AuthorHolloway, Carson
PositionSymposium on Executive Power

    In the biggest legal and constitutional controversy of 2017, President Donald Trump and several federal courts clashed over immigration and national security policy. Early in the new year, in one of the first major public policy determinations of his administration, President Trump issued an executive order temporarily halting immigration from several predominantly Muslim nations. (1) This step was necessary, the President contended, because the countries in question were especially vulnerable to being used as points of departure for terrorists seeking entry into the United States. (2) Caution therefore counseled that immigration from these nations be suspended while the administration devised the more stringent screening procedures necessary to safeguard American security. (3)

    The order was immediately challenged as unconstitutional, and those pressing this claim found a sympathetic ear in some corners of the federal judiciary. (4) Some courts found that the executive order was in fact a ban on Muslim immigration into the United States. (5) As such, they held it likely violated the Establishment Clause of the Constitution's First Amendment. (6)

    In order to justify this conclusion, the judges looked beyond--and really had no choice but to look beyond--the actual wording of the executive order. (7) The order itself does not mention Islam or Muslims. (8) It halts immigration of anybody from certain named countries, whether the persons excluded are Muslim or not. (9) Moreover, the order left untouched immigration from many other majority Muslim nations. (10)

    Nevertheless, the judges claimed that they could glean the order's impermissible intent, not from its words and actual effect, but from what then-candidate Trump had said during the 2016 presidential campaign. (11) At that time, he raised the possibility of a temporary ban on all Muslim immigration into the United States because, he believed, such a ban would help to protect Americans from potential future acts of terrorism. (12) Candidate Trump then backed away from this proposal and instead suggested that his administration would pursue a policy of "extreme vetting" of immigrants in order to ensure that no potential terrorists would be admitted to the United States. (13) Once he was elected, the President issued the executive order that was the ultimate outcome of these developments. (14) Accordingly, some judges concluded, the executive order was really intended by the President to function as a kind of Muslim ban, even though this intention is not evident in the words of the order itself. (15) And this intention, they continued, would probably be found inconsistent with the First Amendment's prohibition on any law "respecting an establishment of religion." (16)

    These conflicts between the President and the courts raise a number of interesting and important legal and constitutional questions. One might wonder about the scope of the discretion that the immigration statutes delegate to the President. How much discretion do these laws, properly interpreted, delegate to the executive, and how much is it constitutionally appropriate for them to delegate? One might also wonder about the relevance or applicability of the Establishment Clause to immigration policy. Is it possible for an immigration restriction--even one that would explicitly take religion into account--to amount to a law "respecting an establishment of religion"? (17) Finally, one might wonder whether it is appropriate for a court to go beyond the text of a legal instrument in order to find grounds for its alleged unconstitutionality. Should judges seek the intention of such an instrument primarily in its words, and the ordinary modes of interpreting them, or may they pry into the subjective political intentions of the legal authority responsible for the instrument?

    This article examines the last of these questions. Did the judges who raised Establishment Clause issues with the President's executive order act appropriately in seeking the grounds for such concerns outside the text of the order itself? Did they behave rightly in relying on things the President said while he was campaigning, long before the order was actually written?

    When the President's order was first blocked based on what he had said during the campaign about a "ban" on Muslim immigration, some political commentators expressed dismay that an American court would exercise its powers on the basis of such an inquiry. (18) Surely, they suggested, it is the job of judges to evaluate the constitutionality of an executive order based on its actual text and operation--not the necessarily fluid and broad-brush rhetoric of the political campaign that had taken place earlier. In truth however, there is precedent for something like this kind of inquiry, at least in the area of the Establishment Clause. The Supreme Court has struck down acts of state governments as violations of the Establishment Clause, relying on the subjective intentions of those who framed the acts as evidence of the acts' constitutional infirmity. (19)

    According to the modern Court, the Establishment Clause requires, among other things, that laws and other acts of public authority have a secular purpose. (20) If an exercise of public power has a religious purpose, it falls afoul of the Establishment Clause. In recent years, the Court has been willing to look for the animating purpose of public acts not only in the acts themselves, but also in the intentions of the actors responsible for them. For example, in McCreary County v. ACLU (2005), the Court found a courthouse display of the Ten Commandments to be a violation of the Establishment Clause--not because any such display would necessarily be a violation, but because the original version of the display, which had been repeatedly changed in response to legal challenges brought by the ACLU, indicated that the county had intended to use the display to promote religious belief. (21) Similarly, in Wallace v. Jaffree (1985), the Court ruled a state law providing for a moment of silence in public schools for "meditation or voluntary prayer" unconstitutional. (22) Here the Court found evidence of an impermissible religious purpose in the remarks of the chief sponsor of the law, a state senator who admitted after the law's passage that he intended it as a way to reintroduce prayer into the public schools. (23)

    Nevertheless, those who have complained about the courts' treatment of President Trump's executive order have a point. This paper contends that if we go deeper into our country's constitutional history, if we look beyond cases like McCreary v. ACLU and Wallace v. Jaffree and get closer to the founding generation, we find weighty precedents that militate against the kind of inquiry pursued by the courts that have blocked the President's executive order. These precedents indicate that the constitutionality of a public act is properly evaluated by focusing on the character of the act itself, especially as it is revealed in the words of the act, and not by trying to look into the supposed extra-textual intentions of those responsible for the act.

    To be clear, and to be fair, this temptation to look beyond the words of the law has shown itself from the beginning of our constitutional history. Such an inquiry is not utterly without precedent in our country's early constitutional history; however, when this temptation arose in the early years of the republic, it was challenged and defeated. (24) Moreover, the dominant constitutional opinion that developed as a result of these early arguments maintains that the defeat of this temptation was for the best. Put another way, those who looked outside the law for the intentions of the lawgiver were on the losing side in their own day.

    To some extent, then, this article's argument takes the form of an appeal to historical authority, or to the authority of constitutional tradition. The argument by which the judges of 2017 found constitutional problems with the President's executive order has only shallow roots in our constitutional and legal heritage. It finds support in recent rulings like McCreary v. ACLU and Wallace v. Jaffree, but it was repudiated by venerable figures who grappled with similar questions at the time of the founding and the generations immediately following it. Such an argument is fine as far as it goes. Judgments about what is and is not a proper approach to interpretation often depend on judgments about what is and is not consistent with a long-established tradition of interpretation.

    However, such an argument is not altogether satisfying on its own. After all, precedents only establish what has been decided in the past, and not necessarily that it was correctly decided. Accordingly, this article does not limit itself to reviewing these early precedents, which caution against looking beyond the words of a legal text to find its intention. These early arguments bring to light solid, lasting reasons for us to draw back from such an approach to legal and constitutional interpretation, especially when judges use this approach to declare an act of public authority to be unconstitutional. There are serious problems with such an approach, problems that were evident early in our history and that are sill relevant today.

    The early precedents of this approach include not only legal precedents--the rulings of courts--but also political precedents--the public arguments put forward by figures holding high political office in the government of the United States. The early legal precedents include arguments made by Chief Justice John Marshall on behalf of the Supreme Court. (25) The political precedents include arguments made by President Andrew Jackson in the context of the tariff controversy of the 1830's (26) and arguments made by Alexander Hamilton as the nation's first secretary of the treasury. (27) We will take them in reverse chronological...

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