On Friday, a dissenting opinion by Judge Alex Kozinski and a New Yorker column by Jeffrey Toobin both argued that courts should not consider President Trump’s prior anti-Muslim statements when evaluating the constitutionality of the President’s travel ban orders.  Kozinski and Toobin are people to be taken seriously, and their perspective has some intuitive appeal.  But their view conflicts with established constitutional law.  Under well-settled Supreme Court precedent, the constitutionality of a given action often depends on the government’s motive: exactly the same action can be constitutional or unconstitutional depending on the reason why the government is doing what it is doing.  So to the extent that Trump’s statements about the travel ban shed light on why the executive orders were issued—and they surely do—those statements are material to the constitutional analysis.

Consider several canonical cases establishing the principle that motive matters:

• In United States v. O’Brien, the Supreme Court held that criminalizing the practice of burning draft cards was constitutional because the government’s motive was to preserve the physical cards, which were needed to administer the draft, rather than to suppress the ideas that the burning of draft cards communicated.  If the government had acted for the purpose of suppressing those ideas, it would have acted unconstitutionally.
• In Washington v. Davis, the Supreme Court considered whether a written test used as part of a police department’s promotion process was unconstitutional because white officers passed the test as a rate significantly higher than black officers.  The Court deemed use of the test valid because there was no evidence that the police department was using the test for the purpose of limiting the number of black officers who would get promoted.  The test just happened to have that effect.  In other words, exactly the same practice—promoting officers on the basis of the challenged test—would be constitutional or not depending on whether the police department’s motive for the practice was discriminatory. 
• In Personnel Administrator of Massachusetts v. Feeney, the Court upheld the use of a veterans’ preference in public employment, despite the fact that the veterans’ preference made it almost impossible for women to get certain jobs.  (In the 1970s, when the case arose, a large proportion of male employment applicants were veterans, but almost no female applicants were.)  If Massachusetts had adopted the veterans’ preference for the purpose of excluding women, the Court explained, it would be invalid.  But because Massachusetts had no sexist motive and was just trying to help veterans, exactly the same practice was constitutional. 
• In Employment Division v. Smith, two members of a Native American religious sect whose rituals involved the use of peyote argued that state laws criminalizing peyote violated their First Amendment right to the free exercise of religion. The Supreme Court rejected their claim on the ground that the peyote laws at issue had not been passed for the purpose of impeding anyone’s religious activity. Yes, the law had that effect as applied to the challengers.  But the law would only have been unconstitutional if the state, in passing the law, had been motivated by the purpose of interfering with religious practice.

Across all of these contexts, government action that would be constitutional if undertaken for permitted motives is unconstitutional if undertaken for forbidden motives.  Assessing the government’s purposes in acting is accordingly a routine and indispensable part of constitutional adjudication.  And there can be no serious doubt that Trump’s statements about banning Muslims tell us something about why these executive orders were issued. 

Toobin asks whether it can really be the case that Trump’s executive orders are unconstitutional but exactly the same orders would be valid if they had been issued by President Obama, who did not make any anti-Muslim statements.  But to answer that question, we need to know whether Toobin is asking us to imagine a scenario in which anti-Muslim prejudice led Obama to issue these orders or a scenario in which Obama issued these orders without being motivated by that prejudice.  If Obama had issued Travel Ban 2.0 without a prohibited motivation, the order might well be constitutional.  (My own suspicion, for what it’s worth, is the situation where a president issues these orders without being motivated by anti-Muslim prejudice would never arise—that is, that no sensible administration would issue these orders unless it had a discriminatory motivation.)  And if Obama had issued orders like these and was motivated by anti-Muslim prejudice, then his orders would have been exactly as unconstitutional as Trump’s are.  Indeed, they’d have been unconstitutional whether or not Obama had announced his prejudice publicly: what makes Trump’s orders unconstitutional is his motivation, not his statements, and his statements are significant because they are evidence of his unconstitutional motive.  So it’s not that the same action is constitutional if taken by Obama but unconstitutional if taken by Trump.  It’s that the same action can be constitutional if taken for permissible purposes but unconstitutional if the motive is discriminatory, and Trump is a president who has announced his discriminatory motivation.

