It is more dangerous to be Donald Trump’s friend than his enemy.
Monday, acting solicitor general Jeffrey B. Wall found this out the hard way, as he joined White House Press Secretary Sean Spicer and Deputy Attorney General Rod Rosenstein under the Trump bus.
On Thursday of last week, Wall had filed a petition for certiorari in International Refugee Assistance Program v. Trump. In that case, a district judge in Maryland had blocked Trump’s Executive Order freezing admission to the U.S. of nationals of six majority-Muslim countries. The en banc Court of Appeals then affirmed the injunction; the court’s majority opinion by Chief Judge Roger Gregory said that the order “in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.” Drawing in part of Trump’s own statements before and after taking office, the court concluded that the order is, in fact, aimed at excluding Muslims from the U.S. because they are Muslims, and thus violated the First Amendment’s prohibition of “an establishment of religion.”
The heart of Wall’s argument is as follows: (1) The executive order represents the president’s own considered judgment about the needs of national security, for which the Constitution makes him uniquely and personally responsible; (2) the order is not a “Muslim ban” or indeed a “ban” of any kind, merely “a temporary 90-day pause (subject to individualized waivers) on the entry of certain foreign nationals from six countries”; (3) this order—unlike the first order hastily issued at the end of Trump’s first week in office—makes no reference to religion and is based purely on national security grounds; (4) the second order—again unlike the first—was entered “based on the recommendation of the Secretary of Homeland Security, in consultation with the Secretary of State and Director of National Intelligence” and after review by the affected agencies; (5) the president’s previous statements about a “Muslim ban” were “campaign-trail statements by a political candidate” that he has not repeated since becoming president and at any rate (6) presidential statements of any kind shouldn’t be considered—only the words of the order themselves.