The Weekly Sift

Judges have traditionally assumed that the executive branch is best equipped to deal with national security and foreign affairs, and so courts should defer to the judgment of the President in those areas. But what if the President is acting in bad faith?

Last week I characterized the second version of Trump’s Muslim ban like this:

the revised ban is more orderly than the original, and won’t produce the same kind of drama … but the essence is the same: It’s still a Muslim ban.

The new ban avoided the chaos and obvious due-process violations that made the original so easy for the courts to strike down. So the next round of cases would have to go to the heart of the matter: Does the order arise out of an unconstitutional intent to discriminate on the basis of religion?

The three-judge appellate panel that upheld the temporary restraining order against the original ban had reserved judgment on the religious-discrimination claim, reasoning that the due-process violations already justified a TRO. I suspect it did this to preserve the unanimity of its ruling, which made a stronger statement than a 2-1 decision. (In the face of that unanimity, Trump decided to revise that ban rather than appeal to the Supreme Court.)

To justify a religious-discrimination finding (i.e., one based on the First Amendment’s prohibition against the government establishing a religion, known as the Establishment Clause), a judge would have to reach outside the text of Trump’s executive order and connect it both to the previous attempt at a Muslim ban, and to the anti-Muslim bigotry in Trump’s campaign. I wondered if judges would have the guts to do that.

This week, two did: one in Hawaii and the other in Maryland. The new order was supposed to take effect at midnight Thursday morning, but Wednesday evening a federal judge in Hawaii issued a temporary restraining order blocking it nationwide. “Temporary” means until his court has a chance to hold more complete hearings on the case, and quite likely until all appeals are resolved. Judge Derrick Watson wrote:

Because a reasonable, objective observer — enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance — would conclude that the Executive Order was issued with a purpose to disfavor a particular religion, in spite of its stated, religiously-neutral purpose, the Court finds that Plaintiffs, and Dr. Elshikh in particular, are likely to succeed on the merits of their Establishment Clause claim.

Because it’s the second time around, some issues are easier, like standing: Who is sufficiently harmed by the executive order that they have grounds to sue? In this case, the State of Hawaii sued, claiming the same standing that the 9th Circuit Court of Appeals had already recognized the State of Washington having: The state operates a state university system, which recruits both students and faculty from the banned countries. Since Hawaii falls within the 9th Circuit, that doesn’t have to be argued again. (But there is a wrinkle: The new ban contains a more detailed process for obtaining waivers, so if this is the basis of standing, it can be argued that the case is not yet “ripe”: Perhaps the states need to wait and see how their recruited students and faculty fare in the waiver process. Judge Watson does not appear to consider this argument.)

Judge Watson also recognized the standing of Dr. Ismail Elshikh, a Muslim-American of Egyptian descent who lives in Hawaii and is the imam of the Muslim Association of Hawaii. Dr. Elshikh claims that his Syrian mother-in-law will be hindered from visiting his family in Hawaii, and also that he, his family, and his organization will suffer from the stigma that the order casts on Muslims in general.

In order not to violate the Establishment Clause, a government action must satisfy three criteria, collectively known as the Lemon Test. Judge Watson concluded that the Muslim Ban failed the first test: having  “a primary secular purpose”. (Here’s an example of secular purpose that passes muster: It’s OK for Medicaid funding to pass through Catholic hospitals, because the government’s primary purpose is to pay for medical care, not to promote Catholicism.)

Watson acknowledges that the text of the new executive order is “religiously neutral”. In other words, it does not mention Islam or any other religion by name. It applies equally to all residents of the six targeted countries, and does not apply to the majority of the world’s Muslims, who live in other countries. But he quoted the 9th Circuit’s opinion on the original ban:

It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.

and says that

The Supreme Court has been even more emphatic: courts may not “turn a blind eye to the context in which [a] policy arose.” … A review of the historical background here makes plain why the Government wishes to focus on the Executive Order’s text, rather than its context. The record before this Court is unique. It includes significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor.

Judge Watson traces the history of Trump’s explicit call for a Muslim ban, including his admission that his subsequent policy of “extreme vetting” was the Muslim ban in a new form.

Mr. Trump replied: “The Muslim ban is something that in some form has morphed into a[n] extreme vetting from certain areas of the world.” When asked to clarify whether “the Muslim ban still stands,” Mr. Trump said, “It’s called extreme vetting.”

