Travel Ban

Don't Let Trump's Travel Ban Become a Road Map for Discriminatory Policies

If the Supreme Court rules that Trump's campaign statements cannot be used to prove that his travel ban order was an attempt to discriminate against Muslims, it could create a dangerous precedent.


Donald Trump during the 2016 presidential campaign.

One of the main points at issue in the travel ban case that will be argued before the Supreme Court on Wednesday is whether courts can use President Donald Trump's campaign statements as proof that the true motive for the policy is discrimination against Muslims. The administration and other defenders of the travel ban argue that judges are not allowed to consider such evidence. If this theory prevails, it would set a dangerous precedent for other discriminatory policies.

The Supreme Court has long held that seemingly neutral policies can be invalidated if the motive behind them is discrimination on the basis of race ethnicity, sex, religion, or some other classification forbidden by the Constitution. Under that standard framework, the travel ban should be toast. During the 2016 campaign, Trump repeatedly called for a "Muslim ban" that would bar Muslims from entering the United States. When he eventually switched to a a policy of targeting citizens of Muslim-majority nations rather than individual Muslims, Trump repeatedly equated this "territorial" approach with his original policy, and even called it an "expansion" of the Muslim ban he promised earlier. The "territorial" approach is, of course, what ultimately became the travel ban executive order, now in its third iteration.

The newest version, currently before the Supreme Court, is substantially similar to its predecessors. Indeed, it is actually worse. Unlike its predecessors, Travel Ban 3.0 bars citizens of several Muslim-majority nations indefinitely, not merely for 90 days. Claims that Travel Ban 3.0 is based on information-sharing concerns fall apart under scrutiny, because the list of countries included and excluded in the ban does not actually track their information-sharing practices. The inclusion of North Korea and a few Venezuelans in the ban also makes little difference, because it bars only a tiny number of people who might have entered otherwise. Both the information-sharing theory and the partial inclusion of these two non-Muslim nations are obvious smokescreens.

If Trump's campaign statements are fair game, the evidence of unconstitutional discriminatory motive becomes overwhelming. Imagine a head of a government agency who repeatedly states that he wants a ban on hiring African-Americans. After months of advocating that policy, he adopts a "territorial" approach that bars the hiring of residents of several majority-black neighborhoods. He repeatedly emphasizes that the new policy is essentially similar to the old (an "expansion" of it, even), and has the same purpose. No one could seriously doubt that the "territorial" hiring ban is unconstitutional. It would not matter that it does not exclude all black applicants, or that a few applicants of other races would also be excluded, because they live in the covered areas.

If the Supreme Court rules that campaign statements cannot be considered, that would create a very dangerous precedent. Politicians could openly advocate discriminatory policies during the campaign, then rely on more careful and euphemistic phrasing after they take office. On the campaign trail, they can openly say they want to target blacks, Muslim, atheists, Evangelical Christians, or some other minority group. Afterward, they can adopt a policy targeting some seemingly neutral characteristic that closely correlates with membership in the group in question. And, after taking office, they can stick to carefully scripted official justifications for their actions that elide the true purposes.

Prof. Josh Blackman, a leading academic defender of the travel ban's legality, suggests we need not worry, because "I don't know that we'll ever have a president again like Trump, who says such awful, awful things on a daily basis." But if Trump's political strategy of appealing to xenophobia and anti-Muslim bigotry is perceived as a success, we can expect to see other politicians imitate it. Moreover, there is a long history of politicians exploiting racial, ethnic, and religious prejudice. It would be naive to assume that such tactics are entirely a thing of the past, or will be once Trump leaves the political scene. If anything, a more disciplined and skillful politician might able to use the Trump "road map" more effectively than Trump himself. Once he gets into office, he might be more careful about what he says and Tweets.

The Trumpist right is not the only side of the political spectrum capable of adopting facially neutral policies intended to target minority groups its base dislikes. In oral argument at the Masterpiece Cakeshop case argued before the Supreme Court this fall, Justice Anthony Kennedy highlighted statements suggesting that Colorado officials were at least partly motivated by animus against conservative Christians when they adopted policies requiring bakers to prepare wedding cakes for same-sex marriages they object to on religious grounds. If the right can effectively target Muslims for discrimination, elements on the left could well use similar tactics to go after religious groups they dislike.

It is precisely because racial, ethnic, and religious discrimination are often popular, that the Constitution had to be amended to forbid such policies. Otherwise, we could depend on the ordinary political process to prevent them. We should not put our faith in the good will and probity of politicians. As James Madison famously warned, "enlightened statesmen will not always be at the helm." Trump is not the first distinctly unenlightened person to get into power, and he is unlikely to be the last.

Defenders of the travel ban argue that campaign statements must be excluded either because they are not official acts, or because they may be unreliable, given that politicians often lie during campaigns. Neither theory makes much sense. In determining whether unconstitutional discrimination was the true motive for a seemingly neutral policy, the Supreme Court requires judges to make "a sensitive inquiry into such circumstantial and direct evidence of intent as may be available," including "[t]he historical background of the decision" and "[t]he specific sequence of events leading up to the challenged decision." It is blatantly obvious that Trump's campaign promises qualify as "direct evidence of intent" and they are certainly part of "specific sequence of events leading up to" the travel ban policy. Indeed, the policy would never have been adopted without them. The important question is not whether these statements are official but whether they shed light on the decision-maker's motives. In the travel ban case, it is obvious that they do.

