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Obama just made it much harder for Trump to build his “Muslim registry”

Instead of reanimating a Bush-era registration program, Trump will have to go back to square one.

Obama Signs Condolence Book at the Embassy of France Photo by Ron Sachs-Pool/Getty images

For nine years, from 2002 to 2011, a version of one of Donald Trump’s most extreme proposals was standard US government policy: requiring certain people in the US on visas from Muslim-majority countries to register with the government.

President Barack Obama suspended the program in 2011 — after years of complaints by civil rights groups that the program targeted Muslims and wasn’t effective in preventing terrorism. But it had never been fully dismantled — it was still sitting around for the Trump administration to dust off.

Until now.

On Thursday, the Department of Homeland Security published a regulation that would totally get rid of the National Entry-Exit Registration System (NSEERS) — forcing the Trump administration to take the time to create something new, and giving civil rights groups an opportunity to stop them.

The regulation goes into effect Friday, December 23, well before President Trump is inaugurated. So when his administration takes office — if it’s serious about finding a way to register people from Muslim-majority countries in the US — it’s going to have to find another way to do it.

The registry didn’t get destroyed, it just stopped tracking anybody

At least one adviser to the Trump transition team, Kansas Secretary of State Kris Kobach, is recommending the Trump administration “update and reintroduce the NSEERS screening and tracking system” for men in the US on “nonimmigrant” visas (such as work or student visas) from particular countries.

The NSEERS program forced people from 25 countries to register with the federal government and check in for follow-ups. It resulted in the deportation of about 13,000 people. It did not result in any convictions for terrorism or related crimes.

Twenty-four of the 25 countries included were Muslim-majority countries — and the 25th was North Korea. The NSEERS program registered visa-holders of all faiths from affected countries. But most of those affected were Muslim — and in context (it was passed after 9/11), that certainly didn’t seem like a coincidence.

A letter last month urging the Obama administration to dismantle NSEERS, signed by 51 House Democrats, argued that NSEERS created a chilling effect in Muslim-American communities:

“When instituted in 2002, the program caused widespread and palpable fear in affected communities, separated families and caused much harm to people affected by it. Boys and men were required to register with local immigration offices, were interrogated, and subjected to serious due process violation. Communities saw family members and neighbors disappear in the middle of the night, held in overcrowded jails and deported without due process. More than 13,000 people were placed in removal proceedings, businesses closed down, and students were forced to leave school with degrees uncompleted.”

Kobach’s plan didn’t specify exactly which countries a new NSEERS program would cover. But it seems like a reasonable guess that Trump’s reanimation of NSEERS would target the same countries as the last one — creating a (more restrained) version of the “Muslim registry” Trump once endorsed on the campaign trail.

Obama’s White House has spoken strongly against any sort of discrimination against Muslim immigrants. Indeed, that’s one of the reasons that it stopped tracking anyone under the program in 2011.

But while the Obama administration’s rhetoric made it clear they thought NSEERS was a bad idea, they didn’t fully get rid of it. What they did, instead, was just clear out the list of countries from which people would be registered.

The regulatory framework to screen and track visa-holders still existed, it was just screening and tracking immigrants from zero countries. It was dormant, but not defunct.

So when Kobach’s proposal leaked, all it would have taken to start NSEERS back up again would be for DHS to announce that they were re-adding countries to the list — something they could do with a simple notice in the Federal Register, without requiring any time for public comment or other regulatory delays. From there, it would just have been a matter of logistics to get the registry up and running again.

Forcing the Trump administration to start from square one could make it easier to block the new registry effort

When the Bush administration created the NSEERS program in 2002, though, they did have to go through the traditional regulatory process — including allowing the public to submit comments and concerns, and responding to them.

Unsurprisingly, one of the most common concerns voiced in response to the original proposal was that it would inhibit the civil rights of Muslims; even before any specific countries were listed as NSEERS targets, civil rights groups could see how a tracking system would probably be used.

The Bush administration responded by defending its record on civil rights protection. In the wake of 9/11, it acknowledged, “some American Muslims have been targets of discrimination.[…] These attacks against Muslim Americans and the Muslim communities are not only reprehensible; like terrorism, they are also attacks against the United States and humanity.”

The government pointed out that the FBI had investigated civil rights violations against Muslim, Arab, and Sikh Americans, and would continue to do so. And it “unequivocally rejects the notion that the requirements of (NSEERS) or the criteria for application […] are, or are intended to be, invidiously discriminatory.”

It was relatively easy for the Bush administration to make that case — consistently throughout his presidency, President Bush made it clear that he did not see Muslims or Islam as a threat, and urged Americans not to succumb to Islamophobia.

President-elect Trump, and the people who will make up his White House, do not have that sort of track record.

Trump originally called for a ban on Muslims from entering the US (something he’s since revised to a ban on immigrants who don’t share American “values”). His national security adviser, Mike Flynn, has tweeted that “fear of Muslims is RATIONAL”; his deputy national security adviser, KT McFarland, has stressed that not all Muslims are radical (“not by a long shot”) but that “even if just 10 percent of 1 percent are radicalized, that’s a staggering 1.6 million people bent on destroying Western civilization and the values we hold dear.”

As long as the Bush-era regulations that authorized NSEERS stood, the Bush administration’s justification of them stood as well — even if the incoming administration doesn’t have as much credibility to claim that the point of NSEERS isn’t anti-Muslim discrimination.

But now that the Trump administration won’t have the ability to simply reanimate existing regulations, it will have to, rhetorically, go back to square one. It will have to propose a new set of regulations to register and track people from particular countries during their time in the US. And it will have to argue, as the Bush administration did, that it isn’t using Muslim-majority countries as a proxy to “invidiously discriminate” against Muslims — something it might struggle to persuasively do.

That could be a valuable opportunity for Democrats and civil rights lawyers to block, or at least slow, the new registry. They might not succeed — but they certainly have a bigger chance than they would have if Donald Trump, on day one of his administration, were simply adding countries back to the list to restart a program that Obama had turned off but never taken apart.

CORRECTION: This article originally referred to “Friday, December 22,” a date that doesn’t exist. The author would like to apologize to readers who were confused, and to members of her family who apparently can’t receive Christmas gifts on “Monday, December 25.”

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