Senior presidential advisor Stephen Miller’s February 21 admission of intent on Fox News has ensnared President Donald Trump’s proposed Muslim ban in its second attempted rollout.
The Trump administration’s first version of the likely unconstitutional Muslim ban was previously blocked by multiple federal judges, and one of the decisions was already unanimously upheld by the U.S. Court of Appeals for the 9th Circuit. The 9th Circuit court noted that Trump and his supporters’ previous statements expressing their intent to discriminate on the basis of religion and ban Muslim immigration can “be used in proceedings” to prove the policy’s unconstitutionality.
For example, Trump advisor Rudy Giuliani admitted to Fox News that after Trump announced the original “Muslim ban” the then-presidential candidate asked Giuliani to show him “the right way to do it legally.”
On March 6, Trump enacted a slightly altered version of the first Muslim ban, hoping to avoid judicial concerns with the possible unconstitutionality of the original. This new “Muslim Ban 2.0” was also immediately challenged and on March 15, the U.S. District Court for the District of Hawaii issued a temporary restraining order on the ban.
In addition to referencing Giuliani’s admission of the unconstitutional religious discrimination behind the original ban, the district court’s decision also cites Miller’s February 21 appearance on Fox News. In that interview, while defending the second version of the Muslim ban currently under challenge, Miller argued that “nothing was wrong with the first executive order” and admitted to host Martha MacCallum that this redraft of Trump’s executive order would be designed to “have the same basic policy outcome” as Trump’s original rejected Muslim ban.
As the court explained, “These plainly-worded statements, made in the months leading up to and contemporaneous with the signing of the Executive Order, and, in many cases, made by the Executive himself, betray the Executive Order’s stated secular purpose. Any reasonable, objective observer would conclude, as does the Court for purposes of the instant Motion for TRO, that the stated secular purpose of the Executive Order is, at the very least, 'secondary to a religious objective' of temporarily suspending the entry of Muslims.”
From the February 21 edition of Fox News’ The First 100 Days:
MARTHA MACCALLUM (HOST): So, everybody is anticipating the next rollout of the next executive order, which is supposed to clarify some of the issues that were perhaps wrong with the first one and then got too caught up in the courts. So how is it going to be different this time?
STEPHEN MILLER: Well, nothing was wrong with the first executive order. However, there was a flawed judicial ruling that was erroneous. The president recently read the statute from the Immigration and Nationality Act, which clearly states, he has the power as president to impose any restrictions he deems necessary when it's in the national interest.
However, because of the exigency of the situation and the need to protect our country, and to protect our citizens, the president is going to be issuing a new executive action based off of the judicial ruling, flawed though it may be, to protect our country and to keep our people safe, and that is going to be coming very soon.
MACCALLUM: Alright. Grant Burschet is 18 years old, but he wants to know specifically how the second order is going to be different.
MILLER: Well, one of the big differences that you're going to see in the executive order is that it's going to be responsive to the judicial ruling, which didn't exist previously. And so these are mostly minor technical differences. Fundamentally, you're still going to have the same basic policy outcome for the country, but you're going to be responsive to a lot of very technical issues that were brought up by the court and those will be addressed. But in terms of protecting the country, those basic policies are still going to be in effect.
UPDATE: A March 16 decision from a federal court in Maryland, which blocked the revised Muslim ban as well, also cited Miller’s quote that the revised ban would keep the “basic policies … in effect.” The ruling noted, “The history of public statements continues to provide a convincing case that the purpose of the Second Executive Order remains the realization of the long-envisioned Muslim ban. The Trump Administration acknowledged that the core substance of the First Executive Order remained intact. ... These statements thus continue to explain the religious purpose behind the travel ban in the Second Executive Order. Under these circumstances, the fact that the Second Executive Order is facially neutral in terms of religion is not dispositive.”