Lawyers on both sides of the immigration debate tut-tut the president’s tweets, which referred to the controversial policy as a ‘travel ban’ and the new version of it as ‘watered-down’ and ‘politically correct’
WASHINGTON — Lawyers on both sides of the dispute over President Trump’s immigration travel ban agreed on one thing Monday: The president likely hurt his case at the Supreme Court with a series of early-morning tweets.
By referring to the latest version of the temporary ban on most travelers from six predominantly Muslim countries as « politically correct » and calling for a « much tougher version, » they said, Trump made it seem he doesn’t support his own policy.
By acknowledging that the government already is engaged in « EXTREME VETTING » of foreigners seeking entry to the United States, they said, he raised questions about the need for an executive order to provide 90 days to review and improve counter-terrorism screening procedures.
And by calling the courts « slow and political, » they said, he renewed his feud with the judiciary and particular judges begun in February, when the earliest rulings against the travel ban were issued.
« In general, talkative clients pose distinct difficulties for attorneys, as statements outside the court can frustrate strategies inside the court, » wrote conservative blogger Josh Blackman, associate professor at South Texas College of Law. « These difficulties are amplified exponentially when the client is the president of the United States, and he continuously sabotages his lawyers, who are struggling to defend his policies in an already-hostile arena. »
Trump’s four tweets came just days after his Justice Department asked the Supreme Court to lift federal court rulings blocking the travel ban from going into effect. In its filings, the Justice Department had argued that Trump’s revisions to his original travel ban, which federal courts said targeted Muslims, « demonstrate good faith. »
But the president instead referred to his second executive order as a « watered-down, politically correct version » and said he wants a « much tougher version » in the future.
“With his four tweets this morning, the president is basically reaffirming whatever his intent was in the beginning, » said Cecilia Wang, deputy legal director at the American Civil Liberties Union, which is representing challengers to the ban from Maryland in one of two cases now before the Supreme Court.
And Neal Katyal, the lead attorney representing challengers in the other case from Hawaii, quipped on Twitter that it may be better to cede the customary 30 minutes of oral argument time to the president’s team.
Even George Conway, the husband of White House counselor Kellyanne Conway, who had been considered for two high-ranking Justice Department posts, tweeted that Trump’s comments « certainly won’t help » to get five votes from the Supreme Court — « which is what actually matters. »
The president’s statements appeared to be a reaction to the weekend’s terrorist attack in London, which left seven people dead and dozens more injured. He has cast his call for a temporary ban on travel from six majority-Muslim nations as a homeland security measure, rather than a form of religious discrimination.
Most courts that have considered the issue have identified Trump’s true intent in his words from the presidential campaign, when he called for a ban on Muslims entering the country. The original executive order made an exception for religious minorities from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen, which would have exempted Christians. Iraq has since been removed from the list.
Trump didn’t mention religion in his tweets Monday, but legal experts said his criticism of the second executive order as « politically correct » could be interpreted that way.
“It predisposes judges. They’ re human beings, they’ re not robots, » said Saikrishna Prakash, a University of Virginia School of Law professor and former law clerk to conservative Justice Clarence Thomas. “I think it’s not helpful to his lawyers for him to be tweeting in this way.”
If nothing else, it gives challengers to the travel ban current statements to cite, since several justices may not think Trump’s campaign rhetoric is relevant to his actions as president. The judges who dissented from the 10-3 decision of the U. S. Court of Appeals for the 4th Circuit last month said campaign statements should not be conflated into a « constitutional violation. »
Judging from Trump’s latest comments, his views from the campaign haven’t changed, said Karen Tumlin, legal director at the National Immigration Law Center, which has helped represent the ban’s challengers in court.
« It’s not that hard to read between the lines, » she said.
