Travel Ban Tweets Risk Torpedoing Justice Department's Case

WASHINGTON, DC — President Trump let loose on Twitter Monday morning, urging the Supreme Court to take up the challenge to his travel ban executive order. However, his pressure may come at a cost, as his words seem to undermine the Justice Department's defense of the ban and may undercut the legal case for preserving it.

"The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C." he wrote. "The Justice Dept. should ask for an expedited hearing of the watered down Travel Ban before the Supreme Court - & seek much tougher version!"

He continued: "In any event we are EXTREME VETTING people coming into the U.S. in order to help keep our country safe. The courts are slow and political!" (For more information on this and other political stories, subscribe to the White House Patch for daily newsletters and breaking news alerts.)

The problem with these tweets is that they run against the case the government's lawyers have made in defense of the executive order. Critics of the travel ban, most prominently the ACLU, which represents the International Refugee Assistance Project as the plaintiff in the case, say the ban is discriminatory on the basis of religion because it targets residents from six Muslim-majority countries. In essence, the ACLU argues, the ban is an attempt to fulfill the president's promise of a "Muslim ban," which Trump proposed during the campaign, which would violate the First Amendment's protections for religious minorities.

Trump's first attempt at a travel ban was knocked down for this reason, and the current version under consideration was revised to be more legally acceptable.

However, even the second version of the ban has been blocked by the courts, precisely because judges have interpreted the order to be discriminatory in intent. In their rulings, multiple judges have cited statements by the president and his associates as evidence that the second draft is an attempt to find a constitutionally viable version of the first, arguing that the discriminatory intent is preserved.

Quoting the president's own tweets above, Jamil Dakwar, director of the ACLU Human Rights Program, wrote on Twitter, "Let the record reflect that Trump admits yet again that Muslim Ban 2.0 is nothing but 'politically correct version' of Muslim Ban 1.0.'"

It's difficult to see how the Justice Department can continue to argue that the travel ban should be judged on its own. Officials for the department declined to comment on this story.

Counselor to the president Kellyanne Conway's husband, George Conway, even tweeted out criticism of the president's statements.

"These tweets may make some ppl feel better, but they certainly won't help OSG get 5 votes in SCOTUS, which is what actually matters," George Conway wrote. "Sad."

He later added:

Sometimes, the courts can allow potentially discriminatory laws or executive actions if there is strong rational basis for them. However, the court may ask why the travel ban is a priority if the administration can already engage in "extreme vetting." Trump's initial call for a "Muslim ban" contained the proviso that it would be temporary "until our country's representatives can figure out what the hell is going on." Others have pointed out that the 90-day ban ordered in the second version of the executive order started on March 16, which means it should expire by mid-June.

Supporters of the ban, including White House Press Secretary Sean Spicer, have frequently appealed to the test of the 1952 Immigration and Nationality Act. It states: "Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may ... suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate."

Spicer has argued that the text of the law decisively shows that the president's executive order is lawful; he has repeatedly used this part of the statute to question any basis for legally objecting to the ban. However, the Constitution supersedes all other American law, and the question before the judges in this matter was whether the order violates the First Amendment.

Spicer also previously criticized the media for calling the executive order a "ban" and argued that it wasn't a bn at all. Trump has now completely pull the rug out from under Spicer's argument with this tweet: "People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN"

Trump himself has frequently expressed frustration with the judiciary's ability to block his orders. He previously referred to the author of one ruling against him as a "so-called judge." He also suggested the injunction could be responsible for attacks in the U.S.

"Just cannot believe a judge would put our country in such peril. If something happens blame him and court system," he wrote on Twitter. "People pouring in. Bad!"

He continued: "The judge opens up our country to potential terrorists and others that do not have our best interests at heart. Bad people are very happy!"

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