//  4/30/18  //  Commentary

The Solicitor General is apparently still trying to figure out why the entry ban is constitutional.  His latest pitch (and closing argument to the Supreme Court!) is the utterly unremarkable fact that before the President ever signed an entry ban, the President said that any ban he might later enact would be lawful. 

I’m paraphrasing, but only by a bit.  To understand how we got here, let’s start at the argument from last week.  Both Mike Dorf and Richard Primus recapped the arguments in Trump v. Hawaii on this blog.  Both of their pieces highlighted some unfortunate formalisms by both sides.  The administration, for its part, continued to imply that anything Trump said before January 20th, 2017 is irrelevant for purposes of assessing the constitutionality of the order.  The challengers maintained either that Trump could have cured the anti-Muslim taint of the order by publicly disavowing his prior anti-Muslim prejudice before issuing the order, or that Trump could cure the anti-Muslim taint of the order by publicly disavowing the prior anti-Muslim prejudice today.

It’s an intriguing possibility that Trump might be able to render the order constitutional (but not necessarily compliant with the pertinent statutes) by disavowing his prior anti-Muslim prejudice.  It's such an intriguing possibility that the Solicitor General chose to end his argument by insisting that the President had already done the necessary cleansing. 

In a rebuttal/closing that puzzled observers, the SG said the following:

My brother's recognition that, if the President were to say tomorrow that he was sorry, all of this would go away. Well, the President has made crystal-clear on September 25 that he had no intention of imposing the Muslim ban. He has made crystal-clear that Muslims in this country are great Americans and there are many, many Muslim countries who love this country, and he has praised Islam as one of the great countries [sic] of the world.

This line of argument struck people as odd because no one was quite sure what “September 25th” statement the Solicitor General had in mind.  Subsequent events have suggested the SG might not be sure what he had in mind, either. 

Several commentators went looking.  When had the President said he was “sorry”?  When did he hold that big event to make clear “that Muslims in this country are great Americans”?  And when did he disavow the campaign promise and say that “he had no intention of imposing the Muslim ban”? 

But no one found any such statements.  Over at the Harvard Law Review blog, Kate Shaw noted:

[T]here doesn’t seem to be any clear September 25th statement along these lines, let alone a “crystal clear” one.

 At Slate, Josh Geltzer also came to the conclusion that

 No such thing seems to have happened on Sept. 25…. Neither of the government’s briefs submitted to the court mention the president making any statement to the effect Francisco claimed on Sept. 25. Nor have I been able to identify from other sources any indications that the president made a statement on that date along the lines suggested by the solicitor general.

The latest order was issued September 24, 2017.  Mike Dorf suggested that perhaps the Solicitor General meant that the order itself did away with the President’s anti-Muslim animus because the order didn’t say “this is a Muslim ban” and the administration is arguing that courts should not look beyond the order itself to decipher its purpose.  The idea that the order itself cured the President’s anti-Muslim animus is also consistent with another argument the administration was pressing—namely, that because the order followed an inter-agency review process, the order reflected their conclusions rather than the President’s bigotry.

The ambiguity surrounding what the President might have said led Shaw to note something of an irony in the administration’s closing argument:

This, then, was the note the Administration ended the argument on: actual presidential statements should be set aside because they do not either reflect or illuminate the “meaning” of the Proclamation, but a mysterious September 25th statement, neither briefed nor obvious from the public record, should be deemed to reflect the President’s intentions. If the Court gets that far, it’s hard to see how the Administration should prevail in this argument.

The Lack Of Any Disavowal 

After the argument, the administration was confronted with an intriguing opportunity:  Disavow the President’s anti-Muslim animus and promise to ban Muslims, and potentially resolve the constitutional claim against the entry ban.  And yet, the administration refused the opportunity that Hawaii handed them on a silver platter, both in a press briefing and every day since the argument.

 At the press briefing, a reporter observed that it had come up at argument that the administration had never disavowed the proposal to ban Muslims.  Does the White House disavow that campaign proposal,” the reporter continued, “or does it stand by it?”

The press secretary (Sarah Huckabee Sanders) did not say yes. She instead gave a characteristically circuitous run-around while at the same time insisting she had answered the question:

The administration’s top priority is to ensure the safety and security of the American people.  For that reason, the administration has put in place enhanced global security measures to improve screening and vetting capabilities and share information.  It’s working.  There’s been significant improvements in identity management and information sharing with foreign governments.  Because of this, our international partners have raised their own baseline requirements.

Without the ability to impose entry restrictions, the United States may be forced to unsuspectingly allow dangerous criminals or terrorists into the country.  Additionally, without the restrictions, foreign governments have little incentive to improve their information-sharing and identity-management practices.

The focus of this travel ban has been on safety and security, is limited to a small number of countries, and a lot of Muslim-majority countries have the same abilities to travel to and from the United States as they did in previous administrations.

I think that alone, in action, answers your question clearly.

You can search that response in vain for anything disavowing the President’s proposal to ban Muslims, or a statement making clear that Muslims are great Americans, or anything that approaches the President being sorry for any of the Islamophobic tweets, retweets, statements, etc. (Sanders’ response also does not answer the question, much less clearly, since she said nothing about the current administration’s posture vis a vis the President’s campaign promise to ban Muslims. In fact, she said nothing about the campaign promise at all, which would be important if she had actually sought to disavow it.)

Every day since the argument (including at a public appearance this past weekend), the President has declined to take the breathtakingly simple step of disavowing his campaign promise.  He’s declined to do the very thing that his litigation opponents conceded in the Supreme Court could, at least if done earlier, address the constitutional claim against the entry ban—disavow the campaign promise and apologize.

