Is the new travel ban unconstitutional? It may come down to whether courts can take campaign statements seriously

First, a quick recap: On January 27th, 2017, President Trump signed an Executive Order banning travelers from seven Muslim-majority countries from the United States, but giving priority to refugee claims made by individuals whose religion “is a minority religion in the individual’s country of nationality.” In other words, the Order favored Christian refugees over Muslim refugees, which many legal experts saw as a violation of the Establishment Clause of the First Amendment. On February 9, a federal appeals court temporarily blocked the Trump administration from carrying out the Order. (The court did not rule on the First Amendment issue.) On March 6, Trump signed a revised version of the Executive Order, which, among other changes, no longer contains a provision prioritizing one religious group over another.

Does that mean the revised Order doesn’t violate the First Amendment?  Not according to the federal District Court of Hawaii, which issued an order on March 15 temporarily blocking the Trump administration from carrying out its new (but apparently not improved) Order.  The court said that even though the revised Order’s text makes no mention of religion, and doesn’t expressly state a preference for one religion over another, it still violates the Establishment Clause because its purpose is to discriminate against Muslims, as evidenced by statements that President Trump has made.

This isn’t an uncommon line of reasoning in constitutional law.  The Supreme Court has established that courts can’t just consider the words of a law when deciding whether or not the law’s purpose is discriminatory; they also have to analyze the law’s history, the context in which it was proposed, and statements made by key decisionmakers.

The court’s analysis:

The Government appropriately cautions that, in determining purpose, courts should not look into the “veiled psyche” and “secret motives” of government decisionmakers and may not undertake a “judicial psychoanalysis of a drafter’s heart of hearts.”…The Government need not fear. The remarkable facts at issue here require no such impermissible inquiry. For instance, there is nothing “veiled” about this press release: “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.[]”…Nor is there anything “secret” about the Executive’s motive specific to the issuance of the Executive Order: Rudolph Giuliani explained on television how the Executive Order came to be. He said: “When [Mr. Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.

President Trump has never disputed these statements, and has made many more proclamations against Muslim immigration to the United States. But on March 17, Judge Kozinski, an appellate judge of the 9th Circuit, expressed his disagreement with using a “trove of informal and unofficial statements from the President and his advisers” to establish the purpose of the Order.

Kozinski wrote:

This is folly. Candidates say many things on the campaign trail; they are often contradictory or inflammatory.  No shortage of dark purpose can be found by sifting through the daily promises of a drowning candidate, when in truth the poor shlub’s only intention is to get elected. No Supreme Court case—indeed no case anywhere that I am aware of—sweeps so widely in probing politicians for unconstitutional motives. And why stop with the campaign? Personal histories, public and private, can become a scavenger hunt for statements that a clever lawyer can characterize as proof of a -phobia or an -ism, with the prefix depending on the constitutional challenge of the day. This path is strewn with danger. It will chill campaign speech, despite the fact that our most basic free speech principles have their “fullest and most urgent application precisely to the conduct of campaigns for political office.”… And it will mire us in a swamp of unworkable litigation. Eager research assistants can discover much in the archives, and those findings will be dumped on us with no sense of how to weigh them. Does a Meet the Press interview cancel out an appearance on Face the Nation? Does a year-old presidential proclamation equal three recent statements from the cabinet? What is the appropriate place of an overzealous senior thesis or a poorly selected yearbook quote?

There’s been some concern over whether Judge Kozinski should have addressed this issue at all.  (Kozinski was not making a decision on whether to overturn the District of Hawaii’s ruling; he wrote these words in a dissenting opinion for a different, albeit related, case. The circumstances that led to Kozinski weighing in on the District of Hawaii’s reasoning are complicated, to say the least; law Professor Richard L. Hasen explains them eloquently in his article in Slate.)

There’s also a good chance that the Trump Administration will adopt Kozinski’s argument if and when their case goes in front of the Supreme Court.  The revised Order’s survival is likely to hinge on First Amendment issues–a challenge based on freedom of religion, countered with a defense grounded in freedom of speech .

 

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