On Monday, in Richmond, Virginia, before a thirteen-judge panel of the Fourth Circuit Court of Appeals, the deputy Solicitor General, Jeffrey Wall, was defending President Donald Trump’s motives with regard to the Administration’s latest executive-order travel ban, when Judge Henry Floyd mentioned statements by Sean Spicer, the White House press secretary. Reading from a brief filed by the lead plaintiff in the case, the International Refugee Assistance Project, Floyd said that, after the executive order was signed, “Sean Spicer said, ‘the principles remain the same!’ ” The judge continued with a litany of citations: “President Trump, statement concurrent with that time, ‘You know my plans’; Spicer: ‘President Trump yesterday continued to deliver on campaign promises.’ ” The quotes were part of IRAP’s presentation of the genealogy of the current order, which temporarily bans all refugees and people from six predominantly Muslim nations from entering the United States. The order, issued on March 6th, replaced an even broader one, issued on January 27th, which was blocked by several courts. And that initial order, according to IRAP, had served as a proxy for, or a first installment of, Trump’s December, 2015, campaign pledge to institute “a complete and total shutdown of Muslims entering the United States until our country’s representatives can figure out what the hell is going on.”
The discriminatory genesis of the latest order seemed obvious not only to the plaintiffs but also to the district-court judges who had blocked it in Maryland (which is in the Fourth Circuit) and Hawaii (in the Ninth). It posed a problem for the government because a ban directed specifically at Muslims raised all sorts of constitutional issues—the Establishment Clause, for example. Wall, though, had made the case that the talk of a Muslim ban, along with the rest of Trump’s speeches and tweets, was not something that the judges should look at. Instead, they should confine themselves to examining the text of the order to determine if it was “facially legitimate”—if it was written in the right form, properly cited laws, and offered a plausible rationale, such as fighting terrorism. If it was, then the ban should stand. The court had no right to ask about any prejudicial pretexts. Floyd, for one, wasn’t sure.
“Is there anything other than willful blindness that would prevent us from getting behind those statements?” he asked.
“Yes, Judge Floyd,” Wall replied. “Respect for the head of a coördinate branch and a presumption that officials act legally, which is to say the presumption of regularity.”
Asking for a presumption of regularity, or legality, or just basic honesty, is asking a lot, when it comes to the Trump Administration. In hearings on the first travel ban, judges on the Ninth Circuit openly wondered about what to do if the President lied about an order’s purpose or about how it would be used, and a number of Fourth Circuit judges also raised those questions. (The Ninth Circuit will hear arguments on the second order next week.) And they had reason to believe that it is their job to do so. One of the Supreme Court precedents at play in the case is Kerry v. Din, in which Justice Anthony Kennedy, in a controlling concurrence, wrote that, although the courts generally ought to take the executive branch’s immigration decisions at face value, they could question the premise and the facts in certain cases, when there was “an affirmative showing of bad faith.” Or, as one judge reminded Wall, the order had to be “facially legitimate and bona fide”—in good faith. And Donald Trump has a way of putting faith to the test.
“I think the President said something about being Christian on a TV program,” Judge Robert King said to Wall. When Wall tried to argue that what a Presidential candidate said should be given very different weight than what a President said, King pointed out that “all this stuff was reaffirmed after the election.” Even though Trump shifted his vocabulary, he hadn’t been particularly subtle, King noted: “He explained that he wasn’t going to call it religion anymore. He was going to call it nationality.” (“Territories,” another judge corrected him.) King also cited the former New York mayor Rudolph Giuliani, who has spoken about advising Trump on ways to word a Muslim ban in order to get it through the courts. Trump, King continued, “has never repudiated what he said about the Muslim ban. It’s still on his Web site! The district court found it on his campaign Web site today.” (The text has since been removed from its original spot, though as late as this morning the page, with its telling URL—“donald-j.-trump-statement-on-preventing-muslim-immigration”—lingered. By the afternoon, it came up as “page not found.”)
