//  4/17/18  //  In-Depth Analysis

On April 25, the Supreme Court will hear oral argument on Travel Ban 3.0. To assist the Court in its deliberations, Robbie Kaplan and I have filed an amicus brief on behalf of forty-four constitutional scholars. In drafting this brief, we worked especially closely with Professors Micah Schwartzman, Nelson Tebbe, and Corey Brettschneider.  

Our amicus brief makes four points:

First: The Establishment Clause, the Free Exercise Clause, and the Equal Protection Clause speak as one in forbidding the government from acting on the basis of animus against particular religions.

Second: The extraordinary record in this case demonstrates that President Trump issued Travel Ban 3.0 on the basis of anti-Muslim animus.

Third: There is no merit to the President's claim that a review process has cured any animus that may have lingered from the first and second travel ban orders. There is only a single presidential policy here: the "travel ban." Each and every instantiation of it flows from the same forbidden animus. Holding otherwise would destroy lines of political accountability within the executive branch. That outcome would also be inequitable: the president should not be allowed to publicly proclaim his own anti-Muslim animus and then assert through counsel that his motives are pure. 

Finally: Even if animus was not the only reason for issuing Travel Ban 3.0, it was a primary and essential motive. As we have learned from Korematsu, animus corrupts and distorts even legitimate motives—including national security. Accordingly, Trump's invocation of security concerns cannot end this case.

Here's how the brief concludes:

Through his statements, the President has demonstrated to the American people—and to a global audience—that the Proclamation exists to stigmatize and denigrate Muslims. That understanding is now widely shared, unlike the security rationales that the President’s lawyers have emphasized in their court filings. If this Court were to uphold the President’s travel ban, it would teach an entire generation that principles of religious liberty do not prohibit the President from exercising his vast powers on the basis of a desire to harm a religious minority. That is wrong as a matter of constitutional law, and it would be a disastrous message to send at this moment in history.

Respectfully, the Court should not abide a Proclamation universally—and correctly—understood to flow from the President’s anti-Muslim animus.

If you're interested in our full argument, check out the brief. If you're more interested in hitting the highlights, here is a summary of the argument:

I. In its decision affirming a preliminary injunction against Proclamation No. 9645, 82 Fed. Reg. 45,161 (Sept. 24, 2017), the Fourth Circuit relied on McCreary County v. ACLU of Ky., 545 U.S. 844 (2005), and the secular purpose prong of Lemon v. Kurtzman, 403 U.S. 602 (1971), to hold that the Proclamation is invalid because a “reasonable observer” would conclude that it rests on “anti-Muslim bias.” IRAP v. Trump (“IRAP II”), 883 F.3d 233, 267 (4th Cir. 2018). That ruling was correct.

But the Fourth Circuit also held that the Proclamation must be invalidated under a distinct legal principle: the prohibition on official action based on 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 rule has been recognized as fundamental under the Establishment Clause. And it is directly applicable here. See IRAP II, 883 F.3d at 256-57 (“Examining official statements from President Trump and other executive branch officials . . . we conclude that the Proclamation is unconstitutionally tainted with animus toward Islam.”). 

Indeed, while the Fourth Circuit focused mainly on Lemon’s secular purpose prong, 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) . As the Fourth Circuit observed, “Plaintiffs offer undisputed evidence that the President of the United States has openly and often expressed his desire to ban those of Islamic faith from entering the United States.” IRAP II, 883 F.3d at 269.

II.A. The extraordinary record in this case confirms that President Trump’s motive in issuing the Proclamation was anti-Muslim animus. During the campaign, Mr. Trump repeatedly promised voters that he would ban Muslims from entering the United States. When his “Statement on Preventing Muslim Immigration” was criticized on constitutional grounds, Mr. Trump switched his rhetoric and began referring to “territory.” Upon taking office, President Trump promptly made good on his animus-laden promise by issuing a sweeping executive order (“EO-1”) that lacked any discernible connection to a recognized security threat. While not explicitly denominated a “Muslim Ban,” EO-1 was widely seen as fulfilling that campaign promise. Dispelling any doubt, President Trump and his advisors made numerous statements confirming that EO-1 was intended to serve as his long-promised “Muslim Ban.” See J.A. 228-29, 377-79.

After EO-1 was enjoined, President Trump issued a second executive order (“EO-2”) similar to the first. At that time, the President’s campaign website still called for a “total and complete shutdown of Muslims entering the United States.” J.A. 400. When asked about the basis for EO-2, the President’s senior advisors assured the public that it involved the same “basic policies” and “policy outcome” as EO-1, and addressed only “technical issues.” J.A. 127, 401. The President, in turn, warned that he resented this “watered down Travel Ban.” J.A. 132. The President later added that he preferred a “larger” and “more specific” travel ban, but knew that would not be “politically correct.” J.A. 133. Then, as now, the President had only ever identified a single class as meriting a “larger” and “more specific” ban: Muslims. 

Like EO-1, EO-2 was designed to exclude and demean Muslims. On that basis, multiple courts enjoined it in whole or in part. Nonetheless, they allowed the review process required by EO-2 to proceed. During that review, the President made a series of statements about the policy he preferred. See J.A. 133. Consistent with his unequivocal and unchanged position on prohibiting Muslims from entering the country, the President then issued the Proclamation, which tracks EO-2 in all material respects. Although the Proclamation seeks to obfuscate its targeting of Muslims by adding North Korea and Venezuela, its actual effect on entry from those nations is marginal. See J.A. 355-56. Moreover, “the criteria allegedly used in the review . . . lie at odds with the list of countries actually included in the Proclamation.” IRAP II, 883 F.3d at 269.

