It has been a while since President Trump’s travel ban has been in the news. However, it was front and center at Western Washington University on May 2. In a public lecture hosted by the Political Science Department, Washington State Attorney General Bob Ferguson spoke about the state’s lawsuit that resulted in the executive order being struck down. Nearly 300 people crammed into the main lecture room and overflow room, and some had to be turned away from both locations.
The speech promised to be a great opportunity to learn from and challenge a key public official. Ultimately, however, the final results were disappointing at best.
What Ferguson Said
After a brief introduction by Professor Paul Chen, Ferguson opened his speech with a video. The footage showed then-candidate Donald Trump calling for a ban on Muslims entering the country. Ferguson then cited a Rudy Giuliani quote that he argued showed Trump’s intention to institute a “Muslim Ban.”
According to Ferguson, such a ban was and is unconstitutional.
Ferguson described some behind-the-scenes details of how his team filed the lawsuit. He shared that he had support from Amazon, Expedia, 97 tech companies, and a bipartisan coalition of national security experts. (What any of that has do with the Constitution is a question that remains unanswered.)
He then went on to cite the First and Fifth Amendments as his Constitutional arguments, and a series of statutory arguments. Most notably, he cited the Immigration and Nationality Act. That Act says, in short, that the government can not discriminate in immigration policy. Former Chief Assistant U.S. Attorney Andrew McCarthy did a great job dismantling those arguments in a January 28 article published by National Review.
Ferguson’s speech was followed by audience questions, which were mostly softballs–in fact, I’ve seen slow-pitch softball pitchers throw harder. Ferguson heaped praise on Sally Yates and commented on the incompetence of the DOJ attorney. He discussed how citizens could challenge Trump. He also shared what he was doing to fight deportations, and lamented the Administration’s rhetoric towards the judiciary and the press. (Samuel Alito was unavailable for comment.)
The only time an audience member even somewhat challenged Ferguson was on the difference between a “Muslim Ban” and the executive order’s focus on seven majority Muslim countries. In reply, Ferguson gave a nonsensical answer about Trump “still having a racial animus.”
Unsurprisingly, nobody pointed out that Islam is not a race.
What Was Left Out
The audience missed several opportunities to challenge Ferguson’s arguments. For example, no one questioned Ferguson about whether he was implying the Constitution applies to foreigners. Nor did anyone ask him about Jimmy Carter’s banning of Iranians after the Iranian Revolution in 1979.
Ferguson was also never questioned on the absurdity of citing campaign promises as a legal argument. As the late Justice Antonin Scalia said in Republican Party of Minnesota v. White, “Campaign promises are, by long democratic tradition, the least binding form of human commitment.” This is especially true here, where the campaign rhetoric differs from the actual law in question.
Ferguson’s argument, on the whole, was telling. His speech was premised on the idea that the rule of law matters and that nobody, even the President, is above the law. However, his main argument is that the law he is challenging says something it does not actually say.
Ultimately, Ferguson relied more on emotional arguments than legal ones, and the extremely friendly audience led to a disappointing Q&A session after his speech. Instead of chess, perhaps the Attorney General should join the snake oil business when he retires from politics.