Outgoing President Barack Obama has made no secret of the fact that he thinks Donald Trump's on-again-off-again plan to create a database of Muslims in the United States is a bad idea, but once the president-elect takes office, there won't be anything he can do to stop him. On his way out the door, however, Obama did put an obstacle in Trump's way.
The Department of Homeland Security on Thursday officially shut down the National Security Entry-Exit Registration System, a leftover program put in place in 2002 following the 9/11 terror attacks a year earlier. The controversial program required males aged 16 and older who enter the U.S. from specified countries to be fingerprinted, photographed, and interviewed about their plans. The program is also extended to people already living legally in the U.S. if they came from countries on the list.
Of the 25 countries named in the regulation, all but one, North Korea, were majority Muslim nations, leading to charges that the rule was discriminatory. However, the system's own flaws were its downfall. The program turned out to be expensive to implement, unwieldy in operation, and worst of all, redundant.
In 2011, after agencies had already effectively stopped enforcing some of the provisions of the system, the Obama administration officially mothballed the program, saying that modernized information systems monitoring travelers moving in and out of the country were already providing the information that the NSEERS program collected.
Even though the program was no longer operational, the regulations that implemented it were still on the books in the Code of Federal Regulations. As of Friday, that will change, when a final rule by DHS is announced in the Federal Register.
A draft version of the rule, already available on the Federal Register's website, says, "The Department of Homeland Security (DHS) is removing outdated regulations relating to an obsolete special registration program for certain nonimmigrants. DHS ceased use of the National Security Entry-Exit Registration system (NSEERS) program in 2011 after finding that the program was redundant, captured data manually that was already captured through automated systems, and no longer provided an increase in security in light of DHS's evolving assessment of the threat posed to the United States by international terrorism. The regulatory structure pertaining to NSEERS no longer provides a discernible public benefit as the program has been rendered obsolete. Accordingly, DHS is removing the special registration program regulations."
In a statement, a DHS official added, "The intervening years have shown that NSEERS is not only obsolete but that its use would divert limited personnel and resources from more effective measures."
While eliminating the implementing regulations of a non-operational program may seem like a pointless exercise, it isn't. By taking the NSEERS system completely off the books, the Obama administration is foreclosing the possibility that the Trump administration could quickly resurrect the program.
New regulations would be subject to the time-consuming notice and comment requirements of the Administrative Procedure Act, which could delay the implementation of a new Muslim registry indefinitely.
The notice came just a day after President-elect Trump seemed to suggest that a recent terror attack on a Christmas market in the German capital of Berlin vindicated his call, early in the campaign, for a ban on Muslims entering the country and the suggestion that creating a registry of Muslims was also possible.
"You know my plans," Mr. Trump said after a reporter asked him if the Berlin attack made him consider pressing ahead with a Muslim ban or registry. "All along, I've been proven to be right. One hundred percent correct."
A spokesperson later said that Trump was simply restating his plan to "suspend admission of those from countries with high terrorism rates and apply a strict vetting procedure for those seeking entry in order to protect American lives."
The Obama administration, though, doesn't appear to be taking any chances.
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