The Trump administration has issued a new travel ban, one which incorporates recommendations made by public interest law professor John Banzhaf after the first so-called Muslim ban was rejected by the courts
At that time Banzhaf suggested that the second traffic ban should definitely include non-Muslim countries, and specifically suggested adding North Korea. On February 10th, Banzhaf wrote: “the new executive order should add North Korea, and perhaps even one or two more non-Muslim countries, to the list to further undercut any argument that the order is motivated by animus based upon religion. There’s clear precedent, since the TSA mandated secondary searches for all passengers from twelve named countries, with all but two Communist nations having a majority Muslim population.”
Unfortunately for Trump, this advice was not followed, the second travel ban included only Muslim-majority countries, and it was struck down by many judges because of alleged bias against Muslims.
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Now the new travel ban includes two non-Muslim countries - Venezuela and North Korea - the second precisely the country that Banzhaf had originally suggested by added.
Banzhaf had also suggested that any subsequent travel bans should "provide at least some justification for the new restrictions." This idea has also been incorporated in the new travel ban, which explains in considerable detail why the countries included within it were chosen.
This new ban is much more likely to be upheld by the lower courts, and almost certainly by the U.S. Supreme Court if it ever reaches that stage, says Banzhaf. The only thing which might possibly stop it would be a new phenomenon called Trumplaw, he says.
Banzhaf says that there is growing concern and recognition - even among supporters, and liberal papers like the New York Times - that courts appear to be adopting a new jurisprudence called "TrumpLaw" aimed uniquely at this President; a method of judging cases which is aimed specifically at countering some of the practices of President Trump, even if this development means creating new legal principles and/or overlooking (or at least minimizing) other established ones.
Even more alarming is that even those in favor of this new approach to deciding cases appear concerned not only that it will extend too far and possibly hobble the new president, but that the new principles being developed will create legal precedents which will carry over and adversely affect other presidents, and even agency heads in the future.
For example, a New York Times piece described this new method of deciding cases as "a set of restrictions on presidential action that only apply to Donald Trump. This president cannot do things that would be perfectly legal if any other president did them, under this standard, because the courts will rule against his past demagogy rather than the policies themselves."
While hardly in favor of the President's so-called Muslim bans, the Times piece was nevertheless worried that the various court decisions staying them establish "a precedent that would further politicize an already-partisan judiciary, by licensing judges to constantly look beyond the law for excuses to rule against politicians (liberal or conservative) they dislike."
Moreover, it suggests that such rulings - e.g., illegitimizing the immigration order as unconstitutional religious discrimination - could hobble efforts to protect against a "Manchester-type terrorist attack (or something even worse)" because "the most important terror threats are Islamist, and any move to safeguard Americans is likely to have a disproportionate effect on Muslims," and thus courts are "automatically going to rule against Trump on any counterterrorism issue that touches on Islam."
Likewise, David French of the National Review, who has been described as a NeverTrumper, nevertheless warns about this "strange madness [which] is gripping the federal judiciary. It is in the process of crafting a new standard of judicial review, one that does violence to existing precedent, good sense, and even national security for the sake of defeating Donald Trump."
In his words, "when existing precedent either doesn't apply or cuts against the overriding demand to stop Trump, then it's up to the court to yank that law out of context, misinterpret it, and then functionally rewrite it to reach the 'right' result'" - "an otherwise lawful order is unlawful only because Donald Trump issued it. . . . All this adds up to Trumplaw, the assertion by the federal judiciary of the legal authority to stop Trump."
Law Professor Paul Horwitz, who supports some of TrumpLaw to achieve a desired result, and says he could be persuaded to support all of it, defines it as "about lower courts developing a form of what some critics call 'TrumpLaw,' law responding to and designed especially for the Trump administration" and "may be seen as a radical departure from existing law and in effect a lawless set of actions."
He writes that in some instances "it constitutes utter resistance to the Trump administration and its policies," although "one might argue that the worse and more dangerous the administration's actions are, the more necessary it is to resist them per se."
Attorney Scott Greenfield, writing on his blog, argues regarding TrumpLaw that: "the exercise of authority going forward will be subject to judicial approval of the president's 'bona fide' intent behind facially constitutional exercises of authority. Every act, every burp, despite its being completely within a president's power, will be subject to a judge's post hoc approval of her underlying intentions. All one would need to stop the president from doing her job is a district court judge who finds her secret, hidden purposes improper. And by improper, it means different than the judge's sensibilities."
Law Professor Todd Henderson sums it up simply: "This is @realDonaldTrump-specific law, which is lawless."
In summary, says Banzhaf, the new travel ban order significantly undercuts, if it doesn't completely destroy, the argument that the ban is unconstitutional because it was based upon - and simply served as a cover for - Trump's religious bias against Muslims, and thus will likely be upheld.
Aside from an especially perverted expression of Trumplaw, the only other thing likely to doom it before even those judges most opposed to it would be for the President to undercut his own legal position by making outrageous statements and/or including them in Tweets, argues Banzhaf.