US President-elect Donald Trump campaigned extensively on immigration issues, highlighting his intention to build a wall at the border of Mexico and deport large numbers of undocumented migrants throughout the campaign. In December of 2015, shortly following the Paris terror attacks, he issued a press release entitled “Donald J. Trump Statement on Preventing Muslim Immigration” in which he 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.”
Despite the seemingly clear “Muslim ban” statement from 2015, with its background of the CSP’s survey, Trump’s position appears to have evolved if one looks at the positions taken on his website and by Trump campaign spokesperson Kelly Anne Conway. On December 22, 2016 Conway told CNN’s Chris Cuomo that Trump will pursue a policy of extreme vetting that will be country-based, rather than based on religion and that the policies outlined on his website back this up. “I am asking whether being a Muslim will be a trigger, that’s my question, simple,” said Cuomo, to which Conway responded, “No, no its not.”
Looking at Trump’s website for clarification, we find multiple policy proposals pertinent to immigration but few directly concerning Muslims (other than the Dec. 2015 statement). Under “Foreign Policy and Defeating ISIS,” he promises to:
Suspend, on a temporary basis, immigration from some of the most dangerous and volatile regions of the world that have a history of exporting terrorism.
Under the section “Immigration,” Trump outlines numerous proposed changes to immigration policies and comes once again back to vetting, proposing that the US:
Vet applicants to ensure they support America’s values, institutions and people, and temporarily suspend immigration from regions that export terrorism and where safe vetting cannot presently be ensured.
So just drawing from Trump’s own published statements, we have three clear possibilities:
- Banning certain types of migration on the basis of religion
- Banning certain types of migration on the basis of national/ regional origin
- Not banning migration at all but pursuing a policy of extreme vetting from certain regions or for certain religions
Let’s examine each possibility in turn.
Banning certain types of migration on the basis of religion
At this point, this seems the least likely possibility given Conway’s denials that being Muslim will be the trigger for exclusion and the scarcity of statements to this effect on Trump’s website (aside from the first one from over a year ago.) But if Trump wanted to ban migration to the US of any Muslim person, even temporarily, would this be possible?
The US Constitution bars discrimination on the basis of religion under the 1st and 14th amendment, and any federal laws that infringe on fundamental rights (such as those in the Bill of Rights) or suspect classifications (such as a particular religious minority group) are judged under the “strict scrutiny” test (see US v Carolene Products, footnote 4). The strict scrutiny test requires that a government law affecting fundamental rights or certain types of minorities (such as religious groups) must serve a compelling interest, be narrowly tailored to meet that interest, and be the least restrictive means of achieving that interest. In other words, a law that would potentially discriminate against a minority group must be practically the only way possible of achieving some need of dire importance to the government. In this case, Trump would likely argue that restricting immigration of Muslims is the best way of achieving the direly important security need of protecting the US from terrorism. While preventing terrorism is no doubt a crucial interest, one can easily point out the flaw in this argument- Muslim immigrants are not the only ones or primary ones who commit acts of terrorism in the US (the majority of U.S. terror acts since 2000 have been carried out by citizens or residents, with around a third being right-wing terrorism), and the vast majority of Muslims have no connection to radical terrorist groups, so the law is probably not narrowly tailored to achieving its means.
But, not so fast. These constitutional protections apply to US citizens, who almost certainly could not legally be barred from traveling and re-entering the US under any “Muslim ban.” But what about non-citizens, such as people wishing to reunite with family members, join a partner, do business, or seek asylum in the US? While the Supreme Court holds that Equal Protection applies to non-citizens, even undocumented migrants, within the US (see Plyler v. Doe at 210) people trying to enter the country are probably not granted the same protection, as multiple presidents in the past have banned groups based on national origin (Iran, Cuba to name a few.)
The real problem with such a ban would likely be the inability of Immigration and Customs Enforcement to identify Muslims.There are some 1.6 billion Muslims in the world and they live in most of the world’s countries and belong to every race. Like with any religion, it would be impossible to pick them out solely using last names, language spoken or country of origin without catching many other people up in the dragnet- like, e.g., Arab Christians, or Sikhs who are often mistaken for Muslim- and missing many others.
Any attempt to determine religion – for instance, by immigration agents asking would-be entrants what religion they are- would clearly be about as effective as previous attempts to sniff out communists (“Are you now, or have you ever been a member of the communist party?”). People could lie out of a variety of motivations, not least of which because they feel unclear about their religious identity, as many do, or because they consider religion a private matter.
Another possibility would be religious profiling- rejecting visa requests, etc, from persons who officials suspect of being Muslim, based on perhaps last names or national origin. But aside from being ineffective, as discussed directly above, any unofficial, behind the scenes profiling would not achieve the effect of pleasing Trump’s supporters, who will probably be looking for hard policies and not secret, implied religious or racial profiling (which at any rate already openly exists at borders).
So an outright Muslim ban, while perhaps not unconstitutional, would prove extremely complicated to enforce and an unlikely choice by the President-elect.
2. Banning certain types of migration based on national/ regional origin.
As discussed above, a move like this has historical precedent and is potentially achievable. But here too, there are problems.
First, as Trump has made clear that his intention is to bar Muslims or at least practitioners of “radical Islam,” there is an issue of which regions or countries could effectively be banned. At first glance, we can see that Muslims make up large segments of the population in Africa, Asia, the Middle East and Europe, as well as Canada. Banning migrants from those countries on the basis that they might be radical Muslims would effectively ban immigration from all but Central and South America, a scenario which seems unlikely to be appealing to Trump, who started his campaign talking about the dangers posed by Mexican immigrants.
If, as in his later statements, Trump wants to ban immigrants from areas that are known for fomenting extremism, it will also be difficult to create a narrow list. As the International Centre for Counter-Terrorism has reported, circa 4,000 EU citizens have traveled to Syria or Iraq to join IS, some 30% of whom have returned to their home countries. The largest number of these are Belgian, French, German, or British, with the highest number coming from Belgium.
If Trump will indeed ban people from “regions of the world that have a history of exporting terrorism,” its difficult to imagine how he can avoid banning immigration from Europe, or at the very least, Belgium, France, Germany and the UK. Such a ban could potentially have a severe impact on relations with America’s close allies in the EU, or result in reciprocal bans for American travellers to Europe.
3. Not banning migration at all but pursuing a policy of extreme vetting from certain regions or for certain religions
As with the first two proposals, this one suffers from an overbroadness. Pursuing extreme vetting against regions that “export terror” will once again have to include European nations, as well as Africa, the Middle East and Asia (particularly Southeast Asia.) Once again, this will mean strict vetting for virtually the entire world, aside from Latin and Central America. As many parts of the world are already subjected to strict vetting, (especially asylum applicants) we will have to wait for further details to determine how President-elect Trump’s plan will go above and beyond this, and how it will determine whether entrants “support America’s values, institutions and people.”
A few weeks out from inauguration it still remains to be seen how active Trump will be in his first 100 days, and whether he’ll be able to move forward on keeping his immigration-related promises. However, it is clear that any plan to ban or limit Muslim migrants or migrants from “terror-exporting regions” will require much more thought if it will pass constitutional muster, be stronger than what we already have, or not turn into an all-out immigration ban. We’ll be staying tuned to see if and how Trump attempts to strike a balance.