Tweaking the Travel Ban: Dahlia Lithwick on Trump’s Revised Executive Order

March 14, 2017

President Trump’s travel ban aimed at select Muslim-majority countries (with exceptions for Christian minorities) was first framed this past January as an urgent action to protect the nation from the imminent danger of foreign terror attacks. With airports in disarray over the unprompted and unclear executive order, the directive was quickly taken to court, and it became clear that Trump’s dire warnings about national security threats were lacking one very important thing: evidence.

The Ninth Circuit Court of Appeals decided that the ban was likely in violation of the Constitution. Trump’s administration quickly began fine-tuning the ban in order to appease the court with a new order, claiming to be equally predicated on imminent danger to the nation. Here to offer insight on what we can expect with the new ban’s rollout is Slate senior editor Dahila Lithwick. She specializes in writing about courts and law, regularly contributing to Slate’s political columns Supreme Court Dispatches and Jurisprudence. Her most recent article on this topic is “The Bogus Logic of Trump’s New Travel Ban.” In this episode of Point of Inquiry she gives us a thorough overview of the new and original travel bans, and considers the many possible outcomes as we wait on the courts to rule.

Welcome to Point of Inquiry, a production of the Center for Inquiry. I’m your host, Lindsay Beyerstein. And before I go any further and introduce today’s guest, I have some important news. After three great years, I’m going to be leaving Point of inquiry at the end of the month to start a new podcast for Rewired News. It’s called The Breach B, R, E, a, c, h. And it’s an in-depth exploration of authoritarianism and corruption in the Trump administration. 

We are going to nerd out on the Emoluments Clause. I’ll let you know when it’s available for download on iTunes. My guest today is award winning legal journalist Dahlia Lithwick of Slate. 

You’ve probably seen her on CNN and MSNBC dissecting events of the day. She’s here with me to talk about Donald Trump’s latest executive order restricting immigration from six majority Muslim countries. 

Does the ban violate the separation of church and state? Will it protect the United States from terrorism? Let’s find out. Dalia, welcome to the program. 

Thank you for having me. 

Do you think it’s fair to call this policy initiative a Muslim ban? 

I think it’s fair to call it what was a Muslim ban. That still looks an awful lot like a Muslim ban, except the words Muslim ban or not. 

And so kind of sort of Muslim ban. 

I think that it’s a kinder, gentler Muslim ban. I think that effectuate very much what you know, the original promise was the promise that, you know, Trump made repeatedly on the campaign trail, the promise that Chris Christie described as, you know, we took a Muslim ban and we cleaned it up and we made it about countries. You know, it’s that and it’s tweaked a little from the first version that was clearly, I think, a tweaked Muslim ban. 

Now it’s a slightly more tweak Muslim ban and take us over the history of the first and second man’s. And what happened in the courts to prompt the change? 

Yeah, I mean, the first ban was, you know, notably rolled out in complete chaos. You know, there was not inter agency coordination. DHS was saying different things than the White House. It wasn’t clear whether green card holders were in or out of the band. So I think that the largest problem with the initial the initial version of it, in addition to whatever constitutional infirmities we can talk about, is just that it was done in such a way that literally people who got on their airplanes in Yemen, you know, having sold all their earthly possessions and been vetted for two years, were being met at Dulles Airport or at LaGuardia and told like, no, this is this paper is no good here. 

And so I think that the real story of the initial ban was it certainly could have been crafted in a more artful manner, but that the rollout was so spectacularly awful that you really did have what we saw last month in airports around the country. You know, ACLU filing suits within moments, lawyers hunched over their computers, you know, in the arrivals area, filing habeas petitions and more or less just seeing the process of this is appalling. And when we saw, you know, you’ll remember in the first couple of decisions in February, we had a New York federal judge in a Virginia federal judge in a Seattle federal judge, all of them putting restraining orders into effect. And in addition to the constitutional questions, I think there was real question about due process. You know, did people know that they were going to face this kind of taking away of of benefits they’d already been given? And the answer was clearly no. So, you know, in in February, in the broadest restraining order, Judge Grobart in Seattle said the whole thing has to be restrained nationwide. And he said, and if you think about what the legal standard is for that kind of order, he didn’t judge the case on the merits. Right. He didn’t say, OK, I have taken tons of testimony and I find this. 

