and immigration, had no time to prepare—or to answer important questions about the ban. Were Muslims from these seven countries who were in airplanes, en route to the United States, banned from entering the country? (The decision: yes. Travelers were stopped in airports and put on planes back to the countries from which they had departed.) How about flight crews who were working on flights on their way to the United States when the travel ban was announced? (Yes. They could not leave the airport.) And what about those holding “green cards” (individuals from foreign countries whose backgrounds have been rigorously checked and have been given approval by the federal government to live and work in the United States on a permanent basis)? (Yes. They were not allowed to enter the country, even though they held official government documents. See Figure 2.) Adding to the confusion was the discovery by some travelers that officials at some airports were more lenient in implementing the ban than others, and some flyers changed their plans in the hope of finding an easier road through the process.
The travel ban fueled an immediate rebellion. Critics pointed out that the ban singled out particular countries on the grounds of one particular religion. They argued that the ban created enormous chaos, especially for those ranging from college students to technology workers, who already had permission to be in the country. In Seattle, Washington state attorney general Bob Ferguson, joined by the state of Minnesota, filed 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
