Reading the Fourth Circuit’s en banc opinion in International Refugee Assistance Project v. Trump, one would think the court’s analysis amounts to routine application of well-settled precedent. But a close examination reveals the decision to be anything but.
According to Chief Judge Gregory’s self-assigned seventy-page majority opinion, an American who seeks to be reunited with his alien wife suffers a constitutional injury because he felt like an “outsider.” Because the President’s travel ban is not “bona fide,” the court privileged cable news hits from Rudolph Giuliani and Stephen Miller over official statements of the Departments of Homeland Security, Justice, and State, to conclude that the policy was in fact animated by animus. Finally, because the President’s facially neutral executive order “drips with religious intolerance,” the court can pick apart the purported national security rationales to find them mere afterthoughts.
Regrettably, the decision is pocked by precedential lacunas. Ignoring the errors highlighted by the three pointed dissents, the majority opinion covers these gaps with papier-mâché bulwarks, seemingly designed to last only as long as needed to hold President Trump at bay. At bottom, the judicial resistance to the travel ban amounts to a not-too-transparent exercise of motivated reasoning: construe precedents as broadly or narrowly as needed and draw all inferences in the light least charitable to the President. Motivated reasoning is not new to the judiciary—all men are mortal—but it is brazen in the travel ban cases.
In this five-part series, I will begin by analyzing the majority opinion, which was joined in whole or in part by seven judges, with a focus on its reliance on Trump’s pre- and post-inauguration statements. Part II will assess how the court marshals the Supreme Court’s precedents concerning reviewability of immigration decisions and the Establishment Clause. In Part III, I will focus on the far more modest concurring opinions of Judges Keenan and Thacker, which were aimed at the Supreme Court, and the far less modest concurring opinion of Judge Wynn. Part IV will analyze Judges Niemeyer's dissent, and Part V will examine the dissents of Judges Shedd and Agee and what happens as this case is appealed to the Supreme Court.
I offer no prediction about whether the Supreme Court will ultimately uphold the travel ban, and there is a distinct possibility it will deny certiorari altogether in the absence of a circuit split. But if review is granted, I fully expect the Court to clean up the doctrinal hash from the lower courts. Such a public service is reason enough to take the case, lest future Presidents feel bound to comply with these unjustified strictures.
Trump’s Statements on the Campaign Trail
The majority opinion’s biggest error lies in its reliance on Trump’s statements on the campaign trail. Judge Thacker, who concurred with the majority’s holding, wrote separately to emphasize the problem with relying on such statements:
I agree with the majority’s conclusion that Appellees have standing to challenge the constitutionality of § 2(c) of EO-2 and that EO-2 likely violates the Establishment Clause. However, in my view, we need not -- and should not -- reach this conclusion by relying on statements made by the President and his associates before inauguration. While on the campaign trail, a non-incumbent presidential candidate has not yet taken the oath to “preserve, protect and defend the Constitution,” U.S. Const. art. II, § 1, and may speak to a host of promises merely to curry favor with the electorate. Once a candidate becomes President, however, the Constitution vests that individual with the awesome power of the executive office while simultaneously imposing constraints on that power. Thus, in undertaking the Establishment Clause analysis, I believe we should focus our attention on conduct occurring on President Trump’s inauguration date, January 20, 2017, and thereafter. Indeed, for the reasons below, looking to pre-inauguration conduct is neither advisable nor necessary.
She is exactly right. Alas, the other six judges in the majority were content to cherry pick statements from the campaign trial, and read them out of context to prove a single point: Trump never abandoned his initial Muslim ban, and everything said and done to the contrary was pretextual. The court notes that "Candidate Trump later recharacterized his call to ban Muslims as a ban on nationals from certain countries or territories" (p. 20) (emphasis added).
The court’s use of the word “recharacterized” marks an important rhetorical move: it rejects the notion that Trump replacement of the Muslim ban with a territory-based ban was intended to promote national security and instead views the territory-based ban as a pretext for the original Muslim ban.
