… if the Ninth Circuit panel’s reasoning survives further layers of review. Consider this passage from the opinion:
The States argue that the Executive Order violates the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims. In support of this argument, the States have offered evidence of numerous statements by the President about his intent to implement a “Muslim ban” as well as evidence they claim suggests that the Executive Order was intended to be that ban, including sections 5(b)and 5(e) of the Order. It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.
When the district court holds a hearing on the motion for a preliminary injunction, it will consider evidence regarding President Trump’s “intention” or “purpose.” The state of Washington will seek emails, documents, and testimony from people in the White House (including Steve Bannon), Rudolph Giuliani, and others. I don’t know how many of these people will be required to testify, and how many documents will be privileged. But in the end the court will make a determination as to whether Trump deliberately targeted Muslims with no national security justification.
Suppose the court makes just such a determination. That means that whenever Trump in the future orders a national security action that burdens Muslims in any way, challengers will be able to cite a judicial opinion finding that Trump has acted on anti-Muslim animus. While a finding of a deliberate intention to target Muslims in Executive Order #1 does not necessarily imply a similar intention in Executive Order #2, the judicial opinion lays the groundwork for such a finding, increasing the probability that next time around courts will issue TROs again. The Ninth Circuit has placed Trump on probation.
If you don’t like Trump, you might celebrate. But remember that this extra layer of judicial review will burden Trump even when he acts with a national security justification—like when Obama ordered extra vetting of Iraqi refugees in 2011. While a court might not ultimately block Trump from acting, a TRO will always be a real possibility, which means that a necessary measure for our safety may be blocked. We may have a new regime of heightened judicial review in national security cases because courts believe the president is a bigot. This has never happened in all of American history. The country is less safe as a consequence.
Trump will blame the courts for preventing him from protecting the country. But the fault lies with him. The key problem is that two goals that he apparently holds—protecting the country from terrorism and ridding the country of foreign (Muslim) influence—are in tension rather than mutually reinforcing, as he or Bannon probably believed. The logic is simple. If Trump is a bigot, then he will take anti-Muslim actions citing security as a pretext when the actions do not enhance safety in the short term. Courts will be skeptical because Trump has given them reason to be.