Arguments on Monday before the Fourth Circuit over the constitutionality of the Trump travel ban highlight a collision of legal theories.
Jeffery Wall, the acting United States solicitor general, urged the 13-judge panel to defer to the president on what the government terms a matter of immigration policy and national security. In support of his argument, Wall leaned heavily on a ruling by the Supreme Court 45 years ago in a case known as Kleindienst v. Mandel.
That case arose from accusations by a group of university professors that a decision by the attorney general to deny a visa to Dr. Ernest Mandel, a Belgian academic and self-described “revolutionary Marxist” who sought to deliver a series of lectures at Americans universities violated the professors’ – all U.S. citizens – First Amendment right to hear Mandel’s views.
The court rejected their argument. Writing for the majority, Justice Blackmun noted that Congress had delegated to the president the power to make policies and rules for the exclusion of aliens. When the president exercises that power “on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant,” he wrote.
In dissent, Justice Marshall expressed concern that the court would not examine the reason the White House gives for excluding someone, especially when a group of Americans accused the government of violating the First Amendment.
“Even the briefest peek behind the Attorney General’s reason for refusing a waiver in this case would reveal that it is a sham,” Marshall wrote. “At least when the rights of Americans are involved, there is no basis for concluding that the power to exclude aliens is absolute.”
Mandel became law. “The court said no… we are not going down the road of inquiring into subjective motivation” of the reasons why the president would deny a visa, Wall told the Fourth Circuit on Monday.
Of course, as Amy Davidson at The New Yorker observes, “Asking for a presumption of regularity, or legality, or just basic honesty, is asking a lot, when it comes to the Trump Administration.”
Examining the government’s motives
National security merely provides a pretext for banning Muslims, argues the International Refugee Assistance Project (the lead plaintiff in the case). The plaintiffs note that the president stated clearly during and after the campaign his goal of banning Muslims from coming to the U.S. Those utterances, the plaintiffs contend, provide the court with evidence to conclude that the executive order violates the Establishment clause, which prohibits the government from favoring one religion over another.
Mandel does not control the outcome in the travel ban appeal, say the plaintiffs. Instead courts must determine whether the law has a so-called secular purpose. In support of their argument, the plaintiffs cite a series of rulings, including a 1993 decision by the Supreme Court in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah.
In that case, a church and its congregants practiced Santeria, which for them included ritual sacrifice of chickens, pigeons, doves, ducks, guinea pigs, goats, sheep and turtles. Prompted by the concerns of residents who did not want a Santeria church in their midst, the City of Hialeah adopted an ordinance that prohibited animal sacrifice within the municipality.
The church accused the city of aiming to exclude it in violation of the Free Exercise clause of the First Amendment. Though city officials noted that the words of the ordinance said nothing about Santeria, the analysis doesn’t end there, said the court.
Motive matters when analyzing government action that may violate the First Amendment’s guarantees of religious freedom. “Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality,” Justice Kennedy wrote for the majority. “The Free Exercise clause protects against governmental hostility which is masked, as well as overt.”
The plaintiffs in the travel ban appeal contend that the court can infer the administration’s motive from a series of statements by the president that expressed either an intent to ban Muslims from entering the country or otherwise conveying anti-Muslim sentiments.
An example: Before signing the first travel ban, which was later overturned, Trump said, “This is the protection of the nation from foreign terrorist entry into the United States. We all know what that means.” On Monday, after a reporter asked the White House press secretary why the president’s campaign website still mentioned “preventing Muslim immigration,” the online page was erased.
“We think that the ordinary Establishment clause cases apply,” Omar Jadwat, who argued on behalf of the plaintiffs, told the judges on Monday. “There is no reason to extend Mandel to this context. I think what the court is to do is to determine whether [the order] was issued in bad faith by looking at the evidence in this case.”
Jadwat cited three categories of evidence: the order itself, Trump’s statements and facts in the record that are not statements, including an analysis by the intelligence arm of the Department of Homeland Security that the executive order would not reduce terrorism in the U.S.
A three-judge panel of the Ninth Circuit is slated to hear arguments this Monday in the government’s appeal of an order by a judge in Hawaii that blocked enforcement of the travel ban nationwide.