To that end, the court walks through a number of statements made by Donald Trump and his associates, both before and after the inauguration, to establish this improper purpose. In this section, I will highlight each statement identified by the court and provide the full context. Consistently, the majority read these statements in the most uncharitable light, eliding key words that suggest ambiguity, or alternatively, more benign motives.
First, the court excerpts then-candidate Trump’s interview on “60 Minutes.”
On July 17, 2016, when asked about a tweet that said, “Calls to ban Muslims from entering the U.S. are offensive and unconstitutional,” then-candidate Trump responded, “So you call it territories. OK? We’re gonna do territories” (pp. 20-21).
The full transcript is far less clear of what Trump intended to convey than this excerpt suggests:
Lesley Stahl: --in December you tweeted, and I quote you, "Calls to ban Muslims from entering the U.S. are offensive and unconstitutional."
Donald Trump: So you call it territories. OK? We're gonna do territories. We're gonna not let people come in from Syria that nobody knows who they are. Hillary Clinton wants 550 percent more people to come in than Obama--
Lesley Stahl: So you--
Donald Trump: --who doesn't know what he's--
Lesley Stahl: --so you're changing--
Donald Trump: --so we're going to--
Lesley Stahl: --your position.
Donald Trump: --no, I-- call it whatever you want. We'll call it territories, OK?
Lesley Stahl: So not Muslims?
Donald Trump: You know-- the Constitution -- there's nothing like it. But it doesn't necessarily give us the right to commit suicide, as a country, OK? And I'll tell you this. Call it whatever you want, change territories, but there are territories and terror states and terror nations that we're not gonna allow the people to come into our country. And we're gonna have a thing called "Extreme vetting." And if people wanna come in, there's gonna be extreme vetting. We're gonna have extreme vetting. They're gonna come in and we're gonna know where they came from and who they are.
The court looks to this statement as evidence that “Trump also suggested that he would attempt to circumvent scrutiny of the Muslim ban by formulating it in terms of nationality, rather than religion.” Admittedly, Trump is “characteristically incoherent,” but his comment does not reflect an admission to “circumvent” the law. He did not actually say he was sticking with the Muslim ban. He was not admitting to Lesley Stahl on “60 Minutes” that his purported abandonment of the Muslim Ban was a sham. The court reads this statement in with jade-colored glasses.
Next, the court quotes at length from Trump’s appearance on “Meet the Press” a week later:
When asked whether he had “pulled back” on his “Muslim ban,” Trump replied, “We must immediately suspend immigration from any nation that has been compromised by terrorism until such time as proven vetting mechanisms have been put in place.” J.A. 480. Trump added, “I actually don’t think it’s a rollback. In fact, you could say it’s an expansion. I’m looking now at territories. People were so upset when I used the word Muslim. Oh, you can’t use the word Muslim. Remember this. And I’m okay with that, because I’m talking territory instead of Muslim.” J.A. 481. Trump continued, “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.” (p. 21).
The court omitted the remainder of the exchange, which reiterated that the policy was premised on territories:
Why are we committing suicide? Why are we doing that? But you know what? I live with our Constitution. I love our Constitution. I cherish our Constitution. We're making it territorial. We have nations and we'll come out, I'm going to be coming out over the next few weeks with a number of the places. And it's very complex--
Far more than with Lesley Stahl, Trump expressed—as clearly as he can—that he abandoned the religious ban and is “talking territory instead of Muslim.” (Trump’s utter inattention to the rules of grammar and syntax reveals why trying to reassemble his clauses to make sense is a fruitless endeavor).
Next, the court jumps forward to after the election, but before the inauguration:
On December 19, 2016, following a terrorist attack in Germany, President-Elect Trump lamented the attack on people who were “prepared to celebrate the Christmas holiday” by “ISIS and other Islamic terrorists [who] continually slaughter Christians in their communities and places of worship as part of their global jihad.” Two days later, when asked whether recent violence in Europe had affected his plans to bar Muslims from immigrating to the United States, President-Elect Trump commented, “You know my plans. All along, I’ve been proven to be right. 100% correct. What’s happening is disgraceful.”
