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.