Don’t be surprised if President Trump appoints himself to the Supreme Court. This balance of power thing is not his style and he hates losing, which makes enforcing a Muslim ban problematic.

On Jan. 27, Trump issued Executive Order 13769, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” citing the terrorist attacks of Sept. 11, 2001, and banning travel to the U.S. for anyone from Iraq, Iran, Libya, Somalia, Sudan, Syria or Yemen – countries none of the 9/11 terrorist were from – and banning refugees from Syria, a country savagely ripped apart by war and whose people, including thousands of innocent children, are suffering.

Two days later, amid complete chaos and despair, Trump said of the order, “this is not a Muslim ban.”

What about that December 2015 campaign statement titled “Donald J. Trump Statement On Preventing Muslim Immigration?” Remember how it said “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on”?

Remember after the horrific shooting in Orlando, Florida, when Trump said, “I called for a ban after San Bernardino and was met with great scorn and anger, but now … many are saying that I was right to do so …”?

And everyone recalls candidate Trump all over the news trumpeting his Muslim travel ban, including these remarks on “Meet the Press” with Chuck Todd:

“But just remember this: Our Constitution is great. But it doesn’t necessarily give us the right to commit suicide, OK? Now, we have a religious, you know, everybody wants to be protected. And that’s great. And that’s the wonderful part of our Constitution. I view it differently.

“Why are we committing suicide? Why are we doing that? But you know what? I live with our Constitution. I love our Constitution. I cherish our Constitution. We’re making it territorial. We have nations and we’ll come out, I’m going to be coming out over the next few weeks with a number of the places. And it’s very complex … and I would stop the Syrian migration and the Syrians from coming into this country in two seconds. Hillary Clinton wants to take 550 percent more people coming in from that area than Barack Obama. I think she’s crazy. I think she’s crazy. We have no idea who these people are for the most part, and you know, because I’ve seen them on different shows …”

Trump did then what any self-respecting candidate for president would do after watching television. He announced the establishment of a commission.

“Political correctness has replaced common sense in our society. That is why one of my first acts as president will be to establish a commission on radical Islam, which will include reformist voices in the Muslim community who will hopefully work with us. We want to build bridges and erase divisions. The goal of the commission will be to identify and explain to the American public the core convictions and beliefs of radical Islam, to identify the warning signs of radicalization and to expose the networks in our society that support radicalization. This is my pledge to the American people: as your president I will be your greatest champion. I will fight to ensure that every American is treated equally, protected equally and honored equally. We will reject bigotry and oppression in all its forms and seek a new future built on our common culture and values as one American people. Only this way, will we make America great again and safe again.”

And who better to reject bigotry and oppression than Rudy Giuliani, pre-eminent reformist voice in the Muslim community? As reported in The Washington Post, Fox News host Jeanine Pirro asked Giuliani whether the ban had anything to do with religion.

“I’ll tell you the whole history of it,” Giuliani responded eagerly. “So when (Trump) first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’ ”

Giuliani said he assembled a “whole group of other very expert lawyers on this,” including former U.S. Attorney General Michael Mukasey, Rep. Mike McCaul (R-Tex.) and Rep. Peter T. King (R-N.Y.) – other prominent “Muslim reformists” in the Trump camp, for sure.

“And what we did was, we focused on, instead of religion, danger – the areas of the world that create danger for us,” Giuliani told Pirro. “Which is a factual basis, not a religious basis. Perfectly legal, perfectly sensible. And that’s what the ban is based on. It’s not based on religion. It’s based on places where there are substantial evidence that people are sending terrorists into our country.”

Except that according to the 9th Circuit, which was asked to review the order, “Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States. Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all.”

Some experts. Urging federal judges to accept without question a fact-free “reform” of what obviously is Trump’s promised Muslim ban? Asserting that judicial review of Trump’s order allegedly about national security and defense violates the separation of powers? I thought Trump was going to start winning again.

Trump’s claimed imperialism – the notion that his orders are unreviewable – “runs contrary to the fundamental structure of our constitutional democracy.”

A law that has a religious purpose as opposed to a secular purpose is unconstitutional. So is a law that prefers one religion over another or discriminates on the basis of one religion over another. That’s what makes America great already. National defense is not an end in itself that justifies the exercise of unrestricted power.

In the name of national defense, the United States of America cannot sanction the subversion of religious freedom and due process of the law, for these and other fundamental rights are what make the defense of the nation worthwhile in the first place.

After the 9th Circuit refused to permit enforcement of the travel ban while the case is fully litigated, the president of the United States tweeted at 6:35 p.m. Thursday: “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!”

And he’s right. It is in court where sometimes the security of our nation is at stake, and that’s fine by me.

Cynthia Dill is a civil rights lawyer and former state senator. She can be contacted at:

[email protected]

Twitter: dillesquire

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