The Supreme Court promises that government action is illegitimate if it “lack[s] any purpose other than a ‘bare . . . desire to harm a politically unpopular group.’”1 But increasingly, that promise is at risk in the context of actions by the Executive. Recent Supreme Court cases signal a reticence to find unofficial presidential statements probative of governmental purpose for actions taken by the Executive. Because courts increasingly require discrimination litigants to prove up animus with evidence such as statements, that reticence to review unofficial presidential statements impedes access to justice. Cordoning presidential statements off from purpose review insulates executive action from claims of discrimination.
But this impending collision between discrimination doctrine and judicial treatment of presidential speech is not inevitable. This Note explains that although the Supreme Court has retreated from analyzing presidential speech, it has not squarely prohibited such analysis. Now, President Trump’s informal speech has forced courts to deal directly with the problem. The issue has percolated in lower courts,2 especially district courts, which have trended toward relying on unofficial presidential speech for governmental purpose inquiries. The Supreme Court should mirror this district court approach because examining presidential speech can be “a manageable, sensible inquiry”3 that preserves the feasibility of discrimination claims against executive action.
Previous scholarship by Professors Katherine Shaw and Shawn Fields has defended consideration of presidential speech in purpose inquiries.4 This Note builds on the existing literature by identifying how the Roberts Court has shunned presidential speech evidence, despite its strong theoretical foundation.5 The Note illustrates that a square holding averse to presidential speech would make discrimination cases against the Executive difficult to prove. To make this argument, the Note proceeds in four Parts. Part I explains the increasingly limited pathways to establishing discriminatory purpose, under which explicit statements have become critical tools to prove discriminatory intent. Part II then analyzes the Supreme Court’s treatment of presidential speech, and Part III contrasts that treatment with current trends in the district courts. Part IV identifies how the Supreme Court can adopt the lower court approach.
The Trump era shows that devaluing presidential speech evidence allows the Executive to avoid accountability and meaningful judicial checks.6 It is not unprecedented for a President to say “the quiet part out loud”7 and admit discriminatory purpose.8 In Korematsu v. United States,9 the Supreme Court failed to inquire into the impermissible purpose of President Roosevelt or other executive officials despite briefing that alleged explicit statements of prejudice.10 President Nixon expressed anti-Black animus to his staff when advocating for the War on Drugs.11 But President Trump has raised the profile of discriminatory bully pulpits.12 His “incendiary” rhetoric13 frequently includes discriminatory sentiments, and his affinity for informal communication with the public means that extensive presidential speech is available for consideration.14 The Trump Administration’s hostility to judicial review,15 combined with its willingness to contradict its own statements in court,16 has increased the urgency of asking how courts consider presidential speech when assessing governmental purpose.17
Few dispute the propriety of considering official presidential statements — including signing statements, executive orders, and other formal proclamations.18 But this Note focuses on the open question: Can unofficial presidential statements be considered in purpose inquiries? Unofficial statements — meaning social media posts, speeches, and press interviews19 — are referred to here as “presidential speech” or the “bully pulpit.” Although considering presidential speech may be especially important in equal protection cases for the reasons outlined in Part I, the judiciary’s approach to considering presidential speech impacts any challenge to executive action where purpose is relevant, including claims involving the First Amendment and pretext. The bully pulpit is a powerful presidential tool,20 and this Note does not suggest that it is the judiciary’s responsibility “to denounce the statements” of the President.21 However, it is the judiciary’s responsibility to uphold the Consti-tution’s promise of equal protection.22 If a President’s speech illuminates that government actions are motivated by discriminatory purpose, or any other illegal purpose, the judiciary should not turn a blind eye.23
I. The Erosion of Arlington Heights and Discriminatory Purpose
Consideration of presidential speech in purpose inquiries is critical for discrimination claims, because, although rare,24 an explicit statement by a decisionmaker is one of the few clear paths left to establishing unconstitutional discrimination.25 When considering a facially neutral law, “[p]roof of . . . discriminatory intent or purpose26 is required to show” an equal protection violation.27 Village of Arlington Heights v. Metropolitan Housing Development Corp.28 identified four29 kinds of evidence that could establish discriminatory purpose: (1) disparate impact; (2) historical evidence of discrimination; (3) unusual procedures and substantive standards; and (4) “legislative or administrative history[,] . . . especially . . . contemporary statements by” decisionmakers.30 But federal courts have narrowed these evidentiary pathways one by one. This Part proceeds by identifying how each prong of Arlington Heights has been eroded in order to illustrate how discriminatory statements are critical evidence.
