President Trump’s latest racist remarks, like many of his comments before them, can and will be used against him in court.
And if his losing record on immigration cases is any guide, they will be used effectively.
In conjunction with other factors, they could help persuade judges to block policies he claims are crucial to his agenda, particularly on immigration, on the grounds of racial or ethnic animus.
That’s been the pattern ever since Trump took office.
His words — about Mexican immigrants as “criminals, drug dealers” and “rapists,” Nigerians going back “to their huts,” Haitians all having AIDS, or of too many migrants from “shithole countries” — have helped stall much of Trump’s immigration crackdown.
It hasn’t been any particular comment that has made the difference in court but rather the accumulation of them.
The latest tweets, saying that four Democratic members of the House, all citizens and women of color, should “go back” to “the crime infested places from which they came,” just builds on the others. Smart lawyers combine the cumulative record with more mundane administrative law complaints, turning relatively routine cases into more serious Equal Protection Clause controversies. That gives judges greater license to probe the motives of the government.
The comments directed at Reps. Alexandria Ocasio-Cortez (N.Y.), Ilhan Omar (Minn.), Ayanna Pressley (Mass.) and Rashida Tlaib (Mich.) could, for example, figure into challenges to Trump’s new asylum restrictions, suggested Sejal Zota, an immigration rights lawyer at Just Futures Law based in Durham, N.C., who helped block the administration’s efforts to end “temporary protected status” (TPS) for Haitians.
“I don’t think these comments are enough in and of themselves, but they can be helpful to help establish a long record of xenophobia and bigotry towards people of color and people he perceives as immigrants, which is important when you can connect the dots to his changes in immigration law,” she said. “In our TPS case, you could see the pretext based on statements by other officials involved in the process.”
The earliest example of the pattern came at the outset of the Trump administration, when courts across the country blocked implementation of the president’s travel ban, citing, among other things, anti-Muslim remarks by Trump and others around him.
In judicial circles, some such as Judge Derrick K. Watson of the U.S. District Court for the District of Hawaii viewed Trump’s comments as evidence of the real reason for travel restrictions — religious animus rather than national security.
The travel ban decisions forced the administration to rewrite Trump’s order three times. The Supreme Court, reviewing the third version of the ban, ultimately approved it on June 26, 2018, 17 months after Trump’s initial executive order.
The latest example came June 24, when Judge George J. Hazel of the U.S. District Court for the District of Maryland decided to take another look at the administration’s decision to add a citizenship question to the 2020 census, in light of new evidence suggesting that the motive might have been to “shift political power in favor of white voters and away from Hispanic voters.”
He suggested that such a motive was supported by “the Trump campaign, with the backdrop of many statements and tweets demonstrating discriminatory animus,” a theory he had rejected before the new information came to light.
Although the administration dropped the census proposal on July 11 after a defeat at the Supreme Court, Hazel has not formally closed the case before him, according to court records.
In between the travel ban and the census came four rulings blocking Trump’s attempt to eliminate Deferred Action for Childhood Arrivals (DACA), the program that shields from deportation young undocumented immigrants brought to the United States as children, each citing disparaging anti-immigrant remarks by the president.
In addition, three separate decisions citing Trump’s “shithole countries” comments helped block a plan by the administration to end temporary protected status for migrants from countries affected by natural or man-made disasters. The administration’s action, still being appealed, would have jeopardized the legal presence in the United States of some 300,000 people from El Salvador, Haiti, Nicaragua and Sudan.
Correction: A previous version of this story misstated the length of time that passed between President Trump’s travel ban order and the Supreme Court ruling upholding its third version. Seventeen months passed.