In a ruling, on Thursday, that left in place a lower court’s stay on President Donald Trump’s travel ban, the United States Court of Appeals for the Fourth Circuit went well beyond saying that the White House’s case was mistaken, misguided, or just inadequate. Instead, Chief Judge Roger Gregory wrote that behind the arguments in defense of the ban lay “a dangerous idea”—namely, that “this Court lacks the authority to review high-level government policy of the sort here.” The Trump Administration had said that the courts simply could not second-guess the President on matters of national security and immigration. This is not true, and never has been, Gregory wrote, despite the government lawyers’ “casual assertion” to the contrary. The Supreme Court has, instead, found that the courts have a duty to intervene, even in times of war, “where constitutional rights, values, and principles are at stake.” And they were very much at stake in the travel-ban case, which is playing out in various circuits and is now undoubtedly headed for the Supreme Court.
Casual assertions with dangerous—and, often enough, unconstitutional—implications are something of a Trumpian specialty, and they are at the center of this case. During the campaign, Trump called for a “complete and total shutdown” of Muslim immigration; he said that Muslims were a “problem,” and that they hated America. Then, a week after his Inauguration, Trump issued an executive order barring the entry of people from seven mostly Muslim nations (Iraq, Iran, Somalia, Sudan, Yemen, Syria, and Libya), a suspension of America’s refugee program, and a more extensive shutdown of the entry of refugees from Syria. It also included measures, with regard to the refugee program, to favor religious minorities—in practice, Christians. And so it wasn’t much of a stretch for those challenging the ban, in courtrooms across the country, to state that the order targets Muslims and thus violates the Establishment Clause.
When the Trump Administration realized that judges were at least willing to hear the challengers’ argument, and meanwhile stay the order, it discarded the first draft and came up with a new order, issued in March. This second order—which was the subject of the case, brought by a refugee-assistance group, before the Fourth Circuit—removed references to religion, exempted Iraq, protected green-card holders, and added a complaint from the President about how, really, the first order had been totally fine. Neither draft, the White House argued, had anything to do with Muslims—only with dangerous people who hated America.
The Fourth Circuit asked Trump, in effect, whom he thought he was fooling. Judge Gregory wrote that the essential question was whether the Constitution protected the right “to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.”
The government had argued that the “context” was a political campaign, full of heated passions and inflammatory speeches, and that the judges should look only at the language in Trump’s official pronouncements as President. (Some of his unofficial statements as President had also bothered the judges.) Anything else, Jeffrey Wall, the Deputy Solicitor General, claimed, in an oral argument before panels of both Fourth and Ninth Circuit judges last month, was an exercise in “psychology.” Three of the thirteen judges on the Fourth Circuit panel hearing the case agreed, in opinions that warned of the dangers of delving too far into the question of what a President really meant or felt. It is true that discerning motives can often be a tough exercise with Donald Trump, or with anyone. However, there are, as opponents of the ban have noted, Supreme Court precedents saying that judges can search out motives when there is good reason to believe that the rationale for an executive action has been offered in bad faith.
The Fourth Circuit found that there is good reason. It likely didn’t help Trump that some of his and his aides’ comments laid out a roadmap of how to evade constitutional scrutiny, both before and after the election. When reminded by a reporter of the problems with targeting Muslims, he said, “So you call it ‘territories.’ O.K.? We’re gonna do ‘territories.’ ” Judge Gregory quoted that statement, and also an exchange that Trump had during the campaign on “Meet the Press,” during which he was asked if he had “pulled back” on his Muslim ban. “I actually don’t think it’s a rollback. In fact, you could say it’s an expansion,” Trump replied. “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 O.K. with that, because I’m talking ‘territory’ instead of ‘Muslim.’ ” He added, “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.” However, he said, “I view it differently.”
The Supreme Court may also reach a different conclusion from the Fourth Circuit; indeed, with five conservative Justices now on the bench, there’s a fair chance that it will. Attorney General Jeff Sessions, on Thursday, seemed eager to get the case to the Supreme Court, saying that the government would quickly appeal the ruling as part of its effort “to protect this country from danger.” But even if the Supreme Court reinstates the travel ban, a great deal will depend on how the majority writes its decision. Will it agree with Trump that he simply can’t be questioned? Or will it find a narrower way to let him have some of what he wants without planting constitutional land mines that he, or future Presidents, can exploit?
Even beyond the legal arguments, there is something dispiriting in the Administration’s assertions about the meaninglessness of campaign rhetoric. It is an insult to politics, a proudly casual assertion of the emptiness of the promises a candidate makes to voters. It is of a piece with this President’s general contempt for facts and the standard definitions of words. Given that we hold elections to give someone like Donald Trump a mandate, and a great deal of power, shouldn’t the words he traded for votes matter a great deal? But the White House is asking to be given a free pass on the grounds that politicians naturally lie to the public—as if it were folly to assume otherwise. Perhaps the Supreme Court will grant them a win on that basis. Voters shouldn’t.