The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.
For fans of checks and balances, the Trump administration’s Muslim travel ban has been a cautionary tale about the perils executive overreach. On January 27th, the seventh day of his presidency, the White House issued an executive order barring entry for citizens from seven majority Muslim countries (Syria, Iran, Iraq, Libya, Somalia, Sudan and Yemen). The order was so hastily announced that some learned upon landing at U.S. airports they could no longer enter the nation.
The result was pandemonium as those who believed they were holding valid visas were either sent back to where they had come from or languished in a legal purgatory as lawyers rushed to court to enjoin the ban. Believing the ban unconstitutional, acting Attorney General Sally Yates refused to defend it. She was fired three hours later. A Brooklyn federal court issued a stay the next day, but its order only applied locally. It took a week before Washington state federal district court judge James Robart, a George W. Bush appointee, issued a national injunction against the ban. (Lawfare has a useful compilation of travel ban litigation.)
Then, on the 45th day of the 45th presidency, the Trump administration unveiled travel ban 2.0. Although there were some tweaks, the biggest difference in travel ban 2.0 was that Iraq was dropped from the list. Yet, even travel ban 2.0 could not survive judicial scrutiny.
In a 10–3 decision May 25th, the Fourth Circuit, which is generally considered conservative, struck down the revised ban. While lawyers were studying the Fourth Circuit’s 205-page opinion from Richmond, Va., another federal appellate court on the opposite coast was also considering the travel ban. Eighteen days after the Fourth Circuit ruling, a three-judge panel of the Ninth Circuit in Seattle also blocked the ban. All the judges on the panel were appointed by Bill Clinton.
Unlike the Fourth Circuit, which based its opinion on Constitutional arguments, the Ninth Circuit simply ruled that the president did not follow the rules and procedures under the Immigration and Nationality Act. Tellingly, their opinion was issued “per curiam,” which usually means the court sees its opinion as a relatively simple application of the law.
Given this background, it surprised no one that the Supreme Court announced Monday it would hear the travel ban case in October.
About a month ago, I wondered what election did Chief Justice Justice John Roberts see in 2016? Did he see it as another triumph in the long-running string of occasional outbursts of American populism or did he see it as dangerously reactionary and racist? Now it’s time to extend this inquiry to the entire Supreme Court. What election did they see? The one I saw was, among other things, rife with Islamophobia.
One of the issues throughout the travel ban litigation has been whether to accord any value to Trump’s statements about Muslims—both before and after the election. If these statements are considered relevant background to the travel ban, then it is not hard for a court to conclude that the ban is an unconstitutional attempt to discriminate on the basis of religion.
Not surprisingly, Trump’s lawyers have argued that what was said during the campaign is merely the typical rhetoric and bombast of any candidate. Unfortunately, there’s an extensive record they’re asking to set aside. A partial record runs from November 2015 when Trump said he would “strongly consider” closing mosques to December 2015 when called for a “total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on” to March when he said Muslims in America pose “a major, major problem. This is, in a sense, this is a war” to August when he said any immigrant would be rejected “who doesn’t share our values and love our people.”
It is almost as if Trump can’t help himself. For instance, despite pleas from National Security Adviser H.R. McMaster not to use the phrase “radical Islamic terrorism” because it alienates Muslim allies, Trump went ahead and used it anyway in a March speech before a joint session of Congress. And what of travel ban 2.0 unveiled with great fanfare in March in a joint appearance by John Kelly, secretary of the department of homeland security, Secretary of State Rex Tillerson and Attorney General Jeff Sessions?
Trump essentially disavowed it three weeks ago. On June 5th, in one of his trademark early morning Tweets, Trump wrote, “The Justice Dept. should have stayed with the original travel ban, not the watered down, politically correct version they submitted to S[upreme].C[ourt].”
As some have argued, the Ninth Circuit ruling provides the Supreme Court with a “clean” way to block the travel ban. The Court does not have to divine whether what Trump said on the campaign trail or in Tweets is evidence of a propensity for religious discrimination. Nor does the Court have to enter the swamp of determining whether the president’s national security prerogatives underlying the travel ban run afoul of the Constitutional protections against establishment of a favored religion or equal protection of the law. Simply put, the Ninth Circuit found Trump broke the rules of the Immigration and Nationality Act. It’s just a matter of following the statute. And claiming national security does not give the president carte blanche to skip the rules, “National security is not a ‘talismanic incantation’ that, once invoked, can support any and all exercise of executive power…”
But if the Supreme Court wants to wrestle with the deeper issues of the travel ban, then they are going to have to confront the Establishment Clause head-on.
The Maryland federal district court, whose ruling became the basis of the Fourth Circuit opinion, found that not only were Trump’s campaign statements anti-Muslim, they were relevant in determining Trump’s true motive for the travel ban – and it wasn’t national security. Judge Theodore Chuang wrote:
“the evidence offered by Plaintiffs includes numerous statements by President Trump expressing an intent to issue a Muslim ban or otherwise conveying anti-Muslim sentiments. … In a March 9, 2016 interview with CNN, Trump professed his belief that ‘Islam hates us,’ …. March 22, 2016 Fox Business interview, Trump reiterated his call for a ban on Muslim immigration, explaining … ‘we’re having problems with the Muslims, and we’re having problems with Muslims coming into the country.’”
Chuang noted that simply because these statements were made during the campaign does not “wipe them from the ‘reasonable memory’ of the ‘reasonable observer.’” The statements demonstrated Trump’s “animus towards Muslims.” Chuang concluded, “the record provides strong indications that the national security purpose is not the primary purpose for the travel ban.”
The Fourth Circuit affirmed nearly all of Chuang’s findings. And Chief Judge Robert Gregory, writing for the majority, dynamited the travel ban Executive Order in about 60 words:
[It is] an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination. Surely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles—that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another.
When the Supreme Court considers these cases in the fall, the question remains: which election did the Justices see in 2016? If they saw the election where candidate Trump continually disparaged the Islamic faith and suggested a Muslim ban, then I expect the Court strike down the travel ban. But if they were in some strange news bubble where they were deaf to Trump’s vitriol, then I am concerned they will not give sufficient weight to the evidence showing religious animus is the true rationale for the travel ban.