Why the Travel Ban Will Fail in the Supreme Court

This article is not intended to focus on providing a personal opinion of the travel ban. Instead, the purpose of this article is to provide a plain-English road map of precisely why the travel ban will not pass constitutional muster before the Supreme Court. All arguments which advocate for the travel ban’s unconstitutionality focus on President Trump’s unabashedly xenophobic and religiously intolerant public statements and, make no mistake, absent President Trump’s admissions concerning his personal motives for the travel ban, the ban would be completely constitutional.

To be sure, the travel ban is not necessarily a bad idea. Indeed, when considering the current political and social climate in Europe (including the recent wave of terrorist attacks), it is both reasonable and prudent to impose a temporary moratorium on immigration from countries known to support terrorism. The reasonableness of the travel ban is buttressed by the limited time (90 days) that any such ban would be in place. During this time, we should be able to determine whether our current immigration procedures pose a risk to national security and, if so, what steps should be taken to help eliminate those risks.

Yet, despite the legitimate reasons supporting the travel ban, the President’s public statements have caused the county to subordinate its interests in protecting its own citizens in order to, correctly, block the enactment of an executive order which appears to be primarily motivated by religious intolerance. Simply put, the President’s own unrestrained and imprudent statements have created a threat to national security, for it is these statements which will ultimately be the reason why the Travel Ban will fail to pass constitutional muster.

The First Travel Ban

On January 27, 2017, President Donald J. Trump signed Executive Order 13769 entitled “Protecting the Nation From Foreign Terrorist Entry Into the United States” (“First Travel Ban” or “EO-1”). On it’s face, the order’s pronounced purpose was to “protect the American people from terrorist attacks by foreign nationals.” In order to carry out its stated purposed, the First Travel Ban sought to prevent the United States from admitting foreign nationals who “bear hostile attitudes” towards America or who “engage in acts of bigotry or hatred.” (EO-1, Preamble)

In order to invoke the power to institute the First Travel Ban, President Trump relied on the authority provided to him under 8 U.S.C. § 1182(f), and immediately suspended immigration, for a period of 90 days, from the following seven predominantly Muslim counties: Libya, Syria, Somalia, Sudan, Yemen, Iraq, and Iran. (See, EO-1, § 3(c)) During this 90-day period, the Secretaries of both the State Department (Rex Tillerson) and Homeland Security (John Kelly), as well as the Director of National Intelligence, were ordered to “immediately conduct a review to determine the information needed” to assess whether those seeking entry from any of the aforementioned countries posed a national security threat.

The first iteration of the Travel Ban instituted additional mandates and constraints on immigration including, but not limited to:

Reducing the number of refugees to be admitted in 2017 from 110,000 to 50,000 (EO-1, § 5(c)-(d))

Indefinitely barring the admission of any refugees from Syria (Ibid.)

Suspending the United States Refugee Admissions Program for a period of 120 days (Id., §5(a))

Subsequent to the 120-day suspension of the US Refugee Admissions Program, the prioritization of “refugee claims made by individuals on the basis of religious-based persecution” so long as the religion persecuted is “a minority religion in the individual’s country of nationality.” (Id., §5(b))

Organizations, individuals, and states across our country were outraged by the First Travel Ban, and they mounted a constitutional challenge in federal court. The first domino to drop was in Washington State where the U.S. District Court for the Western District of Washington granted a Temporary Restraining Order (“TRO”) which enjoined enforcement of the Travel Ban throughout the entire United States. See Washington v. Trump, 2017 WL 462040 at *2 (W.D. Wash. Feb.3, 2017). The Solicitor General, on behalf of the Executive, appealed this ruling to the 9th Circuit Court of Appeals and requested that it stay enforcement of the TRO pending appeal. The 9th Circuit unceremoniously refused to grant the stay. It further refused the Executive’s request to narrow the scope of the TRO as doing so would be tantamount to “rewrite[ing]” the Travel Ban. The 9th Circuit’s opinion noted that it was not their job to “rewrite” the Travel Ban and that “political branches are far better equipped” for that particular task. Washington v. Trump, 847 F.3d 1151, 1167 (9th Cir. 2017) (per curium).

