President Trump’s call for a tougher version of his immigration executive order could undermine his administration’s effort to reinstate the controversial policy, legal experts say.
In a string of Monday morning tweets, Trump called on the Justice Department to “seek an expedited hearing of the watered down Travel Ban before the Supreme Court” while working on a “much tougher version in the meantime.”
But it was Trump himself who in March approved a revised version of the policy, which dropped Iraq from a list of predominantly Muslim countries whose citizens would be temporarily barred from entering the U.S. The revised policy also eased restrictions on some refugees.
“It doesn’t make any sense. He’s attacking the Justice Department for something he did,” said Matthew Miller, a Justice Department spokesperson during the Obama administration.
Trump has likely made it more difficult for Justice lawyers responsible for shepherding the policy through the courts to defend against several of the prominent legal attacks on the order.
He has ignored the legal problems that arise from the term “travel ban,” using it four times on Twitter in the past 24 hours.
“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 tweeted.
During court arguments, U.S. government lawyers have gone out of their way to not use the term “travel ban,” instead calling it a “temporary pause” — the same phrase used by Attorney General Jeff Sessions and Homeland Security Secretary John Kelly.
“President Trump could be undercutting his case by admitting that the order is a travel ban, by saying the revised order waters down the first order and by accusing the courts of taking away the people’s rights, whatever that means,” said Carl Tobias, a law professor at the University of Richmond School of Law.
Ian Samuel, a Climenko Fellow and lecturer at Harvard Law School who clerked for the late Justice Antonin Scalia, said Trump is undercutting his chances of winning at the Supreme Court.
“The government’s entire argument in this case is grounded in the need to respect the president’s national security judgments because of the relative competencies of the various branches. That is, it’s a version of ‘you need to trust us on this one.’ To behave this way in public squanders any chance that this argument can be taken seriously. It is an unforced error of unbelievable magnitude.”
One of the central legal questions in the lawsuits over the order is whether the president’s statements can be used in court to show discrimination against Muslims. Trump had called for a “shutdown” on Muslims entering the United States while running for president.
After Trump called the revised policy “watered down” at a Nashville rally in March, the 4th U.S. Circuit Court of Appeals cited the remarks as evidence that revisions to the policy were “to effectuate the promised Muslim ban, and … survive judicial scrutiny, rather than to avoid targeting Muslims for exclusion from the United States.”
“He’s blaming the Justice Department for his own actions in signing this new order and for the case going south when it’s his tweets that are the reason the cases are going south,” Miller said.
Lawmakers in both political parties questioned why Trump renewed his call for the travel ban, pointing out that it was supposed to be a temporary policy designed to buy time for the U.S. to develop stricter vetting policies for foreign travelers.
Trump first signed the order on Jan. 27, and it called for 90 days of restrictions for citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen on entry before new policies would be considered. It also paused refugee admissions for 120 days, while indefinitely halting the acceptance of Syrian refugees.
“It’s been four months since I said they needed four months to put that in place. I think you can do that without a travel ban and hopefully we are,” Sen. Roy Blunt (R-Mo.), a member of the Senate Intelligence Committee, said on “Fox News Sunday.”
The policy was already on shaky ground in the courts, even before the president’s tweet storm.
Even conservatives aren’t sure the Supreme Court will take up the policy without a lower circuit court split. Only one court, a Virginia district court, has upheld Trump’s revised order.
Still, the Supreme Court issued an order late Friday asking the International Refugee Assistance Project fighting the ban to respond to the government’s request by next Monday, signaling it could be interested in hearing the case.
But even if the court were to take the government’s case, liberals argue it will be tough to persuade Justice Anthony Kennedy — the high court’s regular swing voter — to rule in Trump’s favor.
Josh Blackman, a constitutional law professor at the South Texas College of Law in Houston and a member of the conservative Federalist Society, called it confounding that Trump would blame the Justice Department for modifying the original travel ban when he himself signed it.
“He is the President of the United States. Lawyers in the Justice Department, as well as the White House Counsel, work for him,” he said in an email to The Hill.
“The buck stops at the Oval Office. He can’t blame his attorneys for implementing a policy he signed.”
Still, Blackman said Trump’s tweets will have little if any impact on the current litigation. He said they are “far more revealing about the President’s lack of knowledge, both about how is own administration works, and of the contents of his signature policy.”
“With respect to the Supreme Court, my reading of the caselaw is that the Justices’s review is limited to the four corners of the executive order, so all of this is irrelevant,” Blackman said. “But, no doubt, [the tweets] are giving the Justice Department serious grief now. ”
— Lydia Wheeler contributed. Updated at 11:47 a.m.