With the Travel Ban, Federal Courts Face a New Legal Issue

If you’re ever sued, I tell my students, the lawyer you want is not the one who thumps the table and assures you that your case is open and shut. No, it’s the lawyer who sits quietly and then says, “We need to get ready, because the other side has a strong case”—and then states that case as well as the other side will.

That’s how a lawyer finds a way to win. And that’s how to understand an important legal dispute—find the best argument for both sides.

That intellectual care has been missing this week in the reaction to the three legal setbacks President Trump’s revised travel ban suffered last week. Trump himself immediately blasted the decision by district judge Derrick Watson in Honolulu to temporarily block the ban as “an unprecedented judicial overreach,” and attacked Watson’s motives, telling a screaming rally, “You don’t think this was done by a judge for political reasons, do you?” Trump acolyte Sean Hannity suggested that Watson had been doing “weed and blow” with none other than Barack Obama.

The intemperate reaction, though, wasn’t limited to the Trump circle. David Frum branded Watson’s decision as “dangerous.” Frum added that Watson’s “approach is so ambitious and so new that it renders it incredible.” The Pepperdine law professor Douglas Kmiec tweeted that Watson “put politics over law, & diminished both.”

There was intemperance on the other side as well. The liberal warhorse Mark Green, now part of a “shadow cabinet” monitoring the Trump administration, exulted that “every judge says Muslim Travel Ban illegal.”

All of these figures would do well to try to see both sides of these cases. Who should win? Well, in a universe where the moral arc actually did curve toward justice—that is, in a world where the courts apply the Constitution’s text and history as they should be applied—my answer is that the ban is unlawful. But looking at existing precedent—how the Constitution and the law has been read over time—it could come out either way. The questions it poses are very new.

So commentators should be very careful—lest they descend to Trump’s level—before impugning the integrity of any judge who hears the case.

To begin with, “every judge” has not found either executive order illegal. In fact, depending on whom you include, the judge count is close to even. Two federal district judges—Judge James Robart in Seattle and Judge Leonie M. Brinkema of Northern Virginia—rejected the first version of the executive order. Another, Judge Nathaniel Gorton of Boston, refused to block it. Judge Robart’s order was appealed to the Ninth Circuit. There it was upheld by a three-judge panel; when the active judges considered setting that panel decision aside, five judges explicitly wrote that the panel decision was wrong.

For those scoring at home, that makes the score on that first executive order: Administration 6, Challengers 5. And as I wrote last week, Ninth Circuit Judge Jay S. Bybee’s dissent lays out a cogent argument that this executive order was well within the president’s power. I think the argument wrong, but it can’t be dismissed.

As for the contention that Watson’s opinion is “political”: Where is a scintilla of evidence for this? As The New York Times reported last week, Watson, an Obama appointee, is actually an independent whose career has been largely apolitical. Whether advanced by Fox News hosts or professors, a claim that a judge has thrown over law for politics should be supported by evidence or promptly withdrawn.

And here’s some evidence against that claim: As of this writing, the score on the redrafted, second version of the executive order is 2-0 against the administration. A few hours after the Hawaii decision, a district judge in Maryland issued a narrower order blocking the same executive order. That judge was Theodore Chuang, whose previous billet was deputy general counsel of the Department of Homeland Security.

The two decisions are not identical. Watson, in Honolulu, found the second executive order a violation of the First Amendment’s prohibition of “establishment of religion.” Chuang, instead, found that the order violates an anti-discrimination provision of the Immigration and Nationality Act. That provision forbids discrimination in granting immigrant visas on the basis of “race, six, nationality, place of birth, or place of residence.” Thus, he upheld the order’s limit on granting non-immigrant visas, but ordered the government to process immigrant-visa applications from nationals of the six “designated countries” without regard to the order.

