Op-Ed in NY Daily News: “The Wrong Way to Assess the Travel Ban.”

May 9th, 2017

Today’s New York Daily News ran my editorial, titled “The wrong way to assess the travel ban: Trump’s words in interviews and on the stump should not decide an appeals court’s ruling.”

On the campaign trail, candidate Donald Trump promised a complete Muslim ban. However, after listening to his lawyers, he announced that he would abandon that policy, and instead impose an “extreme vetting” policy for six terror-prone countries. Or did he?

Monday, 13 judges on the Fourth Circuit Court of Appeals in Virginia were sharply divided over what Trump really meant. A handful of jurists seemed willing to give the President the benefit to the doubt, out of respect for his critical position in our republic. Alas, the remainder of the bench looked at Trump’s campaign statements in roughly the same way Rachel Maddow scrutinized his tax returns.

At bottom, how judges view the travel ban amounts to a legal Rorschach Test: Will they treat Trump like any other President, or have they joined the resistance? The answer to this question, and not any neutral principle of law, will determine the fate of Trump’s signature immigration policy.

The travel ban, on its face, does not discriminate against Muslims. Rather, it severely restricts immigration from six nations — three of which are state sponsors of terror — that were each singled out for heightened scrutiny by the Obama administration. The world’s most populous Muslim nation are unaffected, as is the world’s most populist Arab country.

Had President Obama issued the exact same executive order, even the ACLU agreed that it would be constitutional. Where the policy goes awry, the challengers assert, is because of President Trump’s big mouth.

In December 2015, Trump called “for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” Over the next few months, Trump shifted his position from the Muslim ban and moved toward “extreme vetting” of people seeking entry to the U.S. from certain “territories.”

But during a July 2016 interview on CBS’ “60 Minutes,” Trump told Lesley Stahl that she can still “call it whatever you want,” but “we’ll call it territories, OK?” Was that an actual repudiation, or a wink and a nod to the alt-right? However, a week later on “Meet the Press,” Trump seemed to clearly repudiate the old policy to Chuck Todd: “I’m talking territory instead of Muslim.”
What matters most is that all of these statements were made before Trump took the constitutional oath of office, assembled his cabinet and finalized the policy.

On Monday, the judges seemed most interesting in a single quip Trump made when he signed the executive order in January 2017. “We all know what that means,” he said.

The ACLU, challenging the travel ban, insists that “that” refers to his initial Muslim ban, and the executive order is but a mere cover for the true policy. The government counters that “that” refers to the President fulfilling his promise to protect the United States from countries that intend us harm.

Are we really going through this ridiculous exercise, attempting to figure out what a characteristically incoherent President meant in ambiguous off-the-cuff remarks?

President Clinton’s presidency nearly unraveled over the meaning of “is.” Now, Trump’s travel ban could hinge on the meaning of “that.”

Generally, in matters of national security, courts afford the President a dollop of deference, and are loathe to second-guess his policies. However, the majority of the judges on the court of appeals viewed Trump’s policy with s skepticism bordering on hostility.

One judge queried whether Trump thought allowing immigrants from these six nations “would” be harmful to the United States, or merely “may” be detrimental. Another judge announced that relying on statements made by the attorney general, and looking past Trump’s campaign statements, would amount to “willful blindness.”

A third judge, with refreshing candor, admitted that with Trump, we are in “uncharted territories.”

These questions are relevant for Sunday morning talk show hosts, but they shouldn’t be for judges. It shouldn’t matter whether Trump or Clinton or Sanders is President. The commander-in-chief has a central role in our three branches of government. With the advice of his cabinet, he is empowered to make decisions about our national security, without judges serving as back-seat drivers.

At the conclusion of his argument, Acting Solicitor General Jeffrey Wall reminded the court that “the precedents set by this case in reviewing” the President’s powers “will long transcend this debate and this constitutional moment.” He added that the court should “apply the usual rules,” and not join the widespread resistance to Trump.

That’s exactly right: Trump’s presidency will come to an end sooner or later. But the ruling set during this period will linger far, far longer. The judiciary should not abandon its traditional role simply because the President has abandoned his.

Blackman is a constitutional law professor at the South Texas College of Law in Houston, and the author of “Unraveled: Obamacare, Religious Liberty and Executive Power.”

This is a simplified form of my Lawfare post.