We should be happy that the U.S. Court of Appeals for the Fourth Circuit took our advice in its latest decision enjoining the Trump Administration’s “travel ban” Executive Orders. After all, as the Public Policy Legal Institute and the Institute for Free Speech (formerly called the Center for Competitive Politics) requested last year, the Supreme Court instructed the Fourth Circuit not to restrain candidates’ campaign-trail speech, and the Fourth Circuit said in its February 15 decision: “we need not and thus do not rely on pre-election statements in assessing the constitutionality of the Proclamation.” Slip op., 46.

Except … despite that declaration, they did.

They didn’t themselves cite the candidate’s statements, except in a footnote. But the District Court below used campaign-trail quotes as the basis for its holding against the travel ban, and then the Fourth Circuit cited that holding without qualification or correction. Ironically, the Fourth Circuit was doing the same thing it condemned the Trump Administration for doing: although the Fourth Circuit’s official action was facially neutral, it used improper prior statements to justify its final action.

Background: The Fourth Circuit had enjoined the Trump Administration’s “travel ban” Executive Order as violating the Establishment Clause of the U.S. Constitution, relying in large part on campaign-trail quotes from then-candidate Donald Trump. The Fourth Circuit, doubling down on its disregard for the First Amendment, said:

To the extent that our review chills campaign promises to condemn and exclude entire religious groups, we think that a welcome restraint.
Int’l Refugee Assistance Project, et al. v. Trump, et al., 857 F.3d 554, 600 (4th Cir. 2017).

PPLI and IFS filed briefs with the Supreme Court asking the Court to first review and then, after the Court decided to review the case, to reverse or vacate the Fourth Circuit’s “welcome restraint” opinion. While not taking a position on the “travel ban” itself, the PPLI/IFS briefs pointed out that political campaign speech enjoys the highest level of First Amendment protection, that the Supreme Court has long held that free and full campaign speech is “essential” to democracy (not least because the people should be able to hear a candidate’s true feelings and positions without regard to political correctness), and that the Court has never permitted a court to silence campaign speech on religious grounds or any other “free-floating test for First Amendment coverage … [based on] an ad hoc balancing of relative social costs and benefits.”

The Supreme Court subsequently vacated the problematic Fourth Circuit’s “welcome restraint” opinion, with a rare citation to earlier cases saying that lower courts should not cite the vacated opinion. And on its face, the latest Fourth Circuit opinion appears to respect the Supreme Court’s vacating of its earlier opinion. But let’s let the dissenting Fourth Circuit judges explain the problem:

[R]ather than determining from the face of the Proclamation whether the reasons given for the entry restrictions were legitimate and bona fide, which would preclude a “look behind” it for extrinsic evidence of bad faith, the court looked behind it first to conclude that the Proclamation was not bona fide. With this twist of Mandel, the court then reviewed candidate Trump’s campaign statements …

Slip Op., 244.

[The Plaintiffs] urged the district court to “look behind” the Proclamation, which is concededly neutral on its face, and to rely on the same statements of candidate Trump that provided the basis for the majority’s earlier decision. The district court ruled as the plaintiffs urged …

Slip Op., 261.

Why was that bad?

The [Supreme] Court’s reluctance to consider statements made in the course of campaigning derives from good sense and a recognition of the pitfalls that would accompany such an inquiry.

Because of their nature, campaign statements and other similar statements, including tweets, are unbounded resources by which to find intent of various kinds. They are often short-hand for larger ideas; they are explained, modified, retracted, and amplified as they are repeated and as new circumstances and arguments arise. And they are often susceptible to multiple interpretations, depending on the outlook of the recipient. A court applying this new rule would thus have free reign to select whichever expression of an official’s developing ideas best supports its desired conclusion.

Moreover, opening the door to the use of campaign-trail statements and  similar musings or tweets to inform the text of later executive orders has no rational limit. If a court, dredging through the myriad remarks of an officeholder, fails to find material to produce the desired outcome, what stops it from probing deeper to find statements from a previous campaign, or from a previous business conference, or from college?

And how would use of such statements take into account intervening acts, events, and influences? When a candidate wins the election to the presidency, he takes an oath of office to abide by the Constitution and the laws of the Nation. And he appoints officers of the government and retains advisors, usually specialized in their field. Is there not the possibility that a candidate might have different intentions than a President in office? And after taking office, a President faces external events that may prompt new approaches altogether. How would a court assess the effect of these intervening events on presidential intent without conducting “judicial psychoanalysis”?

At bottom, the danger of this new rule is that it will enable a court to justify its decision to strike down any executive action with which it disagrees. It need only find one statement that contradicts the official reasons given for a subsequent executive action and thereby pronounce that the official reasons were a pretext.

Moreover, the unbounded nature of the new rule will leave the President and his administration in an untenable position for future action. It is undeniable that President Trump will continue to need to engage in foreign policy regarding majority-Muslim nations, including those designated in the Proclamation. Yet, the district court’s opinion presupposes that the Proclamation is tainted by prior campaign-trail statements and prior executive orders, clearly indicating that future actions might also be subject to the same challenges made today.

Finally, the new rule would by itself chill political speech directed at voters seeking to make their election decision. It is hard to imagine a greater or more direct burden on campaign speech than the knowledge that any statement made might be used later to support the inference of some nefarious intent when official actions are inevitably subjected to legal challenges.

Slip Op., 264-66.

Pretty much what PPLI and IFS told the Supreme Court last year.

We also warned the Supreme Court that it needed to speak strongly about the need to protect free speech, even politically incorrect free speech about religion. Otherwise the lower courts would find ways to continue using the Fourth Circuit’s vacated “welcome restraint” theory to justify chilling campaign speech. And the District Court in this case did just that.

And the Fourth Circuit, despite no longer using its “welcome restraint” language, did too. So, no, we’re not happy.

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