吃瓜大本营

This piece originally appeared at .

The ongoing travel ban litigation has triggered intense debate on whether an assessment of the ban鈥檚 constitutionality must be limited to the鈥渇our corners鈥� of President Trump鈥檚 revised executive order. This is partly because there is little else to discuss. Given the Trump Administration鈥檚 many anti-Muslim statements, it鈥檚 hard to imagine how the ban could be upheld by any court that gives serious weight to that evidence. Indeed, the few judges who have suggested that the ban might survive judicial review have largely declined, in the words of Ninth Circuit Judge Jay Bybee, to look 鈥溾�� of the executive order itself.

As several commenters , including the ACLU鈥檚 David Cole, the strict 鈥渇our corners鈥� view is wrong. In assessing whether the travel ban is constitutional, to its broader anti-Muslim context.

But does the relevant context include everything the Trump Administration has said?

In a just filed with the Fourth Circuit, the government argues that campaign statements should carry essentially no weight. Versions of this argument have also been advanced by Ninth Circuit Judge and The New Yorker鈥檚 .

Of course, even if only the executive order鈥檚 four corners are considered, the ban is still unconstitutional. But it鈥檚 worth asking whether a special rule for campaign statements, which might be called 鈥渇our corners lite,鈥� has merit.

In the government鈥檚 view, campaign statements 鈥溾�� about the motives of President Trump鈥檚 actions in office. Judge Kozinski has warned that if campaign statements are deemed to be evidence in court, politicians鈥� free speech in electoral contests . And in Toobin鈥檚 telling, courts that consider campaign statements are unfairly 鈥�,鈥� because campaign statements can be improvised and informal.

It鈥檚 true that campaign statements deserve special consideration. But their special qualities don鈥檛 make them less relevant than other presidential statements. If anything, the opposite is true.

If candidates know in advance that courts will ignore campaign rhetoric, they will be freer to ride to office (or even re-election) on a wave of hatred and prejudice.

First, campaign statements often provide a clear window to the candidate鈥檚 true intent. For example, in 2007 the Fifth Circuit affirmed a verdict against a Louisiana district attorney who, shortly after taking office, replaced more than 50 white employees almost exclusively with Black people. Although the district attorney advanced race-neutral reasons for these decisions, he had pledged during his campaign to make his staff鈥檚 鈥渞acial composition鈥� more reflective of his parish鈥檚 population. In affirming the jury鈥檚 finding that the district attorney had engaged in unlawful discrimination, the Fifth Circuit noted that his actions were connected to this discriminatory 鈥�.鈥�

The travel ban鈥檚 connection to a discriminatory campaign promise is even clearer. President Trump鈥檚 Muslim ban proposal wasn鈥檛 improvised; it was a 鈥渇or a total and complete shutdown of Muslims entering the United States until our country鈥檚 representatives can figure out what is going on.鈥� That call is still on the Trump ; in fact, it was in November 2016 after being briefly taken down. So which is more probative of the president鈥檚 true intent: his formal campaign promise or briefs from lawyers given the unenviable task of laundering the president鈥檚 intentions? The answer is obvious.

Second, campaign statements often send the strongest messages to the public, and those messages make a difference under the Constitution. As explained by District Judge Derrick Watson in Hawaii in his recent decision enjoining the revised executive order, the Establishment Clause prohibits government action that 鈥溾�� favoring one religion over another. Immediately following that decision, President Trump confessed that he wanted to 鈥�.鈥� As messages go, President Trump鈥檚 campaign pledge to ban Muslims, and his reaffirmation of that pledge as president, speak far more loudly than any post-hoc memo claiming that the ban is really about national security.

Third, over the long term, giving presidents a free pass for discriminatory campaign statements could damage our democracy. Far from chilling speech, if we hold candidates to their words, we should be concerned about facilitating discrimination by exempting entire categories of political speech from ordinary methods of proving intent. That鈥檚 because what is at stake in the travel ban litigation is not just whether President Trump will be held accountable for his past campaign statement but also whether politicians in future campaigns will have to worry that promising unconstitutional actions will come back to bite them in court when, as public officials, they seek to make good on those promises.

If candidates know in advance that courts will ignore campaign rhetoric, they will be freer to ride to office (or even re-election) on a wave of hatred and prejudice. They鈥檒l just need to remember to use magic words like 鈥渘ational security鈥� when converting prejudicial campaign promises into concrete policy bludgeons.

Campaign statements are important to candidates and meaningful to the public; they should not be disregarded by courts. President Trump鈥檚 campaign statements represent a true expression of the travel ban鈥檚 discriminatory purpose. They are a loud delivery of Trump鈥檚 anti-Muslim message. And they are a frightening roadmap for how would-be demagogues might use one story to win elections and a contrary story to win cases.

Courts that call out these problems aren鈥檛 using campaign statements to play 鈥済otcha鈥� with President Trump. They are ensuring that each and every president will not use campaign statements to play games with the Constitution.