He simply said, I think that the plaintiffs in this case are going to prevail. And because I think they’re going to prevail on the merits, I’m going to enjoin the whole thing. That was the decision that went up to the Ninth Circuit Court of Appeals. And as you’ll recall, America watched breathlessly as three judges on the federal appeals court debated civil procedure and most exciting judging I’ve ever seen. 

It was really I mean, I have to say, as someone who’s been arguing for cameras in the courts for years and years, it was really inspiring and ennobling to see Americans hunched over their computers, listening, that there was nothing to see, listening to telephonic arguments in a case that was really pretty technical and that resulted in. A unanimous. All three judges across the ideological spectrum said we’re going to extend the restraining order. And here’s where it gets weird. As you know, the Trump administration was simultaneously saying, we’ll see you in court. We’re going to take this all the way to the Supreme Court. We’re going to appeal this and saying, never mind, we’re going to file a new executive order. And so then we were in the super weird posture for the last two weeks where the administration was both defending the old ban and promising a new one. And that brings us up to this week when on Monday we get the unfurling of a new executive order. As I said, tweaked, I think in some ways explicitly reverse engineered to not have the constitutional failings that the 9th Circuit found. And it’s done in a much more seemly manner. You have the announcement by Rex Tillerson and John Kelly and John Ashcroft. They actually sort of try to justify it this time. The president signs it and it’s much less chaotic. And maybe the most important thing is that they give a little time. They say this goes into effect on March 16th. So you’re not going to have the specter of people who got on planes, you know, with one legal status and get off with another. So that’s I think that the sort of arc of the story and I should just caveat that with there’s already been two challenges filed since the rollout this week. 

And what are the grounds on which has been challenged a second time? 

Well, so one of them is a Hawaii lawsuit that was filed almost immediately on Tuesday night. And that more or less says, look, this is the same old ban. You’ve dressed it up, but this discriminates against Muslims. It’s filed not on behalf of you know, we’ve had these questions of who has standing to challenge the bans. And so it’s filed on behalf of Hawaii’s universities, know other public institutions, hospitals saying this is going to hurt us. And also, they name as a plaintiff and a mom in her way of Egyptian descent who’s actually got family from these aband countries who are saying this is actually discriminating against me and my right to see my family. So we’ve got that challenge out of the way. And then almost more interestingly, on Thursday night, we have the Seattle litigation that happened in Washington State. That was brought initially by Bob Ferguson, the attorney general of Washington state. And what he has done is kind of audacious. He is saying, I’m not even going to file a new complaint. I’m just going to ask Judge Robart, who enjoined this the first time to enjoin the new one on the theory that this is essentially the same ban. 

What the arguments about the separation of church and state that come up because of the Muslim ban? 

Well, I think that the argument was and this was at the center of the oral argument that we heard at the Ninth Circuit that you can’t do what this order tries to do, which is pick seven majority Muslim countries and say these are the countries that we’re going to allow new visas and say, as we did in the original order, but we’re going to give special preference to minority religionists from those countries. They can come in, which Trump expressly said that would mean that we are protecting Christian minorities in majority Muslim countries. And that was clearly disfavoring members of one religion over another. It was overtly and expressly saying, in violation of the First Amendment, we’re going to give preference to certain religions and not others and that Muslims know Christians. 

Yes, exactly. That language now has been taken out, by the way. And, you know, you may recall after the first executive order went into effect, Trump overtly said, oh, no. Let me be very clear what they’re going to protect Christian minorities from Muslim majority countries. So I think that the fact is ostensibly cured. 

