At Wednesday’s Supreme Court arguments in Trump v. Hawaii, Solicitor General Noel Francisco closed with what he seemed to think was his strongest point. Francisco said that “the president has made crystal clear on Sept. 25 that he had no intention of imposing the Muslim ban” he’d promised repeatedly during his presidential campaign. Francisco was responding to opposing counsel Neal Katyal’s acknowledgment—in response to questioning by Chief Justice John Roberts—that if the president had disavowed his invidious “Muslim ban” rhetoric before imposing the ban, the plaintiffs would have dropped their Establishment Clause objections to it.* That Trump had done this, Francisco argued, meant that the third attempt at a travel ban issued by the president on Sept. 24 had been “cured” of any potential religious animus that might otherwise make it unconstitutional under the First Amendment, by Katyal’s own terms.
Here’s the problem: No such thing seems to have happened on Sept. 25. In fact, Trump has repeatedly expressed plans to describe the ban differently as part of a pretextual effort to accomplish his actual, stated goal of a Muslim ban. Time and again, Trump and the White House have said the opposite of what Francisco represented to the court on Wednesday.
Neither of the government’s briefs submitted to the court mention the president making any statement to the effect Francisco claimed on Sept. 25. Nor have I been able to identify from other sources any indications that the president made a statement on that date along the lines suggested by the solicitor general. Trump said other things when he issued the proclamation on Sept. 24, but nothing about it not being a Muslim ban. On the same day, he told a press gaggle that as far as the ban was concerned, “the tougher, the better.” Three days later, he told another gaggle, “As far as the travel ban is concerned, whatever it is, I want the toughest travel ban you can have.” Again, none of these statements suggest in any way that Trump did not intend for his travel ban to be a version of his Muslim ban.
This is all important because it speaks to a bigger question at the heart of the First Amendment issues at stake in this case: Has Trump’s White House disavowed Trump’s promise to deliver a Muslim ban, or has it embraced that promise? The answer, through all three attempts now made by the president, is that this White House has consistently and affirmatively embraced Trump’s fundamental project of delivering on his campaign promise of a “shutdown of Muslims entering the United States”—even if incompletely, at least for now.
Look at Trump’s first travel ban. Even as Trump signed it and read aloud its deliberately bureaucratic title of “Protecting the Nation From Foreign Terrorist Entry Into the United States,” Trump looked up at the cameras and said, “We all know what that means.” And, of course, we all did.
Look at Trump’s second travel ban. The day after it was issued, then–White House press secretary Sean Spicer told reporters that, with the ban’s issuance, President Trump “continue[d] to deliver on … his most significant campaign promises.” The aforementioned “total and complete shutdown of Muslims entering the United States” was perhaps Trump’s single most “significant” promise in this area.
Most importantly, look at Trump’s third travel ban, the one that reached the Supreme Court this week. After its issuance, President Trump retweeted three incendiary anti-Muslim videos that had been posted to Twitter by a far-right British politician. Trump’s deputy press secretary, Raj Shah, was asked by reporters to explain whether the president thinks “that Muslims are a threat to the U.S.?” His answer? “The president has addressed these issues with the travel order that he issued earlier this year, and the companion proclamation.”
With this response, Trump’s White House made very clear what the first, and the second, and indeed the third travel ban remain all about: taking anti-Muslim animus and instantiating it as U.S. policy. That—the disfavoring of a particular religion—is exactly what the Constitution’s First Amendment forbids.
Here’s the most remarkable part. After Wednesday’s Supreme Court argument, a reporter noted to White House press secretary Sarah Huckabee Sanders that “the president has never actually disavowed” his campaign proposal of a Muslim ban, and asked, “Does the White House disavow that campaign proposal, or does it stand by it?” This was the clearest of opportunities to vindicate the solicitor general’s claim to the Supreme Court. It was the simplest of questions, susceptible to a “Yes” or “No” answer.
And yet Sanders refused to directly answer the question with a “Yes” or “No.” Nothing even remotely close.
Even at this late date, this White House simply couldn’t bring itself to say the simple words that, had they been uttered earlier, could have insulated Trump’s travel ban from some of its legal infirmities.
There’s a reason for that. This White House, and ultimately this president, stand behind that campaign promise. It’s one spawned by religious animus, and it’s one that continues to infect the project designed to deliver on it—contrary to the guarantees of the First Amendment.
It’s now up to the Supreme Court to decide whether to accept a disavowal that the president didn’t make on Sept. 25 and again didn’t make on Wednesday, or instead to see Trump’s actions for what they are: the Muslim ban he’s repeatedly promised.
Correction, April 27, 2018: Due to an editing error, this article originally misidentified the Establishment Clause of the Constitution as the Free Exercise Clause.
One more thing
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