The Trump Factor: Trump Refers To Immigration Order As “Travel Ban” During Critical Stage Of Immigration Appeal


One of the strangest aspects of the troubled start to the Trump Administration has been the role played by Trump’s own words in tweets and interviews.  In both litigation and political settings, Trump’s own words have become the greatest liability for the Administration — undercutting allies and unraveling defenses.  In the immigration order litigation, his controversial campaign statements have been repeatedly used as the determinative factor against his Administration in both the first and second rounds of litigation.  His statements to the Russians and then his rather odd denial in Israel threw his Administration into downward spirals.  Now we may see the creation of new precedent entirely due to Trump’s continued unguarded and unwise statements.  Trump’s statements in interviews are the primary reason for the appointment of the Special Counsel after he directly contradicted his own staff on the reasons for the Comey termination.  Recently, after the London attack, his Twitter statements caused an understandable outcry in Britain after he first tried to use the attack to argue for his immigration order and then attacked London’s mayor by misconstruing the mayor’s statement to the public.  It is an incredible record.  Absent these unguarded and ill-considered statements, Trump’s Administration would be in a far better legal and political position.

While the London tweets have been discussed primarily for their highly negative impact on people in Great Britain (of all parties), one tweet is equally problematic from a legal perspective.  In his controversial tweet, Trump referred to his immigration order as a “Travel ban” — precisely what his lawyers have worked so hard to avoid before the Ninth and Fourth Circuits.  As with his Comey comments, he is using the very language that his critics most wanted him to use. It is another example of sending months and hundreds of pages of argument only to be stymied by a mere 140 words.

Saturday evening, Trump called for the reinstatement of his “Travel Ban” on Twitter as an “extra level of safety.”  His tweet said “We need to be smart, vigilant and tough. We need the courts to give us back our rights. We need the Travel ban as an extra level of safety.”

We need to be smart, vigilant and tough. We need the courts to give us back our rights. We need the Travel Ban as an extra level of safety!

Once again, Trump’s words can be disregarded as casual and poorly constructed.  The immigration order is clearly not a ban of any kind and the reference probably was not a reference to Trump’s prior pledge to impose a “Muslim ban.”  Yet, during the recent litigation, the opposing counsel pointed out to the judges that the Trump campaign was still posting his pledge to impose a Muslim ban (a remarkably idiotic failure that was then embarrassingly taken down). That was less than a month ago.  In trying to get a fifth vote on the Court, it is added baggage that government counsel simply does not need.  Ironically, it makes more difficult the very thing that Trump was demanding: the reinstatement of his immigration order.
It must be incredibly frustrating for his counsel who have insisted that his references to a “Muslim ban” during the campaign are immaterial to the executive order.  It does not alter the core of the legal arguments, which I have long stated favor Trump.  However, his reference to a ban (which the order is not) undermines the thrust of the arguments raised in courts across the country.
Once again, Trump has repeatedly harmed the position of his own Administration with these poorly considered and poorly crafted statements.  It is not clear if anyone in his inner circle (particularly his White House Counsel) have explained how damaging these statements can be for the Administration.  His own words have repeatedly emerged as the critical factors in these controversies.  It is like facing a continual Perry Mason moment with clients jumping up in court to incriminate themselves.  Presidents are usually highly circumspect in discussing issues in litigation precisely to avoid the problem that continues to undermine the Trump Administration.
I realize that President Trump values Twitter as a way to speaking directly to the American people. I do not fault him for that.  However, these statements are now routinely harming the position of his Administration on critically important issues.  With the Justice Department asking for a difficult emergency order against the Fourth Circuit, this type of conflicting statement can influence marginal votes on the Court.  After all, the Justice Department is insisting that this is not a ban of any kind but a measured order imposing added security precautions for a small number of countries.   Lower court judges however have insisted that Trump is saying diametrically opposing things outside of the Court and that representations of counsel in court cannot be taken at their face value due to his prior statements.  To continue to make conflicting statements on the very eve of a decision from the Court on the preliminary injunction is obviously self-defeating.  I do not believe that this tweet should alter the analysis, but Trump could not be working harder against his own case.

30 thoughts on “The Trump Factor: Trump Refers To Immigration Order As “Travel Ban” During Critical Stage Of Immigration Appeal”

  1. I have heard of the legal maxim, that a law that would otherwise be legal on its face, can be struck down if the the motivation for the law is clearly unconstitutional.

    How far that goes in the face of a distinct branch of government issuing a law/executive order, that is constitutional on its face, while the executive head of state makes statements that imply an unconstitutional motive.

    Does this work only at the onset of such implementation of the law? If the law is enacted, and the drafters later say explicitly they had unconstitutional motive in issuing it, does that strike down the law post hoc?

    Does the oratory of the president, who is speaking on the fly, undue any formal executive order he may issue, if those statements can be interpreted as motivations contrary to law – even when the law itself is facially legal?

