//  3/27/17  //  In-Depth Analysis

On Friday, the federal government filed its brief in the Fourth Circuit Court of Appeals challenging the Maryland district court decision which held that the Trump administration’s ban on travel from several Muslim-majority countries was likely unconstitutional. The government’s brief is shockingly aggressive in its characterizations of the facts. Although we have come to expect these kinds of “alternative facts” from the White House, it is slightly jarring to see something similar in a brief filed by the Department of Justice (DOJ). Less surprising is DOJ’s very aggressive summary of the applicable law—specifically, its view on when a President’s “immigration-related” action may be unconstitutional. A few quick notes on each of these points below:

The Government's (Alternative) Facts

The government’s brief faults the district court for relying too much on statements made by candidate Trump, rather than President Trump.  I’ll quote the relevant portions of brief so as not to change their meaning:

  • Virtually all of the President’s statements on which the district court relied were made before he assumed office. . . .”
  • Virtually all of the statements also preceded the President’s formation of a new Administration. . . .”
  • “[T]he court reasoned that statements by the President—nearly all before assuming office, while still a private citizen and political candidate—and informal remarks of his aides imply that the entry suspension is [unlawful].”

(Emphases mine.) 

Having read the district court decision, these statements rang a bit hollow, to put it mildly. To put it precisely, I would say these statements rang flat out untrue. 

For those who have not read the district court decision that the government is referring to, I made a nice little chart to summarize the statements by President Trump and his allies that the district court relied on—so you can assess the veracity of the government’s representations for yourself:

Date

Speaker

Before/after assumed office

Medium

Dec. 7 2015

Trump campaign

Before

Campaign website

Dec. 7 2015

Trump

Before

Twitter

March 9 2016

Trump

Before

Interview

March 22 2016

Trump

Before

Interview

July 24 2016

Trump

Before

Interview

Dec. 21 2016

Trump

Before

Interview

Dec. 21 2016

Trump

Before

Written statement

Jan. 27 2017

Trump

After

Interview

Jan. 27 2017

Trump

After

When signing EO

Jan. 28 2017

Rudy Giuliani

After

Interview

Feb. 12 2017

Trump campaign/administration

After

Website

Feb. 16 2017

Trump

After

Press conference

Feb. 16 2017

Stephen Miller (aide to President)

After

Interview

March 6 2017

Sean Spicer (spokesman for President)

After

Press conference

March 2017

Department of Homeland Security Officials

After

Affidavit

March 6 2017

Attorney General & DHS Memo

After

Memo

March 7 2017

John Kelly (DHS Secretary)

After

Interview

I am not sure how to define the phrase “virtually all.” (Maybe the government means “in an alternative universe which does not reflect the actual one”?)  By my count—and I briefly toyed with the idea of being a math major, so I think I’m right here—less than half of the statements the court relied on were made “before” the President took office. There are seventeen statements; ten were made after the election; and seven before.  Less than half of the statements were made by people other than the President.   There are seventeen statements; six were made by persons or offices other than the President or his campaign.  

I’m sure Kellyanne Conway has an explanation for why the government’s statements are nonetheless true. But that’s not how facts work in court.

The Government’s Aggressive Statements On The Law

Then come the government’s claims about the law, and how DOJ thinks that courts should analyze the lawfulness of the executive order.  (I will focus here on the Establishment Clause claim.)

First, the government repeatedly recites the line that courts may determine only whether the executive has offered a “facially legitimate and bona fide” reason for the executive order (emphases mine). As Daniel Hemel has explained on this blog, “bona fide” means in good faith—that is, according to the government’s own standard, courts must satisfy themselves that the stated reasons for the order are in fact the reasons that motivated the order.  Here, there is every reason to think the “national security” rationale is bunk—indeed, DHS itself has concluded that nationality is not a reliable indicator for terrorism or security risk.  And the President has repeatedly and openly stated what the “true” purpose of the order is.

Second, the government’s brief indirectly proves that its understanding of the law would wipe out any kind of judicial review of whether a President’s actions were taken for “bona fide” reasons.  The government’s only argument for why the order was motivated by a “bona fide” reason is that the order itself states an “explicit, religion-neutral objective” (national security):  “As the Order itself explains, it applies to six countries based on risk.” The government elsewhere argues that courts cannot consider the statements made by the President or his subordinates. This understanding of the law, as many, many, many, many contributors to this blog have explained, is wrong.

