By David Cole, published in the New York Review of Books, print edition of May 11, 2017, article date April 13, 2017
(David Cole is the national legal director of the American Civil Liberties Union (ACLU).
The United States has a long and unfortunate history of pushing through aggressive national security measures by claiming that they restrict only the rights of foreigners, not Americans. The tactic usually works. In the Palmer Raids of 1919–1920, for example, J. Edgar Hoover, then a young attorney in the Justice Department, responded to a series of anarchist bombings by rounding up not the bombers themselves—they were never found—but thousands of foreign nationals. They were charged not with terrorism but with visa violations or association with Communists. As Louis Post, an assistant secretary of labor who valiantly opposed the raids and was threatened with impeachment for doing so, wrote of that period, “The force of the delirium turned in the direction of a deportations crusade with the spontaneity of water flowing along the course of least resistance.”
President George W. Bush followed a similar strategy after the terrorist attacks of September 11, 2001. He locked up only foreign nationals at Guantánamo (with one unintended exception), disappeared only foreign nationals into the CIA’s black sites, and subjected only foreign nationals to the CIA’s torture. In the first two years after September 11, the Bush administration rounded up, detained, and deported thousands of Arab and Muslim immigrants in the U.S., and tried many of them in closed immigration proceedings—without identifying a single terrorist among them. Bush’s message to the American people was clear: you need not sacrifice your own rights for greater security; we will sacrifice the rights of foreigners instead. For the most part, Americans—and American courts—accepted the bargain.
President Donald Trump no doubt thought that his travel ban, issued on January 27, would enjoy a similar reception. Portentously titled “Protecting the Nation from Foreign Terrorist Entry into the United States,” it singled out not terrorists, but all citizens of seven predominantly Muslim countries from traveling to the U.S. for ninety days, suspended all refugee admissions for 120 days, and indefinitely halted refugee admissions from Syria. But this time the response was different. The resistance to Trump’s action was immediate, spontaneous, and widespread—from both the general public and the courts. And when, stymied by the courts, Trump issued a revised executive order on March 6, it too was widely condemned by the public and blocked by the courts. The election of Trump, it seems, may have taught Americans, and their judges, to be at once more skeptical of executive power and more solicitous of the rights of noncitizens.
Particularly noteworthy has been the sheer range of groups and institutions in American society that have come together in opposition to the travel ban. The weekend the first order was announced, tens of thousands of citizens streamed to airports to protest. This is remarkable not only because Americans were protesting on behalf of immigrants, but because of the protests’ locations. Airports are sterile, soulless places that few of us voluntarily visit unless we have to fly somewhere; yet that weekend Americans gathered at airports in boisterous crowds to stand against Trump and for immigrants and refugees.
Almost immediately, lawyers began filing suits around the country, and judges began barring the administration from enforcing the order. The first victory came the day after the order was issued, in a lawsuit filed in Brooklyn by the American Civil Liberties Union (ACLU), the National Immigration Law Center, and a Yale law clinic. Shortly thereafter, U.S. District Judge James Robart in the state of Washington issued a nationwide injunction.
Some of the country’s highest law enforcement officials stood up to Trump. The Washington lawsuit was filed by the attorney generals of Washington and Minnesota, and supported by the states of Pennsylvania, Massachusetts, New York, California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, New Hampshire, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Virginia, and the District of Columbia. And the acting U.S. attorney general, Sally Yates, refused to defend the order and was fired by Trump for doing so.
More than one hundred Silicon Valley tech companies, among them some of the largest companies in the world, including Google, Apple, Microsoft, Facebook, and Uber, filed briefs supporting the legal challenges. The order drew strong criticism from Nobel laureates, the country’s leading scientific organizations, and the presidents of America’s top universities.
Even some of the Bush administration’s most hawkish officials balked. The day after the executive order was issued, General Michael Hayden, former head of the CIA and the NSA under Bush and a stalwart defender of the CIA’s “enhanced interrogation program,” tweeted: “Imagine that. ACLU and I in the same corner.” Former Vice President Dick Cheney said the travel ban went “against everything we stand for,” and John Yoo, a staunch defender of executive authority who in 2002 wrote the initial Justice Department legal memos authorizing the CIA to use torture, wrote a New York Times Op-Ed titled “Executive Power Run Amok.”
Former national security and diplomatic officials from both parties argued that the order would make the country less safe. Hayden signed a declaration in the Washington case calling it a threat to national security. He was joined by former secretaries of state John Kerry and Madeleine Albright and former CIA directors and deputy directors Leon Panetta, Michael Morell, and John McLaughlin. They contended that the order reinforced the idea, promoted by the Islamic State and other extremist groups, that the U.S. is at war with Islam, while doing nothing to identify actual terrorists.
