Trump has a good shot to win on travel ban appeal

Trump responds to Hawaii travel ban ruling
Trump responds to Hawaii travel ban ruling

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Story highlights

  • Danny Cevallos: Trump's "watered-down" executive order can possibly win on appeal
  • He says executive power may outweigh religious discrimination claim on immigration

Danny Cevallos (@CevallosLaw) is a CNN legal analyst and a personal injury and criminal defense attorney practicing in Pennsylvania and the US Virgin Islands. The opinions expressed in this commentary are his.

(CNN)Hours after a federal judge in Hawaii issued a stay against the revised travel ban executive order, President Donald Trump insisted at a rally in Nashville that his administration would "fight this terrible ruling" and that he would "take this as far as we need to, right up to the Supreme Court."

He called the new executive order a "watered-down" version of the original order and even suggested that "we ought to go back to the first one and go all the way. ... We're gonna win it, we're gonna win it."
He may have a point. He could very well win on this executive order. He might have even won with the original one.
The original executive order was never actually struck down; there was never even a hearing on the merits. Instead, a US District judge essentially predicted that the executive order was likely to be struck down eventually. Once that district court stayed it, the standard of review by the appellate court gave substantial deference to that decision -- and again, though a three-judge panel of the 9th US Circuit Court of Appeals decided the issue against the Trump administration -- that too was not a final adjudication on the merits.
The point is that we will never know if the original executive order was constitutional or a proper exercise of presidential power. The Trump administration elected to start over instead of seeing the litigation through. That wasn't a bad strategy either. By redrafting the executive order, it sought to excise the parts judges found most objectionable and pare it down to a legally unassailable order that still achieved its primary goals.
So then, even though successive courts have issued, and upheld, nationwide stays of the travel ban, Trump is right in observing that neither of his executive orders have been struck down.
Trump also isn't Pollyannaish when he says he could go back to the original order and litigate it. It's possible he could have ultimately prevailed in a hearing on the merits or on appeal.
Even though court after court has ruled against him, Trump is probably right: If the government now appeals to the 9th Circuit, and then the Supreme Court, it could realistically convince an appeals court that the judge in Hawaii got it wrong.
The Hawaii plaintiffs sought a nationwide temporary restraining order preventing enforcement of Sections 2 and 6 of the executive order. Judge Derrick Watson concluded in his order that the plaintiffs met their burden of showing a strong likelihood of success on the merits of their Establishment Clause claim. The Establishment Clause of the First Amendment commands that one religious denomination cannot be officially preferred over another by the government. Therefore, Watson granted the plaintiffs' motion for a stay, concluding that a freeze on the travel ban was necessary to prevent irreparable injury.
The court acknowledged that, unlike the first executive order, the new one makes no reference to a person's status as a "religious minority" nor any reference to religion at all.
Then, the court concluded that the purpose of the executive order was to disfavor a particular religion -- Islam.
Wait, what? That's right. To the court, the new executive order says nothing about religion ... but it discriminates based on religion.
The court applied the three-part test for a government action to survive Establishment Clause claims, from the 1971 Supreme Court case Lemon v. Kurtzman, and determined that the travel ban failed the first test: that the government action must have a primary secular purpose.
It concluded that the stated secular purpose of the executive order is secondary to its unstated religious objective of temporarily suspending the entry of Muslims.
How can the court be so sure about the underlying discriminatory motivation if it's not stated in the order? Because the court looked to the controversial things the Trump campaign said about banning Muslims during the 2016 election. The court is factually right on that point, at least: If you want to find religious discrimination in Trump's stump speeches or campaign promises, you don't have to look far.
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But it raises a thorny legal issue: If a law is neutral on the surface about religion, is it fair to look at what Trump and his campaign said prior to enacting that law? How "prior" is "prior to"? Can a court mine all of Trump's "Howard Stern Show" appearances, or his Page Six mentions from decades past?
The court in Hawaii suggested you can look well beyond the face of the law and even legislative history, and look at TV appearances, rallies and interviews, even before a candidate took office. In support of this proposition, it cited Supreme Court cases holding that targeting religions for distinctive treatment cannot be shielded a neutrally drafted law.
The Supreme court cases cited by Watson suggest that not only is legislative history relevant, but even the historical background and statements by decision-makers may be considered in determining a discriminatory purpose.
The judge is right, but those prior cases challenged things such as a village's rezoning decision, or a state law requiring registration by religious organizations.
This is different. The president has massive authority in the area of immigration, which the Constitution and Congress conferred upon him.
Article II of the Constitution gives authority to the president to conduct foreign affairs and address immigration.
The Immigration and Nationality Act, Section 1182(f) expressly provides that the president can suspend entry of any class of aliens for as long as he deems necessary, or impose any restrictions he deems appropriate whenever he finds their entry would be detrimental to the interests of the United States.
This is one of the many issues to be resolved in this conflict: How can the president's immigration decisions be unconstitutionally discriminatory if they are constitutionally based and authorized by federal law?
The decision from the court in Hawaii raises a new question: Is an apparently constitutional government action unconstitutionally discriminatory if someone involved with it said something discriminatory at some point in the past?
The president is in charge of immigration. Immigration policy, by its very definition, is a form of discrimination. The only truly nondiscriminatory immigration policy would be: Everyone come in, whenever you want. Anything short of that is discrimination in some form, and it's generally within the president's province. This is not some village rezoning policy. This is national immigration policy, and it's different than any of the other Establishment Clause cases.
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If courts can look into this particular President's prior statements when considering the constitutionality of his actions, then every single executive action is potentially vulnerable. A gender-neutral executive order could be challenged as discriminatory against women. After all, this is the candidate who believes women can just be grabbed by the ..., well, you know. A presidential action that is disability-neutral could be challenged on the basis that the candidate mocked a disabled reporter.
While the court in Hawaii cited established Supreme Court precedent in finding a probable Establishment Clause violation, the appellate courts could still find that Trump's executive authority prevails. Yes, the district court cited some controlling authority, but an appellate court could distinguish those cases from the unique case before it -- one that pits constitutional executive power head-to-head with the First Amendment.