Corey Brettschneider  //  6/5/17  //  Quick Reactions


The Fourth Circuit's recent ruling that the revised travel ban is likely unconstitutional rests on an argument about motive.  As the court concluded, the President's motive in issuing his order banning travel from six Muslim-majority countries is unquestionably based on "animus."  And as a matter of constitutional law, the President can't deliberately seek to target and harm (and exclude) Muslims.  Indeed, prejudice can never be a rational basis for law, and in our system rationality is the most basic requirement for a law to be legitimate.  The President's animus-laden motive taints the ban and violates the Establishment, Free Exercise, and Equal Protection Clauses. 

Today the President helped those of us who argue the ban is rooted in unconstitutional animus make our case.  

In one tweet he admitted that the motive behind the first version of the travel ban was not "politically correct," criticizing his Attorney General for convincing him to rewrite the policy.  This seems to concede that the first ban targeted Islam, an obviously impermissible motive.  It is clear that by not "politically correct," the President is referring to targeting a disfavored religion, not targeting six (or seven) nations.  No one thinks that targeting countries that posed an actual threat would be politically incorrect.

In his tweets today, President Trump also admitted that the two bans are essentially the same policy with different words. Dismissing his attorneys' own arguments in court, he wrote: "People the lawyers, and Courts can call it whatever they want."  

This is a serious blow to his case.  If the first travel ban is not "politically correct," meaning it targets Muslims, and the second travel ban is motivated by exactly the same goals (even though his lawyers can "call it what they want"), that means the second version of the travel ban is also animus-based and unconstitutional.  These tweets resolve any doubt that President Trump's motive for the second ban is exactly the same (and exactly as unconstitutional) as his motive for the first one.  

In short, the President had admitted that he never changed his original bad motive.  Instead, he only asked (or allowed) his lawyers to mask it, a decision that he now appears to regret.  The President confirms that as Rudy Guiliani told us early on, his lawyers were asked to make "it," meaning the Muslim ban, "legal."  Thanks in part to the President's own recent tweets, the case for concluding that "it" is illegal has now become overwhelming. 


On The Travel Ban The Supreme Court Says: Stay Tuned

6/26/17  //  Quick Reactions

Some quick thoughts on the Supreme Court's actions on the travel ban.

Leah Litman

U.C. Irvine School of Law

It's All About that Stay (and Its Surprising Limits)

6/26/17  //  Quick Reactions

Preliminary thoughts on the Supreme Court's travel ban order.

Marty Lederman

Georgetown Law

Animus Revisited: DOJ Fails To Explain Change in Position on Relevance of Campaign Statements

6/23/17  //  In-Depth Analysis

DOJ can't distinguish a case from 1995 in which it took a diametrically opposed view on the relevance of campaign statements.

Jim Oleske

Lewis & Clark Law School