As the litigation over the travel ban has developed, the debate over the legality of the policy increasingly hinges on whether the judiciary can permissibly consider off-the-cuff statements made by Trump and his associates as evidence of religious animus in the drafting of the executive orders. So far, the courts have largely found that they can, albeit over strong dissents objecting to the propriety of putting weight on such statements. And with the Department of Justice’s petition for a writ of certiorari filed in International Refugee Assistance Project v. Trump (IRAP), we may soon find where the Supreme Court stands on the question.
What’s particularly interesting about the en banc decision by the U.S. Court of Appeals for the Fourth Circuit last week in IRAP is not only the fact that a majority of the judges ruled against the administration in finding the revised travel ban unconstitutional and rooted in religious animus, but the language with which they did so. Notably, both the majority opinion and two of the four concurrences use rhetoric of blindness and sight to describe their reasoning as to why statements by Trump and aides on the “Muslim ban” may permissibly be considered.
In crafting a three-part standard for evaluating whether or not Trump’s campaign-trail statements are appropriate to incorporate into the court’s analysis of the intent behind the travel ban, the majority writes:
But we decline to impose a bright-line rule against considering campaign statements, because as with any evidence, we must make an individualized determination as to a statement’s relevancy and probative value in light of all the circumstances. The campaign statements here are probative of purpose because they are closely related in time, attributable to the primary decisionmaker, and specific and easily connected to the challenged action.
Just as the reasonable observer’s “world is not made brand new every morning,” McCreary, 545 U.S. at 866, nor are we able to awake without the vivid memory of these statements. We cannot shut our eyes to such evidence when it stares us in the face, for “there’s none so blind as they that won’t see.” Jonathan Swift, Polite Conversation 174 (Chiswick Press ed., 1892) [emphasis added].
The majority goes on, “The Government has repeatedly asked this Court to ignore evidence, circumscribe our own review, and blindly defer to executive action, all in the name of the Constitution’s separation of powers [emphasis added]. We decline to do so…”
Likewise, Judge James Wynn writes in his concurrence that, “[E]ven when the President invokes national security as a justification for a policy that encroaches on fundamental rights, our courts must not turn a blind eye to statements by the President and his advisors bearing on the policy’s purpose and constitutionality.”
And Judge Stephanie Thacker’s concurrence states, “Our constitutional system creates a strong presumption of legitimacy for presidential action; however, this deference does not require us to cover our eyes and ears and stand mute simply because a president incants the words ‘national security.’”
All these opinions rely heavily on McCreary County v. ACLU, in which the Supreme Court held that courts may permissibly inquire into context in evaluating legislative purpose under the Establishment Clause, but must refrain from “judicial psychoanalysis.” And McCreary itself uses the language of blindness and sight to describe the courts’ inquiry into context: the Court wrote that “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.’” So perhaps it should not be surprising that the Fourth Circuit also relies on this rhetoric, in Judge Wynn’s case to the point of using the same idiom. But it is nevertheless striking that three of the eight IRAP opinions use this rhetoric quite sharply against the Trump administration, not just by quoting McCreary but in the judges’ own prose.
This also isn’t the first time that judges have ruled against the administration’s travel ban using this language to address questions of whether they may permissibly examine Trump’s statements as evidence of animus. In a ruling converting a temporary restraining order on two key provisions of the revised travel ban into a preliminary injunction, Judge Derrick Watson of the U.S. District Court for the District of Hawaii wrote, “The Court will not crawl into a corner, pull the shutters closed, and pretend it has not seen what it has.”
So why is everyone using the same metaphor? As Andrew Kent wrote recently on Lawfare: “Just as a Freudian slip is said by psychoanalysts to reveal processes of the unconscious mind, sometimes the verbal tics, mis-citations of precedent, excessive or evasive rhetoric, and other oddities in judicial opinions can give clues to the underlying thoughts and motivations of the judges.”
Benjamin Wittes and I have written extensively on the surprising lack of deference shown by the courts to the revised travel ban—a document that at first seemed designed to clear the hurdles faced by the first executive order, which was both more bombastic and less carefully-lawyered. At the time, we argued that judiciary’s unusual willingness to push back against the executive branch at the confluence of two areas in which the President is usually granted great deference—immigration and national security—flowed from a lack of trust in Donald Trump’s fidelity to his oath of office. At the time, we speculated:
Perhaps … there’s an unexpressed legal principle functionally at work here: That President Trump is a crazy person whose oath of office large numbers of judges simply don’t trust and to whom, therefore, a whole lot of normal rules of judicial conduct do not apply…. In this scenario, there are really two presidencies for purposes of judicial review: One is the presidency when judges believe the president’s oath—that is, a presidency in which all sorts of norms of deference apply—and the other is a presidency in which judges don’t believe the oath. What we may be watching here is the development of a new body of law for this second type of presidency.
We can read the language of blindness and sight as something of a doctrinal means by which judges are signaling their recognition that this is a new type of presidency, for which they are developing a new body of law. By framing the question of whether to incorporate off-the-cuff statements by Trump and aides as a matter of whether or not to be “blind” to the reality before them, the judges are saying that they cannot ignore not only that the President or President-elect made those statements, but that the President is Donald Trump.