Trump dismissed the initial court injunctions, referring in one tweet to Judge Robart as a “so-called judge,” and appealed. On February 9, the U.S. Court of Appeals for the Ninth Circuit unanimously affirmed Judge Robart’s order. It firmly rejected the president’s argument that his actions were “unreviewable,” and insisted that the executive’s “authority and expertise” in national security and foreign relations “do not automatically trump the Court’s own obligation to secure the protection that the Constitution grants to individuals.” It found that the order, which indiscriminately barred entry even to lawful permanent residents and others with valid visas, was likely to violate due process by depriving them of rights previously granted.
Trump railed against the Ninth Circuit decision as well, but ultimately chose not to seek further judicial review. Instead, he issued a replacement order, one that his lawyers hoped would be easier to defend. The new order bars immigration from six of the original seven countries; Iraq was removed from the list, apparently after substantial behind-the-scenes pressure from government officials who worried that the original order had jeopardized our relationship with that important U.S. ally. The new order does not bar lawful permanent residents and others who have already been granted visas, and applies only to those seeking new visas. As a result, it does not strip individuals in the U.S. of previously granted rights, as the first order did. And it eliminates a provision in the first order that offered a case-by-case exemption from the refugee ban to persons of “minority” faiths in their country of origin.
That Trump was rebuffed and had to issue a revised order was itself a significant victory. It showed that when the people and the courts stand up for basic human rights, the president cannot get his way, even when he appeals to national security and targets the most vulnerable. The president was compelled to limit the breadth of his revised order to respect the rights of those who had already obtained visas. But the religious bias and unsupported national security rationale remained intact.
On March 15 and 16, two federal judges—Derrick K. Watson in Hawaii and Theodore D. Chuang in Maryland—barred enforcement of the revised order, this time on Establishment Clause grounds. Both courts ruled that the order impermissibly targeted the Muslim faith. The government has filed expedited appeals in both cases, which will be heard in May.
The central issue in the appeals is whether it is appropriate to look beyond the text of the order in assessing its legality. Once one does so, it is self-evident that the travel ban—whether in its original or revised form—was intended to make good on Trump’s oft-repeated campaign pledge to prohibit Muslims from entering the U.S. The evidence includes numerous statements made by Trump himself during the campaign and since. His pledge to ban Muslims remains on his campaign website to this day. In January, Rudolph Giuliani told Fox News that he advised Trump that he could achieve his goal by targeting particular countries rather than Islam itself. Trump announced that he would do just that, and when he signed the first order in January, he looked up and said, “We all know what that means.” But just to make sure there was no doubt about it, the same day Trump told Christian Broadcasting News that the order was designed to favor Christian refugees over Muslims.
Having been admonished by the courts, Trump was more circumspect about the second order. He avoided bald statements of religious favoritism, and his lawyers removed the provision preferring refugees of “minority” faiths. But the second order continues to single out six countries whose populations are between 90 percent and 99 percent Muslim. And Trump’s senior adviser Stephen Miller admitted that the new executive order would be a replay of the first, saying that any changes to the first executive order would be “mostly minor technical differences…. Fundamentally, you’re still going to have the same basic policy outcome for the country.”
These statements are “smoking guns,” and were extensively relied upon by both the Maryland and Hawaii courts in their decisions. According to the Supreme Court, “the clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” When the government departs from denominational neutrality, it sends a message that those who do not adhere to the favored religion, or those who follow a disfavored religion, are less than full members of our community. Even a formally neutral law is invalid if a reasonable observer, aware of the facts surrounding its adoption, would conclude that its purpose was to favor or disfavor a specific religion. And the Supreme Court has directed that in assessing the validity of a policy challenged under the Establishment Clause, judges must not “turn a blind eye to the context in which [the] policy arose.”
Some commentators, including Jeffrey Toobin on The New Yorker’s website, have maintained that officeholders should not be held legally responsible for campaign rhetoric, because otherwise candidates might feel compelled to restrict what they say on the campaign trail. The administration argues, moreover, that it’s not fair to consider the statements of Donald Trump, private citizen, as representing the views of President Donald Trump. But why wouldn’t we consider what a candidate has promised during his election campaign, particularly when he claims as president to be carrying out those very promises?
Imagine if a mayoral candidate promised repeatedly during a campaign that he would keep African-Americans out of the town, and then, upon election, adopted a policy barring entry from seven cities with populations that were 90 percent African-American. Suppose, further, that after that order was struck down, he issued a new one barring entry from six majority-black cities, and his aides stated publicly that it was only a technical adjustment. Would anyone doubt that the policy discriminated on the basis of race? Would we worry about chilling candidate speech? Substitute Muslim for African-American, country for city, and president for mayor, and you’ve got Trump’s executive orders.