Politicians do indeed sometimes lie during campaigns. But, historically, presidents actually have tried to keep the vast majority of their campaign promises, especially the high-profile ones, like Trump's Muslim ban. Moreover, if the possibility of lying is a justification for excluding politicians' statements as evidence of motive, the same reasoning would justify excluding what they say after they take office, as well. After all, sitting presidents often lie too. As in the many other legal cases where the outcome turns in part on motive, judges must sift the relevant evidence to determine how credible it is.

Perhaps it is not politicians generally, but only the president, whose campaign statements must be excluded from judicial consideration. Otherwise, we might prevent him in acting on important national security issues. But nothing in the Constitution indicates that the president should be held to a lower level of scrutiny in discrimination cases than other government officials. Indeed, it would be perverse to create a special, ultra-deferential, standard of review for the most powerful office in the land, one whose abuses are likely to be particularly dangerous. A long history of cruelly abusive policies also shows that it is dangerous to give special deference in immigration and national security cases. An amicus brief I coauthored on behalf of a group of constitutional law scholars explains in more detail why the First Amendment's ban on religious discrimination constrains immigration policy no less than other exercises of federal power.

Blackman and the administration also claim we must exclude Trump's campaign statements because considering them would give courts a "green light to parse campaign statements and the like, [and] this could potentially hamstring not just this president, but also future presidents." That concern is in some tension with his prediction that future presidents are unlikely to "say…such awful, awful things," as Trump does.

Regardless, concerns about "hamstringing" legitimate government policies are greatly overblown. Under the longstanding discriminatory motive framework required by the Supreme Court, striking down a policy requires more than merely proving that the decision-maker has made bigoted statements. Rather, there must be a clear connection between the statement and the policy. As a lower court decision striking down Travel Ban 2.0 put it, Trump's travel ban statements are relevant "because they are closely related in time, attributable to the primary decisionmaker, and specific and easily connected to the challenged action." Federal courts have used such standards in assessing pretextual discrimination cases for decades. It has not resulted in the "hamstringing" of legitimate government policies, or anything close to it.

If anything, assessing presidential motivations is likely to be less problematic than assessing those of legislative or administrative bodies, as courts routinely do in other cases. In the former situation, the the relevant motives are those of a single person. It is much harder to assess the motives of a multi-member group, in which some participants have different agendas than others.

Even when there is proof of relevant discriminatory motive, the government can still justify the challenged policy if it can show it had legitimate purposes that would have led to its adoption, even in the absence of unconstitutional ones. In the case of the travel ban, such a showing is highly unlikely, because the security rationale for the policy is laughably weak, to the point where the ban undermines security more than it enhances it. But this part of the legal framework undermines claims that a defeat in the travel ban case might somehow prevent Trump from ordering air strikes against Muslim terrorists or imposing sanctions on Syria and Iran.

Ultimately, there is little basis for fears that judicial consideration of Trump's campaign statements will unduly inhibit legitimate government policies. There is far more reason to fear that a victory for Trump would create a road map for future discrimination.

NEXT: Flashback: The Supreme Court Turns Back the Parade of Horribles

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  1. I disagree with the conclusions in this post, because judges divining discriminatory intent is actually the danger that must be guarded against.

    In fact, the only non-dangerous way to rule in favor of the plaintiffs is to say the legislative grant of discretion to the executive was unconstitutional.

    1. There’s no divination necessary here. The discriminatory intent was stated openly and explicitly multiple times.

      1. This time, maybe so, to some, maybe most. Next time, maybe less so, to fewer people. Maybe sooner or later, it will be some offhand comment that someone in power doesn’t like. That is the danger. Diving intentions is the rule of men, not the rule of law.

        Two recent cases in point — the guy in Scotland who made a video of his dog giving the Nazi salute, and the rap song tribute to a hit and run victim, which was his favorite song apparently, but also offended a cop, judge, and various prosecutorial people in between. Neither had any intention of offending. One was a joke, the other a tribute.

        How’d you like those people deciding what the next case’s intent was?

        Or to put it another way, Hillary’s intent with her email server was surely not to let anyone sneak into it; how’d you like it if a Trumpista decided otherwise?

        1. “How’d you like those people deciding what the next case’s intent was?”

          The purpose of the constitutional restriction is to prevent those people from deciding the next case.

      2. TK-421: “The discriminatory intent was stated openly and explicitly multiple times”

        If you consider campaign hyperbole to be the same thing as intent, I guess so.

        But court decisions against the administration’s order do require courts to divine actual intent, which they are ill-equipped to do and which themselves come wrapped in political sentiment.

        They disallow a policy that would be allowed if — say — candidate Trump had merely used somewhat softer language. I’m not impressed by the courts’ reasoning. President Obama banned immigration from Iraq for six months. President Trump stopped immigration from a series of countries for 90 days.

        1. “President Obama banned immigration from Iraq for six months.”

          No, he did not, as you can discover by reading literally any professional fact-checker on this issue.

      3. If the campaign hyperbole is enough for a court to rule the actions of the executive unconstitutional then why can’t we sue politicians for violating their oath of office?

      4. “There’s no divination necessary here. The discriminatory intent was stated openly and explicitly multiple times.”

        The problem is that this precludes the President Changing his mind, or choosing poor words, or erupting in a fit of anger saying things that we don’t sincerely mean, like we all have done.

        I would say this has nothing to do with anything other than Judges grabbing power under the pretense of Trump being Trump, the guy who was fairly and legally elected.

