Part One: Fourth Circuit Divides on Use of President Trump’s Campaign Statements in Travel Ban Case

Yesterday, the en banc Fourth Circuit majority affirmed the injunction against President Trump’s Executive Order 13780.  This executive order, the second iteration of its kind (EO-2), places a temporary ban on travel to this country from individuals without visas from six nations with majority-Muslim populations.  Ten judges held that the district court’s preliminary injunction should stand, finding EO-2 likely unlawful under either federal statutes or the Establishment Clause, with three judges dissenting.   However, only seven of the thirteen judges explicitly considered Trump’s statements made prior to his election.   Plus, four of the judges (one in concurrence and three in dissent) explicitly held that it is not proper for the court to consider statements made by an unelected official in determining the validity of EO-2.

The Supreme Court will likely have the final say on whether Trump’s campaign statements can be considered when assessing whether EO-2 violates the Establishment Clause.  Although the Supreme Court has acknowledged legislative purpose in the Equal Protection context by looking to the ways a proposed law is advertised, the Court has never considered whether an unelected official’s campaign statements can be used later to invalidate his official actions.  Using an unelected individual’s campaign statements to  invalidate his government behavior may have a deleterious effect on public debate.   This series will explore whether judges should consider Trump’s campaign statements in assessing the legality of EO-2 – both as a matter of sound constitutional jurisprudence and as a way of protecting the free speech values implicated by public debate.

In IRAP v. Trump, the Fourth Circuit majority reasoned that Trump’s campaign statements are so close in time and so relevant to EO-2, that these statements must be considered.  Trump’s campaign website called for “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what’s going on.”  Trump cited statistics about anti-American and pro-jihad sentiments of Muslims abroad, and gave interviews claiming that “Islam hates us.”  Although Trump, even as a candidate, later reclassified his plans as targeting specific countries with terrorism risks, not targeting Muslims, the majority provided reasons for thinking this re-characterization was disingenuous.

Ultimately, the majority held that EO-2 violates the Establishment Clause because a reasonable observer would find that the primary purpose of the executive order was to exclude Muslims from this country.  The majority held that Trump’s campaign statements show an obvious, specific intent to exclude Muslims.  The majority held that “[t]he campaign statements here are probative of purpose because they are closely related in time, attributable to the primary decision-maker, and specific and easily connected to the challenged action.”

In some ways, this reasoning is sound.  Ignoring Trump’s anti-Muslim rhetoric from when he was on the campaign trail is an almost impossible task for a judge determining whether EO-2 violates the Establishment Clause.  However, judges are asked to ignore relevant evidence quite often.  Judges in criminal cases must overlook damning evidence when deciding whether to admit this evidence based on the rules of evidence or constitutional exclusionary rules.  And, if acting as trier of fact in a bench trial, judges must often ignore the damning evidence they have deemed inadmissible.

Judge Thacker’s concurrence, and the views of the dissenting judges, may be a better approach to consideration of campaign statements in constitutional challenges.  Judge Thacker also held that EO-2 violates the Establishment Clause — but considered only statements made by Trump and his advisers after Trump was elected President.   Judge Thacker noted that the judiciary’s role in probing official conduct is confined to the use of official power.

Analysis under the Establishment Clause of the First Amendment asks whether the government has impermissibly endorsed or entangled itself with religion (or, according to the majority, whether it has acted with religious animus).   Trump’s campaign statements do not represent the views of the government, and thus are not part of his official state action to be considered by the courts.  Only actions of elected officials can violate the Constitution.  Indeed, Trump’s anti-Muslim campaign statements were made prior to his taking the oath of office to respect the Constitution.  Plus, as Judge Thacker noted, Trump has changed his mind about his promises and goals several times during the campaign.

In dissent, Judge Niemeyer expressed dismay with the majority’s opening up the “unbounded resources” of campaign statements to give courts “free reign” in supporting whatever conclusion a court prefers politically.  In our current judicial climate – fraught with judicial realism and politicization — this is a real concern.  Further, binding elected officials to their campaign statements likely means that there is very little Trump can do now on immigration from certain countries — even orders that could have been legal if made by a different elected official — that will not be suspect.  That seems an unacceptable way to assess a President’s actions and will be unduly constraining to creating immigration policy.

Like the majority, I find Trump’s statements quite relevant to assessing the constitutionality of EO-2.  The reasonable observer of EO-2 cannot divorce Trump’s pre-inauguration statements from his resulting executive order.  However, relevance is not the only consideration in constitutional adjudication.  The Supreme Court, in reviewing this case, must also consider the implications of its ruling on those running for elected office in the future.   There may not be an actual First Amendment problem here — since the statements are being used only after a candidate has been elected to assess the constitutionality of actual state action.  However, a court’s considering campaign statements surely implicates free speech values.

The majority believed that considering campaign statements will not chill debate because most political debate will not have any relevance to a challenged government action.  This gives short shrift to an important issue.  If candidates know that what they say may later be used to invalidate their official actions, politicians will be even more calculated and circumspect in presenting their views to the public.  Political debate already suffers because candidates unduly rely on talking points stripped of nuance.  Politicians worry about admitting any weaknesses in their proposed policies, most of which involve real tradeoffs, and this worry stifles cooperation and honest discussions about governmental actions.  A viewing of Trump and Hillary Clinton discussing health care policy highlights this problem of over-crediting one’s own policies in a polarizing way.  The majority’s reasoning on campaign statements will encourage even less candor in discussing policies.

In future posts, I will delve deeper into the question of whether campaign statements should be considered, by examining both case law and First Amendment doctrines about chilling speech.