The fourth circuit upholds the injunction against president trump’s travel ban using the president’s words against him, says John Helms, Dallas defense attorney
In International Refugee Assistance Project v. Trump, by a 10-3 vote, the United States Court of Appeals for the Fourth Circuit upheld the trial court’s injunction stopping most of President Trump’s travel ban. The court said that the travel ban unconstitutionally discriminates on the basis of religion, reports John Helms Dallas defense attorney.
Critics say that the opinion disregards the words of the travel ban and instead focuses on statements President Trump made as a candidate. This, they say, means that the court ruled on the constitutionality of the President’s statements rather than the actual travel ban, which they point out, correctly, says nothing about religion. This is a misleading oversimplification of the ruling.
The Fourth Circuit agreed that the travel ban itself says nothing about religion. It puts restrictions on people traveling to the United States from six countries: Iran, Somalia, Sudan, Syria, Libya, and Yemen. They all happen to be overwhelmingly Muslim countries, but the restrictions apply to anyone from those countries, regardless of their religion. So, how could something that says nothing about religion be discriminatory on the basis of religion?
Our legal system is very familiar with laws and rules that seem to be nondiscriminatory on their face, but whose real purpose is to discriminate illegally. The classic examples are the laws enacted in Southern states to prevent African-Americans from voting. These laws used various devices that seem neutral—poll taxes, literacy tests, property ownership requirements—even though their real purpose was to prevent African-Americans from voting. The fact that some whites might also not be able to vote was not important. The idea was to prevent as many African-Americans from voting as possible. Because of this history, courts have long been able to examine the purpose of a law, even if it seems neutral on its face, to see if it really has a discriminatory purpose.
So, how can a court determine what the real purpose of a law is? One obvious way is to see what the people who enacted it have said about it. When a legislature, like Congress, enacts a law, courts often look to the “legislative history,” which means the statements by persons in Congress during debates and consideration of the bill, to try to understand its meaning. The travel ban is an “executive order,” meaning an order by the President himself. It therefore stands to reason that a court would look to what the President and his surrogates have said about it.
On the travel ban, candidate Trump several times made widely published promises to enact a complete ban of all Muslims entering the country. He said that Islam hates us and that Muslims, as a group, are unusually dangerous. It seems impossible to believe that he did not know that such a ban on Muslims would be blatantly unconstitutional. He must have known it would be, just like Southern legislators knew that banning African-Americans from voting would have been unconstitutional. Thus, I find it impossible to believe that he really intended to pursue a Muslim travel ban. Nevertheless, knowing that he would not really go through with it, he promised a complete Muslim travel ban and defended it as justified, presumably because many people in his base regard all Muslims with fear and loathing.
Once in office, President Trump, of course, did not try to enact a complete ban on Muslims entering the United States. Instead, he issued a travel ban dealing with specific countries. His surrogates, such as Rudy Giuliani, publicly stated that this was a reworking of the Muslim travel ban.
When the Fourth Circuit looked at the travel ban, they noted that the six countries were over 90% Muslim, that no person who traveled to the United States from those countries had ever killed anyone in the United States in an act of terrorism, and that the main countries from which terrorists have come—Saudi Arabia, Egypt, Pakistan, Afghanistan, and others—were not included. This at least begins to call into question whether the real purpose of the travel ban was to prevent terrorism. If it was, it certainly went about it illogically. Then, the Fourth Circuit looked at statements by President Trump and his administration about the travel ban. Here, they found a bountiful abundance of statements indicating that President Trump at least said he wanted to ban all Muslims, that his administration told him he could not do that constitutionally, and that what they came up with—the actual travel ban–was the next best thing, and that he has never said that the current travel ban is not the Muslim ban he advocated. In other words, if we can’t actually say “Muslims,” we can target countries that are overwhelmingly Muslim and exclude as many Muslims as possible. If it applies to a few non-Muslims, that is not important. But this is exactly what Southern legislators tried to do with voting laws—discriminate without actually saying so. It is no wonder that the Fourth Circuit, by a 10-3 vote, found the travel ban discriminates on the basis of religion.
The problem for President Trump, at least for now, is that his own words are being used against him. It is a problem for him because he advocated something blatantly illegal—a Muslim ban—in order to energize voters who are bigots. He actually seems surprised that the courts are taking him at his word. His unstated position seems to be that nobody should really take his statements seriously.
I do not believe candidate Trump ever intended to carry out a Muslim ban because it was so obviously unconstitutional. I believe his promises were a typical sleazy sales tactic called bait-and-switch, which means promising something and trying to switch to something else after you have drawn someone in. As a criminal defense lawyer, I defend people accused of all kinds of fraudulent schemes, including pump and dump securities tactics, oil and gas wells that are never drilled, pyramid or Ponzi schemes, and the like. My experience tells me that bait and switch is another classic way to trick people out of their money, or in this case, potentially, their vote.
President Trump might be able to get out of this conundrum of his own making by leveling with everyone. He could say that the Muslim ban he proposed during the campaign was clearly illegal and that he knew he could not do it, so he scrapped the idea entirely. He then tried to come up with a travel policy that would target terrorists, but that would be completely different. He would then have to explain that he looked at all countries with terrorism issues and narrowed the list down to the six countries in which our overall relationship is not so meaningful that a travel ban would not hurt us in other ways. Statements like this could counteract all of the statements that the Fourth Circuit (and the Ninth Circuit) used in upholding injunctions against the travel ban.
There are two obvious problems with this for President Trump, and they are both political. The first is that President Trump would basically have to admit that his Muslim ban proposal was a big lie designed to appeal to bigots. The second is that he would have to admit that his actual proposal probably will do nothing significant to protect us.
Not surprisingly, none of the Justice Department lawyers who are defending the travel ban in court are leveling with the judges like this. They are effectively hamstrung unless the President says something different. So, if the Justice Department lawyers in the travel ban cases are not telling the courts that the original Muslim ban was just a bait-and-switch scam aimed at sucker voters, can anyone blame the judges who take the President and his advisors at their word? I can’t.
If you or a loved one have been charged with a crime in the Dallas area, you should strongly consider hiring someone who really knows the ins and outs of the law. Contact defense attorney John Helms at (214) 666-8010 or fill out the online contact form. You can discuss your case, how the law may apply and your best legal options to protect your rights and freedom.