[UPDATED] A Guide to All Take Care Analysis of the Travel Ban
// 5/8/17 //
Today, sitting en banc, the Fourth Circuit Court of Appeals will hear argument in IRAP v. Trump, a challenge to President Trump's revised travel ban. Next Monday, a three-judge panel of the Ninth Circuit Court of Appeals will hear argument on the revised travel ban in Hawaii v. Trump. We'll cover both arguments here on Take Care.
Take Care hereby presents in a single, organized post all commentary we have published about the revised travel ban. We hope you find it useful. Our categories are "Getting the Facts Right," "The Establishment Clause," "Presidential Motive & Campaign Statements," "The National Security & Immigration Context," and "Appellate Briefing & Strategy."
Please also check out our podcast, Versus Trump. The latest episode offers an insightful and enjoyable preview of oral arguments on the revised travel ban.
GETTING THE FACTS RIGHT
Misconceptions Part I: Trump, Muslims, and the Travel Ban
Joshua Matz & Amir Ali | 5/2/17
Misperceptions of the Muslim Ban case abound. One of them is that Trump's animus is evidenced only by his campaign promise to ban Muslims from America. That promise, we demonstrate, must be situated in the context of Trump's sustained and wide-ranging crusade against the American Muslim community.
Travel Ban Misconceptions II: Animus & Non-Citizen/Foreign Muslims
Joshua Matz & Amir Ali | 5/3/17
The Muslim Ban targets Muslims everywhere. The notion that it reflects, at most, animus toward foreign (or non-citizen) Muslims doesn't withstand scrutiny. There can be no doubt that it inflicts severe and continuing injury on the American Muslim Community.
Travel Ban Misconceptions Part III: False Analogies To “Imprecise” Campaign Talk
Joshua Matz & Amir Ali | 5/4/17
Trump's promise to ban Muslims was no vague, imprecise, or passing comment made on the fly during campaign season. It was a deliberate, carefully considered, and oft-repeated promise that fit perfectly into Trump's broader vision of discrimination against American Muslims.
THE ESTABLISHMENT CLAUSE
Leah Litman | 3/16/17
Last night, a federal judge in Hawaii blocked Trump's revised entry ban. Here is a detailed analysis of its decision and an assessment of what likely will happen next in that litigation.
The Establishment Clause and the Muslim Ban
Michael Dorf | 3/18/17
Why the Establishment Clause Has Emerged as the Chief Stumbling Block for Trump's Muslim Ban
The First Amendment Belongs Only to Americans? Wrong
Leah Litman & Niko Bowie | 3/29/17
The First Amendment makes America great for everyone, not just for citizens.
The Imperatives of Structure: The Travel Ban, the Establishment Clause, and Standing to Sue
Ira Lupu, Bob Tuttle, Peter Smith | 4/3/17
In the Fourth Circuit travel ban appeal, DOJ contends that the plaintiffs lack standing. But a deeper examination of the Establishment Clause proves that the plaintiffs’ claims must be heard on the merits.
A Different View of Why the Muslim Ban Violates the Establishment Clause
Joshua Matz | 4/20/17
A diverse group of leading constitutional law scholars—representing many different views about the Establishment Clause—has filed an amicus brief challenging the Muslim Ban. Here's what you need to know.
PRESIDENTIAL MOTIVE & CAMPAIGN STATEMENTS
Motive Matters in Assessing the Travel Ban
Richard Primus | 3/20/17
To the extent that Trump’s statements about the travel ban shed light on why the executive orders were issued—and they surely do—those statements are material to the constitutional analysis.
Judge Kozinski Asked The Wrong Question & Got The Wrong Answer
Amir Ali | 3/20/17
Judge Alex Kozinski, among others, has argued that President Trump's campaign statements are irrelevant to assessing the Muslim Ban. But his argument starts with the wrong question, and inevitably reaches the wrong answer.
