Leah Litman // 3/16/17 //
On Wednesday March 15, a federal district court in Hawaii entered a temporary restraining order against Executive Order 13780, the Trump Administration’s revised ban on travel from several Muslim-majority countries. EO 13780 was set to take effect on March 16 at 12:01 a.m. Eastern Daylight time (coincidentally, also when this blog was launched). Executive Order 13769, the Trump administration’s original ban on travel from several Muslim-majority countries, had been temporarily restrained by the Ninth Circuit Court of Appeals (which upheld a TRO against the EO). The original EO banned travel from seven Muslim-majority countries, whereas the revised EO bans travel from six. And just hours after the district court temporarily restrained the revised EO, the entire Ninth Circuit Court of Appeals declined to rehear the panel decision that upheld the temporary restraining order against the original one.
The Ninth Circuit had upheld a Washington district court decision that found the plaintiffs were likely to succeed on their claim that the original EO violated the Due Process Clause of the Fifth Amendment. This time around, however, the district court in Hawaii determined that the plaintiffs (the State of Hawaii and Dr. Ismail Elshikh) were likely to succeed on their claim that the revised EO violated the Establishment Clause of the First Amendment. Another district court in Virginia had previously enjoined the original EO on Establishment Clause grounds. In a key passage from the Hawaii opinion, the court concluded that “targeting these countries”—“countries [that] have overwhelmingly Muslim populations that range from 90.7% to 99.8”—“targets Islam.”
Why The Establishment Clause?
The Establishment Clause provides that Congress, and by extension the President, shall “make no law respecting an establishment of religion.” The district court concluded that the plaintiffs were likely to succeed in showing that the revised EO “was issued with a purpose to disfavor a particular religion”—namely, Islam.
But why is that an establishment clause issue, instead of a free exercise issue? The First Amendment also forbids Congress and the President from “prohibiting the free exercise,” or practice, of a religion—and by “disfavor[ing]” Islam, didn’t the revised EO inhibit the practice of Islam, rather than “establishing” another religion?
While establishment clause doctrine is far from clear, the district court was right to say that the government can violate the Establishment Clause by disfavoring a religion. That’s because the government can build up some religions by cutting others down. And the xenophobic, nationalist comments that have come from the Trump administration suggest that purpose may have been a driving force behind both EOs. During the campaign, candidate Trump infamously called for a Muslim registry, mass surveillance of Muslims and mosques, and shutting down mosques when “some bad things happen.” And his adviser Stephen Bannon wrote a documentary-style script in which he warned against the United States becoming the “Islamic States of America.”
It was these Trump statements (and many others) that ultimately persuaded the court to conclude that the EO was driven by a desire to target Muslims. In the court’s words, the leadup to the EO contained “significant and unrebutted evidence of religious animus driving the promulgation of the EO and its related predecessor.” To summarize just some of that leadup:
The district court didn’t even cite other statements, such as when Trump said “we’re having problems with the Muslims.” Or that time he said—about the EO—“call it whatever you want. We’ll call it territories okay?” (Because it’s a Muslim ban, duh!)
Is all that lead-up relevant? The government argued it was not, reasoning that the court could look only to the “text” of the EO, which was “facially neutral” in the sense that it did not mention Islam or Muslims. But it is well established that courts consider both context and history in assessing whether an action comports with the constitution.
In McCreary County v. ACLU, for example, the Supreme Court held that a Ten Commandments display violated the Establishment Clause because the history and lead-up to the display revealed it was religiously motivated. In United States v. Virginia, the Supreme Court rejected the Virginia Military Institute’s (VMI) claim that its male-only admissions policy was designed to expand single-sex educational opportunities. The Supreme Court dismissed that argument by examining VMI’s history, going back to when the institution was initially established, rather than when the state chose to keep VMI a male-only institution and establish a separate, female-only academy. And in the “White Primary” cases, Smith v. Allwright and Terry v. Adams, the Supreme Court concluded that primaries, although run by private parties, were subject to constitutional rules, which are applicable only to state actors. Why? Because of the backstory of the challenged primaries: courts had previously held that the states in which those primaries took place could not exclude African Americans from primaries, and the states attempted to get around those rulings by transferring control of the primaries to private entities, who aren’t subject to the Constitution’s prohibitions against racial discrimination. Context, not just text, is relevant to constitutional analysis.
Indeed, hours after the district court’s decision, the President only bolstered the court’s conclusion that all of the lead-up to the revised EO is relevant. Speaking to a crowd, the President announced that the second EO was just a “watered down” version of the first EO. Unwilling (or unable) to stop there, the President continued: “And let me tell you something, I think we ought to go back to the first one and go all the way, which is what I wanted to do in the first place.”
