How should the courts deal with the travel ban? Pro-Trump or anti-Trump, the legal questions are real and deserve careful thought.
The Undisputed Facts
Here are the undisputed facts:
- America has been at "war" with loosely-affiliated groups of terrorists for decades.
- All the individuals opposing us in that conflict are Muslims.
- Those who oppose us in this conflict do so on religious grounds. They terrorize and kill as a religious act.
- Presidents Bush and Obama strove to define the conflict in non-religious terms. Critics charged both with weakness for refusing to say "radical Islamic terrorism."
- Candidate Trump pledged to redefine the conflict in explicitly religious terms. He did so in his campaign. He has done so with his rhetoric as President.
- Candidate Trump promised a "Muslim ban." He promised to temporarily prohibit Muslim from entering the country. Candidate Trump's opponents claimed that such a policy would violate the First Amendment. Candidate Trump continued to promise the Muslim ban.
- President Trump issued several Executive Orders in the first weeks after taking office. The orders were a demonstration that he would keep his campaign promises. One order temporarily prohibited persons from certain Muslim nations from entering the country.
The Executive Order is the "Muslim ban." To deny that conclusion is simply dishonest. The Order was not based on any new information about the countries in question. The President's staff crafted the Order to pass constitutional scrutiny. The President's advisors freely admitted as much. The ban was entirely symbolic. It did very little. It did not harm very many Muslims. The sole purpose was to keep a campaign promise that critics said could not be kept.
I do not believe that the preceding facts can be disputed. There is a host of reasons for arguing that the President should be able to do what he did. But no honest person can deny that Candidate Trump promised a Muslim ban, and then delivered on that promise, at least symbolically.
Does this mean that the Executive Order violated the First Amendment? No necessarily. But it does mean that President Trump intended the Order to fulfill a promise to violate the First Amendment.
How should the courts deal with a legal challenge to the order? The answer to that question raises fundamental issues of whether and how the President may be held accountable to his duty to protect, preserve, and defend the Constitution of the United States.
Is the President Accountable At All?
We must first ask whether the President is accountable at all. Is the Executive Order reviewable? The Ninth Circuit panel posed that question. The government's attorney endured a long, awkward silence before answering "yes." The Administration contends that the courts may not question the President on issues of national security. Are we willing to say that the President has the power to act and is not accountable to the courts? That is the same thing as saying that the President is not bound by the constitution. The sphere of "national security" is broad and fluid. Our system of government cannot accept that one branch can ever act without checks on its power. Every act of government power is accountable to the Constitution. The President's oath should prevent him from arguing otherwise.
It should not be an easy thing for courts to interfere with the President. Courts should defer when appropriate. Any judicial review should be careful and limited. But no accountability whatsoever is out of the question.
Should the Court Review the Purpose of Government Action?
Let's accept for the sake of argument: Every law is subject to judicial review. Every Executive Order is subject to judicial review. Every government act is subject to judicial review. If the government violates the constitution, the court must interfere.
If so, may the court consider the government's purpose? Let's take an easy case first. Say an FBI agent utilizes his authority to investigate and arrest, but does so with the purpose and effect of discriminating against African Americans. If a plaintiff can prove the unlawful purpose, then it is no answer that the officer was exercising lawful authority. Take a harder case. Say that the Congress enacted a statute redistributing welfare funds on a county by county basis. Some counties would get more; some less. On its face, the law does not discriminate against any group. The government may be able to offer several reasonable explanations for the action. But suppose that the majority who voted for the legislation clearly stated the purpose of the bill during debates. Suppose the purpose was to reduce funds in counties with a majority of African Americans. Courts review Congressional debates all the time to determine legislative intent. No court would ignore clear proof of a legislative intent to discriminate. A law is unconstitutional if its purpose is to violate the constitution. It doesn't matter if Congress worded the bill to seem to get around the constitutional limitation.
Facial neutrality will not save a law intended to discriminate. It should not save an Executive Order. If the purpose of a government action is to violate the constitution, the court must interfere.
How Should a Court Review an Executive Order?
Let's assume: (1) Executive Orders are reviewable, and (2) a purpose to violate the constitution matters. Now comes the hard part. How is the court to review an Executive Order for an unconstitutional purpose? Statutory purposes can be determined. The Congress is an institution. The intent of individual members is not relevant. The legislative intent will be a matter of public record. No so with Executive Orders. The institution making the decision to issue an Executive Order is a single person. The discussions leading up to an Executive Order are behind closed doors. There is no public record.
The Muslim ban, however, does have a record. President Trump promised the Muslim ban openly, publicly, and repeatedly. His advisors boasted that the President had found a way to keep that pledge. As two courts held this week, that record cannot be ignored. In court, the government maintains that the courts should ignore that record. The government's lawyers argue that courts should accept at face value the claim of no discriminatory purpose. But a court may not accept at face value a mere claim by one litigant about a disputed fact.
If the case involved an FBI agent abusing his power, the court would determine the agent's purpose through evidence. The evidence would be the statements and circumstances surrounding events. Most importantly, the agent would testify. He would be subject to cross-examination. The fact-finder would judge his credibility. A judge or jury would determine what his intent was.
The President is no different. He is an agent of the government. He is bound by the constitution and the law. His intent to evade the law and violate the constitution can be determined. The President's statements and the circumstances should establish a prima facie case. The government may rebut that prima facie case with evidence. Perhaps, documentary evidence and testimony will establish a non-discriminatory purpose. Perhaps, it will be necessary to have the President testify.
Does it make me uncomfortable to think that a sitting President might have to testify about his state of mind in issuing an Executive Order? Yes. It should make anyone uncomfortable. But much about the current President makes a lot of people uncomfortable. That is his appeal to a great many. So be it.
Never before has a presidential candidate run on a promise to violate the constitution. No court should shy away from its duty to require evidence as to the President's intent to violate the First Amendment. It will be uncomfortable. It will raise really difficult questions. The courts requiring the government attorneys to produce evidence to back up their assertions will be criticized. But that is how our system is. Anyone aspiring to be the President and electing to govern by executive degree should be willing to accept the consequences.
Apology: This post is off-topic for me. The normal concern of this blog is legal issues facing business owners in Texas, but the monumental constitutional questions thrust into the sphere of public discourse by the current administration should be of concern to every lawyer. They certainly are to this one.
