//  4/4/17  //  Commentary

Late last week, U.S. District Judge Derrick Watson (D. Hawaii) entered a preliminary injunction against President Trump's revised travel ban. Judge Watson's crisp opinion reaffirmed his prior holding (analyzed here by Leah Litman) that Trump's executive order is rooted in anti-Muslim prejudice and cannot stand under the Establishment Clause. In this post and in several that will follow it, I take Judge Watson’s opinion as the starting point for a more general discussion of the Muslim Ban litigation (as it is often called).

DOJ's Arguments In Defense of the Revised Travel Ban

The issue before Judge Watson last week was whether to convert his temporary restraining order into a preliminary injunction. Having lost badly in Round 1, the Department of Justice (DOJ) nonetheless soldiered on, dutifully advancing arguments barely distinguishable from those that went down in flames two weeks ago.

Most notably, DOJ invoked national security deference doctrines that typically limit (or wholly preclude) judicial review of executive action. And on those bases, among others, it asserted that courts may not "'look behind the exercise of [the President’s] discretion' taken 'on the basis of a facially legitimate and bona fide reason" (quoting Kliendienst v. Mandel, 408 U.S. 753, 770 (1972)). In other words, DOJ insisted that Judge Watson consider only the four corners of Trump's order and close himself to all other evidence about it—both out of respect for the President's special role in keeping our nation safe, and due to the Judiciary's limited competence in shaping national security policy.

DOJ also pleaded with Judge Watson to recognize that Trump had issued his revised order "to avoid any Establishment Clause concerns," Mem. in Opp’n 21, emphasizing that Version 2.0 excluded many features that had troubled the Ninth Circuit. And looking ahead, DOJ warned that mischief would result from tying Trump's hands by holding that past statements will forever taint his national security determinations.

Understanding Why Courts Have Questioned Trump’s Motives

To put it mildly, Judge Watson was unimpressed by DOJ's contentions. As contributors to Take Care have explained, he was right to conclude that DOJ's arguments must fail.

At its most aggressive, DOJ insisted upon deference to the President so unyielding that it would result in total abdication. And from the outset, Judge Watson rejected the President's demand that courts step aside: "No binding authority . . . has decreed that Establishment Clause jurisprudence ends at the Executive’s door. In fact, every court that has considered whether to apply the Establishment Clause to either the Executive Order or its predecessor (regardless of the ultimate outcome) has done so."

This conclusion is undoubtedly correct. While some critics have blasted Judge Watson for failing to show the President sufficient respect, the bottom line is that the Ninth Circuit (a.k.a. his overseer) has already rejected DOJ's adventurous requests for near-total deference. So have many other courts. And they were right to do so.

Still, this widespread display of judicial fortitude is commendable. There are literally dozens of technical legal rules designed to let judges dodge requests to clash with the President. It often takes something special to prod a court, let alone many courts, to navigate that maze and engage directly with the constitutionality of an order touching immigration, foreign policy, and national security. 

Needless to say, one perspective is that Trump himself is the "something special." This belief, supported by Larry Tribe's analysis on Take Care, is that courts simply don't believe that Trump is acting in constitutional good faith. Starting from that premise, they are unusually willing to doubt his motives, probe his judgments, and enjoin his policies. On this view, Judge Watson's order is part of a "revolt of the judges." Our black robed priests of the law see Trump as Lawlessness Incarnate; emboldened by popular protests and an elite consensus, they have collectively lashed out to defend the separation of powers. Extraordinary measures for extraordinary times.

This account has received a lot of attention. But while there is great force to that view, it isn't (it can't be) the whole story. After all, it takes more than judicial restlessness to motivate an injunction—typically, it also takes legal reasoning expected to persuade colleagues and withstand an appeal. There are thus distinctively legal constraints on judges skeptical of Trump, especially those who now think it all the more vital to respect, not vary from, the rule of law.   

