Critics of his policy have called it a "Muslim ban," a label the White House disputes
There are precedents for the courts considering public statements when considering a law
Donald Trump and his surrogates have embraced a style that eschews what they deride as political correctness, making for a long record of unguarded public statements.
And that could come back to haunt the President in court.
“Taking Trump seriously, not literally” has become something of a mantra in understanding the brash businessman since the phrase was coined by writer Salena Zito, now a CNN contributor.
But as his controversial executive order banning individuals from seven majority-Muslim countries is challenged in the courts, judges will be confronted with his and his surrogates’ record of statements – and could take them both literally and seriously.
Legal challenges to the order point to a series of statements about Trump’s intent to ban Muslims from entering the US as evidence that the move was in fact designed with such a goal in mind – and constitutional law experts agree there is a precedent for the courts taking that argument to heart.
In a case currently before the 9th Circuit Court of Appeals, lawyers for the states of Washington and Minnesota cite previous court holdings on religious discrimination that it is “‘the duty of the courts to distinguish a sham secular purpose from a sincere one.’”
“Here, the sham of a secular purpose is exposed by both the language of the order and defendants’ expressions of anti-Muslim intent,” the lawyers wrote.
Constitutional scholars agree that those statements made by Trump and his surrogates could be used in proceedings.
“Those statements are definitely relevant, because there’s a longstanding doctrine that there can be laws or executive orders that on their face don’t discriminative on the basis of race or religion but that is their motive – and if that is their motive, they can be struck down,” said Ilya Somin, a George Mason University law professor.
“Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on,” Trump declared in December 2015.
The White House has insisted that labeling the new action as a “Muslim ban” is inappropriate. They point to statements from Trump later in the campaign that he wanted “extreme vetting” of immigrants and the fact that it’s a temporary ban and only affects seven countries designated under the Obama administration as bearing extra scrutiny.
“He’s also made very clear that this is not a Muslim ban, it’s not a travel ban,” White House press secretary Sean Spicer said in the daily briefing on Tuesday. “It’s a vetting system to keep America safe.”
DHS chief defends rollout of executive order
“This is not – I repeat – not a ban on Muslims,” Homeland Security Secretary John Kelly repeated in a news conference Tuesday.
Multiple lawsuits challenging the executive order are using statements from Trump and others as evidence the intent of the policy is unconstitutional. A lawsuit from the Counsel on American Islamic Relations challenges the policy on the grounds that it unconstitutionally singles out Muslims, and New York’s attorney general has joined a federal lawsuit in his state making similar claims among broader constitutional arguments.
Those who insist the order is intended as a Muslim ban point to comments made by former New York Mayor Rudy Giuliani to Fox News last week, in which he described helping Trump develop the order.
“I’ll tell you the whole history of it,” Giuliani said, as transcribed by The Washington Post. “So when (Trump) 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.’”
Giuliani said that he pulled together a group that helped conceptualize the order. “We focused on, instead of religion, danger – the areas of the world that create danger for us,” he added. “Which is a factual basis, not a religious basis. Perfectly legal, perfectly sensible.”
Critics of the order also point to comments Trump himself made to Christian Broadcasting Network’s David Brody last week that the policy would prioritize persecuted Christians in countries where Muslims would otherwise be blocked by the ban.
“As it relates to persecuted Christians, do you see them as kind of a priority here?” Brody asked, to which Trump said, “Yes.”
“They’ve been horribly treated,” Trump said. “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 and the reason that was so unfair, everybody was persecuted in all fairness, but they were chopping off the heads of everybody but more so the Christians. And I thought it was very, very unfair. So we are going to help them.”
The order includes a halt on refugees coming into the US from Syria, though it allows for special preference to religious minorities fleeing persecution.
Critics say those statements make clear that the order was guided by anti-Muslim sentiment.
“The vulgar animosity that accounts for the existence of Executive Order entitled ‘Protecting the Nation from Terrorist Attacks by Foreign Nationals’ … is plain to see, and the absence of the words Islam or Muslim does nothing to obscure it,” wrote CAIR’s lawyers.
Intentions can matter
Constitutional law experts say, in theory, the statements could be difficult for the government to defend. Courts have long held that records about the intention of laws can be used to invalidate statutes that otherwise appear to be neutral.
The classic example is literacy tests as a condition of voting. In Guinn v. US, the Supreme Court held an Oklahoma law passed in 1910 that required literacy to vote, unless it could shown an individual’s grandfather was allowed to vote, was unconstitutional because the intent was to exclude African-Americans, the vast majority of whose grandfathers would have been unable to vote.
In another case, Edwards v. Aguillard, the Supreme Court ruled in 1987 that a Louisiana law requiring creationism to be taught in schools alongside evolution was unconstitutionally designed to promote religion despite the law claiming an objective of academic freedom. To reach its conclusion, the court analyzed the legislative history of the bill, including hearings conducted on its crafting.
But while experts agree the public record helps the groups challenging the order, they still face long odds.
“Certainly these comments make defending the orders more difficult for the government than they otherwise would be,” said Michael Dorf, a law professor at Cornell University. “Whether it’s enough to ensure victory for the plaintiffs is not yet clear.”
Temple University law professor Peter Spiro wrote an op-ed when Trump first proposed a Muslim ban in 2015 that said while he disagrees with the idea, it was constitutional. He said that’s probably still true of Trump’s actual executive order as well, especially given the arguments that the countries affected are limited in number.
But he acknowledged that the record of comments weaken the government’s case – and he suspects that they could be introduced alongside evidence that the order isn’t tailored to a clear security risk and its haphazard rollout to strengthen constitutional challenges.
“It’s not too difficult to portray the policy as just being flat-out irrational, and then you can pull in the Muslim ban rhetoric by way of adding to that argument that it’s irrational policy and that then has constitutional questions,” Spiro said. “it does add to the atmospherics here, which put this law in sort of a really bad odor, and there are lots of elements of the story that cast doubt on the efficacy of this law, the way in which it was adopted, whether it would advance any counter-terror objectives, it just all looks bad. And courts sort of assimilate those atmospherics, in ways that make them more inclined to apply greater scrutiny.”