The majority opinion looks at this exchange as illustrating that the recent attacks did not “affect his proposed Muslim ban” (p. 56). I’m not so sure. The court does not quote the question that was asked. The reason is that the question was very difficult to understand, as cameras were clicking very loud. As best as I can discern, as President-Elect Trump was about to enter Mar-a-Lago, a reporter asked whether the terrorist attack in Germany “has caused you to rethink or reevaluate your plans to create a Muslim register or ban Muslim immigration to the United States.” A moment later, a reporter asks Trump a more audible question, and he asks her to repeat the question. Watch it yourself here.
Two factors give me pause before concluding that Trump reiterated his “plans” to implement both a Muslim ban and a Muslim registry. First, Trump’s campaign expressly repudiated the notion of a Muslim registry, stating, “President-elect Trump has never advocated for any registry or system that tracks individuals based on their religion, and to imply otherwise is completely false.” Rather, the campaign supported “[t]he national registry of foreign visitors from countries with high terrorism activity that was in place during the Bush and Obama Administrations.” In a muddled interview with NBC News in November 2015, Trump discussed some sort of registry “system” but promptly tweeted “I didn't suggest a database—a reporter did. We must defeat Islamic terrorism & have surveillance, including a watch list, to protect America.” Subsequently, Trump denied wanting such a registry. Did he or didn't he plan “all along” to implement a Muslim registry? Fact-checkers cut their teeth on this sort of stuff. Indeed, Politifact in 2015 stated “His comments and the media coverage of them have left us confused.” Join the club. Judges should be hesitant before relying on off-the-cuff statements that are inconsistent with Trump’s own prior repudiations.
Second, even assuming Trump heard the question, he seldom actually answers question as asked. It is maddening. (The court’s sanitized excerpt omits this important context). Because nothing in the Trump’s answer was specific enough to link up to the question asked, I would dismiss this as Trump’s usual braggadocio, and telling people that he was right all along. (As an aside, he often takes credit for opposing failed policies he in fact supported, such as the Iraq War). In any event, despite the question asked, nothing in Trump’s answer is specific enough to assess. But I’ll concede this pre-inauguration response is far more ambigous than others.
Statements about Christian Refugees
The court moves on to discuss statements made after the inauguration concerning Christian refugees:
The President gave an interview to the Christian Broadcasting News on January 27, 2017, the same day he issued the First Executive Order. In that interview, the President explained that EO-1 would give preference to Christian refugees: “They’ve been horribly treated. Do you know if you were a Christian in Syria it was impossible, at least very tough to get into the United States? If you were a Muslim you could come in, but if you were a Christian, it was almost impossible . . . .” J.A. 461. He found that situation “very, very unfair.”
Judge Thacker notes in her concurring opinion that "[t]he statements of the President, his advisor, and the text of EO-1 made crystal clear a primary purpose of disfavoring Islam and promoting Christianity." (emphasis added).
Legal writers should avoid the word “clear” at all costs, because it reflects a lack of an actual argument. Doubly so for “crystal clear.” On its face, Trump’s statement merely reflects that the first executive order provided extra protections religious minorities in all countries. That is Christians in majority-Muslim nations or Muslims in majority-Christian nations. Beyond ipse dixit, there is no showing that this statement reflects anti-Muslim animus.
Further, this policy is not unique in providing protections for refugees based on religious status. Consider, for example, the validity of § 599D of the 1989 Foreign Operations, Export Financing, and Related Programs Appropriations Act—the so-called Lautenberg Amendment—which provides that “[a]liens who are (or were) nationals and residents of the Soviet Union and who are Jews or Evangelical Christians shall be deemed” to be subject to persecution, unless there was sufficient evidence to the contrary. My colleague Peter Margulies reminds me that the Hebrew Immigrant Aid Society (HIAS), a plaintiff in IRAP v. Trump, supported the Lautenberg Amendment. Indeed, HIAS recently lauded President Obama’s extension of the Lautenberg Amendment, which “ensures a safe means of exit for Iranian religious minorities” as well as “Ukrainian religious minorities.” Providing special protection for persecuted religious minorities—protections that aliens of others faiths lack—is a well-established facet of our immigration law. This much is crystal clear.
