Coming out of Wednesday’s arguments in Trump v. Hawaii, the dominant view—see, for example, here, here, and here—was that the federal government was likely to prevail and the Proclamation would be upheld. I was less sure; my impression was that if the Court reached the Establishment Clause question—a big if—there was a good chance that Justice Kennedy would side with Hawaii, supplying a fifth vote to strike down the Proclamation as violating the Establishment Clause.
The Establishment Clause claim largely turns on the President’s words, and those words hung over Wednesday’s arguments. But the Court’s engagement with them was largely indirect. There were few direct quotes; no one pressed the Solicitor General to explain or defend the President’s words, the way Justice Scalia pressed Obama’s Solicitor General Don Verrilli, during NFIB v. Sebelius, to explain President Obama’s statement that the penalty contained in the Affordable Care Act was “not a tax.” My distinct impression was that no one wanted to hear the President’s actual words—e.g., “a complete and total shutdown of Muslims entering the United States”—echo through the courtroom. Both lawyers, as well as the Justices, made broad references to “the statements”; Neal Katyal for Hawaii repeatedly mentioned page 70 of his brief, rather than actually describing its contents.
Rather than dissect any of President Trump’s actual statements, then, the Justices largely focused on a hypothetical, posed by Justice Kagan to SG Noel Francisco, involving a fictional President. Here’s the hypo in its entirety:
JUSTICE KAGAN: So let’s say in some future time a — a president gets elected who is a vehement anti-Semite and says all kinds of denigrating comments about Jews and provokes a lot of resentment and hatred over the course of a campaign and in his presidency and, in the course of that, asks his staff or his cabinet members to issue a proc — to issue recommendations so that he can issue a proclamation of this kind, and they dot all the i’s and they cross all the t’s. And what emerges — and, again, in the context of this virulent anti-Semitism — what emerges is a proclamation that says no one shall enter from Israel. … Do you say Mandel puts an end to judicial review of that set of facts?
In response, the SG suggested that if the President’s cabinet produced for the President a recommendation along the lines that he requested (here the SG varied the facts so that the cabinet officials reported to the President, “there is honestly a national security risk here and you have to act”), the President could act consistent with the recommendation. The Court would then be compelled under Mandel—which limits the power of the courts to “look behind” an executive action that has a “facially legitimate and bona fide reason”—to uphold that action, even if in the President’s “heart of hearts” he was also motivated by animus. The SG sought an out by suggesting that given Israel’s status as an important ally, any recommendation along the lines suggested by the hypo might fail rational basis review. But the concession felt like a significant one. Justice Kennedy and Justice Sotomayor joined the questioning based on the hypo, with Justice Sotomayor pressing the SG to return to Kagan’s original terms—in which the President said to his advisors “I want to keep out the Jews—period; find a way.”
Here the SG suggested that internal executive branch checks would operate to prevent this fictional President from successfully extracting such a recommendation from his cabinet: “The President’s cabinet, just like all of us here, is duty-bound to protect and defend the Constitution. So I would expect that if any cabinet member were given that order, that cabinet member would refuse to comply, or resign in the face of a plainly unconstitutional order. So I think that would be the initial check.” If those internal dynamics broke down, the SG continued, the President’s stated desire to exclude members of a particular race or religion would undermine the facial legitimacy of the act.
Kagan then drew from the SG a concession that if the President had said “we don’t want Muslims coming into this country,” near in time to the issuance of the Proclamation before the Court, such a statement would undermine or perhaps even vitiate the Mandel presumption and the Proclamation itself. At this point, Kagan finally brought in President Trump directly: “[H]onestly, the difference here then seems to be is everything that the President said effectively that?”
Here the SG offered two answers. First, he argued (as the Administration has throughout) that campaign statements should be “out of bounds,” because they’re made by a private citizen and predate both the oath of office and the President’s receipt of the opinions of his cabinet, both of which are events of constitutional significance.
Second, he said that here, “it doesn’t matter” (presumably he meant even if the statements were considered they wouldn’t impact the outcome), because “the statements that they principally rely on don’t actually address the meaning of the Proclamation itself. This isn’t actually a Muslim ban. If it were, it would be the most ineffective Muslim ban that one could possibly imagine.”
But that answer misses the point. The challengers don’t suggest that Trump’s statements go to the meaning of the Proclamation. They suggest that they go to its purpose, which is a different matter entirely.
I’ve written about the president’s words, both here and in a not-yet-posted article forthcoming in the Cornell Law Review, and in both I suggest that in most cases there are good reasons to hesitate before using presidential speech to illuminate the meaning of presidential action. But I also argue that using the president’s words as a guide to presidential purpose or intent is ordinarily perfectly appropriate.
I offer an example that illustrates the distinction. In the case of the first travel ban Executive Order, issued one week after Inauguration, an early question arose regarding whether lawful permanent residents, i.e. green card holders, were subject to the entry prohibitions. Nothing in the EO answered the question one way or another. After some conflicting signals from the Administration, White House Counsel Don McGahn issued a memorandum purporting to clarify that green card holders were not subject to the ban. (The Ninth Circuit found the effort dubious, writing: “The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order signed by the President and now challenged by the States, and that proposition seems unlikely.”).
But what if the President himself, rather than the White House Counsel, had attempted to clarify the applicability of the Order to green card holders, say through a tweet or in a television interview? Whether he took the position that green card holders were covered by, or exempt from, the entry restrictions, courts would be perfectly justified in setting those statements aside in determining the meaning of the Order, especially where DOJ made some conflicting representation to the court.
In the same way, it would be misguided to look to the President’s statements to ascertain how broadly or narrowly to read the reach of the Proclamation’s provisions, to the extent they were unclear. But that’s a different question from the Proclamation’s constitutionality, which is why the Solicitor General’s focus on the Proclamation’s ineffectiveness as a sweeping Muslim ban so badly missed the mark. At most, the SG made the point that the President’s statements didn’t convert a narrow Proclamation into a sweeping ban. But nothing he said established—or even claimed—that they did not reflect animus, that animus did not drive the President in seeking to implement some sort of ban, or that a reasonable observer would not conclude that the Proclamation was primarily motivated by animus. That’s what Hawaii is arguing the President’s words establish: not the Proclamation’s meaning but its purpose.
The only time the SG really addressed the question of the President’s purpose came during the bewildering last few seconds of his rebuttal. He misspoke several times, referring to Islam as a country and offering that “there are many, many Muslim countries who love this country.” But he also said, in response to Katyal’s suggestion that a clear disavowal of the President’s earlier statements would effectively defeat the Establishment Clause claim, that “the President has made crystal clear on September 25th that he had no intention of imposing the Muslim ban.”
I’m not the only person who was confused about this claim; as both Mike Dorf and Josh Geltzer note, there doesn’t seem to be any clear September 25th statement along these lines, let alone a “crystal clear” one. This, then, was the note the Administration ended the argument on: actual presidential statements should be set aside because they do not either reflect or illuminate the “meaning” of the Proclamation, but a mysterious September 25th statement, neither briefed nor obvious from the public record, should be deemed to reflect the President’s intentions. If the Court gets that far, it’s hard to see how the Administration should prevail in this argument.