There have been a lot of court challenges to President Trump’s recent executive order temporarily banning entry by individuals holding one from a certain list of citizenships – what I’ll call the "Muslim Ban" only in shock quotes … because whether or not that description applies is the whole issue here. Several have been successful. Courts seem to be piling on in issuing temporary injuctions against the temporary ban. Though the matter is not yet officially adjudicated, there are at least three stays on the order. It’s the most recent of these – handed down only yesterday from the Eastern Virginia District Court – that I want to complain about here.
On the one hand, I’m glad to see so much pushback from the judiciary. We’ve had a lot of trouble recently with executive overreach. This is not new trouble to be sure. Lots of presidents in the past (Jackson, Lincoln, Wilson, both Roosevelts, to name a few) have exceeded their authority and gotten away with it. It’s a thing that seems to ebb and flow, spiking most recently during the George W. Bush administration and continuing unbroken during Obama’s two terms. One of the silver linings to the election of the patently unqualified Trump to the nation’s highest office was the hope that Congress, the Courts and (perhaps most importantly) the media would start pushing back. That, thankfully, seems to be the case, at least as far as the media and the Courts are concerned.
On the other hand, it’s important to push back sensibly. The end goal here is a well-run republic, after all, not just a republic. It’s no good replacing one kind of overreach with another. The media should, above all else, do its job and report on facts accurately. Likewise, the Courts have a responsibility to issue rulings that are based in actual, not imaginary, law.
It’s really hard to see how the District Court for the Eastern District of Virginia’s reasoning yesterday has much at all to do with actual law.
Let’s start with what it gets more or less right. I don’t mind the conclusion that Virginia has standing to sue. To be sure, I think their cited "injuries" are specious, and the court should probably not have accepted them as uncritically as it seems to have. For example, one of the "injuries" is that they can identify exactly two university students who were actually denied entry by the ban, a laughably small number, and in any case at that level a problem for those individuals and not for Virginia as a state. The mere fact that some people attend university in Virginia does not give the state the right to determine their immigration status, obviously! It’s not like it’s never happened before that a valuable student in Virginia has been determined to have overstayed his visa and forcibly deported. No one (reasonable) disputes that the mere fact that such cases cost (the) Virginia (university system) money does not supercede the actual law. Also, the cherry-picked assessment from a firm that specializes in supplying convenient financial figures in just these cases to clients on demand that this will cost Virginia $20million all told is … probably not very well founded, let’s put it that way. But OK, I suppose there’s no doubt that there’s some non-trivial cost involved, and in any case if states can’t sue the federal government in cases like this it’s not clear who actually can. I’m in favor of a doctrine that allows states to monitor the Executive in areas like this – where it is otherwise more or less impossible to identify someone with legal standing to sue, even though it’s pretty clear (a) that there’s injury and (b) who’s suffering it.
Another thing it gets right is the rejection of the government’s rationale for the order. Probably the most vexing thing about this order is how nakedly political it is. No one has supplied any evidence that there’s an impending threat from the countries listed. To be fair, I think every rational citizen just kinda knows there is one in general, but since we’re operating under a "threat level" framework in dealing with this, the President can’t just consult his gut and call it threat assessment. If we decide there’s a standing threat from citizens of certain countries, I for one have no ethical issues with slapping outright immigration bans, but such permanent and categorical bans really need to go through Congress, as is, after all, the law since 1965. The government has cited no evidence of a heightened threat, and indeed officials of the outgoing administration have officially denied any exists. The court is right here to note – in footnote 4 (p.6) – that if the Executive has classified information that would support such an assessment, it’s routine for courts to review such information out of sight of the public and under oath of secrecy. What’s not really permissible is just taking the government at its word.
From there, though, it’s a pretty miserable slog.
For one thing, the Court’s argument that the travel ban is a covert muslim ban is not very convincing. It starts by noting that the idea that a ban does not cover all members of a group is not a counterargument to the idea that it’s still targeted specifically at that group. That’s certainly true (see this post by Ilya Somin for a detailed version of that argument), but it’s equally true that it doesn’t follow from the fact that the ban happens to target members of that group implies that discrimination is its ultimate purpose. If, as is the case here, the classification in question actually is implicated in why citizens of the listed countries pose a heightened threat – compared with other classes of people – to the United States, then any attempt to isolate the threat will fail this particular smell test, even if the threat is real. Indeed, it was the previous administration that identified the countries in question as sources of danger, and no one has claimed that it did so on a legally impermissible basis. It’s already established security community consensus that future terrorist attacks are more likely to be carried out by citizens of the listed countries than citizens of other places, and part of the reason why it’s these countries and not others is because they’re all associated with a particular brand of Islam. So, let’s cut the crap. The ban isn’t a ban on muslims, but Islam is implicated in the ban, and that’s because Islam is implicated in the kinds of terrorist attacks we’re worried about. To the extent that the ban targets the subset of Islamic countries that are actually dangerous, as opposed to Islamic countries as a whole, based on credible intelligence that these countries are dangerous, then it is not a ban on muslims but only a ban on those muslims that Islam has inspired to be dangerous. If that’s not legally permissible, then there is no legally permissible security policy – an absurdity. Again, the violation here is in not citing any present danger from citizens of these countries; there is no violation in listing countries with hostile populations that happen to be Islamic, especially not if the "Islamic" bit is critical to radicalizing the people carry out the attacks, as it surely is.