Notwithstanding its strong rebuke of President Trump’s arguments, the 9th Circuit invited Trump to re-write the order for the purpose of correcting its incompatibility with the First Amendment’s Establishment Clause. The Establishment Clause prohibits the enactment of any law which “prefers one religion over another.” Everson v. Board of Ed. of Ewing Twp., 330 U.S. 1, 15 (1947). According to the 9th Circuit, the First Travel Ban appeared to violate the Establishment Clause because it showed a clear preference towards refugees suffering religious persecution who belong to “a minority religion in the individual’s country of nationality.” (EO-1, §5(b))

President Trump took the 9th Circuit up on its invitation to re-draft the travel ban, and on March 6, 2017, the President signed Executive Order 13780 (the “Second Travel Ban” or “EO-2”)

The Second Travel Ban

The Second Travel Ban, entitled “ Protecting the Nation from Foreign Terrorist Entry Into the United States ,” revoked and replaced the First Travel Ban. Once again, the travel ban was disputed by organizations, individuals, and states throughout the country. Section 2(c) of the Second Travel Ban, entitled “Temporary Suspension of Entry for Nationals of Countries of Particular Concern During Review Period” is at the crux of this dispute. Section 2(c) reinstated the 90-day suspension of entry for nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen (“Designated Countries”). Unlike the First Travel Ban, the Second Travel Ban eliminated Iraq from the list of Designated Countries. Like the First Travel Ban, the Second Travel Ban invokes the President’s power under 8 U.S.C. § 1182(f). However, it also relies on 8 U.S.C. § 1185(a) , and asserts that the “unrestricted entry” of foreign nationals from any of the above-mentioned countries “would be detrimental to the interests of the United States.” (Ibid.)

Unlike its predecessor, the Second Travel Ban states that nationals from the Designated Countries require “additional scrutiny” because “Each of these countries is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones.” (Id., §1(d)) And “until the assessment of current screening and vetting procedures required by section 2 of this order is completed, the risk of erroneously permitting entry of a national of one of these countries who intends to commit terrorist acts or otherwise harm the national security of the United States is unacceptably high.” (Id., §1(f))

The Second Travel Ban makes clear that it shall only apply to the following classes of people:

Foreign nationals who are outside the United States on its effective date of March 16, 2017

Foreign nationals who do not have a valid visa on March 16, 2017

Foreign nationals who did not have a valid visa on the effective date of the First Travel Ban – January 27, 2017.

Importantly, §2(c) does not bar entry of lawful permanent residents, dual citizens traveling under a passport issued by a non-banned country, asylees, or refugees already admitted to the United States. (Id., §3(b))

On its face, the Second Travel Ban appears to be entirely constitutional, but against the backdrop of public statements made by President Trump both before, and during his Presidency, the court must look outside the four corners of the Executive Order’s pages in order to determine whether the travel ban was motivated by religious animus.

Trump Statements About the Reasons for the “Travel Ban”

Nearly each and every constitutional challenge to the travel ban focused on President Trump’s own statements wherein he makes clear that the travel ban is motivated, in some measure, by religious animosity. Indeed, in the opinion by the 4th Circuit Court of Appeals, which found the travel ban to be unconstitutional, the Court’s opening statement expresses that the Executive Order “in text speaks with vague words of national security, but in contexts drips with religious intolerance, animus, and discrimination.” Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 572 (4th Cir., 2017) The real question, then, is how and why the 4th Circuit reached the determination that the context of the travel ban “drips with religious intolerance.” The answer was plastered all over Trump’s campaign website (amongst many other places).

In December 2015, Trump published a “Statement on Preventing Muslim Immigration” on his campaign website which urged for “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” Int’l Refugee, 857 F.3d at 575 (4th Cir. 2017) (internal citations omitted)

Immigration” on his campaign website which urged for “a total and complete shutdown of entering the United States until our country’s representatives can figure out what is going on.” Int’l Refugee, 857 F.3d at 575 (4th Cir. 2017) (internal citations omitted) On March 9, 2016, in an interview on CNN, Trump expressed his belief that “ Islam hates us.” ( at 576)

hates us.” ( at 576) On March 22, 2016, in an interview on Fox News, Trump claimed that a travel ban was necessary because “we’re having problems with the Muslims , and we’re having problems with Muslims coming into the country…you have to deal with the mosques whether you like it or not.” (Ibid.) (emphasis added)

, and we’re having problems with Muslims coming into the country…you have to whether you like it or not.” (Ibid.) (emphasis added) On July 17, 2016, a person tweeted to Trump “Calls to ban Muslims from entering the U.S. are offensive and unconstitutional.” Trump responded, “So [we’ll] call it territories. Ok? We’re gonna do territories.” (Ibid.)

