There is a very silly dance underway between the Trump administration and the federal judiciary.
Not long after taking office, President Donald Trump issued his long-bragged-about Muslim Ban, which prohibited nationals of seven Muslim-majority countries from traveling into the United States. Almost immediately, the ban ran into trouble in the federal courts.
The ban has now made several trips through the federal judiciary, including a number of visits to the Supreme Court — with the justices temporarily halting at least some parts of the ban, and then dissolving most of that order for jurisdictional reasons. Meanwhile, the Trump administration made two rounds of tweaks to the ban, at times explicitly admitting that these tweaks are intended solely to increase the likelihood that the ban will survive in court.
After the first round of tweaks, for example, Trump described the second version of the Muslim Ban as a “watered down version of the first one” that was crafted “by lawyers in response to prior legal challenges.” He also said that his preference was that “we ought to go back to the first one and go all the way, which is what I wanted to do in the first place.”
Now, the third version of the ban is starting to make its way through the courts — and the early news is not good for Trump. On Tuesday, a federal district court in Hawaii temporarily halted this latest version of the ban. Then, on Wednesday morning, a federal court in Maryland ordered a halt to much of the ban as well.
The decisions rely on different legal arguments. But the thrust of both — and especially Judge Theodore Chuang’s decision in the Maryland case, International Refugee Assistance Project (IRAP) v. Trump — is that the courts are not fooled by Trump’s effort to play around with the ban at the margins and claim that it does not suffer from the same legal flaws as previous versions.
Judge Chuang, moreover, relies on a constitutional argument that is far more likely to survive additional scrutiny than a weaker statutory argument that makes up the backbone of the Hawaii case.
Though there is always uncertainty about whether an increasingly partisan Supreme Court will apply established legal doctrines to one of the signature policy proposals of a Republican president, Chuang’s opinion provides a convincing case that Muslim Ban 3.0 is no less unconstitutional than prior versions. And Judge Chuang is able to make this case largely because of Trump’s own statements undermining his administration’s work. While administration officials try to sweep Trump’s anti-Muslim bias under the rug where no judge will see it, Trump himself keeps exposing it for everyone to see.
The core section of the Muslim Ban at issue in IRAP is Trump’s effort to ban travel from several majority-Muslim nations. The specific group of nations on this list has changed somewhat over time. Muslim Ban 2.0 targeted Iran, Libya, Somalia, Sudan, Syria, and Yemen. Now, Sudan is off the list and Chad is on it.
Muslim Ban 3.0’s biggest innovation, however, is that it includes one nation that isn’t majority-Muslim — North Korea. This latest version of the ban also prevents certain Venezuelan government officials and their families from traveling to the United States.
Yet, as Judge Chuang explains, this inclusion of residents from North Korea and Venezuela has less substance behind it than it originally seems. “The Venezuela ban is qualitatively different from the others because it extends only to government officials, and the ban on North Korea will, according to Department of State statistics, affect fewer than 100 people,” Chuang writes. That’s “only a fraction of one percent of all those affected by” Muslim Ban 3.0.
Thus, the inclusion of these two nations appears to be little more than “a litigating position” rather than a genuine effort to cure the legal problems with previous versions of the ban. By including North Korea and a handful of Venezuelans in the ban, Trump creates an illusion that he is no longer targeting Muslim nations without actually producing much of a substantive result.
Nor does Trump’s most recent set of tweaks to the Muslim Ban erase his previous statements indicating that he wants to ban Muslims. The changes do not eliminate his multiple campaign statements bragging about his plans to ban Muslims. Nor do they it wipe away his statements that the ban was structured as a ban on travel from certain “territories” and not as a direct ban on Muslims because he was trying to cover up the fact that he wants to ban Muslims.
And, as Judge Chuang notes, Muslim Ban 3.0 doesn’t even do a particularly good job of coming up with pretextual reasons to target the nations singled out by this version of the ban.
Though Ban 3.0 “is purportedly designed to combat deficient information-sharing practices,” Chuang writes, “Somalia, which was found to have adequate information-sharing practices, is nevertheless on the list of Designated Countries and is subject to a ban on all immigrants from that nation.”
Meanwhile, Venezuela, “a non-majority Muslim nation, was determined to have inadequate information-sharing practices, to have at least one national security risk factor, and to not reliably receive its nationals slated for deportation. Despite these deficiencies, only officials of the Venezuelan government are barred from entry.”
Thus, Ban 3.0 isn’t even consistent with “its own terms.” It “did not simply rely on the results of an objective information-sharing review but instead made certain subjective determinations that resulted in a disproportionate impact on majority-Muslim nations, and a greater alignment with the travel ban of” Ban 2.0.
Were Trump, and the Trump administration, better at covering up the president’s motives, the courts likely would have allowed his Muslim bans to stand. Courts typically defer to presidents on matters of national security. The reason why these bans have not fared well is because Trump is so bad at lying and his administration hasn’t found an effective way to cover up for him.