by Heidi Kitrosser, Professor of Law, University of Minnesota Law School
Last month, a panel of the U.S. Court of Appeals for the Ninth Circuit denied the Trump administration’s request to stay a federal district court judge’s temporary injunction against the first version of President Trump’s travel order. Some critics of the Ninth Circuit’s opinion have argued, among other things, that the panel should not have considered Donald Trump’s statements as evidence that the order purposefully discriminated against Muslims. These critics suggest that presidential campaign speech categorically ought not to be included among the evidence to which courts look to determine whether a law was passed for discriminatory reasons.
This past Friday, Judge Kozinski – in an opinion joined by four of his fellow Ninth Circuit judges, dissenting from the Ninth Circuit’s refusal to vacate the panel opinion on the First Travel Order – joined these critics. Judge Kozinski characterized the panel’s use of Trump’s own statements as an “evidentiary snark hunt.” This approach, he warned, will reward lawyers for sifting through a candidate’s “often contradictory or inflammatory” statements, “when in truth the poor schlub’s only intention is to get elected.” Worse still, it “will chill campaign speech,” as candidates censor themselves for fear of uttering statements that will haunt them in court one day.
The concerns voiced by Judge Kozinski and other critics are misplaced. As both the Ninth Circuit panel and the federal trial court that first ruled on the case recognized, it is well established that courts may – indeed, often must – look beyond the face of a law to determine whether it is motivated partly by a discriminatory purpose. A contrary rule would create gaping loopholes in constitutional and statutory bars against religious or other forms of discrimination. To be sure, judicial inquiries into alleged discriminatory purposes are highly context-sensitive. A stray bigoted statement by a legislator or executive is unlikely to persuade a court that a measure is discriminatory in the face of ample evidence that it was directed toward, and serves a legitimate, non-discriminatory interest. On the other hand, a long history of public statements promising to take a particular action against a given group may well convince a court that the promised action, once taken, does purposefully discriminate against that group. At minimum, that history is relevant to the judicial inquiry, even if the court ultimately deems it outweighed by countervailing evidentiary factors. Were courts not free to so much as consider such history, the judicial power regarding anti-discrimination laws would be dramatically curtailed.
The question, then, is whether there exists any good reason to exempt presidential campaign statements from the realm of evidence that courts can consider in cases alleging religious discrimination. The answer is that there is none. While a presidential candidate may make conflicting statements at different times and to different audiences, that is true of many other categories of written and oral communication. And such inconsistency itself is a factor that courts can and should consider in sifting through all of the relevant evidence. It also is not remotely disqualifying that a “poor schlub” of a candidate may (shockingly!) not really mean what he or she says, but may only be seeking political advantage. A presidential action that is taken to appeal to a constituency’s perceived bigotry is no less discriminatory in purpose than is an action that manifests the president’s personal biases. Nor does the fear that candidates will censor themselves on the campaign trail justify excluding their campaign statements as evidence of discriminatory purpose. Such statements will be relevant in a lawsuit challenging official action only if the candidate, once in office, takes official actions to which the statements can be linked. Even then, the statements, while probative, are not necessarily conclusive of discriminatory purpose. Weighing such statements as evidence, in short, is not the same thing as punishing candidates for the statements themselves.
Indeed, neither the Ninth Circuit panel nor the federal trial court whose decision it reviewed played a game of “gotcha” in which it cherry-picked isolated campaign statements. To the contrary, both courts referenced campaign statements in the context of the larger body of evidence to which the state of Washington pointed in its complaint and exhibits. That larger body of evidence includes post-election and post-inaugural statements, indicia of continuities between the pre- and post-election statements and the Travel Order itself, and flaws in the administration’s national security based justifications for the Order. For example, the state of Washington observed in its complaint that candidate Trump’s press release calling for a “total and complete shutdown of Muslims entering the United States” was still available on Trump’s campaign website as of the date that the complaint was filed. It also noted that Trump referred to his immigration plan as “extreme vetting” while still a candidate, and continued to refer to it as such in his first television interview as president and in a signing ceremony for the first travel order.
The District Court and the Ninth Circuit simply took notice of Donald Trump’s own statements, made publicly and repeatedly from the early days of his campaign through the first days of his presidency, and acknowledged common sense connections between those statements and the travel order. This was no more and no less than what was necessary to hold the administration accountable under the Constitution. After all, the Constitution constrains even a “poor schlub,” when that schlub happens to be the president of the United States.