When a Ninth Circuit panel issued a decision striking down President Trump’s original travel ban, I described its opinion as “limited in impact, but full of mischief.” The biggest piece of mischief, I thought, was the panel’s suggestion the administration’s order violates the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims.
Citing statements made by Trump when he ran for president, the panel found that this argument raises “serious allegations and present significant constitutional questions.” However, it “reserve[d] consideration of these claims until the merits of this appeal have been fully briefed.”
This bit of result-driven idiocy has now become the basis for the decision by a federal district judge in Hawaii striking down the Trump administration’s new travel ban. Eugene Kontorovich at the Volokh Conspiracy exploded it following the Ninth Circuit panel’s ruling. He wrote:
The 9th Circuit fairly disingenuously cites several Supreme Court cases that show “that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.” But the cases it mentions do nothing more than look at legislative history — the formal process of adopting the relevant measure. That itself goes too far for textualists, but it provides absolutely no support for looking before the start of the formal deliberations on the measure to the political process of electing its proponents.
Indeed, a brief examination of cases suggests the idea has been too wild to suggest. For example, the 10th Circuit has rejected the use of a district attorney’s campaign statements against certain viewpoints to show that a prosecution he commenced a few days after office was “bad faith or harassment.” As the court explained, even looking at such statements would “chill debate during campaign[s].” If campaign statements can be policed, the court concluded, it would in short undermine democracy: “the political process for selecting prosecutors should reflect the public’s judgment as to the proper enforcement of the criminal laws.” Phelps v. Hamilton, 59 F.3d 1058, 1068 (10th Cir. 1995).
There are sound policy reasons for ignoring campaign statements or promises to shed light on subsequent official action. For one, campaign promises are often insincere, designed to appeal to voters. Indeed, they are explicitly instrumental, and their goal is not policy outputs, but election. Moreover, implemented laws or policies are often substantially different from promises, as is the case here. . . .
More broadly, constitutional structure supports examining only executive statements to interpret executive action. When Trump made his most controversial statements, he was private citizen. He had not sworn to uphold the Constitution, or to take care that the laws be faithfully executed. He was, in this sense, a legally differently obligated person. His policies and their relation to the Constitution would presumably be affected by his oath — that is why the Constitution requires it.
Moreover, the Constitution’s oft-forgotten opinion clause supports disregarding pre-inauguration statements. The Constitution puts at the president’s service the officials of the administration and requires they advise him as asked. What it means here is that the president must be seen as the unitary head of the executive branch and the pinnacle of a process of executive decision-making. That process is the only constitutionally recognized executive process. A candidate’s possible plans or promises are not part of the process.
By accepting the use of preelection statements to impeach and limit executive policy, the 9th Circuit is taking a dangerous step. The states’ argument is in essence that Trump is a bigot, and thus his winning presidential campaign in fact impeaches him from exercising key constitutional and statutory powers, such as administering the immigration laws.
This would mean that Trump is automatically disbarred, from the moment of his inauguration, of exercising certain presidential powers, not because of his actions as president, but because of who he is — that is, how he won the presidency.
This is why claims of an attempted judicial coup against President Trump are not at all far-fetched. Indeed, the effort to deprive a president of certain powers because of who he is and how he won the presidency can very plausibly be viewed as a partial coup.
Don’t expect the Ninth Circuit to stand in the way. It was that court that pointed the way for the Hawaii judge. Reversal is possible, but unlikely.
Thus, it probably will be up to the Supreme Court to stop what can reasonably be called the partial judicial coup. If it fails to do so, we might be in for a constitutional crisis.