Judge Kozinski, for his part, agrees that courts can look at official statements of policy to determine whether the government is acting on the basis of a prohibited motive.  If the executive orders themselves said something like “We’re going to stick it to the Muslims,” Kozinski would think that mattered.  Kozinski warns, however, that a judicial practice of searching for prohibited motives in the things political candidates and government officials say to various public audiences will lead to an endless game of gotcha, in which plaintiffs google the statements of candidates and officials in search of incautious remarks that can be used in litigation.  But this worry seems vastly exaggerated.  Courts confronting claims of discriminatory motive give the government the benefit of the doubt: judges are not going to deem government actions unconstitutional just because something somebody said might be interpreted as biased.  

What is unusual about the present case is that Trump’s statements were so clearly biased and so brazenly made, so much so that giving him the benefit of the doubt would amount to willful disregard of the obvious.  Imagine, by analogy, that the police chief in Washington v. Davis had said, on camera and in front of a large public audience, “I want the Department to use a written test that weeds out black applicants as part of our promotions process.”  As a historical matter, there’s no reason to think the police chief in that case had any such racist purpose.  But if the Chief had made that statement, it would obviously be relevant to the question whether the Department’s motivation for giving the test were discriminatory.  Indeed, it probably would suffice to decide that question and make the test unconstitutional. 

Moreover, it hardly seems fair to tell people who allege their rights have been violated that they can show unconstitutional motives only on the basis of what is contained within official policy announcements and not with evidence of what the policymaking officials have said elsewhere.  Even in this Administration, senior officials implementing discriminatory policies usually know better than to write things like “We are intent on preventing Muslims from coming into the country” into the text of executive orders themselves.  If challengers must show illicit motive to prevail, they ought to be able to take good evidence of illicit motive where they find it.  And the repeated statements of the President here seem like pretty reasonable evidence.      

Kozinski also asks whether an official who once said something suggesting a prohibted motive can ever purge the taint, or whether all of his related actions in the future will be held invalid—a result that he suggests would be absurd.  But the answer to his question, of course, is that a statement demonstrating unconstitutional bias will doom future government actions only to the extent that courts believe that that bias motivated the government action at issue.  The constitutionality of the official’s actions depend on his motives, and his statements are one category of evidence about his motives. If a biased statement and a government action are far apart in time, or if other circumstances indicate that there is little or no connection between the bias and the policy choice, then the government’s action can likely stand.  But if the prejudice that the official announced does seem to have motivated the government’s action, that action is unconstitutional.  And sensibly so, because the Constitution forbids the government to act based on discriminatory motives.

The rule that constitutionality depends on motive usually favors the government in civil-liberties cases, because it is usually hard to prove that the government has acted for bigoted reasons.  For half a century, governmental actions with clearly discriminatory motives have been rare—and in cases where the government’s motive might indeed be discriminatory, it is typically hard to find proof, because most government officials know better than to go around saying “This is a law targeted at blacks / women / gays / Muslims.”  The sitting President is that unusual public official who publicly articulates his discriminatory attitudes.  If the result is that courts will invalidate more of President Trump’s orders than those of other recent administrations, the reason is straightforward: unlike his predecessors, Trump is acting for discriminatory purposes and openly announcing his unconstitutional motivations.

Toobin writes that “The Muslim ban is either constitutional or it’s not—and Donald Trump’s words on the campaign trail don’t’ settle that question one way or the other.”  But whether an action is constitutional often depends on the reason why it was taken—the real reason, not the prettified reason that the government pretextually offers in court to defend its action from constitutional attack.  Usually courts don’t second-guess reasons that the government offers, largely because there is rarely clear evidence that the real reason is discriminatory.  Where the real motive is in doubt, courts tend to assume that the government has acted in good faith.  In national security and foreign-affairs cases, that judicial deference in cases of doubt is especially strong. 

But where clear evidence of discriminatory motive exists, it cannot be ignored.  If the President’s statements show, either alone or in combination with other evidence, that the executive orders were motivated by anti-Muslim prejudice, then the government cannot save the orders by insisting officially that the motives behind them are benign.  If the Administration doesn’t want its orders to be struck down, it shouldn’t act on the basis of discriminatory motives.

Richard Primus is the Theodore J. St. Antoine Collegiate Professor at the University of Michigan Law School. 

Follow him on Twitter @Richard_Primus.

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