And it’s wrong for good reason—the government’s understanding of the law would effectively foreclose any inquiry into the government’s motives.  In the government’s view, the only cases in which courts could consider the government’s motives would be where an order is facially discriminatory, or the discriminatory motives are stated in an order itself.  The government’s view also makes little sense—if a law’s “facial neutrality is not dispositive” to a law’s constitutionality, why on earth would a law’s facial statement of its purpose be dispositive?  

Third, the government attempts to leverage the fact that the second executive order was “in response to courts’ concerns” as an argument for the lawfulness of the revised entry ban.  But that fact cuts in the opposite direction here—it illustrates that the second order was trying to do the very same thing the first order did (namely, ban Muslims and privilege Christians).  That fact also illustrates the absurdity of the government’s position on when the government’s “purpose” might be relevant to constitutional analysis:  It would mean that the government could evade any inquiry into the government’s motives by adopting a facially neutral order.  That’s not the law, and courts shouldn’t use this case to make it the law.

Fourth, the government repeatedly trots out general principles that have little relevance to this case.  For example, the government warns that courts are “ill equipped” to evaluate the “adequacy” and “authenticity” of the “reasons underlying [the Executive’s] foreign affairs and national-security judgments.”  (Which is why it’s so helpful that DHS itself has stated that the national security rationale is bunk!)  The government warns of “potentially litigant-driven discovery” that would disrupt the executive branch, and of “impermissible intrusion on privileged internal Executive Branch deliberations.” 

Okay. But none of that tells us what should happen in a case where the President and his subordinates have already put statements about an order’s “true” purpose into the public record.  This case doesn’t require a wild goose chase into the secret and supposedly unknowable machinations of the executive branch.  As the district court reasoned, the record in this case is “unique”—it’s all already there. The question is just whether courts will ignore it.

Fifth, the government insists that courts should accept Judge Kozinski’s made-up rule against considering all statements that were made before the President assumed office.  As numerous commentators on this blog (and elsewhere) have explained, Judge Kozinski’s view, stated in dissent, is not the law.

Imagine that the Trump administration enacted its first (or second) ban on travel from several Muslim majority countries on the very first day that Trump took office. At that point, Trump could not have received any review or input from DHS or DOJ.  And we are supposed to nonetheless credit a statement in his executive order that the order was issued for “national security reasons”? Can we not consider any of the statements made up to that point? The government notes that “politicians have invoked religious doctrines . . . on the campaign trail in support of positions on a host of issues.”  But it is one thing to say your Christianity leads you to support aid to the poor, like health care.  (Or to say your Judaism leads you to support opening our borders to persecuted religious groups who face the threat of death in their home countries.) It is entirely different to say (in so many words) “I really want this country to be a Christian nation rather than a Muslim one and will be sure to implement policies to achieve that goal!”

The government offers several reasons why courts cannot rely on statements that were made before inauguration, but none of them are particularly persuasive.  It is true that, before the election, the President hasn’t yet taken an oath to uphold the Constitution.  But the pre-election statements illustrate why the President might be failing to do so once he has taken the oath and assumed the Office of the Presidency. The oath is part of the process that formally transfers the power of an office to an individual; it does not transform the individual in that office or wipe away our memory of all that has happened to that date. 

The government also implies that the district court’s decision might chill some political speech. If the decision leads candidates not to run on statements that they don’t like Muslims, I guess that’s a consequence. It’s not obviously a bad one; It might even further other constitutional values, such as democratic accountability. More to the point, the district court’s decision wouldn’t have the kind of fallout the government implies it would—the decision just doesn’t say what would happen if a future candidate was more circumspect about the motives behind a particular policy. In that kind of case, courts might be willing to credit the government’s stated purpose. 

Finally, the government simultaneously argues that a court should apply the government’s made-up rule against considering pre-inauguration statements to the President’s subordinates AND criticizes the district court for relying on statements made by the President’s subordinates.  These two things cannot both be true, as the government’s brief itself illustrates. Explaining why its made-up presumption applies to subordinate officials, the government argued, “subordinate Executive officials . . . are designated as the President’s delegates to help him discharge his constitutional responsibility to ‘take Care that the Laws be faithfully executed.’”  That same argument explains why courts can rely on their statements.

Conclusion

The government can try to change the law all it wants; it has a client and his name is Donald J. Trump. But the Fourth Circuit should be unimpressed by this brief.


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