“We All Know What That Means”
Next, the court turns to the President’s remarks upon signing the first executive order: "Just before signing EO-1, President Trump stated, “This is the ‘Protection of the Nation from Foreign Terrorist Entry into the United States.’ We all know what that means.” J.A. 403.
As I’ve suggested in several other posts, before deciding what Trump meant by this statement, judges and law clerks should first watch the full video of Trump making this comment in front of the Vice President, Secretary of Defense, and a room full of military officers. He doesn’t mean what the court says he means.
Trump was talking about defeating terrorism, not implementing a Muslim ban. At this point, jurists who use this quote to insinuate that Trump was talking about a Muslim ban, are, to borrow Justice Souter’s explanation in McCreary County, “turn[ing] a blind eye to the context in which [the action] arose.’”
Rudy Giuliani’s Statements
Next, the court turns to the lynchpin of the litigation, the January 28, 2017 statement of former Mayor Rudy Giuliani:
The following day, former New York City Mayor and presidential advisor Rudolph Giuliani appeared on Fox News and was asked, “How did the President decide the seven countries?” J.A. 508. Giuliani answered, “I’ll tell you the whole history of it. So when [the President] first announced it, he said ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’” J.A. 508. Giuliani said he assembled a group of “expert lawyers” that “focused on, instead of religion, danger—the areas of the world that create danger for us. . . . It’s based on places where there [is] substantial evidence that people are sending terrorists into our country.” J.A. 508–09.
Once again, the court insinuates that Trump asked Giuliani how to secretly enact a Muslim ban. But neither the majority nor the concurring opinions included the entirety of Giuliani’s remarks. He said, “I put a commission together with Judge [and former Attorney General] Mukasey, with Congressman [and Chairman of the Homeland Security Committee] McCaul, [Representative and former Chair of the Homeland Security Committee] Pete King, whole group of other very expert lawyers on this.”
This explanation shifts the frame. If the court were to determine that Giuliani was in fact enabling a secret-Muslim ban, then it would have to determine the same was true of former-Attorney General Mukasey. But the judges do not suggest this. (Note that in Aziz v. Trump, Judge Brinkema also used similar ellipses to omit the former AG’s role.)
Judge Thacker states the issue far more bluntly in her concurring opinion:
As Rudy Giuliani, an advisor to the President, explained on January 28, 2017, EO- 1 did all this with the purpose of discriminating against Muslims. Giuliani was quite clear that the President wanted to enact a “Muslim ban” and had assembled a commission to study how to create a “Muslim ban” legally. J.A. 508. Per Giuliani, EO-1 was the President’s attempt at a legal “Muslim ban.”
Giuliani did not say this. The court’s motivated reasoning causes it to read significance into Giuliani’s use of the pronoun “it” to conjure up the worst-case scenario. “It” refers to the lawful ban of aliens from certain nations, not the original Muslims. Peter Margulies likewise observes:
Judge Gregory’s paraphrase of Giuliani’s account assumes the very fact in contention: what “it” means . . . . Judge Gregory’s leap to the conclusion that “it” means a “Muslim ban” is surely one inference, but it’s not the only one. The “it” in Giuliani’s explanation could also refer to pausing certain immigration temporarily, in order to assess whether the United States’ current criteria for screening immigrants actually work.
Further proving this point, Representative McCaul stated expressly what Giuliani suggested: the Muslim ban was unconstitutional, so they instead advised to impose a territory ban. Here’s the Texas Tribune’s account:
"We drafted a memo back last May or June to advocate to candidate Trump why a Muslim ban was unconstitutional and to look at vetting in high threat areas," McCaul said. "I had no participation in this executive order." McCaul characterized the memo as "advocating a shift from a Muslim ban, which [Trump] was campaigning on, which we thought was unconstitutional, rather to an enhanced vetting process of immigrants and refugees based on risk—not religion—from high-threat areas."
The court’s uncharitable reading of Giuliani does not befit a federal court tasked with construing an official executive order.
