One reason multiple courts have struck down the Trump administration’s two Muslim bans is that Trump himself explicitly called it a Muslim ban as a candidate. In December 2015, he pushed 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.”
Federal judges in Hawaii and Maryland blocked the bans, with U.S. District Judge Theodore Chuang writing from Maryland that “statements, which include explicit, direct statements of President Trump’s animus toward Muslims and intention to impose a ban on Muslims entering the United States, present a convincing case that the First Executive Order was issued to accomplish, as nearly as possible, President Trump’s promised Muslim ban.”
In an appeal against Chuang’s ruling, the Trump administration says that actually, you can’t legally rule against us by using our own public proclamations.
Specifically, solicitor general Jeffrey Wall’s brief cites Palmer v. Thompson in claiming that “Searching for governmental purpose outside the operative terms of governmental action and official pronouncements is fraught with practical ‘pitfalls’ and ‘hazards’ that would make courts’ task ‘extremely difficult.’”
As the Huffington Post’s Nick Baumann and Julia Craven point out, Palmer v. Thompson is a 1971 Supreme Court ruling that found in favor of Jackson, Mississippi city officials who chose to close public pools instead of desegregating them.
The plaintiffs in Palmer sued the city, claiming that clearly discriminatory intent was behind the closing of the pools. But in a 5-4 decision, the Court ruled that “It is difficult or impossible for any court to determine the ‘sole’ or ‘dominant’ motivation behind the choices of a group of legislators. Furthermore, there is an element of futility in a judicial attempt to invalidate a law because of the bad motives of its supporters.”
Of course, this is simply bullshit cover for racist public policy, and legal experts told the HuffPo as much. Stanford law professor Paul Brest explains that this was bad law at the time:
When it is absolutely clear that an official acted for unconstitutional purposes … [the courts] should be willing to strike down that decision because, even though the decision might have been reached legitimately, a public official violates the constitution when he or she acts for unconstitutional reasons.
And UC-Irvine’s Michelle Goodwin says that it shouldn’t be taken seriously as precedent now:
“Citing Palmer is like citing Buck v. Bell for a premise of equal protection,” Goodwin says. (Buck v. Bell legalized eugenics.)
The city of Jackson won at the Supreme Court, though, and should Trump’s zombie Muslim ban somehow make it to the Court, at least one Trump appointee will be sitting there ready to hear arguments in favor of it.