Last night, the Trump administration got a little lesson in the power of words. A federal judge in Hawaii considered the legality of Trump’s new and improved travel ban, and it didn’t go well for POTUS. Plaintiffs in the case argued that the revised executive order on immigration issued March 6 is unconstitutional because it is discriminatory and violates the Establishment Clause of the Constitution. The Establishment Clause is much like a flip side of anti-discrimination laws: it prohibits the federal government from favoring any one religion over others. According to Judge Derrick Watson, violating the Constitution is precisely what President Trump’s order did.
The ruling was based in no small part on Trump’s own words while on the campaign trail. Just hours before the ban was set to go into effect, suspending the U.S. refugee program for 120 days and halting for 90 days the issuance of new visas from six majority-Muslim countries, Judge Watson issued a preliminary injunction halting its enforcement. Early this morning, another federal judge — Theodore Chuang in Maryland – issued another ruling against the March 6 executive order. In Judge Chuang’s ruling, he called out the order as being part of a “long-envisioned Muslim ban” and also specifically mentioned Trump’s campaign promises.
Here’s the thing. When courts grapple with adjudicating claims of discrimination or Establishment Clause violations, they typically analyze the government’s stated purpose for the law in question. They usually weigh deference to the lawmaker’s neutral-sounding intentions against whatever potential discriminatory effect the law creates. Legally, there is no requirement that laws must affect every individual identically, and many subject-matter areas warrant the giving of wide latitude to those in a position to legislate. Presidential authority to regulate matters of immigration and foreign affairs is just one such area. However, we don’t usually see proponents of a law (or here, an executive order) publicly declare what amounts to a clear discriminatory intent. At least since the death of Jim Crow, purposeful discrimination of one racial or religious group, or favoritism of another is simply not allowed – and is just about never argued as a legitimate basis for governing. Those familiar with Constitutional history know that the usual struggle lies in sorting out which laws mean to discriminate and which have a defensible purpose that warrants potential unequal effect on various groups of people. Unusual is the case where discrimination is the very promise the government has fulfilled by legislating.
If there’s anything we can count on in Trump’s America, though, it’s that “business as usual” will be tested. Perhaps because the President was elected on a platform that at times appeared to include patriotism-through-xenophobia, it appears his administration expects the federal courts to fall in line. If that was the plan, it’s not working.
Judge Watson called out the administration for its lack of logic and clear discriminatory intent. DOJ lawyers had argued that the new travel ban could not be discriminatory, because it did not affect all Muslims. That’s like arguing that segregated schools aren’t discriminatory, because not all black people are school-age. That argument doesn’t make any sense, and Judge Watson said so:
The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed.
Perhaps even more meaningful to the DOJ and to President Trump himself, though, was Judge Watson’s use of Trump’s own words. In his decision, the judge specifically referenced statements the President made in a CNN interview during the campaign. Trump told Anderson Cooper last year, “I think Islam hates us,” and that it is “very hard to separate” radical Islam from Islam as a whole.
Is it unusual for a federal judge to rely on a campaign-time television interview? You bet it is. But then, what better way is there to assess the purpose behind the EO? And it’s not like the President has backed down from his anti-Muslim rhetoric since the inauguration. Trump’s statements might have been chalked up to “political speech” or “campaign rhetoric,” if not for the fact that he’s doubled down on the same promises since taking office.
Immigration expert Afia Yunus, Esq., agreed, and told LawNewz.com:
President Trump’s statements leading up to the second travel ban, including statements made in his CNN interview, were rightfully relied upon by the federal judge in this order. In order to pass one part of the three-part Establishment Clause test, the policy must have a primary secular purpose. Trump’s clearly anti-Muslim comments go directly to the inquiry of whether religious animus towards Islam or religious preference against Islam was the primary purpose of the Executive Order.
Since Trump entered the White House, his administration has had an interesting relationship with the idea that words matter. We’ve seen Press Secretary Sean Spicer disclaim that the first immigration executive order was a “travel ban” at all and blame the press for creating that moniker. Time and time again, we’ve heard Trump accuse outlets from CNN to the New York Times as being “fake news” sources. And yet, Trump’s own words are the now basis for federal court rulings.
Donald Trump’s brand is built on straight-talk and “telling it like it is.” That plain-language approach is unquestionably what got him elected. The only problem is that it seems the federal courts were listening too.
This is an opinion piece. The views expressed in this article are those of just the author.