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Should Courts Consider Trump’s Campaign Rhetoric in Making Decisions?

The 9th U.S. Circuit Court of Appeals says Trump’s campaign rhetoric can be used to make a ruling, unlike when Obama was president.

The Supreme Court ruled Obama’s rhetoric selling Obamacare was irrelevant.

February 13, 2017 | by Mark Hemingway

In his excellent rundown of yesterday’s ruling by the Ninth Circuit refusing to reinstate President Trump’s immigration executive order, National Review’s David French noted something rather curious about the court’s rationale. In essence, the court said that Trump’s campaign rhetoric was an issue to be considered when determining the validity of the order. French notes that this is pretty specious reasoning:

The court didn’t rule that Trump’s campaign statements rendered the order invalid, but it clearly forecast that it might. Never mind that the order plainly isn’t a Muslim ban, and never mind that the campaign statements weren’t made about the order in question. The mere fact that at one point he stated a desire to ban all Muslims may be used to cut through the “considerable deference” the court owes the president. While there is precedent for considering lawmaker motivations in the Establishment Clause context, the consideration of sweeping campaign statements (about a different kind of measure entirely) push that precedent to the breaking point.

There’s another reason why this should raise eyebrows. As the Washington Examiner’s Phil Klein notes, it wasn’t that long ago that the Supreme Court ruled similar rhetoric from President Obama was irrelevant. Obama wasn’t campaigning for office, but he was trying to sell Obamacare.

In 2012, the Supreme court decided National Federation of Independent Business v. Sebelius in favor of preserving Obamacare’s individual mandate. Loosely speaking, the case hinged on the following distinction. It was almost certainly unconstitutional for a law to require every American to purchase insurance. However, Congress does have the power to tax. The mandate could only be legal if it was considered a tax that penalized people without insurance, rather than an affirmative mandate to purchase insurance.

However, Obama and his surrogates were very sensitive to public perception of the exorbitant cost and intrusive scope of Obamacare. In the years before National Federation of Independent Business v. Sebelius was decided, Obama had repeatedly insisted the mandate was not a tax. The Supreme Court ignored whether or not Obama’s own words spoke to the intent of the law, and upheld the mandate.