What If Keeping Out “Bad and Dangerous” Muslims <em>is</em> the President’s National Security Purpose? And Other Vexing Questions

Last week saw a flurry of federal court decisions on President Trump’s second travel ban order, along with an outpouring of critical commentary on what the courts got right and wrong. Here are three questions that haven’t gotten enough of the attention.

What if keeping out “bad and dangerous” Muslims is the president’s national security purpose?

Read the Maryland (pp. 35-36) and Hawaii (pp. 37-38) decisions enjoining enforcement of the second order—specifically, those portions addressing the plaintiffs’ Establishment Clause claims—and note how the central question is being framed: either protecting national security is the primary, secular purpose for the travel ban, as reflected in the order’s explicit focus on the United States’ poor diplomatic relations with the six target countries, or else the travel restrictions were chiefly motivated by religious animus and therefore violate the Establishment Clause. This framing elides frank consideration of a third possibility, one backed by a lot of Trump’s own words: that protecting national security is indeed the executive order’s “primary” purpose—and also that religious discrimination is the “primary” basis for the security policy in question.

Put differently, the choice the courts are facing isn’t necessarily between “this is primarily a discriminatory policy” and “this is primarily a national security policy.” Because the president insists that Muslims are a special threat group, his order could be both.

We don’t have to reach as far back as Trump’s campaign statements to see this. As recently as last week, Trump made it really hard to ignore his vehement belief that Muslims make up a disproportionate portion of the “bad and dangerous people” he would like to keep out of the country. The day Hawaii District Judge Derrick Watson released his opinion, Trump retweeted a clip of a Fox & Friends news alert claiming that President Obama issued over 23,0000 R-1 religious visas during his second term, thereby "ushering jihadis right through our borders.”

FOX NEWS ALERT: Jihadis using religious visa to enter US, experts warn (via @FoxFriendsFirst) pic.twitter.com/pwXeR9OMQC

— FOX & friends (@foxandfriends) March 15, 2017

There are all sorts of other indicators that Trump thinks religion is more important than anything else when it comes to determining who is a security problem, and they comprise more than the language of the old order, the Trump administration’s statements indicating continuity between the old and new orders, the choice of targeted countries, and Trump’s anti-Muslim rhetoric on the campaign trail and in office. The public is now aware, too, of Trump’s refusal to condemn terrorist attacks committed against, rather than by, Muslims, and his reported interest in reforming the Countering Violent Extremism (CVE) program to exclude white supremacists in favor of focusing exclusively on Islamic extremism. The notion that Muslims represent to him a special security threat, and maybe even the only terrorist threat worth talking about, is one of the few themes from his campaign to carry over into his presidency entirely intact.

If, as Trump's order winds its way up, the courts reach the plaintiffs’ claims of religious discrimination and decide that the Establishment Clause has some application in the immigration law context, determining that the executive order was driven by national security considerations shouldn’t be the end of the inquiry. The court should at least consider the relationship between those security considerations and religious animus.

Maryland District Judge Theodore Chuang asked during oral argument on the new order whether, in order to take the unusual step of declining to defer to the president a national security matter, he “need[ed] to conclude that the national security purpose is a sham and false.” But there is no logical contradiction between determining that the president’s policy is indeed primarily motivated by a national security purpose and that the president’s theory of what constitutes a national security threat is driven primarily by religious considerations. The tension derives from the fact that significant deference will strike the courts as appropriate in the first case and troubling in the second.

Do precedents limiting “judicial psychoanalysis” of legislators when it comes to interpreting statutes apply in the same way to presidents and their executive orders?

Last week on Lawfare, Josh Blackman relied partly on Supreme Court precedent cautioning against judicial psychoanalysis of legislators to fault Judge Brinkema of the Eastern District of Virginia for looking at too broad a swath of Trump statements to ascertain discriminatory religious animus.

My sense is that we should be careful when extending the Supreme Court’s statements about the appropriate bounds of statutory interpretation to executive orders. Just as the courts seek to effectuate congressional intent when interpreting statutes, they generally seek to give effect to presidential intent when construing executive orders, but there is presently little case law on how or how deeply the courts should probe for presidential intent where it is less than obvious or where improper purpose has been alleged. More generally, although the courts have applied many of the same interpretive principles to statutes on the one hand and executive orders and directives on the other, that’s not the same as saying they amount to a single body of jurisprudence.

Several years ago, a law school colleague of mine, Erica Newland, published a useful study of the jurisprudence of executive orders in the Yale Law Journal that concluded that this jurisprudence may derive “from an under-theorized understanding of the role of executive orders and how they should function as part of our separation of powers.” As part of her review, she noted some of the key differences between statutes and executive orders. For example, not only is “intentionality . . . far easier to locate in a single President than in the hydra that is Congress,” but "[t]he President is also far better situated to correct a mistaken interpretation than is Congress." In addition, she pointed out that “unlike statutes, under current doctrine and practice, executive orders do not similarly constrain those who do the governing” and that their “imprecision about the sources and boundaries of their authority . . . does nothing to check the incentives of the president and his counsel to seek the widest possible construction of the president’s authority.’”

These are the kinds of differences that, to my mind, suggest there could be good reason for the courts to assess the president’s “intent” with a level of scrutiny or expectation of continuity (e.g., between his general public statements and policy-specific pronouncements) that they might reject in the context of legislative construction. If the Supreme Court ever does address Trump’s travel ban on the merits, I believe we will see some movement, however subtle, in this direction.

This brings me to a third question.

At what point does the inconsistency become so great that the courts must take off-the-page, out-of-court executive statements seriously in assessing the lawfulness of a written executive policy simply to preserve their own institutional legitimacy?

This is one reason I think the Supreme Court will be inclined, in the age of Trump, to articulate some modestly permissive parameters for considering presidential motivation. Given Trump's antics, the alternative risks undercutting the courts’ legitimacy in the eyes of the public and how seriously their authority is taken over time.

Legal fictions and legal presumptions play a critical function in the law. There are good reasons why we don’t want an old executive order to guide a court’s assessment of the intentions underlying a new executive order, and why we want the courts to assume the president is acting in good faith. The alternative has the potential to corrode the workings of our three-branch system, not to mention the constitutionally prescribed powers of the individual branches, in a host of ways.

But what are the courts supposed to do when the president issues an executive order that limits immigration from certain Muslim-majority countries without mention of religion while simultaneously and repeatedly announcing to the public that Muslims are a threat? At what point does deferring to the president based exclusively on the four corners of a policy document and statements specific to that policy render the courts a mockery in the eyes of the public, and weak and ineffectual when it comes to defeating presidential gamesmanship and protecting individual rights?

Blackman is surely right in arguing that there must be limits beyond which judges should not take into account Trump’s out-of-court statements when evaluating the lawfulness of his order. But contrary to Blackman’s suggestion, the inclination of some courts to perhaps reach beyond those limits doesn’t signify that they are running with the idea “that Donald Trump is an anti-Muslim bigot.” Rather, it evidences a judicial struggle with an administration that is openly deriding it—not just explicitly, with references to “so-called” judges, but also implicitly, by denying in its briefs exactly what it proclaims to be true in public. Down the line, that struggle will require principled reconsideration of the point at which and manner in which the courts may probe the substance of the president’s national security policies—policies that the president claims is one thing in court but claims is another thing at rallies, on television, and on Twitter.