The President’s refusal to make such a concession is intriguing, as both Josh and Richard noted.  Why wouldn’t the President just say some darn words, when words mean so little to him?  He’s willing to say both incoherent and obviously false things, so why not add another statement that he doesn’t believe?

The answer, as Richard and Josh suggested, is probably a combination of two things.  One is that the President actually holds the views he refuses to disavow.  The other is that the President knows that the base that elected him, and the portion of the base that will remain loyal to him, holds those views too. (A recent empirical study debunked the idea that the President was carried to victory by voters who were relatively less economically well to do, something Adam Serwer and Ta-Nehisi Coates have both written about in very powerful pieces.  Serwer wrote “These supporters will not change their minds, because this is what they always wanted: a president who embodies the rage they feel toward those they hate and fear, while reassuring them that that rage is nothing to be ashamed of.”)

The (SG’s?) Never-ending Search For the Statement

In the true spirit of gaslighting, the administration has chosen to continue to have their lawyers insist (and occasionally imply) there was some magic disavowal of the President’s anti-Muslim animus and proposal to ban all Muslims. 

But the lawyers are still trying to figure out when that disavowal actually happened.  Garrett Epps had pointed to one possibility for a statement, the President’s speech in Saudi Arabia, but that speech says nothing about the ban.  That didn’t stop the SG from trotting out that statement as one possibility for what he was referring to. As Business Insider reported: “[T]he solicitor general's office told Business Insider he was referencing Trump's speech in Saudi Arabia from May in which the president described Islam as one of the ‘world's great faiths.’”

Perhaps because the President’s speech in Saudi Arabia had such a tangential relationship to the entry ban, the SG continued to search for the magic disavowal (I’m sure it’s there somewhere!).  In this vein, a DOJ spokesperson subsequently clarified that the SG was actually referring, not to the President's speech in Saudi Arabia, but to a January 25, 2017 statement that the President had made in a television interview.  Robert Barnes reported this clarification in the Post, and included the relevant portion of the interview:

“You’re about to sign a sweeping executive action to suspend immigration to this country,” Muir said.

“Right,” Trump answered.

“Who are we talking about? Is this the Muslim ban?” Muir asked.

“We’re talking about — no it’s not the Muslim ban,” Trump answered. “But it’s countries that have tremendous terror. It’s countries that we’re going to be spelling out in a little while in the same speech. And it’s countries that people are going to come in and cause us tremendous problems.”

Wow, compelling stuff. 

I mean, the chutzpah of it all.  It is noteworthy that this statement is apparently the best statement the administration’s lawyers could come up with after looking for a few days.

Note what this statement does not include:

  •  A disavowal of the campaign promise to ban Muslims;
  •  An apology for the campaign promise to ban Muslims;
  • An explanation why a campaign promise to ban Muslims is grotesque and should never have been made;
  • And about a million other things.

Rather, the President’s statement merely recites the legal defense that the President’s lawyers have mounted for the entry ban—the conclusion that it is not, in fact, a Muslim ban.  I guess the reason behind that conclusion is that the ban isn’t titled “A MUSLIM BAN”?

Since the President declared that any future ban would be legal, the President has made clear that the sanitized characterizations of the order are window dressing for what was a real driving force behind the order (which has been apparent to anyone following the campaign or the news):

As I wrote last summer after the President made these statements:

[W]hether the “taint” had sufficiently been removed by June 2, 2017 is now an academic question, because the President utterly discredited that defense …with his most recent statements. The President told us that, in framing the second order, the first order (the one giving a preference to religious minorities from a Muslim-majority country, that is) is what was—and still is—on his mind. DOJ, he says, should have stayed with the “original Travel Ban” not the current one, which suggests the President wanted the first one, but DOJ made him settle for the second. On top of its explicit preference for religious minorities (i.e., facial reference to religion), the first order suffered from a variety of other legal issues as well…. That’s the order the President preferred, and that’s the order he continued to want to effectuate.

Add to the President’s statements Rudy Giuliani’s admission that the President came to him wanting to know how to enact a Muslim ban but make it legal. 

Those are not the only problems with relying on the January 25, 2017 statement as evidence that the President absolved himself of any animus that preceded it. Here are just two other ones:

Note also when the allegedly “curative” statement occurred—before the first entry ban was enacted.  The statement the SG is pointing to was made on January 25, 2017, and the first entry ban was signed on January 27, 2017.  Is the administration’s new position that the first entry ban was legal and not infected by anti-Muslim animus? (The Ninth Circuit concluded the first entry ban was likely unlawful in a decision that the administration declined to appeal.) 

No matter. The text of the first entry ban included the following statement:

The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law.  In addition, the United States should not admit those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.

Based in part on thata language, Gerry Neuman made the argument that the first order was not facially legitimate (putting aside the question whether the order’s purported purposes were bona fide).  In other words, the text of the order itself belied the President’s supposed statement, made two days earlier, that he wasn’t attempting to ban Muslims.  (The second and third versions of the order watered down the language so it was less … staring us in the face but as Neuman wrote, the second order grew from the first, and the third did too.)

Maybe DOJ will soon have another idea for what statement the SG had in mind?  

***

 

For those of you who have not already done so, I would recommend checking out this video that the Macarthur Justice Center compiled.  The video documents many of the occasions where the President has made clear what his goals are, and what the purpose of the order is.  The President’s passing statement that he wasn’t going to make good on his campaign promise to ban Muslims by promulgating the most unlawful version of that policy hardly shows that the current order doesn’t build on the President's promise to ban Muslims, or that the order isn’t infected by animus.  If the best that the SG and DOJ can come up with is  “the President stated that a not-yet-enacted ban would be legal,” maybe that should say something about what the Court should do if it ultimately reaches the merits of the constitutional question.

 

@LeahLitman


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