Constitutional Law

The Dubious Premise of the TRO Against Trump's Revised Travel Ban

Trump's main goal is looking tough, not discomfiting Muslims.

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C-SPAN

Issuing a temporary restraining order against President Trump's revised travel ban yesterday, U.S. District Judge Derrick Watson declared that "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." Watson, who was responding to a lawsuit by the state of Hawaii and the imam of a Honolulu mosque, therefore concluded that Trump's order does not have "a primary secular purpose," as required by the First Amendment's ban on "an establishment of religion." That conclusion seems dubious to me.

It is pretty clear, based on Trump's public statements, that anti-Muslim prejudice affects his thinking about immigration and national security. But that does not mean animus against Muslims was the motive for his order. It seems much more likely that the motive was a desire to seem like he was doing something to protect Americans from terrorist attacks, as he promised to do during his campaign. While it is unlikely that the travel ban will have any noticeable effect on terrorism, courts generally defer to the president's judgment in cases involving immigration and national security. The question is whether that deference should go out the window because of stupid stuff Trump said while running for president.

In December 2015, following the terrorist attack in San Bernardino, Trump recommended "a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on." A few months later, in a March 2016 interview with Anderson Cooper on CNN, Trump said, "I think Islam hates us." When Cooper asked him whether there is "a war between the West and radical Islam, or between the West and Islam itself," Trump replied, "It's very hard to separate, because you don't know who's who."

After catching flak for that sort of talk, Trump started talking about "extreme vetting" of immigrants from countries "compromised by terrorism," instead of focusing on Muslims per se. "I don't think it's a rollback," he said on Meet the Press last July. "In fact, you could say it's an expansion. I'm looking now at territories. People were so upset when I used the word Muslim. Oh, you can't use the word Muslim. Remember this. And I'm OK with that, because I'm talking territory instead of Muslim."

During his October 9 debate with Hillary Clinton, Trump said, "The Muslim ban is something that in some form has morphed into a[n] extreme vetting from certain areas of the world." When a moderator asked him to "explain whether or not the Muslim ban still stands," Trump replied, "It's called extreme vetting."

In January, two days before he issued his original travel ban, Trump told ABC News, "It's not the Muslim ban, but it's countries that have tremendous terror….It's countries that people are going to come in and cause us tremendous problems." Those countries turned out to be Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, all of which had been excluded from the visa waiver program under the Obama administration because they were deemed sponsors of terrorism or havens for terrorists. The seven countries also happen to be overwhelmingly Muslim, with Muslims accounting for 91 percent to 99.8 percent of their populations.

After Trump issued his order, his adviser Rudy Giuliani, in an interview on Fox News, recalled that "when [Trump] first announced it, he said 'Muslim ban.' He called me up. He said, 'Put a commission together. Show me the right way to do it legally.'"

The revised travel ban, which Trump issued on March 6, dropped Iraq from the list of banned countries and exempted current visa holders as well as permanent legal residents. But it remains true that almost all the people affected by the ban, which imposes a 90-day freeze on new visas for visitors from the six countries, are Muslims.

Although more than 90 percent of the world's Muslims are not affected by the travel ban, Judge Watson says, "the notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed." That may be true, but the fact that Trump ultimately did not try to impose a literal and explicit Muslim ban does makes it harder to prove he is acting out of hostility toward Muslims.

"Any reasonable, objective observer would conclude…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," Watson writes. I like to think I am reasonable, although when it comes to Trump I am certainly not objective. I am inclined to view his policies with suspicion, and the travel ban in particular strikes me as illogical, unnecessary, and (especially in its first iteration) unfair. Yet I have a hard time believing that oppressing Muslims was Trump's main goal in issuing the order. His main goal was looking tough.

Based on the statements that Trump and his advisers have made, you might conclude that his executive order is a Muslim ban in disguise. But you also might conclude that it is not a Muslim ban at all. While his original idea involved a religious test, he dropped that proposal in favor of a less constitutionally problematic travel ban focusing on countries that are "compromised by terrorism." That policy may not make much sense, it may be both overinclusive and underinclusive, and it may not prevent a single terrorist attack. But that does not mean it lacks a secular purpose.

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  1. I don’t see how constitutionality can be decided by intent.

    1. That struck me too…. this statement:

      …therefore concluded that Trump’s order does not have “a primary secular purpose,” as required by the First Amendment’s ban on “an establishment of religion.” That conclusion seems dubious to me.

      It’s not dubious, it’s BS for the reason JB implied – the reasoning isn’t based upon the legal arguments before the court, but what the court presumes to be the real, yet unstated, motives of the WH.

      Note: it doesn’t work in reverse. If a domestic law was written with pure intentions but negatively impacted a protected group, the law would still be unconstitutional.

