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In Part III, I will focus on the far more modest concurring opinions of Judges Keenan and Thacker, which were aimed right at the Supreme Court and the far less modest concurring opinion of Judge Wynn. Part IV will analyze the three dissents from Judges Niemeyer, Shedd, and Agee, which aimed at highlighting for the Supreme Court how their colleagues selectively cited the record and deviated from precedent.

Standing

In my writings on the travel ban cases, I have spent little time addressing justiciability. While the revised executive order drastically shrank the universe of people that were affected by the travel ban, that number is still greater than zero, so ultimately some party could articulate a cognizable injury. I do, however, disagree with the Fourth Circuit’s determination that the travel ban inflicts an Article III injury because it “sends a state-sanctioned message condemning [the plaintiff’s] religion and causing him to feel excluded and marginalized in his community” (p. 34). Specifically, citing McCreary County v. ALCU, Chief Judge Gregory explains that “flowing from [the executive order] is the alleged state-sanctioned message that foreign-born Muslims, a group to which Doe #1 belongs, are ‘outsiders, not full members of the political community.’” Further, the court notes “this harm is consistent with the ‘[f]eelings of marginalization and exclusion.’” But the injury requirement of Article III is not so inclusive. [Update: My analysis of what I originally termed “snowflake standing” focused on the court’s approach to finding Article III injury, and in no way reflected on the plaintiffs, who have suffered cognizable harms. I apologize and meant no disrespect to the plaintiffs and have reworded to better reflect that intention.]

As Judge Agee notes in dissent, there is often a “difficulty of determining injury in Establishment Clause cases.” (p. 191). The Fourth Circuit observed in Moss v. Spartanburg (2012) that “[m]any of the harms that Establishment Clause plaintiffs suffer are spiritual and value-laden, rather than tangible and economic.” Yet, Moss stressed that plaintiffs “possess standing when they are ‘spiritual[ly] affront[ed]’ as a result of ‘direct’ and ‘unwelcome’ contact with an alleged religious establishment within their community” (emphasis added). The majority opinion repeatedly cites Moss, but excluded the latter discussion requiring the affront to be “direct.”

In Moss, the Fourth Circuit found no injury for a student who had no “personal exposure” to a school’s policy promoting off-campus religious instruction, even though the “mere awareness of its existence” made him feel “‘like an outsider.’” In contrast, other students who actually received solicitations about the religious program suffered an injury because they “changed their conduct in adverse ways as a result of their perceived outsider status.” From this, Judge Agee summarizes that the injury cannot be purely sentimental, but must be “immediate and concrete,” and come “into direct contact with the alleged Establishment Clause violations.” Article III demands no less.

This fracture lies at the core of the travel ban case, affecting both standing and the merits: whose rights does the executive order violate? Judge Agee explains:

[T]he Executive Order here applies only to prospective immigrants. The order’s focus faces outward towards the alien residents of the subject countries, not inward towards persons in the United States like the plaintiffs . . . . What matters is whether the plaintiff came into direct contact with the religious establishment. And that is not the case here simply because the President is the party signing an order . . . . Plaintiffs do not have standing to allege violations of the Establishment Clause on behalf of their immigrant relatives. (pp. 199-204) (emphasis added).

The majority, which does not cite the entirety of Moss, stops short of asserting that the plaintiffs “have standing to allege violations of the Establishment Clause on behalf of their immigrant relatives.” Rather, Chief Judge Gregory relies on the threatened “prolonged family separation” as the basis for Article III standing. This proposition rests on some sort of constitutional right to familial relations, but does not say so explicitly, and makes no effort to comport with Moss’s “direct” requirement. Judge Wynn, however, is far more forward in his concurring opinion:

Here, aliens who are denied entry by virtue of the President’s exercise of his authority under Section 1182(f) can claim few, if any, rights under the Constitution. But when the President exercises that authority based solely on animus against a particular race, nationality, or religion, there is a grave risk—indeed, likelihood—that the constitutional harm will redound to citizens. For example, we hold today that the denial of entry to a class of aliens solely based on their adherence to a particular religion likely violates the Establishment Clause by sending “a state-sanctioned message that foreign-born Muslims . . . are ‘outsiders, not full members of the political community.’” Ante at 38 (quoting Moss v. Spartanburg Cty. Sch. Dist. Seven, 683 F.3d 599, 607 (4th Cir. 2012)) . . . . (pp. 109-10) (emphasis added).

Though aspirational, this reasoning has no grounding in Supreme Court precedent. Nor does this form of stigma-standing have a limiting principle, as Judge Agee notes:

Despite the majority’s holding, the stigma that plaintiffs claim to have suffered is not a cognizable injury because it is simply a subjective disagreement with a government action. To allow these plaintiffs to pursue their claims based on an idiosyncratic projection of stigmatization is to grant every would-be Establishment Clause plaintiff who develops negative feelings in response to some action by the Government a court proceeding in which to vent his subjective reactions as a legal claim . . . . The majority does not provide any principled instruction on how its sweeping standing ruling is cabined to this particular case, and thus its holding far oversteps the bounds of traditional judicial authority. (pp. 196-97).

On appeal, if the Supreme Court finds an Article III injury, it could do so without reaching the question of stigmatization. It should take the more limited approach, as the Fourth Circuit’s holding yields a truly limitless approach to standing.

Mandel and Din

The majority’s opinion hinges on the interplay between the Supreme Court’s decision in Kleindienst v. Mandel (1972) and Justice Kennedy’s concurring opinion in Kerry v. Din (2005). The former case concerned the reviewability of the Attorney General’s denial of a waiver to a Belgian Marxist who sought to lecture at American universities. The latter case involved the reviewability of a consular officer’s denial of a spousal visa for an Afghan national who had purportedly engaged in “terrorist activities.” (For more background on these cases, see this post). Most relevant for our purposes is how Justice Kennedy’s concurring opinion in Din interpreted Mandel.

The district court limited Mandel and Justice Kennedy’s opinion to reviewing decisions of a “consular officer” who acts in bad faith:

Finally, Defendants argue that because the Establishment Clause claim implicates Congress’s plenary power over immigration as delegated to the President, the Court need only consider whether the Government has offered a “facially legitimate and bona fide reason” for its action. See Mandel, 408 U.S. at 777. This standard is most typically applied when a court is asked to review an executive officer’s decision to deny a visa. See, e.g., Din, 135 S. Ct. at 2140 (Kennedy, J., concurring).

Following this reasoning, the opinion concluded that the Mandel test “does not apply to the ‘promulgation of sweeping immigration policy’ at the ‘highest levels of the political branches.’”

The Fourth Circuit, in contrast, rejects this narrow reading of Justice Kennedy’s opinion, instead determining that Justice Kennedy’s decision permits the court to look “behind” the President’s policy when there is evidence that the executive action is not “bona fide,” the second factor identified in Mandel. Where bad faith is alleged, the court need not afford deference to the executive action:

Where plaintiffs have seriously called into question whether the stated reason for the challenged action was provided in good faith, we understand Mandel, as construed by Justice Kennedy in his controlling concurrence in Din, to require that we step away from our deferential posture and look behind the stated reason for the challenged action. In other words, Mandel’s requirement that an immigration action be “bona fide” may in some instances compel more searching judicial review (p. 50).

Using this framework, Chief Judge Gregory dismisses the Attorney General and Homeland Security Secretary’s defense of the travel ban as “pretext” and instead concludes that the executive order is not “bona fide” (p. 52). As a result, the court opts to “look behind” the document.