By way of analogy – consider a WWII-era ban on citizens of Germany and Austria entering the United States that did not extend to Swiss Germans. No doubt pro-German sympathizers would try to characerize this as an "anti-German" ban. In reality, though, it would be an "anti-Nazi" ban. Is "German-ness" implicated in Naziism? It would be absurd to say otherwise. There is a high correlation between German blood and support for Hitler and the NSDAP (at least, there was at the time). Did it extend to all ethnic Germans? No, obviously not. In particular, Swiss Germans were not really on boad with the whole race-based conquest project. Neither, for that matter, were the ethnically-similar Danes. But notwithstanding the fact that the actual level of support for the NSDAP in Germany was probably never much higher than 30-ish percent, a travel ban from Germany in, say, 1937 would’ve made a certain amount of sense. Moreover, it wouldn’t have been an ethnic ban – just one that happened to disproportionately implicate a certain ethnicity. Would we agree with an exception for Jews from this ban? I certainly would, and I think any other moral person would as well. This is no different in form from what President Trump is proposing with regard to the predominantly Muslim countries that are on his list.
The court tries to justify all of this by pointing to statements made throughout President Trump’s presence as a political commentator – including times before he was an actual candidate – indicating that he is motivated by a focus on muslims in particular. He may well be. But one thing that one notices about these statements is that they’re all national security-focused. In fact, in all the statements of Trump’s that the court cites as evidence that he’s motivated by anti-muslim animus, he’s actually quite clear about not demonizing muslims as a group.
Example the first – Bill O’Reilly asks whether Trump thinks it’s "all muslims" who are the problem, and he responds that:
No. And that’s the sad part about life. Because you have fabulous Muslims. I know many Muslims and they’re fabulous people. They’re smart. They’re industrious. They’re great. Unfortunately, at this moment in time, there’s a Muslim problem in the world.
So, he seems to make a distinction between individual Muslims and the threat from political Islam. He also seems to recognize that the threat is of this time and place and not inherent to Islam as a religion. Since this is pretty much any reasonable person’s take on this situation, it’s hard to see what’s objectionable about it.
Example the second – confronted with Mike Pence’s tweet to the effect that a Muslim ban would be unconstitutional, he quickly switches to the idea that the ban would be based on territories:
…there are territories and terror states and terror nations that we’re not gonna allow the people to come into our country.
It’s sort of galling that these examples, which prima facie would seem to be exculpatory on the question of whether this is all motivated by illegal prejudice, are cited as saying the opposite.
The example that’s least convincing to me is that interview with Rudi Giuliani where Giuliani "admits" that Trump called him up asking for a "legal" way to do a Muslim ban. If the answer to that question is – as it seems to have been – that there’s no legal way to do a Muslim ban, it’s only legal if you’re targeting based on an actual threat assessment, then the advice Giuliani gave him was to "give up on the Muslim ban – cause that’s not legal – and do this instead." Which makes this current immigration ban – pointedly – not a Muslim ban. Again, the court is citing as evidence for prejudicial motivation something that actually proves the opposite. Or, rather, proves that President Trump is not so motivated by anti-Muslim animus that he’s willing to twist the law to achieve his goals.
For another thing, the court seems to think that there’s a reasonable chance that the plaintiffs would win on Establishment Clause grounds, which just seems laughable. As the preceding argument shows, it’s not even clear that the immigration ban is a ban on any religion in the first place. The Court’s own evidence that it is seems ambigious at best. But even if it is, that’s a long way from amounting to an impermissible establishment of a national religion. What religion would it be? It would have to be "Not Islam," which is hardly a religion.
As has been pointed out elsewhere, the Free Exercise Clause would’ve been a better approach. But even there, it’s hard to see how it would be relevant. Nothing about the travel ban – which, to reiterate a relevant point, doesn’t even prohibit muslims from entering the US in the first place – stops any Muslims currently residing in the United States from freely exercising their religion. Quite the contrary, there are plenty of legal protections that allow them to do just that. Nothing about practicing Islam requires anyone to come to the United States to do it, nor is immigrating to the US a sacred Muslim act. If the govenrment were routinely denying Muslims the right to travel to Saudi Arabia, where they are religiously required to go once in a lifetime to make the Haj, then that would plausibly involve the Free Exercise Clause. But nothing about it that I can see requires the acceptance of new Muslims. And, to hammer this point home again another time already, the current law doesn’t even stop Muslims from entering the US in the first place.
I’m all in favor of a stay on the order. As I’ve written elsewhere, I think it’s an example of the President overstepping his authority. But it’s an example of that because Congress specifically prohibits nationality as a classification for issuing visas, not because of any violation of the Establishment Clause, and not because of any cherry-picked cost analysis, and not because of any statements that make it clear that President Trump would like to ban Muslims, recognizes that’s illegal, and so focuses on a classification of people that’s already been vetted by the security establishment instead. So that there’s no confusion, let me just repeat that I agree with the part of this opinion that holds that executive orders can’t impose costs on states with no justification, and that this one fails that test since no convincing justification has been supplied, not even under cross-examination. I agree that the government most defintely cannot say "because we said so!" I just think this order needs to have stopped there. A Court system that thinks that the Not Actually A Muslim Ban Ban violates the Establishment Clause is no better than a President who thinks "because they’re a threat, believe me!" is a justification for a travel ban.
I hope some plaintiff, somewhere wins the case against this order. Just as I sincerely hope Aziz loses his particular case on the merits. Because the "merits" cited here are largely rubbish.