Below is my column in The Hill newspaper on the Supreme Court’s decision upholding the travel ban in Trump v. Hawaii. While the case has been buried in the crush of coverage over the resignation of Justice Anthony Kennedy, the opinion is a shot across the bow for lower courts in their treatment of the relevant record for such disputes. It also answers some lingering questions over the conduct of key figures like Sally Yates.
Here is the column:
The Supreme Court ruling in Trump v. Hawaii today was more than a predictable reversal of the 9th Circuit appeals court in its dubious ruling that the travel ban was unconstitutional. As some of us noted from the outset of this litigation, the precedent heavily favored President Trump.
What was unprecedented was the degree to which courts relied on campaign statements and tweets by Trump to rule that the entry limits were based on religious animus. The ruling properly returns the courts, and others, to basic principles of legal process. Call it “The Red Hen moment” for the courts, where judges, appalled by Trump’s inflammatory and reckless comments against Muslims, refused to extend him the same deference shown to predecessors like former President Obama. The response from judges, however, seemed more visceral than analytical in ignoring the nondiscriminatory rationales cited by agencies for the policy.
The Supreme Court’s decision is, obviously, a major win for Trump, but it also is a major victory for those who believe courts must rule within the confines of the traditional record of review. CNN was quick to declare that this presidential order was “very different” from the original order. Despite my criticism of the original order — which was poorly drafted, poorly executed and poorly defended — it is not true that this decision was based on different questions. The challengers emphasized that the third order was based on the same threshold questions raised in the first order. The Supreme Court specifically hit the same flaw found in the first, second and third opinions, which was the reliance on the statements made by Trump on the campaign and over Twitter.
The Supreme Court ruled, “At the heart of their case is a series of statements by the President and his advisers both during the campaign and since the President assumed office. The issue, however, is not whether to denounce the president’s statements, but the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility.”
The dissenting justices still maintained that, regardless of the record created by the agencies, the president’s comments should be treated as dispositive as showing that the policy was “motivated by anti-Muslim animus.” There is little record that the agencies could create to overcome such statements in the view of the four dissenting justices. That is a dangerous approach for courts in reviewing policies and laws. It would allow jurists to pick from an array of public comments as determinative factors in review. While such comments have been given weight in racial gerrymandering cases and some other areas, the reliance by the 9th Circuit and the dissenting justices would have been unprecedented.
While many have correctly chastised Trump for departing from the traditional decorum and conduct of presidents, it is equally true that these courts departed from traditional review of courts in alleviating these comments over independent agency rationales. Notably, Chief Justice John Roberts and the majority clearly telegraph their disagreement with the president’s comments, as have many of us. However, this is about court decisions. It is not commentary. This is the point and always has been the point, from the first travel ban decision.
The lower court judges are not the only ones rebuked in this decision. The ultimate “Red Hen moment” was the order of former acting Attorney General Sally Yates to bar Justice Department lawyers from defending the policy. Indeed, if anything, this was a “Red Hen moment” in Yates refusing service. The difference is that Yates denied a president the service of thousands of Justice Department lawyers in defense of a federal policy.
I was highly critical of the actions Yates took as acting attorney general and supported her termination on the basis of her order. Yates had only a few days left in federal service when she decided to take her unprecedented stand. That obstruction resulted in her being instantly declared a “hero” by Trump critics who ignored the implications of other officials in the future refusing to defend laws or policies more to their liking, from environmental protections to workplace safety laws.
It was manifestly untrue that there were not good faith arguments to support the policies as shown by dissenting lower court judges, and now a majority of the Supreme Court. Yates manufactured the conflict by ignoring review of the career staff of the Justice Department office of legal counsel, which found the president did, in fact, have the authority. Yates simply said that she was not convinced that the order was “wise or just” or “lawful.” She simply declared that she was acting on her duty to “always seek justice and stand for what is right.”
The Supreme Court decision upholding the travel ban is a shot across the bow of all lower courts that they must insulate themselves from the often incendiary comments of this president. The question is not how he views his office but how judges view their own.