//  10/10/17  //  In-Depth Analysis

The Court was supposed to hear oral argument today in the case challenging the legality of the President’s entry ban. After the challenge to the entry ban became moot, the Court canceled oral argument and ordered supplemental briefing on whether the case is moot (spoiler: it is, or at least it will be in two weeks once the suspension of the refugee program expires, and the only question is whether the Court should vacate the lower court opinions).

I thought I’d use today to highlight some issues that might have come up in the argument today, and that are likely to come up in future challenges to the latest iteration of the entry ban and the suspension of the refugee program. These issues were also touched on in the amicus brief I proudly signed in both the courts of appeals and the Supreme Court. The amicus brief argues that the most straightforward and the most persuasive constitutional defect with the entry ban and refugee suspension is that the provisions were enacted (at least partially) based on animus toward Muslims, and negative stereotyping of Muslims. (Joshua Matz wrote a post when the brief was filed here; he & Robbie Kaplan are our all-star counsel.)

I’ve written the post to focus more clearly on the second order, but some of the broader points could apply to any litigation regarding the third order.

What Kinds Of Evidence?

First, what kinds of evidence should courts consider when addressing the constitutionality of the order? Much has been made about whether courts can consider the President’s pre-election statements when considering the order’s legality, or whether they can consider the President’s statements on Twitter. Bracketing those specific questions, I think it’s important for to think more generally about whether courts should concern themselves with order’s meaning to a broader segment of the public than just the set of lawyers who are litigating the case.

For better (though more likely f)or worse, millions of people follow the President on Twitter. Millions of people watch news networks – or read media reports—that cover what the President has said (both before and after the election). For these people (and others), the meaning of the President’s order is inextricably linked to the message(s) the order sends, the statements the President has made about the order, and the message(s) the President has sent about the order’s purposes and goals.

Those messages, aggregated together, are not hard to decipher: As a candidate, Trump promised a ban on Muslims, because he holds (or holds out) the view that Muslims are dangerous. And as President, Trump fulfilled that promise and banned Muslims because they’re dangerous.

The order itself gestures in this direction with dog whistles that incorporate disparaging references toward Islam, such as honor killings. The preceding order did so even more loudly. And the President has –repeatedly – reminded us, the second order effectuates the same purpose as the first order. His advisers have done the same, and publicly.

Then there is the slew of presidential statements about how the President really wanted an even more specific, “not P.C.” order—another not-too-difficult-to-decipher reference to the fact that the President wanted to ban Muslims from entering the United States, and perhaps still wants to do so. There are also the many statements he has made after terrorist attacks in Europe—he is quick to highlight incidents he thinks provide some evidence of his belief that Islam is dangerous (often before there is any evidence about who committed an attack), and he is quick to link that belief to his entry ban and suspension of the refugee program. He also talks about the need for the entry ban – which his lawyers maintain has nothing to do with religion and everything to do with nationality – when someone who identifies as Muslim, but isn’t a national of one of the countries subject to the order, commits a terrorist attack

Should courts care whether it upholds an order whose broader social meaning is an embodiment of the President’s anti-Muslim animus? I think they should. Our amicus brief frames this point as the disconnect between the constitution as it operates on the ground, and the Constitution as it formally operates on the books or in court. The point is that when the legal question the Court is deciding – whether the order was based on anti-Muslim animus – parallels the question that society at large has been confronting – does the order reflect anti-Muslim animus, there is some danger in having the answers to the questions diverge too sharply from another.

Ian and I have already written about how this case calls to mind one of the great failures in constitutional law—Korematsu v. United States, the case that upheld the President’s forced internment of Japanese-American citizens. To our great embarrassment, Korematsu upheld an order that was laced with naked racism on the government’s national security say so. It’s not hard to see the moral parallels between the entry ban case and Korematsu.

But the potential disconnect between how courts answer and how society (or at least a particular segment of society) answers whether the order reflects anti-Muslim animus calls to mind another one of the great failures in constitutional law. This case is also on the list of what Richard Primus and Jamal Greene have called constitutional law’s “anti-canon.”

