This is the third in a series of posts in which we address common misconceptions about Trump’s statements concerning his revised travel ban (the other posts are here and here). This time, we address a misleading characterization offered by the Government and Judge Alex Kozinski of the Ninth Circuit: both of them compare Trump’s promise to exclude Muslims from the United States to vague, mistaken, or passing comments made on the fly during campaign season.
In its briefs defending Trump’s executive order, the Government has likened his comments about Muslims to “simplified and imprecise” statements made in the course of political campaigns. According to the Government, relying on Trump’s comments would force courts to “to wrestle with intractable questions, including the level of generality at which a statement must be made” in order to prove discriminatory animus.
In a recent dissent, Judge Kozinski made a similar comparison. He reasoned that inferring an intent to discriminate based on Trump’s statements would be akin to authorizing “a scavenger hunt for statements that a clever lawyer can characterize as proof of a -phobia or an -ism”—or any statement “so long as a lawyer can argue with a straight face that it signals an unsavory motive.”
The Government and Judge Kozinski’s alarm is many steps removed from reality (not to mention being unpersuasive as a matter of legal doctrine, as previously addressed elsewhere on this blog).
Trump was anything but “imprecise” regarding his plans—indeed, Trump’s specificity was remarkable. Far from just making an offhand comment or a vague aversion, Trump issued a policy statement specifically promising to implement a “shutdown of Muslims entering the United States.” Then, when asked whether he seriously intended to carry this out, he repeatedly doubled down, saying that he would “have no choice.” As Judge Watson of the District of Hawaii put it, “there is nothing ‘veiled’” or imprecise about Trump’s prior statements. Indeed, those statements remain publicly viewable on Trump’s regularly-updated campaign website.
But the specificity of Trump’s statements—and the absurdity of comparing them to an off-the-cuff campaign gaffe—goes even further. In addition to promising to ban Muslims based on their religion, Trump laid out exactly how he would get away with it, even though it violated the Constitution. He specifically stated that because “you can’t use the word ‘Muslim,’” he would carry out his promise by “talking territory instead of Muslim.” That’s exactly what he then did: Within a single week of his election, he passed an executive order banning the entry of people from territories that all happen to be 91 to 99.8% Muslim.
Again, far from being some imprecise or simplified statement, Trump went on to reference the specific statute he would rely upon to defend his actions in court—the very authority that the Department of Justice now relies upon.
So, contrary to the Government’s insinuation, no one is claiming that discriminatory motive can invariably be inferred from imprecise (or vague) comments made in the course of heated elections. Far from it. Rather, during the campaign, Trump effectively and repeatedly said, “I plan to violate the Constitutional rights of American citizens, and here’s how I will get away with it.”
If courts stand down, it would be a shameful abdication of their role. No right-thinking citizen could possibly think that the motives for Trump’s order are really so unknowable.
Sometimes the burden of a law degree can obscure common sense. The Trump and his lawyers are hoping this is one of those times. As we have explained, there is overwhelming evidence that Trump’s revised travel ban was motivated by animus against Muslims. The contrary arguments advanced by the order’s defenders simply don't hold water.
Ultimately, there is only one proper result in the pending appeals: a judicial declaration that the Muslim Ban cannot stand under the Constitution.