Immigration Law

Trump tweets say DOJ shouldn't have submitted 'watered down' version of travel ban to Supreme Court

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Updated: In a series of tweets on Monday morning, President Donald Trump criticized the Justice Department for submitting a “watered down” version of his travel ban to the U.S. Supreme Court.

“The Justice Dept. should have stayed with the original travel ban, not the watered down, politically correct version they submitted to S.C.,” Trump tweeted. CNN, the Washington Post and the New York Times are among the publications with coverage.

Trump issued the revised travel ban after courts ruled the original ban likely violated the establishment clause because it apparently targeted Muslims. Courts have also rejected the revised order, despite changes aimed at countering that view.

Trump’s revised order bans for 90 days new visas for travelers to the United States from Iran, Libya, Somalia, Sudan, Syria and Yemen. The first visa ban had included Iraq, but it is no longer on the list because of its efforts against ISIS. The revised order also imposes a 120-day ban on refugees. The new order clarifies that the suspension applies only to those without a valid visa who are outside the United States. And it no longer gives a preference to religious minorities, which would have benefited Christians in Muslim-majority countries.

According to the New York Times, Trump’s tweets “seemed to reject everything his own administration has done to win court approval for restrictions on entry from countries that he designated, both in terms of vocabulary and in terms of its provisions.”

White House press secretary Sean Spicer and homeland security secretary John Kelly had insisted the term “travel ban” was not an accurate description for the measure. “This is a temporary pause that allows us to better review the existing refugee and visa vetting system,” Kelly had said.

Government lawyers also avoided using the term “travel ban” during court arguments. Like Kelly, they have referred to Trump’s order as a “temporary pause.”

The U.S. Justice Department had asked the Supreme Court to reinstate Trump’s revised travel ban in a June 1 cert petition.

Experts told the Hill that Trump’s tweets undercut his court arguments, and they point out that Trump himself approved the revised order.

“He’s blaming the Justice Department for his own actions in signing this new order and for the case going south when it’s his tweets that are the reason the cases are going south,” said Matthew Miller, a Justice Department spokesman during the Obama administration.

Trump had previously referred to his revised order as a “watered down” version of his previous travel ban. That reference was cited by the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals in its opinion (PDF) as evidence that the president had revised his immigration order “to help it survive judicial scrutiny, rather than to avoid targeting Muslims for exclusion from the United States.”

“We need not probe anyone’s heart of hearts to discover the purpose” of the revised ban, the 4th Circuit said, “for President Trump and his aides have explained it on numerous occasions.”

University of Texas law professor Stephen Vladeck said in a tweet that Trump’s tweet had hurt the government’s arguments that the president’s campaign statements about a Muslim ban should not be taken into account in assessing the travel ban, the Washington Post reports.

“These will also go a long way toward mooting debate over use of campaign statements; no need when, as president, he still says these things,” Vladeck said.

Updated at 11:15 a.m. to include information from the Hill.

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