The case is Plessy v. Ferguson. Plessy upheld the theory of “separate-but-equal,” under which the equal protection clause allowed governments to mandate segregated, separate facilities for whites and blacks. Plessy rejected the argument “that the enforced separation of the two races stamps the colored race with a badge of inferiority.” Plessy declared that “If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”

One of Plessy’s most apparent failures is its inability to understand the social meaning of separate but equal, at least to African Americans. Related to that failure is another one—that Plessy reached a legal conclusion that failed to acknowledge, much less reflect, separate-but-equal’s actual meaning to the group of people it disparaged.

I know that some people do not like to read or hear modern-day analogies to the more horrifying examples of constitutional wrongs, like Korematsu and Plessy. But if we cannot look back to understand their mistakes, it is exceeding difficult to prevent those mistakes from reoccurring in the future. This criticism also calls to mind the must-read New York Times op-ed “Waiting for a Perfect Protest,” which took issue with “moderate brothers and sisters who voice support for the cause of racial justice but simultaneously cling to paralyzingly unrealistic standards when it comes to what protest should look like.”

The Role Of the Court(s)?

The second point pertains to courts’ role in this entire debacle. Joshua wrote a thoughtful post in which he urged all of the participants in the entry ban machinations to avoid the impulse to normalize the policy, what it stands for, and why it was enacted. In an earlier post, he questioned the Supreme Court’s ownership of the “cruel, unjustified” policy. The Court allowed the policy to (partially) go into effect in June, and it ensured the refugee suspension would broadly go into effect when it stayed the Ninth Circuit Court of Appeals’ injunction that had prohibited the government from applying the refugee suspension to persons with formal assurances from refugee resettlement agencies.

Here too, it’s useful to think about the mistakes the Justices who dissented in the anti-canonical cases attributed to the anti-canon. Ian and I have already about how Justice Murphy’s dissent in Korematsu faulted the majority’s unthinking acceptance on the government’s national security say-so, and the blind eye the majority turned toward the considerable evidence that naked racism motivated the order.

But it’s also useful to consider the concerns that Justice Jackson raised in dissent. Justice Jackson (presciently) warned that Korematsu’s “principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.” He sounded that cautionary note as he warned against “a judicial opinion [that] rationalizes such an order.”

But Justice Jackson’s concern was not only that a judicial opinion would take on a life on its own, and be expanded to justify all other sorts of discriminatory policies. He also raised a concern with making the courts instruments of unlawful discrimination:

I should hold that a civil court cannot be made to enforce an order which violates constitutional limitations even if it is a reasonable exercise of military authority. The courts can exercise only the judicial power, can apply only law, and must abide by the Constitution, or they cease to be civil courts and become instruments of military policy.

Prescient words indeed.

The Possibility Of Post-Decision Presidential Statements

The third –and related – point concerns whether courts should consider the possibility that the President will comment on the purpose(s) of the entry ban and the suspension of the refugee program after the Supreme Court decides Trump v. IRAP/Hawaii. Writing at Lawfare last June, Alex Loomis wondered whether the Justices would “consider the possibility that if [the Court] holds that ‘we won’t look beyond the text of the order’ in IRAP” and upholds the order, “President Trump will later admit on Twitter that the order was mere pretext.”

I think that possibility ties together the first and the second points of this post—the President has been fairly open about why he enacted the order. He also loves to gloat when he gets a win (and also to gloat when there’s a draw, or when he depicts a loss as a win). There’s no reason to think he won’t do the same once a court issues a decision on the entry ban. Indeed, he did so when his lawyers obtained a partial stay back in June. There should also be a concern that, in any statements the President does make, the President will remind the public that courts have either upheld an order that reflects the President’s “non-P.C.” belief that Muslims are dangerous and the President’s “non-P.C.” belief that Muslims should be banned from entering the United States, or that a court has vacated decisions finding that such an order was illegal. Either way, courts –and their institutional legitimacy – lose. That possibility should not just inform the Court’s judgment about the underlying merits of the dispute; it’s also a way of deciding between competing interpretations of the meaning of the applicable legal rules: Is it really true that courts can never consider the government’s statements outside the face of a governmental order? Or can courts do so, and avoid a scenario in which they are embroiled in and legitimating a policy that is concededly and admittedly bigoted?


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