This analysis misreads precedent. The operative phrase in Mandel is “facially legitimate and bona fide reason.” Both “legitimate” and “bona fide” are best read as being modified by “facially.” It is not “legitimate” on the face, but “bona fide” as a whole. The lack of good faith must be represented on the face of the action, not beyond its face. Indeed, this is how the Court applied the test in Mandel, Din, as well as in Fiallo v. Bell (1977). In each case the plaintiffs made specific allegations of bad faith that were extraneous to the policy at issue. But because the four corners of the policy did not suggest bad faith was in play, the Court refused to peek behind the curtain. Judge Niemeyer explains in dissent:

If the majority’s understanding had been shared by the Supreme Court, it would have compelled different results in each of Mandel, Fiallo, and Din, as in each of those cases the plaintiffs alleged bad faith with at least as much particularity as do the plaintiffs here. In Mandel, the allegations were such that Justice Marshall, writing in dissent, observed that “[e]ven the briefest peek behind the Attorney General’s reason for refusing a waiver in this case would reveal that it is a sham.” Id. at 778 (Marshall, J., dissenting). In Fiallo, Justice Marshall, again writing in dissent, pointed to the fact that the statute in question relied on “invidious classifications.” Fiallo, 430 U.S. at 810 (Marshall, J., dissenting). And in Din, the plaintiffs argued that the consular decision should be reviewed because it fell within the “limited circumstances where the government provides no reason, or where the reason on its face is illegitimate.” Brief for Respondent at 31, Din, 135 S. Ct. 2128 (No. 13-1402), 2015 WL 179409. But, as those cases hold, a lack of good faith must appear on the face of the government’s action, not from looking behind it.

Perhaps more troubling is that the en banc court treated Justice Kennedy’s opinion with the care of a Ginsu knife. As Judge Niemeyer notes in dissent, Chief Judge Gregory “carelesss[ly]” sliced and diced Din (p. 163):

As support for its dramatic departure from Supreme Court precedent the majority relies on a scattershot strain of quotations drawn out of context from one sentence in Din. The carelessness of the majority’s presentation is demonstrated simply by a comparison of its characterization of Din and the actual language of Din taken in context. Here is how the majority characterizes Din:

Justice Kennedy explained that where the plaintiff makes “an affirmative showing of bad faith” that is “plausibly alleged with sufficient particularity,” courts may “look behind” the challenged action to assess its “facially legitimate” justification. Ante at 50.

And here is what Justice Kennedy in Din actually said, with the language quoted by the majority in bold:

Absent an affirmative showing of bad faith on the part of the consular officer who denied Berashk a visa—which Din has not plausibly alleged with sufficient particularity—Mandel instructs us not to look behind the Government’s exclusion of Berashk for additional factual details beyond what its express reliance on § 1182(a)(3)(B) encompassed. Din, 135 S. Ct. at 2141 (emphasis added).

As Judge Niemeyer explains in dissent, Din allows the court to peek behind the curtain only when the policy, on its face, is not bona fide:

Nowhere did the Din Court authorize going behind the government’s notice for the purpose of showing bad faith. The plaintiff had to show facially that the notice was in bad faith, i.e., not bona fide. The majority’s selective quotations from Din, which conceal Din’s faithful application of Mandel, are simply misleading.

While Justice Kennedy is always free to change his mind, and reimagine his old opinions in one direction or the other, the lower courts may not do so for him.

Lemon and Town of Greece

The majority’s Establishment Clause analysis is very difficult to square with the Supreme Court’s precedents and Congress’s practices. Two decades ago, immigration scholar Enid F. Trucios-Haynes observed in the Georgetown Immigration Law Journal that applying the Supreme Court’s Establishment Clause jurisprudence to long-standing immigration laws “is particularly awkward.” Under either the Lemon test or the related “endorsement” test, a facially neutral law with a non-secular purpose is constitutionally suspect. A law that prefers religion over non-religion is very likely unconstitutional. A law that overtly prefers certain religious sects over others is almost certainly unconstitutional. Yet, immigration law routinely does all of the above, and neither Congress nor the courts have expressed the slightest concern for the Establishment Clause—that is, until President Trump’s executive orders. Further, as Judge Niemeyer noted in dissent, “the Supreme Court has never applied the Establishment Clause to matters of national security and foreign affairs.” There are many reasons to think the court’s “normal constitutional tools” are simply inapplicable in this context (pp. 52-53).

More pressingly, it is unclear precisely what test ought to govern the Establishment Clause, and whether the Lemon test survives. Once again, Judge Niemeyer splays our fragmented First Amendment jurisprudence: “While there is no question that it binds us, Lemon’s test, and particularly its inquiry into government purpose, has repeatedly been criticized as open-ended and manipulable.” He cautions the majority to be “wary of jumping when on thin ice.”

The majority, perhaps sensing Lemon is on a shaky footing, takes a cue from the constitutional law professors’ amicus brief. In a footnote, Chief Judge Gregory cites the Court’s recent decision in Town of Greece v. Galloway, which involved the constitutionality of prayers before legislative meetings. In that case, Justice Kennedy upheld the policy because “[i]n no instance did town leaders signal disfavor toward nonparticipants or suggest that their stature in the community was in any way diminished.” Relying on this observation, the Fourth Circuit determined that “EO-2 would likely fail any purpose test, for whether religious animus motivates a government action is a fundamental part of our Establishment Clause inquiry no matter the degree of scrutiny that applies . . . . There is simply too much evidence that EO-2 was motivated by religious animus for it to survive any measure of constitutional review.”

This analysis, once again, returns to the applicability of domestic Establishment Clause cases to foreign policy cases. Justice Kennedy majority opinion in Town of Greece, however, provides a critical distinction. He wrote:

In no instance did town leaders signal disfavor toward nonparticipants or suggest that their stature in the community was in any way diminished. A practice that classified citizens based on their religious views would violate the Constitution, but that is not the case before this Court (emphasis added).

The key word is citizens.

Congress routinely classifies aliens based on religious views. The non-discrimination statute (on which Judge Thacker’s concurring opinion relies) explicitly omits religion for the grounds on which immigrant visas can be withheld:

Except as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title, no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.

Another longstanding statute provides special visas for those “carrying on the vocation of a minister of that religious denomination.” The implementing regulations specify that “[e]xamples of vocations include nuns, monks, and religious brothers and sisters.” Through the Lautenberg Amendment, our immigration law has afforded special status to “[a]liens who are (or were) nationals and residents of the Soviet Union and who are Jews or Evangelical Christians shall be deemed” to be subject to persecution, unless there was sufficient evidence to the contrary. It is certainly true, as Justice Kennedy explained, “A practice that classified citizens based on their religious views would violate the Constitution.” But such is not true for non-citizens outside the United States.

In any event, the executive order does not classify aliens based on their religion. It is facially neutral and far less religious than actions that Court has upheld in the domestic context. Limited to the four-corners of the executive order, the majority musters only one item to suggest it is not facially bona fide. Section 11 of the March 6, 2017 executive order, which was not subject to challenge, is titled “Transparency and Data Collection.” Subsection (i) asks the Attorney General and Secretary of Homeland Security to collect “information regarding the number of foreign nationals in the United States who have been charged with terrorism-related offenses while in the United States.” Subsection (ii) asks for “information regarding the number of foreign nationals in the United States who have been radicalized after entry into the United States and who have engaged in terrorism-related acts.” And most relevant for our purposes, subsection (iii) seeks “information regarding the number and types of acts of gender-based violence against women, including so-called “honor killings,” in the United States by foreign nationals.” This is the best evidence the court can find of the fact that the executive order is not facially bona fide.

The majority explains in a footnote:

Plaintiffs suggest that EO-2 is not facially neutral, because by directing the Secretary of Homeland Security to collect data on “honor killings” committed in the United States by foreign nationals, EO-2 incorporates “a stereotype about Muslims that the President had invoked in the months preceding the Order.” . . . . The Amici Constitutional Law Scholars go so far as to call the reference to honor killings “anti-Islamic dog-whistling.” Brief for Constitutional Law Scholars 19 n.3. We find this text in EO-2 to be yet another marker that its national security purpose is secondary to its religious purpose. (p. 60).

I’ll concede that honor killings are a reference to Islam, and not other religions. But this reporting requirement comes nowhere near the standard needed to find a violation of the Establishment Clause, let alone bad faith. Imagine if the executive order included a copy of the Ten Commandments, adorned by “two Stars of David, and the superimposed Greek letters Chi and Rho as the familiar monogram of Christ,” as the monument outside the Texas capitol did in Van Orden v. Perry. Or imagine if the President had opened the executive order with the invocation, “We acknowledge the saving sacrifice of Jesus Christ on the cross,” as did the ministers who spoke in the Town of Greece. In both of these cases, the Court upheld as constitutional explicit invocations of religion. These precedents simply do not support the supposition that a requesting information about violence against women in the form of honor killings—even if it is a practice that is predominantly associated with Muslims—is not bona fide.

