President Trump likes to talk. Between his early morning tweets and his stream-of-consciousness press conferences, he might be the most vocal president in modern history. His words, it turns out, do matter—and not just in the bully pulpit sense. A series of judicial decisions striking down the president’s executive orders for a travel ban have revealed that the public statements Trump and his surrogates make carry legal significance. The courts have used the statements to determine whether the orders discriminate on the basis of religion, and therefore violate the Establishment Clause of the First Amendment. On the one hand, this may seem obvious; of course we should assign legal weight to what the president says he wants to do. But on the other hand, Trump’s off-the-cuff style invokes the common-sense sentiment that maybe we should not take everything this man says so seriously. Yet, a budding (but not uniform) consensus of federal judges has ruled that in fact we should take Trump’s words seriously, that they can give context to understanding a law’s true discriminatory purpose. In doing so, the courts have construed conventional First Amendment doctrine to cover a very unconventional president.

The Eastern District of Virginia became the first court to use the president’s public statements to determine discriminatory intent, in response to the administration’s first executive order halting immigration and travel from seven Muslim-majority countries. The court imposed a temporary restraining order on the travel ban in part because it found Establishment Clause challenges likely to succeed on the merits.[1] In the order, the court devoted an entire section to listing the many public statements Trump and his surrogates had made regarding a “Muslim ban.” In particular, the judge referred to then-candidate Trump’s press release calling for “a total and complete shutdown of Muslims entering the United States” in December 2015; an interview in July 2016 in which Trump, when asked about the constitutionality of banning Muslims, said “call it whatever you want. We’ll call it territories, ok?”; and a statement from Rudy Giuliani claiming that Trump asked him to “show me the right way to do it legally.”[2] The court even looked at an interview Trump gave back in 2011, long before he ran for president, in which he told Bill O’Reilly he believed there is a “Muslim problem” in the world.[3] The court used the statements to show the ban’s intended purpose was very likely to discriminate on the basis of religion.

In citing a legal justification for reaching its conclusion, the Eastern District of Virginia discussed Supreme Court precedents that permit courts to use public statements to contextualize and determine the discriminatory purpose of a government action.[4] Government actions that do not explicitly appear to discriminate on the basis of religion can still violate the Establishment Clause if they do not have a secular purpose.[5] Whether or not a law has a secular purpose depends on how a reasonable, objective observer would view it in its specific historical context and considering events leading up to and surrounding the action.[6] The court found it apparent that given all of Trump’s aforementioned talk of trying to make a Muslim ban legal, an objective observer could easily see the executive order as having no other purpose than to discriminate on the basis of religion.[7] It also rejected—again citing precedent—the notion that statements the president made before taking office are irrelevant, and dismissed the government’s attempt at an unsubstantiated, implausible national security rationale for the travel ban.[8]

The Ninth Circuit endorsed a similar analysis that contextual public statements could reveal a discriminatory purpose in its own decision upholding a stay on the first travel ban.[9] Although it did not come to a ruling on whether First Amendment challenges would likely succeed on the merits, the court conclusively held that evidence of purpose beyond the text of a law can be used to determine its constitutionality.[10]

Even more significantly, recently two different federal judges in Hawaii and Maryland issued preliminary injunctions against President Trump’s second, revised travel ban using the same reasoning as the Virginia court.[11] Because the new executive order did not involve illegal detentions at airports, the courts had to rely exclusively on religious discrimination grounds, rather than the due process violations alleged in litigation over the first order. Also, the second order removed the preferential treatment towards immigrants of minority religions from the Muslim-majority countries, eliminating the one possible basis for facial discrimination in the first order. The courts therefore had to rely entirely on contextual statements outside the text of the order to find a discriminatory purpose. The judges embraced this task, diving deeper into the analysis and citing even more precedent than the Virginia court had.[12] Interestingly, both courts relied on statements made by White House Senior Adviser Stephen Miller and Press Secretary Sean Spicer after the first ban had been struck down, in which they claimed that the new order would have the same “basic policies” and “principles” as the first order.[13]  These public statements, the courts held, betrayed its discriminatory purpose, namely that the second executive order—which also banned all migrants from six Muslim-majority countries—was simply the latest attempt at an unconstitutional Muslim ban. Once again, the administration had dug its own grave.

All of the judges collectively cited numerous examples of courts relying on contextual evidence to show that a government act unconstitutionally discriminated on the basis of religion. However, in those cases the courts tended to use more traditional legislative history or contemporaneous government actions to show context, rather than comments made on cable TV or twitter. Many of those cases were also decided by divided courts, and of course more textualist judges would likely frown on the use of such outside context to interpret a law or order. For example, in Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), a majority of justices ruled that a law can be facially neutral but still discriminatory, but only a plurality would say that legislative history could be used to evaluate discrimination—Justice Scalia dissented from that portion of the opinion. Indeed, just a few days ago the Eastern District of Virginia (with a different judge from the first order) ruled in the opposite way as the Hawaii and Maryland courts and declined to issue a temporary restraining order on the second executive order.[14] Without delineating all of Trump’s statements, the court held that the order’s facial purpose as expressed in its text should be given substantial deference. The court did not reject the consideration of public statements altogether, but rather held that in this context the statements were too attenuated to overcome the order’s facial neutrality.[15]

Using President Trump’s comments on cable TV and social media against him in court may be unprecedented, but only because the actions of this administration are themselves unprecedented. Perhaps never before in the post-Civil Rights era has a president campaigned on a policy so openly prejudiced against a minority religion. The reaction from federal judges is paradoxically both astounding and painfully obvious: we are used to courts reading between the lines to find disparate impacts, not to them calling out a president for boasting on national television about his blatant plan to discriminate against Muslims. When faced with a president who has said openly, in no uncertain terms, that he wants to ban a religion from the country, we should hope our institutions of checks and balances step in to defend our core constitutional values. The courts’ job in identifying the president’s discriminatory intent in this case is almost so straightforward that the results make us uncomfortable. Unelected judges can strike down a law because of something Rudy Giuliani said on Fox News? When that something betrays an intent to violate fundamental constitutional rights, they can, and they should.

[1] Aziz v. Trump, No. l:17-cv-116.

[2] Id. at 7–8.

[3] Id. at 7.

[4] Id. at 13–16.

[5] Lemon v. Kurtzman, 403 U.S. 602, 612 (1971).

[6] McCreary County v. ACLU of Ky., 545 U.S. 844, 862 (2005).

[7] Aziz, at 17.

[8] Id. at 15, 18.

[9] Washington v. Trump, 847 F.3d 1151, 1167­–68 (9th Cir. 2017).

[10] Id.

[11] Hawaii v. Trump, No. 17-00050, at 29­–40; Int’l Refugee Assistance Project v. Trump, No. TDC-17-0361, at 25­–38.

[12] Id.

[13] Hawaii, at 12; Int’l Refugee, at 9­–10.

[14] Sarsour v. Trump, No. 1:17cv00120.

[15] Id. at 23–24.