Trump Administration Says Travel-Ban Win Shows His Insults Don’t Count in Court
(Bloomberg) -- President Donald Trump’s penchant for demeaning groups of people -- whether referring to Mexicans as “bad hombres” or calling transgender soldiers a distraction to military readiness -- has more than once put his administration in the hot seat in court.
Following the U.S. Supreme Court’s June 26 decision upholding the travel ban against several predominantly Muslim nations, the administration is claiming the upper hand in a pair of legal fights that similarly accuse the president of animus toward minority groups.
In recent weeks, the Justice Department has cited Trump’s high court victory to try to fend off challenges to his ban on transgender Americans in the military and his plan to revoke legal protections for young immigrants who were brought to the U.S. illegally as children.
In the military-ban case, rights groups have accused Trump of peddling discredited myths to placate legislators and advisers "who bear animus and moral disapproval toward men and women who are transgender." Trump said such soldiers harm military readiness and hurt morale, despite a Defense Department study with an opposite conclusion, the groups say.
And in the fight over Trump’s plan to end the Deferred Action for Childhood Arrivals program known as DACA, immigrants have alleged the move was driven by unlawful racial animus against Latinos, and in particular, Mexicans, who Trump has referred to as "thugs," "animals" and "bad hombres."
But does any of that matter?
The Supreme Court in June held that Trump’s many harsh comments about Muslims on the campaign trail were irrelevant to a judicial review of the policy, particularly because the third and final version of the ban was based on an intense national security review. Trump deserved deference, the court said, because the travel ban was "expressly premised on legitimate purposes."
"Because there is persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility, we must accept that independent justification," the Supreme Court wrote in the travel ban ruling.
An immigration law professor and a lawyer for a civil rights advocacy group said it’s a stretch for the government to argue based on that language that the president’s commentary is irrelevant to how courts judge his transgender-military ban and the phase-out of DACA.
But that’s the approach the U.S. is taking.
In the transgender soldier litigation in Seattle federal court, the Justice Department said the travel-ban ruling means the final policy should be judged its own terms, rather than "assessing purported intent behind the policy based on prior statements."
"Such alleged animus is not pertinent to review of the military’s new policy," the government said in a July 9 filing. "The court should focus on the stated justifications for the policy" and "not any underlying presidential statements or deliberations."
In the DACA case, the administration filed a June 28 letter with the federal appeals court in San Francisco saying the travel ban ruling "reaffirmed that facially neutral immigration policies are subject to only limited, deferential review."
The decision to rescind DACA "is similarly subject at most to extremely limited review (if it is reviewable at all)," the Justice Department said in the filing. And Trump’s disputed statements, the government said, "were based on nationality rather than race, and most of the statements did not refer to DACA at all and were far more equivocal about the aliens affected."
Geoffrey Hoffman, a professor at University of Houston Law Center, said the high court didn’t say a president’s outside commentary is always irrelevant, just that there was no need to take it into account to assess the government’s justification for the travel ban. By contrast, Trump’s statements may still come into play in the other cases because the courts will be required to dig deeper into the constitutional questions surrounding those policies, he said.
“Under a different, more searching standard those extra-judicial comments may be given greater weight and effect,” he said.
Peter Renn, an attorney for Lambda Legal leading the Seattle suit on behalf of transgender soldiers, said last week it’s one thing for the Supreme Court to find that the travel ban policy was “neutral” toward religion, and quite another for the president’s military policy to openly target transgender people, “without any attempt to hide the government’s discrimination.”
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