Leah Litman // 6/5/17 //
On Monday morning the President fired off another series of tweets about the “travel ban.” On Saturday and Sunday, the President had used the terror attacks on London as a reason for, and the occasion to justify, the travel ban. (The travel ban is a temporary ban on entry into the United States from the nationals of several Muslim-majority countries.)
This time, however, the President spoke (primarily) about the ban itself in deeply troubling and unsettling ways.
First was (in my view) the most innocuous statement: “People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!”
He continued with some additional comments about the Justice Department: “The Justice Dept. should ask for an expedited hearing of the watered down Travel Ban before the Supreme Court- & seek much tougher version!”
Finally (at least about the travel ban), he wrote: “In any event we are EXTREME VETTING people coming into the U.S. in order to help keep our country safe. The courts are slow and political.”
George Conway, who was under consideration to be the Solicitor General of the United States and the head of the Civil Division of the Department of Justice (until he removed himself form consideration), took to Twitter to comment on the President’s statements. Conway explained the tweets “certainly won’t help OSG get 5 votes in SCOTUS,” and that they “seriously undermine Admin agenda and POTUS.”
Conway’s right. (George that is; as of Monday, Kellyanne was apparently still insisting the President’s statements on Twitter are unimportant.) Why is that?
The President’s statements undercut arguments, both large and small, that the administration has made to defend the legality of the travel ban.
(1) Why an entry ban?
The first and second executive orders stated that the “entry ban” (meaning the 90 day suspension of entry into the United States by nationals of several Muslim-majority countries) was not really an “entry ban” so much as a temporary suspension of entry while the United States reviewed vetting procedures in those countries. On top of that, the order also contains a provision allowing the suspension to be lifted on a case by case basis. Superficially, the President’s repeated referrals to the “temporary suspension, except in case by case determinations” on entry as a “travel ban” undermines DOJ’s contrary framing of the travel ban as a temporary pause until the U.S. could review its visa procedures.
More importantly, the statements continue to sever the link between the entry/travel ban and the purported need to review the United States’ procedures for granting visas and other documents to nationals of the six countries subject to the ban. As Marty Lederman explained, the government’s interpretation of the executive order’s effective date (that the order becomes effective “whenever it is allowed to go into effect”) would mean that government thinks the entry ban could go into effect well after its review of the visa procedures had ended. Here, the government (and specifically the President) is belligerently proclaiming the need for the entry ban without any reference to a review of the visa procedures.
(2) Nationality or religion?
On the merits of the entry ban, the Department of Justice has argued that the order (at least the second one) is facially neutral and makes no mention of religion. Thus, according to DOJ, the ban does not violate the Establishment Clause, which prohibits the government from favoring or disfavoring particular religions. And this order, DOJ explains, uses nationality, not religion. The challengers have argued the ban uses nationality as a pretextual proxy for religion (specifically, for Islam).
The President’s most recent statements don’t do a great job of undermining that argument; if anything, they bolster it. The statements refer to the most recent order as a “watered down” and “politically correct” version of the “original Travel Ban.” The original order, of course, contained an explicit preference for religious minorities, once the refugee program was back up and running. Applied to the countries singled out in the entry ban, and applied to the country singled out for an indefinite suspension under the refugee program (Syria), that exception meant a preference for Christians. By continuing to tie the second order to the first order, which on its face was concerned with religion, the President is undermining any argument that the second order uses nationality for nationality’s sake (or for security’s sake), rather than using nationality as a pretextual proxy for religion.
The President also repeatedly continues to insist this order is both “watered down” and “politically correct.” As Helen Klein Murillo and I wrote:
One might posit that we just don’t know what Trump means when he opaquely references “political correctness.” But in context and based on his historical use of the term, there’s a better interpretation of what he means. In the last year, that phrase, to him, has meant the following: It is appropriate to call for surveillance of all Muslims, and all places of Muslim worship; it is appropriate to call for a “total and complete shutdown” of Muslims entering the United States; and it is appropriate to refer to “Radical Islamic Terrorism.” So not being “politically correct,” in this context, means saying something bad about all Muslims based on the actions of a few.
In this context, not being “politically correct” appears to mean using nationality as a pretextual proxy for religion (and specifically Muslims), instead of just singling out religion (and specifically Muslims).
(3) The need for a stay
The President’s statements also undermine the arguments DOJ made to support its request for stays of the injunctions on the entry ban (i.e., to support DOJ’s request that the entry ban be allowed to go into effect). DOJ argued that it was necessary, for national security, that the entry ban be allowed to go into effect, and that the country would be irreparably harmed if entry was not suspended until the government had time to complete its review of the visa procedures in the countries subject to the ban.
