The 4th Circuit today (May 25th), in a rare en banc proceeding, struck down President Trump’s second shot at a travel ban in a resounding 10–3 decision. This smackdown was harsh. The court came swinging right out of the first paragraph declaring:
"The question for this Court, distilled to its essential form, is whether the Constitution . . . remains “a law for rulers and people, equally in war and in peace.” And if so, whether it protects Plaintiffs’ right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination."
However, what really stood out in this decision was the 4th Circuit’s determination that the President acted in bad faith. Relying heavily on the campaign statements of President Trump and his representatives, the court found:
"Plaintiffs have more than plausibly alleged that EO-2’s stated national security interest was provided in bad faith, as a pretext for its religious purpose . . . plaintiffs have plausibly alleged with particularity that an immigration action was taken in bad faith . . . Plaintiffs have made an affirmative showing of bad faith."
The words “bad faith” in describing the President’s approach are used a stunning number of times in the decision. To apply such language to the nation’s Chief Executive is exceptionally rare. A court would not normally do so unless it was very necessary to the decision. As it turns out, this determination was very necessary to the decision. To understand why you have to understand the battle in the briefs between the “Mandel Standard” vs. the “Lemon Test Standard.” Central to this decision was which of those standards to use.
The Lemon Test
Familiar to first year law students, the Lemon Test from the Supreme Court’s 1971 decision in Lemon v. Kurtzman is the traditional test for determining whether a government action violates the establishment clause of the 1st Amendment. Per the Lemon Test a “government action (1) must have a primary secular purpose, (2) may not have the principal effect of advancing or inhibiting religion, and (3) may not foster excessive entanglement with religion.”
It was the first prong of this state, that the action must have a primary secular purpose that was at issue, for if the action has the purpose of religious discrimination, that prong of the test fails and the action is unconstitutional. The District Court applied this test, used the campaign statements by Trump and his advisors against him, and ruled the the travel ban unconstitutional (see my prior article on the decision).
The Mandel Standard
Trump’s attorneys argued the Lemon Test is the wrong legal standard, preferring the court adopt the much more deferential Mandel Standard, from the Supreme Court case of Kleindienst v. Mandel decided in 1972.
It involved a professors who invited a foreign communist to speak on their campus. At the time a statute barred known communists from getting visas. Exceptions were allowed, but the administration declined to grant one. The professors sued alleging 1st Amendment violation.
The court ruled against them, holding the power of Congress to regulate immigration was nearly plenary and declared that: “when the Executive exercises this power [to exclude an alien] 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 [plaintiffs’] First Amendment interests.”
The government argued that since the travel ban dealt with immigration the Mandel standard applied and that under that standard the travel ban wins because courts must not “look behind” any facially neutral action to challenge the discretion of the executive.
How the 4th Circuit Applied Mandel.
Be careful what you wish for. The 4th Circuit took the Mandel Standard head on, and decided Trump’s travel ban failed it. The Court of Appeals focused on the standard’s “facially legitimate and bona fide reason.” While everyone agreed the Travel Ban 2 was “facially legitimate” the 4th Circuit, making a near unique determination, found it was not for a “bona fide reason.”
The government argued that if facially legitimate it was bona fide. The 4th Circuit rejected that as just writing out the separate bona fide requirement all together. The government, of course, argued that the purpose of the travel ban was for the “bona fide reason” of national security, and with that we get to the reason for bad faith determination.
The Court of Appeals found the national security excuse was essentially a sham, invented for the purpose of litigation:
“provided in bad faith, as a pretext for its [the travel ban’s] religious purpose . . . the Government’s asserted national security interest . . . appears to be a post hoc, secondary justification for an executive action rooted in religious animus and intended to bar Muslims from this country.”
To be sure, this was a high standard. Plaintiffs had to plausibly allege this bad faith and general allegations would not do. Plaintiffs had allege “with particularity” the facts supporting their claim of non-bona fide, or a bad faith reason. The court noted that it would be “the rare case where plaintiffs plausibly allege bad faith with particularity,” but found the exceptional record created by Trump and his minions more than adequately did so.
With Trump failing the Mandel Standard the 4th Circuit reverted back to the Lemon Test, and Trump lost again under that standard because he simply must, as every court applying that standard has concluded.
Trump’s lawyers argued his campaign statements should not be held against him because they “predate President Trump’s constitutionally significant transition from private life to the Nation’s highest public office.” However, the Court of Appeals said they could not ignore such a wealth of evidence and concluded that “The campaign statements here are probative of purpose because they are closely related in time, attributable to the primary decisionmaker, and specific and easily connected to the challenged action.” Those are sensible reasons.
Trump has, once again, been hoisted on the petard of his own words. He sure makes things tough on his attorneys. While we shall undoubtedly hear the gnashing of teeth about a “activist judges” this is the second Court of Appeals decision against Trump’s two travel bans. Trump previously whined he lost because of the “rogue circuit” of the 9th, but this came from the 4th Circuit in Virginia. It was a 10–3 decision. Counting the 9th Circuit decision on the original travel ban, Trump is 3–13 with Court of Appeals judges. That excuse just isn’t holding water anymore.
This is a self inflicted wound for Trump. Perhaps the message that demagogic pandering to religious hatred to gain power, will make actual governing more difficult for you, is a good thing.