17 February 2018

Shut Up and Drivel

Earlier this week, the Fourth Circuit demonstrated yet again that it understands "separation of powers" better than does the guy at 1600 Pennsylvania who keeps proclaiming that he has unfettered executive power. In the latest iteration of the IRAP/Islamic exclusion fiasco (PDF) warning: 285 pages!, the court took up its obligation to view evidence… and presumed that the President said what he means and means what he said. That is, that he's not just another politician.

In the extraordinary case before us, resolution of that question presents little difficulty. Unlike Din and Mandel, in which the Government had a “bona fide factual basis” for its actions, here the Government’s proffered rationale for the Proclamation lies at odds with the statements of the President himself. Plaintiffs here do not just plausibly allege with particularity that the Proclamation’s purpose is driven by anti-Muslim bias, they offer undisputed evidence of such bias: the words of the President. This evidence includes President Trump’s disparaging comments and tweets regarding Muslims; his repeated proposals to ban Muslims from entering the United States; his subsequent explanation that he would effectuate this “Muslim” ban by targeting “territories” instead of Muslims directly; the issuance of EO-1 and EO-2, addressed only to majority-Muslim nations; and finally the issuance of the Proclamation, which not only closely tracks EO-1 and EO-2, but which President Trump and his advisors described as having the same goal as EO-1 and EO-2.

IRAP v. Trump, No. 17–2231 (4th Cir. 15 Feb 2018), slip op. at 42 (internal citations omitted). As the court later discusses, it essentially has no choice in considering the repeated, persistent statements made by the President that make clear that regardless of any other motivations, a specifically prohibited miasma of religious bigotry (I don't have to be as polite as the court) forms not just a cloud near, but the entire atmosphere of, the Islamic exclusion order. Id., slip op. at 45–52.

The court respected separation of powers by taking Trump at his word, not based on the "he really meant to say" post hoc rationalizations and spin doctoring from the, umm, communications "professionals." (Of course, if they were truly professionals, there would be an enforceable code of ethics…) But the court respected him, took him at his word, and therefore had no choice. Because, after all, courts are not legislative bodies entitled to rely solely upon ideological and policy preferences: They are confined by the facts and the record and the specific dispute before them.

I suppose it beats telling men who grew up in segregated areas and saw classmates succumb to — at minimum — the continuing vestiges of "three-fifths of all other persons" to "shut up and dribble" because just being citizens doesn't entitle them to have opinions, if you're a talk-show host whose own education was segregated in a rather different manner. But not by much.