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How Trump’s travel ban could survive the courts

When does a “Muslim ban” become a travel ban? It’s trickier to answer than you might think.

Demonstration Against Trump's Immigration Ban Takes Place After Ruling Was Overturned By State Dept. Photo by David McNew/Getty Images

The only way for President Trump to actually, finally enact his “Muslim ban” is to convince courts it’s not a Muslim ban at all.

It’s fighting a legal battle on both coasts — in the Fourth Circuit in Virginia (which heard the case Monday) and the Ninth Circuit in California (which hears it next week). Judges in lower courts under both circuits issued rulings in March against the administration — hours before its second attempt at a travel ban, barring people from six majority-Muslim countries and nearly all refugees from entering the US, was supposed to go into effect.

The executive order doesn’t say anything explicit about “Muslims.” And the question facing the courts — how far back in the history of Trump’s presidency (and campaign) should you go to judge whether the travel ban is motivated by bias against Muslims? — isn’t as easy to answer as you think.

So far, the state governments and civil rights groups suing the Trump administration over the ban, calling it a cover for unconstitutional discrimination against Muslims, have had a pretty easy time of it in court. The first version of the ban (signed January 27, and in effect for a week before getting held up by a Washington judge) had some pretty obvious legal holes — and the rushed implementation of it made it hard to defend as a well-thought-through response to a national security threat.

But over the past few months, the Trump administration has tweaked the order to plug those holes, and sharpened its legal defense. The result is a policy that even its critics grant might be constitutional if it were being implemented by a president who hadn’t promised as a candidate to “shut down” Muslim immigration — that is to say, anyone but President Trump. “Unconstitutional because Trump did it” isn’t a legal principle.

The Trump administration needs both circuits currently reviewing the case to overturn the lower-court rulings against the ban in order to put it back into effect. But it’s still likely keep the ban on hold for now. But at Monday’s Fourth Circuit hearing, judges were almost as critical of the groups challenging the travel ban as they were of the government in defending it.

How can you tell when legal reasoning is just a fig leaf?

Politically, everybody knows where the executive order President Trump signed on March 6 — temporarily banning people from six majority-Muslim countries, and nearly all refugees, from entering the US — came from. It was a revised version of a broader executive order he signed January 27 (which was put on hold by West Coast federal courts after a week), which was a fulfillment of his promise to “suspend immigration from terror-prone regions” in the first 100 days of his presidency, which was, in turn, a reframing of a promise he made in December 2015: “a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on.”

The question is what part of that is relevant, legally speaking. The government (and others who argue the travel ban is constitutional) says that the line gets drawn somewhere between the speeches in summer 2016 in which Trump shifted his promise from a “Muslim ban” to a ban on immigration from particular countries, and March 6, when he signed the second version of the order to do it.

President Trump Signs An Executive Order On Implementing An America-First Offshore Energy Strategy
Look, it doesn’t say “Muslim”!
Photo by Eric Thayer-Pool/Getty Images

Earlier in the court fight, the government found itself in the awkward position of arguing that pretty much anything President Trump wanted to do to restrict immigration would be permissible under a particular clause of federal law. They’re no longer going quite that far; acting Solicitor General Jeffrey Wall admitted Monday that an explicit ban on Muslim immigration wouldn’t be constitutional. But he argued this wasn’t that — it was a carefully considered response to national security risks posed by six governments that weren’t stable enough to trust the documentation of visa applicants applying from them.

As a defense of the first travel ban — which was famously rushed into implementation before Department of Homeland Security officials reached an agreement about what it did — this would have been ludicrous. As a defense of the second one, which was signed after consulting with the Department of Homeland Security, the Department of Justice, and the Department of Defense, it’s less so.

As one judge in the Fourth Circuit panel of 13 judges asked Omar Jadwat of the American Civil Liberties Union (arguing on behalf of the groups challenging the government) Monday, what if a government looked into a particular group for prejudiced reasons, but discovered an actual security threat? Would the initial animus poison any future actions? And if not, what could the government do to wash away the “taint” of original discriminatory intent?

“What if he apologized?” one judge asked Jadwat. “What if he apologized every day for a year?” It was a laugh line in the courtroom — not least because it’s impossible to see President Trump apologizing for much of anything. But it’s possible to imagine another politician issuing a statement of regret for a “poor choice of words,” and praising Islam as a “religion of peace” while banning primarily Muslim visa holders and refugees. How much weight would the president’s rhetoric carry then?

It’s not easy to come up with a solid answer to this. Jadwat said that another president might be able to put forth an identical travel ban constitutionally, but that Trump wouldn’t be able to. That’s not as bright a line as the courts tend to like.

“We don’t know where the line is, but you’re over it” isn’t very good law

The problem with a standard that ever allows something to be constitutional despite an origin in bias is that it sets a blueprint for the government to follow if it wants to discriminate in a constitutional way.

The Trump administration itself, in its brief defending the executive order (and urging the Fourth Circuit to overturn the injunction placed by a lower-court judge), ended up demonstrating just how easy that can be.

The brief (as noted by John Paul Schnapper-Casteras on the Take Care Blog) cited the 1971 case Palmer v. Thompson, brought to the Supreme Court in the aftermath of the desegregation of public pools. Jackson, Mississippi, had simply shut down public facilities rather than require black and white families to swim together. In Palmer, the court upheld the decision to close the pools, because the government was able to offer an explanation for why they’d been closed other than “avoiding integration.”

To put it mildly, it is deeply weird that anyone would be arguing in 2017 that closing public facilities rather than integrating them is legally kosher. But while Palmer is obviously far beyond what anyone would argue today — and it was a 5-4 decision at the time — it’s never explicitly been overturned.

This is the problem with the immigration precedents in this case, too. For the most part, they’re old rulings dealing with outdated sets of circumstances — the primary case cited by the government involves a communist professor barred from entering the US during the Cold War. Even the Supreme Court decision that upheld the internment of Japanese Americans during World War II is still, in theory, “good law.”

Precedent isn’t written in stone. If President Trump tried to put people in internment camps today, it’s unlikely that judges would let it stand under Korematsu. But the alternative to deferring to precedent is articulating a different standard — if the old rule is bad, you have to come up with a better one. “We don’t know where the line is, but you’re over it” isn’t great legal reasoning.

Often, of course, legal reasoning doesn’t matter as much as ideology; a judge (no matter her politics) who wants to come to a particular conclusion tends to find a way to do just that. And between Trump’s original (and continued) clumsiness in tying the travel ban to the Muslim ban, and his attacks on the judges who’ve ruled against him so far, the judges in the Fourth and Ninth Circuits have some good reasons to agree that Trump was over the line. (On Monday, court watchers counted a majority of the panel asking questions that leaned toward the ACLU’s side of the case.)

But at a certain point, they’re going to have to articulate where the line is that Trump has crossed. If they can’t, or don’t, they’ll make it all the easier for a now-conservative Supreme Court to decide that the travel ban’s origins in the Muslim ban have been washed away in the policymaking process — or for a future president, a little more careful with his words, to succeed where Trump has failed.

CORRECTION: This article originally said that Palmer v. Thompson was about public schools rather than public pools, because the author failed at reading comprehension. It also said the case was ruled on in 1962; that was the year of the closures, but the Supreme Court ruled on them in 1971.