court. The Constitution has strong protections against religious discrimination. But the Immigration and Nationality Act of 1952 grants the president broad authority to suspend entry of “any aliens or of any class of aliens into the United States [who] would be detrimental to the interests of the United States.”
That power has been used, Martin pointed out, but usually to restrict access to smaller groups of bad actors, such as Moammar Kadafi and his family before the U.S. intervention in Libya, or certain Russians involved in fighting in Ukraine. Barring entire religions and nationalities would almost certainly invite a court challenge and Supreme Court justices could raise questions about the use of such sweeping power, particularly by religious test.
How would the government bar entire nationalities?
For most countries, the U.S. could simply stop issuing visas and depend on airlines to help with enforcement. The U.S. does not require visas for people holding passports from 38 countries. But even people from so-called visa waiver countries are required to apply for a visa if they hold dual nationality in Iraq, Iran, Syria or Sudan. Immigration inspectors have authority to accept or reject anyone from entering the country, whether traveling on a visa or not. And the U.S. could remove countries from the waiver list, or add other barriers.
But there is always the possibility of fraud, such as fake passports, given the large numbers of people involved in the bans. And unanswered questions remain about what to do with citizens of those countries who are already here as legal residents or on work visas.
“People that are trying to get in from those countries for evil reasons, they would be the hardest ones to keep track of,” said Julie Myers Wood, who led Immigration and Customs Enforcement under George W. Bush.
Could the government ban an entire religion?
This is much tougher. Few, if any, passports list a religion. The U.S. does not track the religions of people already here. Immigration officials could ask, but terrorists and other evildoers would be the least likely to answer such a question truthfully. The proposal would spark a “cottage industry of fake baptismal certificates,” Wood predicted.
She said the government could use its leverage with other countries to get help, especially those that track religion.
“In this horrible, make-believe world … where you can force people to pay for walls, perhaps you can persuade them to cooperate,” Wood said.
How would other countries respond?
Muzaffar Chishti, New York director of the Migration Policy Institute, mentioned the diplomatic ramifications of rejecting a member of a royal family as an example of the potential to harm U.S. business and diplomatic interests when applying a blanket ban on “everyone from king to the pauper and the most innocent to the most extremist.”
Countries would probably retaliate, restricting or banning access for American citizens and rescinding other forms of cooperation. The move would also put large portions of trade at risk, especially for businesspeople who are used to traveling freely in countries that grant visa waivers to U.S. citizens.
“It would be a major foreign policy development,” Martin said. “It’s not just a matter of a few people not being allowed to get on an airplane.”
Would it stop terrorism?
There is little evidence it would. In addition to the risk of fraud, many terrorists, from Mateen in Orlando back to Oklahoma City bomber Timothy McVeigh or the leftist radicals of the 1970s, were born in the United States.
For more information, go to: www.beverlyhillsimmigrationlaw.com