One week later, on Meet the Press, Trump disavowed the well-settled principle that our Constitution provides broad protections to people on the basis of religion by stating that “Our Constitution is great…Now, we have a religious, you know, everybody wants to be protected. And that’s great. And that’s the wonderful part of our Constitution. I view it differently .” (Ibid.) (emphasis added)

.” (Ibid.) (emphasis added) On January 28, 2017, former NYC Mayor Rudolph Giuliani explained that, roughly one year earlier, and subsequent to the public backlash from then-candidate Trump’s proposed “Muslim ban,” Giuliani received a call from Trump asking him to figure out a “way to do it legally.” (Id. at 577) Giuliani explained that after assembling a group of attorneys, the consensus was that Trump should not focus on religion, but rather on “areas of the world that create danger for us…” (Ibid.)

All of these statements could be used as evidence in support of the argument that the Travel Ban was primarily motivated by President Trump’s intolerance for Muslims. For the reasons explained below, President Trump’s own imprudent statements are the ONLY reason why the Supreme Court will find the Travel Ban unconstitutional.

The Argument Against the Travel Ban

In order for a law to be found unconstitutional, it generally must be facially discriminatory. Stated another way, the words of the order must evince discriminatory intent. In this case, the Plaintiffs did not dispute that the second travel ban is “facially neutral in terms of religion.” (Id. at 588) According to the Government, because the travel ban is facially neutral, and it applies in the immigration context, the Mandel test, from the case of Kleindienst v. Mandel, 408 U.S. 753 (1972) should apply. The Mandel test holds that “when the Executive exercises [the power to exclude an alien] on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the [plaintiffs’] First Amendment interests.” (Id. at 770) (emphasis added) In other words, so long as the reason for excluding an alien is not blatantly discriminatory, courts are prohibited from going beyond the four corners of the law’s textual provisions in order to uncover inferences and/or evidence of discriminatory intent.

Thus, according to the Government, the lower courts made a mistake by using Trump’s statements against him because, when the language of the law is facially neutral, courts are prohibited from looking behind the President’s exercise of discretion. Stated another way, Mandel holds that the interests of the Executive’s power to exclude aliens always outweighs the interests in the First Amendment. But, according to the Government, even if the Executive’s power did not outweigh First Amendment interests, the law’s facially neutral language precludes judicial review of the President’s personal motivations.

Originally, the Plaintiffs argued that Mandel was not the proper test in this situation because if Mandel was found to be the proper test, such a finding would be fatal to the Plaintiffs’ attempt to block the travel ban. Instead, the Plaintiffs argued that the test from Lemon v. Kurtzman, 403 U.S. 602, known as the “Lemontest,” was the correct test in this case.

Under the Lemon test, the Government must show that the law or action has a secular purpose and its purpose must be genuine, not a sham, and not merely secondary to a religious objective. While a government entity’s characterization of a law as being secularly motivated is entitled to some deference, it is still the duty of the courts to distinguish a sham secular purpose from a sincere one. In light of Trump’s public statements which were “dripping with religious intolerance,” the District Court found that the professed motivation for the ban (to protect American lives), was a sham. As such, the travel ban failed the Lemon Test. Trump appealed this decision to the 4th Circuit Court of Appeals.

When the case reached the 4th Circuit, it issued a decision which upheld the District Court’s decision, but for a slightly different reason. Instead of invoking the Lemon test alone, the 4th Circuit found that both the Mandel and Lemon tests should apply.

As stated above, Mandel holds that “when the Executive exercises [the power to exclude an alien] on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the [plaintiffs’] First Amendment interests.” (Mandel, 408 U.S. at 770) (emphasis added) The Government argued that because the travel ban is legitimate on its face, the inquiry should end there. However, the 4th Circuit disagreed, emphasizing that the law must not simply be facially legitimate, but supported by a bona fide reason. The “bona fide” requirement concerns whether the government issued a law or took a particular action in good faith.

