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4th Circuit Exaggerates the Ambiguous Evidence Against Trump's Travel Ban

Which is more important to the president: hurting Muslims or looking tough on terrorism?

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White House

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.

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  1. Judges Opinions are based on judges opinions.

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  2. “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.”

    “Penaltax”.

      1. By that do you mean that in that case the judges saw thru Congress’s supposed penalty & saw they were actually enacting a tax in guise of a penalty? Which ruling I agreed with, BTW.

  3. The Sebellius decision should put to bed the question of the importance of what a politician SAYS in regards to legislation before passage.

    After all, we were guaranteed that Obamacare didn’t include taxes.

    That courts have also said that Hillary doing an identical order wouldn’t be a constitutional problem is evidence that we need a massive judiciary purge.

    1. The court didn’t say that, the American (selective) Civil Liberties (for some) Union said that in response to a question by the court. The ACLU also pushed back on the Republican healthcare legislation, which is bizarre for a supposedly non-partisan organization dedicated only to civil liberties. Derschowitz has written two pieces in the past month discussing how depressing it is that the ACLU has just basically become a left-wing mouth piece

  4. If the court is telling us that the same executive order with the same text would have been perfectly constitutional if it had been signed by Barack Obama, then Trump would be absolutely right to scream bloody murder about double standards . . . and isn’t that what they’re telling us?

    Are there any other cases in which something is only unconstitutional because of campaign rhetoric, or is this the only one?

    1. isn’t that what they’re telling us?

      Yes. They are ruling by feelz.

    2. I am aware of no such case at all. Courts are supposed to be guided by the text of the legislation, regulation or executive order they are interpreting. If the text says “X,” judges are not free to read any other meaning into it.

      1. Not when it comes to what things are named. Hence Roberts about the penaltax. He saw that everything about it acted as a tax, regardless of what the legislators said about its being a mandate. And he was right. Too bad that made it constitutional.

        1. it STILL did not make it consitutionial, as FedGov have NO AUTHORITY to meddle in medical, health, insurance, etc. It ain’t in there, boys, which means it remains to the States, or the People. So no massaging of that “law” can ever make it “legal”.

          One more niggle issue.. the Constitiution clealry states that ALL bills dealing with taxation MUST, and CAN ONLY, originate in the House. Thus Roberts, by declaring it a “tax”, and knowing it originated in the Senate, stealthily made the law contrary to the Constitution, but no one had the brains/balls to call them on it.

          A “nation of laws”? Yeah, my left foot.

          1. Good calls, good comment. One more issue. Congress called it a penalty because to call it a tax would be the first time a tax was EVER levied on INACTIVITY, and they didn’t think that would pass constitutional/court muster.

            1. All of it smacked of, ‘we will make this work’, and then justify, bend, spindle and stretch all other definitions, even when unstated or clearly held contrary by the respondents themselves.
              They still couldn’t make it legal, except by raw fiat.
              To make it a tax, as the US insisted it was, would mean to tax an inactivity. So the congress named it a penalty, but the court knew that wouldn’t fly, so they named it different than the proponent US litigant themselves were calling it.
              Then having made it a tax, that was further down the rabbit hole, because only the House could make a tax law.
              Like whack-a-mole, as they tried to tip and tuck here, a new fissure would start somewhere else.
              That is what happens when you try to force-fit socialist laws into a mostly libertarian Constitution.

    3. Are there any other cases in which something is only unconstitutional because of campaign rhetoric, or is this the only one?
      The legal concept you’re looking for is “animus is not a constitutional basis for legislation”.

      From a quick search, I think the earliest SCOTUS case where it showed up was U.S. Dep’t of Agric. v. Moreno (1973), but it’s been used to various degrees in many civil rights cases since then.

      What it boils down to is that an action that cuts against a group of people might be acceptable if it’s neutrally intended (that is, it wasn’t meant to harm them) for a legitimate government purpose, but if it’s shown that the legislation was specifically made to harm them for an illegitimate government purpose (and “we don’t like their kind” is not legitimate), then it’s unconstitutional.

    4. This does not have to apply only to EOs. It can apply to legislation, too. If Congress passes a bill that had an adverse effect on some group after some members have indicated some antipathy toward this group, the courts have reason to strike down the bill. It’s irrelevant that the bill itself says nothing with regard to said group.

