//  4/6/17  //  Commentary

This post continues my discussion of Judge Watson’s recent decision entering a preliminary injunction against President Trump’s revised travel ban. Two days ago, I explained why Judge Watson was correct to conclude that he had to examine the ban’s purpose. Today, I consider how he approached that question—and I offer a few thoughts about the (misguided) debate over considering Trump’s campaign statements.  


In its filings defending the revised travel ban, DOJ sought to persuade Judge Watson to consider only the order’s stated national security purposes and to ignore all other evidence. Judge Watson disagreed, pointedly replying that "the Court will not crawl into a corner, pull the shutters closed, and pretend it has not seen what it has."

In fairness, DOJ really had no choice but to insist on a strained and artificial view of the executive order. As Judge Watson remarked, DOJ lawyers had resorted to such arguments only because "historical context and the specific sequence of events leading up to the adoption of the challenged Executive Order are [] full of religious animus, invective, and obvious pretext." Here he cited McCreary Cty. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 862 (2005), which offered a wide-ranging discussion of how to conduct purpose inquiries in Establishment Clause cases. He also cited the Ninth Circuit’s opinion in Washington v. Trump, which (correctly) held that "it is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims."

Judge Watson Got It Right

As other Take Care contributors have noted, Judge Watson was 100% correct to hold that he must consider the full history and context of President Trump's executive order—including (but not limited to) statements made by Trump during the campaign.

To start, it is uncontroversial, as Richard Primus explains here, that "motive matters" under the Establishment Clause. A solid wall of precedent supports that proposition.

The question, then, is how to determine motive. Whereas some judges take the view that motive is an incoherent concept in relation to legislation—on the theory that imputing motive to a large number of actors with complex motives is a fruitless task—that objection is irrelevant here. First, the motive inquiry turns on why a single man (Donald Trump) issued a single order (the revised travel ban). And second, the Establishment Clause considers purpose in a more particular sense: how an objective observer, reasonably informed about the full context and history, would perceive the basis for a governmental action.

This formulation, of course, raises questions about what counts toward the context and history. And at this point in the analysis, many discussions of the revised travel ban veer into a debate over whether courts can account for Trump's campaign statements.

That is partly because, as Jon Taylor has noted, "if Trump’s campaign statements are fair game, then the case for the ban’s unconstitutionality is both strong and straightforward.” Indeed, not even Trump’s own lawyers have offered a serious defense of his remarks before January 20, 2017.

This is well-trod territory, so I'll offer just a few thoughts. For a helpful summary of relevant statements by Trump, see pages 8 to 10 of this opinion by Judge Chuang.

First, as Leah Litman has recounted (while pointing out a bevy of major mis-statements in DOJ's Fourth Circuit brief defending the revised entry ban), many of Trump's damning statements were made after the campaign. Thus, a fixation on the propriety of considering campaign statements is a red herring. Trump's executive order does not rise or fall on that determination alone. Indeed, here are some of his more notable post-election and post-inauguration statements (courtesy of Amir Ali):

(1) Over a month post-election, Trump was asked whether he would reevaluate his intention to ban people of the Muslim faith.  He responded:  “You know my plans all along, and I’ve been proven to be right.” 

(2) Immediately upon signing the initial Executive Order, President Trump read its oblique title “Protecting The Nation From Foreign Terrorist Entry Into The United States” and said, “We all know what that means.” 

(3) That same day, President Trump did a television interview, in which he was asked whether his Executive Order was intended to make Christians “a priority here.”  He answered “yes” and, after comparing the ability of Christian refugees to enter the U.S. to Muslim refugees, he said “we are going to help them,” referring to Christians.

(4) On the day that President Trump’s second order was enjoined by a federal judge in Hawaii, President Trump took to the podium to say that he would rather to “go all the way, which is what I wanted to do in the first place.”

(5)  President Trump remarked on March 16 that “The assimilation [of Muslims in the U.S.] has been very, very hard. It’s been a very, very difficult process.”

(6) President Trump’s campaign website—which is still updated on a daily basis—continues to state that he supports “a total and complete shutdown of Muslims entering the United States.”

These statements unquestionably suffice to call Trump’s primary motive into doubt.

Second, as a legal and practical matter, the case for treating Trump's campaign statements as off-limits is so weak that I struggle to understand how anybody takes it seriously. The Supreme Court has confirmed time and again that courts must consider the full context of governmental action in assessing motive, emphasizing that "the world is not made brand new every morning." Here, the connection in time, subject matter, and substance between Trump's campaign statements and his executive order is extraordinarily tight. What's more, as Amir Ali has observed, given that many of Trump's own post-inauguration statements explicitly reference statements that he made while campaigning, the post-inauguration evidence that everybody agrees we can consider is unintelligible except by reference to Trump's earlier remarks.

Third, federal judges consider evidence like this all the time. To the extent circumstances unique to the campaign trail render it less reliable, that goes to weight rather than to admissibility. But here, given the extraordinary link between Trump's campaign promises and his first acts in office, those promises merit careful attention.  

