The White House is 0 for 2 on implementing its immigration executive order, after a Hawaii court put a temporary restraining order on the revised travel ban Wednesday — and it’s partly because President Donald Trump and his surrogates couldn’t keep their mouths shut.
Federal Judge Derrick K. Watson of Hawaii, who issued the restraining order just hours before the revised immigration order was scheduled to go into effect, brushed aside the administration’s argument that the executive order did not amount to a “Muslim ban” that targets a particular religion.
To rebut that claim, Watson cited Trump campaign press releases touting a Muslim ban, along with television appearances by Trump’s adviser Rudy Giuliani and White House policy adviser and campaign speechwriter Stephen Miller.
“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,’” Watson wrote in his order. “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.’”
Nor is there anything “secret” about the Executive’s motive specific to the issuance of the Executive Order: 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.’”
On February 21, 2017, commenting on the then-upcoming revision to the Executive Order, the President’s Senior Adviser, Stephen Miller, stated, “Fundamentally, [despite “technical” revisions meant to address the Ninth Circuit’s concerns in Washington,] you’re still going to have the same basic policy outcome [as the first].”
These plainly-worded statements, made in the months leading up to and contemporaneous with the signing of the Executive Order, and, in many cases, made by the Executive himself, betray the Executive Order’s stated secular purpose. Any reasonable, objective observer would conclude, as does the Court for purposes of the instant Motion for TRO, that the stated secular purpose of the Executive Order is, at the very least, “secondary to a religious objective” of temporarily suspending the entry of Muslims.
Watson’s wording suggests that any future iterations of this travel ban are unlikely to hold up legally, unless a higher court overturns his reasoning.
As Vox’s Dara Lind explained after the implementation of the first executive order in late January, Trump’s surrogates had sloppy defenses of the travel ban — and often contradicted each other on key pillars of its intentions. They fumbled on whether or not it could be called a Muslim ban, and key members of the administration didn’t even know what the order did, despite the White House’s claims that it was carefully crafted. At the time, Lind predicted this would get them into trouble:
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.
Clearly it didn’t sneak past Watson.