//  9/19/17  //  In-Depth Analysis

Yesterday, Robbie Kaplan and I filed an amicus brief at the Supreme Court explaining why President Trump's "travel ban" is unconstitutional. We were privileged to represent 44 of the nation's leading constitutional scholars. You can read our brief here. (I recently joined Robbie's groundbreaking boutique, Kaplan & Company, in an "of counsel" capacity).

Several months ago, I filed versions of this brief in the Fourth and Ninth Circuits. The main evolution in our argument concerns the President's public statements—before and after inauguration—about why he issued his executive order. DOJ has spun itself in circles trying to avoid those damning admissions of anti-Muslim animus. The Government's submission is rife with formalisms designed to construct an alternative universe where Trump kept his mouth (and Twitter account) shut. Rarely has a brief depended so heavily on a blunt request that the Court blind itself to reality. 

Our amicus brief explains the far-reaching implications of that position: 

While the Government appears keen to distance itself from the President’s troubling statements over the past year, the purpose of an Executive Order directed by the President can hardly be deemed speculative when the President himself has traveled the country telling us why he issued it. As the Fourth Circuit found, time and again President Trump has told the public that the Order exists to ban Muslims because they are a problem and they are not welcome here. Even as that message has come through loud and clear, on Twitter and at political rallies, virtually none of his statements have evinced concern for supposedly unique threats from the six Muslim-majority nations covered by the Order. His motives here are not inscrutable, as his lawyers have repeatedly (but implausibly) insisted. 

Great mischief could follow from a holding that allowed the President to speak about the nature and purpose of his own executive orders without any legal consequence. If the President’s words mean nothing to this Court—even as they mean everything to millions of people affected by his Order—then the rule of law may suffer. Indeed, if the Judiciary were to disregard President Trump’s statements, the gap between lived reality and constitutional law would grow intolerably vast. As a matter of law and public legitimacy, it would be anomalous for this Court to test the constitutionality of the Order in a parallel reality, where statements broadcast (and tweeted) on a global stage are treated as non-existent. 

This Court’s decision will reverberate throughout American life. It will teach the people of this Nation— and migrants worldwide—about the meaning of freedom and the Constitution. If this Court upholds the Order, people of all faiths, but especially Muslims, will learn that the First Amendment permits the President to ban people from this Nation because he disapproves of their faith. Respectfully, that is not the law and this Court should not make it so. 

Again, you can read our full brief here.  Following below is the summary of argument, which distills our case against the travel ban.

Summary of Argument

The Fourth Circuit properly protected religious liberty by affirming a preliminary injunction against Executive Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 9, 2017) (the “Order”). Relying on McCreary County v. ACLU of Ky., 545 U.S. 844 (2005), and Lemon v. Kurtzman, 403 U.S. 602 (1971), it held that the Order is unconstitutional because a “reasonable observer would likely conclude that [its] primary purpose is to exclude persons from the United States on the basis of their religious beliefs.” J.A. 236. Under settled law, that ruling should be affirmed.

But the Fourth Circuit also concluded that the Order cannot stand under a distinct legal principle— repeatedly confirmed in Religion Clause cases—that forbids the government from acting on the basis of animus toward any particular religious group. See, e.g., Town of Greece v. Galloway, 134 S. Ct. 1811, 1822 (2014); id. at 1831 (Alito, J., concurring); Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 722, 728 (1994) (Kennedy, J., concurring in the judgment); Larson v. Valente, 456 U.S. 228, 244 (1982); see also Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993); Romer v. Evans, 517 U.S. 620, 632-35 (1996). This fundamental rule has been recognized by jurists of many different persuasions in Establishment Clause cases. And as the Fourth Circuit concluded, it is directly applicable here. See J.A. 236 n.22 (“There is simply too much evidence that [the Order] was motivated by religious animus for it to survive any measure of constitutional review.”).

Indeed, while the Fourth Circuit focused on Lemon’s secular purpose requirement, the facts that it considered even more clearly demonstrate anti-Muslim animus under familiar means of discerning improper motive. See, e.g., Town of Greece, 134 S. Ct. at 1824- 26; Locke v. Davey, 540 U.S. 712, 724-25 (2004); Lukumi, 508 U.S. at 534-36; see also, e.g., United States v. Windsor, 133 S. Ct. 2675, 2693-94 (2013); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 447 (1985). That conclusion is compelling based solely on President Trump’s post-inauguration statements. But it is even more forcefully confirmed by a careful review of his pre-inauguration admissions of anti-Muslim animus—which, under precedent, must be considered as part of the legal analysis, and which are necessarily incorporated by reference into more recent presidential statements.

The extraordinary record in this case demonstrates that President Trump’s principal motive in issuing the Order—and in gerrymandering it in peculiar ways— was anti-Muslim animus. After repeatedly promising voters during the campaign that he would ban Muslims from entering the United States, upon taking office, President Trump promptly issued a sweeping, unprecedented, and bizarrely-structured order with no discernible connection to an actual national security threat. While not explicitly denominated a “Muslim Ban,” the Order (even as subsequently revised) came close enough to realizing that goal to satisfy his anti-Muslim election-season promise. And in case the point somehow remained unclear, President Trump has since made numerous statements—as recently as a series of tweets on June 5, 2017—to the effect that excluding Muslims was the Order’s true purpose. An extensive public record thus establishes that in issuing the Order, President Trump was following through on his animus-laden campaign promise, rather than acting for any constitutionally legitimate reason. 

