The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A fairly bizarre series of tweets by President Trump criticizing the Justice Department for its handling of his executive orders on visas has lead most observers to conclude that he has cemented the constitutional challenge to his own policies, blown up the government's case and confirmed his own bigotry.
But reading the actual tweets reveals absolutely none of this: To the contrary, they may actually buttress the government's defense of the travel restrictions in the Supreme Court. Certainly any reading of them as confirming a "Muslim ban" policy reads them through the same presumption of animus that informed the lower court readings of his campaign statements. However, animus is the thing to be proven - and it cannot be found in these tweets.
Trump's tweets were certainly Trumpian in tone, and the criticism of his own Justice Department for submitting an executive order he signed does not make him look good. But there is nothing in these tweets that should weaken the Solicitor General's case before the Supreme Court, or that supports the view that the policies were unconstitutional because of an impermissible motive on the president's part.
First, he says that the measure is a "travel ban." That seems both obvious and uncompromising. Not issuing visas, capping refugee quotas and suspending travel by some foreigners obviously "bans" travel by those falling with the scope of the measure. But that is not remarkable; President Barack Obama did it too. The ACLU has tried to equate "travel ban" with "Muslim ban" but obviously that is not what the tweet says, or even hints at.
Next, he says that the new executive order is "watered down" and "politically incorrect." This is all merely descriptive. The second measure is less broad and more limited than the first executive order; that is a fact. The first order was "watered down" to respond to judicial and political opposition. They took something and made it less strong. That can also make it quite different, from a legal perspective.
Commentators are reacting as if Trump said that the revised version is a "watered down" Muslim ban. He did not. He said it is a watered down version of the first order, which everyone already knew.
Nor is it a constitutional offense to be politically incorrect. The first order was clearly politically incorrect, in the sense that it contradicted established pieties, as demonstrated by the reaction to it. But if the courts conclude that "political incorrectness" constitutes a violation of the equal protection clause, they will be taking an even more unprecedented leap than when they held the executive orders unconstitutional because they were issued by Trump.
Finally, the tweets may actually bolster the government's legal case (rather than purposefully undermine it, as Jack Goldsmith suggested). The tweets imply that Trump had little or no role in the drafting of the current executive order - the Justice Department is responsible. If we accept that, then any animus that may infect him would not attach to the order of which he is not the author, unless one is to say the administration is generally disabled from carrying out non-permissive immigration policies with respect to a quarter of the world's nations. And if one does not take his statement that the Justice Department is responsible for the order to mean the most it can mean, how can one read his campaign statements for their maximal, and worst, possible meaning?