      Same here – if the legal arguments are on Trump’s side, and given executive control over foreign policy I think they are, then Trump wins regardless of motives. Just as the former hypothetical should lose regardless of motives.

      But as SCOTUS taught us with many recent rulings such as ObamaCare, it’s principals all the way.

      Never principles.

      We’re much too smart these days to fall for such antiquated notions.

      1. Who, whom?

      2. “the real, yet unstated, motives of the WH”

        They’re real, but hardly unstated. Where were you all last year?

    2. Maybe it would have been better if the judge pointed out that such a broad restriction of immigration is not an enumerated power in the Constitution. Therefor the administration should also have to meet the requirements of the “Necessary and Proper Clause”.

  2. Can we reverse the ruling that said to ignore that Obama said it was a penalty and not a tax?

    1. The statement “the penalty is not a tax” isn’t a manifestation of intent to discriminate against a suspect class, but nice try.

      1. How is a travel ban against 7 specific countries intended to discriminate against a ‘suspect class’ when the vast majority of Muslim’s aren’t from those 7 countries? Genuinely curious how you arrive at that conclusion based on the actual order itself rather than what comes out of the Pontificator of the United States idiot mouth.

  3. U.S. District Judge Derrick Watson is an embarrassment to the law for which he supposedly defends. We already know that judges let the emotions get the best of them when they make decisions but when that happens they at least TRY and defend their position from a legal standpoint.

    Judge Watson has absolutely zero legs to to stand on in his ruling from a legal standpoint and he and everyone else knows it. It’s a very very very bad not good at all scenario when Judges stop making decisions based on the law at hand and start ruling from emotion.

    1. He seems to be throwing a fit that the Trump administration did not give up on this but took his original opinion and took out the aspects that violated his take on religioys discrimination.

  4. Good article Jake

    So would requiring visas and vetting also be wrong per the logic of the judge? It seems he opened the door to anyone who wants to travel here can because the original plaintiff of Hawaii citizens said this stressed them out.

  5. How can it be a Muslim ban if not all majority-Muslim countries are banned?

    1. Indeed, approximately 1 billion Muslims from countries other than these 6 are not impacted at all, or at least no more than non-Muslims from any countries other than those 6.

    2. Indeed. It’s worth asking the left what their real beef with this is since their stated reason is such clear and utter nonsense. It boggles the mind how the media can sell this as a Muslim Ban. Did we stop immigration from India, for example? No? Why not? There are a whole lot of Muslim’s in India, after all.

      This is a clear example of media bias and propaganda. It’s sickening on that aspect alone. I honestly don’t know how I feel about this executive order. I’m not a fan of EO’s in general, but the left certainly can’t say that’s their justification. They love centralized command and control, as does the right at this point. If anything I would expect them to agree on this.

      The only conclusion I can come to is that they are simply against it because it’s Trump. Period.

  6. Judge makes purely political decision that invents new legal concepts like the idea that the First Amendment extends to the whole world and that judges should examine a law based upon a politician’s statements, when convenient, and Reason says ‘it’s a toss up’.

    Pretty silly argument overall

    1. Retract the last portion of this comment. Skimmed through article at first. Misinterpreted the conclusion

  7. Context matters. Particularly when the basis for the travel ban is so tenuous to the actual effect of the ban. The basis is purportedly to make the US safer. Jacob is correct: the true purpose is to look tough and throw some red meat to the base. The judge saw through this gamesmanship. WakaWaka argues that the judge is extending the 1A to the whole world. Nope. He’s saying 1A “trumps” bogus rationales to try to do something the Founders expressly said the government must not do. 1A says “prohibiting free exercise” of religion is a no-no. Plenty of case law supports looking past the words at the intent and reasonably foreseeable effect of the government action. Sorry AlmightyJB. Check out VRA for the last 40+ years.

    Maybe Trump should direct his travel ban where the problems are: ban travelers from terror hotspots like Afghanistan, Pakistan, Iraq, Syria, Turkey, France, the Netherlands, Florida and California. Seven countries (and two states) that have seen large numbers of civilians killed through random acts of terror.

    Benjamin Franklin said it:Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.

    1. Those countries are unstable sans iran with significant jihadi presence. Saying it is pure theater seems dishonest

      The rationale was laid out in the eo as well

    2. Sorry, but your argument boils down to little more than emotional theater. Ironic, but all irrelevant.

      Seriously, the lawshouldn’t care if the point was safety or just to appear to be doing something or just because they thought it was funny.

      Motives behind specific EOs have zero relevance to any legal proceedings.

      The question to the judge is simple: do our laws allow this?

      Not: do people like the judge disagree with the unstated and unprovable reasons they assume are behind this?

      If they continue to make decisions toys way, the entire rule of law is weakened.