In the case of Kerry v. Din, 135 S. Ct. 2128 (2015), the Supreme Court elaborated on the “bona fide” requirement and explained that when the plaintiff makes “an affirmative showing of bad faith” that is “plausibly alleged with sufficient particularity,” courts may “look behind” the challenged action to assess its “facially legitimate justification.” (Id., at 2141) In the absence of such “affirmative showing,” courts have no choice but to defer to the government’s “facially legitimate” reason for the action.

Notwithstanding Mandel’s deference to government action, when a plaintiff seriously calls into question whether government action was taken in good faith, the Court must step away from its “deferential posture” and look behind the stated reason for the challenged action.

In this case, the Plaintiffs made very specific factual allegations which support their position that the justification for the travel ban (national security interests) was merely a pretext for what are actually anti-Islamic religious purposes. Indeed, President Trump has repeatedly touted his proposal to ban Muslims from entering the United States. After realizing that his proposal was unconstitutional, he admitted that he would workaround the constitutional impediments by targeting “territories” instead of Muslims directly. Trump then issued EO-1, which targeted countries whose majority consisted of Muslims, but included a preference for religious minorities. Trump then issued EO-2 which is more neutrally worded than EO-1, but which Trump has admitted is designed to carry out the exact same policy goals.

Trump’s Arguments for the Travel Ban

Trump’s arguments on appeal utterly fail to address his anti-Muslim statements. Instead, he argues that the court should not engage in “a wide-ranging search for pretext.” In other words, the Supreme Court should ignore Trump’s public statements. Trump further argues that the Court should not engage in a “judicial psychoanalysis” because, although it is readily discoverable that Trump made certain statements, the real question is what Trump meant by his statements.

Notably, our analysis of Trump’s arguments are much shorter than the analysis of the Plaintiffs’ arguments. The reason why is that, when distilled down to its essence, Trump’s argument is as follows: Ignore that I even said anything at all. But if you don’t ignore the fact that I said something, you should ignore what I said. And the reason you should ignore what I said is because the Court is incapable of knowing precisely what I meant when I said what I said.

The ability to distill Trump’s argument into two short paragraphs is not only a product of poor lawyering by the Solicitor General, but also of the argument’s complete and utter absurdity.

At the end of the day, Trump said exactly what he meant, he was just apparently too ignorant to realize the obvious constitutional ramifications of his statements. Words matter, and if Trump meant something other than what he said, then he should have either said what he meant, or not said anything at all. The President is a grown man who fully comprehends the importance of words. If he is incapable of understanding the importance of words, he should not be in the White House, he should be in a remedial 9th grade English class.

There is no question that Trump’s statements and remarks made it crystal clear that his travel ban was intended to target Muslims. With that said, we pause for a moment to acknowledge that, in the current world of geo-political relations, Islamic terrorism poses the most salient threat to civilized society. Thus, a ban which narrowly targets specific geographic populations who tend to hold extremist beliefs is not necessarily unreasonable. But what is unreasonable (and unconstitutional) is to explicitly and publicly announce that the ban was intended to target a particular religion.

Trump’s lawyers make the argument that this would be the first time that a provision of federal law which is neutral on its face is found to be violative of the Establishment Clause based on speculation about its drafters’ illicit intentions. But the reality is, this is the first time that a President’s irresponsible, ignorant, and shortsighted remarks have provided a compelling and legitimate basis for a judicial inquiry into the illicit intentions of the law’s drafters.

Conclusion

Because Trump’s remarks concerning his motivations for the travel ban drip with religious intolerance and animus towards Muslims, it is hard to imagine that the Supreme Court would uphold the travel ban. For the Supreme Court to hold otherwise would be to allow government officials to make explicit statements concerning their unconstitutional intentions in enacting a law, only to be able to disavow those statements and assert immunity from judicial review because (1) the courts are incapable of knowing exactly what the politician meant when they made a particular statement; and (2) the court is not even allowed to inquire into what they meant. Trump’s arguments are obnoxious to logic and human experience. Trump’s statements and comments cannot be forgotten or ignored and perhaps now is as good a time as any for our President to absorb the age-old concept that a person’s unrestrained statements can come back to haunt them.

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By: Ralph Sasson