To riff on the bard, a Muslim ban by any other name is still a political and legal problem for President Donald Trump.
Defenders of a controversial immigration executive order signed by Trump last week have suddenly taken issue with calling the order a “ban,” be it a “Muslim ban,” a “travel ban” or otherwise. White House press secretary Sean Spicer went as far as to scold journalists for using the term, even as Trump himself has continued to use the label.
But legal experts, as well as the civil rights advocates suing over the executive order, are pointing to another comment made by Trump, that they say bolsters the case that it is a ban of some sort, and one that may be illegal. Trump, in an interview with Christian Broadcasting Network almost immediately after signing the order, said that one of its purposes was to make it easier for Christians to enter the United States.
“It seems to me the soft underbelly of the legal defense is this business about Christians, because not only is that subject to Equal Protection and Establishment Clause [questions] on its own, but it suggests that this is a Muslim ban,” said Michael Meltsner, a professor at Northeastern University School of Law.
The semantics around the order, and what it does, has been subject of intense debate, both legally and politically since it was signed late Friday with no advance notice. The order blocks most immigration from seven majority-Muslim countries at least for 90 days, and halts the refugee resettlement program for 120 days, with Syrian refugees blocked indefinitely. It quickly spawned mass protests as travelers over the weekend were reportedly detained and denied access to the lawyers.
After the White House’s rollout of the order was widely panned, Trump’s allies have been engaged in an aggressive battle to spin what the policy actually does. What it does will likely be the central focus of the coming legal battle but what administration officials, Trump’s advisers and, especially, Trump himself, have said about the order could play a role in determining its legality, too. The argument, in short, is that their candid public statements have revealed what anyone who watched Trump’s campaign could easily divine: that the intent of the order was to target Muslims.
As it is debated what the order effectively does, Spicer, on Tuesday, wanted to focus on what it’s not.
“One million people have come into this country. That’s not a ban,” Spicer said at the White House daily press briefing. “A ban would mean people can’t get in, and we’ve clearly seen hundreds of thousands of people come into our country from other countries.”
Trump undercut Spicer’s point again Wednesday morning by bringing back the label on Twitter. But his earlier comment pointing to a preference for Christians revealed the basic policy point now spurring the lawsuits.
“If you were a Muslim you could come in, but if you were a Christian, it was almost impossible and the reason that was so unfair — everybody was persecuted, in all fairness — but they were chopping off the heads of everybody but more so the Christians,” Trump told the Christian Broadcasting Network. “And I thought it was very, very unfair. So we are going to help them.”
The comment was a reference to language in the order which provided that going forward on the refugee program, agencies could prioritize individuals “provided that the religion of the individual is a minority religion in the individual’s country of nationality.”
“The president’s statements about what he intended with particularly that minority religion has a lot of sway with courts looking at it,” said Chris Anders, deputy director of the ACLU’s Legislative Office. “It has had a lot of say with a lot of members of Congress and members of the public looking at it.”
Much of the current semantic dispute is a matter of PR spin, as the implementation of the order — which featured travelers being detained for hours on end and without access to lawyers — was met with multi-city demonstrations and even some Republicans decrying the idea. But the extracurricular comments could also find their way into the courtroom battles.
“Courts have said that they will look closely at facially neutral laws if there is reason to suspect those laws are designed to discriminate on the basis of race. Whether or not a law is a ‘ban’ — it still cannot discriminate on the basis of race,” said Adam Winkler, constitutional law professor at UCLA, in an email to TPM. “Although Trump’s supporters say the travel ban is not based on race, numerous statements by the president and his closest advisors reveal that it was designed to target Muslims. Those statements are evidence of the true motive of the travel ban.”
That’s not to say that these kind of comments amount to smoking guns. The legal challenges will focus on the orders’ text and effect, according to those behind the lawsuits. Even then, the religious bias legal challenges are no slam dunk, experts have told TPM, because the executive branch has typically been given wide latitude to interpret immigration law. Even critics of the Trump’s order acknowledged that the territory in which the lawsuits fall is vague, and could depend on a judge’s individual assessment.
“This is not something clear on either side, and there are important values on both sides, and what’s going to happen is judges are going to use their judgement,” Meltsner said.
But beyond the legal implications, Trump and his advisers haven’t done themselves any favors in their explanations of the order in the days after it was implemented. Many of them called it, indeed, a “ban” and at least one, former New York Mayor Rudy Giuliani, connected it directly to the Muslim ban Trump proposed on the stump.
“When he first announced it, he said Muslim ban,” Giuliani said. “He called me up, he said ‘Put a commission together, show me the right way to do it legally.'”
According to Anders, of the ACLU, which is one of the groups that is challenging the order, it’s Trump’s own assertion right after the order was signed that spells it all out.
“President Trump’s statement is so closely tied. It was at the same time, it was the same day, and he was very specific in saying … this is what we have done with that order,” Anders said. “When President himself is explaining it in this way, that has to be taken seriously.”