Finally, it is worth stressing that Justice Kennedy joined both the majorities in both Van Orden and Town of Greece. He also joined part II of Justice Scalia’s dissent in McCreary County, rejecting Justice Souter’s purposivist analysis. That said, in Church of the Lukumi Babalu v. City of Hilaeah, he wrote that “[i]n our Establishment Clause cases, we have often stated the principle that the First Amendment forbids an official purpose to disapprove of a particular religion or of religion in general.” Trying to read the tealeaves on Justice Kennedy’s jurisprudence is always a fraught endeavor.

The Fourth Circuit’s Establishment Clause analysis, alas, is a strange brew that will not stand on appeal.

Cross-Posted at Lawfare

According to Chief Judge Gregory’s self-assigned seventy-page majority opinion, an American who seeks to be reunited with his alien wife suffers a constitutional injury because he felt like an “outsider.” Because the President’s travel ban is not “bona fide,” the court privileged cable news hits from Rudolph Giuliani and Stephen Miller over official statements of the Departments of Homeland Security, Justice, and State, to conclude that the policy was in fact animated by animus. Finally, because the President’s facially neutral executive order “drips with religious intolerance,” the court can pick apart the purported national security rationales to find them mere afterthoughts.

Regrettably, the decision is pocked by precedential lacunas. Ignoring the errors highlighted by the three pointed dissents, the majority opinion covers these gaps with papier-mâché bulwarks, seemingly designed to last only as long as needed to hold President Trump at bay. At bottom, the judicial resistance to the travel ban amounts to a not-too-transparent exercise of motivated reasoning: construe precedents as broadly or narrowly as needed and draw all inferences in the light least charitable to the President. Motivated reasoning is not new to the judiciary—all men are mortal—but it is brazen in the travel ban cases.

In this four-part series, I will begin by analyzing the majority opinion, which was joined in whole or in part by seven judges, with a focus on its reliance on Trump’s pre- and post-inauguration statements. Part II will assess how the court marshals the Supreme Court’s precedents concerning reviewability of immigration decisions and the Establishment Clause. In Part III, I will focus on the far more modest concurring opinions of Judges Keenan and Thacker, which were aimed at the Supreme Court, and the far less modest concurring opinion of Judge Wynn. Part IV will analyze the three dissents from Judges Niemeyer, Shedd, and Agee, which were aimed at highlighting for the Supreme Court how their colleagues selectively cited the record and deviated from precedent.

I offer no prediction about whether the Supreme Court will ultimately uphold the travel ban, and there is a distinct possibility it will deny certiorari altogether in the absence of a circuit split. But if review is granted, I fully expect the Court to clean up the doctrinal hash from the lower courts. Such a public service is reason enough to take the case, lest future Presidents feel bound to comply with these unjustified strictures.

Trump’s Statements on the Campaign Trail

The majority opinion’s biggest error lies in its reliance on Trump’s statements on the campaign trail. Judge Thacker, who concurred with the majority’s holding, wrote separately to emphasize the problem with relying on such statements:

I agree with the majority’s conclusion that Appellees have standing to challenge the constitutionality of § 2(c) of EO-2 and that EO-2 likely violates the Establishment Clause. However, in my view, we need not — and should not — reach this conclusion by relying on statements made by the President and his associates before inauguration. While on the campaign trail, a non-incumbent presidential candidate has not yet taken the oath to “preserve, protect and defend the Constitution,” U.S. Const. art. II, § 1, and may speak to a host of promises merely to curry favor with the electorate. Once a candidate becomes President, however, the Constitution vests that individual with the awesome power of the executive office while simultaneously imposing constraints on that power. Thus, in undertaking the Establishment Clause analysis, I believe we should focus our attention on conduct occurring on President Trump’s inauguration date, January 20, 2017, and thereafter. Indeed, for the reasons below, looking to pre-inauguration conduct is neither advisable nor necessary.

She is exactly right. Alas, the other six judges in the majority were content to cherry pick statements from the campaign trial, and read them out of context to prove a single point: Trump never abandoned his initial Muslim ban, and everything said and done to the contrary was pretextual. The court notes that “Candidate Trump later recharacterized his call to ban Muslims as a ban on nationals from certain countries or territories” (p. 20) (emphasis added).

The court’s use of the word “recharacterized” marks an important rhetorical move: it rejects the notion that Trump replacement of the Muslim ban with a territory-based ban was intended to promote national security and instead views the territory-based ban as a pretext for the original Muslim ban.

To that end, the court walks through a number of statements made by Donald Trump and his associates, both before and after the inauguration, to establish this improper purpose. In this section, I will highlight each statement identified by the court and provide the full context. Consistently, the majority read these statements in the most uncharitable light, eliding key words that suggest ambiguity, or alternatively, more benign motives.

First, the court excerpts then-candidate Trump’s interview on “60 Minutes.”

On July 17, 2016, when asked about a tweet that said, “Calls to ban Muslims from entering the U.S. are offensive and unconstitutional,” then-candidate Trump responded, “So you call it territories. OK? We’re gonna do territories” (pp. 20-21).

The full transcript is far less clear of what Trump intended to convey than this excerpt suggests:

Lesley Stahl: –in December you tweeted, and I quote you, “Calls to ban Muslims from entering the U.S. are offensive and unconstitutional.”

Donald Trump: So you call it territories. OK? We’re gonna do territories. We’re gonna not let people come in from Syria that nobody knows who they are. Hillary Clinton wants 550 percent more people to come in than Obama–

Lesley Stahl: So you–

Donald Trump: –who doesn’t know what he’s–

Lesley Stahl: –so you’re changing–

Donald Trump: –so we’re going to–

Lesley Stahl: –your position.

Donald Trump: –no, I– call it whatever you want. We’ll call it territories, OK?

Lesley Stahl: So not Muslims?

Donald Trump: You know– the Constitution — there’s nothing like it. But it doesn’t necessarily give us the right to commit suicide, as a country, OK? And I’ll tell you this. Call it whatever you want, change territories, but there are territories and terror states and terror nations that we’re not gonna allow the people to come into our country. And we’re gonna have a thing called “Extreme vetting.” And if people wanna come in, there’s gonna be extreme vetting. We’re gonna have extreme vetting. They’re gonna come in and we’re gonna know where they came from and who they are.

The court looks to this statement as evidence that “Trump also suggested that he would attempt to circumvent scrutiny of the Muslim ban by formulating it in terms of nationality, rather than religion.” Admittedly, Trump is “characteristically incoherent,” but his comment does not reflect an admission to “circumvent” the law. He did not actually say he was sticking with the Muslim ban. He was not admitting to Lesley Stahl on “60 Minutes” that his purported abandonment of the Muslim Ban was a sham. The court reads this statement in with jade-colored glasses.

Next, the court quotes at length from Trump’s appearance on “Meet the Press” a week later:

When asked whether he had “pulled back” on his “Muslim ban,” Trump replied, “We must immediately suspend immigration from any nation that has been compromised by terrorism until such time as proven vetting mechanisms have been put in place.” J.A. 480. Trump added, “I actually don’t think it’s a rollback. In fact, you could say it’s an expansion. I’m looking now at territories. People were so upset when I used the word Muslim. Oh, you can’t use the word Muslim. Remember this. And I’m okay with that, because I’m talking territory instead of Muslim.” J.A. 481. Trump continued, “Our Constitution is great. . . . Now, we have a religious, you know, everybody wants to be protected. And that’s great. And that’s the wonderful part of our Constitution. I view it differently.” (p. 21).

The court omitted the remainder of the exchange, which reiterated that the policy was premised on territories:

Why are we committing suicide? Why are we doing that? But you know what? I live with our Constitution. I love our Constitution. I cherish our Constitution. We’re making it territorial. We have nations and we’ll come out, I’m going to be coming out over the next few weeks with a number of the places. And it’s very complex–

Far more than with Lesley Stahl, Trump expressed—as clearly as he can—that he abandoned the religious ban and is “talking territory instead of Muslim.” (Trump’s utter inattention to the rules of grammar and syntax reveals why trying to reassemble his clauses to make sense is a fruitless endeavor).

