President Donald Trump speaks as Defense Secretary Gen. James Mattis and Vice President Mike Pence look on in the Hall of Heroes at the Department of Defense on Jan. 27 in Arlington, Virginia. Trump signed two orders calling for the "great rebuilding" of the nation's military and the "extreme vetting" of visa seekers from terror-plagued countries. | Getty Washington And The World The Consequences of Extreme Vetting

Jonathan Meyer, a former deputy general counsel of the Department of Homeland Security, is a partner at Sheppard, Mullin, Richter & Hampton LLC.

I’m a lawyer. I’m a big believer in the power of the law to influence policy for good. But sometimes, we lawyers need to look up from our legal treatises and think about the real world. That is the case with the Trump administration’s proposals for “extreme vetting” of foreigners hoping to travel to the United States. On Thursday, the State Department announced new visa vetting procedures it plans to put into effect on May 18, including requiring certain applicants to provide their social media handles and platforms used during the previous five years, and divulge all phone numbers and email addresses used during that period. According to news reports, the Department of Homeland Security is also contemplating a policy that would require visitors from other countries to hand over social media passwords and mobile phone contacts, as well as other information.

These proposals, which stem from the president’s campaign statements last year, and have been publicly discussed by government officials since shortly after the inauguration, have drawn harsh criticism from a number of lawyers. The government’s authority here is broad, permitting the State Department to investigate visa applicants, and Customs and Border Protection to search travelers’ belongings before they enter the U.S., and deny them entry if they refuse. But even so, brilliant legal minds are publishing articles trying to make the argument that the proposed extreme vetting policy would be unconstitutional. They may or may not win those arguments in court, but they are missing the stronger, non-legal arguments that should defeat any effort to impose this extreme vetting policy.


Here is why the policy would be a mistake: Americans traveling abroad would soon face the same scrutiny when entering other countries. If we were to impose these kinds of burdensome intrusions of privacy on travelers from other countries, it would be only a matter of time before other countries reciprocated. Americans should ask: Do I want to hand over my social media passwords and personal contacts every time I go to the United Kingdom, Germany, or Italy? Let alone China, Russia or Turkey? Is it a smart policy to open the door for these other countries to reciprocate?

And if you think reciprocation is an empty threat, just look at what the European Parliament did recently. In response to the fact that the U.S. does not permit citizens of five European Union nationsto enter the U.S. without a visa, the European Parliament voted to start requiring Americans to obtain visas to enter Europe, for the first time in recent memory. While the European Commission has now rejected that effort, the imposition of extreme vetting by the U.S. could push it back in the other direction.

But reciprocation is not the only down side to extreme vetting. It would hurt our economy. Already, the U.S. travel industry has reported that international tourism to the U.S., which averages $100 billion annually, dropped 6.8 percent in the aftermath of the government’s travel ban. Thousands of academics have pledged not to attend conferences in the U.S. and have called for a general boycott of academic conferences here, also because of the travel ban. Implementation of extreme vetting would only accelerate this trend.

Finally, as with any contemplated policy, we need to ask ourselves the most basic of questions: Will it work? If someone has taken the time, spent the money and invested the planning effort to travel to this country with the intention of inflicting significant harm, is it likely they would be tripped up by this well-publicized policy? Would they create a social media presence with evidence of their extremist beliefs, knowing it would be discovered at the border? Would they load the phone they are bringing to the U.S. with their extremist contacts? Not likely.

The law is a powerful tool that can bring many a bad policy to its knees. But in the case of extreme vetting, it is the practical implications of the proposed policy that may stop it dead in its tracks.