New travel ban’s fate may hinge on whether courts consider motive
With President Trump’s revised travel ban once again on judicial hold, its fate in higher courts — including the Supreme Court — most likely turns on one question: Must judges accept the president’s word that his motive was to protect the nation from terrorism and not to exclude Muslims?
Motives can make all the difference in the law. If you’re challenging your dismissal at work, you might try to prove it was because you’re black, or female, or gay and not because you couldn’t do the job. If the city council grabs your microphone during a hearing and you claim a free speech violation, you need to show it was because of your message and not the four-letter words you were using. And every prosecutor knows it’s easier to convict someone of a crime if a motive can be shown.
But when it comes to the
government’s decisions on immigration — and, in particular, which groups of wouldbe immigrants to keep out of the country — the law gives presidents great leeway and presumes their motives were legitimate.
The Supreme Court set the ground rules in 1972 with a decision upholding the government’s denial of a visa to a Marxist writer who had been invited to an academic conference. If the government’s individual exclusion order states “a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion nor test it” against the rights of others, like U.S. residents who wanted to communicate with the writer, the court said.
When it comes to religious motives, however, the high court may be willing to take a more probing look at the evidence. In a 5-4 ruling in 2005, cited by opponents of Trump’s executive orders on travel, the Supreme Court found that officials in two Kentucky counties had acted for impermissible religious purposes by posting the Ten Commandments in their courthouses.
So far, most of the courts that have ruled on Trump’s travel restrictions have been willing to look behind his insistence that the nations whose residents he barred from entering the U.S. were chosen because they were potential sources of terrorist attacks and not because their populations are mostly Muslim.
“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,” U.S. District Judge Derrick Watson of Hawaii said Wednesday in a ruling that blocked Trump’s second attempt at a travel ban, less than six hours before it was to take effect.
In his ruling, Watson noted the nations targeted by the order, Trump’s broadsides against Islam during his presidential campaign — including his promise to halt all immigration by Muslims — and a Jan. 28 statement by Trump adviser Rudy Giuliani, former mayor of New York, that the president had asked him to find a legal way to draft a “Muslim ban.”
U.S. District Judge Theodore Chuang of Maryland cited the same evidence in an injunction against the six-nation ban early Thursday. On Friday, Trump’s administration began the appellate process by filing a notice of appeal of Chuang’s order with the Fourth U.S. Circuit Court of Appeals in Richmond, Va. The administration plans to challenge Watson’s ruling in the Ninth U.S. Circuit Court of Appeals in San Francisco, which last month upheld another judge’s ruling blocking the first travel ban.
From there, in all likelihood, the issue will end up with the nation’s high court, which by then may have a ninth justice, Trump nominee Neil Gorsuch, now a federal appeals court judge in Denver. Legal analysts say the outcome is hard to predict.
“I think courts are going to be reluctant to pierce behind the veil (of the president’s order) too much. It’s a dangerous game to play,” said Vikram Amar, a constitutional law professor and law school dean at the University of Illinois.
That’s true in most cases, but maybe not in this one, said UCLA law Professor Adam Winkler.
While courts normally assume the president is acting in good faith, “repeated statements by the Trump administration make it hard to assume they have a bona fide reason,” Winkler said. “The evidence is on the table, in tweets, in a press statement . ... Trump is making it hard for courts to be deferential.”
The revised executive order Trump issued March 6 — more than a month after courts had blocked his first order — would impose a 90day ban on the entry of anyone from Iran, Libya, Somalia, Sudan, Syria or Yemen, dropping Iraq from the nations in the earlier order. Unlike that order, the revised version would not apply the ban to legal U.S. residents and visaholders who want to enter the country.
It would also place a 120-day freeze on all admission of refugees, those who have fled violence or persecution in their homeland and have been approved for admission by U.S. officials. And it would limit overall U.S. refugee admissions to 50,000 for the fiscal year ending Sept. 30, down from the 110,000 limit approved by former President Barack Obama. Both those provisions were in the original order.
Initially, the administration argued that courts simply had no authority to review a president’s decisions on immigration and national security. The Ninth Circuit emphatically rejected that position in its Feb. 9 ruling, observing that “within our system, it is the role of the judiciary to interpret the law.”
Justice Department lawyers have moderated their stance somewhat in defense of the revised order, arguing in court filings against “probing the executive’s judgments on foreign affairs and national security” and, in particular, against considering “informal statements by the president or his surrogates” or any comments he made as a political candidate.
They drew some support Wednesday from five of the Ninth Circuit’s 25 full-time judges, in a dissenting opinion that said the court should have reconsidered and upheld Trump’s earlier, broader executive order.
“Even if we have questions about the basis for the president’s ultimate findings — whether it was a ‘Muslim ban’ or something else — we do not get to peek behind the curtain,” Judge Jay Bybee wrote for the dissenters. “So long as there is one ‘facially legitimate and bona fide’ reason for the president’s actions,” he said, quoting the 1972 Supreme Court ruling, “our inquiry is at an end.”
The Supreme Court has been short-handed and ideologically split since the death of conservative Justice Antonin Scalia in February 2016. Gorsuch, his potential successor and a potential swing vote in the case, is an admirer of Scalia and shares his view that the Constitution must be interpreted according to a justice’s view of its original meaning, regardless of later developments.
Gorsuch isn’t known to have ruled on any comparable cases in more than a decade as an appeals court judge. But he was a strong advocate of religious freedom in a case that endorsed the right of corporations and their owners to deny contraceptive coverage to female employees on religious grounds, a ruling later upheld by the Supreme Court.
On the other hand, Gorsuch shares Scalia’s advocacy of “textualism,” interpreting laws solely according to their written text and disregarding lawmakers’ statements of their intentions. That doctrine, if applied to this case, would appear to support the government’s view that Trump’s orders should stand on their own.
Even so, said David Levine, a law professor at UC Hastings in San Francisco, the high court is unlikely to go along with Trump. He said the president had hurt his own case on Wednesday by describing his revised order as “watereddown,” undercutting the government’s position that it had been refined to meet court objections.
“I doubt there’d be five votes (on the nine-member court) for the position that (Trump’s rationale) is completely unreviewable,” Levine said. “A reasonable, objective observer would have to know the motivation, which was to have a ban on Muslims.”