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In late January, President Donald Trump sat before a throng of reporters and cameramen in the Pentagon’s Hall of Heroes room, holding a copy of the original, now-rescinded executive order on immigration.
Just moments before signing it, Trump read aloud the travel ban’s title — “Protecting the nation from foreign terrorist entry into the United States” — and then remarked:
“We all know what that means.”
Critics point to the remark, along with a litany of other pre- and post-election statements, as evidence of “religious animus” against Muslims — an argument underpinning Hawaii’s lawsuit that led to a preliminary injunction against the revised order in March.
But, as the high-stakes legal battle reaches the 9th U.S. Circuit Court of Appeals next week, it’s still to be decided whether past statements by Trump and his aides are fair game in weighing whether to reinstate the travel ban.
The 9th Circuit’s three-judge panel, which will hold a hearing Monday, will first have to wrestle with one question: Should it even be looking “behind the four corners” of the revised order to assess its purpose?
In the U.S. Supreme Court’s jurisprudence, what appears to be a simple question is a tricky legal exercise — one that requires a consideration of two divergent sets of opinions.
On the one hand, a string of opinions in cases involving the First Amendment’s establishment clause makes it clear that the courts can’t “turn a blind eye to the context” when assessing the discriminatory purpose of any given policy.
In ruling in favor of Hawaii, U.S. District Court Judge Derrick Watson applied this standard to his opinion, finding that the historical context behind the travel ban is “full of religious animus, invective and obvious pretext.”
“A reasonable, objective observer — enlightened by the specific historical context, contemporaneous public statements and specific sequence of events leading to its issuance — would conclude that the executive order was issued with a purpose to disfavor a particular religion, in spite of its stated, religiously neutral purpose,” Watson wrote.
On the other hand, the courts have historically applied a different standard to immigration matters, giving a healthy dose of deference to the executive branch — mindful that it has broad constitutional and statutory authority over foreign affairs.
A key precedent at play here is Kleindienst v. Mandel, a 1972 case in which the Supreme Court warned against second-guessing the executive branch’s immigration decisions — so long as its rationale is “facially legitimate and bona fide.”
The Trump administration argues that, under this standard, the courts should find that the revised order — which doesn’t explicitly cite Islam as its justification — passes constitutional muster.
How the 9th Circuit reconciles the two standards will ultimately shape the fate of Hawaii’s lawsuit.
Andrea Freeman, a law professor at the University of Hawaii, says the 9th Circuit — and likely the Supreme Court — will be wading into an uncharted legal territory.
“It’s a very difficult area because, when it comes to the presidential authority, there’s not a lot that is circumscribed or written out in the Constitution,” Freeman said. “It’s vague. There’s not a lot of guidance. I don’t think most people realize how open it is.”
Issued six weeks after the original travel ban, the revised order is — in Trump’s own words — a “watered-down version” that made significant concessions to ward off legal challenges.
Among a host of revisions, Trump reduced the number of banned countries from seven to six — removing Iraq from the original list — and backpedaled on singling out Syrian refugees for an indefinite ban or giving preferential treatment to the refugee claims of religious minorities.
In a Monday hearing in the 4th U.S. Circuit Court of Appeals, acting U.S. Solicitor General Jeffrey Wall argued that, with the revisions, the travel ban is now religiously neutral on its face.
“This is not a Muslim ban,” Wall told a panel of 13 judges who are weighing whether a Maryland injunction similar to Watson’s should be upheld. “It has nothing to do with religion. Its operation has nothing to do with religion.”
But Hawaii Attorney General Doug Chin isn’t buying it.
In Hawaii’s lawsuit, Chin argues that the revised order still has a number of fatal legal flaws — including an infringement of the Fifth Amendment’s due process guarantees that ultimately doomed the original travel ban.
In his ruling, Watson seized on the establishment clause claim: that the travel ban, even with the revisions, is still tainted with “discriminatory intent” against Muslims. In doing so, he rejected the administration’s argument based on the Mandel standard.
“No binding authority … has decreed that establishment clause jurisprudence ends at the executive’s door,” Watson wrote. “In fact, every court that has considered whether to apply the establishment clause to either the executive order or its predecessor (regardless of the ultimate outcome) has done so.”
Watson’s ruling appears likely to fall on sympathetic ears on appeal; after all, the 9th Circuit — whose three-judge panel voted unanimously in February to uphold an injunction issued by a federal judge in Seattle — noted that past statements by Trump and his aides could be used later for weighing the constitutionality of the original travel ban.
But it’s far from automatic that the 9th Circuit will side with Hawaii.
Consider, for instance, the opinion of Alex Kozinski, another 9th Circuit judge who dismissed the idea of using Trump’s campaign statements — including the one that called for “a total and complete shutdown of Muslims entering the United States” — as an “evidentiary snark hunt.”
In his dissent to the decision by the three-judge panel, Kozinski suggested that such move could violate Trump’s right to free speech.
“Candidates say many things on the campaign trail; they are often contradictory or inflammatory,” Kozinski wrote in March. “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.”
Monday’s hearing in the 4th Circuit provided a glimpse into what Chin and his legal team must overcome to prevail in their arguments next week.
At one point in the two-hour hearing Judge Paul Niemeyer asked: How far back in history can the courts go in assessing Trump’s motives?
“Can we look at his college speeches? How about his speeches to businessmen 20 years ago?” Niemeyer asked.
Judge Dennis Shedd chimed in, questioning how long Trump’s “taint” will last: “What if he said sorry every day for a year? Would that do it for you?”
In defense of his arguments, Omar Jadwat, an attorney for the American Civil Liberties Union, repeatedly relied on a Supreme Court precedent: Kerry v. Din, a 2015 case in which Justice Anthony Kennedy wrote that the premise of the executive branch’s immigration decisions could be questioned, if there is “an affirmative showing of bad faith” in its rationale.
In lawsuits against the travel ban, Jadwat argued, the Din standard is exactly what’s called for.
Later, Wall conceded that the Din standard could apply in extreme cases. But he argued that, even then, the courts still won’t be able to get too far, given that past statements by Trump and his aides are “ambiguous” at best and open to different interpretations.
And Wall dismissed Trump’s “we all know what that means” remark as simply “an offhand six-word statement.”
“There are different ways to read those statements, and the ‘presumption of regularity’ requires reading them in a way that is not most hostile to the president,” Wall said.
But Jadwat delivered a counterargument by driving home the importance of the remark: If Trump really had only terrorists in mind when issuing the travel ban, “there would have been no reason to say, ‘We all know what that means,'” he said.