    2. I see no need to say the legislative grant of discretion to the executive was unconstitutional. 8 USC 1152 already states, in essence, that no immigrant may be discriminated against based on race, religion or national origin, which would seem to go a good way towards explicitly limiting that grant of discretion. But more broadly, virtually _any_ grant of discretion can be used in an unconstitutional fashion, but that doesn’t make it unconstitutional. Police officers have the discretion to decide which drivers to pull over of the ones they see disobeying traffic laws; if they were to, say, pull over every black driver going 1mph over the limit while letting every white driver get away with whatever they felt like, that would almost certainly be unconstitutional but that wouldn’t make prosecutorial discretion unconstitutional by its nature, just this particular exercise of it.

      1. There are conflicting portions of the code on this point, as is pointed out by many Amici and the parties themselves. Indeed 1152(a)1(A) is basically contradicted by (a)1(B) as well as 1182 and 1185.

        1152 is a weak portion of the statute that really doesn’t make sense in the context of the law as a whole. 1152(a)(1)(A) does not mention the process for obtaining entry as opposed to seeking a visa and it does not compel issuance of visas to aliens who are ineligible to receive them under some other provision of
        immigration law.

        Plus, we need to be honest about the fact that immigration law (like many laws) does not, in practice, rely on individual and particularized determinations of fact (otherwise we would only be able to admit like 100k people a year based on the needs of vetting). Rather it is a recognition of statistical probabilities about what the expected value of the information we receive from foreign intelligence agencies and immigrants in their application packets, as well as a set of policy determinations about what subgroups of people we want more of in the country. In that sense 1152 is simply an aspriational statement, because its an impossibility. Like putting into the traffic laws, “all violators will be ticketed.”

      2. I see no need to say the legislative grant of discretion to the executive was unconstitutional. 8 USC 1152 already states, in essence, that no immigrant may be discriminated against based on race, religion or national origin

        Except for the part where the word “religion” appears nowhere at all in 8 USC 1152.

    3. Absolutely correct.

  2. In general, a sound immigration policy should be, above all, discriminating.

    1. I assume you don’t think an e.g. racially discriminatory immigration policy is sound?

      1. Intensely bad assumption

      2. We should make immigrants who wish to come take IQ tests and let the chips fall where they may.

        1. If somebody wants to immigrate here to perform janitorial services, who cares about their IQ?

          1. I want only a smart, well-educated janitor, with whom I can discuss “Richard III” while he takes a break.

          2. Because those who perform janitorial services will consume more in services than they produce. We don’t need low wage, low IQ people in the modern era. We’re not the industrial society we were in 1912.

          3. We have enough subnormal people in this country to do all of these jobs…

            1. subnormal people


              1. It’s a statistical concept. You know, math?

                1. Most people in law and academia never deal with subnormal people. They seem to think anyone can do anything.

                  1. Now now, law and academia are a lot more snobbish and judgmental than that!

                    As someone who is snobby, though not judgmental, I do irrationally believe everyone can do something.

                    1. Everybody can probably do _something_, but not everyone can do intellectually demanding jobs. We don’t need to import an intellectual underclass.

                    2. There is no ‘intellectual underclass’ that’s a pretty pinched way to view our labor force, much less our society.

                      I’m no economist, but it doesn’t take much to predict an immigration policy solely in service of white-collar jobs would have a number of social and economic side-effects.

                    3. Truth hurt? People with IQs of 80-90 will absolutely be an economic burden to America. They are an intellectual underclass.

                    4. I love it when you try to help.

                    5. I have fraternal feeling for the less-capable people born and raised in our country, but I am vehemently against allowing subnormal foreigners in.

                    6. Glad you have that fraternal feeling, otherwise your essentialization and dislike of the subnormal is pretty close to the reasoning behind eugenics, no?

                      I’m all for looking to labor needs for some immigration policies, but if looking beyond the cold calculous of utility is good enough for your countrymen, why isn’t it good enough for at least some immigrants?

                      (and, to repeat the above, I also dispute whether whatever metric you’re using for ‘subnormal’ translates into social utility)

                    7. The first job of the government is to look out for the utility of its constituents. Our national immigration policy must be tailored to improve the lives of citizens.

                    8. Utilitarianism alone is a villainous philosophy.

                    9. For individuals, maybe. For government though, it is essential at least in principle. If the people we elect don’t look out for our wellbeing, they will be replaced by others who will.

                    10. Really? It doesn’t seem to hurt Canada!

                    11. “There is no ‘intellectual underclass’ that’s a pretty pinched way to view our labor force, much less our society.”

                      Yes there is. For instance, Somalis statistically are very unlike most other groups in which they move down the economic ladder instead of up from generation to generation, and have a much higher tendency of falling into crime.

                      “I’m no economist, but it doesn’t take much to predict an immigration policy solely in service of white-collar jobs would have a number of social and economic side-effects”

                      Every immigration policy has economic and social side-effects. Right now it is unbalanced in a way that in imports mostly unskilled labor, which has a very deleterious effect on others at the bottom of the economic chain.

                2. Essentializing a single stat.

            2. “enough subnormal people”

              Not in Lake Woebegone. Maybe elsewhere.

            3. “enough subnormal people”

              Not in Lake Woebegone. Maybe elsewhere.

      3. Correct assumption, there’s nothing sound about a policy that discriminates on the basis of race, for self-evident moral reasons.

