For those keeping score, it's now Trump Travel Bans 0, Federal Courts 2 (or 3 if you count the fact two judges, one in Honolulu and one in Maryland, ruled against the second ban hours before it was set to go into effect this week). You can bet that's how President Donald Trump sees it, which is ironic given that he and his top advisers are the individuals most responsible for the adverse court rulings.
At the heart of these decisions is the collision between a president's broad authority to set immigration policy and the First Amendment's prohibition against a state-sponsored religion. Banning Muslims represents the latter. And, as U.S. District Court Judge Derrick K. Watson of Hawaii observed, any "reasonable, objective observer" would conclude the latest travel ban, while not directly described as a Muslim ban, was "issued with a purpose to disfavor a particular religion, in spite of its stated, religiously neutral purpose."
In other words, you can't just dress up a travel ban from a half-dozen Muslim-majority countries as something other than an attack on adherents to that religion when you've been talking about limiting Muslim immigrants and refugees for months. The courts watch Fox News, too, or so it appears. In his ruling, Judge Watson made specific reference to statements made by senior policy adviser Stephen Miller and Trump ally and former New York City Mayor Rudolph Giuliani on Fox that made clear the president was pursuing a Muslim travel ban. Mr. Miller told an interviewer that the second travel ban would have the same "basic policy outcome" as the original, and Mr. Giuliani famously said in January the executive order was an attempt to ban Muslims "legally."
Say what you will about the lack of a filter between Mr. Trump's brain and his mouth (and the way in which his top aides often seem to ape his shoot-from-the-lip and ask questions later style), there's something to be said for transparency. If only Republicans seeking to disenfranchise minority voters would be as plain-spoken about their intent instead of hiding behind non-existent voter "fraud" allegations. Even white nationalists have learned not to be overtly racist but instead employ code words and dog whistles.
Nevertheless, it was pretty rich to hear President Trump subsequently attack the judicial intervention as "political" at a Nashville rally Wednesday, given his own failure to produce a compelling rationale for the ban in the first place. No judge had to work hard to divine the president's intent. He's been wearing his antipathy toward Islam on his sleeve, including the now-infamous campaign press release that stated "Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States."
Simply judged as a matter of policy, the proposed bans have been counterproductive as they alienate key allies and serve the interests of terrorists who want their attacks to be seen as part of a broader religious war instead of a subversion of the Islamic faith. It is not "weakness" but self-interest that requires the U.S. to set a more rational course instead of blindly fearing Arabs and Muslims. Since 9/11, not one American has been killed on U.S. soil in a terrorist attack by an immigrant from one of the half-dozen banned countries, so just how crucial is this pause for "extreme vetting?" Meanwhile, the U.S. is quickly losing its moral authority in the battle against ISIS and other extremist groups. How much American blood will be spilled because of that?
Still, the federal courts may not be able to shield Americans from this folly forever. Not only is the Supreme Court likely to weigh in and potentially overturn the lower courts, but even the foundational premise that Mr. Trump's order violates the Establishment Clause because of his anti-Muslim intent may not endure forever. Surely, at some point, those reckless statements from the past are going to fade into the public's collective memory. And the sooner Mr. Trump's tweets and speeches stick to national security instead of attacking a religion, the sooner that's going to happen.