Fear not, the President assured the Supreme Court: “In any event we are EXTREME VETTING people coming into the U.S. in order to help keep our country safe.”
(4) “Curing the taint”
The President’s statements also undermine one of the core defenses of the entry ban on its merits—that a sufficient amount of time has passed between the first and second orders (or the campaign statements and the second order), and that enough intervening events had occurred between the first and second orders (or between the campaign statements and the second order) to cure whatever impermissible motive/ taint had doomed the first order, and to cure whatever “taint” there was from the President’s campaign statements about Muslims.
DOJ’s argument went something like this: Yes, the President made some (okay, a lot of) statements reflecting an animus toward Muslims. Sure, the President proposed during the campaign to ban Muslims from entering the United States. Sure he wrote an executive order that explicitly gave a preference to religious minorities in a Muslim-majority country. But that can’t mean the President is forever precluded from taking action that may disadvantage Muslim-majority countries. Specifically, they explain, the President and his administration can “cure the taint” from his anti-Muslim statements, and the first order. And the passage of time, and a variety of events cured that taint here: He took the oath of office; he got an administration; time has passed; he consulted with the heads of agencies about the second order; two of those agency heads made a “determination” that an entry ban was warranted; and so on.
As a general claim, the idea that an administration can cure itself of impermissible animus is correct, as Joseph Blocher has explained. Even before the President’s latest statements, however, I don’t think the administration had sufficiently removed the taint from his earlier statements and from the first order—there was never any public denunciation of the statements, and the President continued to allude to connections between the second order and the first one, as well as his campaign statements and the second order.
But whether the “taint” had sufficiently been removed by June 2, 2017 is now an academic question, because the President utterly discredited that defense of the second order with his most recent statements. How did he do so? The President told us that, in framing the second order, the first order (the one giving a preference to religious minorities from a Muslim-majority country, that is) is what was—and still is—on his mind. DOJ, he says, should have stayed with the “original Travel Ban” not the current one, which suggests the President wanted the first one, but DOJ made him settle for the second. On top of its explicit preference for religious minorities (i.e., facial reference to religion), the first order suffered from a variety of other legal issues as well—it applied to persons who already had visas; it applied to persons who were on planes seeking to enter the United States and were stuck in limbo at airports and caused utter havoc at U.S. airports. That’s the order the President preferred, and that’s the order he continued to want to effectuate.
That the first order was what the President wanted, and what he sought to effectuate in the second order, also undercuts DOJ’s argument that the “intervening events” precipitated the second order. Among the intervening events that DOJ argued cured the “taint” from the first order were that the President had, before the second order (but not the first), consulted with the relevant heads of agencies, and that those agency heads had, before the second order (but not the first) made a “determination” that a (temporary) entry ban was justified for national security reasons. The President’s statements suggest he doesn’t care about those things at all, and those aren’t the reasons the second order was created. The consultations and determinations were just window dressing for what he had already decided.
(5) “Campaign statements are per se irrelevant”
One of the arguments the DOJ made to defend the travel ban was that the President’s campaign statements (which reflected animus toward Muslims) could not be considered. Walter Dellinger argued that the President’s most recent statements “incorporated by reference all his anti-Muslim campaign words and made them presidential edicts.” The President suggested the second order was just done to implement the first, and the first order was implemented with no consultations from the relevant agency heads, and, in the President and his representative’s words, to fulfill a plan he had all along, and to fulfill a campaign promise—namely, to shut down Muslims entering the United States.
(6) Trump and his lawyers
The statements also reflect a childish lack of awareness about how government works. Trump said DOJ should “seek much tougher version” of the order (perhaps “before the Supreme Court”)? Of course, DOJ doesn’t seek an entry ban, and they certainly wouldn’t do so from the Supreme Court.
The statements also continue to put space between Trump and his lawyers and his advisers. The statements suggest DOJ argued for a “watered down” version of the order (read: one not obviously facially concerned with religion), whereas Trump wanted the first order, or perhaps a version that’s “much tougher” than that. And even if DOJ wanted that watered down order, Trump, not DOJ, signed it.
By conveying such a flagrant lack of knowledge for how government works, while simultaneously undermining all of the legal defenses his lawyers have made of the ban on its merits, Trump is providing further evidence that things aren’t operating in the ordinary course of things in this administration. The statements suggesting Trump’s pre-commitment to the second order, and his descriptions of the disagreement between him and the DOJ in the course of negotiating the second order, are all evidence that the process leading to the second order should not be presumed regular. On Twitter, Jack Goldsmith suggested the presumption of regularity may have been undermined even beyond that, as it applies to all of this administration’s current (and future) actions.