        However, when I say discriminating on the basis of race, I mean discriminating on the basis of race. Some folks actually favor dictatorial race-based discrimination regimes, as would be necessary to bar disparate impact, and through a bit of sophistry and Orwellian redefinition they claim they are outlawing the very thing they are doing. The thought of the government trying to employ a global immigration scheme that discriminates on the basis of some concocted global racial (and potentially other sensitive) classifications is ludicrous.

        Having set aside the issue of racial discrimination, I assume you would agree that the process of selecting a small % of the desired entrants is a fundamentally discriminating (distinguishing) process. And if we also mean “discriminating” in the sense of exercising sound judgment, then the factors used in that process should not be arbitrary but should reflect careful deliberation.

    2. I assume you don’t think an e.g. racially discriminatory immigration policy is sound?

      1. “I assume you don’t think an e.g. racially discriminatory immigration policy is sound?”

        I think we ought not confuse racial discrimination with cultural discrimination.

  3. How far would you take this? Assume that Trump used his powers under the War Powers Act to attack a majority Muslim country. Let’s assume that he used the power in an otherwise legitimate manner. Could someone obtain an injunction against him using that power using your reasoning that he must be discriminating against Muslims because of his campaign rhetoric?

    1. Did he say he wanted to bomb Muslims?

      Are the reasons given valid, and supported by evidence?

    2. War Powers Resolution (or Act) claims are generally speaking non-judiciable.

      1. Even ones that discriminate based on religion?

        1. I would think so, yea.

          1. Good, we can redefine immigration as military kidnapping and rendition.

  4. This is silly. Trump was not being racist; he banned travel from those countries because they don’t keep the kind of reliable criminal records that would allow us to exclude people with violent histories, as we do for people coming to this country from anywhere.

    Besides, the 14th Amendment grants rights only to citizens, not foreigners seeking permission to come here.

    And if the courts don’t block consideration of campaign statements, the next presidential candidate who wants to similarly protect the country will have to keep that part of his agenda a secret from voters. Is that desirable?

    1. “Silly” is being charitable. Somin ignores the blatant rational basis you mentioned, instead arguing that there is no rational basis because terrorists from those countries haven’t killed anyone on U.S. soil, or something. The stupidity of this argument is hard to fathom.

      Let’s say a president makes derogatory comments about Americans who bitterly cling to guns and religion– should that mean otherwise legal gun control measures are unconstitutional? How about burdens placed on the exercise of such Americans’ religion?

      The idea that the Establishment Clause implicates immigration or other foreign policy is ludicrous and plainly the result of Trump Derangement Syndrome.

    2. “…as we do for people coming to this country from anywhere.”

      This is disputed.

      “Besides, the 14th Amendment grants rights only to citizens, not foreigners seeking permission to come here.”

      This is untrue. The SDP and EP clauses in the 14A apply to “any person”. In any event, some of the plaintiffs in these cases are American citizens.

      “…the next presidential candidate who wants to similarly protect the country will have to keep that part of his agenda a secret from voters.”

      If the President’s agenda was only to limit immigration from countries that do not have adequate reporting of their own citizens, why would the President need to lie about that on the campaign trail? That intent isn’t even arguably unconstitutional.

      1. This is untrue. The SDP and EP clauses in the 14A apply to “any person”.

        SDP yes. EP no. EP is limited to persons within the jurisdiction, and the whole point of the travel ban is to prevent certain people who are outwith the jurisdiction from getting within it.

        In any event, some of the plaintiffs in these cases are American citizens.

        Are you telling us that the travel ban applies to American citizens ?

        1. Several of the plaintiffs are persons within the jurisdiction of the US.

          “Are you telling us that the travel ban applies to American citizens ?”

          No, I’m telling you that “some of the plaintiffs in these cases are American citizens.” I’m not totally convinced they have standing, but the federal courts that have looked at it said they do. Do you think American citizens should be able to assert establishment clause claims?

          1. Sure, American citizens should be allowed to assert establishment clause claims. America is a country founded on the principle of that you can claim what you like, and you can even do it in court if you can afford a lawyer.

            But to the extent that such claims extend to the contention that they have a right to insist on foreigners entering the United States, the claims are frivolous. It is ridiculous, and humiliating for the reputation of the US legal system, that such worthless claims have been entertained by Appeal Courts and will attract (at least) four votes on the Supreme Court.

            It’s true that if some of their co-religionists, or Ministers, or Holy Men are not permitted to enter, their religious communing will be to some extent impaired. But the same problem would arise if such folk were imprisoned for felonies of various kinds. The American citizens claiming harm from the travel ban are mere bystanders. The law is not being applied unequally to them. It isn’t being applied to them at all. The technical legal term for the ruling applicable for unhappy bystanders in such cases is “Tough.”

            1. It is ridiculous, and humiliating for the reputation of the US legal system, that such worthless claims have been entertained by Appeal Courts and will attract (at least) four votes on the Supreme Court.

              Standing doctrine is hardly bright-line longstanding law worthy of such paeons to the Dignity of the Court.
              It’s telling you’re choosing to make your righteous stand on justiciability grounds, since the merits are not great for you.

              I’m more coming around on the EPC animus analysis, but the Establishment argument is hardly frivolous.
              The establishment clause is about government action, not about citizens or residents. And it is incorporated by the 14th Due Process which speaks about people. Again, not citizens or residents.

              And your focus on individuals is likewise pretty careful framing. States and businesses pretty clearly have a cognizable injury, do they not? And isn’t that where courts have found standing?

