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Is Trump’s Travel Ban Legit? Trump Tweets Undermine His Argument

June 6, 2017

Whenever I think of “the law,” meaning “the laws” that rule our country, our states, our municipalities, I am reminded that all forms of government expect that its citizens will know the laws that govern them and in doing so, will not break them, will “obey the law.” A Huffington Post commenter, who teaches law, Frank H. Wu, has determined that in order to follow a law, we must recognize its legitimacy:

To practice law, or even to obey it, we have to share the sense that it is legitimate. That requires it be principled.

Mr. Wu is struggling with teaching law, particularly in an age in which even, and I suppose, because the President of the United States keeps challenging the legitimacy of law, the boundaries of what should be accepted law become normative with context. Mr. Wu struggles with students who ask him what is “right” about law, what is the “right” answer, while arguing that law should be more objective.  He cites the following premise for teaching law students to examine or investigate a legal dilemma:

Law students are taught a conventional format for essays: “IRAC,” which stands for Issue, Rule, Analysis, Conclusion. I recommend it for not only law but also life. Spot the issue, research the rule, apply it to the situation at hand, and then drive to closure. In the discussion, address the weaknesses of your position and the corresponding strengths of your opponent’s. There are worse formulas for life. The only disadvantage to this modus operandi is discouragement of risk.

Herein lies the risk is telling students that law is objective: it’s not. Telling students that the law is objective, that is usually applied consistently from courtroom to courtroom, implies that the law itself is enough to override political ambition, political financing, and machinations by corporations seeking to buy their own court win, not to mention a President who believes that simply because he posts arguments to Twitter, the courts should follow his dictates.

Lawyers arguing for what Trump himself has called his “Travel Ban,” have ineffectually implored the courts to ignore Trump’s tweets and to focus instead on the language of the law, the Travel Ban. Because intent with the enforcement of the law is just as important as the enforcement itself, the courts can’t ignore Trump’s tweets. CNN argues that Trump’s tweets contradict his aides and their attempted defense of his larger-than-life Twitter fiasco:

The latest example came when Trump defiantly tweeted on Monday night that he wants to call his plan to stop travel from six Muslim-majority countries a “travel ban” and “not some politically correct term.”

“That’s right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won’t help us protect our people,” he tweeted.

The message contradicts what White House spokeswoman Sarah Huckabee Sanders said just hours earlier to defend Trump after his early Monday morning tweets about the travel ban.

“I don’t think the President cares what you call it, whether you call it a ban, whether you call it a restriction,” Sanders said. “He cares that we call it national security.” She later added, “I think that the President isn’t concerned with what you call it.”
Trump obviously believes he can argue his position on Twitter more effectively than lawyers paid to defend his position can argue it in court. Is Trump creating a de facto form of law that supersedes the courts, just issuing dictates through a public channel as is common with dictators: I just posted this law on Twitter so now it must be obeyed? Or is it enough to capitalize on terrorist attacks to further Trump’s own agenda? Trump obviously has no objection to using dead bodies to argue for his own personal agenda on Twitter, arguing after the Manchester London attacks at an Ariana Grande concert that the death toll affirmed his position on a Travel Ban.
Let’s just, for the sake of argument, pretend that we institute Trump’s Travel Ban. Let’s just assume that it’s legitimate, as Mr. Wu says we must if we are to study the law. Let’s assume that we ban people from other countries because they are Muslim. I wonder, how does this protect us from violence? Does it stop workplace violence? Does it prevent terrorist attacks? I am not sure how banning other Muslims stops any current Muslims in any country from committing terrorist attacks, if that is the argument behind the ban. Does Trump’s argument really amount to an argument that some Muslims are acceptable but more are not? Or is it that the more Muslims in a country, the more likely they are to suffer terrorist attacks? Perhaps his argument is that if we don’t allow Muslims to fly into the country then perhaps we allow them in by boat, as past immigrants arrived, and this would deter terrorist attacks?
Let us not forget, as good students of the law, that the hardest part of this problem is defining the issue: is it how to defend against terrorist attacks? Or is the issue a means of preventing terrorist attacks? Or are we stating that simply by stopping any more Muslims from entering the country, we make ourselves feel secure in an insecure world? Muslims that are in the country now are safe for us to be around, but incoming Muslims are not? The problem is that the issue can’t even be phrased in such a way as to begin to apply the next step in the logic game, research, to determine an answer.
Trump’s supporters, notably Kellyanne Conway (advisor to POTUS) family, tweeted out that Trump should stop tweeting about law. Ironic, isn’t it?

“The [point] cannot be stressed enough that tweets on legal matters seriously undermine Admin agenda and POTUS — and those who support him, as I do, need to reinforce that [point] and not be shy about it,” Conway tweeted.

The Wall Street Journal also took note of Trump’s tweeting in an editorial published Monday night.

“Over the weekend and into Monday he indulged in another cycle of Twitter outbursts and pointless personal feuding that may damage his agenda and the powers of the Presidency,” the editorial states.

Recapping the president’s Monday tweets on the travel ban, the Journal’s editorial board wrote that it was “merely the latest incident in which Mr. Trump popping off undermined his own lawyers.”

Trump took another shot at the media on Tuesday, writing on Twitter, “I would have relied on the Fake News of CNN, NBC, ABC, CBS, washpost or nytimes, I would have had ZERO chance winning WH.”

Since Trump tweets are notoriously full of typos, I wouldn’t put much stock in his last tweet about how he would have relied on “Fake News,” but tweets like this beg the question of whom sets “legitimate law.” Kim Davis, a clerk from the South who refused to follow the Supreme Court dictate that gay couples could marry, stated that her religion was her guiding law, even in a government post. Trump argues that his is an “honest and unfiltered message,” that governs his law, while allowing that the wealthy make the laws.
Legitimacy of the message he intents to publicize, or legitimacy of the law he wants to promote never concern Trump. Kellyanne Conway argues that people need to stop focusing on Trump’s Twitter remarks, as Trump has argued that is his main method for furthering his agenda. Vox.com argues that not every head of state is the head of governance, and if Trump were only head of state, then this argument that we not interpret Trump’s arguments for law would make sense: if Trump were merely a figurehead for past political conventions, as opposed to an executive leader, then a bigoted agenda would be seen as nothing more than courting public opinion:

This isn’t an implausible model for a world leader, to be honest. Plenty of countries separate their head of state and head of government. It would be ludicrous to treat the Pope’s statements as hints to future policy changes within the confines of the Vatican City, or to spend more time on what the Queen is saying than what Theresa May is.

When Trump’s staff says that he’s turning to Twitter because he wants to speak directly to his followers, that’s what they’re aiming for: an image of the presidency as a pure communion between a leader and “his people.”

The issue isn’t whether or not Trump is communicating to his people as much as he is attempting to override the system of law that currently governs the United States to further his own agenda. In this, we must be honest: the system of law is by no means objective in the United States. To belabor that point, let us point out the overwhelming disconnect between political divides for the northern United States and the southern United States, or California and Nebraska, political divides by coastlines. That the POTUS seeks to undermine established law, as his Travel Ban was already dismissed in the courts, Trump’s message is no less than expressions of dictatorship. Legitimacy is a valid test of a law, but it falls short when examining motive and execution. A law is simply language, it’s execution allows discrimination to be acted upon, and that is where the real dangers lie.
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