After federal courts enjoined Donald Trump's first crack at a travel ban on the grounds that it was overbroad and unconstititionally amounted to a religious test, the White House took another crack at it, limting the number of countries from seven to six in excluding Iraq, and deleting some language that was preferential to Christians. The idea was to narrowly tailor a ban that would satisfy courts, and not be viewed as imposing a religious test, amounting to a de facto Muslim ban.
Well, the federal courts weren't satisfied. On Wednesday night, judges in Hawaii and Maryland issued nationwide orders preventing Trump's Travel Ban 2.0 from going into effect, dealing another setback to the administration, despite this version being narrower.
Essentially, the courts said "Call this what you will, but we remember your campaign. This, too, is a de facto Muslim ban, and religious tests are unconstitutional. So, try again."
In more legal parlance, Judge Derrick K. Watson, of Federal District Court in Honolulu, wrote that a "reasonable, objective observer" would see the order as "issued with a purpose to disfavor a particular religion, in spite of its stated, religiously neutral purpose." Meanwhile, Maryland, Judge Theodore D. Chuang said that the new ban was "the effectuation of the proposed Muslim ban" that Trump promised during his campaign.
In interpreting these executive orders as thinly veiled attempts at a Muslim ban, the courts are citing Trump himself. And this is big, because it suggests that Trump's off-the-cuff rhetoric is having actual jurisprudential effect, and that in at least one arena, the President is being held to account for his often coded language and propositions.
In response last night at a rally, though, Trump was anything but coded. Trump criticized the Hawaiian judge for his ruling, then suggested that he might reissue the initial version of the order, because this new one was “a watered-down version of the first one,” anyway.
While these two cases are not fully determinative on this new executive order's constitutionality, they do suggest that the administration is in for a difficult legal fight to get their travel ban implemented. The Justice Department issued a statement calling the ruling "“flawed both in reasoning and scope," and will keep fighting to see Trump's order enforced.
But for Trump to succeed, he's going to need to convince courts this isn't a Muslim ban. At this point, that might be like trying to convince the public that he never said Mexico would pay for that wall. (In other words: This won't stop him from trying.)