              1. I’m discussing standing because NToJ chose to engage on that ground (having wisely chosen not to defend his EP “any person” error.)

                No, states and businesses have no standing here either. Nobody has any constitutonal right to insist that foreigners must be admitted into the US, on the ground that if they were admitted they might consort with, engage in business with, worship with, copulate with or merely converse with the nobody in question. Likewise, nobody has a constitutional right to challenge a prison sentence handed down to somebody else, on the ground that it interferes with the nobody’s desire to consort etc with the prisoner.

                If the nobodys did have such rights, standing would be a completely vacuous concept. Which it may turn out to be, of course.

                1. You’re shoehorning a merits argument into a standing argument.

      2. ‘The SDP and EP clauses in the 14A apply to “any person” ‘

        Not exactly. The Constitution doesn’t apply to foreigners living outside the United States (unless they are in US custody, like prisoners of war).

      3. Perhaps you can explain how an USA citizen would be immigrating from a foreign country?

        As for the SDP and EP clauses in the 14A, they apply to “any person” under the jurisdiction of the USA and the Constitution not any person in the world.

        Seriously, no one has a RIGHT to immigrate to the USA.

    3. Trump was not being racist

      It seem reasonable to expect that bigots would see bigotry not as bigotry but rather as normal and good conduct and judgment.

      1. It seems reasonable to expect that bigots like Artie would see bigotry everywhere they look.

        1. ‘Liberals are the real racists’

          ‘We’re colorblind’

          ‘What about the Democrats in Alabama during 1963 and Mississippi during 1964?’

          ‘If we occasionally seem to be insufficiently sympathetic to the [target of bigotry] agenda, it’s just that we’re following traditional values’

          ‘What’s wrong with standing up for white people?’

          ‘Calling people bigots is bigoted’

          Keep it up, conservatives. A few young people might not have formed judgments about conservatism, bigotry, and backwardness yet — and we need them to understand before they vote.

  5. What if immigrants from Muslim countries really were a threat?

    It’s just nonsense to argue that we cannot discriminate against threats.

    1. Then a Muslim ban would withstand strict scrutiny. Of course, the President isn’t willing to make that argument, because it wouldn’t survive strict scrutiny for the reason that the overwhelming majority of Muslim immigrants into the United States pose no security threat whatsoever.

      1. By the decision in Fisher v Texas, we can assume that strict scrutiny amounts to nothing more than good faith assurances lol.

      2. NToJ: “Then a Muslim ban would withstand strict scrutiny.”

        What you’re essentially saying in that sentence is that the executive branch would have to get permission from the courts (after strict scrutiny no less!) to undertake a foreign policy even in the face of threats.

        That may not bother you, but I find it disturbing.

        1. Your framing is way to general – it’s not about getting permission for all foreign policy, as you imply.

          But the executive cannot make foreign policy that targets non-national subgroups without additional scrutiny.

          Not sure what ‘under threat’ adds to the scenario.

          1. It targets only national sup-groups, ie people from 7 (is it still 7?) specific nations.

            Nations are not races.

            1. We can discuss the failings of Trump’s policy elsewhere – I am speaking to Pox’s more general postulate.

          2. Sarcastr0: “Your framing is way to general – it’s not about getting permission for all foreign policy, as you imply.”

            Let’s limit it to this case. If Muslims were a threat, should the President have to go to the court prior to enacting a policy that would necessarily largely affect people of a particular religion (as NtoJ’s post implies)? Is it different if the President has said some not-nice things about such people in the past? Should the courts be enabled to call a halt to that policy while they check on the President’s interior reasoning? And, while I’m at it, just to ratchet up the rhetoric, what is the court’s expertise on national security issues?

      3. It’s just nonsense that the POTUS could not observe a threat, and take action to block that threat.

        It’s equally nonsense that a candidate for POTUS could not observe a threat, run on defending against that threat, and find defense blocked by the courts.

        If political correctness trumps national security, we will surely die.

        1. As usual, it comes back to ‘This isn’t a Muslim ban, but Trump ran on a Muslim ban which would be legal and good.’

          1. “Muslim ban”

            You keep using that word. I do not think it means what you think it means.

            1. Read the comment I was responding to. Again, it is much more general than Trump’s policy.

  6. What is most troubling about the post is that it advocates ruling on the legality of legislation or executive order on the basis of the identity of incumbents. A giant step toward a government of persons not laws.

    We all understand the revision that Somin has for Mr. Trump. That does not mean that it is wide to disregard the plain meaning of the text when the countries on the list are failed states and / or were deemed by previous administrations as state sponsors of terrorism.

    Seriously Mr Somin, could you accept a certification from Lybia, Somalia, Yemen, or Syria? And if so based on what?

  7. This argument would be more credible if Prof. Volokh weren’t such an enthusiastic supporter of punishing Masterpiece Cakeshop. As it is, it seems like a one-way street, where the Conspirators and their comrades can punish Christianity, but every other religion gets special protection.

    1. What does Prof. Volokh have to do with a post by Ilya Somin?

        1. That’s a fancy way to say “guilt by association”.

          It may come as a shock to you that people, even people posting on the same blog, can have differing views and opinions.