    I guess it depends on the clarity and explicitness of the statements as to the motivation.

    I don’t think what Trump has said post election is explicit enough to conclude a unconstitutional motive, yet.

    But we’ll see what the SCOTUS renders out of all of this.

    1. What, then, is law? It is the collective organization of the individual right to lawful defense.

      Each of us has a natural right — from God — to defend his person, his liberty, and his property. These are the three basic requirements of life, and the preservation of any one of them is completely dependent upon the preservation of the other two. For what are our faculties but the extension of our individuality? And what is property but an extension of our faculties? If every person has the right to defend even by force — his person, his liberty, and his property, then it follows that a group of men have the right to organize and support a common force to protect these rights constantly. Thus the principle of collective right — its reason for existing, its lawfulness — is based on individual right. And the common force that protects this collective right cannot logically have any other purpose or any other mission than that for which it acts as a substitute. Thus, since an individual cannot lawfully use force against the person, liberty, or property of another individual, then the common force — for the same reason — cannot lawfully be used to destroy the person, liberty, or property of individuals or groups.

      Such a perversion of force would be, in both cases, contrary to our premise. Force has been given to us to defend our own individual rights. Who will dare to say that force has been given to us to destroy the equal rights of our brothers? Since no individual acting separately can lawfully use force to destroy the rights of others, does it not logically follow that the same principle also applies to the common force that is nothing more than the organized combination of the individual forces?

      If this is true, then nothing can be more evident than this: The law is the organization of the natural right of lawful defense. It is the substitution of a common force for individual forces. And this common force is to do only what the individual forces have a natural and lawful right to do: to protect persons, liberties, and properties; to maintain the right of each, and to cause justice to reign over us all.

      If that from Bastiat is a good definition of what just laws are, then isn’t it possible to rule out rhetoric (motive) if the law is constitutional?

      Bastiat goes on to say:

      But, unfortunately, law by no means confines itself to its proper functions. And when it has exceeded its proper functions, it has not done so merely in some inconsequential and debatable matters. The law has gone further than this; it has acted in direct opposition to its own purpose. The law has been used to destroy its own objective: It has been applied to annihilating the justice that it was supposed to maintain; to limiting and destroying rights which its real purpose was to respect. The law has placed the collective force at the disposal of the unscrupulous who wish, without risk, to exploit the person, liberty, and property of others. It has converted plunder into a right, in order to protect plunder. And it has converted lawful defense into a crime, in order to punish lawful defense.

      How has this perversion of the law been accomplished? And what have been the results?

      The law has been perverted by the influence of two entirely different causes: stupid greed and false philanthropy.

  2. We need to be smart, vigilant and tough. We need the courts to give us back our rights. We need the Travel Ban as an extra level of safety!

    Which of his 3 sentences is controversial? Should we instead run, hide and phone a friend? Does the POTUS not have the constitutional authority to control the flow of foreigners into our country? The courts seem to be playing a game of chicken with this President and putting American lives at risk. What is the upside for the courts? What is the downside?

  3. The question was answered in detail early this morning. Not acting political is why the outsider was preferred over the same old same old rejectible choices. However I can see Sessions has some swamp draining of his own to deal with. both in London and in Washington DC. The answer to London is simple. recall for consultations and replace with a temporary stand in. The second problem is pull their security clearances for being untrustworthy and turn the re-evaluation over to NSA. Meanwhile go home with no paycheck.

  4. If it were up to lawyers, their clients would be mute. The POTUS tweeted it, let SC deal with it. If they deal with it wrongly, they can beware the blowback.

  5. In a way , Trump’s EO is a sort of Travel Ban but just for people from certain countries no matter what religion they follow. Further, it doesn’t matter what is in Trump’s mind or heart. if the EO doesn’t say Muslim ban, it can’t be converted into a Muslim ban. Still, I know the know the feeling of having a client who mouths off with the wrong words at the wrong time and in the wrong place. Have had that happen all too often and every time I want to slap the client silly.

  6. Oh, Trump is such a killjoy! I want our American Kids to be able to play the same kid’s games they do in England! And Paris!

    Instead of Dodge Ball, it’s now “Dodge Van” where kid’s athletic and gymnastic skills can be honed to their highest possible levels! You could have VR training, and a thing like Pelatron track for practicing the “Hop on the Hood and Hang On Game!

    All our little fat kids could get some exercise, and learn a valuable set of survival skills in Multiculture Land!

    Hide and Seek, could become Hide Your Clitoris!

    I Spy with colors and license tags is sooo passe, so how about I Spy A Strange BackPack!

    Duck and Cover could be brought back out of retirement to avoid flying shrapnel!

    And here Mean Ol’ Trump causing another generation of little white kids to be blubberbutt crybabies instead of survivors!

