The Unfixable Problem with Trump’s Muslim Ban

by Ian Millhiser –

If you’re going to flout the Constitution, don’t brag about it.

Wednesday evening, a federal judge in Hawaii temporarily halted President Trump’s latest attempt to keep many foreign nationals from six predominantly Muslim nations from entering the United States. Judge Derrick Watson’s temporary restraining order is the first chapter in a long saga of litigation that is likely to end at the Supreme Court. Should Judge Watson’s reasoning be embraced by higher courts, however, it is far from clear that Trump can fix the fundamental error Watson identifies with Trump’s efforts to keep many Muslims out of the United States.

If you plan to unconstitutionally target a group of people because of their faith, it’s a good idea not to run around the country announcing this fact.

Trump lawyer’s, as Watson notes, relied heavily on the fact that Trump’s executive order restricting travel from six Muslim nations is “religiously neutral” on its face. That is, the administration claims that that it singled out these nations because their citizens “posed special risks of terrorism,” and that the order “applies to all individuals in those countries, regardless of religion.”

Faced with this argument, Judge Watson effectively says “so what?” The idea “that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed,” he writes. And he adds that, while it may be true that non-Muslims within these countries are impacted by Trump’s order, the fact remains that “these six countries have overwhelmingly Muslim populations that range from 90.7% to 99.8%.”

The most pointed section of Watson’s opinion, however, lays out the evidence that Donald J. Trump was motivated specifically by religious animus — and not by a permissible reason like a belief that certain nations are a hotbed of terrorism.

Trump said in an interview that “I think Islam hates us,” and that “we can’t allow people coming into this country who have this hatred of the United States.” He admitted that his “Muslim ban” is “something that in some form has morphed into a[n] extreme vetting from certain areas of the world.” One of his close confidants admitted that Trump instructed him to come up with a seemingly legal way to produce a Muslim ban.

“These plainly-worded statements,” Watson writes, many of which were “made by the executive himself, betray the Executive Order’s secular purpose.” You can’t run around the country bragging about your Muslim ban, and then claim that it’s really something else.

To be fair, Judge Watson caveats his order by claiming that it won’t “foreclose future Executive action” and that “it is not the case that the Administration’s past conduct must forever taint any effort by it to address the security concerns of the nation.” Broadly speaking this is probably true. If Trump took some national security-related action tomorrow which was completely divorced from his bravado about a Muslim ban, there’s no reason why his past statements should limit that particular action.

But any attempt to revive the Muslim ban itself — that is, to target predominantly Muslim nations and prevent their nationals from entering the United States — may be permanently foreclosed. Trump can’t unsay the things that he has said, and those statements will always cast a dark cloud over his motivations.

Indeed, not long after Watson’s order came down, Trump seemed to admit that his current order is just an attempt to keep as much of his original Muslim ban alive as possible.

The court ruling had plenty Trump quotes. Here’s a new one: “This was a watered-down version, I think we should go back to the first one.”

Of course, that does not mean that Trump’s Muslim ban will never be revived. This case still needs to be heard by higher courts, including a Supreme Court that will become very conservative if Trump’s nominee to fill its vacant seat is confirmed. Though Judge Neil Gorsuch’s judicial record in national security cases is thin, what we do know about him suggests that he views the law very similarly to the Supreme Court’s most conservative member, Justice Clarence Thomas.

The fate of Trump’s Muslim ban is likely to come down to Justice Anthony Kennedy, a conservative who could see the law very differently than the Obama-appointed Judge Derrick Watson.

For the meantime, however, the Muslim ban is in serious trouble. And it’s far from clear that its flaws can be fixed if Watson’s order is upheld.

Reprinted with permission from Think Progress, a branch of The Center for American Progress