The Trump administration’s defenses of its executive order banning people from seven majority-Muslim countries from entering the US (as well as nearly all refugees) are consistent with the way the executive order’s been applied: all over the place.
Reports from inside the administration have made it clear that the executive order wasn’t developed with anywhere near the typical amount of caution, interagency involvement, or review that would normally happen before an executive order was published — and that, after the order was published, the White House overruled lawyers at the Department of Homeland Security, who initially concluded it wouldn’t apply to green card holders.
Administration officials’ appearances on Sunday talk shows appeared to be less cautious than one might expect in explaining and defending the order, too — and it could really come back to hurt them.
That’s because the administration is already being sued all over the US over the order, with more lawsuits on the way. Public statements about the order from administration officials aren’t just spin, they’re evidence. And the evidence that Trump spokespeople offered into the record on Sunday could make it harder for the government to defend this case in court.
It’s going to be hard to argue the executive order doesn’t discriminate against Muslims when Rudy Giuliani says the president asked him to do just that
The biggest problem for the administration on television this weekend didn’t come from an administration official at all. It came from former campaign adviser Rudy Giuliani — who told Fox News, late Saturday, that Trump asked him and others do figure out how to do a Muslim ban “legally”:
I'll tell you the whole history of it. So when he first announced it he said "Muslim ban." He called me up and said, "put a commission together, show me the right way to do it legally." I put a commission together with Judge Mukasey, with Congressman McCaul, Pete King, a whole group of other very expert lawyers on this. And what we did was we focused on, instead of religion, danger. The areas of the world that create danger for us. Which is a factual basis. Not a religious basis. Perfectly legal, perfectly sensible, and that's what the ban is based on. It's not based on religion. It's based on places where there are substantial evidence that people are sending terrorists into our country.
On Monday, the Council on American-Islamic Relations has already announced that it plans to sue the Trump administration to strike down the executive order on the basis of discrimination against Muslims. The best argument the Trump administration has in response is that the executive order doesn’t do anything to single out Muslims — it bans people based on nationality, and the vast majority of Muslims don’t live in the seven countries singled out. (The administration has implied that it will exempt Christians from those countries, but that’s not happening in all cases.)
It’s going to be much harder to make that argument when there’s a quote, in the public record, from someone claiming to have been involved in developing the policy, all but saying that the intention of it was to ban Muslims — but in a way they could sneak past a judge.
In fairness, Giuliani does emphasize that the way to “legally” ban Muslims is to ignore religion and focus on “danger” instead. But in order for the government to argue in court that that’s what the executive order does, it’s essentially going to have to argue that even though the president wanted to violate the Constitution, he was successfully prevented from doing so. That’s a trickier argument than just saying he wasn’t trying to violate the Constitution at all.
It’s going to be hard to argue that the executive order was carefully crafted when administration officials can’t agree on what it does
The administration might have an easier time arguing that the immigration order was carefully crafted not to discriminate against Muslims if it were clear that the immigration order was carefully crafted to begin with.
They didn’t do themselves any favors on that front Sunday, either. Forget coming in with uniform talking points; they didn’t even have uniform statistics.
According to senior adviser Kellyanne Conway, appearing on Fox News Sunday, 300 people who fit the ban criteria were detained at airports Saturday. According to White House press secretary Sean Spicer, appearing on ABC’s This Week, it was only 109.
Conway and Spicer did manage to agree that, however many people were being detained, they were just being screened before being allowed to enter the country — Conway claimed that anyone who didn’t pose a threat to the US would be released, and Spicer said that they “are being processed through the system to make sure that the vetting is applied.”
That would be a surprise to the people who’ve already been deported under the executive order, or those currently in detention who are being pressured to sign deportation papers. It’s also inconsistent with what the executive order actually does: it doesn’t just require people from seven majority-Muslim countries to go through additional screening before entering the US, it bars them from entering the US. That’s the entire point of the “strong ban” the president patted himself on the back on Saturday for implementing.
White House Chief of Staff Reince Priebus, meanwhile, appeared unclear on whether the executive order actually applied to green card holders or not. At first, he told NBC’s Meet the Press that they wouldn’t be affected; then he said that “of course” the ban required them to get additional screening. (The second position was consistent with what Customs and Border Protection officials were saying at the time, which was that green card holders would be permitted in on a case-by-case basis if they pass through screening.)
In all, it didn’t give the impression that the drafting and implementation of the immigration order had been terribly careful or cautious. Spicer all but admitted the government hadn’t taken much time to disseminate the policy and explain it to relevant officials before Trump signed the order: “What we couldn't do was telegraph our position ahead of time to ensure that people flooded in before that happened, before it went into place.”
From a political standpoint, the inconsistency is eyebrow-raising, if perhaps not uncharacteristic of this administration. But from a legal standpoint, it could be a big liability.
Judges have already been less than deferential to the administration in emergency lawsuits filed around the country to prevent the detention and deportation of people who’ve entered the US since Friday. In at least one case, in New York, the government’s discombobulation in implementing the order appeared to be a big reason Judge Ann Donnelly wasn’t sympathetic to their side of the case:
Judge asked if people would suffer irreparable harm if sent back to dangerous places. Govt essentially didn't have an answer— Tom Namako (@TomNamako) January 29, 2017
CAn you provide a list of who is detained. US: "We don't know, people are coming in all the time." Judge Donnelly: "Work it out."— Jackie Vimo (@JackieVimo) January 29, 2017
Judge: "I think the government hasn't had a full chance to think about this"— Tom Namako (@TomNamako) January 29, 2017
“The government hasn’t had a full chance to think about this” is a really good argument for granting an injunction, to prevent any harm from happening while the government figures it out. And it’s a good reason for a judge to be skeptical about the constitutionality of the order itself — it’s going to be hard for a government attorney, in a full hearing, to argue that the order was carefully planned to conform to the Constitution if the judge has evidence it wasn’t carefully planned at all.