What’s important, however, is where the judges agreed: In testing the validity of the second executive order, they both wrote, a court should not close its eyes to what Donald Trump says he is really up to. Since late 2015, when Trump officially promised “a total and complete shutdown of Muslims entering the United States,” Trump—as candidate, as president-elect, and as president—has made clear his intention to stop the flow of Muslim entrants to the United States, arguing that their religion makes them disloyal and potentially dangerous. “Such explicit statements of a religious purpose are ‘readily discoverable fact[s]’ that allow the Court to identify the purpose of this government action without regard to ‘judicial psychoanalysis,’” Chuang wrote; Watson agreed in much the same words.

Here’s the new legal issue: Can a federal judge consider a president’s statements about his intentions when considering the meaning of an executive order? Jeffrey Toobin, in The New Yorker, wrote last week that courts should “reject the use of Presidential statements altogether. The Muslim ban is either constitutional or it’s not—and Donald Trump’s words on the campaign trail don’t settle that question one way or the other.”

There’s something to that argument. Though both executive orders are signed “Donald J. Trump,” they are not actually the work of the same “Donald J. Trump” who stumped the country falsely accusing American Muslims of cheering 9/11. In fact, the order is the product of the entire executive branch. Campaign statements may not be reliable guides to its interpretation.

Toobin in part relies on a forthcoming Texas Law Review article by Kate Shaw of Cardozo Law School in New York. In an email, Shaw disagreed slightly with Toobin’s conclusion. She said, “it is for the most part inappropriate for a court to give legal effect to presidential statements whose goals are political storytelling, civic interpretation, persuasion, and mobilization—not the articulation of considered legal positions.” However, she added, “in a subset of cases, a degree of judicial reliance on presidential speech is entirely appropriate.” Within that subset, she said, fall “cases in which government purpose constitutes an element of a legal test.”

That’s what the judges in the cases concerning the second executive order were doing—they were using Trump’s statements to determine whether bald religious discrimination was the “government purpose” behind the travel ban. A long line of cases establishes that, in considering whether legislation is intentionally discriminatory, courts can and should consider statements made by those with the power; it’s not clear why presidents’ statements should be treated differently.

And—here speaking for myself—I think there’s a second reason the statements should be considered. The judges are using Trump’s words as evidence not only to interpret government purpose but to decide whether the government is even acting in good faith. And that term is important. Why? The major precedent that the executive orders’ supporters rely on is a 1972 case called Kleindienst v. Mandel. In that case, the Court considered a decision excluding a famous Belgian Marxist intellectual who was invited to speak at an academic conference. The government said it was excluding him not because of his point of view but because he had disobeyed the conditions of an earlier visa. The Court held that judges should not look behind such a decision “when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason.”

“Bona fide” means “good faith.” That’s a potential iceberg for the administration. What both judges found is that, on the record before them, Donald Trump has twice now come before the bar of justice and lied through his teeth. Twice now, he has claimed that his orders have nothing to do with prejudice against Muslims—Mercy me, no, heaven forfend!—while signaling in the broadest terms that these claims are lies.

It’s possible to disagree about the relevance of specific statements. The official campaign statement? Well, on the one hand, it’s “official”; on the other hand, Trump wasn’t president yet. Former New York Mayor Rudolph Giuliani’s claim that Trump asked him to create a legal form of a “Muslim ban”? Smoking gun or pathetic claim of relevance by a passed-over windbag?

What about this one?  On January 27, 2017, while sitting in the Oval Office with reporters present, President Donald J. Trump signed the first executive order, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.”

Then, as Watson writes, “President Trump read the title, looked up, and said: ‘We all know what that means.’”

What evidence of bad faith could be stronger? A hand-lettered sign saying: “Ignore me, I’m lying”?

Could a court look at that statement, in the context of the events of the past two years, and find it irrelevant? I think it could do so only by choosing willful blindness over constitutional duty.

Again, I cast no aspersion on judges who disagree. But I think their argument is wrong even in ordinary times. And at moments like these, judges must be willing to hold accountable a president whose words show willful contempt for the truth, for the courts, and for the Constitution.