David Cole is The Nation’s legal affairs correspondent and national legal director of the ACLU. This interview has been edited and condensed.
Jon Wiener: The courts have taken a strong and virtually unanimous stand against Trump’s travel ban, which bans entry from six countries. Even though it doesn’t mention religion, the courts have ruled that it’s a ban on Muslims and, therefore, prohibited under the Constitution. The chief judge in the Fourth Circuit Court of Appeals wrote last week that the second version of Trump’s travel ban “drips with religious intolerance, animus, and discrimination.” But conservatives have started pushing back, including conservatives who don’t support Trump. Ross Douthat, op-ed columnist at The New York Times, says Trump’s executive order on travel is not a good idea, but it is not a Muslim ban, and on its face looks entirely constitutional because the president has broad powers to restrict the entry of noncitizens. An executive order restricting travel from a specific set of countries, he says, would normally pass muster.
David Cole: Douthat seems to find troubling the fact that the court looked not just at the face of the ban but also at the context in which it arose. Outside of the four corners of the document, Trump said that this was intended to target Muslims. He said it when he was a candidate. When he signed the first version of the travel ban, he looked up and said to the cameras, “We all know what that means.” After the first travel ban was struck down, he said that the second version was essentially the same policy as the first. He left up on his campaign website the vow that he would ban all Muslims long after he had taken office, and only took it down when the Fourth Circuit’s argument was essentially underway.
Douthat seems to have a problem with the court’s looking beyond the four corners of the document, but that’s what the law requires. The Establishment Clause says it’s not permissible for the government to take action that is intended to, or sends a message of, denigrating a particular religion, and the court has said you must look at the whole context to determine what an objective observer looking at all the facts would conclude about this government’s actions. Douthat’s argument is essentially “close your eyes to what the world sees, look only at the four corners of this document drafted by our lawyers—and if it doesn’t have the word ‘Muslim’ in it, it’s not a Muslim ban.” That’s an argument that essentially says “defer blindly to the president,” even when we all know what he is intending to do. And the courts have thus far refused to close their eyes to what the world sees.