Trump Doesn’t Need Court Approval to Ban Muslims

Whether preventing their entry to the country, or tracking them on a registry, Donald Trump has made clear his intention to target Muslims in the United States, in the name of defending against extremist terrorism. His statements have outraged civil liberties organizations and created uncertainty and anxiety for anyone who could be targeted by the administration. There are an estimated 3.3 million Muslims in the United States. Will the Trump administration target all, or just some? Will Muslims be grouped together, whether foreign born, or natural born citizens, regardless of sect, affiliation, or practice?

The general consensus amongst progressives, pundits, and legal scholars, is that anything Trump does in relation to Muslims in America, whether American citizens or not, can be prevented on legal, constitutional grounds. In theory, this is true, but under extreme enough circumstances, is not necessarily reality. As with most violations of the rights of the American people and those living within its borders, it will only be fought against once it is done.

After the 2001 terrorist attack in New York, the US government created and implemented a registry of individuals in the country on visas who originated from Muslim countries, known as the National Entry-Exit Registration System. The registry was billed as a critical effort to protect Americans and prevent a terrorist attack. The program was immediately targeted by local and national civil rights groups, and after a time, fell into disuse, but was never dismantled.

This week the Department of Homeland Security released a newly crafted regulation that would get rid of the registry. Civil liberties activists have embraced this action at least in part because it is seen as a means to further complicate or delay the Trump administration’s selective targeting of foreign Muslims living in the US. However, the National Entry-Exist Registration System never met serious legal challenges. It was not struck down as unconstitutional by the Supreme Court. The dismantling of such a program does not include the erasure of the blueprints which allowed it to be created in the first place.

Further, this position assumes the Trump administration will carry out its plans in full view of the American public, and democratic transparency will allow for proponents and the opposition to fight the issue on even ground. In fact, the targeting of foreign Muslims in America will be illegal, and that is the point. Neither the senate, house, or courts will be able to prevent today what it has actively or passively failed to prevent throughout the nation’s history.

In the past few months reporters and commentators have combed the history books for instances of a President targeting a group or groups of people based on their religion, political views, or country of origin.

Between November 1979 and April 1980, nearly 15,000 Iranians were removed from the United States under Executive Orders issued by then President Jimmy Carter. Pundits have said Carter’s actions cannot be compared to Trump’s stated intentions, as the removal of Iranians under Carter were done as a part of larger sanctions against Iran in the wake of the hostage crisis which saw 50 American citizens taken hostage after terrorists invaded the US Embassy in Tehran. In contrast, Trump’s intentions towards foreign Muslims is seen as an act of hate and fear-mongering with little to no basis of facts to support the need to track, prevent entry, or expel Muslims from America.

The moral intention of either American leader is irrelevant. What is common between the two, and in fact all presidents, is the awesome power of the executive order. In 1979 Carter signed an executive order banning foreign Iranians with “non-immigrant” visas from coming to or remaining in the US. Less than a year later, he signed a second order, striking the “non-immigrant,” language from the previous order, thereby empowering government agencies to target a larger group of people.

Likewise, FDR used the power of the executive order to detain and relocate well over 100,000 Japanese and people of Japanese descent living in the US. Immigrants and citizens alike, taken from their homes with all of their constitutional rights violated in the name of protecting the country from threats foreign or domestic.

Legal or not, this can, and likely will happen again during the Trump administration and it is reasonable to assume the target won’t be just Muslims, but Latinos or any other group of people the administration determines is harmful to the United States.

But precedent doesn’t start and stop with Carter, Obama or Bush. Efforts by the US government to target foreign born Muslims found its strongest hold under President Reagan, whose administration created one of the most sweeping and detailed plans to use immigration laws, policies and procedures to target, round up, and detain Middle Eastern immigrants living in the United States. Those in government working on the plan, including the State Department, knew the efforts were wildly illegal. Rather than accepting illegality as a barrier, the workgroup simply built it into the overall plan, and moved forward.

Under the Reagan administration, the INS- Immigration and Naturalization Services- would become the tip of the sword in the fight against terrorism, capable of detaining, interning and deporting upwards of 250,000 legal, Muslim residents a year who originated from target countries, mostly in northern Africa and the Middle East, whilst also sealing US borders to anyone attempting to gain entry from said nations, essentially combining the actions of FDR and Carter to execute mass deportations. Reagan’s plan to have INS lead the charge on the war on terror never came into fruition. Nonetheless, the blueprint still exists.

It is more likely than not, that under a Trump administration, immigration and naturalization laws and policies will see sweeping reform, concurrent to the President’s use of the executive order to expel or prevent entry to anyone considered a potential threat to the stability of the country. This is not limited to American’s current definition of threat, which highlights overt violence including mass shootings or bombings. Reform could lead to the inclusion of any number of criteria previously considered irrelevant to securing or maintaining residency status, but which Trump has publicly stated justify targeting for expulsion, including religion, ethnicity, social associations, employment status, and political affinity.

With the INS at the forefront on the war against terror, current legal and procedural protections afforded to those in jeopardy of deportation would cease to exist. Hearings would become secretive, witnesses nameless and faceless, and evidence considered classified. Those targeted could lose their right to legal counsel, or just as troubling, their legal counsel could lose the ability to have access to evidence, which arguably is needed to defend and protect the rights of anyone, including those falsely or illegally targeted. The issue of secret courts has been taken up by the Supreme Court, which has upheld the right of the government to withhold evidence under the “state secrets privilege.”

Legal actions taken by the US against suspected terrorists are not carried out on a transparent platform for all to see, support, or object to. Instead the courts, specifically set up to handle such cases, operate outside of the common rules of law, including the right to face one’s accuser and have equal access to any evidence used. In the war on terror, it is accepted that transparency equals the potential for further targeting by terrorists, or, transparency equals the weakening our ability to fight terror because in essence, the government would be “showing its hand.” But that also assumes the accused make it to court at all. If suspected or accused of terrorism, one could be held without charge, without going before a judge or appealing to the rule of law, indefinitely.

The Trump administration, or any administration for that matter, does not need a specific registry of Muslims in order to target them for internment, expulsion or mass deportation. The administration does not need, nor will it wait for the legal green light before taking whatever action it deems necessary against foreign born, or American Muslims.

All that is required is the will of the President, and the stroke of his pen.

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