  8. This is an off-point comment. Mr. Volokh has not weighed in on Somin’s post.

    1. He has also said in public that he thinks that the ban is legal iirc.

  9. The “ban” only bars travelers from Chad, (.4% of the worldwide Muslim population of 1.8 billion, a failed state, and yet was removed from the list), Iran (4.6%, and overtly hostile to the West), Libya (.4%, another failed state (of our own making)), Somalia (.6%, ditto), Syria (1%, a failed state and overtly hostile), and Yemen (1.5% and a failed state), for a total of 8.1%-hardly the sum total of the Islamic world. It exempts 91.9% of the Islamic world, including countries that house, finance, and originate terrorists, and who can continue to send persons here unabated. Hardly a ban.

    1. Exactly, hardly the basis for ad hominem judicial decisions,

    2. From the OP:

      “No one could seriously doubt that the “territorial” hiring ban is unconstitutional. It would not matter that it does not exclude all black applicants, or that a few applicants of other races would also be excluded, because they live in the covered areas.”

  10. [The “ban”] exempts 91.9% of the Islamic world, including countries that house, finance, and originate terrorists, and who can continue to send persons here unabated.

    Then it really makes no sense as an anti-terrorism measure, does it?

    1. Sorry. This was intended as a reply to Rip Murdock’s 5:35 comment.

      1. Just like there is no security rationale for the Cuban travel ban. My comment meant that the “Muslim ban” cries are crocodile tears. It is not ban based on religion, but on nations that either are failed states or overtly hostile to the US. Would I like to see it expanded? Sure, but that is not the question before the SC. The administration has concluded (wrongly, in my opinion) that persons from countries on the Arabian peninsula, Afghanistan, North Africa, etc. do not constitute a threat.

        1. “It is not ban based on religion…”

          See, the President isn’t behaving unconstitutionally, he’s just a liar.

        2. I recommend you read one of the items Somin links to.

          Here’s the link again.

    2. Not so.

      Thanks to the previous American actions each of the countries on the list have many citizens with deep and persistent animosity toward the US. That terrorist actions of this group have not made it across the Atlantic is not proof that there is not a heightened threat from them. To suggest otherwise is a sophistry.

  11. I’m fine with applying additional scrutiny to executive action, but this needs to be done with consistency. If Trump’s executive order is unconstitutional, then you need to outright overturn Mandel. Period. You also need to make clear that the courts are no longer to defer to findings in executive orders when most EOs have far less justifications provided than Muslim Ban 3.0.

    Second, if we’re going to review facially neutral executive actions for religious animus, then the Court needs to reverse Stormans Inc vs Wiesman out of the ninth circuit too (and while IRAP is the court that granted an injunction under the First Amendment theory, my understanding is the district court in 3.0 out of Hawaii also granted relief under the First Amendment theory which was affirmed. Might be wrong, case is procedurally a cluster mess).

    So, I agree that we shouldn’t let Trump be the road map for discriminatory policies. But the corolary should also be don’t treat him as the outlier either. If anything, Trump is following the roadmap laid out for him by others when the court abdicated it’s role by deferring to the executive.

  12. In my opinion foreigners overseas should have no civil rights or standing in american courts whatsoever.

    1. Foreigner enters into a contract with an American firm. Firm doesn’t do what it agreed to do.

      Foreigner is out of luck, or can sue in an American court?

      1. Not unless the contract stipulates the forum be here.

  13. Ilya Somin,

    One question.

    Why would Constitutional rights apply to foreigners living in other countries? No one even has legitimate standing here to bring a case. There is no right to immigrate to the United States. The law already discriminates against anyone for a great many reasons.

    1. Because the Bill of Rights sets limits on what the government can do.

      It’s not a question of the rights of foreigners but rather of limits on the power of government. By your argument a straightforward ban on immigration by adherents to particular religion, or even non-adherents to one would be OK.

      I don’t think that’s right. Would limiting immigration to Christians be allowed?

      1. But who really has standing to even bring this action? Groups like the ACLU, etc push for these lawsuits, but they aren’t really the supposedly agrrieved parties.

        And yes, limiting immigration to Christians would be 100% legal (not sure how that would be verified though). We already “discriminate” by putting severe limits on some nationalities over others, yet no one was screaming about that.

        1. I think it would be an establishment of religion.

          The discrimination, not “discrimination,” by nationality is not.

      2. It’s kind of funny how the limits imposed by the Bill of Rights on the government is so all fired important to liberals in this case. I’m sure that you expressed the same feelings and concerns each time the Ninth Circuit upheld California’s onerous and unconstitutional anti gun laws, right? Or do your concerns about the limits on the government only apply when referring to a conservative or Republican government?

    2. Could the U.S. make money by running a slavery plantation in the Philippines or something & no one there would have standing to bring a case, granting U.S. waives sovereign immunity (if that is an issue).

  14. It could create a very dangerous precedent, the idea that the United States is governed by the rule of law not edicts from unelected and unaccountable judges. We wouldn’t want that now, would we?

    1. Which is what the right says every time they disagree with a judge.

      1. Not true. Some of us say it even when we agree with the judge.

        And of course the left always accepts adverse decisions without complaint.

        1. the left complains, but it is much more rarely they argue the entire judiciary is corrupt and tyrannical and we need to start with impeachments or worse.

          I saw it in Bush v. Gore. Didn’t even hear much of that from the left with Citizens United.

          1. Most conservatives are sentient to know that they have lost and and are continuing to lose the culture war in America, and that the entirety of the foreseeable future is likely to feature more frustration of their aspirations and rejection of their preferences.

            A little crankiness seems understandable, Sarcastro. Is a minor allowance to those who grieve too much to ask?

  15. One day, Ilya will realize that people are allowed to vote for candidates based on different criteria than he himself would select.

