“Perfectly probative evidence” of improper purpose is hardly lacking in the President’s remarks and tweets—including many recent ones made after the earlier bans were announced. Among others, Chuang noted that in August 2017—eight months after taking the oath of office and five months after EO-2—“Trump tweeted a statement that ... shooting Muslims with bullets dipped in pig’s blood should be used to deter future terrorism.” Meanwhile, he wrote, “there is no record of public statements showing any change in the President’s intentions relating to a Muslim ban.”
Justice Souter’s McCreary opinion tells courts to “take account of genuine changes in constitutionally significant conditions.” But Chuang found that the purported changes in the proclamation from EO-1 and EO-2 are not “genuinely persuasive.”
After EO-2 was blocked, the administration undertook a security review, supposedly to determine what countries provided adequate supervision of their nationals who were seeking entry into the U.S. But, Chuang concluded, that review was phony. Trump had already announced what it would find, he noted. And the review concluded that what was needed was a ban almost identical to the one in EO-2. Of course, some non-Muslim countries—North Korea and Venezuela—were added, and the new order makes country-by-country exceptions. But the non-Muslim bans have “little practical consequence,” and the country-by-country exceptions don’t make any sense: the review found that Venezuela does not adequately share information with U.S. authorities—but most of its nationals can still enter; Somalia, according to the review, does share adequate information—but its nationals are entirely barred as immigrants, and sharply limited as visitors.
These flaws, Chuang reasoned, call into question whether “national security” was the reason for the ban at all. Chuang wrote that he was not examining whether “national security” would justify a ban. He said he noted the skimpy justification only to “assess whether the Proclamation persuasively establishes that the primary purpose of the travel ban is no longer religious animus.”
Mulling all the circumstantial evidence, Chuang answered that question by finding what Henry David Thoreau once called a trout in the milk:
Based on the facts that the Proclamation’s ban generally resembles President Trump’s earlier description of the Muslim ban, EO-2 dictated the Proclamation’s outcome of a recommended list of nations to be subjected to a travel ban, the criteria used to select countries were highly correlated with those used to select the countries for EO-2, the terms of the Proclamation’s travel ban skew against Muslim nations as compared to the objective measures applied in the DHS Review, and the proposed response has not been adequately explained as a necessary one to the identified problem, the Court cannot conclude that the Proclamation sufficiently offers a “purposeful” curative action that establishes that the taint of EO-2 no longer underlies the travel ban.
Thus, as it heads to the Fourth Circuit, Chuang’s opinion starkly presents the issue: does the establishment clause apply to decisions to admit or exclude aliens? The caselaw on that is confusing. If the clause does apply, when can a court consider what the president has said—and what the government has previously done—to find a violation of the clause in a neutral-sounding order?
Supreme Court tea leaves are notoriously hard to read; but there is a palpable yearning on the part of some of the justices to defer to anything immigration and national-security figures say. Pig’s blood and “Islam hates us” may strain justices’ will to believe, but not necessarily break it.
Whatever the outcome on appeal, however, the opponents of the ban have convinced at least one hard-headed judge that they have a case. His opinion may not survive; but it will not be easy to refute.