Next, the court jumps forward to after the election, but before the inauguration:

On December 19, 2016, following a terrorist attack in Germany, President-Elect Trump lamented the attack on people who were “prepared to celebrate the Christmas holiday” by “ISIS and other Islamic terrorists [who] continually slaughter Christians in their communities and places of worship as part of their global jihad.” Two days later, when asked whether recent violence in Europe had affected his plans to bar Muslims from immigrating to the United States, President-Elect Trump commented, “You know my plans. All along, I’ve been proven to be right. 100% correct. What’s happening is disgraceful.”

The majority opinion looks at this exchange as illustrating that the recent attacks did not “affect[] his proposed Muslim ban” (p. 56). I’m not so sure. The court does not quote the question that was asked. The reason is that the question was very difficult to understand, as cameras were clicking very loud. As best as I can discern, as President-Elect Trump was about to enter Mar-a-Lago, a reporter asked whether the terrorist attack in Germany “has caused you to rethink or reevaluate your plans to create a Muslim register or ban Muslim immigration to the United States.” A moment later, a reporter asks Trump a more audible question, and he asks her to repeat the question. Watch it yourself here.

Two factors give me pause before concluding that Trump reiterated his “plans” to implement both a Muslim ban and a Muslim registry. First, Trump’s campaign expressly repudiated the notion of a Muslim registry, stating, “President-elect Trump has never advocated for any registry or system that tracks individuals based on their religion, and to imply otherwise is completely false.” Rather, the campaign supported “[t]he national registry of foreign visitors from countries with high terrorism activity that was in place during the Bush and Obama Administrations.” In a muddled interview with NBC News in November 2015, Trump discussed some sort of registry “system” but promptly tweeted “I didn’t suggest a database—a reporter did. We must defeat Islamic terrorism & have surveillance, including a watch list, to protect America.” Subsequently, Trump denied wanting such a registry. Did he or didn’t he plan “all along” to implement a Muslim registry? Fact-checkers cut their teeth on this sort of stuff. Indeed, Politifact in 2015 stated “His comments and the media coverage of them have left us confused.” Join the club. Judges should be hesitant before relying on off-the-cuff statements that are inconsistent with Trump’s own prior repudiations.

Second, even assuming Trump heard the question, he seldom actually answers question as asked. It is maddening. (The court’s sanitized excerpt omits this important context). Because nothing in the Trump’s answer was specific enough to link up to the question asked, I would dismiss this as Trump’s usual braggadocio, and telling people that he was right all along. (As an aside, he often takes credit for opposing failed policies he in fact supported, such as the Iraq War). In any event, despite the question asked, nothing in Trump’s answer is specific enough to assess. But I’ll concede this pre-inauguration response is far more ambigous than others.

Statements about Christian Refugees

The court moves on to discuss statements made after the inauguration concerning Christian refugees:

The President gave an interview to the Christian Broadcasting News on January 27, 2017, the same day he issued the First Executive Order. In that interview, the President explained that EO-1 would give preference to Christian refugees: “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 . . . .” J.A. 461. He found that situation “very, very unfair.”

Judge Thacker notes in her concurring opinion that “[t]he statements of the President, his advisor, and the text of EO-1 made crystal clear a primary purpose of disfavoring Islam and promoting Christianity.” (emphasis added).

Legal writers should avoid the word “clear” at all costs, because it reflects a lack of an actual argument. Doubly so for “crystal clear.” On its face, Trump’s statement merely reflects that the first executive order provided extra protections religious minorities in all countries. That is Christians in majority-Muslim nations or Muslims in majority-Christian nations. Beyond ipse dixit, there is no showing that this statement reflects anti-Muslim animus.

Further, this policy is not unique in providing protections for refugees based on religious status. Consider, for example, the validity of § 599D of the 1989 Foreign Operations, Export Financing, and Related Programs Appropriations Act—the so-called Lautenberg Amendment—which provides that “[a]liens who are (or were) nationals and residents of the Soviet Union and who are Jews or Evangelical Christians shall be deemed” to be subject to persecution, unless there was sufficient evidence to the contrary. My colleague Peter Margulies reminds me that the Hebrew Immigrant Aid Society (HIAS), a plaintiff in IRAP v. Trump, supported the Lautenberg Amendment. Indeed, HIAS recently lauded President Obama’s extension of the Lautenberg Amendment, which “ensures a safe means of exit for Iranian religious minorities” as well as “Ukrainian religious minorities.” Providing special protection for persecuted religious minorities—protections that aliens of others faiths lack—is a well-established facet of our immigration law. This much is crystal clear.

“We All Know What That Means”

Next, the court turns to the President’s remarks upon signing the first executive order: “Just before signing EO-1, President Trump stated, “This is the ‘Protection of the Nation from Foreign Terrorist Entry into the United States.’ We all know what that means.” J.A. 403.

As I’ve suggested in several other posts, before deciding what Trump meant by this statement, judges and law clerks should first watch the full video of Trump making this comment in front of the Vice President, Secretary of Defense, and a room full of military officers. He doesn’t mean what the court says he means.

Trump was talking about defeating terrorism, not implementing a Muslim ban. At this point, jurists who use this quote to insinuate that Trump was talking about a Muslim ban, are, to borrow Justice Souter’s explanation in McCreary County, “turn[ing] a blind eye to the context in which [the action] arose.’”

Rudy Giuliani’s Statements

Next, the court turns to the lynchpin of the litigation, the January 28, 2017 statement of former Mayor Rudy Giuliani:

The following day, former New York City Mayor and presidential advisor Rudolph Giuliani appeared on Fox News and was asked, “How did the President decide the seven countries?” J.A. 508. Giuliani answered, “I’ll tell you the whole history of it. So when [the President] 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.’” J.A. 508. Giuliani said he assembled a group of “expert lawyers” that “focused on, instead of religion, danger—the areas of the world that create danger for us. . . . It’s based on places where there [is] substantial evidence that people are sending terrorists into our country.” J.A. 508–09.

Once again, the court insinuates that Trump asked Giuliani how to secretly enact a Muslim ban. But neither the majority nor the concurring opinions included the entirety of Giuliani’s remarks. He said, “I put a commission together with Judge [and former Attorney General] Mukasey, with Congressman [and Chairman of the Homeland Security Committee] McCaul, [Representative and former Chair of the Homeland Security Committee] Pete King, whole group of other very expert lawyers on this.”

This explanation shifts the frame. If the court were to determine that Giuliani was in fact enabling a secret-Muslim ban, then it would have to determine the same was true of former-Attorney General Mukasey. But the judges do not suggest this. (Note that in Aziz v. Trump, Judge Brinkema also used similar ellipses to omit the former AG’s role.)

Judge Thacker states the issue far more bluntly in her concurring opinion:

As Rudy Giuliani, an advisor to the President, explained on January 28, 2017, EO- 1 did all this with the purpose of discriminating against Muslims. Giuliani was quite clear that the President wanted to enact a “Muslim ban” and had assembled a commission to study how to create a “Muslim ban” legally. J.A. 508. Per Giuliani, EO-1 was the President’s attempt at a legal “Muslim ban.”

Giuliani did not say this. The court’s motivated reasoning causes it to read significance into Giuliani’s use of the pronoun “it” to conjure up the worst-case scenario. “It” refers to the lawful ban of aliens from certain nations, not the original Muslims. Peter Margulies likewise observes:

Judge Gregory’s paraphrase of Giuliani’s account assumes the very fact in contention: what “it” means . . . . Judge Gregory’s leap to the conclusion that “it” means a “Muslim ban” is surely one inference, but it’s not the only one. The “it” in Giuliani’s explanation could also refer to pausing certain immigration temporarily, in order to assess whether the United States’ current criteria for screening immigrants actually work.

Further proving this point, Representative McCaul stated expressly what Giuliani suggested: the Muslim ban was unconstitutional, so they instead advised to impose a territory ban. Here’s the Texas Tribune’s account:

“We drafted a memo back last May or June to advocate to candidate Trump why a Muslim ban was unconstitutional and to look at vetting in high threat areas,” McCaul said. “I had no participation in this executive order.” McCaul characterized the memo as “advocating a shift from a Muslim ban, which [Trump] was campaigning on, which we thought was unconstitutional, rather to an enhanced vetting process of immigrants and refugees based on risk—not religion—from high-threat areas.”

The court’s uncharitable reading of Giuliani does not befit a federal court tasked with construing an official executive order.