To be clear, the question of whether the courts may permissibly consider a pattern of statements made by the President both before and after his election and inauguration, and whether they can permissibly consider the fact that the President in question is Donald Trump, are two different matters. We have recently seen arguments from commentators both supporting and opposing the Fourth Circuit’s decision in IRAP that view these issues as entirely distinct. Critiquing the IRAP decision in Lawfare, Josh Blackman has argued that the Fourth Circuit’s ruling is entirely an effort “to hold President Trump at bay.” Responding on Take Care, Leah Litman, Helen Murillo, and Steve Vladeck take the position that the question of whether Trump’s statements are permissibly the subject of judicial analysis is a purely legal issue, entirely distinct from any discomfort judges may have with the fact of Trump’s presidency. In Blackman’s view, the IRAP decision is entirely about Trump qua Trump, and is therefore illegitimate as a work of legal reasoning; in Litman, Murillo, and Vladeck’s view, the decision is based on a neutral principle separate from the fact that Donald Trump is the President of the United States, and is therefore legitimate.
I think the truth is more complicated. The two matters of the specific presidency of Donald Trump and of the courts’ surprising willingness to consider Trump’s statements are linked: the courts have been unusually willing to interpret the law in the manner least deferential to the executive because that executive is Donald Trump—and because they doubt Trump’s oath. It’s an interesting chicken-and-egg question whether the pattern of statements by Trump and his aides has undermined judicial confidence in Trump’s oath, or whether preexisting doubts about the oath shaped the judiciary’s response to Trump’s statements.
Dissenting in IRAP, Judge Paul Niemeyer complains that “the plaintiffs conceded during oral argument that if another candidate had won the presidential election in November 2016 and thereafter entered this same Executive Order, they would have had no problem with the Order.” In many ways, that’s the point: to Judge Niemeyer (and Judge Dennis Shedd and Judge Steven Agee, who joined in Niemeyer’s dissent), Trump is the president and should be treated as the judiciary would treat any other president. But to the majority, Trump is not the president in the sense that we would usually recognize—and he should not be treated as such.
For this reason, it’s notable that none of the three IRAP dissents makes use of the majority’s rhetoric of blindness: they don’t accept the majority’s implicit framing of the Trump presidency as wielding a second, different kind of executive authority. It’s also notable that the majority so carefully emphasizes that its decision does not represent a wholesale reworking of jurisprudence, but rather responds to the specific facts before the court. That is, the majority is crafting a new jurisprudence for a new kind of presidency, rather than overthrowing the old jurisprudence as the dissents accuse it of doing: “If and when future courts are confronted with campaign or other statements proffered as evidence of governmental purpose, those courts must similarly determine, on a case-by-case basis, whether such statements are probative evidence of governmental purpose. Our holding today neither limits nor expands their review (emphasis added).”
And later: “The deference we give the coordinate branches is surely powerful, but even it must yield in certain circumstances, lest we abdicate our own duties to uphold the Constitution” (emphasis added).
Specifically, the majority derives this exceptional jurisprudence for an oathless presidency, at least in this context, from the “facially legitimate and bona fide” test for a First Amendment claim against government restrictions on immigration established by Kleindiest v. Mandel. Under Justice Kennedy’s controlling concurrence in Kerry v. Din, the majority argues, the courts may permissibly assess the legitimacy of a government action under the “facially legitimate and bona fide” standard if the plaintiff has made an “affirmative showing of bad faith” that is “plausibly alleged with sufficient particularity.” The court thus reads Mandel and Din as allowing the judiciary to “step away from our deferential posture and look behind the stated reason for the challenged action” in an instance in which “plaintiffs have seriously called into question whether the stated reason for the challenged action was provided in good faith.”
And examining Trump’s campaign-trail and presidential statements on the travel ban—an examination the majority considers permissible under McCreary—the court finds the national security rationale behind the travel ban to have been proffered in bad faith. (In her concurrence, Judge Stephanie Thacker reaches the same conclusion only on the basis of post-inauguration statements by Trump, having reasoned that candidate Trump’s comments are not appropriately considered.)
There are certainly disagreements to be had with this analysis. (Judge Niemeyer, for example, argues that it substantially misapplies both Mandel and Din. On Lawfare, Peter Margulies and Josh Blackman have made similar points.) But if the courts are going to write a new jurisprudence for an oathless presidency into the law, Mandel and Din actually make for a very natural place to start. Both literally concern the question of “bad faith,” the same question raised by whether the courts can trust Trump’s fidelity to his oath. To put it another way, the cases are an expression of the “presumption of regularity,” the idea that we can usually trust public officials to do their duty. And as the Trump administration is discovering, that presumption of regularity is only a presumption, which courts can waive in extraordinary circumstances.
If the majority—along with the number of other courts that have ruled against both the original and the revised travel ban—is crafting a new body of law for a new kind of presidency outside the presumption of regularity, why not say so explicitly? I suspect that many onlookers sympathetic to the plaintiffs but concerned by the charge into uncharted legal territory might be comforted by a direct acknowledgement of the dynamics at work here, but the rhetorical signposts of blindness and sight may be as close as the courts can comfortably get. It may be a question of wanting to step lightly or to avoid further accusations of making up law from whole cloth. Or perhaps some of the judges ruling against the ban are seeing through a glass darkly, and may not themselves be entirely aware of the implications.
Courts regularly rely on legal fictions and simplifications, which are what make it possible to map the reasoned structure of law onto a chaotic and unreasonable world. There is nothing wrong or unusual about this. The difference here is that the bizarre facts of the travel ban cases and the bad faith at the core of Trump’s presidency have exacerbated—to the point of absurdity—the gap between the abstract legal questions at play under existing doctrine and the facts at the ground. The situation recalls Thomas Kuhn’s description of scientific crisis, in which an existing paradigm of thought begins to lose its ability to explain and predict the shape of things. We may be at that point now—where the paradigm of deference to the executive in national security without reference to the integrity of the president’s oath is clearly faltering but the jurisprudence of an oathless presidency has yet to fully emerge.