Watson acknowledges the Trump administration’s point that judges should not look too hard for “veiled” and “secret” motives that make an action by the political branches of government unconstitutional. But he argues that there is nothing veiled or secret going on: The anti-Muslim motive has been front and center from the beginning, and the path from Trump’s original goal of a “Muslim ban” to the current order has likewise played out in public, in what he describes as “plain words”. Therefore:

Any reasonable, objective observer would conclude, as does the Court for purposes of the instant Motion for TRO, that the stated secular purpose of the Executive Order is, at the very least, “secondary to a religious objective” of temporarily suspending the entry of Muslims.

The Maryland ruling by Judge Theodor Chuang lays out similar logic. He cites many of the same public statements, and also the process by which the orders have been written:

the history of public statements continues to provide a convincing case that the purpose of the Second Executive Order remains the realization of the long-envisioned Muslim ban.

… In this highly unique case, the record provides strong indications that the national security purpose is not the primary purpose for the travel ban. First, the core concept of the travel ban was adopted in the First Executive Order, without the interagency consultation process typically followed on such matters. … The fact that the White House took the highly irregular step of first introducing the travel ban without receiving the input and judgment of the relevant national security agencies strongly suggests that the religious purpose was primary, and the national security purpose, even if legitimate, is a secondary post hoc rationale.

Second, the fact that the national security rationale was offered only after courts issued injunctions against the First Executive Order suggests that the religious purpose has been, and remains, primary.

Both opinions cite McCready County v ACLU, a 2005 Supreme Court ruling. Every time a court banned the Ten Commandments displays in McCready County’s schools and courthouses, they’d install new ones that supposedly fixed the problems the courts had cited. The case is a paradigm of a particular kind of denseness: when officials think they can achieve an unconstitutional purpose if they just get the details right.

McCready County and its religious-right fans kept reading judicial rejections as blueprints for designing the next attempt in the series, but eventually the series itself became evidence of an intent to endorse Christianity. The County argued that only the latest display mattered, and the Court shouldn’t consider the history of how they came up with it. Justice Souter disagreed:

But the world is not made brand new every morning, and the Counties are simply asking us to ignore perfectly probative evidence; they want an absentminded objective observer, not one presumed to be familiar with the history of the government’s actions and competent to learn what history has to show.

I think of McCready County’s religious displays (and the Muslim ban) like the carousing husband who believes his wife should be happy because he’s cleaned up all the telltale signs that have made her mad in the past: “I brushed the long hair off my suit, I cleaned the lipstick off my collar, I used mints to cover the alcohol on my breath … what do you want from me?”

Meanwhile, the 9th Circuit Court of Appeals as a whole decided not to reconsider the decision of the three-judge panel of its members who blocked the original executive order. But five of the 25 active judges signed an opinion denouncing that ruling. The opinion was written by Jay Bybee, who you may remember from his previous job: As Deputy Assistant Attorney General under George W. Bush, he signed the famous “torture memos” that OK’d waterboarding and other “enhanced interrogation” techniques. (We’re never going to forget that, Jay. If you live to be 100, the headline on your obituary will still read: “Signer of Torture Memos Dies”.)

On the Lawfare blog, Benjamin Wittes of the Brookings Institute has an interesting analysis: He thinks judges are giving less deference to Trump than they would to an ordinary president, because they see him as untrustworthy.

Perhaps everything Blackman and Margulies and Bybee are saying is right as a matter of law in the regular order, but there’s an unexpressed legal principle functionally at work here: That President Trump is a crazy person whose oath of office large numbers of judges simply don’t trust and to whom, therefore, a whole lot of normal rules of judicial conduct do not apply.

In this scenario, the underlying law is not actually moving much, or moving or at all, but the normal rules of deference and presumption of regularity in presidential conduct—the rules that underlie norms like not looking behind a facially valid purpose for a visa issuance decision—simply don’t apply to Trump. As we’ve argued, these norms are a function of the president’s oath of office and the working assumption that the President is bound by the Take Care Clause. If the judiciary doesn’t trust the sincerity of the president’s oath and doesn’t have any presumption that the president will take care that the laws are faithfully executed, why on earth would it assume that a facially valid purpose of the executive is its actual purpose?

And finally, speaking of crazy people, Mike Huckabee thinks Trump should just ignore the court orders, like Andrew Jackson did when he expelled the Cherokee nation from Georgia.

One measure of how far wrong things have gone is the number of shameful episodes in American history that are being cited as precedents. Here: the Trail of Tears. Previously, the Japanese internment as justification for a national Muslim registry.