The day after the United States bombed airfields in Syria to punish the Assad regime for the chemical slaughter of civilians, the Justice Department quietly filed its latest brief defending a ban on refugees from that country. Next month, appeals courts on both coasts will debate the matter, hearing arguments in cases from Maryland and Hawaii, where two district judges found that a revised presidential order blocking immigrants from certain predominantly Muslim countries violates the Constitution.
The Fourth Circuit Court of Appeals, which is scheduled to hear the Maryland case on May 8, recently announced that all 15 judges (instead of the usual three-judge panel) would review the lower court's decision. And President Donald Trump has already vowed to challenge the rulings "all the way up to the Supreme Court." That may be where this dispute ends up, with a first test for Justice Antonin Scalia's successor Neil Gorsuch, but the president should not be surprised if it ends differently than he hopes. Especially considering that the Justice Department's main defense — that the words of the president are beyond review, and his campaign promises and divisive rhetoric can be disregarded after election day — is unsound as a matter of history, law and policy.
For the sake of democracy, a candidate's commitments on the campaign trail should not be forgotten or forgiven as the false promises and flamboyance needed to get elected. Candidates do not get a clean slate once they take the oath of office. As the federal judge in Maryland said, "the world is not made new every morning." Politicians' pledges and proposals should be reliable indicators of how they intend to govern and lead. And what they say to score cheap political points lingers long after the smoke of a campaign clears.
The legal allure of the president's argument is its resemblance to a position Justice Scalia often advanced: Why on earth should a court get to see behind the curtain to understand the purpose of state action rather than look simply at the language of the law? According to Justice Scalia, the intent of the legislature must be divined from text alone, without regard to statements by its advocates on the legislative floor. That view, even skillfully framed by one of history's most gifted jurists, never fully took root. Now, President Trump's lawyers are trying to replant that defective seed in the context of executive action, where the concerns Justice Scalia raised are at their weakest.
Justice Scalia, after all, was worried about problems specific to legislatures: the risk that shrewd legislators could poison the record with statements that do not reflect the true intent of the majority, the challenge of ascribing a single voice to a legislature composed of many different lawmakers, and the temptation to selectively pluck from a dense legislative history only those statements supporting a court's preferred ruling.
But none of those concerns apply when it is the president's words a court is weighing. For one thing, the president has no reason to sabotage his own orders by proclaiming an illicit motive that is not his own. For another, unlike the cacophony of a legislative chorus, the president sings with a single voice. So, Justice Scalia's fears of being unable to discern a unifying note are misplaced when one person speaks with the clarity and consistency that President Trump has on this subject.
Indeed, federal judges in both cases now on appeal had no trouble identifying President Trump's intent from a string of unambiguous, unwavering statements made before — and after — he was elected, calling for the exclusion of Muslim immigrants. There was plenty to point to: his original rallying cry demanding a "total and complete shutdown of Muslims entering the United States" (November 2015); his clarification that his policy as the Republican nominee was not a "rollback" but an "expansion" of his earlier proposal (July 2016); his response as president-elect, "You know my plans," when asked about the Muslim ban after an attack in Germany (December 2016); and, on the very day of the signing of the order, titled "Protection of the Nation from Foreign Terrorist Entry into the United States," President Trump remarked, "We all know what that means" (January 2017).
Yes, Mr. President, we do. So did the federal courts that ruled that your presidential order was inspired — and hence infected — by an unconstitutional purpose: to denigrate the religion of Islam and discriminate against its adherents.
In this respect, the bans are the latest chapter in a checkered history in which discrimination and hate, with a little help from an artful attorney, all too easily don the cloak and costume of neutrality. Asking courts to accept the pretext of fighting terrorism and ignore the president's true motive is just how states for too long prevented interracial marriage and denied marriage equality, how cities redlined neighborhoods by race and perpetuated segregated schools, and how the Supreme Court upheld Japanese internment camps in Korematsu v. United States and embraced the shameful doctrine of separate but equal in Plessy v. Ferguson.
Thankfully, that is not the law or tradition followed by courts today. Americans should be proud that our judges are no longer swayed by the veneer of neutrality and instead are compelled by the Constitution to ferret out sinister purposes that lie beneath the surface. These days, judges and juries routinely determine intent, from employment discrimination and racial gerrymandering to Fourth Amendment and Establishment Clause cases. That is all that the courts have done here, properly declining, as the Hawaii court wrote, to "crawl into a corner, pull the shutters closed, and pretend it has not seen what it has."
President or politician, words matter. They can be weapons too. And the harm of hateful words especially — the sense of inferiority and subordination they engender — cannot easily be undone. Nor can the damage to the hearts and minds of those whose faith the president has denounced be rectified by a clumsy, unconvincing pretext inked into an order by a clever lawyer's pen. Federal judges are not fooled by this. Neither are the rest of us.
Thiru Vignarajah, a Hindu immigrant, was Deputy Attorney General of Maryland and previously served as law clerk to Justice Stephen Breyer. His email is thiru.vignarajah@dlapiper.com; Twitter: @tvignarajah.