On November 29, 2017, the President again confirmed that his underlying “travel ban” policy and his choice to make anti-Muslim statements are closely linked. That day, he retweeted (and thus endorsed) three anti-Muslim hate videos produced by a foreign extremist group: (1) “Muslim destroys a Statue of Virgin Mary!”; (2) “Islamist mob pushes teenage boy off roof and beats him to death!”; and (3) “Muslim migrant beats up Dutch boy on crutches!” See IRAP II, 883 F.3d at 267. When asked why the President had done so, Deputy Press Secretary Raj Shah noted that “the president has been talking about these security issues for years now” and has “addressed these issues with the travel order that he issued earlier this year . . . .” Id. 

An extensive public record thus establishes that in issuing the Proclamation—and its predecessors— President Trump was adhering to his animus-laden campaign promise, rather than acting for any constitutionally legitimate reason. 

II.B. The President’s lawyers cannot deny that the Proclamation is invalid if it was issued to harm Muslims. So, instead, they invoke the inter-agency review process required by EO-2 to support their claim that the Proclamation rests only on “neutral criteria.” Br. 71. There are two basic flaws in this argument. 

First, the Proclamation was issued by the President, who alone holds “the executive Power,” U.S. Const. art. II, § 1. And here, the President has repeatedly rejected, criticized, and departed from the various policy rationales presented to the courts by his unelected subordinates. See, e.g., IRAP II, 883 F.3d at 264-65. It would disrespect the Office of the Presidency—and destroy lines of political and electoral accountability— for this Court to treat the President as insignificant in the issuance of his own Proclamation. His statements about its purpose must be considered authoritative. As the Court has explained, “The people do not vote for the ‘Officers of the United States.’ They instead look to the President to guide the ‘assistants or deputies . . . subject to his superintendence.’” Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477, 497-98 (2010) (citations omitted). 

In the Establishment Clause context, it is particularly appropriate to hold the President accountable for his statements when he has used them to shape public understanding of his policy. By virtue of the President’s anti-Muslim remarks, millions of people comprehend that the Proclamation targets Muslims for stigma and exclusion. 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.”). If the President’s words mean nothing for constitutional purposes—even as they mean everything to those affected by his Proclamation—then the rule of law will suffer. It would be anomalous for this Court to ignore presidential statements broadcast to the world, while embracing litigation-oriented rationales offered by the President’s advisors.

This Court’s decision will reverberate throughout American life. It will teach the people of this nation—and migrants worldwide—about the meaning of the Constitution. And as a result of the President’s harmful statements, any decision by this Court that upholds the Proclamation will send a message that the Constitution allows the President to ban people because he disapproves of their faith. 

Second, the question here is not whether the interagency review process cured lingering animus from EO-1 and EO-2. Put differently, this case is not about whether the Proclamation is tainted by past illicit intentions that are now extinguished. Rather, the ultimate question is whether the Proclamation—and the “travel ban” policy that it implements—would exist at all in the absence of continuing anti-Muslim animus. See McCreary, 545 U.S. at 872-73. 

The Proclamation cannot be understood in isolation. The President has repeatedly promised to ban Muslims from entering the United States. Since taking office, he has never disavowed that promise. Instead, he has tacitly reaffirmed it, while grudgingly switching to a ban based on territories. The President has also made many openly anti-Muslim statements, and has linked these “politically incorrect” remarks to his calls for a ban that is simultaneously “larger” and “more specific.” J.A. 133. The rationales contained in the Proclamation itself appear nowhere in these statements. The only common thread in the President’s remarks about his travel ban—from EO-1 to the Proclamation—is a pejorative view of Muslims and a desire to keep a large number of them out. 

Accordingly, the adequacy and neutrality of the inter-agency review process are beside the point, although there is ample reason to doubt both. That review did not precede the travel ban. Rather, it occurred after the essential policy determination had already been made. And it functioned primarily to legitimize a presidential command that was born of animus, persists in animus, and seeks to make animus the law of the land. No matter how many officials affix their names to it, the Proclamation rests on a rotten foundation. And rather than seek to cure that animus, the President has only continued to espouse it in public statements. Because no version of the “travel ban” would exist in the absence of improper motives, it is irrelevant that multiple agencies participated in drafting the latest instrument implementing it.

III. Even if this Court were to conclude that national security concerns played some role in the Proclamation’s enactment, that still would not save it. Animus may co-exist with legitimate motives. Where the government acts on the basis of mixed motives, courts do not hesitate to invalidate official acts when animus was an essential or primary motive—as it most certainly was here. See Windsor, 133 S. Ct. at 2693; Lukumi, 508 U.S. at 535; Larson, 456 U.S. at 248.

The importance of that principle is confirmed by reference to original understanding. This country was founded to welcome people of all faiths and to reject religious intolerance. 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.” James 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 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 espoused the animus that motivated his promises—and his subsequent acts—to ban a large number of Muslims from entering the United States. As a result of his statements, a decision by this Court upholding the Proclamation would deliver a powerful blow to popular faith in the First Amendment as a shield against official religious prejudice. Respectfully, for freedom to endure, the Proclamation must be enjoined.


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