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What Donald Trump Might Do Next To Keep His 'Muslim Ban' Alive

With the Supreme Court split 4 - 4, and Neil Gorsuch's confirmation still some weeks away, the US President's options aren't that straightforward.

17/02/2017 04:57 SAST | Updated 17/02/2017 04:57 SAST
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Lara Sierra-Rubia

The ink had barely dried on President Donald Trump's executive order, but already confusion and disorder were taking root at American borders; suddenly, foreign nationals from seven Muslim-majority countries found themselves barred from entering the US. Between Friday 27 January and Monday 30 January, over 900 people with US visas and green cards were prevented from entering the country, prompting mass protests outside major airports by civil rights activists. Media reports spoke of individuals impacted, including Darweesh, a 53-year-old father of three, who worked on behalf of the US government in Iraq for 10 years as an interpreter, engineer, and contractor. He was traveling to the US with his wife and children, but was detained at the airport.

The Executive Order

Titled 'Protecting the Nation from Foreign Terrorist Entry into the United States', the order includes several provisions limiting the movement of individuals from several high-risk countries into the US:

  • The measure prevents all nationals from seven Muslim-majority countries, including Yemen, Iraq, Syria, Iran, Libya, Sudan and Somalia, from entering the country for 90 days. This element of the executive order has received the most public and media attention.
  • The executive order suspends the US Refugee Admissions Programme for 120 days, with an indefinite ban on Syrian refugees.
  • It introduces a maximum of 50,000 refugees to be accepted by the US in 2017, against a limit of 110,000 set by former President Barack Obama.
  • Under the executive order, priority will be given to religious minorities facing persecution in their countries. In an interview, Trump mentioned Christians in Syria as priority cases, which has led some legal experts to claim that this move contravenes the first amendment protection against the favouring of one religion over another.

'Make America Safe Again'

Trump has stated that this move is grounded in national security. Citing the 9/11 terrorist attacks, the executive order states that "in order to protect Americans, the US must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles." Trump has pointed to the Immigration and Nationality Act for legal grounds in this regard, as it gives the president the authority to stop the flow of classes of aliens entering the US.

The seven countries listed in the executive order were already deemed "countries of concern" for terrorism during the Obama administration. In December 2015, Obama enacted a law that placed restrictions on certain travellers from Iran, Iraq, Sudan or Syria, with Libya, Somalia and Yemen being added a few months later.

Nevertheless, the travel ban – or what the White House has called 'extreme vetting' – has received widespread criticism. Critics have claimed that none of the countries of origin of the 9/11 hijackers – Saudi Arabia, Egypt, and the United Arab Emirates – are included on the list.

Trump has been vociferous in his rebuttal against the legal brake on his plan. Tweeting in response to the judge's ruling, Trump noted that he "just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!"

There are also concerns over how effective the executive order will be in preventing attacks in the US. Looking back at the perpetrators behind terrorist attacks in the US in recent years, it is clear that the order would have failed to prevent them from occurring. According to the Cato Institute, no fatal attacks have been attributed to nationals from the travel ban countries since 9/11; although there have been three non-deadly attacks by individuals from two of those countries, Somalia and Iran. Furthermore, of the 97 terrorism suspects the Federal Bureau of Investigation (FBI) has arrested since January 2015, 82 percent have been US citizens. The executive order will therefore not prevent the far more likely threat – homegrown attacks by domestic nationals – as it does not address online radicalisation.

The travel ban also comes as Trump's administration is reportedly pushing to remove neo-Nazis and white supremacists from the US government's Countering Violent Extremism (CVE) programme by shifting its focus to look exclusively at Islamist terrorism. As indicated, this decision stands in contrast to evidence from attacks to date. Since January 2015, the FBI has arrested more anti-immigrant American citizens plotting violent attacks against Muslims within the US than refugees or former refugees from any country listed in the executive order.

Critics have further claimed that the ban is a move by Trump to enact one of his more discriminatory campaign promises. In 2015, he called for a "total and complete shutdown" of Muslim immigration to the US. The proposal evolved throughout 2016 into a more tempered and legally defensible country-based ban, which is currently on the table.

Where to from here?

Civil rights groups and states have moved swiftly to attempt to stop the executive order. While the move sparked mass protests in the US, other countries – including South Africa – have also noted their disapproval with the ban. Although South Africa remains unaffected by the executive order, Home Affairs Minister, Malusi Gigaba, stated that "it violates international law to impose a collective ban on people, except people belonging to an organisation injurious to national interests."

Following several temporary and localised court rulings in the US, the order was put on hold on 3 February by a federal judge in Seattle. The travel ban is on ice for now, but Trump has been vociferous in his rebuttal against the legal brake on his plan. Tweeting in response to the judge's ruling, Trump noted that he "just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!"

After a challenge against the suspension of the travel ban failed in San Francisco's Ninth Circuit court on 10 February, Trump has claimed that he's considering taking the matter to the Supreme Court of the US (SCOTUS). However, the court has one vacancy and is currently divided 4-4 along ideological lines. While Trump has named his candidate, Neil Gorsuch, to fill the open seat, Gorsuch's confirmation could take up to six weeks, and Democrats will likely work to thwart a speedy process. As such, should Trump insist that SCOTUS review the legality of the stay against the executive order, he would be taking a significant gamble.

A freshly drafted version of the executive order could be published in a matter of days. However, the intended impact of preventing terrorist attacks in the US is unlikely to materialise.

A more likely scenario involves taking matters into his own hands. Amid pressure to resolve the issue, Trump has suggested that he will issue a new executive order on the travel ban. Acknowledging that the judicial process would be lengthy, Trump has noted that "the unfortunate part is that it takes time statutorily... we'll win that battle... but we also have a lot of other options, including just filing a brand-new order." It remains to be seen whether a re-written executive order will be more carefully worded or watered down.

However, it is highly unlikely that any new version will expand the current list of banned countries. It is more likely that a new executive order will be crafted to assist in ensuring that court-identified issues pertaining to procedure and due process will be addressed in a new iteration of the travel ban, which is more likely to stand up against further legal challenges.

A freshly drafted version of the executive order could be published in a matter of days. However, the intended impact of preventing terrorist attacks in the US is unlikely to materialise. The order is likely to cause significant disruption to ordinary peoples' lives, while at the same time telling Muslims 'you are not welcome here'. The resulting alienation and disaffection from the executive order are therefore more likely to drive up intent to carry out attacks against the US.