You may have heard that Travel Ban 2.0 has already been frozen by a federal judge in Hawaii, meaning it never even took effect. Shortly afterward, another federal judge — this time in Maryland — also froze the ban for good measure.
Initially, I had mixed feelings about all this.
As I mentioned before, both iterations of the ban are worse than useless, so I’m certainly glad to see that it’s not being implemented (yet). I’m also glad to see the other two branches of government standing up to the President. So yeah, I did a little internal happy dance when I learned the news.
On the other hand, I wasn’t sure I agreed with the reasoning behind the judges’ decisions.
Both rulings say, essentially, that the travel ban violates the Establishment Clause of the First Amendment. That is, it deliberately discriminates against members of a particular religion — in this case, Muslims.
Travel Ban 1.0 had specific language, albeit brief, that mentioned a preference for minority religious groups (i.e., Christians), so the case was pretty straightforward. But nothing in 2.0 is explicitly about religion, and moreover, it’s hard to call it a “Muslim ban” when it bans only a small minority of Muslims, and does so only as a side effect of nationality. Screening by nationality, while stupid and pointless, could at least nominally be explained as a national security measure.
So the only way to block this thing on First Amendment grounds is to say it is motivated by intent to discriminate. Now, this is well-established precedent, so the Hawaii and Maryland judges were just doing their jobs. But I found the idea worrisome. By looking at intent, aren’t we asking judges to psychoanalyze? Conversely, shouldn’t we be able to judge a law by its text and its likely effect on society? Why does it matter if the legislator (or President, in this case) intended something bad? We only care about outcomes, right?
But after reading the Hawaii judge’s ruling (which is utterly fascinating, by the way) and thinking it over, I believe I’ve changed my mind. Here’s why:
If we don’t worry about intent, it becomes really easy to discriminate by proxy.
As an extreme example, say a certain religious sect — the Tortugans — mandates that all believers get a tattoo of a turtle on their left arm at age 18. Now, the President hates turtles because they carry their homes with them, and thus don’t stay in his hotels. So he wants to ban the Tortugans.
Problem is, there’s that pesky First Amendment. So instead he just bans immigrants with tattoos of turtles on their left arms. It’s not about religion, he insists — a Christian with such a tattoo would be banned too, and a Tortugan who hadn’t gotten the tattoo (for whatever reason) would be allowed in. The left-arm turtle tattoos, he explains, are a public safety risk, because children are scared of turtles and might scream if they see a tattoo, thus inciting a riot.
If we’re not allowed to consider intent, such an order would seem to obey the First Amendment. The public safety argument is ludicrous, but it’s not the court’s job to decide whether orders and laws are logical, only whether they’re constitutional. The order overwhelmingly affects Tortugans, but that alone isn’t enough either, because it’s possible that a genuinely necessary order could disproportionately affect a certain religion (say, a small cult whose members have a fondness for AK-47s and aren’t big on safety training). So we’d have to allow it, as far as I can tell.
At that point, the Establishment Clause has basically become meaningless.
The problem with the anti-Tortugan order is, essentially, intent. Because if the President really is trying to protect national security (and has a valid reason for thinking this will do it), then the anti-Tortugan order should be allowed, even though it’s unfortunate for that particular religion. But if the President is trying to discriminate, and the tattoo stuff is just a proxy for that, then it should not be allowed.
As I said, that’s an extreme example, and the actual travel bans are more complex. But I think the principle is the same. If there were really a strong national security justification for banning people from those six countries, then it should be allowed, even if it affected a much higher percentage of Muslims. But if it were aimed at keeping Muslims out, then it should be stopped, even if it affected a much lower percentage.
Or so it seems to me right now.
It turns out, this Constitution stuff is complicated. Who knew?