In his ruling, Judge Derrick K. Watson rejected the Trump administration's argument that the court should evaluate the ban in a vacuum and dismiss past statements about the president's motive, such as a December 2015 news release that said "Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what the hell is going on."
Watson wrote that Team Trump's rhetoric has been so "full of religious animus, invective, and obvious pretext" that "it is no wonder that the government urges the court to altogether ignore that history and context."
"The court, however, declines to do so," Watson added. "The court will not crawl into a corner, pull the shutters closed, and pretend it has not seen what it has."
What the court has seen includes a Feb. 21 interview White House senior policy adviser Stephen Miller granted to Fox News. When the state of Hawaii filed the first legal challenge to Trump's revised ban earlier this month, it cited Miller's remarks on TV as evidence that "this second executive order is infected with the same legal problems as the first order -- undermining bedrock constitutional and statutory guarantees." Here's an excerpt from Hawaii's lawsuit:
Miller told Fox News that the new travel ban would have the same effect as the old one. He said: "Fundamentally, you're still going to have the same basic policy outcome for the country, but you're going to be responsive to a lot of very technical issues that were brought up by the court, and those will be addressed. But, in terms of protecting the country, those basic policies are still going to be in effect."
Watson found Hawaii's argument persuasive. In his opinion, the judge quoted Miller's declaration on Fox News that the revised ban was merely "responsive to a lot of very technical issues."
"The court recognizes that it is not the case that the administration's past conduct must forever taint any effort by it to address the security concerns of the nation," Watson wrote. "Based upon the preliminary record available, however, one cannot conclude that the actions taken during the interval between and the new executive order represent 'genuine changes in constitutionally significant conditions.' "
It should come as no surprise that Watson would consider what Miller said -- which makes the White House's decision to let Miller say it hard to understand. The U.S. Court of Appeals for the 9th Circuit (Hawaii is on the 9th Circuit) factored public remarks by Trump and his surrogates into its decision last month to halt enforcement of the original travel ban.
In that case, the states of Washington and Minnesota presented as evidence Trump's call for a "total and complete shutdown of Muslims entering the United States," as well as an interview from earlier this year in which the president said Christian refugees will be prioritized. The states also cited a January Fox News appearance by Trump adviser Rudolph W. Giuliani, who reiterated that Trump originally wanted a "Muslim ban."
"He called me up," Giuliani said. "He said, 'Put a commission together. Show me the right way to do it legally.' "
Here's what the appeals court wrote in its unanimous ruling against Trump:
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.
That last sentence is key. The precedent the appeals court set for lower courts -- such as the one in Hawaii -- is to consider the spirit of the order, not merely the letter, by examining what White House officials say they hope to accomplish with it.
Watson, in his decision, noted the precedent set by the higher court, and he followed it. The White House should have seen this coming.