      As such, your torturous logic to blame Trump isn’t illuminating to whether we should do this or whether legally the WH can. It only illuminated your biases, nothing more.

      1. Is your argument actually that intent isn’t applicable to the law? What law school did you go to again?

        1. What intent is the one to use? A comment he made in 2015?

          The problem is it isnt a muslim ban by any stretch. It is a country ban

    3. Absolutely, and while the context-dropping in the article is the main hole in its argument, the context-dropping in the comments section is insane. Trump directly, in no ambiguous terms, writes out a full, formal, detailed press release calling for a ban of Muslim travellers. People are acting like this was just some insensitive remark made by a frequently tactless man as an informal aside or at best a tweet. It was a 200-word edited official press release. He repeatedly reinforces his support for a Muslim ban over the coming months, and by credible accounts continues to right up to his original EO. An EO that was an absolute nightmare, which even blocked legal residents from entering.

      The biggest bit of context dropping omits the obvious: Trump is fully capable of creating _more than one_ EO. Saying it’s “not a Muslim ban, because it doesn’t ban all Muslim countries” is specious. It’s clear from not just his stated intent, but the language of the EO itself (especially the sec. 11, centred around reporting data using language obviously chosen to give special weight to Islamic violence) its intent is to single out a religion. They’ve made a broader effort to redefine terms, especially the catchall “terrorism”, to over-report violence perpetuated by Muslims.

      1. 90 percent of muslims arent affected while green cards and current visa holders are exempted from these countries. It just suspends granting visas. If the state dept can grant them, why cant they choose to stop for a period?

        Calling it a muslim ban is dishonest looking at content and the law specifically called out.

        1. When someone says “I’m going to ban Muslims”, then writes an EO banning Muslim-majority migration and suspending refugee programs, it’s dishonest to call that a Muslim ban? He literally called for a ban on Muslims.

        2. Sure they can “stop for a period.” Maybe they should. BUT, they can’t do so in a manner that is contrary to the Constitution. That’s what this debate should be about. Not the _ability_ of the President to close the borders. It’s like “all or nothing.” You can’t filter on “country” (wink, wink) when those countries align with a clearly stated intent (yes, intent does matter) to discriminate unlawfully. The patchwork of countries cited in the EO totally gives lie to any serious intent to “protect America.”

  8. 1. There is no ban of anyone. Look up the definition of ban. There is a 90 day delay. Sort of like the IRS and conservative charities.
    2. The order is not directed at Muslims. The majority of Muslim countries, and the majority of Muslims regardless of country, are not affected.
    3. Ergo, ipso facto, henceforth thereunto, and all that legal jazz, the judge needs a padded room for an office.
    4. Likewise, this article ignores a bunch of facts.

  9. “a reasonable, objective observer … would conclude that the Executive Order was issued with a purpose to disfavor a particular religion”

    “A reasonable, objective observer would conclude that the temporary restraining order was issued with a purpose to favor a particular religion, in spite of its stated, religiously neutral purpose.”

    1. Bravo!

  10. The “religious freedom” aspect of this is just plain stupid.

    Yes, the ISIS, Al Quaeda and Taliban types of the world claim to be acting in the name of a religion. But they are acting as political entities with military arms. And they have declared war on the United States. No, I’m not talking about metaphorical war, or some implied claim. They actually, literally declared war on The United States of America.

    This bizarro-world interpretation of “religious freedom” means that we cannot defend ourselves against a military assault by a political entity based in religion. That’s just mind-numbingly stupid.

    Iran is based in Islam every bit as much as ISIS. Are we now saying that if Iran follows through on their various threats against “the Great Satan”, we can’t do anything about it?

    Or are we making some even more bizarre parsing, saying that it would be perfectly fine to blow up people from muslim countries, but it is illegal to deny those same people entry into the united states? So if a shooting war with Iran breaks out…. we can’t have any restrictions on travel from Iran?

    No? That’s not what we mean? Are you sure?

    Because we are actively in a shooting war with a bunch of the countries on that list…. as in we are killing people there right now. And we have been doing so for many years.

    I’m not claiming this is a coherent policy. But at least it makes a hell of a lot more sense than the claims of unconstitutionality.

    1. Furthering this “Muslim Ban” logic…. according to Politifact, the ban covers 12% of the worlds Muslims. That may be the prior ban, so the new one would be less.

      So if putting a temporary hold on travel from countries that have a majority of a particular religious or ethnic group is illegal discrimination based on religion, how could a travel ban ever pass muster?

      Lets say we decide to get into a big cold war with China for some reason. And they have tons of spies coming to the US…. Banning travel from China would hit like 90% of ethnic Chinese and probably way more than 12% off all Budhists. So we couldn’t do that because of the establishment clause? Huh?

