Trump is set to introduce a new ‘Muslim ban.’ This one is nonsense, too.

(Pablo Martinez Monsivais/Associated Press)

THE MORNING PLUM:

ABC News is reporting that President Trump is set to introduce a new version of his travel ban, perhaps as early as this week. According to senior administration officials, the new rendition will not include a ban on Syrian refugees, but it will still temporarily prohibit travel to the United States by migrants (this time exempting U.S. green-card holders) from the same seven majority-Muslim countries that were barred by the last one.

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.

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.

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).

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.

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* 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.

* 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:

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.

Ivanka Trump condemned the attacks, and the White House put out a milquetoasty statement about them. Why not Trump himself?