Call Me Ismail, For This Time I have Slain the Trump Whale.
In ISMAIL ELSHIKH v. DONALD TRUMP, Balance of Powers Again Trumps An Arrogant President.
Today the United States District Court for the District of Hawaii issued a Temporary Restraining Order against the new Trump travel ban. When I summarized the new and improved travel ban in the hours after Trump issued it I stated:
The new travel ban does fix most of the facial legal infirmities of the original and therefore is much more likely to survive judicial review. The problem the administration will continue to face with any travel ban goes beyond the document itself and to intent. The Attorney General of New York has already stated he plans to challenge the new travel ban on grounds that its intent is related to religious discrimination. As the 9th Circuit noted, policies intended to have a religiously discriminatory effect may still run afoul of the First Amendment even if facially neutral. Trump’s campaign promises to ban Muslims and Rudy Giuliani’s assertion that Trump asked him to draft the original EO to be a Muslim ban but to make it legal, are statements that challengers to the EO will attempt to use to prove discriminatory intent.
However, those seeking to invalidate this travel ban will likely have to prove that religious discriminatory intent to prevail.
Today, Judge Derrick Watson followed exactly the path suggested in my article over a week ago. His well written and reasoned 43 page decision looked beyond the text of the EO, to its context, to conclude that there was no reasonable question that the intentions behind it included religious discrimination. It also did something equally intriguing, Judge Watson invited Trump to solve his Constitutional problem by doing that which is most antithetical to Trump’s personality. Trump need only clearly, and unequivocally repudiate his own words.
I cannot help but to laugh at the diabolical genius of the judge. Trump has been intellectually checkmated.
The fun starts on page 29 of the decision as Judge Watson addresses the Constitutional standard for violation of the Establishment Clause of the 1st Amendment as established in Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). Under the well known “Lemon Test” a “government action (1) must have a primary secular purpose, (2) may not have the principal effect of advancing or inhibiting religion, and (3) may not foster excessive entanglement with religion.”
Judge Watson then makes a surprisingly far reaching conclusion. The judge, without equivocation states “the Executive Order at issue here cannot survive the secular purpose prong” (the first prong of the Lemon test). This determination by the judge is far reaching because it was not necessary. Judge Watson, under the standards for issuing this Temporary Restraining Order (TRO), need only have determined that the Plaintiffs had shown they were “likely to prevail” on the question of whether EO had a primary secular purpose. From a legal perspective, that is very different from the judge flat out eliminating the question by saying the government “cannot survive” that question.
The next ten pages of Judge Watson’s decision are devoted to addressing “The Executive Order’s Primary Purpose.” Judge Watson starts by acknowledging that it is “undisputed that the Executive Order does not facially discriminate for or against any particular religion.” The judge cites the government’s assertion that the ban applies to only six Muslim dominant nations that “represent only a small fraction of the world’s 50 Muslim-majority nations, and are home to less than 9% of the global Muslim population.”
Judge Watson then declares:
“the illogic of the Government’s contentions is palpable. The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed . . . It is a discriminatory purpose that matters, no matter how inefficient the execution”
The court then focused on that discriminatory purpose. When the government argued that “natural text” of the EO’s language should be the focus, Judge Watson stated “only a few weeks ago, the Ninth Circuit commanded otherwise: “It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.” Citing the United States Supreme Court in Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, Judge Watson noted that “circumstantial evidence of intent, including the historical background of the decision and statements by decision makers, may be considered in evaluating whether a governmental action was motivated by a discriminatory purpose.”
So that moved the discussion to the “historical background of the decision and statements by decision makers.” Judge Watson noted that “a review of the historical background here makes plain why the Government wishes to focus on the Executive Order’s text, rather than its context.” You might want to already say “ouch”, but lets move on. Judge Watson then dived deep into that context.
The context included numerous statements by now President Trump of hostility towards Islam and Muslims. Yes, they were quoted. The context included statements from members of administration that the new travel ban would be “fundamentally . . . the same basic policy” minus some “technical corrections.” Judge Watson concluded that:
“These plainly-worded statements, made in the months leading up to and contemporaneous with the signing of the Executive Order, and, in many cases, made by the Executive himself, betray the Executive Order’s stated secular purpose. Any reasonable, objective observer would conclude . . . that the stated secular purpose of the Executive Order is, at the very least, “secondary to a religious objective” of temporarily suspending the entry of Muslims.”
Of course Judge Watson considered Trump’s argument as well noting that “The Government appropriately cautions that, in determining purpose, courts should not look into the “veiled psyche” and “secret motives” of government decision makers and may not undertake a “judicial psychoanalysis of a drafter’s heart of hearts.” The Court’s repudiation of this argument is literary brilliance:
The Government need not fear. The remarkable facts at issue here require no such impermissible inquiry. For instance, there is nothing “veiled” about this press release: “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.” . . . Nor is there anything “secret” about the Executive’s motive specific to the issuance of the Executive Order: Rudolph Giuliani explained on television how the Executive Order came to be. He said:
“When [Mr. Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.”
Judge Watson concluded “these plainly-worded statements, made in the months leading up to and contemporaneous with the signing of the Executive Order, and, in many cases, made by the Executive himself, betray the Executive Order’s stated secular purpose.”
Just as I suggested might happen, the court concluded by saying it “focuses on the president’s statements about a ‘Muslim ban’ and the link Giuliani established between those statements and the [Executive Order].”
The Court Offers Trump A Way Out, But It Requires Humility.
Now comes the fun part. The context of these conclusions from Judge Watson is to suggest that the taint of intent of religious bias is not necessarily permanent. Judge Watson acknowledged that:
it is possible that a government may begin with an impermissible purpose, or create an unconstitutional effect, but later take affirmative actions to neutralize the endorsement message . . . it is not the case that the Administration’s past conduct must forever taint any effort by it to address the security concerns of the nation . . . the context may change during the course of litigation, and the Court is prepared to respond accordingly.
Thus, the context which focused “on the president’s statements about a ‘Muslim ban’ and the link Giuliani established between those statements” could, the court suggested, be addressed by “affirmative actions to neutralize the endorsement message.” In short, Judge Watson invited Trump to, by “affirmative actions,” repudiate his prior negative statements about Islam and Muslims.
That is the genius to which I refer. Trump need only clearly, to the court’s satisfaction, repudiate what was a huge part of his campaign, and attracted much of his base to him, and solve his problem.
Judge Watson presented a well stated and well cited on precedence opinion that will now likely go before the 9th Circuit that cited the same precedence he did. This could be fun. Expect another Trump Twitter meltdown in any event.