On this last point, I will return to Judge Thacker’s concurring opinion. On pages 134-35, she cobbles together a series of cases to suggest that is not only appropriate to consider statements made by the Presidents and his advisors, but that precedent supports it. She writes:

Giuliani is purportedly a member, and claims to be chairman, of an expert legal commission assembled to study how to create a lawful way to ban Muslims from entering the country and an acknowledged advisor to the President. See J.A. 508–09. Courts routinely analyze statements and reports from presidential commissions such as the one of which Giuliani is a member. See, e.g., Bartnicki v. Vopper, 532 U.S. 514, 533 (2001) (citing and quoting President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 202 (1967) to demonstrate importance of privacy in communications); Osborne v. Ohio, 495 U.S. 103, 111 (1990) (citing Attorney General’s Commission on Pornography to establish state’s interest in punishing child pornography possession). (p. 134) (emphasis added).

This effort to bootstrap Rudy’s comments on Fox News as if he were the “chairman” of some sort of “expert legal commission” is contrived. Giuliani assembled a group of lawyers that advised a candidate about a policy announced on the stump. This motley crew was worlds away from the President’s Commission on Law Enforcement and Administration of Justice at issue in Bartnicki and the Attorney General’s Commission on Pornography in Osborne. Unlike the public commissions referenced by the Supreme Court, Giuliani’s work was never designed to be made public, and indeed may have never translated to actual policy. (There is pending litigation in Michigan over the release of this memorandum.) Judge Thacker’s analogy misses the mark.

More importantly, there is no evidence Giuliani participated in the drafting of the final order. Indeed, he recently stated under oath, “I have not served on any Trump administration Commission ‘relating to the so-called Muslim Ban Executive Orders.” He added, “I have not participated in writing any of the Executive Orders on that subject issued by the Trump Administration.” Judge Thacker’s hedges far too much on her loose use of “purportedly.” A sworn affidavit should be accorded more weight than off-the-cuff remarks on cable news.

Even if Giuliani spoke imprecisely, the courts should have cut him some slack. Those who have been on cable news know it is easy to mix up your words while on camera, and you don’t get a chance to correct yourself. It’s hard. It is not like a judicial opinion that can be edited and re-edited in chambers.

Don’t forget that President Obama insisted on “This Week” with George Stephanopoulos that the Affordable Care Act was not a tax. As I recount in my book Unprecedented, Justice Scalia asked Solicitor General Verrilli about this interview.

Justice Scalia was not persuaded that the penalty was a tax for any purposes. The next day, he asked Verrilli directly, “The president said it wasn’t a tax, didn’t he? . . . Is it a tax or not a tax? The president didn’t think it was.” Verrilli, no doubt frustrated by this question, evaded it with some Washington-spin: the President, Verrilli noted, had said that the penalty “wasn’t a tax increase,” but he didn’t say it wasn’t a tax.

The Supreme Court, you may recall, did not find President Obama’s statements, or those of Congress for that matter, relevant to the question of whether the ACA was not a tax. Those statements were far more explicit about an actual piece of legislation than any of the four post-inauguration statements from Trump, Miller, Giuliani, or Spicer.

Trump’s Post-Injunction Statements

Next, the majority opinion moves on to statements Trump made after the first executive order was enjoined: “In discussing the Ninth Circuit’s decision and his “[e]xtreme vetting” proposal, the President stated, “I got elected on defense of our country. I keep my campaign promises, and our citizens will be very happy when they see the result.” But again, the court’s selective quotation eliminates important context. The White House provides the full transcript, which shows that the President said, in relevant part:

We’ve taken decisive action to keep radical Islamic terrorists out of our country. Though parts of our necessary and constitutional actions were blocked by a judge’s, in my opinion, incorrect and unsafe ruling, our administration is working night and day to keep you safe — including reporters safe — and is vigorously defending this lawful order. I will not back down from defending our country. I got elected on defense of our country. And I keep my campaign promises. And our citizens will be very happy when they see the result. They already are. I can tell you that. Extreme vetting will be put in place, and it already is in place in many places.

The campaign promise to which Trump was referring was not a Muslim ban, but “keep[ing] radical Islamic terrorists out of our country” and “defending our country.” (I suspect this is also what Trump was referring to during his comments outside Mar-a-Lago in December 2016.)

Stephen Miller’s Statements

The court then cites statements from the President’s senior policy adviser, Stephen Miller, who said on national television that the “new order would reflect ‘mostly minor technical differences’ and emphasized that it would produce the ‘same basic policy outcome for the country.’” This excerpt is, once again misleading. Here is the full exchange:

Well, one of the big differences that you’re going to see in the executive order is that it’s going to be responsive to the judicial ruling, which didn’t exist previously. And so these are mostly minor technical differences. Fundamentally, you’re still going to have the same basic policy outcome for the country, but you’re going to be responsive to a lot of very technical issues that were brought up by the court and those will be addressed. But in terms of protecting the country, those basic policies are still going to be in effect.

Miller’s entire answer concerned making changes to comply with the Ninth Circuit’s ruling, not returning to the original Muslim ban. The revised order addressed the applicability of the travel ban, but it still affected six of the seven original countries. That is, the “same basic policy outcome.” If a law student used this excerpt in a research paper without more context, I would give it a poor grade with the notation “Misleading.” Judges should do better.

Sean Spicer’s Statements

Next, the opinion quotes (embattled) White House Press Secretary Sean Spicer, who stated on the day the new order was issued, “The principles of the executive order remain the same.”

Judge Thacker suggests that the remarks from Spicer as well as Miller “simply attempted to effectuate the same discrimination through a slightly different vehicle — the proverbial wolf in sheep’s clothing.” Not so. Consider the full context of the press secretary’s remarks:

We talked about the courts issue, we talked about this ad nauseam; the President got asked about it over and over again. I think today was about the implementation of it, was about having the three Departments that are expressly named to implement this to talk about what they’re doing to implement it. And I think they did a phenomenal job about it. And that’s what we wanted to highlight today, is the government getting it done. And the way that the Department of Justice, the Department of Homeland Security and the Department of State were implementing the measures that the President laid forth — again, if you think about it, the principles of the executive order remain the same. We looked at what the court said, we put together a thing — we consulted with the relevant agencies and Departments. We talked to Congress.

Once again, Spicer’s entire comment was directed at how the revised order addressed the Ninth Circuit’s decision. Judge Thacker’s argument, complete with an unwarranted nod to Morrison v. Olson, is a non sequitur. It would be more apt for the Fourth Circuit to consider an earlier portion of Justice Scalia’s canonical dissent: “That is what this suit is about. Power.” And not the power of the presidency, but that of the courts.

“Watered Down”

After a trip through the President’s administration, the court next cites a statement from Trump himself: “And President Trump, in a speech at a rally in Nashville, Tennessee, described EO-2 as “a watered down version of the first order.” Again, the second order was indeed “watered down” from the first order, in light of the Ninth Circuit’s opinion. Trump’s full remarks make this point more directly:

The order he blocked was a watered down version of the first order that was also blocked by another judge and should have never been blocked to start with.

(APPLAUSE)

This new order was tailored to the dictates of the 9th Circuit, in my opinion, flawed ruling.

The court did not cite a remark made later during that same Nashville rally, which has made it into other opinions:

Remember this. I wasn’t thrilled, but the lawyers all said, oh, let’s tailor it. This is a watered down version of the first one. This is a watered down version. And let me tell you something. I think we ought to go back to the first one and go all the way, which is what I wanted to do in the first place.

Does “all the way” mean go back to the Muslim ban, or is Trump—in his inimical way—advocating going all the way back to the initial ban? Viewed in light of his earlier comments, the latter is far more likely. Since the shift to the territory policy, Trump had said absolutely nothing about the Muslim ban. The court provides no reason why this subtle slip suggests the President was in fact spilling the beans about his true purpose.

Peter Margulies provides an apt summary of the court’s unfortunate reading of this record:

Unfortunately, the Fourth Circuit opted to substitute confirmation bias for reasoned inquiry. Viewed through the prism of a narrative that assumes invidious bias, the phrase “watered down” no longer means “material alteration.” Instead, it magically assumes the attributes of a “superficial tweak,” reinforcing the Fourth Circuit’s holding that the revised EO inherited the flaws of the original. Viewed in this light, the Fourth Circuit’s cherry-picking of Trump’s utterances is not salutary pushback against his administration’s excesses, but yet another example of collateral damage.

