“In determining how to proceed, the court is cast upon cross jurisprudential currents,” Trenga said. On one hand is Lemon v. Kurtzman, a landmark Supreme Court case that laid out a three-prong test for courts to determine whether a government act violates the First Amendment’s religious-freedom protections. One of those prongs says that the act must have a “secular legislative purpose” or else it won’t survive judicial review.
On this point, Sarsour and the other plaintiffs offered evidence to allege Trump was operating in bad faith—that his ban was designed to restrict only Muslims from entering the United States and didn’t have any other aim. Their submissions included his original call for a “total and complete shutdown of Muslims entering the United States” in December 2015, a TV interview in which former New York City Mayor Rudy Giuliani said Trump approached him about a “Muslim ban” and “the right way to do it legally,” and top Trump adviser Stephen Miller’s assertion that the revised order was “going to have the same basic policy outcome for the country.”
But Trenga also had to consider a separate set of Supreme Court precedents, specifically on the federal government’s immigration powers. Under a series of cases starting with Kleindienst v. Mandel, the Supreme Court said the president need only offer a “facially legitimate and bona fide rationale” to survive a court’s scrutiny. Translation: The federal government has exceptionally broad latitude to craft immigration policies, so long as they can offer a seemingly plausible reason for them.
As broad as it may be, that standard wasn’t necessarily damning for Sarsour and the other plaintiffs. My colleague Garrett Epps noted last week that even under the lenient Mandel standard, Trump’s long history of controversial comments about Muslims could still prevent the ban from passing constitutional muster. But the judge sided with the federal government instead, citing the revisions made between the first and second executive orders.
Such a conclusion is no accident, since the Trump administration consciously designed the second order to satisfy the courts’ concerns about the first one. The White House kept the 120-day suspension of the U.S. Refugee Assistance Program, but nixed both the permanent ban on Syrian-refugee resettlement and the exemption for religious minorities. Iraq was removed from the list of countries affected by the visa-application ban, and already issued visas would not be suspended. The administration also included a series of exemptions to the visa-application ban giving consular officials broad latitude to override it when they deemed it necessary.
Those revisions, the judge concluded, reconfigured the calculus behind the court’s judgment. Trump’s past statements about Muslims still mattered, but they were no longer coupled with a “facially discriminatory order.” That presented a potential separation-of-powers problem: If the court ruled his remarks still compromised a neutrally drafted order, it would have “effectively disqualified him from exercising his lawful presidential authority” under federal immigration law.
For Trenga, that would have been a step too far. Accordingly, he wrote, it was “no longer likely that plaintiffs can succeed on their claim that the predominate purpose of [the second executive order, or EO-2] is to discriminate against Muslims based on their religion and that EO-2 is a pretext or a sham for that purpose.” Other judges in other courts may continue to rule differently. But with his ruling, Trenga has supplied them with a way to uphold the president’s ban.