I think what both Huawei and Washington state are saying in their amended complaints are if you are only barring people from majority Muslim countries, it’s still a Muslim ban. Now, you may remember when the 9th Circuit heard this, one of the judges was very bothered because he said, look, this only represents a handful of Muslims and that we’re not barring Muslims from all countries. How can it be a Muslim ban? And I think that’s what you’re going to hear the administration argue. Like it just so happens, these are majority Muslim countries. But if not all of them. So it can’t be a Muslim ban. But I think that the big issue is sort of constitutionally speaking, is going to be whether all the things that Trump said on the campaign trail, whether statements like Chris Christie’s statement, which he’s, you know, said well, well, litigation was going on the last round. Chris Christie said, hey, you know. 

Came to me and said, I want a Muslim ban, but I wanted to be awesome. And so I fixed it and made it from these seven countries, that kind of language. 

And I really only did the same thing. Amazing. Well, that’s. 

Yeah. I mean, I think that that you’re right. It was Giuliani, wasn’t it? No, I’m trying to remember. 

I think Christine was really good. It was definitely Giuliani said something. 

I think it was Giuliani. But I think that that the upshot of these declarations and statements and then even more recently, you know, Steve Miller from the White House has said, oh, no, this is effectively the same thing we had. This is we’re just tweaking it. So we have sort of very consistent statements that are outside the four corners of the executive order. And you may remember when the 9th Circuit heard this, one of the things that the judges were struggling with was how much to take that into account. You know, are we going to really take campaign statements into account? And I think that the upshot, as I understand it, is that they did feel that it was materially relevant to the court that Trump had promised a Muslim ban. He’d called it a Muslim ban. He campaigned on a Muslim ban. He had kind of reverse engineered this so that it effectively was a Muslim ban. And so that I think one of the real questions, at least for me, the interesting question is how much judges are going to feel that they can take it upon themselves to kind of pierce the pretext that this is this ABAM that happens to name six Muslim countries and how much they can go through that and say we’re going to really reckon with what this purported to be and take the president seriously when he said this is what he wanted when judges interpret the law in this case, cases about the intent of legislation. 

Is there a hierarchy like what was said in language of the bill versus what was said in the legislature when it was debated versus what was said out in the street by various people? 

Well, in some ways, it’s such a great question, because it kind of goes to the heart of Antonin Scalia’s legacy about saying that, you know, you shouldn’t take into account legislative debates. You shouldn’t take into account what was said, you know, an extra extra curricular conversations. The only thing you look at is the plain text on the paper. That’s the only thing that judges should be concerned with. And so, you know, in a weird way, this dovetails with kind of a longer conversation about how much you Piers, what the intention really was. And, you know, in a very, very profound way. You know, last year when the Supreme Court heard the big abortion case, whole women’s health. And you’ll remember that the Texas legislature kept saying, no, we’re closing these clinics. You know, we’re putting all these restrictions into effect. We’re demanding admitting privileges and all the other things that we’re demanding that is having the effect of closing clinics across Texas. We’re doing that for women’s health. And really, I think the cornerstone of the majority opinion, that decision came down five three. Justice Stephen Breyer wrote the opinion. And the cornerstone of what he said is, we’re not going to just look at what you say the intent is. We’re going to really make sure that what you were doing was legitimate. If it’s not legitimate, it’s our role as the judicial branch to puncture that. And then we’re going to look for a direct correlation between what you say you’re doing and the outcomes you’re seeking. And it’s been, I think, one of the really interesting lasting legacies of that whole women’s health decision that in other places, as well as the abortion context, we’ve seen a raft of judicial decisions in the last six months in the voting I.D., contacts in the gun context and the Second Amendment context, where judges are really pushing through the kind of banal statements that legislators make about their intentions and really saying what is absolutely going on here. And so I don’t I think it’s too soon and reductive to say, oh, this is a trend. But I do think that one of the lessons I took from all women’s health is that judges are feeling a little bit emboldened to look beyond just the kind of milquetoast, oh, you know, we’re just going to make America safer. And I think I would just add parents medically that one of the really interesting things that the courts had a huge problem with on the executive order in the last go round was that they kept saying, why these seven countries? Mr. Trump, why pick these seven countries? Why is Saudi Arabia not in, you know, given its role in producing 9/11 terrorists? Why these seven and the administration could offer no answer. There was no answer to why these seven countries were if if the intent here is to stave off future terror attacks, why these seven countries? And one of the things that’s interesting in this iteration of the band is that the administration at least tries to answer the. Question. 

