By Matthew Segal
The ongoing travel ban litigation has triggered intense debate on whether an assessment of the ban’s constitutionality must be limited to the“four corners” of President Trump’s revised executive order. This is partly because there is little else to discuss. Given the Trump Administration’s many anti-Muslim statements, it’s hard to imagine how the ban could be upheld by any court that gives serious weight to that evidence. Indeed, the few judges who have suggested that the ban might survive judicial review have largely declined, in the words of Ninth Circuit Judge Jay Bybee, to look “behind the curtain” of the executive order itself.
As several commenters have shown, including the ACLU’s David Cole, the strict “four corners” view is wrong. In assessing whether the travel ban is constitutional, courts should not turn a blind eye to its broader anti-Muslim context.
But does the relevant context include everything the Trump Administration has said?
In a brief just filed with the Fourth Circuit, the government argues that campaign statements should carry essentially no weight. Versions of this argument have also been advanced by Ninth Circuit Judge Alex Kozinski and The New Yorker’s Jeffrey Toobin.
Of course, even if only the executive order’s four corners are considered, the ban is still unconstitutional. But it’s worth asking whether a special rule for campaign statements, which might be called “four corners lite,” has merit.
In the government’s view, campaign statements “do not prove anything” about the motives of President Trump’s actions in office. Judge Kozinski has warned that if campaign statements are deemed to be evidence in court, politicians’ free speech in electoral contests might be chilled. And in Toobin’s telling, courts that consider campaign statements are unfairly “playing gotcha with the President,” because campaign statements can be improvised and informal.
It’s true that campaign statements deserve special consideration. But their special qualities don’t make them less relevant than other presidential statements. If anything, the opposite is true.
First, campaign statements often provide a clear window to the candidate’s true intent. For example, in 2007 the Fifth Circuit affirmed a verdict against a Louisiana district attorney who, shortly after taking office, replaced more than 50 white employees almost exclusively with Black people. Although the district attorney advanced race-neutral reasons for these decisions, he had pledged during his campaign to make his staff’s “racial composition” more reflective of his parish’s population. In affirming the jury’s finding that the district attorney had engaged in unlawful discrimination, the Fifth Circuit noted that his actions were connected to this discriminatory “campaign promise.”
The travel ban’s connection to a discriminatory campaign promise is even clearer. President Trump’s Muslim ban proposal wasn’t improvised; it was a formal call “for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” That call is still on the Trump campaign website; in fact, it was restored to the site in November 2016 after being briefly taken down. So which is more probative of the president’s true intent: his formal campaign promise or briefs from lawyers given the unenviable task of laundering the president’s intentions? The answer is obvious.
Second, campaign statements often send the strongest messages to the public, and those messages make a difference under the Constitution. As explained by District Judge Derrick Watson in Hawaii in his recent decision enjoining the revised executive order, the Establishment Clause prohibits government action that “sends a message” favoring one religion over another. Immediately following that decision, President Trump confessed that he wanted to “go back to the first [executive order] and go all the way.” As messages go, President Trump’s campaign pledge to ban Muslims, and his reaffirmation of that pledge as president, speak far more loudly than any post-hoc memo claiming that the ban is really about national security.
Third, over the long term, giving presidents a free pass for discriminatory campaign statements could damage our democracy. Far from chilling speech, if we hold candidates to their words, we should be concerned about facilitating discrimination by exempting entire categories of political speech from ordinary methods of proving intent. That’s because what is at stake in the travel ban litigation is not just whether President Trump will be held accountable for his past campaign statement but also whether politicians in future campaigns will have to worry that promising unconstitutional actions will come back to bite them in court when, as public officials, they seek to make good on those promises.
If candidates know in advance that courts will ignore campaign rhetoric, they will be freer to ride to office (or even re-election) on a wave of hatred and prejudice. They’ll just need to remember to use magic words like “national security” when converting prejudicial campaign promises into concrete policy bludgeons.
Campaign statements are important to candidates and meaningful to the public; they should not be disregarded by courts. President Trump’s campaign statements represent a true expression of the travel ban’s discriminatory purpose. They are a loud delivery of Trump’s anti-Muslim message. And they are a frightening roadmap for how would-be demagogues might use one story to win elections and a contrary story to win cases.
Courts that call out these problems aren’t using campaign statements to play “gotcha” with President Trump. They are ensuring that each and every president will not use campaign statements to play games with the Constitution.
Matthew Segal is Legal Director of the ACLU of Massachusetts