WASHINGTON -- Wednesday’s Supreme Court argument about the travel ban on certain majority-Muslim nations probably wouldn’t have happened at all if the ban hadn’t been issued by President Trump.
“If it were just the text of the order alone,” Neal Katyal, the lawyer arguing against the travel ban, told the justices, “we wouldn’t be here.”
But the order was imposed by a man who falsely claimed that thousands of Arabs cheered in New Jersey when the World Trade Center collapsed; who demanded “a total and complete shutdown of Muslims entering the United States”; who declared that “Islam hates us”; who floated notions of closing mosques and cataloguing Muslim Americans; and who frequently has told an apocryphal tale of fighting Muslims by dipping bullets in pigs’ blood.
The Trump administration solicitor general, Noel Francisco, recognized that his client was a liability. He urged the justices to consider Trump’s campaign statements “out of bounds” because they were made by a “private citizen.”
But Trump and his staff didn’t disavow such statements once they were in the White House. “They embraced them,” Katyal argued.
Trump, as president, retweeted anti-Muslim propaganda videos by an ultranationalist group purporting to show Muslims beating children -- and his spokeswoman defended this by saying, “The threat is real.” Trump, as president, also revived a parable he told during the campaign likening Syrian refugees to snakes. And, after President Trump unveiled his first version of the travel ban, former New York mayor Rudolph W. Giuliani, a Trump confidant, declared publicly that Trump had used the word “Muslim ban” and directed Giuliani to “show me the right way to do it legally.”
The solicitor general became flustered in his rebuttal. “He has praised Islam as one of the great countries of the world,” Francisco said of the president.
Almost as great as the State of Judaism and the Republic of Hinduism.
Justice Elena Kagan asked Trump’s lawyer to consider a vehement anti-Semite who issues a proclamation “that says no one shall enter from Israel.”
Remarkably, Francisco said a president could do that. If the president’s Cabinet were to tell him there was a national security risk, he could ban all Israelis, “even if in his private heart of hearts he also harbored animus.”
Or, as relates to the current president, in his very public heart of hearts.
The travel ban has been revised substantially over time, and now it includes exemptions that, if they are honestly granted, may well be enough to pass constitutional muster. But there is no ignoring the ongoing presidential “animus” in which it -- and so much else -- is grounded.
Kagan got a laugh when she said the anti-Semitic president in her hypothetical “is an out-of-the-box kind of president.”
Francisco answered seriously: “We -- we -- we don’t have those, your honor.”
Of course not.
Francisco acknowledged that if a president had said “we don’t want Muslims coming into this country” it would be constitutionally problematic, but he said the fact that Trump was a candidate when he said such things made all the difference.
Justice Anthony M. Kennedy asked what would happen if a mayoral candidate had made “vituperative, hateful statements” and then two days after taking office acts on “those hateful statements.”
Trump’s lawyer said that would be legal -- “because we do think that oath marks a fundamental transformation.”
But Trump didn’t fundamentally transform. He read a conciliatory speech in Saudi Arabia, but he has also tweeted about “the watered down Travel Ban” and said it should “be far larger, tougher and more specific -- but stupidly, that would not be politically correct!”
And Trump hasn’t disavowed his previous anti-Muslim bigotry: his birther campaign against Barack Obama and the insinuation that he was a Muslim and that this would be “bad” for him; his claim that American Muslims “want sharia law. They don’t want the laws that we have”; his failure to object when a town hall participant said, “We have a problem in this country -- it’s called Muslims”; his defense of the term “Muslim ban” -- “Our Constitution is great, but it doesn’t necessarily give us the right to commit suicide.”
The five conservative justices may not care about that, in the end. “It does not look at all like a Muslim ban,” Justice Samuel A. Alito Jr. informed Katyal.
The lawyer replied that between 90.2 and 99.8 percent of those affected are Muslims. “But even then,” he said, “we wouldn’t be here if it weren’t for all of the different statements.”
Yet how can the justices disregard such statements? For Trump, it’s all about the animus.
Follow Dana Milbank on Twitter @Milbank.