Bad Faith? What’s That?

The Justice Department’s attempts to wish away Donald Trump’s Muslim ban statements are not working.

Protesters in New York City march in Times Square on Feb. 19 in solidarity with American Muslims—and against the travel ban ordered by President Donald Trump.

Timothy A. Clary/AFP/Getty Images

On Monday, a three-judge panel of the 9th U.S. Circuit Court of Appeals heard the State of Hawaii, et al. v. Trump. You may have heard of this particular “v. Trump” case because it was the challenge that ended up blocking key portions of the president’s second attempted travel ban from going into effect in March.

This is a different proceeding from the 9th Circuit decision in February, in which a different three-judge panel refused to reverse a Seattle judge’s injunction of the first attempted travel ban. After that decision, the Trump administration cooked up a narrower executive order, which resolved some of the problems of the initial effort but included a 90-day ban on all foreign nationals from six Muslim-majority countries and a 120-day ban on all refugees from Syria. Last week, a 13-judge panel of the 4th U.S. Circuit Court of Appeals heard argument over a Maryland judge’s decision blocking the order after it had already been blocked by District Judge Derrick Watson in this case. That’s two injunctions blocking the administration’s second order on appeal to a gobsmacking 16 appellate judges in a single week.

The three judges who heard the Hawaii case in front of a live televised audience on Monday—Judges Ronald Gould, Richard Paez, and Michael Daly Hawkins—were all Clinton appointees. They all also seemed deeply skeptical of the DOJ’s defense of the president’s order, which has been popularly known as his “Muslim ban,” although they did seem to be searching for ways to narrow the sweeping injunction they must now decide.

Looming over the entire argument yet again were Donald Trump’s endlessly damaging statements, tweets, and threats to the legitimacy of the 9th Circuit itself. As such, the Justice Department was forced to do battle not simply with the panel, the possibility that the executive order violates the Establishment Clause of the First Amendment as well as the Equal Protection Clause of the 14th Amendment, and with the angry state of Hawaii, but also with Donald Trump’s unwavering belief that nothing he says will matter to a court.

Acting Solicitor General Jeffrey Wall argued early on that President Trump has broad statutory authority to do what he deems necessary in an immigration context in order to keep America safe. Hawkins just as quickly pressed him on what the correct standard should be to determine whether Trump’s words and tweets reflect anti-Islam animus in the context of this ban. Wall insisted that it would be “remarkable” to look behind the text of the executive order as written and to find bad faith on the part of the president in what he characterized as an extremely narrow order, and a mere extension of Obama-era vetting.

Paez pressed Wall on whether it could truly be considered a narrow order if it affected millions of people. Wall was insistent that this ban has nothing to do with Muslims, doesn’t disparage Muslims, and does not discriminate on the basis of religion. Again, though, Trump’s previous public statements to the exact opposite effect were always going to be in the ether. You either minimize them, as Wall did, or move them round and round in your head, hoping to find a place to park them, as the panel seemed to try to do.

So what did the judges think we should do with an unrepentant tweeter? Hawkins called the president’s anti-Muslim statements “profound.” Neal Katyal, who was arguing on behalf of Hawaii, insisted these statements weren’t just Trumpian elevator music: “This is a repeated pattern of the president.” These judges must now decide whether they know what they know about what the president has said on this subject—and whether what they know should matter.

Pressed on what evidence of bad faith could possibly be considered sufficient to show that the president was discriminating, Wall offered this relatively narrow interpretation:

You would need official capacity statements—that were unequivocal, post-inauguration—to show the president and members of his Cabinet were acting in bad faith and I just don’t think they can make that kind of a remarkable showing here.

Gould later asked how the panel could possibly determine whether the national security interests claimed by the administration in adopting the executive order are pretextual, and Wall argued that this kind of second-guessing was precisely why courts are poorly situated to make such determinations about bad faith. Hawkins, meanwhile, wondered if Trump has ever renounced his noxious anti-Muslim campaign statements. Wall insisted that Trump has narrowed and clarified his position since the election. The argument goes that he is not targeting Muslims but people from “territories that were dangerous.”

In the most dramatic exchanges of the first half of the argument, Paez turned to Wall and asked this: “Would Korematsu pass muster under your test today?” He was referring to the case in which the Supreme Court signed off on the order interning Japanese nationals after Pearl Harbor. Wall looked appalled at the suggestion, but the comparison seemed apt. “This isn’t Korematsu,” he said. “I wouldn’t be standing here defending it if it were.” But when Paez pointed out that the text of the executive order in Korematsu was also neutral on its face, making no references explicitly to Japanese Americans, Wall responded: “I am not familiar with the ins and outs of that order.” Pretending Korematsu away is almost as difficult as pretending Trump away. Props to Wall for the effort.

The judges were clearly less aggressive in questioning the petitioner’s advocate. Katyal contended that much of the present case was resolved by the first travel ban argument in Washington v. Trump, but Hawkins and Paez responded that he was reading the first travel ban ruling too broadly. Paez suggested that perhaps the courts shouldn’t put too much stock in Trump statements made during a highly contested election campaign. Katyal proceeded to simply read the tweets and statements the president has made about the ban, the courts, and the 9th Circuit since the executive order was enacted. He also critically noted the president’s campaign promise to effectuate a “complete and total shutdown on Muslims entering the country.” As Katyal then added, that promise was still live on Trump’s campaign site until it “just happened to disappear just moments before the 4th Circuit argument last week.” We should probably pretend that away as well, however.

Katyal was also quick and clever to argue that the judges aren’t being called upon to “psychoanalyze” the president, they need only read the plain meaning of his words. “You needn’t be Sigmund Freud to get into his head,” he said. Trump’s recent statements that he plans to be “helping the Christians big league” if they want to emigrate from majority-Muslim countries should be enough to demonstrate bad faith.

The petitioners are arguing that what the Justice Department is asking for is sweeping power to, as Katyal put it, “take a magic eraser to the U.S. Code” on any matter relating to immigration. Hawkins offered that the DOJ is merely asking for the courts to be deferential to the president of the United States on an issue where such deference is normal. Katyal replied that this was the “million-dollar question” in this case: Would such deference be normal in the face of overwhelming evidence that this is a religion-based ban? The Founding Fathers were terrified that one could establish a national religion, and one amicus brief after another reflected a sweeping consensus—from a wide swath of American religious groups, states, and independent actors—that the ban is born of attempted anti-Muslim discrimination.

Katyal concluded by pointing out that this case was being argued in the same court that once heard and rejected the claims of Gordon Hirabayashi, an American citizen interned during World War II pursuant to that same executive order from Korematsu. Quoting Justice Robert Jackson on the subject of the First Amendment, Katyal cautioned that the implications of giving Trump unchecked powers were dire: “Our Constitution was designed to avoid these ends by avoiding these beginnings.” Katyal’s conclusion was bracing: “Our Constitution and laws are better than this. … Our founders wanted America to be a beacon on our coast, and that beacon at the end of the day is not the quality of our sports teams, or the quality of our soil, that beacon ultimately is the majestic Article III and the grand contours of the First Amendment.”

Wall offered in his rebuttal that the president is owed a “presumption of regularity” and that the United States is indeed a beacon, but that it’s a beacon because of the rule of law.

Somebody ought to tell the president.