Last year, the Public Policy Legal Institute and the Institute for Free Speech filed “friend of the court” briefs in the Supreme Court of the United States challenging an opinion of the U.S. Court of Appeals for the Fourth Circuit that hailed a “welcome restraint” of campaign speech that exhibited religious bias. Those filings were part of a long train of legal reviews of the Trump Administration’s series of Executive Orders imposing a ban on admissions of persons from several countries which did not have accurate or secure identification systems or were sponsors of terrorism. In the challenge to the Fourth Circuit’s “welcome restraint” theory, the Supreme Court vacated and remanded the troublesome Fourth Circuit’s opinion, and on remand, the Fourth Circuit said that it did not rely on campaign speech to reach its next decision (but it actually did).

Today, June 26, 2018, the Supreme Court of the United States issued its final decision in this long line of cases. The Court reversed the lower court decisions enjoining the “travel ban” and sent the cases back to the lower courts.

The majority opinion, written by Chief Justice John Roberts, said, in part:

At the heart of plaintiffs’ case is a series of statements by the President and his advisers casting doubt on the official objective of the Proclamation. …

Plaintiffs argue that this President’s words strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition. But the issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. In doing so, we must consider not only the statements of a particular President, but also the authority of the Presidency itself. …

Plaintiffs therefore ask the Court to probe the sincerity of the stated justifications for the policy by reference to extrinsic statements—many of which were made before the President took the oath of office. …

For our purposes today, we assume that we may look behind the face of the Proclamation to the extent of applying rational basis review. That standard of review considers whether the entry policy is plausibly related to the Government’s stated objective to protect the country and improve vetting processes. See Railroad Retirement Bd. v. Fritz, 449 U. S. 166, 179 (1980). As a result, we may consider plaintiffs’ extrinsic evidence, but will uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds. …

The Proclamation does not fit this pattern. It cannot be said that it is impossible to “discern a relationship to legitimate state interests” or that the policy is “inexplicable
by anything but animus.” Indeed, the dissent can only attempt to argue otherwise by refusing to apply anything resembling rational basis review. But because there is persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility, we must accept that independent justification. …

Under these circumstances, the Government has set forth a sufficient national security justification to survive rational basis review. We express no view on the soundness of the policy. We simply hold today that plaintiffs have not demonstrated a likelihood of success on the merits of their constitutional claim.

Trump v. Hawaii, No. 17-965 (June 26, 2018).

Media coverage, as is common, has focused on the first part of the opinion, citing Chief Justice Roberts’ comment that “we must consider not only the statements of a particular President, but also the authority of the Presidency itself.” But for lawyers, the real meat of the decision is in the standard of review to be applied (which actually explains why this part of Roberts’ opinion was so succinct).

The new standard of review is rational basis, which is restated here as: “It cannot be said that it is impossible to ‘discern a relationship to legitimate state interests’ or that the policy is ‘inexplicable by anything but animus.’”

So, if the biased campaign statements are the only grounds for the official action, or the policy itself is “inexplicable by anything but animus,” the courts can look to the campaign statements to see if there is a violation. But if the facial explanation both shows an important governmental interest and is readily related to legitimate state interests, the Court, at least in national security questions, won’t look to campaign statements.

In the “travel ban” case, there was sufficient national security interest to justify the ban on admissions from certain countries with demonstrated security concerns even in the face of Presidential statements that might implicate religious bias.

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