Judge Leonie Brinkema, of the Eastern District Court in Virginia, had a problem—one that, as it happens, is becoming increasingly common in a country run by Donald Trump. The Commonwealth of Virginia, joined by other plaintiffs, had come to her courtroom with arguments that a Trump executive order, or “EO,” keeping people from seven Muslim-majority countries and all refugees out of America, violated various parts of the Constitution, and it brought evidence of specific harm that the order had already done to Virginians, several of whom it listed by name. In response, the Trump Administration had offered nothing—no logical rationale, no indication, even, of a “deliberative process” behind the order. Brinkema wrote her opinion on Monday, granting a partial preliminary injunction against the order, because “the defendants have responded with no evidence other than the EO, which they have defended primarily with arguments attacking the Commonwealth’s standing to oppose the EO and emphasizing the authority of the president to issue such an EO.”
Brinkema’s reading of the Administration’s opinion of its power and of its obligations to the Constitution is, if anything, an understatement. When Stephen Miller, a senior policy adviser for Trump, was asked, on “Face the Nation” on Sunday, about the legal challenges to the order, he said that it was “crazy” that a judge should have a say. Then, with a disquieting gaze, he offered this credo: “Our opponents, the media, and the whole world will soon see, as we begin to take further actions, that the powers of the President to protect our country are very substantial and will not be questioned.”
Brinkema had some questions, and she is not alone. There are multiple cases under way. As I’ve written before, one of the central problems for judges in cases involving the executive order is what to do when the President lies to them. Brinkema, along with judges on the Ninth Circuit Court of Appeals and elsewhere, has also grappled with a related quandary: how to deal with a President who disdains them, to the point of arguing that he needn’t engage with them at all. One case brought in Seattle, by the State of Washington, yielded a temporary restraining order with national effect that was upheld, last week, by a three-judge panel at the Ninth Circuit. (On Thursday, the parties are due to submit briefs on whether the Ninth Circuit should rehear the Administration’s request for a stay of the order en banc—that is, before an eleven-judge panel; the Administration has the option of going straight to the Supreme Court but so far hasn’t taken it.) Brinkema noted that it was only thanks to the Seattle judge’s temporary restraining order that Najwa Elyazgi, a Libyan national who is a senior at George Mason University, was able to return from winter break after being stranded in Istanbul for a week. (Virginia estimated that a thousand students and sixty-six faculty members at its public colleges and universities had been affected by the ban.) Virginia’s attorney general was among those waiting to welcome her back at the airport. But Elyazgi and others will not be protected if the Ninth Circuit ruling is overturned or if the restraining order it left in place is narrowed.
Brinkema’s preliminary injunction was more limited in scope than the Seattle order: she applied it only to Virginia residents who at the time of the executive order were green-card holders, or had valid student or work visas or spousal or family visas. (Like the Ninth Circuit judges, she found that the Trump Administration’s assertion that the order would not be enforced against green-card holders, after initial indications otherwise, to be unreliable—an instance where Trump’s inconsistency has clearly hurt him in court.) She said that she had written the injunction narrowly in order to protect it from claims of “overbreadth.” Brinkema’s injunction is a reminder of the many ways in which courts in different parts of the country may block all or part of the executive order.
She wrote that Virginia had shown that it was likely to succeed in arguing that the executive order violated the Establishment Clause, by discriminating on the basis of religion. The state had done so, in part, by quoting Donald J. Trump. He had called for a “Muslim ban” in a statement that, as of when Brinkema made her decision, was still on his Web site.
In an interview he gave to the Christian Broadcasting Network, on the morning of January 27th, Trump explained that his goal was to end what he portrayed as the overly generous treatment of Muslims under the Obama Administration, at the expense of Christians (“I thought it was very, very unfair”), and to specifically “help” Christians going forward. Brinkema noted, “That evening, the EO was signed.” She also quoted Rudy Giuliani telling Fox News that the “whole history” of the executive order began with the promise of a “Muslim ban,” followed by the linguistic wriggling necessary to get such a thing past the courts. One of the quotes, from Trump’s post-election interview on “60 Minutes,” with Lesley Stahl, which Brinkema cited more than once as evidence of the religious animus behind Trump’s ban, captures his disinterest in the relationship between words and the truth: asked if there would still be a Muslim ban, he said, “Call it whatever you want. We’ll call it territories, O.K.?”
That was not O.K., nor was the idea that the Administration could ignore the Due Process Clause. At certain points, Brinkema instructed Trump in the basics of why he had to be in court at all. Yes, Congress had passed a law, in 1952, saying that the President could exclude certain aliens if he thought that they posed a danger. (As my colleague Jeffrey Toobin noted, the Ninth Circuit has been criticized for not citing this law specifically in its opinion, though later laws may limit it.) And the President’s power might, as Justice Robert Jackson once wrote, be at its “zenith” when it coincides with an act of Congress. But, Brinkema wrote, “maximum power does not mean absolute power.” For one thing, “defendants have cited no authority for the proposition that Congress can delegate to the president the power to violate the Constitution and its amendments.” That may be because there is no such authority.
It was, Brinkema wrote, quoting earlier opinions, the court’s job to adjudicate when a government action “is alleged to conflict with the Constitution,” and it has been “at least since Marbury v. Madison”—that is, since a case that the Supreme Court decided in 1803.
“There is no interest more weighty than a bona fide national security concern,” Brinkema added. But good faith was not necessarily what all this was looking like to Brinkema. She wasn’t trying to get a seat in the Situation Room to analyze intelligence and make a national-security judgment (although she, like the Ninth Circuit judges, reminded the government that there were mechanisms that would allow it to show her classified information). But she was entitled to ask “whether the EO was animated by national security concerns at all.” The question, that is, was whether Trump was being honest about what he was doing and why, or whether he was invoking national security as a cover for bigotry.
Brinkema quoted a Supreme Court opinion to make the point that the courts could look behind the excuses the President offered on a given day, and explore his true motives, “in those unusual cases where the claim was an apparent sham.” The entire country finds itself in an unusual case: a President, selling one sham after the other, without explanations or shame.