The debate over the God-King’s Muslim Ban hinges on Salena Zito’s ‘literally vs. seriously’ frame…. (More)
President Donald Trump said Friday that he could issue a new executive order on immigration after an appeals court refused to reinstate restrictions on entry to the United States from seven predominantly Muslim nations.
“The unfortunate part is that it takes time statutorily … we’ll win that battle,” Trump said. “But we also have a lot of other options, including just filing a brand new order on Monday.”
Asked what changes could be made if a new order were issued, the president replied, “very little.”
But tweaking a few words here and there may not be enough, as Vox’s Dara Lind reports:
The judiciary will all but certainly subject any ban to some level of scrutiny – they are unlikely to be so skeptical of the first version of a ban and then roll over when another version is put forth just because the second version took more time. That means the question of anti-Muslim animus might well be constitutionally relevant.
In order to foolproof the executive order against that claim, the White House would, well, have to go back and change the past. Because the things that critics will use to allege anti-Muslim animus came, in most cases, straight from Trump himself.
They could point to December 2015, when then-candidate Donald Trump called for a “complete and total shutdown of all Muslims” entering the country.
Or the general election campaign in 2016, when Republican nominee Donald Trump was explicit in saying that his proposal to ban immigration from certain countries “compromised by terrorism” was developed because people told him he couldn’t “say Muslim.”
Or the interview President Donald Trump gave to the Christian Broadcasting Network right before signing the ban, when he promised that the ban’s loophole for refugees who are “religious minorities” is a way to protect “Middle Eastern Christians.”
Or the Fox News interview Rudy Giuliani did the night after the executive order was signed, when he told the hosts that Donald Trump came to him and other advisers and asked him how a “Muslim ban” could be done “legally.”
And of course right-wingers insist none of that should be relevant:
Along the way, the [Ninth Circuit] in dictum opened the door to considering evidence of improper motivation on the part of the President. That will probably be the focus of the litigation going forward, at which point the court will have to confront Supreme Court precedent stating that “We hold that when the Executive exercises [the power to exclude an alien] on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.” [Citation omitted]
Indeed the National Review’s David French said it would open a “Pandora’s box” if courts weigh the God-King’s promises of a Muslim Ban in considering whether his Muslim Ban is, indeed, a Muslim Ban.
“Facially neutral” …
The legalese for this is whether courts should apply the facially neutral test. That is, does the executive order itself say “Muslim ban” or words to that effect? If not – if the text of the order is “neutral on its face” – then conservatives insist that courts must accept the God-King’s declaration that this is not the Muslim Ban that he repeatedly promised, not the Muslim Ban that he asked Rudy Giuliani to do “legally.”
Some of that is simply a longstanding conservative argument that laws written to discriminate are not discriminatory unless the statutory language brazenly admits discrimination. For example, if Republicans wrote a law that barred federal jobs to “anyone who is or may become pregnant,” they would argue that this law doesn’t discriminate against women, because it doesn’t include the words “woman” or “female.” They would insist that it’s purely about hiring people who won’t need medical leave or any other accommodations because they’re pregnant. If the supervisor can show that a male applicant “is or may become pregnant,” they might argue, then he couldn’t be hired either. So it’s not about women at all – even if the bill’s author told reporters: “I’m gonna get women out of government jobs” – because he didn’t write that in the statute.
In short, conservatives think judges should be deaf to what lawmakers say to the media, their constituents, or each other. Judges should only consider what lawmakers write into the law itself – whether its words are “facially neutral” – and ignore anything else the lawmakers said or wrote.
And that’s what judges have usually done. That “pregnancy” example wasn’t mere fiction. In 1976, the U.S. Supreme Court held that excluding “pregnancy” from disability coverage did not discriminate against women, but merely against pregnancy. Yes, really. In response to that absurdity, Congress passed the Pregnancy Discrimination Act in 1978.
… i.e.: “seriously but not literally”
And that’s basically what fangirl Salena Zito meant when she proposed the ‘literally vs. seriously’ frame for evaluating the God-King’s declarations:
When he makes claims like [wildly exaggerating unemployment among African-Americans] the press takes him literally, but not seriously; his supporters take him seriously, but not literally.
Sure, the God-King promised a Muslim Ban, and asked Rudy Giuliani to find a way to do that “legally.” But in Zito’s (and other sycophants’) frame, we shouldn’t take his words literally. Instead, we should take him seriously. In that frame, he is the President of the United States … and Congress, the courts, and the media owe him the deference that office deserves (when a Republican is in the White House).
The ‘literally vs. seriously’ frame translates to: “Don’t nitpick what I say. Respect who I am.”
Thus you find conservatives now claiming that the Ninth Circuit opened a “Pandora’s box” by considering the God-King’s repeated promises of a Muslim Ban. To do that, they argue, would undermine the constitutional executive authority of the President of the United States. Never mind that the God-King has repeatedly promised policies that are unconstitutional. We shouldn’t take those promises ‘literally.’ Instead, we should take the occupant of the Oval Office ‘seriously’ – and pretend he never made those clearly unconstitutional promises – just like the Court pretended that a disability policy excluding pregnancy wasn’t written to discriminate against women.
But here’s the thing. Lady Justice wears a blindfold, but not ear muffs. She’s blind, but not deaf. Our courts should open that “Pandora’s box” and stop pretending that lawmakers’ promises have no bearing on the laws they write.
Photo Credit: Getty Images
Good day and good nuts