On this last point, I will return to Judge Thacker’s concurring opinion. On pages 134-35, she cobbles together a series of cases to suggest that is not only appropriate to consider statements made by the Presidents and his advisors, but that precedent supports it. She writes:
Giuliani is purportedly a member, and claims to be chairman, of an expert legal commission assembled to study how to create a lawful way to ban Muslims from entering the country and an acknowledged advisor to the President. See J.A. 508–09. Courts routinely analyze statements and reports from presidential commissions such as the one of which Giuliani is a member. See, e.g., Bartnicki v. Vopper, 532 U.S. 514, 533 (2001) (citing and quoting President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 202 (1967) to demonstrate importance of privacy in communications); Osborne v. Ohio, 495 U.S. 103, 111 (1990) (citing Attorney General’s Commission on Pornography to establish state’s interest in punishing child pornography possession). (p. 134) (emphasis added).
This effort to bootstrap Rudy’s comments on Fox News as if he were the “chairman” of some sort of “expert legal commission” is contrived. Giuliani assembled a group of lawyers that advised a candidate about a policy announced on the stump. This motley crew was worlds away from the President’s Commission on Law Enforcement and Administration of Justice at issue in Bartnicki and the Attorney General’s Commission on Pornography in Osborne. Unlike the public commissions referenced by the Supreme Court, Giuliani’s work was never designed to be made public, and indeed may have never translated to actual policy. (There is pending litigation in Michigan over the release of this memorandum.) Judge Thacker’s analogy misses the mark.
More importantly, there is no evidence Giuliani participated in the drafting of the final order. Indeed, he recently stated under oath, “I have not served on any Trump administration Commission ‘relating to the so-called Muslim Ban Executive Orders.” He added, “I have not participated in writing any of the Executive Orders on that subject issued by the Trump Administration.” Judge Thacker’s hedges far too much on her loose use of “purportedly.” A sworn affidavit should be accorded more weight than off-the-cuff remarks on cable news.
Even if Giuliani spoke imprecisely, the courts should have cut him some slack. Those who have been on cable news know it is easy to mix up your words while on camera, and you don’t get a chance to correct yourself. It’s hard. It is not like a judicial opinion that can be edited and re-edited in chambers.
Don't forget that President Obama insisted on "This Week" with George Stephanopoulos that the Affordable Care Act was not a tax. As I recount in my book Unprecedented, Justice Scalia asked Solicitor General Verrilli about this interview.
Justice Scalia was not persuaded that the penalty was a tax for any purposes. The next day, he asked Verrilli directly, “The president said it wasn’t a tax, didn’t he? . . . Is it a tax or not a tax? The president didn’t think it was.” Verrilli, no doubt frustrated by this question, evaded it with some Washington-spin: the President, Verrilli noted, had said that the penalty “wasn’t a tax increase,” but he didn’t say it wasn’t a tax.
The Supreme Court, you may recall, did not find President Obama's statements, or those of Congress for that matter, relevant to the question of whether the ACA was not a tax. Those statements were far more explicit about an actual piece of legislation than any of the four post-inauguration statements from Trump, Miller, Giuliani, or Spicer.
Trump’s Post-Injunction Statements
Next, the majority opinion moves on to statements Trump made after the first executive order was enjoined: "In discussing the Ninth Circuit’s decision and his “[e]xtreme vetting” proposal, the President stated, “I got elected on defense of our country. I keep my campaign promises, and our citizens will be very happy when they see the result.” But again, the court’s selective quotation eliminates important context. The White House provides the full transcript, which shows that the President said, in relevant part:
We’ve taken decisive action to keep radical Islamic terrorists out of our country. Though parts of our necessary and constitutional actions were blocked by a judge’s, in my opinion, incorrect and unsafe ruling, our administration is working night and day to keep you safe -- including reporters safe -- and is vigorously defending this lawful order. I will not back down from defending our country. I got elected on defense of our country. And I keep my campaign promises. And our citizens will be very happy when they see the result. They already are. I can tell you that. Extreme vetting will be put in place, and it already is in place in many places.