    1. He already knows that. The votes are just supposed to be futile.

      1. Or, you disagree with his view of what the Constitution requres.

  16. Illya demonstrates how being a #NeverTrump destroys ones judgement.

    If discriminatory intent, that exists only in the minds of judges, is enough to overrule national security policy, then it is time to impeach a bunch of judges. It means we no longer have a democratic republic, but rather a dictatorship of judges.

    Even if Trump chose to discriminate against Muslims – SO WHAT? It would not be against American citizens or people in our territory, so where is the legal basis to stop it, other than in the ever expanding powers that federal judges arrogate to themselves?

    I am disgusted. I am also saddened at how Illya has just lost in on immigration. Why do Libertarians have a belief that a nation cannot police its borders? It is self destructive and illogical.

    1. If discriminatory intent, that exists only in the minds of judges

      That is a stupid assertion. Get an education, goober. Backwater religious schooling doesn’t count.

      1. Typical liberal argument- insulting the speaker rather than addressing the issue. Demonstrating how being a #NeverTrump destroys ones judgment.

        There’s not a single decision against Trump’s immigration policies that was based in law rather then feelings and anti-Trump animus.

        1. Do you really believe that discriminatory intent exists only in the minds of judges? No matter what Trump said? You think there is no evidence for it whatsoever?

          You’ve been drinking too much Trump-brand Kool-Aid.

          1. Your comment might make sense if you could actually quote a decision against Trump’s immigration policies that was based in law rather then feelings and anti-Trump animus. Which is impossible to do, so you resort to the liberal method of argument- insulting someone you’ve never met.

            Easy doing it over the internet where you can’t be stared down, isn’t it? .

            1. You are going to hate the American future, Gospace.

              I am content.

              1. If we continue down the path you propose you’ll certainly love your grandchildren’s future under sharia.

  17. Notably, Ilya Somin fails to address the strongest argument against reliance on campaign rhetoric. This case is not like an employment case in which the motivation for an employment action needs to be proven. Rather, it is the interpretation of a legal document, which requires the application of well-established principles of statutory interpretation. Two of those principles are (1) the clear language of the enactment controls over extrinsic evidence of intent, and (2) if an enactment can at all be read in a way that avoids a constitutional issue, it should be read in that way. Thus, if the clear and express language of the travel ban does not call for exclusion of persons based on religion, and the ban can in any way be read as to avoid a religious discrimination issue, that is how it must be read and applied, regardless of Trump’s supposed secret motivation.

    To accept Somin’s logic is to hold that judges will be free to ignore the plain language of statutes, regulations and other enactments in favor of enforcing campaign rhetoric as the drafters’ “true” intentions.

    1. ” if an enactment can at all be read in a way that avoids a constitutional issue, it should be read in that way”

      I don’t think libertarians accept this strong presumption of constitutionality and Footnote Four of Carolene Products suggests that there are certain times in particular when it is rebuttable. This is one of them.

      Discrimination law (which overlaps here with the Establishment Clause) generally is somewhat comparable to the employment context up to a point. I don’t think judges have some ability to “ignore” plain language here. What the plain language requires here has been a matter of some dispute and when there is clear evidence of animus as to race or religion (campaign statements, statements reaffirmed when he was in office, but one part of said evidence), a higher degree of doubt is a valid approach.

      1. I thought Footnote 4 in Carolene Products dealt with a different issue: whether a court considering a due process/equal protection challenge to a statute regulating commerce should defer to the judgment of the legislature, I.e., the “rational basis” test. The presumption of constitutionality I was referring to is a tool of statutory interpretation. Carolene Products does not address that.

  18. Hmm, while I think the travel ban is awful I worry about the implications of allowing the full suite of constitutional protections to be available in the immigration context.

    In particular, how does one distinguish discrimination based on religion/race from considering the speech of aspiring immigrants. While I’m a strong supporter of open borders I do believe that reasonable restrictions regarding not admitting individuals who openly admit their support for eliminating our freedoms (but not via force so it’s just a political opinion) might be necessary and I wonder how it can be distinguished.

  19. If the administration had acted against citizens of, say, France, there would have been no discrimination claim. A difference between religiously monolithic countries and pluralistic ones is that in only in monolithic countries is religion so identified with citizenship that it is possible to conceive of acting against a country as being the equivalent of acting against its religion.

    Applying the concepts of establishment and religious discrimination to foreign policy would have the perverse effect of privileging theocracies. Religiously monolithic countries, uniquely, would be able to appeal any adverse foreign policy actions against them to the courts and claim religious discrimination. More pluralistic regimes could not. Counterintuitively, perversely, striking down actions against monolithically religious countries on grounds those actions are taken against the religion and not the country would give foreign countries which are successful in suppressing their religious minorities a significant advantage over countries that don’t – constitutional rights against the American government that only religiously monolithic have, and that religiously pluralistic countries don’t.

  20. My analogy here:

    Suppose somebody runs for Sheriff on a promise to “deal with those black gangs”. Racist? I guess you could say that, they should have just run on dealing with “those gangs”, and pretended there was no racial aspect to the problem.

    But they win the election, in a county where all the gangs happen to be black. Are they foreclosed from doing anything about the gang problem, because of their badly worded promise to do something about it, and because the gangs don’t have the consideration to be multi-ethnic?

    Trump had the bad taste to acknowledge that Islamic terrorism is a problem with Muslims, not Buddhists. And in a country where illusions about the matter are easy, because the problem isn’t very bad yet. (Because, of course, there aren’t many Muslims in America!)

