President Trump’s revised travel ban hit another roadblock last week as the federal district court for Hawaii ordered a stop to implementing the travel ban. The decision was made on the ground that the plaintiffs are likely to succeed in court on the merits of their claim that the executive order violates the Establishment Clause of the First Amendment by discriminating against Muslims on the basis of their religion.
But the court’s objection to the travel ban, which would impose a 90-day suspension on the entry into the United States of nationals from six countries which were designated by Congress and the Obama administration as posing national security risks, is that President Trump wrote it. The court even acknowledges this in its decision:
“It is undisputed that the Executive Order does not facially discriminate for or against any particular religion, or for or against religion versus non-religion.
“There is no express reference, for instance, to any religion nor does the Executive Order — unlike its predecessor — contain any term or phrase that can be reasonably characterized as having a religious origin or connotation.”
The court writes that “any reasonable, objective observer would conclude … that the stated secular purpose of the Executive Order is, at the very least, ‘secondary to a religious objective’ of temporarily suspending the entry of Muslims.” This “assessment rests on the specific historical record,” which “focuses on the president’s statements about a ‘Muslim ban,’” including on the campaign trail and the fact that he asked Rudolph Giuliani how to do it legally.
According to Eric Posner, a professor at the University of Chicago Law School, the courts are creating a “Trump exception” to settled law on presidential powers by ignoring the Supreme Court’s admonition that courts may not “look behind” a “facially legitimate” reason, which with respect to the order, is the national security interest in stricter vetting.
And in a decision denying a rehearing en banc on State of Washington v. Donald J. Trump, the court case that addressed the first version of the travel ban, Circuit Judge Jay Bybee wrote a dissent to defend the constitutional principle that the political branches, informed by foreign affairs and national security considerations, control immigration and that judicial review is limited by the Supreme Court precedent established in Kleindienst v. Mandel.
In Mandel, the Supreme Court held that when the Executive exercises its power to make policies and rules for the exclusion of aliens on the basis of a facially legitimate and bona fide reason, the courts will not look behind the exercise of that discretion.
Judge Bybee states further that this standard has been applied in similar circumstances. After the 9/11 attacks, the attorney general instituted the National Security Entry-Exit Registration System, which required nonimmigrant alien males from 24 Muslim-majority countries plus North Korea to appear for registration and fingerprinting.
The aliens subject to registration filed a series of suits arguing that the program “was motivated by an improper animus toward Muslims.” The court in Rajah v. Mukasey, held that “the most exacting level of scrutiny that we will impose on immigration legislation is rational basis review.” The court then found “a facially legitimate and bona fide reason” for the registration requirements because the countries were “selected on the basis of national security criteria.”
Judge Bybee concludes that, whether the executive order is a “Muslim ban” or something else, we do not get to peek behind the curtain. If there is a “facially legitimate and bona fide” reason for the president’s actions, our inquiry is at an end.
Moreover, the religious discrimination finding is based primarily on Trump’s campaign statements, and according to Eugene Kontorovich, a Northwestern University law professor, “there is absolutely no precedent for courts looking to a politician’s statements from before he or she took office, let alone campaign promises, to establish any kind of impermissible motive.”
Circuit Court Judge Alex Kozinski expresses a similar view on considering such statements in his dissent to the decision on en banc reconsideration:
“This is folly. Candidates say many things on the campaign trail; they are often contradictory or inflammatory. No shortage of dark purpose can be found by sifting through the daily promises of a drowning candidate, when in truth the poor shlub’s only intention is to get elected.
“No Supreme Court case — indeed no case anywhere that I am aware of — sweeps so widely in probing politicians for unconstitutional motives.”
Maybe the courts should heed the advice of former Vice President Joe BidenJoe BidenBiden: I regret not being president Biden: 'McCain is right: Need select committee' for Russia With no emerging leaders, no clear message, Democrats flounder MORE who said last week that President Trump “deserves a chance” to lead the country.
Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.
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