Will all of President Trump’s actions forever be tainted by his history of anti-Muslim statements? No. But there is a clear path between the revised EO and candidate Trump’s anti-Muslim rhetoric, which he used to explain his desire to keep Muslims out of the country. The administration can’t make the President’s anti-Muslim statements disappear just by enacting a new EO. (Free advice to White House Counsel: A third travel ban that subtracts one more Muslim country would still be a Muslim ban.)
You Can Put Lipstick on a Pig…
The Hawaii decision also illustrates how courts can use the Trump administration’s utter disregard for basic constitutional values to justify a closer look at his administration’s policies. Most presidential administrations are run with a degree of professionalism and plausible deniability that the Trump administration utterly lacks. The Trump administration—from the President to his subordinates like Stephen Miller—seem all too eager to depict the administration’s travel bans as Muslim bans. No amount of lawyering from the Department of Justice can cover that up.
Moreover, the doctrines that profess deference and respect for the executive were not designed to address this kind of flagrant disregard for the law. Nor do they address situations where the President appears to suffer from—for lack of a better phrase—uncontrollable diarrhea-of-the-mouth.
So while it’s generally true that courts give substantial deference to the executive in areas of immigration, they can’t avert their eyes when the President himself is proclaiming that his policies aren’t driven by any foreign policy or national security considerations, and are instead motivated by anti-Muslim sentiment. (Nor can they ignore when the Department of Homeland Security says that his policies can’t be justified on grounds of national security.)
The Department of Justice has yet to spell out its plans, but it’s likely the administration will appeal the district court’s ruling to the Ninth Circuit. In last night’s address, the President stated that he would take the case to the Supreme Court, if necessary. If the administration goes that route, the Ninth Circuit’s decision upholding the temporary restraining order against the first EO will stand in the administration’s way in some respects. For example, the district court relied on the Ninth Circuit’s decision to conclude that “evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.” (There are many other cases to support this claim as well, but the Ninth Circuit’s decision is both very recent and very relevant.) The court also relied on the Ninth Circuit’s decision to conclude that the plaintiffs had standing to challenge the EO.
That’s part of why it’s important that the entire Ninth Circuit elected not to vacate its original panel decision on the first travel ban. The other reason the decision to leave the panel decision in place is significant is that it provides some clues about how the Ninth Circuit motions panel might view the EO. If this round of EO litigation is handled on a similar timetable as the last round, then the motions panel for this month will probably address the government’s appeal. The current motions panel consists of Judges Milan Smith, Owens, and Christen. None of those three judges joined the dissenting opinion, written by Judge Jay Bybee, that criticized the Ninth Circuit’s decision on the first EO and called for rehearing en banc.
One Last Note
It is easy to look at the decisions enjoining the EOs and conclude that federal courts will be there to protect us against the Trump administration. That would be a mistake. Our institutions are only as strong as the people behind them. President Trump has a lot of judicial vacancies to fill already, so in a few years, some of the cases against the administration will be heard by judges he has appointed. That doesn’t necessarily mean those judges won’t vote against him. But at this point, we don’t really know what kinds of judges Trump will nominate to the district courts or the courts of appeals. (All five of the judges that indicated they would vacate the Ninth Circuit’s decision on the original EO were appointed by Republican presidents, for whatever that is worth.)
For now, at least, some judges will stand up to the administration. Concurring in the order not to rehear the Ninth Circuit’s decision on the original EO, Judge Stephen Reinhardt wrote:
I am proud to be a part of this court and a judicial system that is independent and courageous, and that vigorously protects the constitutional rights of all, regardless of the source of any efforts to weaken or diminish them.
But the Ninth Circuit’s ruling and the district court decision that preceded it did not occur in a vacuum. They occurred in the midst of the protests that surrounded the original EO, protests which made plain that many people understood that the EO embodied anti-Muslim and anti-immigrant sentiment. It is easier for courts to make that same leap if others around them do the same. It may also be easier for courts to stand up to the President when they see other people doing so as well. The President has already challenged federal judges’ authority to review the constitutionality of his actions. Protests provide some indication that the people will stand up for the courts when the President refuses to.
In the debates over the Bill of Rights, Alexander Hamilton wrote that our “security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people.” James Madison made a similar point in a letter to Thomas Jefferson, writing that “a bill of rights will be good ground for an appeal to the sense of the community.” The Constitution—and our laws—are there. But it is up to us, as a community, to make good on them.