Public Policy Legal Institute: Do As I Say, Not As I Do – The Latest 4th Circuit Travel Ban Opinion Has the Same Problem It Condemned In the Travel Ban It Enjoined (In the News)

Public Policy Legal Institute: Do As I Say, Not As I Do – The Latest 4th Circuit Travel Ban Opinion Has the Same Problem It Condemned In the Travel Ban It Enjoined

By Barnaby Zall

We should be happy that the U.S. Court of Appeals for the Fourth Circuit took our advice in its latest decision enjoining the Trump Administration’s “travel ban” Executive Orders. After all, as the Public Policy Legal Institute and the Institute for Free Speech (formerly called the Center for Competitive Politics) requested last year, the Supreme Court instructed the Fourth Circuit not to restrain candidates’ campaign-trail speech, and the Fourth Circuit said in its February 15 decision: “we need not and thus do not rely on pre-election statements in assessing the constitutionality of the Proclamation.” Slip op., 46.

Except … despite that declaration, they did.

They didn’t themselves cite the candidate’s statements, except in a footnote. But the District Court below used campaign-trail quotes as the basis for its holding against the travel ban, and then the Fourth Circuit cited that holding without qualification or correction…

[L]et’s let the dissenting Fourth Circuit judges explain the problem: …

“[T]he new rule would by itself chill political speech directed at voters seeking to make their election decision. It is hard to imagine a greater or more direct burden on campaign speech than the knowledge that any statement made might be used later to support the inference of some nefarious intent when official actions are inevitably subjected to legal challenges.” Slip Op., 264-66.

The Center for Competitive Politics is now the Institute for Free Speech.