More than a decade ago, Justice David Souter warned courts that when searching for an impermissible religious purpose, they should resist performing a “judicial psychoanalysis of a drafter’s heart of hearts.”
And yet, in Hawaii and Virginia, the courts have done exactly that—halting President Donald Trump’s executive order on immigration by trying to read his mind. On Wednesday, a federal court in Hawaii concluded that Trump’s revised order violates the First Amendment’s prohibition that the government “shall make no law respecting an establishment of religion.” This opinion basically cribbed from a February decision by a federal court in Virginia halting the president’s initial executive order for the same reason. In both cases (and despite the fact that the administration made significant changes to the policy between them), the judges gleaned from the orders a malicious intent by parsing punditry from Trump and his surrogates, particularly Rudy Giuliani, on cable news.
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I vigorously oppose the president’s immigration orders as a matter of policy, but these opinions are misguided. As Souter warned, it is not the court’s job to peer into the president’s psyche. And it doesn’t matter if Trump is somehow different than his predecessors, or if he insults judges in a shocking breach of Oval Office decorum. The judiciary should not abandon its traditional role simply because the president has abandoned his.
During the Korean War, President Harry Truman nationalized the steel industry to prevent a labor strike that would have hindered the military’s supply lines. In the Steel Seizure Case, the Supreme Court ruled that Truman’s actions were unconstitutional because neither the Constitution, nor Congress gave the president power to seize private property. In the most influential decision from that case, Justice Robert Jackson explained that when the president acts pursuant to power delegated by Congress, in combination with his own inherent constitutional authority, the action is “supported by the strongest of presumptions and the widest latitude of judicial interpretation.” As a result, the judicial inquiry is at a minimum, and the action is most likely legal.
Jackson’s analysis provides the framework to assess the legality of Trump’s executive orders. Trump, like his five immediate predecessors, relied on a 1952 statute that allows him to deny entry to a “class of aliens” he deems “detrimental to the interests of the United States.” This express delegation of authority, combined with the commander-in-chief’s inherent power concerning foreign affairs, should dial down the courts’ level of scrutiny. Alas, none of the courts that have halted the executive orders bothered to cite the 1952 statute. Instead, they evince broad skepticism in an area where courts traditionally have deferred to the executive in our separation of powers.
More to the point, the courts have simply assumed that the president’s immigration orders should be treated no differently than a mundane copy of the Ten Commandments posted at the county courthouse. The Supreme Court has interpreted the Establishment Clause to prohibit the government from acting with an impermissible sectarian purpose that favors religion over non-religion, or worse, favors one sect over another. However, the Supreme Court has never used the Establishment Clause to invalidate an immigration law affecting foreign policy.
To the contrary, our immigration laws routinely classify those who come from other countries on the basis of faith. Indeed, for at least half a century, Congress has given immigration priority to “ministers”—favoring the religious over the non-religious. And the implementing regulations express a distinct preference for Catholic “nuns, monks, and religious brothers and sisters.” A 1989 immigration law gave special treatment to “Jews or Evangelical Christians” who were fleeing the Soviet Union. Atheists need not apply. Asylum law forces immigration judges to discern the contours of a faith, and decide whether an alien complies with those tenets. All of these provisions run afoul of the Supreme Court’s Establishment Clause jurisprudence. Yet there has never been the slightest suggestion that these actions are unconstitutional. Last night, a dissenting 9th Circuit judge argued the “unreasoned assumption that courts should simply plop Establishment Clause cases from the domestic context over to the foreign affairs context ignores the realities of our world.” He’s right. Absent any guidance from the Supreme Court, lower courts should hesitate before vigorously applying the Establishment Clause to an area where Congress has consistently made classifications on the basis of religion, and in which the president has a unique role in our separation of powers.
But even assuming the Establishment Clause applies with full force to foreign policy, the decisions enjoin the immigration orders based on an unjustifiable skepticism. In 2005, the Supreme Court held that McCreary County, Kentucky, violated the Establishment Clause by posting a copy of the Ten Commandments in its courthouse. Souter’s opinion explained that the displays were motivated by an impermissible religious intent, even though the county defended the policy by citing the Decalogue’s role in our legal system. “[A]lthough a legislature’s stated reasons will generally get deference,” he wrote, “the secular purpose required has to be genuine, not a sham, and not merely secondary to a religious objective.”
Had any other president issued Trump’s exact same executive order, this “sham” analysis would be the beginning and end of the inquiry. Three of the six nations specified by the revised order are state sponsors of terrorism. The other three do not adequately assist the United States with its counterterrorism efforts. Is it a “sham” to conclude that undocumented immigrants from those nations should be subject to heightened vetting, and while procedures are being reviewed, the issuance of new visas should be paused? The answer would certainly be no, in light of Jackson’s tempered wisdom about the separation of powers, and by giving proper effect to the executive branch’s long-standing authority over foreign affairs. Alas, we are not living in normal times.
