The Trump Presidency. Donald F. Kettl
suit to block Trump’s executive order. U.S. District Senior Judge James Robart agreed with Ferguson’s argument that the travel ban was unconstitutional and issued a restraining order, which applied across the country. Robart found that the president’s action inflicted harm on the states’ residents, “in areas of employment, education, business, family relations, and freedom to travel,” and that the order violated legal requirements that immigration laws be applied uniformly.9
Figure 2 Sample Green Card
Source: U.S. Citizenship and Immigration Services, https://www.uscis.gov/greencard
Robart’s decision infuriated the White House, and Trump vowed to appeal. The Justice Department argued that the president had broad authority to protect the nation’s borders and that the executive order, therefore, was legal. Critics countered that the order was a thinly veiled effort to exclude Muslims from the country. Press Secretary Sean Spicer countered, “It’s not a Muslim ban. It’s not a travel ban.” Rather, he said, “It’s a vetting system to keep America safe.”10 But Trump’s own tweets undercut the argument the administration was trying to fashion (see Figure 3). The Ninth Circuit Court of Appeals in San Francisco upheld the Robart decision. (In the federal court system, district court judges sit at the first level. Decisions made by them can be appealed to the circuit court—judges used to “ride circuit” to hear cases where litigants contested decisions of lower courts. Appeals of decisions made in federal circuit courts go to the U.S. Supreme Court in Washington.)
Figure 3 Trump Tweets about “Ban” (January 30, 2017)
President Donald J. Trump/Twitter
The administration ultimately but quietly concluded it could not win an appeal of this decision to the Supreme Court and spent several weeks redrafting the executive order. On March 6, Trump signed a new executive order and gave everyone ten days to prepare for its implementation.11 The new order cut the list of banned countries down to six (Iraq, a long-time ally of the United States since the end of the Gulf War, was no longer included). It created a ninety-day ban for issuing travel visas from those nations. And, in an effort to build a stronger case, the order laid out an extensive argument about why national security considerations made it necessary.
The changes did not satisfy the administration’s critics, however, who raced back to federal courts to stop it. District judges in Hawaii, Washington, and Maryland all issued orders to stop the execution of the order. They each found that the new order risked disrupting families, commerce, and education. The judge in Hawaii found that “a reasonable, objective observer . . . would conclude that the Executive Order was issued with a purpose to disfavor a particular religion.”12 The administration’s attorneys had invested great effort in drafting the new executive order to sidestep the objections to the January order. In particular, they worked to wring out hints that there were religious roots to the order and they tried to strengthen the national security arguments. But the judges looked at Trump’s words and tweets, in the campaign and while in office, and concluded that the order violated two basic principles: it was directed, they concluded, at specific countries, instead of at particular national security problems; and it was focused on a particular religion, in violation of constitutional protections of freedom of religion. That, they concluded, continued to make the order an unconstitutional ban.
The Resistance and the Tweets
The Trump administration saw political motives in the legal attacks. In fact, the legal network that fought the executive orders was part of what had come to be called “the resistance,” and Democrats worked quietly behind the scenes to strengthen the power of state governments to fight back against Trump policies with which they disagreed. If Republicans dominated Congress, they believed they could slow down or stop the programs they disagreed with most in state governments and in the federal courts. In the case of the travel ban, the strategy worked.
The Trump administration prepared an appeal to the U.S. Supreme Court, in the hope of overturning the lower courts’ decisions. The administration’s attorneys worked to shore up their argument that the order was justified by national security concerns, not by a focus on a particular religion.
The president’s own tweet storm on June 5, however, made that job far harder. Starting at 6:25 in the morning, he told his Twitter followers that anyone could call his executive orders whatever they wanted, but he was calling it “what it is, a TRAVEL BAN.” He even attacked his own Justice Department, where attorneys rewrote the original order to try to nudge it past judicial scrutiny and criticized the “politically correct” version they redrafted. He returned to his “extreme vetting” theme and, in case anyone missed the point, underlined the argument late in the day with a tweet saying “we need a TRAVEL BAN” (see Figure 4-1).
Figure 4 Trump Tweets on the Travel Ban
President Donald J. Trump/Twitter
Even some of Trump’s closest allies worried the tweets might undercut the administration’s legal case before the Supreme Court. George Conway, a seasoned Republican attorney and spouse of Kellyanne Conway, one of the president’s top advisors, said of Trump’s tweets: “These tweets may make some ppl feel better, but they certainly won’t help OSG get 5 votes in SCOTUS, which is what actually matters. Sad.”13 (OSG refers to the Office of the Solicitor General in the Justice Department, which prepares the government’s case for argument before the U.S. Supreme Court. SCOTUS is the Supreme Court of the United States.)
Government attorneys knew that lower federal courts had twice struck down the travel ban. They worried that the case was difficult to win because, regardless of how the executive orders were drafted, there was a long string of public comments during the campaign about extreme vetting and a Muslim ban, which Trump reinforced with his tweets. The president’s tweets undoubtedly warmed the fires in his political base. But the administration saw action on one of its foremost promises ebb away under relentless political and legal counterattacks.
In June, Trump eventually found a win on the travel ban issue. The Supreme Court heard an appeal of the lower-court decision and ruled that the administration could pursue a more-limited version of its travel ban. Individuals with a “bona fide relationship” with someone in the country could enter the country, but the administration could ban others, pending a review in the fall. But that led to a new battle over what a “bona fide relationship” was. Parents, spouses, and children, the administration argued, should receive permission—but not grandparents. In yet more court battles, the Trump administration lost its position on grandparents—they would be eligible to enter the country. But the twists and turns in the courts continued.
Meanwhile, Trump continued to insist he would build his wall and subject potential immigrants to extreme vetting. Following a terrorist attack on the London subway in September, he let loose a flurry of tweets, including one that argued yet again for a broader travel ban (see Figure 5-1). When his base worried that he was backing away from his commitment to building the wall, he followed with another tweet (Figure 5-2). But the rhetorical battles on Twitter often proved louder than the progress he was making on the policy front.
Figure 5 Trump Tweets on the Wall and the Travel Ban (September 15, 2017; September 14, 2017)
President Donald J. Trump/Twitter
Trump continued to insist throughout 2017 that he was