In the Washington Post, Eugene Kontorovich took the provocative position that even one of the President’s most committed and zealous public advocates couldn’t—namely, that the President’s statements may actually “buttress the government’s defense of the travel restrictions.” Kontorovich first discounts the President’s statement that the measure is a travel ban, as opposed to a temporary suspension of entry by persons without visas subject to case by case exceptions. Fair enough.
But then Kontorovich writes: “The ACLU has tried to equate ‘travel ban’ with ‘Muslim ban’ but obviously that is not what the tweet says, or even hints at.” I don’t read anyone as saying that the phrase “travel ban” is, by itself, interchangeable with or evocative of “Muslim ban.” Rather, the point is that by linking the second ban to the first ban, which incorporated an explicit mention of religion and was issued with zero consultations or inputs from relevant agency heads, the President has again stated that the second order seeks to accomplish what the first order did. And that first order was a hot legal mess that was not issued based on national security determinations by the relevant agency heads. It was something else instead.
Kontorovich then says that “watered down” and “politically incorrect” are “merely descriptive” terms of the “new executive order.” (I think politically correct is the President’s descriptive term for the second order; politically incorrect the term for the first order (or perhaps the President’s proposal for a total and complete shut down of all Muslims entering the United States).) Kontorovich writes that the first order was “watered down to respond to judicial and political opposition.” For Kontorovich, that seems to make the order lawful: “Commentators are reacting as if Trump said that the revised version is a “watered down” Muslim ban. He did not. He said it is a watered down version of the first order, which everyone already knew.”
The point of the President’s statements is, as Kontorovich recognizes, that the second order is a “watered down version of the first order.” But as I’ve explained, that means the second order was enacted not based on the intervening events, or the consultations with the agency heads, or the determinations of those agency heads. It was not enacted based on a national security determination. It was enacted to effectuate the policy of the first order, which was not premised on any national security determinations, and contained an explicit preference for religious minorities from a Muslim-majority country.
Kontorovich adds “Nor is it a constitutional offense to be politically incorrect.” Sure, but the First Amendment makes it a constitutional offense for a government official to enact a policy that disadvantages Muslims because the official harbors some widespread suspicion of all Muslims. Kontorovich adds that the “tweets imply that Trump had little or no role in the drafting of the current executive order.” I don’t think anyone thought Trump could have written the order (it’s more than 140 characters). But he still signed it; and if the order was drafted to effectuate/implement the first order (but in a less obviously unlawful way), that doesn’t make the order more legal.
One last thought. Buried in all of the President’s rants is a concerning suggestion, one that he has made before and also made recently—that if the ban is not allowed to go into effect, and the United States suffers a terror attack, the courts would be to blame. “The courts are slow and political” he writes. Summing up the obvious (which nonetheless took me a long post to explain), Joseph Fishkin observed, “the President’s statements undercut his own lawyers best arguments for the constitutionality of the travel ban.” So what might the President want? Fishkin suggests it is an effort to build a narrative in the event the President loses this case: “Trump can attack the courts, wrapping them in the rich fabric of resentment and polarized grievance that is the central element of his political success.” Adrian Vermeule likewise saw in Trump’s statements an appeal to “judges’ fear of causing or being perceived to have caused, a terror attack that could have been prevented.”
Jack Goldsmith suggested something similar back in February (i.e., an eternity ago). Goldsmith wrote that, if Trump is acting with knowledge and purpose (an assumption he questioned), “the only reason” for Trump’s actions “is that Trump is setting the scene to blame judges after an attack that has any conceivable connection to immigration.” He elaborated:
If Trump loses in court he credibly will say to the American people that he tried and failed to create tighter immigration controls. This will deflect blame for the attack. And it will also help Trump to enhance his power after the attack. After a bad terrorist attack at home, politicians are always under intense pressure to loosen legal constraints. (This was even true for near-misses, such as the failed Underwear bomber, which caused the Obama administration to loosen constraints on its counterterrorism policies in many ways.) Courts feel these pressures, and those pressures will be significantly heightened, and any countervailing tendency to guard against executive overreaction diminished, if courts are widely seen to be responsible for an actual terrorist attack. More broadly, the usual security panic after a bad attack will be enhanced quite a lot—in courts and in Congress—if before the attack legal and judicial constraints are seen to block safety. If Trump assumes that there will be a bad terrorist attack on his watch, blaming judges now will deflect blame and enhance his power more than usual after the next attack.
The possibility is an alarming one, but it may be real. Do people within the administration (and specifically DOJ or the Solicitor General’s office) share this thinking? We may never know. But we’ll all continue to see this horror show continue to play out before our eyes.
Follow Leah on Twitter @LeahLitman
 He also returned to the London terror attacks, writing: “Pathetic excuse by London Mayor Sadiq Khan who had to think fact on his ‘no reason to be alarmed’ statement. MSM is working hard to sell it!”