  5. Someone should point out, too, that if we’re going to talk about campaign rhetoric, we should look at everything Trump said–not just the things the judges don’t like.

    Here’s Trump in his nomination acceptance speech:

    “Lastly, we must immediately suspend immigration from any nation that has been compromised by terrorism until such time as proven vetting mechanisms have been put in place”.

    http://tinyurl.com/y82oexzt

    That’s a campaign promise!

    And it’s perfectly consistent 1) with the executive order under review and 2) with the Constitution.

    No mention of Muslims there. It’s about countries that have been identified as being a terrorist threat–and only until vetting mechanisms are put in place.

    How can the court interfere with a President keeping a perfectly constitutional campaign promise?

    1. I may have left off a close italics tag.

      I’m just sayin’.

      1. And you call yourself a web developer!

        Just kidding. Our judiciaries’ increasing partisanship is worrying. The commun…I mean, progressive infiltration into academia two generations ago seems to be bearing fruit.

        1. Just the fact that dem appointed judges went one way, and pub appointed judges went the other is very telling in itself. Please don’t ever tell me the judiciary is “non-partisan”.

    2. Except from a national security perspective the list (original seven or eventual six) is shit. Those countries aren’t and weren’t the most likely to export a terrorist our way.

      1. but they ARE nations least likely to have systems in place to allow a reasonbly fast and accurate “vetting” of any given individual that may be seeking to come here. Saidu Arabia may also be a huge source of troblemakers, but they also have data bases, police, records, criminial reporting systems in place that capture and store records of one’s history that may well uncover dubious histories of that individual… and THIS is one of the key considerations of Trump and his advisors as they selected their criteria.
        Back to this, from above: “any nation that has been compromised by terrorism until such time as proven vetting mechanisms have been put in place”. Note well, EVERY ONE of the named six are nations who DO NOT HAVE “proving vetting mechanisms” in place. And THIS was the reason they were on the list.

        How many other “majority moslem” nations are there on this planet? FAR MORE than only the named six.

      2. That doesn’t matter. It’s Trump’s call. Since when are Presidents not Constitutionally allowed to make bad calls? When you are President, I’m sure we’ll all support your right to write up any EO regarding foreign nationals you want even if we don’t like it.

  6. 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.”

    HATE CRIME!

  7. My recollection is that the Obama administration named the seven countries (Trump lists six) that didn’t have proper vetting mechanisms in place and implemented tougher vetting. Trump wanted a six month moratorium in order to study those vetting mechanisms with a view towards amending them. So, five months in, does Trump have those proposed changes ready and can’t he just implement them immediately as Obama did? I know, having an R or D after one’s name may change the decision though I’m not at all certain the Constitution discusses this distinction.
    {If Trump’s guys don’t have the proposed changes almost ready to go, then that would certainly indicate this whole thing was a big charade from the beginning.}

    1. He needs to take the to the Supreme Court in any case.

  8. Can a Muslim be racist?

    1. Of course not. For you to even ask such a question is racist. Authorities have been notified.

  9. It really is almost a farce at this point. Eventually some crackpot like Kim will attack the US and we’ll be too paralyzed with fear to retaliate because racism or some other ungoodfeel.

    1. That’s your takeaway? Is it that the judges are snowflakes who don’t want to appear racist?

      I don’t think this is good jurisprudence, but they have a comprehensive argument about intent.

      1. they have a comprehensive argument about intent

        Bullshit. If Trump wanted “a total and complete shutdown of Muslims entering the United States”, he could do better than listing six countries that don’t comprise even half of ’em.

        1. Well, no. Everything we’ve heard about the travel plan, from it’s origins, to how it was rolled out, to how it’s been defended, amended and so-on, kind of shows that they really couldn’t have. They really are that incompetent.

    2. Didn’t Trump say something bad about North Koreans once? This means we can’t do anything about it.

  10. Do you know what bothers me about this? It’s so fucking boring. Really, how many times do we have to go over this shit? That’s too many words Jacob. I’m not reading that but I like your name. Remember and this is crucial to understand, Trump sold this stupid travel ban as an ***emergency**** order that was needed right away to save ourselves from a broken screening process that Trump would fix but he needed space, time, the travel ban to fix the immigration screening. Well time sure has passed and I guess the screening process is fixed so the jig is up, I’m calling bullshit on this emergency travel ban. Go ahead and draft a new one but this one is finished.

