I opened up the New York Times and was something in between amused and ashamed to see the headlines. I couldn’t help but laugh at our president’s humiliation and naked incompetence, but at the same time, this is my country that is face-planting on the international stage.
Of course, I also feel a sense of trepidatious relief knowing that many people who have been senselessly targeted as terrorist threats are getting at least a temporary reprieve. I haven’t read the judge’s entire opinion yet, so I’m flying by the seat of my pants here, but it seems that this wouldn’t have happened if the administration had been halfway convincing in arguing that racism and religious bigotry aren’t the primary motivations behind the Muslim ban.
The president obviously has broad powers to keep the country safe, and were there some actual reason to make emergency changes in our immigration policies, I doubt that judges would keep curtailing and overruling Trump’s executive order. But the administration hasn’t hidden from the fact that this is a “ban” of Muslims that isn’t intended to inconvenience Christians or members of other religious faiths.
There are enough comments from Trump and other members of his staff to make it quite clear that this is part of a wider policy aimed at keeping Muslims out (in the immediate, narrow sense) and slowing the browning of America (in the long-term, wider sense). This was the rationale acting Attorney General Sally Yates used when she refused to enforce the executive order.
My role is different from that of the Office of Legal Counsel (OLC), which, through administrations of both parties, has reviewed Executive Orders for form and legality before they are issued. OLC’s review is limited to the narrow question of whether, in OLC’s view, a proposed Executive Order is lawful on its face and properly drafted. Its review does not take account of statements made by an administration or it surrogates close in time to the issuance of an Executive Order that may bear on the order’s purpose. And importantly, it does not address whether any policy choice embodied in an Executive Order is wise or just.
Similarly, in litigation, DOJ Civil Division lawyers are charged with advancing reasonable legal arguments that can be made supporting an Executive Order. But my role as leader of this institution is different and broader. My responsibility is to ensure that the position of the Department of Justice is not only legally defensible, but is informed by our best view of what the law is after consideration of all the facts.
Some examples of “statements made by the administration or its surrogates close in time to the issuance of an Executive Order” were contained in interviews given by Donald Trump and Rudy Giuliani. Just as the executive order was being announced, Trump sat down with David Brody of CBN News and said explicitly that his intention was to give Christians priority in immigration:
DAVID BRODY: “Persecuted Christians, we’ve talked about this, the refugees overseas. The refugee program, or the refugee changes you’re looking to make. As it relates to persecuted Christians, do you see them as kind of a priority here?”
PRESIDENT TRUMP: “Yes.”
DAVID BRODY: “You do?”
PRESIDENT TRUMP: “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 and the reason that was so unfair, everybody was persecuted in all fairness, but they were chopping off the heads of everybody but more so the Christians. And I thought it was very, very unfair. So we are going to help them.”
Sally Yates was also responding to an appearance Rudy Giuliani made on Fox News where he made the following remarks:
“Okay. I’ll tell you the whole history of it. So when [Trump] first announced it he said, “Muslim ban.” He called me up and said, “Put a commission together, show me the right way to do it legally.” I put a commission together with Judge Mukasey, with Congressman McCaul, Pete King, a whole group of other very expert lawyers on this. And what we did was we focused on, instead of religion, danger. The areas of the world that create danger for us. Which is a factual basis. Not a religious basis. Perfectly legal, perfectly sensible, and that’s what the ban is based on. It’s not based on religion. It’s based on places where there are substantial evidence that people are sending terrorists into our country.
That’s a naked admission that the “danger” is a cover for the actual discriminatory intent of the order. In truth, the order itself contains language that states that once the suspended refugee program is resumed, it will “prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.” The overall picture is transparent enough that it has undercut the attempt to carve out a legal justification, and that is what Sally Yates and many federal judges have responded to in their findings that the order is unconstitutional.
In the latest example, the judge identifies both problems:
The federal government was “arguing that we have to protect the U.S. from individuals from these countries, and there’s no support for that,” said the judge, James Robart of Federal District Court for the Western District of Washington, an appointee of President George W. Bush, in a decision delivered from the bench…
Judge Robart temporarily barred the administration from enforcing two parts of Mr. Trump’s order: its 90-day suspension of entry into the United States of people from the seven countries — Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen — and its limits on accepting refugees, including “any action that prioritizes the refugee claims of certain religious minorities.”
In other words, there’s no support for Giuliani’s “danger” and there’s therefore no structure beneath the rationale for making a “law respecting an establishment of religion.” While the First Amendment only specifically precludes Congress from passing laws that preference one religion over another, in practice the prohibition applies to the Executive Branch and their policies and orders as well.
Giuliani was correct to argue that this could be overcome in a true national security crisis, but that might only work if the danger is real and can’t be addressed in a narrower way. To prevail in court, the administration will probably have to demonstrate that there is an imminent threat of attack from Muslims (and only Muslims) that originates from citizens of the countries listed in the Executive Order (and only those countries), and that the only way to stop this ticking time bomb is simply to deny entry to all Muslims from just those countries.
It will be more difficult to make those arguments because everyone can see they are contrived and dishonest attempts to provide legal cover for a policy that has nothing to do with any known plot.
Ironically, Trump is losing here because he was too honest and didn’t lie well enough.
It may be the first time in his life that he’s had that experience.