The Supreme Court’s 5-to−4 decision to uphold President Trump’s travel ban Tuesday shed critical light on an increasingly important question to civil society: What is the legal value of a presidential tweet?
Trump’s tweets on the travel ban played a key role in the case as opponents sought to cast the White House policy as anti-Muslim. Along with other statements Trump had made on the matter, the tweets revealed the administration’s disregard for an unconstitutional violation of religious freedom, critics of the travel ban said.
Whether a president’s tweets carry meaningful force in the eyes of the law is a significant issue, not least because Trump remains embroiled in separate litigation over whether he violated the Constitution by blocking his followers on Twitter. But as officials move more of their communications online, the demands on the judiciary to interpret those statements for public policy will increase. The Supreme Court’s writings on Tuesday concerning Trump’s tweets could therefore set an important marker for future cases.
In briefs before the court, the plaintiffs suing to stop the ban — lawyers representing the state of Hawaii, among others — said that any objective observer would have to conclude that the policy’s true purpose was to enact a Muslim ban.
“Nine days before EO−3 was released, for example, the President demanded a ‘larger, tougher and more specific’ ban,” the brief says, “reminding the public that he remains committed to a ‘travel ban’ even if it is not ‘politically correct.’”
Trump’s statement, on Twitter, came hours after a bombing in London. Police later arrested and charged an 18-year-old Iraqi man with attempted murder in connection with the attack.
In its briefs, the government had argued that trying to determine Trump’s underlying motive for the policy was beyond the scope of the court’s duties.
“This Court’s precedent prohibits such ‘judicial psychoanalysis of a drafter’s heart of hearts,’” the government wrote.
But rather than dismissing the question, the court took on the issue of whether Trump’s statements — including his tweets — might jeopardize the policy. In the end, Chief Justice John G. Roberts Jr. wrote, the president’s statements do not endanger the travel ban. Even if Trump’s sentiments contradicted core American values (a debate the court declined to opine on), the White House was within its rights to issue the ban under the justification of national security.
“The Proclamation is squarely within the scope of Presidential authority,” Roberts wrote. He later added: “Because there is persuasive evidence that the [policy] has a legitimate grounding in national security concerns, quite apart from any religious hostility, we must accept that independent justification.”
Justice Sonia Sotomayor, in her dissent Tuesday, strongly disagreed with that view. She zeroed in on as many as five tweets and three retweets from Trump’s account that she said helped show evidence of racial bias.
“The dispositive and narrow question here is whether a reasonable observer, presented with all ‘openly available data,’ the text and ‘historical context’ of the Proclamation, and the ‘specific sequence of events’ leading to it, would conclude that the primary purpose of the Proclamation is to disfavor Islam and its adherents by excluding them from the country,” Sotomayor wrote. “The answer is unquestionably yes.”
The exchange appears to establish limits on how justices may interpret presidential tweets in relation to executive power. In Roberts’s view, so long as there is a clearly articulated and legal purpose for using a power granted to the president, then presidential tweets should not be a factor.
Even as the court saw no need to weigh the substance of Trump’s tweets in deciding whether to condemn the travel ban, its ruling holds other clues for future litigation concerning presidential tweets.
Both in the opinion and the dissents, the justices consistently adopted the perspective that Trump’s broadcasts on Twitter are an official reflection of the White House — not merely the personal feelings of a private individual, as the government has claimed elsewhere.
“The President of the United States possesses an extraordinary power to speak to his fellow citizens and on their behalf,” Roberts wrote, referring to the tweets and other Trump utterances collectively as “the statements” on the travel ban.
If Trump’s tweets are no different from statements he makes from a podium, that could pose problems for the Justice Department, which has argued that in blocking his political critics on Twitter, Trump was merely engaging his followers in a personal capacity, much like “giving a toast at a wedding or giving a speech at a fundraiser.”
While not conclusive, the Supreme Court’s approach in Trump v. Hawaii suggests it could agree with a lower court that in May tied Trump’s Twitter account with his official position as president.