The administration claims that both orders are justified by national security concerns, but this unsupported rationale is clearly a cover for pursuing other aims. Indeed, before the second order was released, two internal Department of Homeland Security memos called into question any national security justification for targeting the seven listed countries. The first memo reported that citizens from these countries are “rarely implicated in U.S.-based terrorism” and that citizenship is not a good indicator of terrorist threats. A second memo found that “most foreign-born, U.S.-based violent extremists likely radicalized several years after their entry to the United States,” meaning that the “extreme vetting” Trump says he can’t yet do with respect to individuals from the banned countries would not identify threats either. In March, 134 former national security and other high government officials—including twenty-six retired generals and admirals—wrote the president, stating that “the revised executive order is damaging to the strategic and national security interests of the United States.”
The government does not argue that the order can withstand constitutional scrutiny if the statements that have been made by Trump and his advisers about the ban’s intended purpose are considered. Instead, it maintains that the courts should ignore these statements and examine only the text of the order itself. The order doesn’t mention Islam, and invokes national security. In the government’s view, that should be the end of the matter. It cites a line of cases upholding immigration decisions if the government’s action is “facially legitimate and bona fide,” which the administration interprets to mean that the courts must accept the government’s proffered justification at face value, and cannot look behind the action for an impermissible purpose. Using that standard, the Supreme Court in Kleindienst v. Mandel (1972) upheld a decision to deny a visa to the Communist economist Ernest Mandel, on the ground that he had violated restrictions on his visa on a prior trip. And in Fiallo v. Bell (1977), the Court cited the standard to uphold an immigration statute that gave preferences in obtaining visas to the foreign children of unwed U.S. citizen mothers but not to the children of unwed fathers.
If the challenge to Trump’s second executive order reaches the Supreme Court, much will depend on whether the Court considers the overwhelming evidence of impermissible religious purpose, as its Establishment Clause precedents dictate, or accepts the government’s stated justifications without further testing, as the administration urges. The question of which set of precedents should prevail has never before been addressed, because no prior president has ever tried to use the immigration power to denigrate a religion.
So far, the lower courts have concluded that they cannot ignore what everybody knows. As Judge Watson of Hawaii wrote in a decision issued March 29:
Where the “historical context and ‘the specific sequence of events leading up to’” the adoption of the challenged Executive Order are as full of religious animus, invective, and obvious pretext as is the record here, it is no wonder that the Government urges the Court to altogether ignore that history and context…. The Court will not crawl into a corner, pull the shutters closed, and pretend it has not seen what it has.
If the government’s view of the law were correct, the travel ban would have to be upheld regardless of what the president had said upon signing it—even if he had declared, “By this order, I affirm that Islam has no place in the United States, because we are a Christian nation.”
It might make sense to restrict judicial review of immigration actions in cases where customary immigration limitations are drawn and there is no basis for doubting that they are “bona fide.” In Fiallo v. Bell, for example, the Court noted that distinctions based on family relations have long been deemed necessary and appropriate in regulating the border, despite the fact that they are considered suspect in other areas of law. Whether and how to grant preferential status to particular family relationships are “policy questions entrusted exclusively to the political branches,” the Court explained. But there is no basis in the Constitution’s text or history for concluding that the political branches are entrusted to engage in religious discrimination in making immigration policy. And a ruling that courts must blind themselves to what everyone can see simply because the matter touches immigration, when the Court has long insisted that judges must not “turn a blind eye” to the setting in which an action is taken, would make a mockery of the Establishment Clause’s “clearest command.”
Asking the judiciary to read the president’s order with blinders on out of deference to his authority, ignoring overwhelming evidence of improper religious purpose, would also disturbingly echo what is widely considered one of the two or three most shameful decisions in the Court’s history: Korematsu v. United States (1944). In that case, in the name of deferring to the executive on national security, the Court upheld the internment of 110,000 people in the U.S. during World War II simply because of their Japanese descent—without any evidence that any one of them was a spy or enemy agent. It took four decades to acknowledge the error of that decision—through legislation that formally apologized and paid reparations to the survivors. If the Supreme Court has learned anything from the experience, it will think twice about the kind of blank check the Trump administration requests in the executive order cases. The American people—and the lower courts—seem already to have learned that lesson.
 I am the national legal director of the American Civil Liberties Union (ACLU), which has filed several cases against President Trump’s executive orders banning travel, including the cases in Brooklyn and Maryland mentioned in this article.