Finally, Judge Alex Kozinski's suggestion (echoed by Jeff Toobin) that First Amendment free speech values would be chilled by consideration of Trump's campaign statements is baseless and nonsensical. Are we supposed to believe that a candidate could run an explicitly and brutally racist campaign, somehow win an election, enact facially neutral measures that uniformly and distinctively injure the racial minority he had bashed for months, and then prevail against an equal protection challenge based on discriminatory intent? What if a candidate announced a day before being sworn in that she planned to implement three very specific policies for the sole purpose of harming Latinos—would that evidence be locked outside the courthouse door in a subsequent lawsuit? Certainly not.

In any event, the First Amendment protects speech—especially political speech by candidates—but that doesn't mean it allows politicians to evade any and all accountability for what they say if their words (or deeds) evince an illegal purpose. (Or, for that matter, if they incite violence against protesters at their rallies.) That's true during campaigns and it's true after campaigns are over.

Speaking of: If an incumbent is running for office, would Judge Kozinski selectively exclude statements made while campaigning, but consider statements made in all other contexts as part of a purpose analysis? That seems like a particularly awkward and unworkable way for courts to set about assessing purposeOf course, in practice most politicians are well aware that they can be held accountable for their speech. To quote Rick Hasen: "It’s difficult to win cases requiring proof of discriminatory intent precisely because politicians are usually circumspect when they have discriminatory views. Trump is the rare candidate who speaks his mind, and he told us why he wanted to keep Muslims out of the U.S." 

In sum, the totality of Trump's statements—including those made during and after the campaign—overwhelmingly evidence a purpose at odds with the Establishment Clause. And as others have explained in detail, few, if any, of those statements evince actual, substantive national security or foreign affairs objectives that explain the bizarre scope and structure of his order.

What About The Possibility of Mixed Motives?

That said, it is likely that legitimate considerations played at least some role in both versions of the travel ban. Which raises the question: what if Trump acted with mixed motives, some valid and others forbidden? This is a fair question, and in some respects a difficult one, since motives for presidential action are complex and multi-faceted.

Perhaps the best answer to this challenge comes from Judge Chuang in the District of Maryland. Invoking Establishment Clause precedent, he held that the ban is invalid if an anti-Muslim objective was “the predominant or primary purpose” and secular purposes were “secondary.” He added, “Making assessments on purpose, and the relative weight of different purposes, is a core judicial function.”

Judge Chuang then applied this legal test to the ban and concluded that it did not survive, for several compelling reasons: (1) the near-total and highly irregular absence of consultation with expert agencies—including DOJ and the Homeland Security—suggested that national security purposes were a “secondary post hoc rationale”; (2) the national security rationale was offered “only after courts issued injunctions against the First Executive Order,” suggesting they were simply manufactured to address judicial concerns; and (3) even a cursory review of the order revealed staggering mismatches between its stated national security purposes and the policies it implements.  As Judge Chuang concluded, “While the travel ban bears no resemblance to any response to a national security risk in recent history, it bears a clear resemblance to the precise action that President Trump described as effectuating his Muslim ban.”

On this score, as Leah Litman and Ian Samuel have discussed in detail, perhaps the most instructive precedent is Korematsu v. United States, a Supreme Court case from 1944 upholding Japanese internment. There, too, an executive order widely understood to rest on racist premises was presented to courts with a fig leaf of national security justification, which courts were forcefully urged to take at face value. There, too, the President acted on the basis of various motives, some of them legitimate and others emphatically not. And there, too, internal executive branch evidence undercut much of DOJ's factual argument to the court (though whereas we now know about such reports due to leaks from the Trump Administration, in 1944 this evidence remained buried).

In Korematsu, the Court went along with a presidential demand for boundless deference, over a courageous dissent from Justice Murphy that called out the Court for abiding racism. A mere facade of national security justification, even if actually in the mix of presidential motives, should not have saved an order that rested utimately on racism, stereotype, and prejudice. The Korematsu opinion now ranks in our constitutional anti-canon and is taught alongside powerful lessons of history—lessons that do not appear to have registered on President Trump's lawyers. Judge Watson, it seems, is a more careful student of our past.

In my next post, I will address Judge Watson’s explanation of why changes made from the first to the second travel ban did not cure the underlying constitutional infirmity. 

Versus Trump: Going to Church In Times of COVID

12/7/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the recent Supreme Court decisions requiring states to allow in-person religious services even while other gatherings can be banned. The pair gently disagree about how hard or easy these cases are. Listen now!

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

Versus Trump: Blurring Public and Private Conduct

9/17/20  //  In-Depth Analysis

On this week’s Versus Trump, Jason and Charlie discuss two new legal filings by the Trump DOJ that blur the line between the President as government official and the President as private citizen. In the first case, the government argues that the President's twitter feed is not an official public forum, so he can block people with whom he disagrees. In the second, the government argues that the President's denials that he sexually assaulted E. Jean Carroll were made in his official capacity as President. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

How the Right to Vote Became Fundamental  

8/26/20  //  Commentary

The Nineteenth Amendment helped cement the idea that the right to vote is a fundamental right inherent in citizenship