Stop Citing Trump’s Campaign Statements

Some recent judicial opinions on the President’s immigration Executive Orders have cited or referred to statements that he made as a candidate about immigration policy. I hope that this practice is rejected soon, as it’s terrible.

The problems with relying on political statements in interpreting an executive are greater than the well-known criticisms of using legislative history to interpret a statute.  First, candidates say many contradictory things on an issue depending on their audience and on the news flow. Trying to make sense out of that is an almost impossible legal ask. Second, statements made during a campaign are not necessarily connected with an executive order. Legislative history at least has the virtue of being part of a formal process that culminates with a statute. Third, if public comments by a candidate are fair game, then why not private comments? (Say, a leaked tape of statements made to a group of donors? Or Richard Nixon’s presidential tapes?) Finally, it’s worth pointing out that candidates lie sometimes–how is that supposed to be taken into account?

Judges are certainly aware of what was said in the campaign–they do watch the news.  But relying on that as authority is ill-advised.

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2 Responses

  1. Jennifer S. Hendricks says:

    I disagree. Application of the endorsement test requires consideration of all relevant context.

  2. Joe says:

    As noted elsewhere, including her Twitter, this issue was discussed in a New Yorker article, that cited an upcoming article by Prof. Kate Shaw that disagrees with you in certain respects.

    I am with the law professor cited along with Michael Dorf (who agrees generally speaking) that citations can be relevant when looking at things as a whole, applying current doctrine.

    As applied, Trump has been suitably consistent on the relevant point. As it not being related, on balance, that seems to me specious as applied here. Third, generally statements are relevant in various cases when discrimination is involved, so is that problem going to be raised each and every time? This would apply to the final point too. If a case for discrimination is made in part based on the person repeatedly saying to other people that blacks were inferior, are we going to say “well he might be lying to impress his racist friends and colleagues, so it’s terrible to cite that”?

    The judges aren’t merely relying on the statements. But, ignoring them seems to deny relevant information.