The Missing Link

Chief Judge Gregory recognizes that “[f]or a past statement to be relevant to the government’s purpose, there must be a substantial, specific connection between it and the challenged government action.” To find that otherwise missing link, he looks to the four sets of statements from Giuliani, Miller, Spicer, and Trump:

These statements suggest that like EO-1, EO-2’s purpose is to effectuate the promised Muslim ban, and that its changes from EO-1 reflect an effort to help it survive judicial scrutiny, rather than to avoid targeting Muslims for exclusion from the United States. These statements, taken together, provide direct, specific evidence of what motivated both EO-1 and EO-2: President Trump’s desire to exclude Muslims from the United States. The statements also reveal President Trump’s intended means of effectuating the ban: by targeting majority-Muslim nations instead of Muslims explicitly.

Specifically, the court concludes, these four incidents provide the requite “connection.”

And here, in this highly unique set of circumstances, there is a direct link between the President’s numerous campaign statements promising a Muslim ban that targets territories, the discrete action he took only one week into office executing that exact plan, and EO-2, the “watered down” version of that plan that “get[s] just about everything,” and “in some ways, more.”

As discussed above, none of these remarks provide a “direct link,” let alone circumstantial evidence. In each case, the President and his advisers were referring to the territory ban, or at worst, made ambiguous comments about national security. Only by cherry-picking excerpts of comments out of context in the most unfavorably light possible can the majority reach this conclusion.

Judge Shedd’s dissenting critique of the district court applies equally to his colleagues:

The shortcomings inherent in the district court’s fact-finding are obvious. It is primarily based on the district court’s selectively negative interpretation of political campaign statements made before the President swore his oath of office, its acceptance of the national security assessment of former government officials (many of whom openly oppose this President), its failure to account for the national security assessment of the current Attorney General and Secretary of Homeland Security, its misplaced conclusion regarding the President’s decision not to submit the Executive Order to the Executive bureaucracy for “inter-agency review,” and the purported novelty of the temporary travel pause.

At bottom, the Fourth Circuit concluded that the President never truly abandoned his initial campaign promise to ban Muslims, despite the assurances of the entire executive branch. Everything else is, as Justice Thomas wrote in his dissent to Graham v. Florida, “merely ornaments,” and “window dressing that accompanies . . . judicial fiat.” Speaking of Justice Thomas, the majority opinion leaves a doctrinal gap large enough for him to drive his 40-foot motor coach through.

Conclusion

The Fourth Circuit’s en banc decision, shrouded in over seventy pages of legal reasoning, boils down to a simple proposition: Trump lied. There’s not much more to it than that. The majority opinion hurdles past standing doctrine, disregards concerns about justiciability, expands the Court’s precedents concerning the reviewability of consular decisions, applies domestic Establishment Clause case law to national security decisions, and views the President’s statements in the most uncharitable light imaginable. Finally, buried in footnote 19 is the court’s unceremonious interment of the “presumption of regularity.”

On a personal note, writing these (many) posts about the travel bans is not a particularly enjoyable or rewarding task, because I write in defense of policies I profoundly oppose. In many respects, my work on these cases is a mirror image to my previous work on the constitutionality President Obama’s deferred action policies. While I supported DACA and DAPA as a matter of policy, I concluded they were unlawful. In contrast, while I oppose the travel bans as a matter of policy, I concluded they were lawful.

Thus, my commitment to the travel ban litigation is dual-faceted. First, I aim to fill the void, as there is a shortage of clear-eyed analyses of the travel bans due to Trump’s toxicity. Second, recognizing that the judicial resistance may ultimately defeat the Trump presidency, my sincere hope is that courts do so with as little collateral damage as possible to other areas of law.

This regulation attempts to impose meaningful restrictions on the removal of special counsels. Former acting Solicitor General Neal Katyal, who was involved in drafting Part 600 nearly two decades ago, explains that there are only two paths by which Mueller could be fired. First, President Trump “would have to direct Rosenstein to fire Mueller” for some form of misconduct that rises to the level of “good cause.” Second, Katyal notes, “Trump could order the special-counsel regulations repealed and then fire Mueller himself.”

But Watergate teaches otherwise. First, Rosenstein’s unilateral decision to impose a “good cause” standard of removal for the special counsel does not necessarily bind his successors. Second, the President could determine that Section 600.7 violates his Article II powers over removal and foreign policy and order Rosenstein, or someone else in the chain of command, to remove the special counsel. Make no mistake: Mueller’s firing would likely accelerate the end of the Trump administration. But an order from the Acting Attorney General and regulations published in the Federal Register do not serve as a meaningful bulwark for the President’s exercise of constitutional authority.

From Independent Counsel to Special Counsel

After the runaway Whitewater investigation into all aspects of President Clinton’s public and personal life, a general consensus emerged that the independent counsel provision of the Ethics in Government Act of 1978 should be allowed to expire. Even Ken Starr opposed its renewal. As Katyal recalls, what is now 28 C.F.R. Part 600 was drafted after “Attorney General Janet Reno convened an internal working group to study the matter, [which he] ran . . . for 18 months.” Ultimately, “Reno and then-Deputy Attorney General Eric Holder presented the regulations in congressional testimony. They received near-universal acclaim for striking a more proper balance.”

The removal provision, § 600.7(d), provides:

The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal.

This regulation, which allowed removal for the far more nebulous “violation of Departmental policies,” differed from § 596(a)(1) of the lapsed Ethics in Government Act. The latter provided:

An independent counsel appointed under this chapter may be removed from office, other than by impeachment and conviction, only by the personal action of the Attorney General and only for good cause, physical disability, mental incapacity, or any other condition that substantially impairs the performance of such independent counsel’s duties.

Further, the Ethics in Government Act allowed removals to be reviewed by the District Court for the District of Columbia, wherein reinstatement was considered appropriate relief. No such review was countenanced by Part 600. Section 600.10 instead clarified that “[t]he regulations in this part are not intended to, do not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law or equity, by any person or entity, in any matter, civil, criminal, or administrative.”

Rosenstein’s Regulatory Protections for Mueller

As a threshold matter, the removal conditions outlined in § 600.7(d) need not apply to the Attorney General’s appointment of special counsel. In December 2003, then-Deputy Attorney General James Comey appointed Patrick J. Fitzgerald to investigate the disclosure of Valerie Plame Wilson’s affiliation with the CIA. (Attorney General Ashcroft had recused). Critically, Comey did not subject Fitzgerald’s appointment to §600.7(d) or to the rest of Part 600. In one of several letters to Fitzgerald clarifying the scope of his special counsel authority, Comey specified that “my conferral on you of the title ‘Special Counsel’ in this matter should not be misunderstood to suggest that your position and authorities are defined and limited by 28 C.F.R. Part 600.” As the district court noted in United States v. Libby, which considered the constitutionality of Fitzgerald’s appointment, “there is no contention that the Deputy Attorney General was required to follow these regulations, and they are therefore of no moment.” As a result, Judge Reggie Walton concluded, there was no question that Fitzgerald was “essentially removable at will by the Deputy Attorney General.”

Rosenstein, however, took a different path. Part (d) of his letter expressly stated that “Section 600.4 through 600.10 of Title 28 of the Code of Federal Regulations are applicable to the Special Counsel.”

According to media reports, Rosenstein appointed Mueller without Trump’s knowledge. Indeed, the White House was only notified 30 minutes before the public announcement was made. Is Rosenstein’s determination that Mueller should be afforded these protections binding on the executive branch? With a look back to the removal of the special prosecutor established to investigate Watergate, the answer is far from clear.

Richardson, Ruckelshaus, and Bork

In 1973 President Nixon appointed Elliot Richardson to serve as Attorney General. However, with the Watergate scandal boiling over, the Senate Judiciary Committee insisted that Richardson select a special prosecutor as a condition of confirmation. Richardson agreed, and shortly thereafter promulgated 38 C.F.R. 14688-01, which established the Office of Watergate Special Prosecution Force. As explained by the district court in Nader v. Bork, which considered the legality of the firing of special prosecutor Archibald Cox, “[t]he terms of this regulation were developed after negotiations with the Senate Judiciary Committee and were submitted to the Committee during its hearings on the nomination of Elliot Richardson for Attorney General.” Far from the “good cause” standard at issue in the Ethics in Government Act, this regulation stated that “[t]he Special Prosecutor will not be removed from his duties except for extraordinary improprieties on his part” (emphasis added).

