By Bryce Watchell (PO ’21)
Throughout his presidential campaign and administration, President Trump’s agenda has frequently featured anti-Islam rhetoric, which manifested itself in a “Muslim ban,” later renamed a “travel ban.” Following his initial mention of the ban, lawyers, judges, and politicians from across the political spectrum rejected the proposal on the constitutional basis of religious freedom. However, the self-proclaimed motivation behind Trump’s ban is national security, and legal precedent gives the Executive branch generous power over actions taken in defense of the nation. Two versions of the ban have been struck down by lower courts, but a third has now made its way to the Supreme Court, where oral argument were heard on April 25th. The justices must now grapple with competing constitutional forces: religious liberty and tolerance engrained in the American identity, and the President’s power to use discretion in defending national security.
In February 2018, the fourth circuit court of appeals prioritized the former, saying Trump’s ban is “unconstitutionally tainted with animus toward Islam.” The establishment clause of the first amendment makes clear that one cannot be punished or penalized for their religion or lack thereof. All countries from which Trump hopes to ban travel are majority Muslim; coupled with his regular and crystal-clear statements advocating for a “Muslim ban” makes the travel ban look suspicious. At one point, he told supports at a rally (and via an official campaign statement that has since been scrubbed from all Trump-related sites) that he would call for “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what the hell is going on.”
In oral arguments, Justice Kennedy seemed receptive to the anti-ban lawyers’ claims that campaign rhetoric and administrative action should not be decoupled. “Suppose you have a local mayor and, as a candidate, he makes vituperative hateful statements, he’s elected, and on day two, he takes acts that are consistent with those hateful statements,” Kennedy said. “Whatever he said in the campaign is irrelevant?”
The government’s response to this challenge is that the transition from candidate to elected official marks a paradigm shift, and the legality of the new ban should be considered independent of Trump’s bully pulpit. As Trump said in early 2017, “To be clear, this is not a Muslim ban, as the media is falsely reporting. This is not about religion — this is about terror and keeping our country safe. There are over 40 different countries worldwide that are majority Muslim that are not affected by this order.” This forms the basis of the administration’s defense—that the ban is well within the President’s enshrined power.
The President, as Commander-in-chief, possess a wealth of powers relating to homeland security and foreign affairs. Some judges have argued that, despite his comments on Twitter, the courts are intervening too much in the president’s discretionary decisions regarding foreign policy. Ironically, if Trump had not publicized the ban as his central issue or campaigned so heavily on anti-Muslim sentiment, the executive order would almost certainly have been upheld, unquestioned.
But by Trump’s own admission, the genesis and underlying motivation for the travel ban is clearly somewhat steeped in religion, even if it’s also done in the name of national security in response to the alleged threat of Muslim immigrants. Evidence shows, however, that the threat is basically nonexistent, leading many to believe that Trump’s Muslim comments were him fear mongering for support in the election. Now, however, the government’s lawyers are trying to frame the case as a question about the president’s discretion over the issue, rather than whether that discretion is intelligent or well informed.
The Supreme Court has an unusual and unprecedented question in front of it: can a President’s tweets and campaign statements be used in a court of law to inform the motivation of his or her policy decisions? Twice now the courts have said yes, but slight variations in the third iteration of the ban may make it less likely to be struck down. Whatever the case, two things have been made evident by the ban and subsequent litigation: public statements and the psyche they set can impact legal rulings, and elections really do have consequences.