Yesterday the U.S. Court of Appeals for the 4th Circuit upheld a preliminary injunction against President Trump's revised travel ban, concluding that the facially neutral executive order probably amounts to an unconstitutional "establishment of religion" because it was motivated primarily by anti-Muslim sentiment. The order "in text speaks with vague words of national security," says the majority opinion by Chief Judge Roger Gregory, "but in context drips with religious intolerance, animus, and discrimination." That context is much more ambiguous than Gregory suggests.
Ten judges, all appointed by Democrats, agreed that the injunction should stand. The three dissenting judges, all Republican appointees, argue that the majority improperly went beyond the text of the order, which suspends travel to the United States by citizens of six Muslim-majority countries, to consider statements made by Trump and his associates during and after his presidential campaign. "The danger of the majority's new rule is that it will enable any court to justify its decision to strike down any executive action with which it disagrees," says the dissent by Judge Paul Niemeyer. "It need only find one statement that contradicts the stated reasons for a subsequent executive action and thereby pronounce that reasons for the executive action are a pretext."
I find myself disagreeing with both sides in this case, which was brought by six U.S. citizens and lawful permanent residents with relatives in the targeted countries and three organizations that serve Muslims who want to visit or live in the United States. Niemeyer exaggerates the danger of considering a president's public statements about his own policies, while Gregory exaggerates the strength of the evidence provided by those statements.
The president has broad authority to decide which foreign nationals may enter the country. The Supreme Court has said an executive-branch decision to exclude a would-be visitor or immigrant should be upheld as long as it is based on "a facially legitimate and bona fide reason." The 4th Circuit reads "facially" as modifying "legitimate" but not "bona fide." Although Trump's travel ban is facially legitimate, the majority says, it is not bona fide, because there's "ample evidence" that Trump acted in "bad faith," that the national security rationale is a cover for religious discrimination. The dissenters read "facially" as modifying "bona fide" as well as "legitimate," meaning the courts have no business considering the evidence that the majority finds persuasive.
Either way, it seems unlikely that the plaintiffs will prevail when this case gets to the Supreme Court. Even if the justices agree to look beyond the text of the order, the evidence cited by the 4th Circuit is not enough to establish either that the reason for Trump's order is not bona fide or that the travel ban unconstitutionally discriminates against Muslims (two propositions that amount to essentially the same thing in the appeals court's analysis).
As a presidential candidate, Trump openly and repeatedly recommended "a total and complete shutdown of Muslims entering the United States," suggesting that "Islam hates us" and "we can't allow people coming into the country who have this hatred." According to the plaintiffs challenging the travel ban, Trump never really abandoned the idea of using religion to screen travelers. Instead he recast his ban based on religion as a ban based on national origin, at first vaguely referring to countries "compromised by terrorism" and eventually focusing on six (Iran, Libya, Somalia, Sudan, Syria, and Yemen). The executive order says these countries are particularly problematic because they sponsor terrorism or provide havens for terrorists and lack adquate vetting procedures for travelers. But the plaintiffs argue that as far as Trump is concerned, the most salient characteristic of these countries is that their populations are overwhelmingly Muslim.
That story is consistent with the public statements cited by the 4th Circuit. But so is another story: Trump reconsidered his rash campaign rhetoric and settled on a narrower, more defensible approach. The same statements that Trump's critics cite as evidence of subterfuge—e.g., "I'm talking territory instead of Muslim" or "The Muslim ban is something that in some form has morphed into a[n] extreme vetting from certain areas of the world"—can also be seen as evidence of substantive evolution in his position. After Trump's first executive order was blocked by the courts, he narrowed his policy further, clarifying that the travel ban does not apply to legal permanent residents or current visa holders, cutting the list of countries from seven to six, eliminating an indefinite ban on refugees from Syria, and striking a preference for refugees facing religious persecution.
As Niemeyer observes, "a candidate might have different intentions than a President in office." There is a big difference between the "Muslim ban" that Trump originally described and the policy he is currently defending, which has no religious criteria and does not cover the vast majority of Muslims (although the vast majority of people it covers are Muslims). In fact, Niemeyer notes, the plaintiffs conceded that if Hillary Clinton had been elected president and issued exactly the same executive order, it "could be constitutional." The question is whether Trump's past expressions of prejudice against Muslims preclude him from implementing a policy his opponent would have been free to adopt.
That policy may not make much sense, it may be both overinclusive and underinclusive, and it may not prevent a single terrorist attack. It may even be crafted more to create the appearance of making Americans safer than to actually reduce their already tiny odds of being killed by terrorists. But none of that means Trump's order lacks a secular purpose, which is the proposition that the 4th Circuit says the plaintiffs probably can prove.
"The government must show that the challenged action's primary purpose is secular," Gregory writes. But that cuts both ways. Even if Trump's thinking about national security is influenced by anti-Muslim bigotry, it seems unlikely that discomfiting Muslims, as opposed to looking tough on terrorism, was his primary purpose in issuing the travel ban. Neither motive is admirable, but only one is illegal.