The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
One of the main points at issue in the travel ban case that will be argued before the Supreme Court on Wednesday is whether courts can use President Donald Trump's campaign statements as proof that the true motive for the policy is discrimination against Muslims. The administration and other defenders of the travel ban argue that judges are not allowed to consider such evidence. If this theory prevails, it would set a dangerous precedent for other discriminatory policies.
The Supreme Court has long held that seemingly neutral policies can be invalidated if the motive behind them is discrimination on the basis of race ethnicity, sex, religion, or some other classification forbidden by the Constitution. Under that standard framework, the travel ban should be toast. During the 2016 campaign, Trump repeatedly called for a "Muslim ban" that would bar Muslims from entering the United States. When he eventually switched to a a policy of targeting citizens of Muslim-majority nations rather than individual Muslims, Trump repeatedly equated this "territorial" approach with his original policy, and even called it an "expansion" of the Muslim ban he promised earlier. The "territorial" approach is, of course, what ultimately became the travel ban executive order, now in its third iteration.
The newest version, currently before the Supreme Court, is substantially similar to its predecessors. Indeed, it is actually worse. Unlike its predecessors, Travel Ban 3.0 bars citizens of several Muslim-majority nations indefinitely, not merely for 90 days. Claims that Travel Ban 3.0 is based on information-sharing concerns fall apart under scrutiny, because the list of countries included and excluded in the ban does not actually track their information-sharing practices. The inclusion of North Korea and a few Venezuelans in the ban also makes little difference, because it bars only a tiny number of people who might have entered otherwise. Both the information-sharing theory and the partial inclusion of these two non-Muslim nations are obvious smokescreens.
If Trump's campaign statements are fair game, the evidence of unconstitutional discriminatory motive becomes overwhelming. Imagine a head of a government agency who repeatedly states that he wants a ban on hiring African-Americans. After months of advocating that policy, he adopts a "territorial" approach that bars the hiring of residents of several majority-black neighborhoods. He repeatedly emphasizes that the new policy is essentially similar to the old (an "expansion" of it, even), and has the same purpose. No one could seriously doubt that the "territorial" hiring ban is unconstitutional. It would not matter that it does not exclude all black applicants, or that a few applicants of other races would also be excluded, because they live in the covered areas.
If the Supreme Court rules that campaign statements cannot be considered, that would create a very dangerous precedent. Politicians could openly advocate discriminatory policies during the campaign, then rely on more careful and euphemistic phrasing after they take office. On the campaign trail, they can openly say they want to target blacks, Muslim, atheists, Evangelical Christians, or some other minority group. Afterward, they can adopt a policy targeting some seemingly neutral characteristic that closely correlates with membership in the group in question. And, after taking office, they can stick to carefully scripted official justifications for their actions that elide the true purposes.
Prof. Josh Blackman, a leading academic defender of the travel ban's legality, suggests we need not worry, because "I don't know that we'll ever have a president again like Trump, who says such awful, awful things on a daily basis." But if Trump's political strategy of appealing to xenophobia and anti-Muslim bigotry is perceived as a success, we can expect to see other politicians imitate it. Moreover, there is a long history of politicians exploiting racial, ethnic, and religious prejudice. It would be naive to assume that such tactics are entirely a thing of the past, or will be once Trump leaves the political scene. If anything, a more disciplined and skillful politician might able to use the Trump "road map" more effectively than Trump himself. Once he gets into office, he might be more careful about what he says and Tweets.
The Trumpist right is not the only side of the political spectrum capable of adopting facially neutral policies intended to target minority groups its base dislikes. In oral argument at the Masterpiece Cakeshop case argued before the Supreme Court this fall, Justice Anthony Kennedy highlighted statements suggesting that Colorado officials were at least partly motivated by animus against conservative Christians when they adopted policies requiring bakers to prepare wedding cakes for same-sex marriages they object to on religious grounds. If the right can effectively target Muslims for discrimination, elements on the left could well use similar tactics to go after religious groups they dislike.