It’s interesting, it seems like you’re sort of at least in the whole women’s case, sort of a trip to prom thing between, you know, what you’re actually claiming understatements as your intent. And then also. Is it true, you know, because they went through an assessed. Well. Do doctors really privileges have better outcomes in abortions? No. Do ambulatory surgical centers have better outcomes in abortions? No. And less access. Do you think something similar will be going on when the courts assess the kind of sort of Muslimah? 

I think so. I mean, I think it’s really important. And this goes to your question about the courts hierarchy of how they treat these statements. And probably the most important difference between whole women’s health and the litigation that’s going to surround the executive order is that there is a very strong imperative to defer to the executive in these cases in cases that implicate national security and immigration. 

The argument is that the president is at the sort of zenith of his or her constitutional authority when they are making decisions about national security. Now, in the first round of litigation, what we saw was that posture taken to an absurd extent. And you may remember Steven Miller giving interviews, saying, look, no, there’s no check. There is no rule for the judicial branch. 

The president said it’s not illegal. Exactly. 

It’s the sort of Nixonian argument about, you know, if it’s just whatever he wants. Now, that’s clearly wrong. But I do think that any reviewing court is going to very much take to heart that, you know, and that’s how this is different from all women’s health, that the president really does get very, very broad latitude typically in national security decisions of this sort. And so there is a thumb on the scale for the administration. And I think more pointedly, what that means is that the burden is so high for the challengers that the fact that they all in almost every litigation of the dozen that went through the courts on the first round, the fact that they prevailed in all but one tells you how badly humidification bungled it because judges wanted to defer their meant to defer. They will be the first to tell you, hey, we’re not national security experts. I will say just one other thing about this, which is one of the things that really hurt the administration was amicus briefs filed by national security advisers who across the board said not only is this not going to make us safer, it is going to make us profoundly unsafe for all the reasons that folks already know why a Muslim ban would be bad. And the courts defer really heavily to those national security advisers. Generally, any Brinkema here in the Eastern District of D.C., of Virginia was really quick to say I was looking for any evidence that these seven countries, that it makes sense and that this family says and all I saw because the administration gave me nothing was the advice of the national security advisers in an amicus brief imploring us not to do this. And so while I think there’s a heavy thumb on the scale for the president, the fact that there are really well-respected national security advisers across the ideological spectrum saying this will not make us safer, will have some weight with the courts, I think does matter. 

Was the reason for taking Iraq off the list of countries in the second iteration? Does that pertain to the argument about whether it will make it safer? It has to do with the Iraqi translators. 

I think in some ways, I mean, I think, you know, there was such pushback from the highest military officials about, you know, turning people around who had risked their lives for the American forces, who had worked for years and years, who were endangered, quite frankly, if we sent them back to Iraq. And the optics of that were appalling. So certainly I think that taking them off the list mollified a lot of military advisers. I think that one of the funny things about taking Iraq off the list is that, you know, it certainly shows that we could take everyone off the list if we wanted to and step up the vetting. And, you know, vetting is already quite extreme in all these countries anyway. But I think the most interesting paradox about Iraq is that the court sided the administration when they’re trying to answer this question that I’ve said Judge Brinkema had, which is why these seven countries, why this increased threat of terror? One of the things they say to they say to they say there’s 300 mysterious terror investigation that we can’t tell you what they are or who’s been investigated or even know what an investigation looks like. But we can tell you three hundred people who’ve come from abroad are now implicated in terror investigations. And then because they don’t tell us anything about the country of origin and this is. Generally meaningless, right? They could come from Sweden. It then it doesn’t help us, they say. But we have these two examples we want to talk about. And one of them is the infamous Bowling Green massacre. And so they cite to this Iraqi terror plot and say this is an example of people who came to this country and tried to harm us here on U.S. soil. 

