In announcing the first travel ban in January, President Donald Trump said, “This is the ‘Protection of the Nation from Foreign Terrorist Entry into the United States.’ We all know what that means.”
As it turns out, we do. It means that you are trying to implement a ban on Muslims entering the country under the guise of protecting national security. And, as the 4th Circuit held Thursday, that’s unconstitutional.
The language of the opinion is rich and direct. The chief judge notes that the travel ban offers “vague words of national security” but, in reality and effect, “drips with religious intolerance, animus, and discrimination.” Those are powerful words, made even more powerful by the assent of the six other judges who signed their names to this opinion. It’s a stinging slap in the face to Trump and anyone else who dares to defend the ban as constitutional.
I have to admit that I was initially one of those defenders. Not because I agree with the policy; I don’t. And not because I thought the first travel ban was OK; I didn’t. But I thought that the new and improved travel ban was probably enough to survive a constitutional challenge. I thought they had cleaned it up enough to get by the courts because the order itself contained nothing to support the argument that the ban was focused on religious discrimination.
The first ban contained language that gave preference to Christians — religious minorities — in mostly Muslim countries, and was silent about the rights of people who already held visas or had been approved to enter the United States. I did not expect that the judges would be willing to look behind the words written in the order to discern true intent.
But I also didn’t expect the Trump team to be so arrogant, or so foolish in their statements when they issued the new order. In announcing the revised travel ban, White House spokesman Sean Spicer said, “The principles of the executive order remain the same.” And Stephen Miller, senior policy adviser to the President, told reporters that the new order would “produce the same basic policy outcome for the country.”
Why in the world would you say these things? If you really believe the first order was constitutional, why issue a new one? And if you are issuing a new order so that it will get past the courts, why would you say it’s the same as the old one?
The only way a court can get into the issue of intent beyond the plain language of the order is to find that the purported justification for the travel ban is a lie. That’s exactly what these judges indicated. They found that “national security” was just an excuse offered in “bad faith” to try to justify a discriminatory action based on religion.
In reaching this conclusion, the court ticked off various comments made by Trump and others, both before and after the election. The court cited, for example, an interview Trump gave to CNN in March 2016 in which he said “I think Islam hates us” and “We can’t allow people coming into the country who have this hatred.” Even if this were true, which it is certainly not, it can’t justify a ban on members of a particular religious group.
It’s important to know that the opinion wasn’t issued by some rogue “so-called judge” — a term Trump used to discredit Judge James Robart after he ruled against the President’s first travel ban — from left field. It was issued by a majority of the entire 4th Circuit. The 4th Circuit is not commonly thought of as a “liberal court,” as Trump suggests the 9th Circuit is. It is considered a moderate to conservative court, not known to push the envelope with judicial decisions or to create new law.
The Justice Department announced within hours of the decision that it intends to “vigorously defend” the travel ban. Either the lawyers at the Department of Justice actually believe the travel ban is constitutional (possible, but doubtful), or they are just following orders so they don’t get fired like Sally Yates.
Of course, the department has the right to ask the Supreme Court to consider the case. But the court doesn’t have to take it. This is the type of case that can only be heard by the justices if they want to hear it. There is currently no “split in the circuits” because there is no contrary ruling from the 9th Circuit or any other circuit.
That means that this case is not the type of case the Supreme Court normally accepts. The fact that the 4th Circuit’s opinion is limited to a decision on a preliminary injunction makes it even less likely that the Supreme Court will see any real need to weigh in on the issue at this time.
Regardless of the reason, a vigorous defense won’t make this order any less discriminatory or any more constitutional. The evidence of this unlawful intent comes straight from the mouth of the President. And that’s something the Justice Department won’t be able to defend, no matter how “vigorously” they may try.