Law & the Courts

Travel Ban Case Pits Thoughtless Trump against Reckless Radicals

(Reuters photo: Jonathan Ernst)
And it’s the American people who have the most to lose from the outcome.

This morning, not two days removed from yet another deadly terrorist attack in Britain, our commander-in-chief went on a Twitter tirade:

There is absolute nothing comforting, strategic, or responsible about this ludicrous tit-for-tat. Trump’s rant couldn’t have been any more damaging to his administration’s Supreme Court case if he were trying to lose it. It’s the job of a responsible litigant to know the court and to behave in a way that optimizes his chance to win. In this case, Trump knows, or should know, that a solid majority of the court has demonstrated a willingness to look beyond the four corners of the legal document at issue in reaching a decision. There will be judges who examine Trump’s behavior, and railing against that fact doesn’t change it, so it’s incumbent upon Trump to act like a grown-up.

Moreover, his tweets demonstrate a continued ignorance of basic civics. Does he still not understand that he runs the Department of Justice? Does he still not understand that if he wanted the DOJ to defend his original executive order, he could have simply told them to do so, rather than withdrawing it and signing the “watered down” version he now rails against? Does he not understand that even now he could rip up the revised order and reissue the “tougher version” he claims to prefer?

The ACLU, meanwhile, seems content to burn down traditional standing rules, disrupt constitutional jurisprudence, and hamstring national security for the sake of stopping Trump. Since court after court has now ruled that Trump’s campaign statements render his immigration actions unconstitutional, one is left to wonder whether any new initiative targeting immigration from jihadist hotspots will pass constitutional muster if SCOTUS rules against the administration here. After all, Trump can’t change his past statements. If even dramatic retreats — in this case, both executive orders have fallen far short of his original promise to institute a “Muslim ban” — are deemed to be tainted by his original rhetoric, then where does that leave any future policy?

For example, Trump just tweeted that his administration is currently engaged in “EXTREME VETTING.” You can bet that the ACLU even now is determining what that means and planning additional legal challenges if it is determined to reflect a real policy change. But who can know what those words mean? A president who doesn’t understand his own government is not a president can be trusted to accurately convey the workings of said government in public statements.

We know from the last two decades of terror that nations are increasingly vulnerable when terrorists are allowed to maintain safe havens and recruit from large, un-assimilated immigrant populations. The Obama administration allowed terrorists to build and maintain immense safe havens in the Middle East. At the same time, it admitted increasing numbers of immigrants from jihadist hotspots. That’s exactly the formula for increased terror, and that’s exactly what we’ve seen in the years since the rise of ISIS.

Reversing this trend means policy change at home and abroad. Yet overreaching anti-Trump jurisprudence, aided by Trump’s own blustering incompetence, will limit the administration’s freedom of action. It’s Trump’s job right now to try to win a legal case to preserve his own relatively modest immigration policies, and the proper constitutional and statutory power of the presidency that they reflect. Since the president can’t put aside his smartphone for the sake of national security and the separation of powers, we’re left hoping that a majority of the justices of the Supreme Court are more adult than he is.

The constitutional stakes are high. The implications for national security are serious. It is a sad reflection of the age that we can’t count on any actor in this grand political production to play their role responsibly. So a thoughtless president takes on reckless radicals, as the American people wait anxiously, knowing they have the most to lose.


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