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.
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