Judge Barbara Keenan pressed Wall on his logic. If a candidate had, every single day of the campaign, promised to keep Muslims out of the country, and then on his “very first day” in office issued an order that had the effect of keeping Muslims out, she said, “You’re saying that none of those statements could be considered?” Not under the legal theory he preferred, Wall offered, in an answer that mostly dodged the question. Keenan also raised the issue of how Trump’s boasting and defensiveness might affect the question of good faith. The White House included a passage in the second order that stated that the first one had been totally fine, and that there hadn’t been any need to change it. In effect, the Administration was rolling its eyes at a bunch of “so-called judges.” Since there obviously were problems with the first order, Keenan wondered if the assertion that there weren’t might, in and of itself, “undermine” the second one. Wall didn’t think so. “Any President” faced with decisions as “hostile” as those thrown at Trump would have reacted the same way, he said.
Wall’s answers seemed to bother some of the judges. “To determine bad faith, don’t we get to consider what was actually said here, and said very explicitly?” Judge James Wynn asked. “Even after the second order—there was sort of wink and nod that, ‘Well, you know what I mean.’ ” (Trump had held up the order at the signing ceremony and, after reading its title—“Protecting the Nation from Foreign Terrorist Entry into the United States,” had said, “We all know what that means.”) Judge Wynn also raised a distinctly Trumpian problem: Which of the President’s many contradictory statements was the court to believe? Wall answered, in part, by saying that in figuring out what Trump meant, the judges ought to take the statements “in the light most favorable to the executive.”
When the questioning turned to Omar Jadwat, the lawyer arguing against the ban, Judge Paul Niemeyer asked, with some sarcasm, if the court would have to look back to a President’s “college speeches” to determine his good faith. Judge Dennis Shedd, questioning how long the Trump “taint” would last, asked, to laughter in the court, “What if he said sorry every day for a year? Would that do it for you?” Jadwat, toward the end of his time—too much of which he allowed to be used up in a muddled discussion of the legal doctrine of standing—offered this hypothetical: What if the United States elected a candidate who, on the trail, had spoken about the dangers of Jews and the need to keep them out of America and then, in an order that cited some national-security pretext, had halted all immigration from Israel? That question hung in the air. But Jadwat was less effective in explaining why the objections to this order, or to any ban that targeted Muslims, might be a problem independent of Donald Trump. (For one thing, our immigration laws are not supposed to discriminate in a wholesale way.) He got somewhat caught in circles when asked if he would be fine with the order if a President other than Trump issued it, suggesting that he might be. He also emphasized, in a way that seemed unsatisfying to some of the judges, the unprecedented nature of the order. Unprecedented does not mean unconstitutional.
And is it unprecedented? Some of the most interesting, and least fully explored, questions in the oral arguments came from Judge Wynn, who asked about examples of similar Presidential actions in American history. There wasn’t a clear answer in the hearing, but there is in our past. Our statute books have been littered with laws that have racist, discriminatory, and segregationist aims that are disguised in other language—a literacy test for voting, a zoning law, a ban on “indecency.” A danger of Donald Trump is not that he is an entirely new element in the American story but that he fits right into its worst scenes. He’s not an outlier but a reminder of the need for constant vigilance, because sometimes Americans do things that we are later ashamed of having done. Wynn revisited this idea in questioning Jadwat, noting that it wasn’t so much about who the President was as what he was trying to do, and added, “This is not the first time in history that this has been tried.” A few minutes later, as the questioning was wrapping up with a discussion of the President’s national-security obligations, and the criticism he would endure in the case of a terrorist attack, Judge Shedd asked, “A good place to end?”
Judge Wynn said, “It’s also a good place to consider, if we follow that line of reasoning, would we think differently about Korematsu now?” There was a brief silence in the courtroom. Korematsu v. United States was the case in which the Supreme Court upheld the executive order by which Franklin Roosevelt, a man very unlike Trump, detained Japanese-Americans during the Second World War. As Jadwat began to answer, another judge, Albert Diaz, interrupted and asked Jadwat to explain, again, his hypothetical about keeping Jews out of America.