But there are several basic factors that even the cleverest legal tweaks cannot change about this situation, no matter how hard the White House tries to obfuscate them out of existence:

1) Trump repeatedly campaigned on an explicit ban of all Muslims from entering the United States, and there is little doubt that discriminating against Muslims remains the intent of the ban, even in its new form.

AD

AD

2) Senior White House adviser Stephen Miller has flatly stated that the White House’s real goal here is to establish to the media and Trump’s political opponents that his power to act (nominally) in the interests of our national security “will not be questioned.” In other words, the White House has left little doubt that it views the battle over the ban as crucial to a bigger goal: establishing that our institutions cannot constrain Trump.

3) The White House’s own arguments justifying the ban on national security grounds are mostly nonsense. The White House has argued that dozens of instances of “terroristic activity” originated with people from the seven targeted countries, which is an absurd exaggeration. The White House has also justified the inclusion of those seven countries by arguing that the Obama administration had also warned that people from those countries constitute a terror threat, but as Glenn Kessler has shown, the context was vastly different, and in any case, former president Barack Obama did not adopt the same response that Trump has done.

Meanwhile, terrorism experts say that no one in the United States has been killed in a terrorist attack carried out since 9/11 by people from those countries.

AD

AD

None of these basic facts will be changed by the new version of the ban.

To be clear, I’m not arguing that the new version of the ban will get blocked by the courts. It very well may not. CNN reports that the ACLU believes that it will still be vulnerable to legal challenge, even with some of these changes. But it’s possible that the courts will allow it to proceed, at least for now. And at any rate, the underlying legal dispute has yet to be resolved. As legal observer Benjamin Wittes recently noted, there are several big questions: First, how sweeping are the president’s powers to ban classes of people, by, say, nationality? Second, to what degree is that authority limited by the Constitution? And finally, there’s this:

The other question … is the extent to which the repeated and overt invocations of the most invidious motivations on the part of the President himself, his campaign, his adviser, and his Twitter feed will render an otherwise valid exercise of this power invalid.

The basic facts about the lead-up to the ban remain what they are. Trump campaigned on a Muslim ban. When his administration rolled out its first iteration of that, it became obvious that the slapdash and reckless process behind it showed that its policy and legal rationale were largely arbitrary. What’s more, its real motives were clear. There was the desire to prove that some version of the “Muslim ban” campaign promise could be honored quickly (Trump is a “man of action,” gushed Kellyanne Conway). And there was the deliberate effort to signal that our institutions will not constrain Trump, laying the groundwork for much more along these lines later (“our opponents, the media and the whole world will soon see as we begin to take further actions, that the powers of the president to protect our country are very substantial and will not be questioned,” snarled Stephen Miller).

AD

AD

Time will tell whether this history will end up having legal relevance to the ban’s long-term fate, by “rendering an otherwise valid exercise of Trump’s power invalid.” But whether it does or not, that history — which lays bare the proposal’s real intent, in multiple ways — can’t be made to disappear.

********************************************************************

* GORSUCH NOT ANSWERING CRUCIAL QUESTIONS: Sen. Dick Durbin (D-Ill.) tells Carl Hulse that he privately questioned Trump Supreme Court nominee Neil Gorsuch about the relationship between the executive and judicial branches, and got nothing:

“He really backed away from it. Even in the most general constitutional terms, he didn’t want to discuss it. From where I am sitting I don’t think there is a more important question in light of this president.”

This is too bad. Now, perhaps more than ever before, we really need to know whether this nominee sees the independence of the judiciary — as a check on the executive — as paramount.

AD

* HOUSE REPUBLICANS FACE PROTESTS: CNN reports that Rep. Jim Jordan (R-Ohio) is the latest to be confronted by angry protesters, in what has emerged as a larger trend:

AD

The first hint of trouble for Republicans came two weeks ago, when Utah Republican Jason Chaffetz was confronted by hundreds of angry protesters at his town hall. Since then, Republican lawmakers have canceled town halls, while others have split town entirely — heading on Congressional delegation trips to spots like the Mexican border and Europe. So what’s the big deal? Republicans can just claim George Soros is funding all the protests and tell themselves everything they’re doing is going just fine. * TRUMP’S NATIONAL SECURITY ADVISER IS SKEPTICAL OF RUSSIA, IRAN: Trump has chosen Army Lt. Gen. H.R. McMaster as his new national security adviser. The Post reports: Peter Feaver, a scholar on civil-military ties at Duke University, said he expected McMaster to take a skeptical view of Russia, seeing Moscow as a dubious partner and major potential threat to U.S. security. And Feaver said he expects a similar skepticism toward Iran…In the Iraq War…his strategy, dubbed “clear, hold and build,” became a model for the broader campaign…to stabilize Iraq in 2007 and 2008. Two things to watch, then, will be the fate of sanctions on Russia and the Iran nuclear deal. [The Trump White House is already cooking the books] * HERE’S A SPECIAL ELECTION TO WATCH: FiveThirtyEight reports that the special election to replace Tom Price (Trump’s new health and human services secretary) in the Atlanta suburbs will be a key political indicator. Price easily won the district last time. But: Trump barely carried it in the 2016 general election … Trump struggled largely because the district is highly educated — 60 percent of people 25 or older in the district have a college degree, compared with just 31 percent nationally. Mitt Romney won this district by over 20 percentage points in 2012 … [This] could be our first real test of whether Democrats can make inroads into traditionally red districts that were wary of Trump.

One big question in the 2018 midterms will be whether Democrats can pick off GOP districts with a lot of college-educated whites, should those voters be more alienated by the Trump presidency.

* TRUMP IS SET TO ROLL BACK OBAMA CLIMATE AGENDA: The Post reports that Trump is set to roll out an executive order, as early as this week, that instructs the Environmental Protection Agency to rewrite Obama’s Clean Power Plan, which seeks to limit carbon dioxide emissions from existing power plants. That, in turn, is key to meeting our commitments to the Paris climate accord. Environmental groups will fight the rollback, and it’s possible it could take years or end up not mattering all that much. But this is a reminder that Trump could deliver a major setback to international efforts to fight global warming, with untold long-term consequences. * SENIOR TRUMP ADVISER IS FROM THE ‘FRINGE’: The Post has an eye-opening profile of one Sebastian Gorka, who is now a senior adviser to Trump and believes we’re locked in a global showdown with Islamo-facism: For years, Gorka had labored on the fringes of Washington and the far edge of acceptable debate as defined by the city’s Republican and Democratic foreign policy elite. Today, the former national security editor for the conservative Breitbart News outlet occupies a senior job in the White House and his controversial ideas — especially about Islam — drive Trump’s populist approach to counterterrorism and national security. In an interview, Gorka says that he “completely jettisons” the idea that the terrorism problem is “nuanced and complicated.” It’s about “religious ideology.” Who needs nuance and complexity, anyway? * AND THE TWEET OF THE DAY: A prominent figure tweeted just moments ago about the rash of bomb threats to Jewish community centers and other anti-Semitic incidents we’ve been seeing across the country. But it wasn’t President Trump: JCC threats, cemetery desecration & online attacks are so troubling & they need to be stopped. Everyone must speak out, starting w/ @POTUS. — Hillary Clinton (@HillaryClinton) February 21, 2017