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!— Donald J. Trump (@realDonaldTrump) June 5, 2017
The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C.— Donald J. Trump (@realDonaldTrump) June 5, 2017
The Trump administration has asked the Supreme Court to weigh in now that the U.S. Court of Appeals for the 4th Circuit upheld a lower court’s temporary hold on the policy. The appeals court ruled that the plaintiffs were likely to succeed in demonstrating on the merits that the travel ban is unconstitutional, because it violates the establishment clause and is motivated by an intent to discriminate against Muslims.
Jack Goldsmith, a Harvard Law School professor who served in various legal posts in George W. Bush’s administration, told me in an email this morning that Trump’s new tweets are “significant in at least two ways”:
First, they give atmospheric support to the plaintiffs’ arguments, in the various immigration cases, that the immigration executive orders are motivated by invidious discrimination. Second, the attack on courts makes it much harder for courts, including the Supreme Court, to rule for Trump even when the law is otherwise on his side. Courts will want to avoid the appearance of having been bullied into ruling for Trump. The Trump tweets are thus entirely self-defeating for his litigation strategy, assuming he wants to win those cases.
Could Trump’s tweets undercut his administration’s legal defense of the travel ban in some atmospheric sense? Trump made repeated campaign statements confirming his intent to ban Muslims from the United States. At one point he suggested an immigration ban by territory — which is now the basis for the current one he’s pursuing by executive order banning travel from six majority-Muslim countries — would essentially be a way for him to get his originally intended ban around legal hurdles.
The appeals court cited Trump’s own statements as proof of discriminatory intent, and ruled that precedent required it to weigh those statements if there was reason to believe that the president, in promulgating the ban, offered its rationale (national security) in “bad faith.” The government’s lawyers had argued that Trump’s own statements should not weigh on his expansive power to act in an immigration context in defense of the country, and that the courts should not go beyond the text of the executive order — which doesn’t single out Muslims — in determining its muster. The Supreme Court will have to decide, among other things, whether those statements — made before Trump was president — should be relevant.
Trump’s tweets today contradict his own press secretary, Sean Spicer, who had previously insisted the executive order is not a “ban,” but is solely a temporary pause only designed to facilitate the improvement of vetting processes. Trump appears to have confirmed that it is intended as a “ban” with a few impulsive pokes of the Twitter “send” button. It’s not clear this supports the argument that the ban was discriminatory in intent, but it does suggest in a more general way that the administration’s rationales for the ban have been offered in bad faith.
Omar Jadwat, the director of the ACLU’s Immigrants Rights Project and one of the attorneys challenging the ban, told me that the legal team might incorporate Trump’s latest tweets into its argument to the Supreme Court. “The tweets really undermine the factual narrative that the president’s lawyers have been trying to put forth, which is that regardless of what the president has actually said in the past, the second ban is kosher if you look at it entirely on its own terms,” Jadwat told me.
Corey Brettschneider, a political science and constitutional law expert who helped author a brief against the ban, added that Trump’s use of the phrase “politically correct” suggested another layer of bad faith. The first version was also blocked by the courts, and Trump put forth the second one to pass legal muster. Trump is “criticizing his attorney general for convincing him to rewrite the policy,” Brettschneider told me.
Beyond whether Trump’s tweetstorm ends up having legal significance — which it might not — it shows once again that Trump’s handling of the travel ban has been absolutely saturated with bad faith from the very beginning. Recall the back story here: An almost comically slapdash process went into producing the first travel ban. Then the administration delayed the second one to bask in good press from Trump’s speech to Congress, even though it was supposed to be an urgent national security matter. On top of that, the substantive case for it was undercut by Homeland Security’s own analysts in two leaked documents, yet “national security” is still its stated substantive and legal rationale.
Now Trump is openly ridiculing the idea that the second, “politically correct” version of the ban was designed to deal in a good-faith way with the courts’ concerns about the first one. He’s even attacking the Justice Department for its role in doing that. And in the wake of the London attack, he is renewing his pressure on the courts, suggesting their “slowness” is putting the nation at risk. As Goldsmith notes above, it is not impossible that this could make the high court more reluctant to grant Trump the broad latitude his administration is demanding — suggesting, once again, that Trump’s own impulsive words and tweets are badly sapping credibility and could undermine his own agenda.
