The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In a 10-3 decision today, the US Court of Appeals for the Fourth Circuit has upheld a trial court injunction against President Trump's revised travel ban executive order, temporarily barring citizens of six Muslim-majority nations from entering the United States. The text of the ruling is here.
Much of the court's reasoning follows that of the two lower court rulings against the revised ban: the president's order is unconstitutional because its supposed national security rationale is a pretext for the true purpose: discrimination against Muslims. Like the trial court rulings, Chief Judge Roger Gregory's opinion for the Fourth Circuit relies on the President Trump's many campaign statements advocating a "Muslim ban," as well as more recent statements by both the president and his advisers indicating that the first and second travel ban orders were outgrowths of this campaign agenda.
Even when Trump switched from an explicit ban on Muslims to a territorial focus, he avowed that the new proposal was not a rollback but an "expansion" of the old one. Significantly, as the court notes, both the president and top advisers emphasized that the second travel ban order (adopted after a series of court defeats for the first one) was merely a "watered down" continuation of "the same basic policy purpose" as its predecessor. "These statements," Judge Gregory writes, "suggest that like EO-1, EO-2's purpose is to effectuate the promised Muslim ban, and that its changes from EO-1 reflect an effort to help it survive judicial scrutiny, rather than to avoid targeting Muslims for exclusion from the United States."
Because the statements by the president and his advisers are so extensive and clear, "[w]e need not probe anyone's heart of hearts to discover the purpose of EO-2, for President Trump and his aides have explained it on numerous occasions and in no uncertain terms." Ultimately, the revised order has most of the same flaws as the original version.
For reasons I outlined here, campaign statements are entirely legitimate sources of evidence in cases of pretextual discrimination. Presidents and other politicians generally make substantial efforts to keep major campaign promises, and those promises are at least as probative of their intentions as statements made while in office. To ignore campaign statements in pretextual discrimination cases is to close judicial eyes to obvious political realities. In this case, as the Fourth Circuit notes, campaign statements are particularly relevant "because they are closely related in time, attributable to the primary decisionmaker, and specific and easily connected to the challenged action." The court also rejects the government's argument that taking account of Trump's campaign statements would allow courts to give weight to any vaguely religious statements ever made by government officials:
For a past statement to be relevant to the government's purpose, there must be a substantial, specific connection between it and the challenged government action. And here, in this highly unique set of circumstances, there is a direct link between the President's numerous campaign statements promising a Muslim ban that targets territories, the discrete action he took only one week into office executing that exact plan, and EO-2, the "watered down" version of that plan that "get[s] just about everything," and "in some ways, more…."
For similar reasons, we reject the Government's argument that our review of these campaign statements will "inevitably 'chill political debate during campaigns….'"
Not all -not even most-political debate will have any relevance to a challenged government action. Indeed, this case is unique not because we are considering campaign statements, but because we have such directly relevant and probative statements of government purpose at all.
I would add that the "chilling effect" argument makes little sense in a context where the supposedly "chilled" speakers do not suffer any loss of liberty or other individual rights, but merely limitations on their ability to wield the coercive powers of government while serving in public office. Any inquiry into the discriminatory motives of government officials might potentially "chill" their speech, because speech indicating a discriminatory motivation is inevitably going to be relevant evidence in such a case. To accept the "chilling effect" argument would give the government a blank check to adopt ostensibly neutral policies whose true purpose is unconstitutional discrimination.
As the Fourth Circuit points out, pretextual discrimination cases arise in many contexts, including cases where facially neutral policies are adopted for the purpose of targeting groups on the basis of race, gender, and ethnicity, as well as religion. In all such cases, decision-makers' statements may be probative evidence of their true purposes. If such scrutiny is often legitimate in cases where courts are evaluating legislation passed by Congress or a state legislature, they are even more defensible in this case. "This analysis is even more straightforward here," Judge Gregory notes, "because we are not attempting to discern motive from many legislators' statements,… but rather are looking primarily to one person's statements to discern that person's motive for taking a particular action once in office."
The government has argued that campaign statements should not be considered because they occurred before the president took the oath of office, after which he has a different set of official responsibilities than before. But surely those statements are still relevant to how seriously he takes those responsibilities, and the purposes for which he intends to wield his power. The president does not become a completely different person on the day he takes office. Like all of us, he is often influenced by his previous commitments. Indeed, acting on those commitments is one of the main reasons why politicians run for office in the first place.
Like earlier lower court rulings against Trump's orders, the Fourth Circuit decision includes a strong response to the claim that it doesn't discriminate against Muslims because it does not cover all Muslim-majority nations, but just some of them. It also emphasizes that the extreme weakness of the supposed national security rationale for the order reinforces the conclusion that the true purpose is discrimination. Judge Thacker's concurring opinion (which relies only on post-inauguration statements as evidence of motive) has a more extensive discussion of these weaknesses, and how they undermine the government's case.
Much of the government's defense of the order focuses on the so-called "plenary power doctrine," which allows the federal government to adopt policies in the immigration field that would be unconstitutional in virtually any other context. The court acknowledges the doctrine, but emphasizes that recent Supreme Court decisions indicate that there are limits to it:
But in another more recent line of cases, the Supreme Court has made clear that despite the political branches' plenary power over immigration, that power is still "subject to important constitutional limitations," Zadvydas v. Davis, 533 U.S. 678, 695 (2001), and that it is the judiciary's responsibility to uphold those limitations…. These cases instruct that the political branches' power over immigration is not tantamount to a constitutional blank check, and that vigorous judicial review is required when an immigration action's constitutionality is in question.
While a 1972 Supreme Court decision holds that courts must defer to the government in a case where an immigration policy is "facially legitimate and bona fide," the Fourth Circuit emphasizes that "the 'bona fide' requirement concerns whether the government issued the challenged action in good faith." Here, good faith is lacking because extensive evidence shows that the official rationale for the order is a pretext for anti-Muslim discrimination.
Like the trial court decision it affirms, the Fourth Circuit bases its discrimination ruling on the Establishment Clause of the First Amendment. In my view, the Free Exercise Clause would be a stronger basis for the decision. But the court's analysis is consistent with Supreme Court Establishment Clause precedent.
In a concurring opinion joined by one other judge, Judge Barbara Milano Keenan argues that the president also lacked statutory authorization for his order, in addition to violating the Constitution. Judge James Wynn also wrote a concurring opinion arguing that the president lacked statutory authorization, albeit for different reasons than Judge Keenan.
Dissenting opinions by three judges endorse most of the government's arguments. The dissenters include all three Republican-appointed judges who heard the case (two others recused themselves). Chief Judge Gregory, who wrote the majority opinion, was originally nominated by President Bill Clinton. When his nomination stalled in the Senate, he was renominated by by George W. Bush, as part of an attempt to strike a deal with Democrats. I hope this does not presage a growing partisan or ideological split over this issue in the judiciary. Conservatives, no less than liberals, have good reason to support strong judicial scrutiny of seemingly neutral government policies whose true purpose is religious discrimination. But such partisan/ideological division may well grow.
Like most experts, I think it is quite likely that this case will ultimately end up in the Supreme Court. Today's decision probably will not be the end of the legal battle over the travel ban. It is nonetheless an important victory for opponents of the travel ban. Like earlier judicial rulings against the second order, the Fourth Circuit ruling shows that the revised order is a lot more vulnerable to legal challenge than many commentators initially thought.
UPDATE #2: I have made a few minor additions to this post.