Trump's Words May Haunt Him as Travel Ban Appeal Promised

Updated on
  • President says second order ‘watered-down’ version of first
  • Some legal scholars say comments should have no legal bearing

Two U.S. Judges Block Trump's Second Travel Ban

Donald Trump’s administration will soon appeal a court ruling that blocked a revised travel ban, White House spokesman Sean Spicer said. But the appeal might carry risks as Trump’s own words could come back to haunt him in court.

A federal judge in Hawaii on Wednesday halted Trump’s new travel ban hours before it was scheduled to take effect, dealing him a major setback on one of his top policy initiatives. A Maryland judge followed hours later.

"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," Trump said at a rally in Nashville, Tennessee, prompting prolonged applause from the crowd.

Some lawyers and legal scholars said Trump essentially admitted on live television that he’d rather have a travel ban that gave preference to Christian minorities and blocked many Muslims who had a right to enter the U.S. on valid visas -- provisions that prompted judges to block the original Jan. 27 executive order. The March 6 revisions were supposed to address those legal flaws.

Lawyers might argue that the president’s words "reinforce his real motive" in drafting the new ban, said Stephen Wasby, a legal scholar at the State University of New York in Albany.

"He said he wanted to go back to the original executive order, which was even more blatant in its religious discrimination than the revised one," Wasby said. "Whether he likes it or not, his words will have consequences in court."

Spicer criticized the ruling Thursday, saying the court didn’t even bother to quote the relevant statute in its opinion -- citing a code that lists classes of foreigners ineligible for visas or admission to the U.S.

“The danger is real and the law is clear,” Spicer said. “The president was elected to change our broken immigration system.”

Trump said on Twitter Feb. 9: “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” after an appeals court in San Francisco upheld a Seattle judge’s decision to block the first executive order. But instead of pursuing a further appeal then, the administration opted to rewrite the order.

Real Audience

Despite Trump’s bluster over the Hawaii judge’s Wednesday decision in the campaign-style rally in Nashville, the president’s real objective might not even be to put the policy in place but to assure his supporters he’ll fight for it, said Justin Gest, a political science professor at the George Mason University outside of Washington.

His audience is his voters, not the courts, Gest said.

“Many of his supporters feel it’s the United States against the world” and that they’ve been left behind, he said. “They identify Donald Trump as trying to change that, and you don’t change that by capitulating.”

Other legal experts said Trump’s comments shouldn’t have any bearing on the court challenges.

Trump was “simply stating the truth," said David Rivkin, a constitutional litigator who worked for two Republican presidents, Ronald Reagan and George W. Bush.

"He was expressing his dissatisfaction in strong terms. So what?" Rivkin said. "What possible legal significance could this have?"

Also coming out in support of Trump Thursday was Texas Attorney General Ken Paxton, who plans to back any appeal that may be forthcoming from the White House.

‘Lot of Fun’

Referring to Hawaii’s Attorney General Doug Chin, who led the state’s effort to block the travel ban, Paxton told an audience at the Conference of Western Attorneys General in Honolulu that “Doug and I are ready to have a lot of fun.”

Reaz Jafri, head of the immigration law practice at New York’s Withers Bergman LLP, argued that at its core the revised travel ban still had the same intent as the original.

"Watered-down Muslim Ban is Bud versus Bud Light," he said. "It is still beer."

Trump replaced his first order by dropping Iraq from the list of seven countries whose citizens are barred from entering the U.S. for 90 days. The revised order halted admissions of refugees for 120 days, but it no longer banned Syrian refugees indefinitely and didn’t favor Christians. Permanent legal residents, also known as green card holders, and travelers with a valid visa were exempt under the new order.

Reasonable Person

Last month, the U.S. Court of Appeals in San Francisco didn’t decide whether the first travel ban illegally discriminated against Muslims, though a three-judge panel said the states had raised "serious allegations" and presented "significant constitutional questions." Courts could consider the motivation behind an order, the appeals panel said.

U.S. District Judge Derrick Watson in Honolulu accepted the invitation, considering statements by Trump and others connected to the order, and finding that a reasonable person would conclude it "was issued with a purpose to disfavor a particular religion."

Watson’s ruling on the new travel ban echoes a decision by U.S. District Judge Leonie Brinkema in Virginia, who blocked the first travel ban on Feb. 13, after considering Trump’s remarks, including his 2015 call for a "total and complete shutdown of Muslims entering the U.S."

In Nashville, Trump repeatedly made his case that the travel ban is intended to keep Americans safe by preventing potential terrorists from slipping into the U.S. from countries with failed governments and problems with extremists. He said Congress long ago gave the president the authority to regulate such immigration.

"The law and the Constitution give the President the power to suspend immigration when he deems -- or she, or she, fortunately it will not be Hillary-she -- when he or she deems it to be in the national interest of our country," Trump said.

— With assistance by Andrew M Harris, Kartikay Mehrotra, Catherine Dodge, and Alex Wayne

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