    Squeeky Fromm
    Girl Reporter

  7. Start building concentration camps on the East and Wests coats now!

  8. We will be impeaching Supreme Ct justices if they do not uphold this immigration Executive Order.
    Terrorists are coming to a city near you and soon. Read the decision in Korematsu. Google it and look up Korematsu- wikipedia.

    1. Even Scalia thought Karematsu was wrong. In fact he ranked in with the Dredd Scott decision as one of the court’s biggest blunders. See A Discredited Supreme Court Ruling That Still, Technically, Stands, NYT January, 2014.

      1. My BFF, Penelope Dredful, says the Dred Scott was probably the best SCOTUS Decision ever. The Court resisted the urge to give in to emotions, and instead ruled on the law. I guess maybe that is why modern lawyers hate the decision.

        Squeeky Fromm
        Girl Reporter

        1. Yeah, right on Sqeekie. I saw one of Chief Justice Roger Taney’s descendants on TV the other day celebrating his ancestor’s greatest decision. Maybe you should start a movement for a national holiday commemorating Taney and Scott v Sandford? .

          1. Like I said above, too many modern people don’t like decisions where SCOTUS actually follows the law. They like a Cosmic SCOTUS, which makes the laws for us, like the silly decisions to find Sodomites have a Constitutional “right” to marry another Sodomite, even though the very concept of a monogamous relationship bounces back between nonsense and an anathema to 99% of them. or abortion, where chicks get to murder their babies.

            Squeeky Fromm
            Girl Reporter

              1. How thoughtful! That way I could keep you and the Trayvon Martin-worshipping Freedom-Rider Wannabees company! We could all go around looking for Sekrit Klansmen hiding in the woodpiles, and snatch innocent Negroes from nooses before they swing! You know, a real black victim instead of some Michael Brown-Trayvon Martin-Freddie Gray black thug substitute.

                Plus, since this would be before Democratic Liberals’ Great Society days, we could actually get to view what is going extinct—that is Black people who actually get married before having kids! Because in the 1950’s South, the blacks may have had to drink out of separate water fountains, and go to the back door for service, but they somehow managed to get married before having kids, and their neighborhoods were not places of terror where they couldn’t be sure their kid would get to school un-shot.

                Plus, we could have seen black kids, happy in their segregated Booker T. Washington high school, actually learning to read and write (although often at an 8th grade level), and graduate functionally literate. Plus, that was before the “baby-daddy” days, so little black girls would have had an easier time getting job training with three little bast*rds in tow. And innocent White people didn’t have to flee the black savages in the cities out to the ‘burbs back in those days, so they actually gave a crap about the public school and civic improvements.

                But, alas those Halcyon Days! They are gone. Now, you can only live there in your minds, like you and the rest of the Liberal Self-Aggrandizing Twits. Hopefully, you can pass on to Green Pastures (hat tip to Marc Connelly!), before the Morlocks over run whatever gated Liberal Enclave you are holed up in.

                Squeeky Fromm
                Girl Reporter

    2. Since when is ruling on the law and the Constitution an impeachable offense? I thought that was doing their jobs. If you disagree with what the law is that’s tough. Who made you or Trump the all knowing oracle?

  9. What’s the difference what he tweets if he has the right to craft a bill to protect America and it’s citizens?
    After the latest attack in Britain someone here better tell these justices to stop legislating from the bench. The perp’s in all the attacks here and in Europe after all are Muslim.

    1. There seems to be a desire to pretend that every thing is ok with Trump and his administration but his “unguarded comments” tell us what he is thinking and what his intentions are.

      I’m disgusted and furious with these murderous actions but Trump has decided to slash budgets left and right even for the TSA and the rest. He isn’t interested in national security. He seems to be interested in a show and couldn’t care less about how it impacts the country and the humans who live in it. Let’s not sugar coat it.

      1. Unfortunately lawyers don’t have the capacity to see things from a higher psychological level and that’s why we have Syria/Libya now. Journalists and lawyers cannot be relied on as oracles . They are very limited human beings who live in a mediocre bubble but think of themselves as god’s gift to the humanity. On a more evolved planet the current crop of politicians, journalists and lawyers will find it hard to earn a living but on our planet they get elected twice to the WH . As Jefferson had said without a well informed population we are at risk of electing charlatans , and we have done exactly that by electing bush and obama twice . Finally people are waking up and so called oracles are not happy !

        1. “They are very limited human beings who live in a mediocre bubble but think of themselves as god’s gift to the humanity” = Trump

          1. Trump has actually built things in the real world as opposed to these lawyers/politicians or billionaires of the cyberworld.

            1. He has built pretentious and gaudy crap. Oh and cheated people while doing it. Am I supposed to be impressed with that and his multiple bankruptcies?

  10. What happened to that opinion, i think Virginia, that when written allowed the procedure to continue? Which is what the AG indicated when he instructed everyone to follow it implicitly? sorry been researching cities in debt and the buried secrets their are as bad as those at the federal level.

  11. Can we stop counting trees and start looking at the forest ?

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