In its opinion refusing to reinstate President Trump’s executive order limiting travel and immigration, the U.S. 9th Circuit Court of Appeals didn’t find it necessary to rule — even in the context of an application for a stay of a restraining order — on whether the order amounted to an unconstitutional establishment of religion in violation of the 1st Amendment. The claim that the order violated due process was enough to justify preventing it from going into effect.
But the three-judge panel nevertheless suggested that the executive order might be vulnerable to a religious discrimination claim based on Trump’s statements on the campaign trail. As is well known, in December 2015 Trump advocated a "total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what the hell is going on."
Later Trump replaced that blatant religious test with a proposal for “extreme vetting” of immigrants, refugees and visitors from areas with a history of terrorism. His Jan. 27 executive order suspended for 90 days the entry of persons from seven majority-Muslim countries: Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen. The order also gave priority to refugees fleeing religious persecution if they belonged to a “minority” religion — a preference that would benefit Christians in predominantly Muslim nations.
This, Trump’s critics say, is the campaign’s “Muslim ban” in disguise. And the 9th Circuit seemed to suggest that, when the judiciary reached the merits of the lawsuit, it might agree. The court said:
“The states [of Washington and Minnesota] argue that the executive order violates the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims. In support of this argument, the states have offered evidence of numerous statements by the president about his intent to implement a ‘Muslim ban’ as well as evidence they claim suggests that the executive order was intended to be that ban . . . 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.”
Trump’s executive order is unjustified and ought to be rescinded, and his original proposal for a "total and complete shutdown of Muslims” was outrageous.
But it would be a mistake for the courts to equate the executive order with the original Muslim ban, and not only for the obvious reason that it’s literally not a ban on Muslims. (It applies to non-Muslim citizens of the seven countries and doesn’t apply to citizens of other predominantly Muslim countries, including Saudi Arabia and Indonesia.)
The bigger problem is that the 9th Circuit seems to float the idea that Trump’s “original intent was to go after Muslims because they were Muslims — that is, that he was animated by religious hatred.
It’s far more likely that Trump was engaging in what lawyers would call over-inclusive thinking: The terrorists he was concerned about were Muslims, so he decided to “err on the safe side” and ban all Muslims. It was an idiotic as well an offensive impulse. After smarter people pointed that out to him, he backed down and adopted a more targeted strategy. (That the strategy wasn’t targeted enough doesn’t mean that it was a violation of the 1st Amendment.)
If the Jan. 27 executive order is no different from a "total and complete shutdown of Muslims” because we know what Trump “really” intended, the same would be true of any revised executive order, even if were justified by the sort of evidence that wasn’t adduced to justify this order. That would mean that Trump would be held hostage by his own careless campaign rhetoric, prevented from imposing any restrictions on immigration from predominantly Muslim countries for the rest of his term.
Finally, although Trump is unique among modern presidential candidates in openly promising to bar every member of an entire religion from an entering the United States, other politicians also make outlandish statements on the campaign trail that judges might use to deconstruct the more prudent policies the politicians pursued once they were in office.
As Eugene Kontorovich pointed out in the Washington Post: “The 9th Circuit’s ruling …throws open a huge door to examinations of the entire lives of political officials whose motives may be relevant to legal questions. This introduces more uncertainty and judicial power into legal interpretation than even the most robust use of legislative/administrative history. Without a clear cutoff at assumption of office, attacks on statutes will become deep dives into politicians’ histories.”
The words of Trump’s executive orders will give courts enough work to puzzle over; they don’t have to sift through his campaign speeches.