Last night, as the Ninth Circuit decision was handed down, the President was addressing a Nashville crowd at the “Make American Great Again Rally” (yes, that is how WhiteHouse.gov referred to the event). As Trump is wont to do, he trained his fire at the Ninth Circuit. Read his remarks in their entirety, rather than scanning excerpts.
Last night, the constitutional law professor list-serve was abuzz, predicting that the President’s intemperate remarks would wind their way into a future brief, further cementing the “forever taint” of anti-Muslim animus.
In particular, about a dozen professors offered their best fact-checking of this portion:
We’re going to fight this terrible ruling. We’re going to take our case as far as it needs to go, including all the way up to the Supreme Court. (Applause.) We’re going to win. . . .
Remember this, I wasn’t thrilled, but the lawyers all said, let’s tailor it. This is a watered–down version of the first one. This is a watered–down version. And let me tell you something, I think we ought to go back to the first one and go all the way, which is what I wanted to do in the first one.
Some said “all the way” referred to going back to the initial executive order. Others said it meant go “all the way” to the Muslim ban, which was proposed, and later abandoned on the campaign trail. One professor referred to the President’s “sweeping upwards gesture with his arm” to suggest that the President was actually referring to appealing all the way up to the Supreme Court.
I have no idea what Trump meant. After writing a few chapters in Unraveled about the election, I gave up trying to pin Trump down to a consistent meaning because he will often contradict himself in a single sentence. Pundits are free to pore over these statements. But as I noted in my Politico piece, it is absolutely insane for Article III courts to assume the role of fact-checkers, and assess animus based on how these remarks fit in with statements that Rudy Giuliani and Steven Miller have made, combined with Trump’s 2011 appearance on the O’Reilly Factor.