But, of course, we know that the infamous Bowling Green terror plot didn’t happen on U.S. soil or anywhere, that it was, you know, that that the folks who were swept up in that were, in fact, acting in Iraq. And so in a weird way, it cuts against the whole sort of thesis of this order, A, because Iraq is exempted. Right. Iraq is teeming with potential terrorists. Then Iraq shouldn’t have been taken off the list. But more pointedly, because that’s exactly what this does not do. This doesn’t keep folks, you know, in other countries who are plotting in other countries and swept up in other countries. Doesn’t keep us safe from them. So really, the big problem, I think going forward that the administration has to reckon with is the thing that we saw in those leaked DHS memos last week, which is, you know, this is not going to make us safer. 

These countries are not the problem. And then I think more urgently. And Rachel Maddow leaked this last week as well, that DHS internal report suggests that the real problem is not terrorists from abroad who come here. It’s people who come here from abroad and can be radicalized after 10 or 15 years here. There is no ban, no iteration of the spam that sweeps up those people. 

What do you think would be a better alternative in terms if you if you were just I mean, do you think anything needs to be done at all in terms of our policy on immigration and refugees? And if so, what do you think it should be? 

Well, I think that when you talk to the folks, you know, there was a program that looked like this in the Obama administration called in fears, and it was dismantled by the Obama administration. And I think what they felt was, if you speak to the architects of engineers, they say it was dismantled for good reason, that picking countries at random is not a surgical process. This is not a smart way to do it based on countries that we have far better mechanisms for figuring out who we should let in and who we shouldn’t. And it doesn’t cut by country, in other words, that it’s a terrible predictor of future terrorist activities and that surveillance and intelligence have far outpaced the idea that you can just block certain countries that we have better ways of getting better information. And that’s why they dismantle it in the first instance. And I think what they would also tell you is that the reason they kill the M6 program under Obama is that it was a massive recruiting tool for anti-Muslim sentiment. 

And so I think that what we know is that we haven’t had a 9/11 style attack. There is not some urgent, imminent need to do this badly today and that we have really, really extensive vetting that the Trump administration wants to pretend doesn’t exist. But when you talk to some of the folks who were turned around at airports last month, they had gone through years of extreme vetting. And so I think that part of the problem is this has always been a solution in search of a problem and that we have really vastly better solutions that have been put into place. And so I don’t think anyone anywhere in this country disputes that. If we have mechanisms to keep dangerous fundamentalist terrorists out, we should deploy them. I think the debate has to be is this bad mechanism that’s already been rejected and that clearly makes us less safe, better than what we have. 

And part of the irony of this sort of hurry up and wait proposition is that when the administration passed the first version of the travel ban, really we have to do it quickly. We have to do it right now. We’re all in imminent danger. And then they slow walk to the federal courts saying, you know, every day the clock is ticking. There’s going to be a terror attack any second now. But please, Your Honor. Give us another two weeks, please. Give us another week. We’re working on the new ban. So I think that, you know, as is the case with the Affordable Care Act, repeal and replace, you know, you’re either in a terrible hurry to do anything slapdash because it’s imminent danger or you’re going to try to do something deliberate and careful. And it seems to me that the argument that, you know, the times are so fraught and dangerous that we have to do something reckless and stupid is belied by the fact it’s been really, really slow work. The second version of this ban. So I guess the short answer is there are things to be done. We’ve been doing them. We’ve seen, with very few exceptions, that we’re actually quite safe and that what we really do want to worry about is homegrown terror in this country, whether it’s the San Bernardino attacks or others, that that’s where we should be focusing. And it seems to me in a very fundamental way, all we’re doing by fomenting hatred and fear and anti-Muslim sentiment is really inflaming the danger of that becoming the even bigger problem than it is only. 

That’s all the time we have for today. Thank you so much for coming on the program. 

Thank you for having me. And thank you to all of our loyal point of inquiry listeners and look forward to hosting for the remainder of March. And I will be sure to keep you posted about my new political podcast, The Breach, which I expect will be available for streaming and download in April. 

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