What doomed Trump’s travel ban

Los Angeles Times - - OP-ED - By Jane Chong and Joseph Po­mi­anowski Jane Chong is the deputy man­ag­ing edi­tor of the web­site Law­fare. Joseph Po­mi­anowski is a re­cent grad­u­ate of Yale Law School and is re­search­ing com­par­a­tive con­sti­tu­tional law at the Pol­ish Academy of Sci­ences.

In March, U.S. District Judge Der­rick Wat­son in Hawaii sus­pended key por­tions of Pres­i­dent Trump’s re­vised ex­ec­u­tive or­der tem­po­rar­ily halt­ing refugee ad­mis­sions and immigration from six Mus­lim-ma­jor­ity coun­tries. A three-judge panel for the U.S. Court of Ap­peals for the 9th Cir­cuit has now unan­i­mously up­held the cru­cial por­tions of Wat­son’s pre­lim­i­nary in­junc­tion. Like the 4th Cir­cuit’s rul­ing last month in a sim­i­lar chal­lenge to the “travel ban,” the 9th Cir­cuit’s de­ci­sion marks a ma­jor de­feat for the Trump ad­min­is­tra­tion, and shows the courts’ un­will­ing­ness to take Trump’s na­tional se­cu­rity claims at face value.

What’s no­table is that both ap­peals courts chose paths that en­abled them to look be­yond the text of the or­der. Legally, these opin­ions look dif­fer­ent, but in terms of the re­sult, one is re­ally just the photo neg­a­tive of the other: The 4th Cir­cuit de­ter­mined that bad rea­sons mo­ti­vated Trump’s travel ban or­der; the 9th Cir­cuit de­cided he didn’t have good ones.

The 4th Cir­cuit, in a 10-3 rul­ing of the en­tire court, squarely ad­dressed the con­tentious con­sti­tu­tional claim at the heart of the case: Was Trump’s or­der in­tended to dis­crim­i­nate against Mus­lims in vi­o­la­tion of the 1st Amend­ment? The court looked at out­side ev­i­dence, in­clud­ing cam­paign state­ments, to de­ter­mine that the or­der was in­deed dis­crim­i­na­tory.

The 9th Cir­cuit panel stayed away from the con­sti­tu­tional claim and more mod­estly con­cluded that Trump ex­ceeded his au­thor­ity un­der the rel­e­vant fed­eral immigration statute — but this, too, in­volved look­ing at more than the words of the or­der: The panel con­cluded that Trump had not of­fered find­ings suf­fi­cient to sup­port the con­clu­sion that the in­ter­ests of the United States hinge on ban­ning 180 mil­lion peo­ple from entry based on only their na­tional ori­gin.

Be­cause the courts usu­ally give the ex­ec­u­tive branch a lot of lee­way in immigration and na­tional se­cu­rity cases, if the Supreme Court agrees to re­view Trump’s travel ban, the crit­i­cal ques­tion will be whether the 4th and 9th cir­cuits were right in look­ing at or re­quir­ing ev­i­dence out­side the or­der it­self. The dis­sent­ing judges in the 4th Cir­cuit case ar­gued, for ex­am­ple, that the ma­jor­ity should have stuck to the or­der’s “plain, un­am­bigu­ous, and re­li­giously neu­tral text.”

That dis­sent made some fair le­gal points. But it also missed an im­por­tant as­pect of what ap­pears to be driv­ing these de­ci­sions: an aware­ness of how blind de­fer­ral to Trump’s or­der could eas­ily dam­age the pub­lic’s trust in the ju­di­cial process it­self.

You might think that legally it shouldn’t mat­ter what the pub­lic thinks about the courts. But pub­lic trust is the in­vis­i­ble foun­da­tion of the ju­di­ciary’s power. As Supreme Court Jus­tice Felix Frank­furter ob­served in 1962, the courts have “nei­ther the purse” of the leg­isla­tive branch “nor the sword” of the ex­ec­u­tive branch; their “au­thor­ity ... ul­ti­mately rests on sus­tained pub­lic con­fi­dence in [their] mo­ral sanc­tion.”

Un­sur­pris­ingly, then, the courts so far have been re­luc­tant to lend their mo­ral sanc­tion to an ex­clu­sion­ary or­der that Trump passed not long af­ter, as a can­di­date, he had called for “a to­tal and com­plete shut­down of Mus­lims en­ter­ing the United States.” The courts are also re­luc­tant to sanc­tion an or­der that first seared the Amer­i­can con­scious­ness as a pol­icy of stun­ning cru­elty, ac­com­pa­nied by images of refugees hand­cuffed at U.S. air­ports and sto­ries of fam­i­lies torn apart. And as the 9th Cir­cuit made clear Mon­day, the courts are re­luc­tant to sanc­tion a pol­icy that lacks le­git­i­mate na­tional se­cu­rity jus­ti­fi­ca­tion.

In the up­roar over the ban, the pres­i­dent has of­fered strangely lit­tle to sup­port it. Mean­while, the pub­lic has been in­formed that no deadly ter­ror­ist attacks in the U.S. since 9/11 have been at­trib­uted to for­eign na­tion­als from any of the tar­get coun­tries. As both the 4th and 9th cir­cuits em­pha­sized, a De­part­ment of Home­land Se­cu­rity re­port con­cluded that cit­i­zen­ship in any par­tic­u­lar na­tion is an “un­re­li­able” threat in­di­ca­tor. And in March, 134 for­mer na­tional se­cu­rity and other se­nior gov­ern­ment officials wrote a let­ter to the pres­i­dent con­demn­ing the ban as “dam­ag­ing to the strate­gic and na­tional se­cu­rity in­ter­ests of the United States.”

All of this put the courts in a ter­ri­ble bind. The courts gen­er­ally don’t, and don’t want to, sec­ondguess a pres­i­dent’s ex­per­tise in na­tional se­cu­rity mat­ters. But here de­fer­ring to the pres­i­dent would mean tak­ing his word on a pol­icy that ex­perts across the po­lit­i­cal spec­trum have al­ready agreed is a farce. Against such a back­drop, one way for judges to pro­tect the ju­di­ciary’s le­git­i­macy is to rely on a le­gal stan­dard that al­lows them to con­sider not just what the ex­ec­u­tive or­der says but also out­side vari­ables that af­fect how it is per­ceived. That’s ex­actly what the 4th and 9th cir­cuits did.

The po­lit­i­cal sci­en­tist Richard Neustadt fa­mously pro­claimed that “pres­i­den­tial power is the power to per­suade.” But by flout­ing eth­i­cal and po­lit­i­cal norms, Trump has cul­ti­vated the op­po­site power — the power to re­pel. Trump’s dif­fi­culty in fill­ing key ex­ec­u­tive branch po­si­tions or in find­ing a law firm will­ing to rep­re­sent him in con­nec­tion to the Rus­sia in­ves­ti­ga­tion has been cited as a tes­ta­ment to the wide­spread de­sire to avoid con­tact with the ad­min­is­tra­tion and what it pro­fesses to stand for. But the se­vere re­sis­tance the courts are ex­hibit­ing when it comes to the pres­i­dent’s poli­cies sug­gests that Trump’s lack of cred­i­bil­ity has re­ver­ber­a­tions be­yond the ex­ec­u­tive. The courts, too, fear Trump’s taint.

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