Part Two: Judicial Legitimacy and Governing Law

This is the second post in a series on whether, and how, President Trump’s campaign statements should be considered when deciding the constitutionality of his travel ban, Executive Order 13780 (EO-2).  The first post in this series, on the Fourth Circuit’s division over whether campaign statements can be considered in the Establishment Clause analysis, is here.   In this post, I explain why campaign statements matter to the constitutional calculus.  I also sketch out possible ways of treating the campaign statements to best comport with rule of law principles.

As expected, the federal government has filed a petition for certiorari to the Supreme Court in Trump v. IRAP.  The Department of Justice seeks review of the Fourth Circuit’s preliminary injunction against EO-2.  Along with the cert petition, the DOJ has also filed applications for the Supreme Court to temporarily halt injunctions to EO-2 issued by both the Fourth Circuit and a district court in Hawaii (that case is currently pending before the Ninth Circuit).  Both of these courts held that EO-2 likely violates the Establishment Clause of the First Amendment – because the order’s primary purpose is to exclude members of a particular religion from traveling to this country.  Both the en banc majority of the Fourth Circuit and the Hawaii trial court significantly based this conclusion on campaign statements about the dangers posed by Muslims made by Donald Trump.

Trump v. IRAP is a heavily watched, highly consequential case.  Opponents of Trump’s EO-2 believe that the ban will allow religious favoritism and orthodoxy to become the law of the land, in violation of fundamental principles upon which this country was founded.  Supporters of EO-2 argue that the ban is temporary, critical to natural security interests, and facially neutral (meaning the ban does not actually target Muslims but simply countries with terrorism risks that happen to have Muslim majorities).  Both supporters and opponents have accused the other side of using disingenuous legal analysis to reach a political conclusion – reverse engineering legal analysis from a desired outcome.  Accusing others, or courts, of “playing politics” is not uncommon, although it is corrosive (even though it is sometimes true).  When people believe the Supreme Court is simply a political body, it gives the Court (and academics) cover to act politically instead of engaging in nonpartisan, honest legal analysis.

The law governing whether EO-2 violates the Establishment Clause will come from either Kleindienst v. Mandel or Lemon v. Kurtzman.  (There are also standing and statutory issues in Trump v. IRAP, but the primary question is whether EO-2 violates the Establishment Clause.)  The Department of Justice argues that because EO-2 arises in the immigration context, Mandel should apply and the Court should simply ask whether EO-2 is supported by “a facially neutral and bona fide reason.”  This rule would make it easier for EO-2 to pass constitutional muster.  Challengers to EO-2 argue that because there is evidence of religious animus, courts should apply the less deferential test in Lemon v. Kurtzman, and ask whether EO-2, the challenged law: (1) has a secular purpose, (2) neither advances nor inhibits religion, and (3) does not foster entanglement between government and religion.

The choice between the more deferential Mandel and the constitutionally stricter Lemon, and the application of Lemon, are greatly affected by statements made by President Trump during his campaign.  Although the federal government argues that these statements are subject to multiple interpretations, some of the statements show hostility towards Muslims as a group.  If these campaign statements can be considered, the Supreme Court is more likely to apply Lemon and more likely to find that EO-2 has a religious purpose, in violation of the Establishment Clause.  President Trump also made statements about Muslims after he was elected, but the statements are nowhere near as damning.

There is essentially no law on point to determine whether campaign statements can be considered.  The Fourth Circuit majority supported its decision to consider the campaign statements with scant case law.  The majority cited an Eleventh Circuit case where the district court had considered an Alabama Supreme Court justice’s campaign statements, in conjunction with many other factors, to determine that placing a Ten Commandments statue at the state’s judicial building violated the Establishment Clause.   This case is fairly distinguishable because the Ten Commandments is more obviously religious than the text of EO-2.  The Fourth Circuit also cited three Supreme Court cases that are quite legally unrelated – two having to do with contemporaneous statements made by those proposing laws and one having to do with official statements of political party platforms.  These cases are unrelated because Trump’s campaign statements were made prior to his becoming a government actor or proposing EO-2.   (That said, the Fourth Circuit held that the fact that EO-2 was issued so soon after Trump took office was a major reason that Trump’s campaign statements could be considered.)

Because there are no real guiding principles to determine whether campaign statements can be considered, the Supreme Court must create these principles.  The Court should be careful to create clear, administrable principles that advance the rule of law.  The Court should not create a sui generis rule, which applies only to Trump, simply because we dislike Trump and we find this travel ban odious.

The Supreme Court has several options in determining whether it should consider campaign statements – either when deciding between Lemon and Mandel or in applying Lemon.  First, it could follow the Fourth Circuit and hold that in special cases of obvious relevance, campaign statements can be considered.  The Fourth Circuit held that consideration of Trump’s campaign statements is appropriate because there is a “direct link” between the statements and EO-2.  According to the majority, “[f]or a past statement to be relevant to the government’s purpose, there must be a substantial, specific connection between it and the challenged government action.”

This rule is somewhat broad and amorphous, although not totally unworkable.  Dissenters worried that consideration of campaign statements would allow courts in the future boundless leeway, based on myriad statements, to invalidate government action they dislike.  Another critical concern, and one I will explore fully in this series, is that any rule that allows judges to consider statements made of politicians before they take an oath of office will chill political debate.

Or, the Supreme Court could hold that campaign statements are always relevant to all constitutional challenges.   The Court could also pull creatively from other lines of cases – for example, the recusal context – where courts must determine whether statements made by a judge before or after she became judge should preclude her from hearing a particular case.  Commentators have also suggested that campaign statements be included only when a law is challenged for its intent, or purpose, as is arguably the case here (see prong one of Lemon).  The problem with this intent-specific approach is that many constitutional challenges can be framed as turning on intent.  For example, in the free speech context, courts ask whether a law discriminates on the basis of viewpoint.  In the Equal Protection context, courts ask whether a law was enacted with animus to decide whether the law receives heightened constitutional scrutiny.

Finally, the Court could decide that campaign statements should never be considered in constitutional analysis.   Just because the statements are relevant, does not mean they should be considered – if factors such as administrability and free speech values counsel against consideration.  In a dissent to a Ninth Circuit opinion on Trump’s previous travel ban, Judge Kozinski claimed that consideration of campaign statements is unprecedented and unworkable.

The DOJ’s cert petition argues that the Supreme Court “has never invalidated religion-neutral government action based on speculation about officials’ subjective motivations drawn from campaign-trail statements by a political candidate.”   DOJ argues that campaign statements are especially inapt because President Trump changed course on a true Muslim ban after being elected; EO-2 blocks entry based on territory, not on religion.  Notably, Judge Thacker’s concurrence in the Fourth Circuit would have held EO-2 unconstitutional even without the campaign statements, although the dissenters would have come to a different conclusion without the statements.

What is important here is that the Court assess whether Trump’s campaign statements can be considered before deciding whether or not it wants to uphold EO-2.   Any other approach would be contrary to the rule of law and would truly be reverse engineering.  In future posts, I will discuss the relative merits of these many approaches.