It is precisely because racial, ethnic, and religious discrimination are often popular, that the Constitution had to be amended to forbid such policies. Otherwise, we could depend on the ordinary political process to prevent them. We should not put our faith in the good will and probity of politicians. As James Madison famously warned, "enlightened statesmen will not always be at the helm." Trump is not the first distinctly unenlightened person to get into power, and he is unlikely to be the last.
Defenders of the travel ban argue that campaign statements must be excluded either because they are not official acts, or because they may be unreliable, given that politicians often lie during campaigns. Neither theory makes much sense. In determining whether unconstitutional discrimination was the true motive for a seemingly neutral policy, the Supreme Court requires judges to make "a sensitive inquiry into such circumstantial and direct evidence of intent as may be available," including "[t]he historical background of the decision" and "[t]he specific sequence of events leading up to the challenged decision." It is blatantly obvious that Trump's campaign promises qualify as "direct evidence of intent" and they are certainly part of "specific sequence of events leading up to" the travel ban policy. Indeed, the policy would never have been adopted without them. The important question is not whether these statements are official but whether they shed light on the decision-maker's motives. In the travel ban case, it is obvious that they do.
Politicians do indeed sometimes lie during campaigns. But, historically, presidents actually have tried to keep the vast majority of their campaign promises, especially the high-profile ones, like Trump's Muslim ban. Moreover, if the possibility of lying is a justification for excluding politicians' statements as evidence of motive, the same reasoning would justify excluding what they say after they take office, as well. After all, sitting presidents often lie too. As in the many other legal cases where the outcome turns in part on motive, judges must sift the relevant evidence to determine how credible it is.
Perhaps it is not politicians generally, but only the president, whose campaign statements must be excluded from judicial consideration. Otherwise, we might prevent him in acting on important national security issues. But nothing in the Constitution indicates that the president should be held to a lower level of scrutiny in discrimination cases than other government officials. Indeed, it would be perverse to create a special, ultra-deferential, standard of review for the most powerful office in the land, one whose abuses are likely to be particularly dangerous. A long history of cruelly abusive policies also shows that it is dangerous to give special deference in immigration and national security cases. An amicus brief I coauthored on behalf of a group of constitutional law scholars explains in more detail why the First Amendment's ban on religious discrimination constrains immigration policy no less than other exercises of federal power.
Blackman and the administration also claim we must exclude Trump's campaign statements because considering them would give courts a "green light to parse campaign statements and the like, [and] this could potentially hamstring not just this president, but also future presidents." That concern is in some tension with his prediction that future presidents are unlikely to "say…such awful, awful things," as Trump does.
Regardless, concerns about "hamstringing" legitimate government policies are greatly overblown. Under the longstanding discriminatory motive framework required by the Supreme Court, striking down a policy requires more than merely proving that the decision-maker has made bigoted statements. Rather, there must be a clear connection between the statement and the policy. As a lower court decision striking down Travel Ban 2.0 put it, Trump's travel ban statements are relevant "because they are closely related in time, attributable to the primary decisionmaker, and specific and easily connected to the challenged action." Federal courts have used such standards in assessing pretextual discrimination cases for decades. It has not resulted in the "hamstringing" of legitimate government policies, or anything close to it.
If anything, assessing presidential motivations is likely to be less problematic than assessing those of legislative or administrative bodies, as courts routinely do in other cases. In the former situation, the the relevant motives are those of a single person. It is much harder to assess the motives of a multi-member group, in which some participants have different agendas than others.
Even when there is proof of relevant discriminatory motive, the government can still justify the challenged policy if it can show it had legitimate purposes that would have led to its adoption, even in the absence of unconstitutional ones. In the case of the travel ban, such a showing is highly unlikely, because the security rationale for the policy is laughably weak, to the point where the ban undermines security more than it enhances it. But this part of the legal framework undermines claims that a defeat in the travel ban case might somehow prevent Trump from ordering air strikes against Muslim terrorists or imposing sanctions on Syria and Iran.
Ultimately, there is little basis for fears that judicial consideration of Trump's campaign statements will unduly inhibit legitimate government policies. There is far more reason to fear that a victory for Trump would create a road map for future discrimination.