The federal courts, first in Virginia and on Wednesday in Hawaii, have halted the orders by finding in the heart of Donald J. Trump an impermissible animus. The specifics of the new order, which was drastically altered after the 9th Circuit’s decision last month, were irrelevant. What matters is what Trump has said throughout his career about Muslims. In December 2015, then-candidate Trump called “for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” Over the next few months, Trump shifted his position from the Muslim ban and moved toward “extreme vetting” of people seeking entry to the U.S. from certain “territories.”
Or did he? Cue Politifact. During a July 2016 interview on CBS’ “60 Minutes,” Trump told Lesley Stahl that she can still “call it whatever you want,” but “we’ll call it territories, OK?” Was that an actual repudiation, or a wink and a nod to the alt right? However, a week later on “Meet the Press,” Trump seemed to clearly repudiate the old policy to Chuck Todd: “I’m talking territory instead of Muslim.” Did he really mean it? Or was this fake news? Was Todd schlonged? Alas, the burden of reconciling these statements has shifted from fact checkers to the federal courts.
Last month, the federal judge in Virginia found that Trump’s CBS interview “connected” his initial call for a Muslim ban with his January 2017 immigration order—the proverbial missing link!—but she inexplicably did not cite his repudiation on “Meet the Press.” Last night, the federal judge in Hawaii acknowledged Trump’s reversal on NBC, but dismissed its relevance because of Rudy Giuliani’s much-cited January hit on Fox News. (Rudy’s full comments, in context, tell a very different story.)
It has come to this. Called upon to decide whether the president’s immigration policy was, in fact, designed to exclude Muslims, rather than to screen out dangerous people from war-torn nations, the federal courts have confronted a frighteningly bizarre question: Is Lesley Stahl or Chuck Todd a tougher interviewer?
This entire line of analysis is mistaken. The courts tarred Trump with the brush of bigotry by citing statements that were not connected with the executive order at issue, but rather showed his general state of mind toward Muslims. Such introspection is precisely what Souter advised against in McCreary County v. ACLU: a “judicial psychoanalysis of a drafter’s heart of hearts.” Generally in courts, “evidence of a person’s character or character trait is not admissible to prove that, on a particular occasion, the person acted in accordance with the character or trait.” Absent evidence that the policy at question in fact was actually motivated by this anti-Muslim animus—and no, Giuliani’s nebulous comments do not count—the court’s opinion amounts to a psychological profile of a perplexing man who has taken contradictory policies on virtually every issue in public discourse.
Although the judge in Hawaii rejected the notion that Trump’s “past conduct must forever taint any effort by [him] to address the security concerns of the nation,” it is hard to see how this analysis would ever permit the executive branch to impose any immigration policy that impacts predominantly Muslim countries. Imagine if Trump were to announce that he wants to conduct drone strikes in Syria to root out “radical Islamic terrorists”? Could a court halt the actions, finding they were motivated by the same anti-Muslim animus the president expressed on the campaign trail? Or, could a court halt an executive action for supposedly bearing animus toward women, by citing the president’s infamous rapport with Billy Bush on “Access Hollywood”? Nothing Trump can do would ever eliminate that taint.
A common trope among the chattering class is that our polity must resist “normalizing” Trump as president. Courts should not take the bait. When judges treat this president as anything other than normal, it sends a signal to the public that the chief executive is not as legitimate as his predecessors. For example, when Justice Ruth Bader Ginsburg suddenly skips Trump’s joint address—whom she inappropriately criticized—after years of giving President Barack Obama warm hugs, it sends a signal. Such behavior is par for the course on cable news, but should not infest the judiciary. Trump was elected through the same constitutional process by which judges received their lifetime commissions. He should be treated as such.
Courts need not be blind to Trump’s awful past statements (call it Fox News deference). Judges can and should ask if there is a plausible reason why those seeking admission from these six war-torn countries should undergo heightened review. However, courts should not uncharitably read every piece of evidence in the most negative possible light (call it MSNBC deference). It is insane to think that the president’s signature policy so far—on which he campaigned and was elected to the highest office in the land—ostensibly boils down to how Giuliani framed an impromptu answer on cable news. I don’t think it does. Consider a counterfactual where Giuliani skipped Fox that day. Would the policy now be ruled constitutional? I suspect the courts would still have struck down the orders, meaning Giuliani’s statement is “mere surplusage”—an irrelevant distraction that carries no legal weight. What matters to these judges is Trump, and Trump alone.
Rather—and despite his own egregious and inexcusable attacks against the courts—judges should treat the 45th president like any other (call it C-SPAN deference). It is true that Trump consistently disrupts all political norms. The courts should not respond in kind by disrupting judicial norms. Trump’s presidency will come to an end sooner or later. But the precedents set during this period will linger far, far longer.