    1. The order is completely unnecessary and is just for optics. At the same time this is important now, because our court system has clearly become more politicized than we previously believed

      1. Not in Gods eyes–of course, it’s His followers Trump’s trying to keep out, right?

        He’s the one they get all splodey over.

      2. Trump needs to go through with this now to make the point that the courts don’t get to dictate national security measures.

  11. “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.”

    Yes, god forbid an honest politician. Is his argument that it’s just *really* too much to ask that politicians be consistent? Because if you’re being honest, it’s not hard.

  12. Yes, Trumps ban was silly, pretty much political optics to claim he was keeping his campaign pledge.

    At the same time, it is absolutely Constitutional.

    I would have been a lot more impressed had Trump made the order cover 4 years and ALL Muslim countries.

    But admittedly that he’s even tried to minimally keep his campaign promises has surprised me.

    I’d still vote for him again if the choice were him or Hillary (even over the 2 non-libertarian “libertarian” candidates”.

  13. 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.

    Except that Giuliani explicitly stated that they were going to try to disguise the Muslim ban as a country ban. Did you just forget about that?

    1. Giuliani is President?

      Who knew?

    2. Who cares? Giuliani isn’t even the White House gardener.

  14. The lower courts are ignoring the Supreme Court precedent that the courts must rule that a law does the OPPOSITE of what the politician says in speeches!

  15. I hope SCOTUS rejects this case for being a political question. No good precedent can come from making a decision on this.

  16. SCOTUS needs to take this case and dismiss it with prejudice on the grounds that this lower court had NO JURISDICTION to take up this matter. READ Art 3 Sec2 Par 2 of the Constitition.. since Trump is a defendant, and in other similar cases STATES are parties, ONLY SCOTUS can legally have taken this case up. Its issues, grounds, etc, are meaningless.. it never should have been entered upon the District COurt’s record as a case. ONLY SCOTUS can take these cases up. They need to squash the pissant lower courts meddling in THEIR bidniss. Dress down the preening prancing oportunists in black pyjamas who usurped authority not theirs to even take these cases up. Then Trump can get on with his work of BEING president.

  17. Now, if the president has some intel which is highly classified and can’t be devulged (we’ll assume it won’t be leaked) and this causes him to write an EO that bans travel from a Muslim majority country, he will be prevented from doing so. The courts have no business deciding what involves national security and what does not. The campaign statements of a presidential candidate are being used irresponsibly to prevent the POTUS from doing his job.

    1. I should clarify that this is in regards to foreign policy.

  18. Can a religion declare war?

    Can a sect of a religion declare war?

    Can such a declaration be recognized by the US government?

    1. A country can have a much higher probability of producing terrorists, so there is no reason not to block immigration from that country until their known terrorist groups go away. I don’t care if they’re refugees or not. Europe can take them if they want. We want talented, smart immigrants not ones full of terrorists hiding amongst their ranks. That said Trump didn’t block Saudi immigrants so clearly he is biased and his EO blocked by the judiciary until it’s fair and blocks immigrants from all countries known to have high levels of religious fanaticism aimed at destroying the west and western values.

  19. Republicans blew it several years ago by not using this strategy against Obama. They could have sued to stop the EOs on immigration, such as the imposition of the DACA rules without congressional authorization and the issuing of work permits as being beyond the constitutional powers of his office and then saying that the “bona fides” of the orders were suspect because earlier Obama had stated publicly that he did not have the power under the constitution to do it.

  20. I’m all for controlled immigration and think it should be expanded. I have no problem with banning people from countries that are well known for terrorist recruiting, but that includes Saudi Arabia as well. Trump’s list only half way makes sense. If anything that’s why an injunction against it is feasible.

  21. This standard of legal proof that the 4th Cir. used, smacks very much of the same logic used to justify a ‘living Constitution’.
    Both of them assess the law, not on what the law actually says in words, but rather what they think was the animus behind what the law intended to be.

    Ridiculous in both cases.

    As said, even if Trump’s motivations were discriminatory, if the wording and scope of the law is not, then that law is valid.

  22. Exaggerates? That’s a strange way of spelling “LIES”.

    1. Yeah, and it is one of the finest matchbox models ever produced.

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