Justice

Travel Ban 2.0: Trump Team Learns Value Of Using A Hood To Hide Bigotry

The new ban is the same aggressively bigoted policy as the old ban. But this time, the aggression is not naked.

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Protestors at JFK Airport (photo by Stephanie Keith/Getty Images).

Protestors at JFK Airport (photo by Stephanie Keith/Getty Images).

Donald Trump is president in large part because he made a direct appeal to bigotry and sexism that was comforting to 60 million Americans. He dispensed with “political correctness” and was willing to make his hatred for non-white-males obvious.

It’s an effective campaign strategy, in this racist country. But Trump is learning that he can’t govern that way. The Constitution won’t let him. Don’t get me wrong, the Constitution is perfectly fine with racist, bigoted, and sexist laws. You just can’t write them in obviously racist, bigoted, or sexist ways. The Constitution requires that you dress up your discriminatory policies in the language of neutrality. The Constitution requires a level of political correctness that, evidently, the American people do not.

Trump’s revised travel ban executive order seems to accomplish that. The new ban is the same aggressively bigoted policy as the old ban. But this time, the aggression is not naked. It’s wearing a hood. Gone is the implication that Christian refugees would receive different treatment than Muslims seeking asylum. Gone is the notion that people with green cards could be denied entry into their country. Gone is the discrimination against people with valid visas based on their country of origin.

What’s left is just the core stupidity that people from randomly selected, Muslim-majority countries should be treated differently than every other group of people seeking entry into America.

Is that Constitutional?

Well, here’s the problem: You’re supposed to put on the hood before you burn the cross on somebody’s lawn. The hood is what gives you deniability. Here, Trump committed the crime, got called out, and now he wants to put on the hood and say “I didn’t do that thing you just saw me do.”

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We know what this ban is really meant to accomplish. We can look at the first one as a REFERENCE for what the new one intends to do.

Speaking at the press conference announcing the new ban, Jeff Sessions said that the Justice Department believes the new order is lawful “just like the first one.” I’m not sure why he says that, given that the first was clearly NOT a lawful exercise of presidential authority. To the extent that Justice wants to tie the new ban to the old one, that would seem to hurt the administration’s case that the new one is “lawful” just because they did a better job of disguising the bigotry.

Obviously, the new ban will be challenged. Will the courts look at the first ban as a “draft” that has been redlined, corrected, and is now perfected? Or will courts look at the first one to interpret the intent of the new one? That question will probably determine whether Travel Ban 2.0 ends up being constitutional, or not.

This will be the game for the rest of Trump’s presidency. Never forget, his supporters like the bigotry. That’s why they voted for him. The question is simply how openly bigoted they can be, within in the bounds of the Constitution.

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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.

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