At the heart of every ruling against the Trump administration’s Refugee and Visa Orders, also known as the Muslim bans, is the president himself.
His promises to “ban Muslims” and statements made by his campaign and administration surrogates that both executive orders banning travelers from six predominately Muslim countries are indeed Muslim bans—these actions have all proven to be critical undergirding in the federal courts’ decisions to block Trump’s bans. On Thursday, the Fourth Circuit Court of Appeals held the president’s statements, and those made by his surrogates, were legally sufficient to prove the administration had not just overreached in issuing its executive orders, but had done so in a way that purposefully and unconstitutionally targeted Muslims.
The question of just how directly the administration meant to target Muslims has been a key legal factor in the challenges. The law limits just how far behind the curtain the courts can peek into the inner workings of the executive branch, especially on matters of national security.
That limitation is not absolute, though. As I’ve mentioned here, the fight in the courts over the Muslim bans is a fight between immigration law and the Constitution. It is also a fight between the statutory power of the president to direct matters of national security related to border security, and the First Amendment’s guarantee that no power is so absolute that it can target for persecution one faith or its believers. Furthermore, case law states that it is the courts’ power to enforce constitutional limits, even on matters of national security and immigration concerns.
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So far the First Amendment has won. Thursday, it won big.
The Trump administration has argued to the courts that the president in matters of national security and immigration should be unreviewable. Thursday, the Fourth Circuit refused to even consider the idea.
“Behind the casual assertion of consular nonreviewability lies a dangerous idea—that this Court lacks the authority to review high-level government policy of the sort here,” the opinion states. In other words, the court ruled that it did have the power to “peek behind the curtain,” so to speak.
To make its case that the executive orders are lawful, the government needed to prove that they are “facially legitimate and bona fide.” It’s a pretty low legal bar, but one the Trump administration can’t clear according to the Fourth Circuit.
According to the court, the evidence overwhelmingly suggests the Trump administration acted in bad faith in issuing the executive orders, and that, as a matter of law, means there was no “bona fide,” as in, legitimate reason for their existence. “We need not probe anyone’s heart of hearts to discover the purpose of [the second Muslim ban], for President Trump and his aides have explained it on numerous occasions and in no uncertain terms,” the court wrote.
In other words, they didn’t have to peek very far behind that curtain at all.
“The Government has repeatedly asked this Court to ignore evidence, circumscribe our own review, and blindly defer to executive action, all in the name of the Constitution’s separation of powers,” the court continued. “We decline to do so, not only because it is the particular province of the judicial branch to say what the law is, but also because we would do a disservice to our constitutional structure were we to let its mere invocation silence the call for meaningful judicial review. The deference we give the coordinate branches is surely powerful, but even it must yield in certain circumstances, lest we abdicate our own duties to uphold the Constitution.”
The Trump administration has already announced its intent of taking this decision to the U.S. Supreme Court. Given the seriousness of the issue and the legal questions involved, there is a good chance the Court will take up the case. Thursday’s opinion, even with the conservative majority on the Roberts Court, will not help the president’s case. The Fourth Circuit took seriously its job in reviewing the executive orders and their legal issues, as the federal courts should. It issued a thorough, thoughtful, and legally air-tight review of executive power, immigration law, the First Amendment, and the role of the courts in checking all of the above.
During his confirmation hearing, Chief Justice John Roberts famously said it would be his job to act as an umpire on the bench, to call “balls and strikes.” The conservative wing of the Court has so far shown a willingness to stretch the First Amendment and its principles as to protect corporate political donations, and to reinforce corporate religious freedom. But I don’t think the Court is going to push it so far as to find a way around the Fourth Circuit’s ruling that the ban is a blatant Establishment Clause violation. Roberts also has his own legacy at stake and is generally uncomfortable tying up the Court in the immediate political battles of the day.
Assuming the Court does take the case, will Roberts want part of his legacy to include siding with the Trump administration on the Muslim bans? Or will he again act as an umpire and use the law to try and settle a political fight, as reluctant as he may be to do so, as he did in National Federation of Independent Business v. Sebelius, the case that first upheld the constitutionality of the Affordable Care Act? Thursday’s rock-solid decision from the Fourth Circuit certainly makes the second option much easier for Roberts to join his liberal colleagues in a decision defeating the Muslim bans. Let’s hope he takes the cover the court offered.