In this context, as Leah Litman and Daniel Deacon have argued, that standard is met: the reasoning employed by federal courts in litigation over Muslim Ban 2.0 partakes, in vital respects, of the standard fare of judging:

[T]he judges in the [Muslim Ban 2.0] litigation are doing exactly what judges do, and have always done, in cases involving the executive—judging the propriety of the executive’s actions in light of the history, context, and statements surrounding that action. And when the full context shows that the reasons underlying the executive’s acts may not be as stated, or that there is something else amiss, the courts do not hesitate to act. 

On this account, the "something special" is not only Trump. Rather, it is also the Executive Order and the context of its enactment, which flunk elementary requirements of constitutional law. 

Just consider the obligations facing Judge Watson under settled legal doctrine.

First, as reflected in a long line of cases, the Establishment Clause requires inquiries into governmental purpose. Justice Souter explained this rule in 2005:

[S]crutinizing purpose does make practical sense, as in Establishment Clause analysis, where an understanding of official objective emerges from readily discoverable fact, without any judicial psychoanalysis of a drafter’s heart of hearts.The eyes that look to purpose belong to an objective observer, one who takes account of the traditional external signs that show up in the text, legislative history, and implementation of the statute, or comparable official act. There is, then, nothing hinting at an unpredictable or disingenuous exercise when a court enquires into purpose after a claim is raised under the Establishment Clause.

(citations omitted).  To be sure, courts often “accept governmental statements of purpose, in keeping with the respect owed in the first instance to such official claims.”  Id.  “But in those unusual cases where the claim was an apparent sham, or the secular purpose secondary, the unsurprising results have been findings of no adequate secular object, as against a predominantly religious one.” Given the bountiful evidence before him suggesting that the travel ban’s stated purpose was “secondary” and a “sham,” Judge Watson was commanded by Supreme Court precedent to consider the full range of potential explanations for why Trump issued the revised travel ban.

Second, Judge Watson had to consider the law applicable to constitutional review in the immigration sphere. Here the legal rules are rather murky. One view, grounded in Zadvydas v. Davis, is that while the political branches have vast power over immigration policy, courts must ascertain whether they have chosen “constitutionally permissible means of implementing that power.” A different and more deferential view, based in the Court’s recent Kerry v. Din opinion, is that courts may review executive immigration determinations only for a "facially legitimate and bona fide" basis. But even under Din, a "bona fide" basis for any governmental policy must at least be a "good faith" basis—and as Daniel Hemel has explained, that standard is not met when the President in fact acted on the basis of an illegitimate ulterior motive (e.g., religious discrimination).

Thus, a judge acting in good faith and consistent with precedent would have no choice but to evaluate whether Trump’s stated grounds for the revised travel ban are the real bases for it. And Judge Watson's decision reasonably applied these constitutional requirements. Presented with compelling prima fascie evidence that Trump might have acted on the basis of forbidden motives, and with equally powerful evidence that those motives sound in the register of impermissible religious discrimination, Judge Watson properly concluded that he was required to probe deeper—rather than accepting at face value the President's assertion that this was all about national security.


To be sure, the result of all this is less deference to the President. But while judicial willingness to undertake such inquiries has certainly increased due to a perception of presidential bad faith—and while judicial willingness to doubt proffered national security motives is high—I wouldn't characterize this as a revolt of the judges. Rather, perceptions of presidential bad faith have given judges the fortitude to do what the law already demands of them, even though their actions might be unpopular and might prompt the President to bash them by name on Twitter.

Now, not all judges would necessarily agree with that conclusion. If his work in the Bush Administration offers any indication, Judge Neil Gorsuch might well take a different view if he is confirmed to the Supreme Court. And as is often true in national security cases, there is no shortage of vaguely plausible incantations available to judges who agree with the President's policy or are temperamentally predisposed to favor vast presidential power in this field. Nonetheless, as a matter of precedent and historical judicial practice, the case for a deeper judicial review of President Trump's motives is sound, and Judge Watson should be commended for fulfilling his duties.

In my next post, I will consider why Trump’s statements—all of them, including but not limited to his campaign statements—support a finding of improper purpose ... 

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