Legal missteps on travel ban

President Trump’s revised travel ban is stuck in the same judicial purgatory as its predecessor. Despite any chatter about crooked judges illegally pursuing a political agenda, the real blame falls on some pretty stupid legal missteps.

Let’s start with the first mistake – signing an executive order without department level policy review. If you recall, the Trump White House pursued a lonely path without any input from the Justice Department, Homeland Security, Department of Defense or Secretary of State’s Office. Instead, these orders only claimed authority from the Obama administration’s characterization as the original seven nations as unreliable security partners.

This lack of in depth policy analysis is haunting the Trump administration. None of the seven nations on the original banned list could be fairly described as having exported terrorism to our shores. A draft report recently issued by Homeland Security finds the greater threat is from either “friendly” states (like Belgium, France, Germany or even Turkey), where terrorism is incubating, or failed states, e.g., Yemen, South Sudan or Libya. Courts may not be proper forums to debate the wisdom political choices, but laws still need to have some basis in fact.

A second mistake was letting the first Ninth Circuit Court of Appeals decision upholding the Seattle Judge’s injunction to stand. A unique political issue decided by one of our 11 circuit courts becomes binding on all lower courts until another circuit court reaches a contrary conclusion or the Supreme Court says otherwise. Right now, then, the original Ninth Circuit Court opinion is still the “law of the land.”

The third mistake was talking too much. Judicial interpretation of laws (or an executive order) will include a review of the history or context of their adoption. In the case of the Trump administration’s travel bans, they are empty legal vessels because there is no analysis supporting them.

The second executive order supposedly addresses the legal flaws of the first one. Hence, it does not apply to holders of green cards or valid visas, and Iraq has been dropped from the banned nations. Unfortunately, Stephen Miller made public statements that the second version is just a “tweak” of the first one, undermining its portrayal as a judicial lesson learned.

Two district court judges have addressed and banned this second order, one in Hawaii and one in Maryland. In both cases, these jurists examined its intent. Because there was no real genesis behind it, the Trump administration’s public statements and tweets from the presidential campaign and since, that a ban on “Muslims” was necessary to protect the nation dominated the thoughts of both judges.

These judges got to the same place with slightly different analysis of its constitutional warts. One key difference is that the Maryland opinion is that it provides an explanation of why judicial intervention is appropriate. While acknowledging both orders address a national security interest, where courts give great deference to presidential decisions, presidential authority is grounded in legislation. This is found in a 1954 statute, which President Trump says gives him almost unfettered discretion, and a 1965 statute, restricting such discretion with respect to using nation of origin as a basis for immigration and visa decisions. Presidential authority has limits and, according to District Court Judge Theodore D. Chuang, President Trump exceeded it by relying on national origin to make immigration policy, expressly forbidden by Congress in 1965.

What both judges agreed is that even the revised executive order violated the “Establishment Clause.” Government cannot discriminate based on religion, period, no exceptions to a discriminatory intent. Laws and policies cannot have a religious test and any impact on religion has to be merely an unfortunate tangent to a legitimate purpose. In other words, a facially neutral law can have an unconstitutional religious intent.

Which brings us back to the Trump administration’s “loose lips.” Running around the country making definitive statements about a Muslim ban or, in the case of Rudy Giuliani, that President Trump wanted to legally ban Muslims from entering the country, is unhelpful to the Trump administration’s legal defense.

Courts are permitted to “look behind” a law’s creation to determine if there is illegal intent. In the case of legislation, courts will look to committee reports when a law is passed; in the case of the Constitution, courts look to our Founding Fathers’ debate in public statements like the “Federalist Papers,” to discern their “original intent.” This is done all the time by judges, whether conservative or liberal, and what both judges have done with the travel ban. Both found troubling the Trump administration’s words seeking to ban Muslims from entering this country.

We are in uncharted legal territory. It is unprecedented to block a president’s policies because of speeches and tweets betraying an unconstitutional discriminatory intent. In short, President Trump has only himself to blame (not the judges) for the orders’ fate. He forgot the lesson of history that the judiciary stands as the final protector of our Constitution. Forgetting that history is why his travel ban has been blocked by the courts.

Warner Robins attorney Jim Rockefeller is the former chief assistant district attorney for Houston County and a former assistant state attorney in Miami. Owner of Rockefeller Law Center, he has been in private practice since 2000. Email your comments or confidential legal questions to ajr@rockefellerlawcenter.com.

HHJ News