    Then he had the extremely bad taste to win the election. (Which is the real problem in many people’s minds.)

    Is he how foreclosed from dealing with the problem because he didn’t refrain from accurately identifying it?


    The root issue here, is that the judiciary is tasked with determining the constitutionality of acts, not people. Whether or not an act is constitutional should never hinge on the judiciary’s opinion of the character of the person who did it.

    We have a branch given the job of passing on a President’s fitness to exercise the powers of his office. It’s not the judiciary, it’s Congress. Barring impeachment, Trump is President, with ALL the powers of that office.

    1. To generalize your analogy some, targeting Muslims to deal with security is like targeting blacks to deal with crime.

      1. Except, of course, that the policy in question doesn’t target Muslims.

        It targets certain countries, based on criteria not including religion, which are unavoidably for the most part Islamic countries because Islam just happens to be very strongly correlated with some nasty things. (Which we’re supposed to pretend is by accident.)

        But, it applies to everyone from those countries, irregardless of their religion. (And this is unjust, because it prevents us from making an exception for other religions currently subject to a genocidal campaign of terror in those countries.)

        And it does not apply to anyone outside those countries, again irregardless of religion. Which means that it doesn’t apply to most Muslims in the world.

        At this point one has to ask, in light of the above, what Trump could possibly do in order to NOT have a travel ban characterized as a “Muslim ban”. Bar travel from Canada, Luxembourg, and the Vatican City?

        Any rational travel ban is going to primarily target Islamic countries, because for the most part the failed states and terrorist sponsors of the world ARE Islamic countries. (Again, we’re supposed to pretend this is an accident.)

        Of course, we understand why no travel ban can be acceptable to Ilya: He’s an open borders fanatic.

        But is there any good reason why somebody who’s sane on the topic of immigration would pretend this is a “Muslim ban”?

    2. ‘Racist? I guess you could say that,’

      And yet the real problem will be that people point out that he’s a fucking racist.

  21. Some day the word discrimination will go back to be used in a good way.

    noun: discrimination; plural noun: discriminations
    1. the unjust or prejudicial treatment of different categories of people or things, especially on the grounds of race, age, or sex.
    2. recognition and understanding of the difference between one thing and another.

    1. I doubt it – not when there’s other words that do the same job without the historical baggage.

    2. Some day the word discrimination will go back to be used in a good way.

      Yes! But first we need to weed out more of our bigots. I am content to wait for them to take their stale thinking to the grave from natural causes.

      1. “Yes! But first we need to weed out more of our bigots. I am content to wait for them to take their stale thinking to the grave from natural causes.”

        I have amusing visions of you staring down the straw men of your own making, thinking to yourself that someday they will all be gone!!

        you are a very quixotish character Rev, you battle figments of your imagination happy with the delusion that virtue comes so easily….

  22. There’s no legitimate argument that the Establishment Clause constrains the government with respect to immigration policy whatsoever. A de jure Muslim ban is absolutely constitutional.

    1. I agree with you that the Establishment Clause does not restrict the government’s immigration policy in any way, and I’d go one step further and state that the government has carte blanche to decide immigration policy with no Constitutional limitations against discrimination based on protected classes.

      If the government set a quota to let in 5 Jews, 10 Christians, 25 Muslims, 50 Athiests, 75% males, only people under 40, and nobody with red hair, then the government could do so. If the people of the U.S. do not like the policy, they can vote out the government individuals responsible for the policy.

      1. Absolutely. The Constitution limits how we interact with people in America. It doesn’t implicate who is allowed to come in. Period.

  23. Odd that there is no recognition that the Islamic terrorists with who we are at war are, 100% Muslim.

    So, if Iran bombs us, we cannot respond because the President criticized Muslims?????


    1. Your crazy interpretation wherein the other side are lunatics is spot-on.

  24. Truly sad. Prof Somin appears to prefer Minority Report methods to punish thought crimes!

    1. Isn’t the travel ban itself more equivalent to Minority Report? Innocent people can’t immigrate here lawfully because other people from the same country might commit acts of terrorism here?

  25. Should we also determine whether legislators had any improper motive when they voted for a particular piece of legislation to determine whether an otherwise facially neutral law is actually unconstitutional?

    There are so many pitfalls when going down this path. With regards to the President, I’m especially troubled by the prospect that a President could make a controversial statement in the past that could tie his hands in the future from undertaking an otherwise appropriate action. For example, if there is a perfectly valid and appropriate reason for limiting immigration to Iran, Trump could be prevented from taking that action (even though any other President could take the exact same action) because of past statements saying he wants to ban Muslims. The result is that the same exact action would be completely unchallenged if done by President Obama, but declared unconstitutional when done by President Trump.

  26. Get back to me when rational basis is no longer an acceptable standard of review. With the Ninth Circus performing acrobatic contortions to find every single gun law produced by the hoplophobes in the California legislature constitutional I don’t think that’s going to happen anytime soon.

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  28. And this entire castle of sand built upon the conceit that the rights and powers enumerated in the US Constitution apply to non-US citizens.

    And upon the conceit of the open borders crowd regards no impediment to entry.

    So, a) any person has the RIGHT to enter the US, and once in, they are b) protected by everything contained in the Bill of Rights, and elsewhere.

    Nice little bit of circular rationalization if you can get away with it. It makes every person on the planet a citizen of the US.

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