While the Government appears keen to distance itself from the President’s troubling statements over the past year, the purpose of an Executive Order directed by the President can hardly be deemed speculative when the President himself has traveled the country telling us why he issued it. As the Fourth Circuit found, time and again President Trump has told the public that the Order exists to ban Muslims because they are a problem and they are not welcome here. Even as that message has come through loud and clear, on Twitter and at political rallies, virtually none of his statements have evinced concern for supposedly unique threats from the six Muslim-majority nations covered by the Order. His motives here are not inscrutable, as his lawyers have repeatedly (but implausibly) insisted. 

Great mischief could follow from a holding that allowed the President to speak about the nature and purpose of his own executive orders without any legal consequence. If the President’s words mean nothing to this Court—even as they mean everything to millions of people affected by his Order—then the rule of law may suffer. Indeed, if the Judiciary were to disregard President Trump’s statements, the gap between lived reality and constitutional law would grow intolerably vast. As a matter of law and public legitimacy, it would be anomalous for this Court to test the constitutionality of the Order in a parallel reality, where statements broadcast (and tweeted) on a global stage are treated as non-existent. 

This Court’s decision will reverberate throughout American life. It will teach the people of this Nation— and migrants worldwide—about the meaning of freedom and the Constitution. If this Court upholds the Order, people of all faiths, but especially Muslims, will learn that the First Amendment permits the President to ban people from this Nation because he disapproves of their faith. Respectfully, that is not the law and this Court should not make it so. 

Further, even if this Court were to conclude that national security concerns played some role in the Order’s original enactment (and its baffling continuation over eight months later), that still would not save it. Animus may co-exist with legitimate motives. As this Court has explained, where the government acts on the basis of mixed motives, courts do not hesitate to invalidate official acts when animus was a primary or essential motive, as it was here. See Windsor, 133 S. Ct. at 2693; Lukumi, 508 U.S. at 535; Larson, 456 U.S. at 248. 

In that respect, Korematsu v. United States, 323 U.S. 214 (1944), is instructive. As Korematsu teaches, the combination of animus and an actual (or perceived) national security threat is uniquely toxic: a veneer of noble motive can be invoked to justify the most horrid abuses. Even if an official begins with some good intentions, animus corrupts and distorts any motive it touches. Here, only by ignoring months of clear and consistent statements by the President could it be thought that he did not act on the basis of animus toward Muslims in following through on his promise to ban them from entering the United States. Not only did he ban many Muslims from entering the nation, but he has also repeatedly made anti-Muslim claims inflicting stigma and disability on Muslims nationwide. See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 315 (2000) (“We refuse to turn a blind eye to the context in which this policy arose . . . .”). While the President often enjoys a presumption of regularity, here that presumption is rebutted by myriad instances of irregularity that comprise an assault on religious liberty in America. 

In 1785, James Madison warned against any law departing “from that generous policy, which, offering an Asylum to the persecuted and oppressed of every Nation and Religion, promised a lustre to our country, and an accession to the number of its citizens.” Madison, Memorial and Remonstrance Against Religious Assessments ¶ 9 (1785). He added: 

Instead of holding forth an Asylum to the persecuted, [the Bill] is itself a signal of persecution. It degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority. Distant as it may be in its present form from the Inquisition, it differs from it only in degree. The one is the first step, the other the last in the career of intolerance. The magnanimous sufferer under this cruel scourge in foreign Regions, must view the Bill as a Beacon on our Coast, warning him to seek some other haven, where liberty and philanthropy in their due extent, may offer a more certain repose from his Troubles. 

Id. The bill against which Madison remonstrated has been consigned to the dustbin of history. But the underlying evils against which Madison warned are still with us. This case does not present them in disguise. No, “this wolf comes as a wolf.” Morrison v. Olson, 487 U.S. 654, 699 (1988) (Scalia, J., dissenting). President Trump has repeatedly expressed the animus that motivated his promises, and subsequent acts, to ban persons of a single faith from entering the United States.For religious liberty to endure, the Order must be enjoined. 


Complicity and Speech: The Right’s New Effort to Rewrite the First Amendment

12/4/17  //  In-Depth Analysis

Conservative legal activists have pushed a sweeping view of the First Amendment’s protection against compelled speech. These new complicity claims should fail.

Trump’s Newest Attack on the Rule of the Law

12/4/17  //  Commentary

Trump isn’t just reckless, and he doesn’t just seem to think he is above the law. He has an authoritarian’s hostility to the very idea of a principled inquiry into the truth.

David Sklansky

Stanford Law School

DOJ Will No Longer Assist Covered Entities in Understanding the Law

11/21/17  //  Latest Developments

The new approach does not mean the DOJ will no longer make policy. It just means the Department will no longer tell covered entities and protected individuals what those policies are.

Eve Hill

Brown Goldstein & Levy