clock menu more-arrow no yes mobile

Filed under:

Why Donald Trump's travel ban tweets are legally idiotic, explained for Donald Trump

It’s not really about “political correctness,” but about the fundamentals of the American judicial system.

President Donald Trump Signs Bills At The White House Photo by Alex Wong/Getty Images

Once Donald Trump has figured out that something he’s said is shocking, he can be counted on to do it again. It’s a common tactic deployed by certain ill-behaved children.

Unlike those children, however, Donald Trump is the president of the United States. And often, the reason people are shocked by something he’s said is that he’s just damaged his own administration’s agenda by saying it.

On Monday morning, Trump flew into a rage on Twitter in defense of his travel ban: at his own lawyers that advised him to replace his original ban with a slightly narrower version back in March, and at the “slow and political” courts that have kept the new one on hold as well.

The tweets scandalized even his allies — George Conway, the husband of White House senior counselor Kellyanne Conway (and, until last week, the frontrunner to lead the civil division of the Department of Justice), dusted off his own Twitter account to remind the president that this really wouldn’t help the travel ban case at the Supreme Court. (DOJ lawyers filed there Friday, asking the Court to do several things to allow the ban to go into effect over the summer.)

So Trump gleefully returned to Twitter later that evening to provoke the same reaction all over again — believing, apparently, that the reason his earlier tweets had been shocking was that “TRAVEL BAN” is a bad word to people who are “politically correct”:

It was illuminating. The reason George Conway and a whole passel of legal experts were alarmed by Trump’s Monday morning tweets wasn’t just about the words “travel ban” — it was about the broader sense that President Donald Trump, who signed an executive order currently being debated in the courts, was distancing himself from the way his own lawyers were characterizing that order to judges. They were alarmed, in other words, that Trump was so blasé in making his own government’s case so much harder.

And Trump simply returned to tweeting again.

It’s another sign of the president’s aggressive disinterest in anything remotely approaching the details of governing. But it’s also a reminder that Trump doesn’t really believe this whole process of reviewing the travel ban in court is all that legitimate anyway.

Each Trump tweet undermines the way his government characterizes the ban

The text of the executive order Trump signed on March 6, which is the one currently being held up in court (with the Fourth Circuit having ruled in May to keep the ban on hold, and the Ninth Circuit still weighing a separate hold put on by a Hawaii judge), was ostensibly the result of several weeks of consultation and review by government agencies. And it didn’t mention religion at all.

To the ban’s critics, this is all window dressing: The policy Trump signed in March is still, to them, a clear descendant of the “Muslim ban” he first proposed on the campaign trail back in 2015. But the government has argued that it’s not fair to go all the way back to statements made on the campaign trail for evidence of unconstitutional “animus” rather than the text of the executive order itself.

So far, the courts have sided with the critics. But the Supreme Court is 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.

The problem is that Trump himself appears determined to make it clear that the second version of the travel ban is just a “watered-down” version of the first one — that it was a way to make a previously unconstitutional policy constitutional.

But when it comes to discriminating against people based on their religion, there really isn’t “a constitutional way” to do it. Having that motivation is enough to rule many policies unconstitutional no matter how they actually work (though there’s a separate question about whether the government has more power when it comes to immigration than it would in domestic policy).

It started the minute the second travel ban ran into legal trouble — when it got put on hold by judges in Maryland and Hawaii the day before it was to go into effect. Trump was in Nashville that night for a rally, and said 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.”

To the Fourth Circuit, according to the decision it published in May, that statement alone was evidence that what Trump really wanted to do was ban Muslims from the US:

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.

Now, with the Supreme Court weighing whether to take up the case, the president is reminding them that that’s how he sees it.

Trump’s lawyers claim that the point of the executive order is to set up new policies going forward, and the ban is needed only to make that easier; Trump mocks them as “politically correct” and revels in calling it a “TRAVEL BAN!” The lawyers claim that the review of the second order severs it from the problems with the first; Trump says he should never have rescinded the second order to begin with.

The legal term for this is “bad faith.” The more explicit way to say it is that Trump is determined to make his own lawyers look like liars.

The Supreme Court would be forgiven if it didn’t want to wade into the middle of this.

Let’s be clear: Donald Trump is attacking the judicial system for being “politically correct”

It’s not just that Trump doesn’t mind that he’s making his lawyers’ lives harder. He actively blames them for tailoring the executive order to pass judicial muster — only for him to discover that it still wasn’t a slam-dunk case.

According to the New York Times, Trump has carried a grudge against Attorney General Jeff Sessions for encouraging him to take another stab at the travel ban. Sessions is one of the last people within the Trump administration who could be accused of being “politically correct” — he has been hitting the themes (and fielding the criticisms) that Trump now champions since Trump was a bankrupt Manhattan playboy. But Sessions has a certain awareness that to actually effect policy change, you have to be careful with your language, because policies are built and defended on words.

Trump is near-pathologically unwilling to admit mistake or defeat, instead insisting on blaming others whenever anything goes wrong. After five months, the signature policy of Trump’s first week — the travel ban — has been in effect for all of one week. That’s a lot of failure, and the president has a lot of blame to spread for it.

And it’s become clear that he’s spreading that blame liberally around anyone who has prevented him from imposing his will without question or friction.

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.

He’s contemptuous not only of “so-called judges” and “slow and political” courts but also of anyone who attempts to help him get his way by any means other than the ones he himself would have chosen. Any well-intentioned counsel from George Conway simply puts Conway on the side of Trump’s enemies.

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.