To be clear, this fight in court over Donald Trump’s Muslim ban is not an ordinary disagreement over immigration policy ― racism and discrimination are on trial, and concerned Americans are fighting back against efforts to make these the official policies of the United States. The intent behind the Muslim ban is becoming a central issue in ongoing lawsuits, precisely because a racist intent taints the law itself as racist ― and unconstitutional.
Yesterday, thirteen judges on the U.S. Court of Appeals for the Fourth Circuit considered whether to uphold a lower court decision from the Maryland U.S. District Court finding that the revised executive order likely violates First Amendment prohibitions on government-sanctioned establishment of religion through condemnation of Islam.
Facing intense questioning, acting Solicitor General Jeffrey B. Wall conceded that overt discrimination against a particular religious group would likely be unconstitutional, but insisted that the text of the executive order is facially neutral. He urged the thirteen-member panel of judges to not give Trump’s prior statements about Muslims “the least charitable interpretation.”
Even if the order was found to be neutral on its face, “it has a disparate impact on Muslims” said Judge Pamela A. Harris. She also expressed skepticism about Wall’s position. “Clearly the law has a disparate impact on Muslims,” Judge Harris said. “In what sense is it neutral?”
Judge Barbara Milano Keenan expressed concern over the broad nature of the order, especially in terms of the targeted six Muslim-majority countries. “You’re talking about 82 million people,” she said. “There has to be something about those people’s nationality that renders them suspect.”
Judge Keenan also repeatedly voiced concerns about the link between terrorism and nationals of the six listed countries. “What is it about their nationality,” she asked, that “renders them suspect or renders them dangerous? I don’t see anything in the text that does that.”
At several points throughout the hearing Judges Robert B. King, James A. Wynn Jr. and Henry F. Floyd referred to then candidate Trump’s prior statements on the campaign trail in the months leading up to the general election.
“[Trump has] never repudiated what he said about Muslims,” Judge King said.
Pushing back, Judge Paul V. Niemeyer questioned how far back the judiciary could reach when analyzing Trump’s intent. “Can we look at his college speeches?” he asked. “How about his speeches to businessmen 20 years ago?”
A number of judges questioned Wall about President Trump’s now infamous press release calling for a “total and complete shutdown of Muslims entering the United States,” which had been posted on Trump’s website since December of 2015, but appeared to have been scrubbed from the site moments before the hearing in Richmond got underway.
“So it doesn’t matter what the president says?” asked Judge Diana Gribbon Motz. “It only matters what the president does in his official capacity?”
Overall, judges seemed to express a great deal of skepticism that President Trump’s revised travel ban was motivated by a legitimate national security concern rather than the president attempting to fulfill his campaign promise to supporters that he would ban Muslims from the United States.
Wall asked the judges to give great deference to the president’s judgment in matters of national security. But Judge Keenan seemed unconvinced that the intent behind the executive order could not be considered by the court. She said Wall’s position could mean that a presidential candidate could, hypothetically, call for a Muslim ban every day for an entire year, sign a facially neutral executive order that accomplished that goal, and argue to the courts that they must ignore whether targeting Muslims was the real intent behind the order. The hypothetical was unintentionally similar to the case before the court.
In a clear indication that the judges recognize the urgency of this case as well as the legal and political significance, the court in the Fourth Circuit decided to forego the initial three-judge panel and skipped straight to the “en banc” or full-court panel of fifteen judges – 2 of whom recused themselves before the hearing.
Normally, cases are argued before a three-judge panel as the litigants’ last opportunity to be heard. Very rarely will the en banc panel re-hear a case that has been previously heard by the three-judge panel.
In fact, the last time the Fourth Circuit skipped the three-judge panel and went directly to the en banc hearing was in 1998 when it considered a challenge to a Virginia abortion law, which sought to require minors to notify their parents before getting an abortion.
President Barack Obama drastically altered the makeup of the conservative-leaning Fourth Circuit, appointing six of the nine Democratic appointees to the bench. Five judges were appointed by Republicans. Chief Judge Roger Gregory was appointed by President Bill Clinton in a recess appointment and was later reappointed by President George W. Bush.
While intent may be rejected as a central factor by some judges, its relevance is indisputable in the real world. If Trump is allowed to put racism into law, America’s own history unfortunately makes it quite clear what that can lead to. What started with a Muslim ban can bring back much darker chapters of America’s past to the present.
Make no mistake ― it is not just Trump’s Muslim ban that is being challenged in court. It’s the very idea that racism can be the foundation for the laws that guide America.