What is often lost amidst the mythology of the Saturday Night Massacre is that Richardson did not resign because he concluded that discharging Cox would be illegal. Instead, as he explained in his resignation letter to President Nixon, Richardson felt bound by his personal commitment to the Senate to ensure Cox’s independence:

At many points throughout the nomination hearings, I reaffirmed my intention to assure the independence of the special prosecutor, and in my statement of his duties and responsibilities, I specified that he would have “full authority” for “determining whether or not to contest the assertion of ‘Executive Privilege’ or any other testimonial privilege.” And while the special prosecutor can be removed from Office for “extraordinary improprieties,” I also pledged that “The Attorney General will not countermand or interfere with the Special Prosecutor’s decisions or actions.”

While I fully respect the reasons that have led you to conclude that the Special Prosecutor must be discharged, I trust that you understand that I could not in the light of these firm and repeated commitments carry out your direction that this be done. In the circumstances, therefore, I feel that I have no choice but to resign.

Richardson took no issue with Nixon’s “reasons” for ordering Cox’s firing. According to an interview Richardson gave to the D.C. Bar decades later, Nixon told him, “I’m sorry that you insist on putting your personal commitments ahead of the public interest.” Richardson replied, “Mr. President, I can only say that I believe my resignation is in the public interest.” He added that Cox’s investigation did not constitute “impropriety of any sort,” let alone “extraordinary impropriety.”

After Richardson resigned, Nixon ordered Deputy Attorney General William D. Ruckelshaus to fire Cox and Ruckelshaus also refused. Like Richardson, the recently-appointed Ruckelshaus had agreed as part of his confirmation in July 1973 to support the independent special prosecutor.

According to the New York Times’ account shortly after the Saturday Night Massacre, Ruckelshaus, like Richardson, resigned because he was asked to violate his “agreement,” not because he concluded the removal would be illegal. According to the Washington Post, the White House said Ruckelshaus was actually fired.

Assuming the Post version is accurate, why did Nixon refuse to accept Ruckelshaus’s resignation? According to Bork’s 2013 autobiography, Saving Justice, “Nixon would not accept that Ruckelshaus was under the same obligations to Cox and the Senate as Richardson, and refused his resignation, choosing to fire him instead” (p. 80). In other words, Nixon accepted the validity of Richardson’s promise to the Senate, but not Ruckelshaus’s subsidiary pledge. Today, the importance of Richardson and Ruckelshaus’s commitments have largely been ignored in discussions of the Saturday Night Massacre. (Indeed, I was not familiar with this element until I researched this piece).

Bork, who made no such pledges during his confirmation as Solicitor General, did not believe himself to be under similar constraints. In his autobiography, he justified his decision to fire Cox because the regulations could not constrain the President’s authority:

When the question of whether to fire Cox came up, I was in a welter of contradictory impulses, unable to see clearly what the results would be of a firing or a refusal to fire. I recognized that the president had a clear legal authority to fire Cox and a good reason to do so. It seemed obvious to me that a lower-level executive officer could not publicly defy the president on national and, indeed, international television (emphasis added).

Judge Bork, during his testimony before the Senate Judiciary Committee in 1987 (Parts I, II, III, IV, and V), reiterated his belief that neither Richardson nor Ruckelshaus believed the regulation served as a bar to Cox’s removal. In response to a question from Senator Howard Metzenbaum (D-OH), Bork said, “I think that night all of us assumed that, as far as I know, Attorney General Richardson and Deputy Attorney General Ruckelshaus assumed that the regulation did not stand in the way of a presidential order” (p. 195).

Bork added later in the hearing that “none of us thought that that regulation was a bar to a presidential order” and that everyone in the office, Richardson included, “assumed the President could [remove Cox] over an Attorney General’s regulation” (p. 235). I was not able to find Richardson’s quotation to that effect, but nothing I’ve seen is to the contrary. Both Richardson and Ruckelshaus consistently described their resignations as occasioned by their pledges to the Senate.

Finally, Bork recounts a remarkable exchange in his autobiography about the eve of the Massacre: Richardson said he could not fire Cox, so he told Bork to do so.

Richardson turned to Ruckelshaus and said, “I can’t fire Cox. Can you, Bill?” “No,” Ruckelshaus said, “it would be wrong.” When Richardson turned to Ruckelshaus it suddenly occurred to me that by regulation I was third in line at the Department of Justice. Richardson then turned to me and said, “Can you fire him, Bob?” I was taken off guard. Richardson explained that he and Ruckelshaus were in different moral positions than I was. Richardson had given Cox a charter and had promised the Senate, as a condition of his confirmation, that he would fire Cox only on the stated basis of “extraordinary improprieties,” as had Ruckelshaus. “The gun is in your hand—pull the trigger!” he exclaimed (p. 80).

“Pull the trigger” Bork did, as he did not view the regulations as a reason to ignore the President’s order. There is, however, contrary judicial authority about the legality of Bork’s firing.

Nader v. Bork

Long before he spoiled Al Gore’s Electoral College victory, Ralph Nader challenged Bork’s firing of Archibald Cox in Nader v. Bork. Judge Gerhard Gesell, a Johnson appointee to the District Court for the District of Columbia, concluded that “[t]he firing of Archibald Cox in the absence of a finding of extraordinary impropriety was in clear violation of an existing Justice Department regulation having the force of law and was therefore illegal.” The court did not address whether the imposition of the “extraordinary impropriety” violated the separation of powers or the President’s authority under Article II. Recall that more than a decade later, only Justice Scalia found constitutional infirmities in the Ethics in Government Act.

What happened after Judge Gesell’s decision on November 14, 1973 is somewhat murky, though ultimately the D.C. Circuit vacated the decision on October 22, 1975, after the Supreme Court’s decision in United States v. Nixon resulted in the release of the Watergate tapes. The D.C. Circuit’s vacatur was not reported, and I could not find a copy of the order at Docket No. 74-1620. In any event, as a result of the vacatur, the case was mooted, and Judge Gesell’s decision has no legal effect.

However, the validity of Nader v. Bork returned as an important element of then-Judge Bork’s Supreme Court confirmation hearing thirteen years later. Bork explained that “[t]he cases relied upon in Judge Gesell’s opinion are all cases in which a department head issued a regulation and then himself did something in contradiction to it” and do not apply when “the President gives an order to abolish that regulation, which is, in effect, what happened” (194-95).

In response to a later question from Senator Metzenbaum, Bork added, “In this case, the President gave me an order to discharge Archibald Cox which I think overrides an Attorney General’s regulation. That is why I think the action was legal” (p. 361). The longtime Ohio Senator read to Bork a sentence from the Court’s decision in United States v. Nixon (1974), “So long as this regulation remains in force the Executive Branch is bound by it, and indeed the United States as the sovereign composed of the three branches is bound to respect and to enforce it.” Bork replied:

The Court responded that as long as the regulation was in force, until the President rescinded the order, there was jurisdiction; but there was no doubt that the President had the power to rescind that charter. In fact, in the letter from the President to me that night, he said, “You are to discharge Mr. Cox and abolish the office of special prosecutor.” The abolition of the office was on paper only. The office continued intact. But that was a presidential rescission of the regulation . . . . [The regulation] was not extant after the President issued that order.

To Bork, it was not necessary to issue a notice in the Federal Register and go through the notice-and-comment process before terminating Cox. Indeed, there was some discussion during the hearing about how quickly such a notice could have even been published, as the Monday after the Saturday Night Massacre was a federal holiday. But to argue that the President is disabled from directing the firing an inferior officer because of the strictures of the Administrative Procedures Act cannot withstand scrutiny—at least, not without careful consideration of the President’s Article II powers. Senator Hatch described Nader v. Bork as a case where a “single federal judge . . . was caught up in the momentous events of that occasion.” Courts in that tumultuous era were willing to abandon the “presumption of regularity” due to the “uniqueness” of President Nixon.