The World Is Not Made Brand New Every Morning
Jon Taylor | 3/20/17
Judge Kozinski thinks that we cannot account for President Trump's campaign statements in the Muslim Ban cases. That is wrong. Courts can, and should, reckon with this history in assessing whether Trump's ban comports with religious neutrality.
Why Courts Have Probed Trump’s Motives for the Travel Ban
Joshua Matz | 4/4/17
Perceptions of presidential bad faith have given judges the fortitude to do what the law already demands of them, even though their actions might prompt the President to bash them by name on TV or Twitter.
Why Trump's Travel Ban Statements Compel a Finding of Improper Purpose
Joshua Matz | 4/6/17
Trump's statements about the revised travel ban overwhelmingly evidence a purpose at odds with the Establishment Clause. And few, if any, of those statements evince actual, substantive national security or foreign affairs objectives that explain the bizarre scope of his order.
The Muslim Ban: Answering Tough Questions About Motive
Richard Primus | 4/21/17
The opinion by then-Justice Rehnquist in Hunter v. Underwood (1985), a case about denying the right to vote for racist reasons, offers thoughtful answers to many of the hardest questions that you might ask about motive and the Muslim Ban.
The Under-Inclusive Theory Of Discrimination (It's Not Going To Happen)
Leah Litman | 5/8/17
The Trump administration has repeatedly (and incorrectly) argued that a policy does not constitute discrimination unless the policy discriminates against all members of a particular group.
THE NATIONAL SECURITY & IMMIGRATION CONTEXT
Daniel Hemel | 3/16/17
An analysis of Judge Bybee's dissent from denial of rehearing en banc in Washington v. Trump, and some predictions about the future of President Trump's revised entry ban.
Leah Litman & Ian Samuel | 3/16/17
Justice Jackson's famous separation of powers framework offers no support for President Trump's entry ban. In fact, it's irrelevant.
Justice Gorsuch, Executive Power, And Muslim Ban 2.0
Leah Litman & Amir Ali | 3/20/17
A careful review of Judge Gorsuch's record reveals strong reason to believe that he would vote to uphold President Trump's revised Muslim Ban (and potentially many other executives abuses, too).
No Peeking? Korematsu and Judicial Credulity
Ian Samuel & Leah Litman | 3/22/17
The Supreme Court's decision in the Japanese Internment Cases offers a chilling reminder of why courts cannot close their eyes to clear evidence of bigotry in executive orders supposedly justified by security concerns.
The Standard Fare of Judges: What Happens When the Judiciary Does What It Always Does
Leah Litman & Dan Deacon | 3/28/17
The Muslim Ban litigation does not involve a "revolt of the judges." As proven by a survey of major and minor cases from the legal canon, this litigation involves only the standard fare of judging.
Judicial Deference to President Trump
Dawn Johnsen | 5/8/17
It is time to ask: Has Trump in effect forfeited some measure of judicial deference across contexts and cases, through his disrespect for the courts and the rule of law and his displays of prejudice and arbitrary decisionmaking? And if he has not yet reached that point, what more would it take?
APPELLATE BRIEFING & STRATEGY
Amir Ali | 3/17/17
An emergency appeal on the Muslim Ban may be both rational and his worst outcome.
McKayla Maroney Is Not Impressed (With DOJ's Brief in the Fourth Circuit)
Leah Litman | 3/27/17
The Department of Justice has filed a brief in the Fourth Circuit defending President Trump's revised entry ban. This is not an impressive brief: it is rife with misstatements of fact and incorrect legal arguments.
En Banc Review? How Can I Say No?
Amir Ali | 3/30/17
When asked by the Fourth Circuit, the Government said it wanted to have the full court consider its Muslim ban. But the Government probably did not mean it.
The Problem with Palmer
John-Paul Schnapper-Casteras | 5/6/17
In its Muslim Ban brief, DOJ favorably cites Palmer v. Thompson (1971)—which allowed Jackson, Mississippi to close public pools rather than integrate them. The Fourth Circuit should question DOJ about this stunning citation and make clear that Palmer, an odious ruling, has no place in anti-discrimination law today.