I was reading about the rulings against President Donald Trump’s second, “revised” travel ban this week.
Before I write anything else, I want to go on record as saying that this whole travel ban thing seems ineffective to me. I don’t see how it would make us any safer. First of all, there haven’t been any terror attacks by people the ban would target.  Every jihadist who conducted a lethal attack inside the U.S. since 9/11 was a citizen or a legal resident.
Secondly, it seems unnecessary because it’s already pretty tough for foreign nationals to get into the U.S. – especially if you’re a refugee.
So it’s not that I’m arguing in favor of the ban. I’m not. But after reading about federal judges in Hawaii and Maryland ruling against the revised travel ban, I found their reasoning to be a bit  troubling.
The Maryland judge said that it was Trump’s statements during the campaign that made the ban unconstitutional.
The revised travel ban removed a preference for religious minorites from the affected countries, which was why the first ban was blocked on First Amendment grounds regarding establishment or prohibition of religion.
But never mind, said U.S. District Judge Theodore Chuang in Maryland. The Associated Press quoted from Chuang’s ruling:
“Despite these changes,  the history of public statements continues to provide a convincing case that the purpose of the second Executive Order remains the realization of the long-envisioned Muslim ban," wrote Chuang in his ruling.
Then I heard Douglas Chin on National Public Radio.?He’s the attorney general of Hawaii who filed the suit there and argued the case before the federal court.
Here’s what he had to say:
“It’s not enough to just look at the text of the document, because there might be a subterfuge going on and here in this case in Judge Watson’s order, he stated exactly that. He said that the fact that there were so many statements that were made from 2015 to 2016 to even when President Trump was already the president there were some people within his administration or himself that really indicated that their intent was to ban Muslims, which is an unconstitutional violation of the establishment clause.”
Here’s the troubling part. What these people are saying is that it really doesn’t matter what the executive order says. What matters is what people in the administration said before the order was written.
That seems a little strained to me.
I’m not a huge fan of hypothetical arguments, but I can’t think of a better way to illustrate my point, so here goes.
In the fall of 2015, Hillary Clinton was speaking at a fundraiser in Greenwich Village, an upscale neighborhood on the west side of Manhattan.
Here’s what she told the group:
“I was proud when my husband took (the National Rifle Association) on, and we were able to ban assault weapons, but he had to put a sunset on so 10 years later, of course (President George W.) Bush wouldn’t agree to reinstate them. ... And here again, the Supreme Court is wrong on the Second Amendment. And I am going to make that case every chance I get.”
So Hillary was talking about the most recent Supreme Court decisions – Heller and McDonald – in which the high court ruled 5-4 that the Second Amendment does indeed provide an individual right to bear arms. Those rulings also restricted state and local government’s ability to regulate firearms.
If Hillary thinks the high court got it wrong on these issues, she thinks there is no individual right to bear arms.
Let’s say Hillary had been elected president back in November. And let’s say she crafted an executive order calling for, say, a national firearms registry.
By this logic, a federal judge could say, “Sorry Hillary, I know your executive order doesn’t actually say anything about repealing the right to bear arms, but there was that other thing you said about the Supreme Court back in 2015. That clearly establishes your true intent – regardless of what your executive order says. Therefore, your executive order regarding gun registration runs afoul of the Second Amendment and is unconstitutional.”
Can you imagine a federal judge saying that? Can you imagine an attorney general  arguing that “there might be a subterfuge going on?”
Are federal judges supposed to assess laws as if there is always some surreptitious intent or ulterior motive?
I heard Hillary say at the Democratic National Convention that, “I’m not here to repeal the Second Amendment. I’m not here to take away your guns.”
Buy hey, Trump – and a bunch of his people – have said his executive order “is not a Muslim ban,” too.
But no, no. Those other things were said. End of story. Unconstitutional.
This just seems odd to me.
The other thing about this whole travel ban argument is how there was nary a peep from anybody when then-President Obama signed into law the “Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015.”
The new law included restrictions that banned citizens from friendly, visa waiver countries from traveling to the U.S. if they visited Iran, Iraq, Sudan or Syria since March 2011. In early 2016, the Department of Homeland Security expanded the program by adding Libya, Somalia and Yemen as three countries of concern.
Those are the same seven Muslim countries in Trump’s original executive order. (In the revised order, Iraq was removed because they since had upped their game with regard to vetting refugees.)
So banning travel from majority Muslim countries under Obama was OK. But under Trump it’s not OK. Why? Because Trump and his ilk uttered the phrase “Muslim ban” a few times.
I could be wrong, but that just doesn’t sound like the way this stuff should work.