Four decades later, the question of whether the President’s constitutional order can trump a duly promulgated regulation is still unresolved. This question could arise again if Trump orders Mueller’s removal.

Rosenstein, Brand, Boente

Watergate teaches several lessons relevant to our current situation. First, even if regulations do not trump the President’s orders, Attorneys General (or those acting in that capacity) may feel compelled to honor their word with respect to the appointment of special prosecutors. Attorney General Richardson and Deputy Attorney General Ruckelshaus resigned with honor because of pledges they made to the Senate as part of their confirmations. Along similar lines, that Deputy Attorney General Rosenstein voluntarily imposed Section 600.7(d)’s “good cause” standard on Mueller’s appointment amounts to something of a promise to the American people about the counsel’s independence. He was not obligated to do so. If asked to fire Mueller, Rosenstein would likely resign.

Second, even if one Acting Attorney General makes that pledge, his successors are not necessarily so bound. The district court in Nader explained that “we are once again confronted with a situation in which the Attorney General voluntarily limited his otherwise broad authority.” It was Richardson, a single officer-holder, who imposed that limitation on himself. To that point, Bork, as acting Attorney General, did not feel duty-bound to honor the promise that his predecessors made to the Senate. Critically, Rosenstein’s decision to impose the “good cause” standard was his, and his alone. He did not even notify the White House in advance. In contrast, Richardson and the Nixon administration worked closely in promulgating the Watergate regulations.

If Rosenstein refused an order to fire Mueller, and instead resigned, the obligation would fall to Rachel Brand, who was recently confirmed as the Associate Attorney General. Brand made no such promises during her Senate confirmation, and may disagree with Rosenstein about the need for an insulated prosecutor. After Brand, according to Trump’s February 9, 2017 executive order, the task would fall to the U.S. Attorneys for the Eastern District of Virginia (Dana Boente, who fired Sally Yates when temporarily elevated to Acting Attorney General), Northern District of Illinois, and the Western District of Missouri, respectively. At least one of these officials would have to decide whether Mueller could be fired at will, notwithstanding Section 600.7(d) and would have to consider to what extent they are bound by Rosenstein’s initial determination. As a constitutional matter, however, a single Deputy Attorney General—one who holds his office at the President’s pleasure—cannot forever bind the President’s powers.

Watergate teaches a third lesson: If someone in the chain of command follows Trump’s order to fire Mueller without a showing of “good cause,” Section 600.7(d) will serve as no constitutional barrier. That said, invariably suit will be filed under the APA seeking Mueller’s reinstatement, even though Section 600.10 expressly precludes any rights “enforceable at law or equity.”

President Has No Duty to Follow Unconstitutional Regulations

The President’s authority to decline to follow unconstitutional laws derives from his oath of office and the Take Care Clause. It has long been the executive branch’s position that the Constitution always remains superior to acts of Congress. In Zivotofsky v. Kerry (2015), as Chief Justice Roberts noted in dissent, the Court for the first time “accepted a President’s direct defiance of an Act of Congress in the field of foreign affairs” that he deemed unconstitutional. But the principle has long enjoyed Supreme Court sanction in the domestic realm; decades earlier, in Myers v. United States, the Court cast no disapprobation on President Wilson’s removal of the postmaster in violation of a statute that was later found to be unconstitutional.

Citing this latter case, and several others, then-Assistant Attorney General Walter Dellinger wrote an important memorandum for the Office of Legal Counsel in 1994, concluding that “there are circumstances in which the President may appropriately decline to enforce a statute that he views as unconstitutional.” In particular, Dellinger observed, “[w]here the President believes that an enactment unconstitutionally limits his powers, he has the authority to defend his office and decline to abide by it, unless he is convinced that the Court would disagree with his assessment.” D.C. Circuit Judge Brett Kavanaugh reached a similar conclusion in the Notre Dame Law Review, writing that “the Executive has to follow and comply with laws regulating the executive branch—at least unless the President deems the law unconstitutional, in which event the President can decline to follow the statute until a final court order says otherwise.”

This principle applies with more potency to mere regulations than to duly enacted statutes. While, as Dellinger noted, “the President should give great deference to the fact that Congress passed the statute and that Congress believed it was upholding its obligation to enact constitutional legislation,” no such similar respect is due to prior executive actions—even those promulgated through the notice-and-comment process.

Elections have consequences. If the President was required to file a notice in the federal register, and seek input from the public to avoid being bound by an unconstitutional regulation, then the Administrative Procedures Act would be subject to an as-applied challenge. A declaration by the President that the regulation is unconstitutional would be sufficient. This, in effect, was Bork’s explanation of how Cox was removed without a formal repeal of the regulation. (Recall, no showing of “extraordinary impropriety” was made.)

Further it makes no difference that a past executive branch sanctioned the regulation. As Chief Justice Roberts explained in Free Enterprise Fund v. PCAOB (2010), under separation of powers principles, Presidents cannot bind their successors:

Perhaps an individual President might find advantages in tying his own hands. But the separation of powers does not depend on the views of individual Presidents, see Freytag v. Commissioner, nor on whether “the encroached-upon branch approves the encroachment,” New York v. United States. The President can always choose to restrain himself in his dealings with subordinates. He cannot, however, choose to bind his successors by diminishing their powers, nor can he escape responsibility for his choices by pretending that they are not his own. (citations omitted).

Perhaps President Clinton, with eighteen months left in his administration, was willing to tie himself to the mast to protect the independence of future special counsels. But future Presidents need not agree.

The Constitutionality of Section 600.7(d)

The Court’s discussion in PCAOB is especially apt for purposes of assessing Rosenstein’s appointment of Mueller, which attempts to bind the President’s removal power, without Trump’s consent. Even during the Watergate investigation, Attorney General Richardson promulgated the removal standards with the knowledge of the White House. In his opposition to Robert Bork’s nomination to the Supreme Court, for example, Ralph Nader pointed out that “the transcript of the 1973 Senate hearings leaves no doubt that President Nixon was fully informed” of the regulations (pp. 5941-42).

President Trump has no duty to honor Rosenstein’s unilateral decision. If he decides that Mueller, an inferior officer, must be removed without a showing of “good cause,” he need only so order.

There is another possible constitutional objection President Trump could raise to the “good cause” standard. In a series of tweets, Neal Katyal suggested that the Trump Administration may defend the firing of Comey based on foreign policy concerns:

WH is exploring mounting (or creating) a foreign policy defense for firing Comey. They are trying to develop the story that Comey was creating foreign policy problems, that his investigation was undermining closer relationships with Russia, and that the Pres has the prerogative in foreign affairs to do as he sees fit. Put simply, it appears that the rationale for firing Comey will be “it’s not obstruction of justice, it’s foreign policy.

A similar rationale could extend to the firing of Mueller, whose investigation is aimed squarely at Russia. Indeed, the Nixon White House relied on just this authority when it sought to remove Cox. According to Richardson, these sorts of arguments were part of Nixon’s final pitch to the conflicted Attorney General:

I met with [Nixon] in the Oval Office. He knew I was going to resign rather than fire Cox, and he tried to talk me out of it. He painted a dire picture of the international crisis precipitated by the Yom Kippur War, the nuclear alert he had invoked the night before, and the possibility that Brezhnev would think that he has lost control of his administration. All of that was very disturbing. He urged me to delay my resignation until after this crisis had abated.

Bork offered similar accounts in his autobiography, noting that when he “got to [Chief of Staff Alexander] Haig’s office, he immediately began bloviating about the Middle East situation, and how the international strength of the president was in mortal peril” (p. 83).

To the extent that the White House determines that Mueller’s investigation is frustrating its foreign policy initiatives with Russia, or other nations, it could argue that (1) “good cause” exists, or (2) Section 600.7(d) violates the President’s Article II powers over foreign policy. Either route provides an executive override of the regulation.

To be clear, such an action would incur a severe political cost. To supporters of the unitary executive, removing the special counsel would be constitutionally proper; to the public at large, the termination of Mueller would amount to an admission of guilt and obstruction of justice. The fallout from the firing of Mueller would likely be as explosive as the firing of special counsel Archibald Cox in 1973. However, as we learn day by day, history has a tendency to repeat itself.

Cross-Posted at Lawfare