Early Monday morning President Trump seemingly assailed his own Justice department over the executive order he signed in March restricting travel from six Muslim majority countries. Trump tweeted out “People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!” (emphasis in the original). The Trump administration has made a concerted effort in the months since the revised executive order was issued to not describe it as a travel ban but a “temporary pause.” President Trump followed up his initial tweet with another saying “The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to the S.C.”
Both of the President’s executive orders restricting travel have been blocked by the courts and the administration is taking the battle to the Supreme Court. The Justice Department asked the Supreme Court to temporarily remove the lower court order blocking the travel ban and to add it to the Court’s docket for the fall term. President Trump concluded his tweets by saying “The Justice Dept. should ask for an expedited hearing of the watered down Travel Ban before the Supreme Court – & seek much tougher version!”
The President’s comments could hurt his Justice Department’s argument that the revised executive order was neither a travel ban nor similar to the initial executive order. DOJ argued in the lower courts that the March executive order was significantly changed from the original order but the President appears to have minimized the differences by calling the second order a “politically correct version.” Further, one of the primary reasons the executive orders have been shut down by the courts is that the courts have interpreted it as a travel ban that may discriminate against Muslims. The Trump Administration has made great effort to not call the order a travel ban including when Press Secretary Sean Spicer said on January 31 “when we use words like travel ban that misrepresents what it is.”
It remains to be seen what ramifications if any the President’s new comments will have on his administration’s arguments for preserving the executive order. It is also unclear whether the Supreme Court will accept the case either though it does look likely. Assuming the Court does take the case, it will have to balance the administration’s arguments with the President’s own statements to determine the intent of the order and whether the lower courts were wrong. At the end of the day, the President’s own tweets may come back to haunt him if the Supreme Court finds that his statements through social media reflected an intent to discriminate in issuing the executive orders.
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