(Reuters) - In its historic opinion upholding a stay on the Trump administration’s immigration and refugee policy, the 9th U.S. Circuit Court of Appeals did not rely on Washington State’s argument that the policy violates the Constitution because it discriminates against Muslims.
The appeals court said Washington and its co-plaintiff Minnesota had raised serious allegations about the administration’s supposedly anti-Muslim intent, but it didn’t need to decide whether the states were likely to succeed on the merits of those claims because it had already found the Trump policy was likely to violate constitutional due process protections. The per curiam opinion said the court would wait for a more developed record to judge whether the Trump administration policy is unconstitutional religious discrimination.
The 9th Circuit did not have to say anything about what evidence can be included in that record since the states’ religious discrimination claims didn’t determine the outcome of the case the court decided. But the judges nevertheless offered guidance: “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,” the opinion said, citing three cases from the U.S. Supreme Court.
Washington and Minnesota, as you are doubtless aware, have argued that although the executive order instituting President Trump’s immigration and refugee policy does not discriminate against Muslims on its face, the president has revealed the policy’s true anti-Muslim intent in (among other things) his call during the campaign for a complete ban on Muslims entering the country and in his post-inauguration comments to the Christian Broadcasting Network, in which President Trump said his policy would help Syrian Christians.
The 9th Circuit decision seems to say Trump’s extracurricular comments are fair game for U.S. District Judge James Robart of Seattle, who issued the temporary restraining order the appeals court upheld and will preside over litigation on the merits of the states’ claims (assuming the case reaches that phase). As Buzzfeed’s Chris Geidner has pointed out, the appellate instruction arguably doesn’t bind Judge Robart and other lower-court judges because it was dicta. You can expect the Justice Department to keep arguing, as it has in all of the courtrooms where the policy is under scrutiny, that judges may only look at the face of the order to decide whether it is discriminatory – an argument that at least one trial judge found persuasive.
But I don’t think the 9th Circuit meant its message on Trump’s rhetoric to reach just Judge Robart and other judges. The appellate panel - William Canby, Richard Clifton and Michelle Friedland – deliberately wrote an opinion that repeatedly highlights the court’s constitutional responsibility to act as a rein on unbridled presidential power. Can it be an accident that these judges delivered a decision rebuking the government for overstating president’s discretion to set immigration policy in the midst of Trump tweets questioning the federal judiciary’s legitimacy? I'd bet the 9th Circuit wanted the White House, and, in particular, the president to know that his rhetoric has consequences.
By implying that campaign promises and radio appearances can show the administration’s intent, the 9th Circuit seems to have stretched precedent. As I mentioned, the opinion cited three Supreme Court decisions to back the court’s assertion that “evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.” The cases are 1977’s Village of Arlington v. Metropolitan Housing Development Corporation, 1982’s Larson v. Valente and 1993’s Church of Lukumi Babalu Aye v. City of Hialeah.
In all of those cases, the Supreme Court said judges can look beyond the face of a state or local law to decide whether it is discriminatory. “Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available,” the court said in the Arlington opinion, which involved a village zoning decision that effectively barred a low-income housing nonprofit from building multifamily units. “The legislative or administrative history may be highly relevant, especially where there are contemporary statements by members of the decisionmaking body.” (The court ended up deciding the nonprofit could not show the village intended to discriminate on the basis of race.)
In Larson, the Unification Church challenged Minnesota’s criteria for requiring some religious organizations to register with the state in order to fundraise. The law didn’t specifically target the church, but when the Supreme Court looked back at the legislative history, in which lawmakers drafted language to make sure the Roman Catholic Church fell outside of the registration criteria, the justices discerned discriminatory intent.
Similarly, in the Lukumi Babalu Aye case, the Supreme Court struck down city laws prohibiting animal sacrifice because the laws’ history showed they were intended to target the Santeria religion. The justices specifically rejected the city’s argument that it should look only at the text of the laws, which didn’t mention Santeria and claimed a bona fide interest in protecting public health. The court looked at lawmakers’ public comments denigrating Santeria at a hearing on the proposed regulations and concluded the laws “were enacted by officials who did not understand, failed to perceive, or chose to ignore the fact that their official actions violated the nation's essential commitment to religious freedom,” the Supreme Court ruled.
But in all of those cases, the Supreme Court looked only at statements by officials as they were deliberating legislation. Even in the Lukumi case, which has the closest parallels to the Trump immigration policy case, the court stuck to lawmakers’ statements at a hearing on the proposed animal sacrifice regulations. The 9th Circuit’s opinion Thursday seems to say the Trump White House is responsible for a much broader range of statements, dating back even before the president was elected.
Northwestern law professor Eugene Kontorovich argued Thursday night at the Volokh Conspiracy that opening the way for courts to look for evidence of discriminatory intent in a candidate’s campaign statements is “dangerous and unprecedented.” The 9th Circuit opinion gives courts a fishing license for comments candidates made before they were ever under oath to follow the constitution, Kontorovich said. “This introduces more uncertainty and judicial power into legal interpretation than even the most robust use of legislative/administrative history,” he wrote. “Without a clear cutoff at assumption of office, attacks on statutes will become deep dives into politicians’ histories.”
Maybe. Or maybe the 9th Circuit left enough ambiguity in its dicta about Trump comments to allow lower courts to sift out inapplicable statements by officials. And meanwhile, the judges have put the president on notice that he ought to watch what he says and what he tweets.
One final point: Neither the states nor the Justice Department mentioned the Lukumi Babalu Aye case in their briefs at the 9th Circuit. The judges on the panel came up with that precedent – which includes some stirring words about this country’s commitment to the free exercise of religion - on their own. By including the citation in their discussion of judges’ authority to look beyond the face of allegedly discriminatory statutes, they may have been reminding the Justice Department that if it appeals the stay of Trump’s policy to the Supreme Court, it will have to face the author of the Lukumi opinion, Justice Anthony Kennedy.