In the midst of the crisis over family separation, President Donald Trump may have given ammunition to opponents of another White House policy: the travel ban.
“[W]e don’t want people coming in from the Middle East through our border using children to get through the line,” Trump said to reporters during a meeting with congressional leaders on Wednesday.
The statement came as part of an extended back-and-forth from Trump about his plans to address though an executive order (which he later issued) the administration’s policy of separating migrant families at border — the result of a new “zero-tolerance policy” ordering 100% enforcement of immigration laws.
However, the statement also comes as the Supreme Court is considering the legality of Trump’s third attempt at a travel ban — a decision the court is expected to announce before the end of June.
The two matters are separate, but the questions raised in the travel ban case — are the president’s actions in this context reviewable, do they violate a nondiscrimination provision in the Immigration and Nationality Act, are they overly broad, and do they violate the Establishment Clause — are now questions the court will be answering in the context of the debate over the zero-tolerance policy and its family-separation effects. And two of the justices likely to care about such institutional context are the two justices whose votes probably hold the key to the decision in the travel ban case: Chief Justice John Roberts and Justice Anthony Kennedy.
If there were any doubt that the issues and questions overlap, Trump made it explicit by connecting the family separation policy to his stated desire to reduce “people coming in from the Middle East” due to crime-related concerns.
Asked about photographs of children in government custody, separated from their parents, Trump said, “Yes. They effect everybody. Those images affect everybody. But I have to say, you have double standards. You have people that want absolute security and safety, and you have people that do look at the children, and then you have people like me, and I think most of the people in this room, that want both. We want the heart, but we also want strong borders, and we want no crime.”
Then, he shifted: “We don’t want crime in this country. We don’t want people coming in — we don’t want people coming in from the Middle East through our border using children to get through the line. We don’t want that. We’re doing too good of a job to allow that to happen. So we’re not going to allow that to happen.”
No reporter had mentioned the Middle East, the travel ban, or the Supreme Court case before Trump raised the issue of “people coming in from the Middle East.”
In the course of oral arguments over the travel ban case in April, the justices focused questions on how far the president could go in singling out a broad group of people for disfavored immigration or travel treatment and how far back the justices could look — specifically, back to the campaign — when determining whether impermissible motives were behind the ban.
The history of the travel ban began in December 2015, when Trump called for “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” At points throughout the campaign, he changed his language — but he continued to press for some version of his promise.
At the end of his first week in office, Trump signed the travel ban executive order — barring travelers from seven Muslim-majority countries and halting the entire refugee program for a period of time. The executive order — implemented immediately and without notice — led to chaos at airports across the country and court orders halting enforcement of parts and eventually most of the ban.
In March 2017, Trump issued a second order — which he later referred to as a “watered down, politically correct version” of his initial ban. It, too, faced opposition from the courts, although the Supreme Court allowed it to go into effect in part. Finally, in September, Trump issued a third, narrower ban — one based, the administration argues, on a full review by federal agencies.
At oral arguments in April, the questions focused, as they often do, on the extremes: How far can the president go, and how far back can courts look if examining the president’s motive for such an action?
Justice Elena Kagan asked at one point whether a president could, hypothetically, make virulently anti-Semitic statements throughout his campaign and in office and then ban all travelers from Israel.
Pressed on the point by Justice Sonia Sotomayor, Solicitor General Noel Francisco — the Justice Department’s top Supreme Court lawyer — later said, “If the President actually did make that statement — I want to keep out a particular race or a particular religion, no matter what — that would undermine the facial legitimacy of the action.”
Later, Roberts asked the lawyer representing those challenging the ban whether any animus expressed during a campaign would be able to be looked at by courts as a reason for barring an order “forever.”
“No,” Neal Katyal responded. Noting Trump’s continued tweets and comments while in office on the topic, however, he continued, “I think the president could have disclaimed — you know, easily moved away from all of these statements … but instead they embraced them. That’s the difference.”