Among the legal arguments being presented in various court challenges about the Trump administration’s immigration ban is one that has the attention of scholars: Can a presidential candidate’s campaign statements later be used as evidence in court?
At least one rationale advanced by a federal judge in Virginia cited a 2005 Supreme Court decision about the Ten Commandments – and opinion from now-retired Justice David Souter -as the basis for considering candidate Donald Trump’s statements about a Muslim immigration ban, made before he was elected President.
On Wednesday night, a federal judge in Hawaii referenced the same arguments as part of a decision to order a national restraining order against a new Trump administration executive order about refugees and about immigrants from six Middle Eastern nations.
To be sure, there are legal scholars and administration supporters who are very skeptical about those arguments. For example, Justice Department attorney August Flentje told a Ninth Circuit appeals court last month that “it is extraordinary for a court to enjoin the president’s national security determination based on newspaper articles.”
While the Ninth Circuit in February didn’t rule on candidate Trump’s statements as a factor in upholding a national injunction against his original executive order, it did indicate they could be a factor as evidence of religious discrimination.
“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,” said the three-panel court, citing a 1993 Supreme Court decision called Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah.
The federal judge in Virginia, Leonie Brinkema, went much deeper into that argument citing the Ten Amendments case from 2005, McCreary County v. American Civil Liberties Union of Ky., as part of her opinion in Aziz v. Trump.
“Just as the Supreme Court has held that ‘the world is not made brand new every morning,’ a person is not made brand new simply by taking the oath of office,” Brinkema wrote, adding that her court wasn’t free to “ignore perfectly probative evidence” from statements made by Trump before he became President.
On Wednesday night, Judge Derrick K. Watson in the federal court in Hawaii cited the statements from the Ninth Circuit and Brinkema as part of this reasoning behind the latest injunction against a Trump immigration order. "The Court emphasizes that its preliminary assessment rests on the peculiar circumstances and specific historical record present here," Watson said, pointing to conclusions drawn by Brinkema about a "dearth of evidence indicating a national security purpose" and "the evidence in this record focus[ing] on the president’s statements about a ‘Muslim ban’ and the link Giuliani established between those statements and the [Executive Order].”
In the McCreary case back in 2005, Souter wrote the opinion for a 5-4 divided court. Two counties in Kentucky posted visible copies of the Ten Commandments at their courthouses. After objections were raised, the Ten Commandment displays were included in a larger display that added historic documents such as the Declaration of Independence. The additional documents had their references to religion highlighted.
Souter found that the counties couldn’t argue that their earlier attempts to get the displays installed for religious reasons, including statements made by public figures to that effect, should be excluded from the case.
“They argue that purpose in a case like this one should be inferred, if at all, only from the latest news about the last in a series of governmental actions,” Souter said. “But the world is not made brand new every morning, and the Counties are simply asking us to ignore perfectly probative evidence; they want an absent-minded objective observer, not one presumed to be familiar with the history of the government’s actions and competent to learn what history has to show.”
“The Counties’ position just bucks common sense: reasonable observers have reasonable memories, and our precedents sensibly forbid an observer ‘to turn a blind eye to the context in which [the] policy arose,’” said Souter, citing another case, Santa Fe Independent School Dist. v. Doe.
Northwestern University law professor Eugene Kontorovich had disagreed with that premise, in connection with the Trump case, in a Washington Post editorial, citing it as an unprecedented effort to impede executive power as granted by Congress.
Kontorovich spoke about the brief statement in the Ninth Circuit decision as cause for alarm. “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,” he wrote.
Kontorovich also said that a look at other, related federal case decisions shows that “the idea has been too wild to suggest” and that the Ninth 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.”
Three law professors writing for the legal blog Just Security - Nelson Tebbe, Richard Schragger and Micah Schwartzman – make the opposite argument. They believe Trump’s campaign statements and his recent press conference statement as President about “tailoring” the new executive order to pass legal muster present problems.“A court performing the McCreary analysis would have room to conclude that the new order is animated by the same religiously discriminatory motive as the first one. This [press conference] statement suggests that the president is trying to do everything he can to implement the ‘Muslim ban’ in a form that will stand up in court.”
These arguments would be one of many made, if or when a lawsuit advances in the federal court system as the executive order is implemented or barred. For now, until the courts act in more detail, the debate will join a broad list of constitutional topics related to the executive orders on immigration.Scott Bomboy is the editor in chief of the National Constitution Center.
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