Everyone remembers Donald Trump’s public statements, campaign promises and website posts where he promised to ban Muslims from the United States. Now the government is struggling to save the second version of what many dub the “travel ban”. That is probably why Trump’s campaign website dumped all references to a Muslim ban down a memory hole – last week.
Just as with many things, be it his confession to obstruction of justice, or admission that he gave Russia intelligence the U.S. got from Israel, Trump’s words are his agenda’s Achilles heel. It’s why the government’s lawyer is trying to persuade judges to ignore Trump’s anti-Muslim rhetoric and why plaintiffs’ lawyers want the court to consider his numerous anti-Muslim comments including his calls for “a complete shutdown of Muslims entering the United States”. At one time, he proposed that American Muslims should be tracked in special registries and should have special ID’s just like the Nazis did with Jews.
Throughout the various proceedings in challenges to Trump’s first Muslim ban and the revised versions lawyers are citing cases and legal theories to support their respective positions. However, you don’t need to have a background in law to understand the thrust of arguments made by both sides in the Hawaii case and the reasons for them. The case brought by Hawaii and Ismail Elshikh, a U.S. citizen of Egyptian descent. He serves as the head of a mosque in Hawaii and he wants to bring his mother-in-law to the United States. A three-judge panel for the 9th Circuit heard argument in this case on Monday.
Hawaii alleges the president’s order violates the Constitution’s establishment clause and federal laws pertaining to immigration. Scotusblog summarizes the legal issues as seen by the parties:
Arguing on behalf of the United States, as he did in the 4th Circuit, Acting Solicitor General Jeffrey Wall told the court that both the Constitution and federal law give the president broad authority to prevent non-citizens from entering the country when he deems it necessary to protect the United States. Wall’s opponent, former Acting Solicitor General Neal Katyal, countered that a ruling for the Trump administration would allow the president to take a “magic eraser to the entire” body of federal laws. By contrast, Katyal contended, a ruling for the challengers would “preserve a status quo that existed for decades” while at the same time leaving the president’s powers intact.
Let’s begin with irony that comes with trusting this particular president on national security matters, general, let alone the specifics of immigration. Bear in mind, these are just events within the past week.
1. Trump gave intelligence (obtained from Israel) to the Russians and bragged about it.
2. Trump admitted he fired James Comey because of the FBI’s investigation of Trump’s ties to Russia.
3. Trump tried to pressure Comey to halt the investigation into Michael Flynn’s known financial and other ties to Russia.
Honestly, a part of me feels for the government’s attorney arguing the importance of deferring to this president on national security matters. I’ll wait until you stop laughing, crying or both over the idea of trusting Donald Trump on anything related to national security.
The central issue in the various challenges to the ban are Trump’s words. Simply put: the government wants the courts to limit consideration to the text of the Executive Order because people “say stuff” on the campaign trail. Plaintiffs’ lawyers want Trump’s words to be considered because, they argue, his words go to the motive behind the Executive Order. Since the motive gutted the first EO, leading to the second EO which Trump characterized as “the same” as the first one, the second order should also be struck down. And contrary to the government’s claim this isn’t just “stuff” people say during campaigns. In Trump’s case, he remained determined to establish a Muslim ban – after he was elected.
In fact, he asked Rudolph Guilliani to advise him on how to ban Muslims “legally” – per Guilliani’s admission days after Trump took office.
Last week, a Michigan Judge ruled that Guilliani’s memo and other documents related to versions of the Muslim bans are “discoverable”.
In her order, Judge Victoria A. Roberts says she doesn’t see a reason to delay ordering relevant evidence in light of the “unmistakable and impermissible message that the United States Government disapproves of Islam and Muslims” in the text and history of the revised ban on travel from countries that are predominantly Muslim.
The order reflects nothing more and nothing less than some of the basic rules of procedure that even apply to the Trump Administration. Obviously, this order helps the plaintiffs and hurts the government whose only available strategy is to say ignore your lying eyes, your lying ears, and the work product that led to the original “travel ban.”
While Trump’s administration continues to be in a state of chaos, and congressional Republicans still aren’t ready to stand up for America, protecting our country’s constitution and the values reflected within it, is left to the courts.