"The States argue that the Executive Order violates the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims. In support of this argument, the States have offered evidence of numerous statements by the President about his intent to implement a 'Muslim ban' as well as evidence they claim suggests that the Executive Order was intended to be that ban, including sections 5(b) and 5(e) of the Order. It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims."
In other words, the administration's lawyers were forced to argue, in effect, "Let's all agree to overlook what Trump said about Trump's policy." To which the 9th Circuit effectively replied, "Um, no."To be sure, this is a multi-faceted case, and the White House lost on a variety of grounds, but I'm struck by the fact that Donald Trump continues to be Donald Trump's biggest enemy. As the Washington Post
's Greg Sargent explained
last week, the president not only talked up his Muslim ban as a candidate, Trump also spoke in some depth about his policy being "deliberately discriminatory in intent and effect."All the plaintiff's counsel had to do was point to the president's own record, which the 9th Circuit considered highly relevant to putting Trump's policy in a broader legal context.This was a key part of the pre-decision arguments, too. Slate
's William Saletan noted
The evidence of Trump's animus against Muslims was as damning as the lack of evidence for the security threat. Washington state Solicitor General Noah G. Purcell pointed to 'public statements from the president and his top advisers' that conveyed 'intent to discriminate against Muslims.'The statements, detailed in briefs, included Trump's call for a 'complete shutdown of Muslims entering the United States,' the Trump team's explanation (delivered by surrogate Rudy Giuliani) that the executive order had evolved from that proposal, and Trump's Jan. 27 pledge to help Christian refugees in particular. [August Flentje, the Justice Department lawyer arguing the appeal], had no answers.
A Washington Post piece
added earlier this week, "No one apparently gave [Trump] anything like a Miranda warning: Anything he says can and will be used against him in a court of law."As the president licks his wounds and prepares for the appeal, he should at least try to come to terms with the fact that he has no one to blame for his defeats but himself. Trump tweeted
last night, in yet another all-caps message, "See you in court, the security of our nation is at stake!"But we just saw him in court, where he failed miserably.For more on the latest developments, be sure to check out Rachel's coverage
from last night's show.