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.
JW: At National Review, a writer named David French, who is also no Trump admirer, challenges the argument that you’ve just made. He says the courts are saying that this president cannot do things that would be perfectly legal if any other president did them. The courts claim to know his “real motivation,” based on statements he made during the campaign, before he became president. But for French, it’s unwise and dangerous to say there are laws that apply only to Trump.
DC: The laws apply equally to everybody, but sometimes the law requires that you look at the intent and purpose behind an action. So if The New York Times fires a black employee because he’s not performing up to snuff, it’s legal. If they take the exact same action, and they say, “We really don’t want blacks in the newsroom,” that exact same action is illegal—because it discriminates on the basis of race.
It’s similar with government actors. If a government actor takes an action that is neutral on its face, then under the Establishment Clause, you don’t end the inquiry at that point, you look at the full context. What has the government said about what they were trying to do here? You look beyond the four corners of the document because the effect of the order on religious freedom derives not from just the formal words in the order, but from everything that people know about why the order was put in place. I just don’t understand why these columnists think it somehow odd that the same action taken for legitimate purposes is valid and taken for impermissible purposes, racial animus or religious animus, is not valid. That’s just constitutional law 101.
JW: These conservative columnists argue that this is a dangerous course for the courts to take because Trump’s temperament and character make it much more likely that we will have a true constitutional crisis, where the president defies the courts. They say we should try to avoid that.
DC: Look, the courts’ role in our constitutional system is to check executive overreach. Every time they check executive overreach because it violates a constitutional principle, there is, in theory, the risk that the executive branch will refuse to comply with the court’s orders. But if you say courts should not tell presidents they can’t do things that are unconstitutional, then you would essentially neuter the courts. You would deprive the courts of the critical checking function that they play. History tells us that courts have, for 230-years-plus, enjoined executive action on the ground that it is unconstitutional, and many presidents have been very unhappy about that. But every one of them has complied with the courts’ orders.
I don’t see any evidence that Trump will not comply with the courts’ orders. Look at what happened with the first one. He issued it, and several courts declared it unconstitutional. At that point he didn’t say, “I’m going to enforce it anyway. I’m going to ignore the courts’ orders.” Instead, he rewrote it. Of course, he didn’t rewrite it effectively. But these decisions don’t say the president can never do anything to try to protect our borders. What they say is that he can’t put in place a Muslim ban by calling it a territory ban, where he has made very clear that that’s precisely what he intended to do. The courts are doing what we expect them to do in a time of executive overreach, which is to hold the president to account. That’s their job, and it’s all the more important with a president like Trump.