I have some thoughts about the unanimous holding by a bipartisan 9th circuit panel allowing the suspension of Trump’s Muslim ban to stay in place. It doesn’t guarantee success on the merits going forward, far from it, but certainly this challenge has a better chance than the typical such challenge would.
However, when it comes to the shape of the Earth, views will differ! Eugene Kontorovich is very offended that 9CA used Trump’s own words against him:
There is absolutely no precedent for courts looking to a politician’s statements from before he or she took office, let alone campaign promises, to establish any kind of impermissible motive.
Let’s assume arguendo that it is unprecedented for a court to use a president’s campaign statements when judging whether an executive action had discriminatory intent. So what? For that matter, it’s highly unusual for a president to have announced ex ante that he planned to engage in discriminatory actions. The only question is whether a presidential candidate’s statements about his intentions are relevant to the question of question of whether an executive action was motivated by discriminatory intent, and the answer is obviously “yes.”
You almost have to admire the brazenness of the shell game here, though. The typical approach of conservatives who would prefer to have the equal protection clause apply only to affirmative action programs and to vote counts that might cause Al Gore to get more votes in Florida than George W. Bush is to create evidentiary standards for showing that formally neutral texts are discriminatory and/or are being applied in a discriminatory manner that make it nearly impossible to prove, because most public officials aren’t dumb enough to explicitly acknowledge their intent to discriminate ex ante. But when a public official does say the quiet parts loud, the court can’t consider it, because this would be unprecedented! It’s a nice racket, one that I will assume prove useful when Gorsuch provides the fifth vote to uphold North Carolina’s vote suppression statute.
The formalist mock-nativite doesn’t end there:
More broadly, constitutional structure supports examining only executive statements to interpret executive action. When Trump made his most controversial statements, he was private citizen. He had not sworn to uphold the Constitution, or to take care that the laws be faithfully executed. He was, in this sense, a legally differently obligated person. His policies and their relation to the Constitution would presumably be affected by his oath — that is why the Constitution requires it.
Actually, I’m afraid I do not share this presumption. I cite as evidence “the entirety of the tenure of President Donald J. Trump” passim, with particular attention to how Trump was affected by his sworn oath to uphold the emoluments clause. I would also cite the quarter-assed process that led to Trump’s travel ban, and the fact that it was apparently driven largely by a white nationalist newspaper published with no national security experience.
But what about the slippery slope!
This would mean that Trump is automatically disbarred, from the moment of his inauguration, of exercising certain presidential powers, not because of his actions as president, but because of who he is — that is, how he won the presidency.
At oral argument, the judges asked if Trump could ban travel from all majority-Muslim countries. The question should be reversed. If the plaintiffs cast Trump’s views of immigration as impermissible, by this reasoning he cannot take the otherwise clearly legal action of restricting immigration from any of the world’s 50-odd majority-Muslim countries.
Of course not. Trump’s language is evidence of discriminatory intent, but not dispositive evidence. If after a careful process Trump issued an travel ban tailored to evidence of a terrorist threat from a particular country, this might be constitutional despite Trump’s statements. The travel ban at issue here was not that, giving Trump’s announcement of discriminatory intent more relevance.
This would mean that immigration system as created by Congress — which depends on broad executive discretion — will have essentially been destroyed.
First of all, while the system created by Congress might depend on “broad” executive discretion, it certainly did not create the system of unfettered executive discretion Kontorovich seems to want to replace it with — the authorizing statute explicitly forbids religious and racial discrimination, and intent of religious and/or racial discrimination is therefore always relevant. And no matter how broad the discretion Congress wanted to delegate to the executive, it cannot empower the president to violate the Constitution, and evidence of discriminatory intent is also relevant to whether the travel ban violates the 1st and 5th Amendments.
Reasonable people can disagree about how much weight to put on Trump’s statements, but the idea that courts shouldn’t even consider them is absurd.