Immigration lawyers who oppose the ban were chortling last night as he said this, urging Trump to “keep talking.” That’s because the Hawaii ruling that blocked the new travel-ban order cited public statements by Trump and aides like Stephen Miller as evidence that the second ban has the same improper motive, religious discrimination, as the first ban that was frozen by the Ninth Circuit. From the Hawaii judge’s opinion:
The Government appropriately cautions that, in determining purpose, courts should not look into the ‘veiled psyche’ and ‘secret motives’ of government decision-makers and may not undertake a ‘judicial psychoanalysis of a drafter’s heart of hearts’.
The Government need not fear. The remarkable facts at issue here require no such impermissible inquiry.
For instance, there is nothing ‘veiled’ about this press release: ‘Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.’…
Rudolph Giuliani explained on television how the Executive Order came to be. He said: “When [Mr. Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’”
The court specifically mentioned what Miller had to say last month about there being a minimal difference between the new travel-ban order and the first one:
On February 21, Senior Advisor to the President, Stephen Miller, told Fox News that the new travel ban would have the same effect as the old one. He said: “Fundamentally, you’re still going to have the same basic policy outcome for the country, but you’re going to be responsive to a lot of very technical issues that were brought up by the court and those will be addressed. But in terms of protecting the country, those basic policies are still going to be in effect.”
If the first order had a discriminatory purpose, the court reasoned, and the second order is designed to achieve the same policies, well, that must mean the second order has a discriminatory purpose too. Trump aides should be playing up the differences between the orders to make the case that the second one is a complete departure from the first. Instead, here’s Trump himself at a rally in Nashville last night feeding the idea that the two aren’t very different at all: The second order is just a “watered-down” version of the first, he says — and not only that, he’d actually prefer to double down on the first order with the supposedly discriminatory motive. If the Supreme Court ends up agreeing with the Ninth Circuit that public statements by the president and his aides are fair game in interpreting an order’s constitutionality, the clip below will be treated as evidence that an improper purpose infects both orders.
Big “if,” though. Alan Dershowitz (whom Trump mentions in the clip) argued last night that Trump will almost certainly win this case in the Supreme Court because the Court doesn’t want to be in the business of having to parse politicians’ everyday blather to judge whether an official act is constitutional or not. Remember, Dershowitz said, the seven countries targeted in Trump’s first ban were cribbed from a list of nations flagged by the Obama administration as being of special concern; it can’t be that “an order can be constitutional when issued by Barack Obama but the very same words unconstitutional when issued by Donald Trump.”
Another problem for the Supremes if they follow the Ninth Circuit standard would be figuring out how a politician, having once stated a discriminatory purpose for a policy in public, can successfully repudiate that purpose so that the policy then passes legal muster on neutral grounds. Does the fact that Trump announced his support for a temporary global ban on all Muslim visitors in 2015 mean that he now can’t issue an order suspending immigration from any Muslim country, even if he can show that it presents a special terrorist threat? What if he issues a statement saying, “I denounce the policy I briefly supported in 2015”? Would that make the immigration order suddenly constitutional because the discriminatory purpose had now been disavowed? (Dershowitz noted that the second order eliminates the provision in the first that gave Christian refugees preference over others. Doesn’t that speak to a difference in purpose between the two?) He needs to be able to implement counterterrorism policies as president. If you take the Hawaii ruling seriously, many moves he makes as president that are aimed at terrorists in Muslim countries might be unconstitutional due to a discriminatory purpose that Trump might not be able to undo.
Anyway. He’ll probably win in the long run but it’d be smart thinkin’ for him and the White House communications shop in the meantime not to say anything else about how similar the second order is to the first, or (especially) how they prefer the first one. And speaking of the long run, your exit question: Isn’t the point of the temporary travel ban to pause for 90 days and give the federal government time to come up with “extreme vetting” standards for visitors from “problem” countries? Well, it’s been 45 days or so since the first travel ban was signed; the court fight over the second one might well last another 45 days. By the time it’s over, the feds should have developed their vetting guidelines and the ban will no longer be needed, right?
Trump says his 2nd travel ban = a “watered-down version” of 1st ban—he wants to go back to 1st ban
Lawsuits will likely cite this statement pic.twitter.com/2F15aTEXaD
— Bradd Jaffy (@BraddJaffy) March 16, 2017