The campaign promise to which Trump was referring was not a Muslim ban, but “keep[ing] radical Islamic terrorists out of our country” and “defending our country.” (I suspect this is also what Trump was referring to during his comments outside Mar-a-Lago in December 2016.)
Stephen Miller's Statements
The court then cites statements from the President’s senior policy adviser, Stephen Miller, who said on national television that the “new order would reflect ‘mostly minor technical differences’ and emphasized that it would produce the ‘same basic policy outcome for the country.’” This excerpt is, once again misleading. Here is the full exchange:
Well, one of the big differences that you’re going to see in the executive order is that it’s going to be responsive to the judicial ruling, which didn’t exist previously. And so these are mostly minor technical differences. Fundamentally, you’re still going to have the same basic policy outcome for the country, but you’re going to be responsive to a lot of very technical issues that were brought up by the court and those will be addressed. But in terms of protecting the country, those basic policies are still going to be in effect.
Miller’s entire answer concerned making changes to comply with the Ninth Circuit’s ruling, not returning to the original Muslim ban. The revised order addressed the applicability of the travel ban, but it still affected six of the seven original countries. That is, the “same basic policy outcome.” If a law student used this excerpt in a research paper without more context, I would give it a poor grade with the notation “Misleading.” Judges should do better.
Sean Spicer’s Statements
Next, the opinion quotes (embattled) White House Press Secretary Sean Spicer, who stated on the day the new order was issued, “The principles of the executive order remain the same.”
Judge Thacker suggests that the remarks from Spicer as well as Miller “simply attempted to effectuate the same discrimination through a slightly different vehicle -- the proverbial wolf in sheep’s clothing.” Not so. Consider the full context of the press secretary’s remarks:
We talked about the courts issue, we talked about this ad nauseam; the President got asked about it over and over again. I think today was about the implementation of it, was about having the three Departments that are expressly named to implement this to talk about what they’re doing to implement it. And I think they did a phenomenal job about it. And that’s what we wanted to highlight today, is the government getting it done. And the way that the Department of Justice, the Department of Homeland Security and the Department of State were implementing the measures that the President laid forth -- again, if you think about it, the principles of the executive order remain the same. We looked at what the court said, we put together a thing -- we consulted with the relevant agencies and Departments. We talked to Congress.
Once again, Spicer’s entire comment was directed at how the revised order addressed the Ninth Circuit’s decision. Judge Thacker’s argument, complete with an unwarranted nod to Morrison v. Olson, is a non sequitur. It would be more apt for the Fourth Circuit to consider an earlier portion of Justice Scalia’s canonical dissent: “That is what this suit is about. Power.” And not the power of the presidency, but that of the courts.
After a trip through the President’s administration, the court next cites a statement from Trump himself: "And President Trump, in a speech at a rally in Nashville, Tennessee, described EO-2 as “a watered down version of the first order.” Again, the second order was indeed “watered down” from the first order, in light of the Ninth Circuit’s opinion. Trump’s full remarks make this point more directly:
The order he blocked was a watered down version of the first order that was also blocked by another judge and should have never been blocked to start with.
This new order was tailored to the dictates of the 9th Circuit, in my opinion, flawed ruling.
The court did not cite a remark made later during that same Nashville rally, which has made it into other opinions:
Remember this. I wasn't thrilled, but the lawyers all said, oh, let's tailor it. This is a watered down version of the first one. This is a watered down version. And let me tell you something. I think we ought to go back to the first one and go all the way, which is what I wanted to do in the first place.
Does “all the way” mean go back to the Muslim ban, or is Trump—in his inimical way—advocating going all the way back to the initial ban? Viewed in light of his earlier comments, the latter is far more likely. Since the shift to the territory policy, Trump had said absolutely nothing about the Muslim ban. The court provides no reason why this subtle slip suggests the President was in fact spilling the beans about his true purpose.
