We're About To Find Out If Trump Wants To 'Protect' Us Enough To Do It Legally

Obviously, I don’t think setting up a religious test to get into this country keeps us safe from foreign threats. Obviously, even if you could prove to me that setting up a religious test would keep us more safe, then I’d make like Bones McCoy and say, “I choose the danger.” Sometimes, living in a free society isn’t free.

But, for the sake of the argument, let’s accept the premise that Donald Trump and his band of bigots are dumb enough to fear Muslims and cowardly enough to sacrifice American exceptionalism. Let’s pretend that they really do think the Muslim ban is necessary to keep us safe. What should they do in light of last night’s Ninth Circuit smackdown?

I’ve been perusing some of the alt-right instant reactions (this is my body; given for you). The general consensus is that the court’s ruling is “bad” for liberals, because when there is a terrorist attack, progressives will be blamed for it. Which… okay… like, I already told you that this Reichstag operation has been the white supremacist plan all along.

But strong leaders don’t say “the opposition, they’re too powerful, now we’re all gonna die.” If somebody stops you from protecting your people, you find another way. Look, I’m a parent, if the government said “Sorry, you can’t have a fence on your property,” I wouldn’t say “OH NO, Now my kids will run out into the street and DIE, and there’s nothing I can do. The government will be the ones to blame when my kids are reduced to roadkill.”

I’d find another way. I’d do whatever it takes to keep my kids safe. “You said I couldn’t have a fence, you didn’t say s**t about a moat.” It’s simply not acceptable for the President of the United States to abdicate his responsibility to defend the nation (as he sees it) because he suffered a legal setback.

So far, all Trump has said is: “I’ll see you in Court.” Sorry, check that, he said “I’LL SEE YOU IN COURT,” because he’s now using the Joanne Galloway “I strenuously object” school of legal reasoning. But any rational read of the tea leaves suggests that appealing this to the Ninth Circuit en banc, or the Supreme Court, won’t produce a different result. If you think Anthony Kennedy is going to write the next Korematsu decision, you’ve got another thing coming.

The Muslim ban executive order is a disaster, legally. There are no protections for legal permanent residents. There are statutory violations. And the best Trump’s lawyers can do is to ask the courts to repair the obvious problems with it, but leave the rest in place, at their discretion. Those are REPUBLICAN lawyers asking the court to fix it from the bench. The Muslim ban, as written, isn’t just immoral and illegal, it’s incompetent.

If Trump were serious, he’d rip it up and try again. If he seriously thinks we need an “immediate” halt to Muslim immigration, he’d IMMEDIATELY propose something that wasn’t so full of errors that it takes only two days for three judges to kick it to the curb. Is this a clear and present danger to the United States, or not? If so, what is Trump doing about it that works within the law to try to deal with it? There are lots of conservative judges, and some of them are just as bigoted as Donald Trump. But Trump’s ban is not giving those guys ANYTHING to hang their hats on.

It wouldn’t even be hard to rewrite this travel ban in a way that still accomplishes the core goal of bigotry security, but could at least survive a damn TRO. Make it clear that legal permanent residents can re-enter — BECAUSE DUH! Make it clear that people with valid visas can re-enter. Make exceptions for people with family here, make exceptions for people who WORK FOR THE UNITED STATES overseas. DON’T run off at the mouth about how you’re going to make exceptions for Christians, because your saying that is why I get to call it a “MUSLIM BAN.”

Sources report that White House lawyers are working on a rewrite of the Muslim Ban that they think could be upheld. Of course, that would require Trump to admit that the first one was ill-conceived and illegal. There’s simply no evidence of Trump admitting that he was wrong about anything. And there’s no evidence that the people Trump has working for actually know how to stay within the bounds of the Constitution.

If you want to stop a teenager from Agrabah from coming to America because you don’t trust him, you can do that. You’re a dick and a bigot and me and all my friends will fight you, but there’s a way to do that. If Trump is serious about protecting America (as he defines it), then he should find a way.

And if he can’t find a way, he’s weak. If we do get attacked again, he’s incompetent. Weak, incompetent presidents blame others. Strong leaders figure it out. We’re about to see which one Trump is.

White House Rewriting Trump’s Controversial Travel Ban Order: Sources [NBC News]

Earlier: Ninth Circuit UPHOLDS Temporary Restraining Order On Trump’s Travel Ban
Trump’s Anti-Judge Tweetstorm Is Prelude For His Reichstag Fire

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Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.