The terrorist attack in London over the weekend appears to have reminded President Donald Trump that the keystone of his own “national security” agenda — his travel ban — has been blocked in court.
And boy, is he angry about it.
The president started grumbling about the travel ban over the weekend, pointing to the London attack as an example of the need for the ban even before it had been confirmed as terrorism. (The nationalities of the attackers still aren’t known, and there’s no reason yet to believe that they are nationals of the six majority-Muslim countries targeted by the ban.)
By Monday morning, he’d thrown himself into a full-blown rage — and his anger wasn’t just directed at the judges that have put the ban on hold, but at his own Department of Justice lawyers, who revised the ban to pass constitutional muster in March. Trump signed the new ban, but he now appears to see it as an unforgivable act of weakness — a "watered-down, PC" version of what Trump really wanted to do on immigration.
Those same lawyers are now trying to get the Supreme Court to take extraordinary measures to allow the ban to go into effect this summer. Now the president himself has made their job all that much harder.
The president has almost certainly made enacting a “travel ban” harder
The way President Trump appears to see it, there are two faces to his administration. There are “the lawyers and the courts” — the Department of Justice officials who’ve had to defend both versions of Trump’s executive order — who are forced to describe the travel ban in legally permissible terms. And then there is Trump himself, who can, presumably, say whatever he wants without legal consequence.
As it happens, though, one of the key legal questions in the lawsuits against the travel ban is when Trump’s statements can be examined in court to discern the intent behind a policy. And while there’s some disagreement about whether it’s kosher to look at statements Trump made back in 2015 as a presidential candidate, or statements made by his allies outside the administration, the courts so far have been pretty clear that the way President Trump describes his policies now is a pretty good indication of what he wanted to do by signing them.
One court, in fact, has already found that describing this executive order as a “watered-down” version of the first one counts as evidence that what Trump really wanted to do was ban Muslims from the US.
When it ruled against the government in May, the Fourth Circuit Court of Appeals cited Trump’s statements at a Nashville rally (shortly after the second executive order was put on hold by the courts) that called the second executive order a “watered-down version” of the one Trump signed in January, which was put on hold by the Ninth Circuit after having been in place for a week:
These statements suggest that like [the first executive order], [the second executive order’s] purpose is to effectuate the promised Muslim ban, and that its changes from [the first executive order] reflect an effort to help it survive judicial scrutiny, rather than to avoid targeting Muslims for exclusion from the United States.
Just because the Fourth Circuit sees it that way doesn’t mean the Supreme Court (which the federal government asked on Friday to hear an appeal of the Fourth Circuit’s decision, and to issue a pair of stays that would allow the ban to go into effect over the summer) will agree.
The Supreme Court has always been more likely to defer to Trump in the travel ban cases than the Fourth and Ninth Circuits — it’s more reliably conservative (especially with the addition of Trump-appointed Justice Neil Gorsuch) than lower courts on the East and West Coasts. It’s certainly possible that the Court’s conservatives, and swing vote Justice Anthony Kennedy, could grant a five-vote majority to the position that the president’s tweets shouldn’t carry more weight than the text of the executive order itself in explaining why the policy exists.
They could even decide that the president’s complaints about the policy his government is currently defending — calling it “watered-down and politically correct” — show that the second executive order is a meaningful break from the first one, and isn’t discriminatory, because otherwise the president wouldn’t be complaining about it.
In other words, the best hope for the government in court right now is either that the Supreme Court ignores what the president has to say or that they decide that the policy must be okay because the president who signed it doesn’t like it.
That’s a bigger problem than the legal battle. It gets to President Trump’s continued refusal to show any understanding of the organization he governs.
Does the president know he signed the executive order he’s now attacking?
Donald Trump is attacking the “Justice Dept.” — but DOJ didn’t sign the second executive order. Donald Trump did.
Shortly after the first executive order was put on hold, Trump promised that his administration would work on a new one. Three of his Cabinet secretaries gave a press conference rolling it out on March 6. And it’s only in effect now because President Trump himself, presumably, put his pen to the text.
But the minute the second executive order ran up against legal trouble, Trump started distancing himself from it.
First he said in Nashville that “I wasn't thrilled, but the lawyers all said, oh, let's tailor it. This is a watered down version of the first one. This is a watered down version. And let me tell you something. I think we ought to go back to the first one and go all the way, which is what I wanted to do in the first place.”
Now he appears to be washing his hands entirely — blaming it on his own Justice Department, rather than, say, the person who signed both of them.
The weird thing is that as a matter of policy, not a lot changed from the first executive order to the second. Iraq was taken off the list of blacklisted countries whose residents would be banned from entering the US for 90 days. Syrian refugees were no longer explicitly indefinitely banned from the US — instead, they’d just be part of the global 120-day ban on refugees, and subject to “extreme vetting” afterward. And a provision that would have allowed “religious minorities” to seek asylum even when others couldn’t — which Trump said in an interview the day he signed the first executive order was designed to favor Christians in the Middle East — was taken out.
So it’s hard to say exactly what the president sees as so impermissibly weak and politically correct in the new version of the executive order. Certainly, the president himself doesn’t tend to talk about the policy in enough detail to figure that out.
What it looks like, from here, is that President Trump objected to the mere fact of having to change his executive order to pass muster with the courts. He’s made it clear time and again that he has nothing but contempt for the deliberate pace of the judicial process, which he finds “slow and political.”
And it’s increasingly becoming clear that he isn’t forgetting or forgiving the insult he feels he was served in being asked, by his own government lawyers, to tailor the executive order to pass judicial muster — only to discover that it still wasn’t a slam-dunk case.
It’s yet another sign of the president’s near-pathological unwillingness to admit mistake or defeat, instead insisting on blaming others whenever anything goes wrong. And it’s another sign that after having been president for more than five months, Donald Trump remains aggressively disinterested to the point of contempt in how the government actually works.
Trump makes no secret that he views any setback to his imposition of his power as a slap in the face and an act of unacceptable impertinence. The fact that this is not at all how the federal government is supposed to work, or how it actually works now, doesn’t appear to have made much of an impression during the time he’s been in office.
The only question is whether this is a reflection of total neglect for the job he’s signed up for through January 2021 (or later), or an affirmative desire to bend the federal government to his capricious and would-be autocratic will.