External Affairs

Trump’s Travel Ban Case Appears to Be Undercut by His Own Tweets

Donald Trump attends a campaign event in Wilmington, Ohio, US November 4, 2016. Credit: Reuters/Carlo Allegri

Washington: US President Donald Trump appeared to undermine his administration’s legal case for a temporary travel ban, assailing the justice department on Monday for a revised version of the measure that he called “watered down” and “politically correct.”

In a series of early morning Twitter messages, Trump returned to the issue of the travel ban that he raised immediately after an attack in London on Saturday night that killed seven people and wounded 48.

Trump has presented the measure, which seeks to halt entry to the US for 90 days for people from several predominantly Muslim countries and bar refugees for four months, as essential to prevent attacks in the US.

Critics say there is little national security justification for the move and the ban is discriminatory. They point to Trump’s promises during his 2016 election campaign for a ban on Muslims as signaling the order’s true intent.

“The justice department should have stayed with the original travel ban, not the watered down, politically correct version they submitted to the Supreme Court,” Trump tweeted on Monday, referring to the country’s highest court.

“The justice department should ask for an expedited hearing of the watered down travel ban before the Supreme Court and seek much tougher version!”

Federal courts struck down Trump’s first travel ban, which he issued as an executive order a week after he took office on January 20. To overcome the legal hurdles, he replaced it with a new order in March. The second ban was also put on hold by courts.

Legal experts said Trump’s tweets on Monday could complicate his legal team’s efforts to defend the ban. “The President’s tweets may help encourage his base, but they can’t help him in court,” said Jonathan Adler, a professor at the Case Western Reserve University School of Law.

Trump’s legal team asked the Supreme Court last week to reverse rulings by lower courts and allow the revised travel ban to go into effect immediately.

The issue before the top court is whether the travel curbs violate the US Constitution’s ban on religious discrimination.

“Trump’s lawyers will likely have to explain what he means by calling the second travel ban politically correct compared to the first”, said Micah Schwartzman, a professor at the University of Virginia School of Law.

“His tweets invite the question: if the second ban is ‘politically correct,’ what is un-politically correct about the original?” Challengers to the ban will argue that Trump is likely referring to his statements during the campaign calling for a “complete shutdown of Muslims entering the United States.”

Justice department lawyers might also have a tougher time arguing that their revised executive order is substantially different from the first one.

The revised order removed language barring legal permanent residents and a clause that protected religious minorities. It also removed Iraq from the list of targeted countries, leaving Iran, Libya, Somalia, Sudan, Syria and Yemen.

Trump said in an interview with the Christian Broadcasting Network shortly after the first ban was signed that the measure would help Syrian Christians fleeing the country’s civil war, a comment lawyers challenging the ban have pointed to as a sign it meant to favour christians over muslims.

‘Slow and political’

Neal Katyal, an attorney for the state of Hawaii, which challenged the ban, said the president’s comments only bolstered its case.

“It’s kind of odd to have the defendant in Hawaii vs. Trump acting as our co-counsel. We don’t need the help but will take it!” Katyal said in a tweeted response to Trump’s posts on Monday.

Trump also tweeted on Monday that his administration was implementing tougher vetting of would-be visitors to the US, adding: “The courts are slow and political!”

Legal experts said that saying vetting measures are moving forward could also undermine the government’s argument that the travel ban is urgently needed. The government has said the temporary travel restrictions would free up resources to put tougher screening protocols in place.

Last week, the administration rolled out new policies for some people seeking US visas who are deemed subject to greater scrutiny.

On Friday, the Supreme Court asked the challengers of the travel ban to file responses to the emergency request by June 12. Trump’s administration would then likely to file its own response before the court’s nine justices make their decision.

Trump needs five votes from the 9-judge court in his favor to put the ban into effect. With the confirmation of Trump’s Supreme Court pick earlier this year, the court retains a 5-4 conservative majority, while the lower courts that have ruled thus far have been more liberal-leaning.

“To the extent that Trump is sort of a bull in a china shop, that might make the Supreme Court nervous,” said Peter Margulies, an immigration expert at Roger Williams University School of Law in Rhode Island.

He said Justice Anthony Kennedy, who is often seen as a swing vote, is particularly concerned about balance in the government and guarding against major swings.

White House senior adviser Kellyanne Conway defended Trump’s tweets following the London attack, saying people are paying too much attention to his Twitter posts. In an NBC interview on Monday, she cited a media “obsession with covering everything he says on Twitter and very little of what he does as president.”

However Conway’s husband, George Conway, a lawyer who withdrew last week from contention for a senior Justice Department job, said in a Twitter message that while Trump’s tweets might “make some people feel better,” they would not help the government get five votes in the Supreme Court. He called this “sad.”

(Reuters)