Peter Margulies provides an apt summary of the court’s unfortunate reading of this record:
Unfortunately, the Fourth Circuit opted to substitute confirmation bias for reasoned inquiry. Viewed through the prism of a narrative that assumes invidious bias, the phrase “watered down” no longer means “material alteration.” Instead, it magically assumes the attributes of a “superficial tweak,” reinforcing the Fourth Circuit’s holding that the revised EO inherited the flaws of the original. Viewed in this light, the Fourth Circuit’s cherry-picking of Trump’s utterances is not salutary pushback against his administration’s excesses, but yet another example of collateral damage.
The Missing Link
Chief Judge Gregory recognizes that “[f]or a past statement to be relevant to the government’s purpose, there must be a substantial, specific connection between it and the challenged government action.” To find that otherwise missing link, he looks to the four sets of statements from Giuliani, Miller, Spicer, and Trump:
These statements suggest that like EO-1, EO-2’s purpose is to effectuate the promised Muslim ban, and that its changes from EO-1 reflect an effort to help it survive judicial scrutiny, rather than to avoid targeting Muslims for exclusion from the United States. These statements, taken together, provide direct, specific evidence of what motivated both EO-1 and EO-2: President Trump’s desire to exclude Muslims from the United States. The statements also reveal President Trump’s intended means of effectuating the ban: by targeting majority-Muslim nations instead of Muslims explicitly.
Specifically, the court concludes, these four incidents provide the requite “connection.”
And here, in this highly unique set of circumstances, there is a direct link between the President’s numerous campaign statements promising a Muslim ban that targets territories, the discrete action he took only one week into office executing that exact plan, and EO-2, the “watered down” version of that plan that “get[s] just about everything,” and “in some ways, more.”
As discussed above, none of these remarks provide a “direct link,” let alone circumstantial evidence. In each case, the President and his advisers were referring to the territory ban, or at worst, made ambiguous comments about national security. Only by cherry-picking excerpts of comments out of context in the most unfavorably light possible can the majority reach this conclusion.
Judge Shedd’s dissenting critique of the district court applies equally to his colleagues:
The shortcomings inherent in the district court’s fact-finding are obvious. It is primarily based on the district court’s selectively negative interpretation of political campaign statements made before the President swore his oath of office, its acceptance of the national security assessment of former government officials (many of whom openly oppose this President), its failure to account for the national security assessment of the current Attorney General and Secretary of Homeland Security, its misplaced conclusion regarding the President’s decision not to submit the Executive Order to the Executive bureaucracy for “inter-agency review,” and the purported novelty of the temporary travel pause.
At bottom, the Fourth Circuit concluded that the President never truly abandoned his initial campaign promise to ban Muslims, despite the assurances of the entire executive branch. Everything else is, as Justice Thomas wrote in his dissent to Graham v. Florida, “merely ornaments,” and “window dressing that accompanies . . . judicial fiat.” Speaking of Justice Thomas, the majority opinion leaves a doctrinal gap large enough for him to drive his 40-foot motor coach through.
The Fourth Circuit’s en banc decision, shrouded in over seventy pages of legal reasoning, boils down to a simple proposition: Trump lied. There’s not much more to it than that. The majority opinion hurdles past standing doctrine, disregards concerns about justiciability, expands the Court’s precedents concerning the reviewability of consular decisions, applies domestic Establishment Clause case law to national security decisions, and views the President’s statements in the most uncharitable light imaginable. Finally, buried in footnote 19 is the court’s unceremonious interment of the “presumption of regularity.”
On a personal note, writing these (many) posts about the travel bans is not a particularly enjoyable or rewarding task, because I write in defense of policies I profoundly oppose. In many respects, my work on these cases is a mirror image to my previous work on the constitutionality President Obama’s deferred action policies. While I supported DACA and DAPA as a matter of policy, I concluded they were unlawful. In contrast, while I oppose the travel bans as a matter of policy, I concluded they were lawful.
Thus, my commitment to the travel ban litigation is dual-faceted. First, I aim to fill the void, as there is a shortage of clear-eyed analyses of the travel bans due to Trump’s toxicity. Second, recognizing that the judicial resistance may ultimately defeat the Trump presidency, my sincere hope is that courts do so with as little collateral damage as possible to other areas of law.