Fourth Circuit: Trump's anti-Muslim rhetoric -- and tweets -- make his Travel Ban 3.0 unconstitutional

“A federal court basically ruled Donald Trump is a bigot for legal purposes,” wrote lefty Benjy Sarlin this morning of the ruling. Read the majority opinion and you’ll see that he’s not exaggerating — much. The Fourth Circuit did suggest a way in which Trump could remove the cloud of discriminatory purpose that hangs over his travel ban: He could just shut the fark up already and stop saying things that suggest the ban is aimed at Muslims specifically, not dangerous foreigners generally. But he can’t shut up. And so, the court reasoned, it doesn’t matter if the ban is facially neutral on religion by barring citizens from a pair of non-Muslim countries (Venezuela and North Korea). Trump’s rhetoric shows that’s just a fig leaf for keeping Muslims out.

Real quick, let me quote myself from November after Trump very stupidly retweeted a pair of anti-Muslim videos posted by a far-right British group.

The argument used by multiple judges thus far in striking down his travel ban is that it’s been improperly motivated by religious discrimination against Muslims. Trump has tried to clean that up by writing and rewriting the ban to exclude certain Muslim countries and to include a few non-Muslim ones, and the DOJ has noted in court that Trump’s most inflammatory statements about Muslims came before he took office. Can’t block a president’s policy for what he said as a private citizen, right? Well, here he is as president retweeting content from Jayda Fransen. How do you think that’ll play with the next judge who assesses discriminatory purpose?

Here’s our answer from the Fourth Circuit:

The President also continued to express what any reasonable observer could view as general anti-Muslim bias. In an August 17, 2017, tweet, the President endorsed an apocryphal story involving General Pershing and a purported massacre of Muslims with bullets dipped in a pig’s blood, advising people to “[s]tudy what General Pershing . . . did to terrorists when caught. There was no more Radical Islamic Terror for 35 years!” J.A. 806. On November 29, 2017, President Trump retweeted three disturbing anti-Muslim videos entitled: “Muslim Destroys a Statue of Virgin Mary!” “Islamist mob pushes teenage boy off roof and beats him to death!” and “Muslim migrant beats up Dutch boy on crutches!” J.A. 1497–99. The three videos were originally tweeted by an extremist political party whose mission is to oppose “all alien and destructive politic or religious doctrines, including . . . Islam.” J.A. 1508. When asked about the three videos, President Trump’s deputy press secretary Raj Shah responded by saying that the “President has been talking about these security issues for years now, from the campaign trail to the White House” and “the President has addressed these issues with the travel order that he issued earlier this year and the companion proclamation.” J.A. 1502–03. The Government does not—and, indeed, cannot—dispute that the President made these statements. Instead, it argues that the “statements that occurred after the issuance of EO-2 do not reflect any religious animus” but reflect “the compelling secular goal of protecting national security from an amply-documented present threat.” First Br. 52. We cannot agree.

Rather, an objective observer could conclude that the President’s repeated statements convey the primary purpose of the Proclamation—to exclude Muslims from the United States. In fact, it is hard to imagine how an objective observer could come to any other conclusion when the President’s own deputy press secretary made this connection express: he explained that President Trump tweets extremist anti-Muslim videos as part of his broader concerns about “security,” which he has “addressed . . . with . . . the
proclamation.” J.A. 1502–03.

The DOJ made a smart point in its brief anticipating that claim: Does the court mean to say that there’s nothing the president can do now to write a constitutional travel ban that includes Muslim countries? Because he’s said X,Y, and Z in the past about Muslims, anything he signs in the interests of national security to block visitors from a few Muslim nations that contain radical elements will be struck down? That would be a hard case for the court to make. If an Iranian terror cell blew up a passenger jet tomorrow, good luck telling the American public that Trump can’t impose special admission requirements for Iranians because he once tweeted the story about Pershing in the Philippines.

So the court gave him some daylight. Yes, they concede, Trump could regain the benefit of the doubt on whether his purpose with the ban is discriminatory or not. But since he seems uninterested in doing so, why should they give it to him?

The Government correctly points out that the President’s past actions cannot “forever taint” his future actions. See McCreary, 545 U.S. at 874; First Br. 18. President Trump could have removed the taint of his prior troubling statements; for a start he could have ceased publicly disparaging Muslims. But “an implausible claim that governmental purpose has changed should not carry the day in a court of law any more than in a head with common sense.” McCreary, 545 U.S. at 874. In fact, instead of taking any actions to cure the “taint” that we found infected EO-2, President Trump continued to disparage Muslims and the Islamic faith.

As for the fact that travel ban 3.0 includes non-Muslim countries like Venezuela and North Korea, the court shrugged that off. Adding secular texts to a monument to the Ten Commandments on state grounds doesn’t magically solve the Establishment Clause problem there, says the majority, in which case why should banning a few non-Muslim countries solve the problem with Trump’s bias against Muslims? But more to the point, Trump himself has said that he prefers his original Muslim-only travel ban to the later iterations. Remember this from last June?

A smart thing to do when a court’s struck down your original order for discrimination is to sabotage your new “nondiscriminatory” order by claiming you liked the original one better.

But none of this really matters. SCOTUS will have the final say on Travel Ban 3.0, and has in fact already allowed it to take effect while the appellate process plays out. I don’t think Trump much cares what happens either at this point beyond notching a glorious win over all of the lower courts that have wrist-slapped him on this issue. The original travel ban, you’ll recall, was based on the idea that the United States faced an immediate crisis in which dangerous foreigners were leaking into the country because U.S. border controls weren’t tight enough to vet them properly before entering. It called for a ban of 90 days while the new Trump administration developed better vetting procedures. Those 90 days came and went long ago, and Trump has in fact instituted some “extreme vetting” procedures. Even if SCOTUS strikes down an outright ban on some countries (imagine if Gorsuch votes with the liberals!) POTUS will still have the tighter border controls he wants. Just not an out-and-out block on certain nations.

Exit question: How upset can Trump be, really, at a group of unelected judges complaining, “He won’t stop saying politically incorrect things about Muslims!”? That was practically his campaign slogan.