Two big stories broke Wednesday regarding President Trump’s Muslim ban, but only one of them received the headlines it deserved. Worse, the largely unmentioned story is likely to have much deeper implications for the future than the story that dominated the news.
The first story, of course, was the fact that a federal judge in Hawai’i ordered a nationwide halt on the latest version of the Muslim ban — at least until the courts can figure out, in Trump’s words, “what the hell is going on.” Judge Derrick Watson’s decision halting the ban was soon matched by a similar decision by a federal judge in Maryland.
Meanwhile, the federal appeals court that ruled against the original version of Trump’s Muslim ban announced that it would not disturb that decision. In and of itself, that’s not particularly interesting: appeals courts rarely second-guess decisions by a panel of their own members. What is interesting — and disturbing for opponents of the Muslim ban — is that five judges on the U.S. Court of Appeals for the Ninth Circuit said Trump should have won his case.
And the fact that one of these judges in particular sided with Trump is bad news for lawyers hoping that the Muslim ban will ultimately be shut down by the Supreme Court.
The Ninth Circuit is one of the more liberal federal appeals courts — only 7 of its 25 active judges were appointed by Republican presidents — so the five judges who backed Trump make up the bulk of the court’s Republican-appointed members.
Senior policymakers may act in bad faith and get away with it, at least according to Judge Bybee.
The dissenting opinion arguing that Trump should have won was written by Judge Jay Bybee, who is best known for signing the infamous “torture memos” during the George W. Bush administration, so the fact that Bybee would side with Trump in a national security case is not especially interesting.
However, Bybee’s opinion was joined by Judges Alex Kozinski, Consuelo Callahan, and Sandra Ikuta — all of whom are viewed as much more moderate than Judge Bybee.
Of these three, Ikuta’s vote is perhaps the least surprising. Judge Ikuta, who clerked for Justice Sandra Day O’Connor, arose out of a conservative tradition of judicial restraint that was both very much en vogue during the Bush years and entirely consistent with an opinion calling for courts to defer to the president.
Judge Kozinski’s vote, by contrast, is quite a bit more surprising. Kozinski is a former clerk to Justice Anthony Kennedy and approaches many cases similarly to his former boss. Kozinski also has a thick libertarian streak. If Kozinski thinks that Trump’s Muslim ban should survive judicial review, that’s a sign that the Supreme Court’s conservatives will see the ban the same way.
The opinion Kozinski joined argues that courts may not dig into the true motives animating Trump’s Muslim ban in order to determine whether it was motivated by unconstitutional religious bias. It relies primarily on the Supreme Court’s 1972 decision in Kleindienst v. Mandel, which held that, when a foreign national is excluded from the United States “on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.”
So if Trump says that he is banning Muslims for legitimate national security reasons, the courts can’t dig into whether he’s actually banning these Muslims because they are Muslims.
The problem with Bybee’s opinion is that Mandel is not the last word on this topic. In Kerry v. Din, Justice Kennedy wrote that courts may dig into an executive branch official’s real motives when there is “an affirmative showing of bad faith” on the part of that official — that is, if the official is lying about that real motives. And the fact that Trump spent his presidential campaign bragging about his plans to ban Muslims certainly suggests that his administration is not telling the truth when they claim that his Muslim ban has nothing to do with religion.
Bybee, however, argues that Kennedy’s “bad faith” exception to Mandel should not apply to the president because “it would be a huge leap to suggest that Din’s ‘bad faith’ exception also applies to the motives of broad-policy makers as opposed to those of consular officers.” Senior policymakers may act in bad faith and get away with it, at least according to Judge Bybee, even if junior officials may not.
This is, to be sure, a dubious reading of Kennedy’s opinion in Din, and it is worth noting that two of the Ninth Circuit’s Republican appointees — Judges Milan D. Smith and N. Randy Smith — did not join Bybee’s opinion. The Ninth Circuit’s original panel opinion opposing the ban was also joined by Senior Judge Richard Clifton, a George W. Bush appointee.
Nevertheless, the conservative wing of the Supreme Court has a history of tacking well to the right of even conservative judges on the federal courts of appeals. In the first major legal challenge to the Affordable Care Act, NFIB v. Sebelius, the view that Congress could not enact Obamacare under its constitutional power to regulate commerce was very much a minority view on the courts of appeal. Nevertheless, every member of the Supreme Court’s conservative wing signed onto this view.
Similarly, in Zubik v. Burwell, a major birth control case, every member of the Court’s conservative wing sided with a single outlier circuit that rejected the overwhelming judicial consensus in favor of the Obama administration’s actions to foster access to contraception.
The fact that Kozinski, in particular, was willing to sign onto Bybee’s opinion suggests that history may repeat itself in the Muslim ban cases.