      There are lots of regions that have dominant religions. So if we got into a war with India, or Indonesia, or anywhere that has religion…. no travel restrictions? Really?

      Come on, people. This one is a slam dunk. There’s no chance in hell this even skirts up against freedom of religion…. unless perhaps that religion is “being from a country that has religious based terror groups that are targeting the US”.

      1. Also GCs and current Visas are exempt…so it is just a pause of new Visas

  11. Here is what none of you are getting and what should be reported…..

    Both the Hawaii and Maryland Judge stated this:

    “If this Order was Executed by a different President it would have passed”

    Sadly, this was justifiably reported ONLY once on Tuesday in the media and was immediately squashed so we could not know the truth. CNN was asked about it and they broke to a commercial.

    1. Didnt know that. That is pretty bad justification then regarding the merits of actual order

  12. “While it is unlikely that the travel ban will have any noticeable effect on terrorism, courts generally defer to the president’s judgment in cases involving national security. The question is whether that deference should go out the window because of stupid stuff Trump said while running for president.”

    When the rest of the world has gone insane–including the world of libertarianism–Sullum and Doherty will still be there making rational sense of it all from a libertarian perspective. Nothing but respect!

    Yeah, I guess Trump Derangement Syndrome has finally reached the courts. The idea that executive orders can be stayed because of campaign rhetoric is ludicrous–and dangerous.

    1. P.S. We’ll never know if the travel ban prevents a terrorist attack, but we know that ISIS has used the flood of asylum seekers into Europe to perpetrate attacks there. Reviewing screening procedures is prudent.

      No reason to violate anyone’s First Amendment or due process rights.

      I’m sick of seeing people attack this order for being a ban on Muslims. The only thing that make me sicker is seeing people defend the executive order because they think it’s a ban on Muslims.

      It is not a ban on Muslims. It doesn’t violate anyone’s First Amendment rights or anyone’s freedom of religion, and now it doesn’t violate anyone’s due process rights either.

      There are a million things that are both bad policy and perfectly constitutional. If you can’t find anything unconstitutional about it, for goodness’ sake, don’t cry wolf. We need to save those arguments for when the government is actually violating the Constitution. If you’re against the travel ban, make legitimate arguments against it for being bad policy.

      Look at Sullum. He can be both intellectually honest without going all TDS. So can you!

      . . . whomever you are.

      1. Yea this one is what trump should have done from beginning

        Perhaps this will be a reminder to trump to tone down rhetoric

  13. Judicial authoritarianism

    Trump’s little trip to Andrew Jackson’s grave is a hint to Leftist apparatchiks that Trump knows how to deal with Judicial Authoritarians.

  14. As I have asked elsewhere, Obama campaigned on bankrupting the coal industry.

    Why were none of his regulations that attacked coal overturned by some hack judge because of his statements about his plans?

    1. Because coal is not protected by the constitution, religious freedom is. The grounds of this TRO are flimsy and will be overturned in a higher court, but that’s the reason

  15. The better question is why intent should factor into this at all. There are are only two questions that need to be asked. Does Trump have the authority to issue the order, and does the text as written violate established constitutional statute. Intent is irrelevant.

    Trump and his advisors can say whatever they want about the law they’d like to see passed, but if the actual order doesn’t accomplish what they would ultimately want, why does their ultimate goal matter?

    By introducing this dubious notion of interpreting all public statements as relevant to the history of legislation or executive action, instead of the action or language of the law itself, these judges are basically declaring that any elected official who is not deemed “pure of heart” by the judiciary can effectively be stripped of the powers of his elected office through nothing more than judicial fiat ? completely contrary to the democratic ideals that empowered him to begin with (and give the judge his authority, but whatever).

    The constitution as a document is meant to constrain the potential choices an electorate might consider when having to choose between a variety of options. It is not meant as a blank check for one political party to declare that there is only one acceptable outcome for any issue.

    If democratically elected officials aren’t given the leeway to make the decisions the people put them there to make, then we don’t have a republic anymore.

  16. Looking tough is not a valid secular goal, so we have to look at the secondary goal, which was to look tough by picking on politically vulnerable Muslims that it was expedient to pick on.

    Any judge who would extend the traditional benefit of the doubt to an executive branch headed by Donald Trump would expose itself as being far too naive to protect our rights.

    1. lolololololol

  17. law by feeeeeelllllzzzzz, what a progtard idjit

  18. I never could wrap my head around the idiocy of saying it’s a ‘Muslim Ban’ when 85% of the Muslim world aren’t from the countries in the travel ban. If it was a Muslim Ban, there would be a whole lot more than 7 countries on the list.

    I’m not saying I agree or disagree with the travel ban, but it seems like no one on the left is really being honest with what their problem is with the executive order. There are good reasons to be against it, but those never seem to be the one’s citied. Anyone else wonder why that might be?

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