* TOP TRUMP ADVISERS SPLIT ON CLIMATE CHANGE: On Fox News Sunday, Environmental Protection Agency chief Scott Pruitt said Trump believes the “climate is changing,” but wouldn’t say whether human activity is a primary driver. But on CNN, U.N. ambassador Nikki Haley said:
“President Trump believes the climate is changing. And he believes pollutants are part of that equation … He knows that the U.S. has to be responsible with it, and that’s what we’re going to do. Just because we got out of a club doesn’t mean that we don’t care about the environment.”
Remember, Sean Spicer tried to claim he hadn’t had a chance to ask Trump the question. They can’t get it straight on what Trump even believes — perhaps because he doesn’t know himself.
“I’m appalled and furious that these cowardly terrorists would deliberately target innocent Londoners and bystanders enjoying their Saturday night … Londoners will see an increased police presence today and over the course of the next few days. No reason to be alarmed. One of the things the police and all of us need to do is make sure we’re as safe as we possibly can be.”
One wonders if the fact that Khan is Muslim helped induce Trump to do this.
* GOP SENATOR RAISES DOUBTS ABOUT TRAVEL BAN: GOP Sen. Roy Blunt of Missouri talks some sense about Trump’s immigration plan on Fox News, noting that the 90 days Trump wanted to put “extreme vetting” in place has already passed:
“My view is the president does have certainly the right to put in place extreme vetting … It’s been four months since I said they needed four months to put that in place. I think you can do that without a travel ban and hopefully we are.”
Yes, but reviewing our vetting procedures without the ban wouldn’t constitute an empty-but-vivid gesture showing Trump’s supporters how tough he is on the Muslims. Duh!
* TRUMP SABOTAGE COULD CAUSE PREMIUMS TO SOAR: The New York Times reports that Sen. Susan Collins (R-Maine) is criticizing Trump’s refusal to say whether he’ll continue paying cost-sharing subsidies, which could cause the markets to melt down. Note this:
“The uncertainty is extremely problematic,” said Eric A. Cioppa, the superintendent of the Maine Bureau of Insurance, who said carriers could not fix their rates without knowing the fate of those subsidies. “If they don’t get a subsidy, I fully expect double-digit increases for three carriers on the exchanges here.”
Also remember: The chief executive of Blue Cross Blue Shield North Carolina has also pinned the blame for massive impending premium hikes directly on this Trump sabotage.
* TRUMP’S PARIS DISASTER IS TYPICAL OF GOP: Paul Krugman notes that Trump’s withdrawal from the Paris deal is driven by the same lies and climate denialism that the whole GOP has displayed, which is rooted in a broader GOP contempt for policy:
Today’s G.O.P. doesn’t do substance; it doesn’t assemble evidence, or do analysis to formulate or even to justify its policy positions. Facts and hard thinking aren’t wanted, and anyone who tries to bring such things into the discussion is the enemy … Can you think of any major policy area where the G.O.P. hasn’t gone post-truth?
Trump has been more visibly crazy on climate, but many Republicans have employed all kinds of evasions on this issue for years, and Senate Majority Leader Mitch McConnell (R-Ky.) actively sought to undermine the Paris deal.
* PARIS DECISION DRIVEN BY TRUMP’S ‘DIPLOMACY OF NARCISSISM’: E.J. Dionne Jr. has a nice take on how Trump’s Paris decision was driven not just by short-sighted nationalism, but by his own political self-interest as well:
This choice was partly driven by selfish political motives. This only reinforces how narrow a definition of self-interest is in play here. Trump seems to realize how much trouble he is in from the metastasizing Russia story. So he sought to appeal to his political base, shrunken though it is, by re-embracing his “nationalist” side. He said he’d pull out of the Paris agreement and, by God, he did it! Doesn’t that make him look strong?
It’s not “America First.” It’s “Trump First.” Before the rest of the planet.
* AND THE GOP HAS A BRILLIANT STRATEGY FOR 2018: McClatchy reports that Republican officials are hatching a concerted strategy of making the news media the foil in the 2018 elections:
The hope, say these officials, is to convince Trump die-hards that these mid-term races are as much a referendum on the media as they are on President Trump. That means embracing conflict with local and national journalists, taking them on to show Republicans voters that they, just like the president, are battling a biased press corps out to destroy them … The strategists interviewed say they don’t want their candidates imitating Republican candidate Greg Gianforte, who last month was charged with assaulting a reporter in Montana.
Oh. GOP strategists don’t want their candidates physically assaulting members of the media as the candidates “embrace conflict” with them. That makes it just fine.