Travel ban: Will Trump win in the end?
President Trump’s incendiary rhetoric has “come back to bite him yet again,” said Derek Hawkins in The Washington Post. Two federal judges last week ordered a halt to the president’s revised executive order banning travel from parts of the Muslim world. The new, pared-down version, which would temporarily prohibit the issuance of visas for people from six Muslim-majority countries, was designed to avoid the legal problems faced by his first travel ban. But “in his blistering opinion,” U.S. District Judge Derrick Watson of Hawaii deemed the order a transparent and unconstitutional attempt to bar Muslim immigrants and travelers. Watson cited Trump’s remarks on the campaign trail—such as “Islam hates us”—and his call “for a total and complete shutdown of Muslims entering the U.S.” as “significant and unrebutted evidence of religious animus.” Another federal judge in Maryland also cited Trump’s rhetoric in branding the new order a “Muslim ban.”
The rulings were wrong—and will be overturned, said Hans von Spakovsky in NationalReview.com. In “a stirring dissent” from previous rulings filed last week, Judges Jay Bybee and Alex Kozinski of the 9th U.S. Circuit Court of Appeals pointed out that Trump’s order “was well within the statutory powers of the presidency.” To reject the president’s authority to make national security decisions based on an interpretation of his motives, the judges said, was an absurd judicial overreach. Trump’s order also makes no specific reference to religion, said Danny Cevallos in CNN.com, so how can judges “be so sure about the underlying discriminatory motivation?” Should courts weighing cases involving Trump review everything he said before being elected, including his quotes in “Page Six” and on The Howard Stern Show?
Constitutional analysis cannot be “psychoanalysis,” said Alan Dershowitz in TheHill.com. If Trump’s motives were the major defect in his travel ban, then an identical order by President Obama “would have been constitutional.” The order is constitutional or it isn’t—you can’t have it two ways. That’s why Trump may win in the Supreme Court on First Amendment grounds, said Richard Hasen in Slate.com. The 9th Circuit dissent suggests that citing Trump’s past statements could “chill campaign speech,” which “is just the kind of argument that the Supreme Court’s conservatives like,” including swing justice Anthony Kennedy. If Neil Gorsuch is confirmed, the argument “will likely resonate with him too.”