Donald Trump is his own worst enemy.
At least, that’s the biggest takeaway from the United States Court of Appeals for the Fourth Circuit’s decision upholding an injunction against the most recent version of Trump’s Muslim ban. Ten of the thirteen judges who heard International Refugee Assistance Project v. Trump ruled against Trump’s policy, although there was some disagreement as to why among the judges in the majority.
As Chief Judge Roger Gregory explains in the court’s primary opinion, the court may have reached a different outcome had Trump and his aides simply kept their big mouths shut. As was the case in several other decisions halting the Muslim ban, Trump lost in large part because he spent months traveling around the country bragging about his plan to violate the Constitution.
The primary tension in the Muslim ban cases is between the First Amendment’s prohibition on laws “respecting an establishment of religion, or prohibiting the free exercise thereof,” and a 1972 Supreme Court decision holding that the courts should typically defer to the executive branch regarding determinations about who is allowed in the country.
In Kleindienst v. Mandel, the Supreme Court called for deference to the executive so long as immigration officials offer a “facially legitimate and bona fide” reason why they are excluding particular foreign nationals. This, Judge Gregory notes, “sets a high bar for plaintiffs seeking judicial review of a constitutional challenge to an immigration action.”
But, while the bar is high, it is not insurmountable. Rather, Mandel still establishes that the government’s stated reason for excluding an individual must be “bona fide.” That is, it cannot be offered in “bad faith.”
When the president lies, the courts do not owe him deference.
Judges are not mind readers, so, as Gregory acknowledges, foreign nationals will rarely be able to overcome Mandel and demonstrate that the government’s stated reason for keeping them out of the country was offered in bad faith. But the Muslim ban presents an exceptional case — a case where the president spent months building a pile of evidence that foreign nationals caught by the Muslim ban could use against the president.
Among other things Trump, “call[ed] for a total and complete shutdown of Muslims entering the United States until our representatives can figure out what is going on.” He said that “Islam hates us,” and that “[w]e can’t allow people coming into this country who have this hatred.” He even openly admitted that he would try to disguise the Muslim ban by having it appear to be a ban on people from certain countries and not a Muslim ban per se.
Additionally, Judge Gregory places a great deal of weight on the fact that Trump did not consult with his own agencies before announcing a sweeping change to the nation’s foreign policy. The Trump administration’s claim that the Muslim ban was necessary for national security reasons “is belied by evidence in the record that President Trump issued the First Executive Order without consulting the relevant national security agencies, and that those agencies only offered a national security rationale after [this executive order] was enjoined,” Gregory wrote.
Indeed, “internal reports from DHS contradict” Trump’s argument for the ban, “with one report stating that ‘most foreign-born, US-based violent extremists likely radicalized several years after their entry to the United States, limiting the ability of screening and vetting officials to prevent their entry because of national security concerns.’”
So Trump lost because of his big mouth and his inability to do what a competent president would have done: run his new policy by the people in government who actually know what they are talking about. Were Trump only slightly better at his job, it is likely that the Muslim ban would have survived.
It should be noted, however, that it is still entirely possible the ban will prevail. Now that a federal appeals court has ruled on the ban, the way is clear for Supreme Court review. There, it will be reviewed by one of the most conservative judicial panels in the nation.
It is entirely possible that the conservative-controlled Supreme Court will ultimately rule in Trump’s favor — and, indeed, there are signs that a majority of the justices will be inclined to do so.
Trump’s big mouth, in other words, may be enough to reveal his unconstitutional plans, but not enough to convince five of the most powerful conservatives in the country to vote against Trump.