A. Disparate Impact
Arlington Heights and its predecessor, Washington v. Davis,31 both acknowledged that disparate impact could be relevant to identifying animus.32 An especially severe pattern of disparity could even be determinative.33 But the impact prong of Arlington Heights has been diminished, as later cases have given statistical disparities little weight.34 Personnel Administrator v. Feeney35 undercut the value of statistical evidence when it found that a hiring policy favoring veterans, when veterans were ninety-eight percent male, was insufficient to find discrimination.36 The plaintiffs in McCleskey v. Kemp37 offered sophisticated statistical analysis paired with additional animus evidence,38 and again the Supreme Court declined to find discriminatory purpose.39 “[T]he McCleskey opinion offers [a] powerful obstacle to discriminatory purpose claims — allowing, if not encouraging, judges to refuse inferences of discriminatory purpose from statistical disparities . . . .”40 The Roberts Court reaffirmed this anti-impact view in Brnovich v. Democratic National Committee41 when it rejected discrimination challenges to voting restrictions.42 The majority declined to consider extensive statistical evidence of disparate impact (which appeared at length in Justice Kagan’s dissent43) showing that minority groups were twice as likely to be impacted by the restrictions.44 Taking the case law together, it seems like impact has been cleaved from purpose.45
B. Historical Evidence of Discrimination
Like impact, the Arlington Heights promise of historical review has been whittled away from discriminatory purpose inquiries. History once was a strong pathway to demonstrating discriminatory purpose.46 In Hunter v. Underwood,47 the Court relied extensively on historical evidence in determining that a voting restriction was motivated by animus.48 But other case law has constrained this inquiry.49
First, case law has declined to consider history that is too far removed from the challenged action.50 As Professor Elise Boddie explains, “[t]he Court has relied on the passage of time to absolve state actors of responsibility for their predecessors’ prior discrimination. . . . [D]iscrimination must . . . be current.”51 The Court in McCleskey dismissed historical evidence, explaining that “unless historical evidence is reasonably contemporaneous with the challenged decision, it has little probative value.”52 In Abbott v. Perez,53 the Court rejected allegations of discriminatory redistricting, writing that “Texas’s ‘long “history of voting-related discrimination,”’ . . . in no way . . . has any logical bearing on” the current discrimination claims.54 An undefined window has been applied to history, devaluing the noncontemporary.55
Second, the reauthorization doctrine has undermined historical inquiry.56 Even when an action originally had a discriminatory purpose, courts have indicated that government actors reauthorizing the action without the same overt discriminatory purpose may cure the action of its “discriminatory taint.”57 The Supreme Court has not squarely endorsed reauthorization, but it has signaled the potential viability of such cleansing measures.58 This doctrine closes off judicial scrutiny of discrimination in the (many) scenarios where old, avowedly discriminatory laws are reauthorized with little change except their justification.59 By constraining the relevant timeframe for the historical inquiry and applying the reauthorization doctrine, federal courts have defanged the historical prong.
C. Unusual Procedures
The third prong of Arlington Heights, departures from usual procedures and standards, has similarly been undermined. In Abbott, the Court considered a challenge to Texas redistricting plans.60 As Justice Sotomayor recognized in dissent, the legislature’s procedure was far from ordinary; the legislature passed the plans in a special session on a shortened time frame while failing to disclose information to counsel.61 But the majority insisted nothing was suspicious about the slew of unusual procedures; the legislature acted irregularly because they needed to act quicky, the Court explained.62 The Court went out of its way to emphasize that the redistricting plans survived despite the legislature’s unusual procedure.63 This trend has continued, with the Supreme Court devaluing unusual procedural elements during the first Trump Administration when it considered challenges to immigration policies.64 Another prong of Arlington Heights eroded.
D. Protecting What Is Left: Statements
Prongs one through three of Arlington Heights have been chipped away. In Cooper v. Harris,65 the Court claimed that “in no area of our equal protection law have we forced plaintiffs to submit one particular form of proof to prevail.”66 But that reassurance feels hollow given that Cooper relied extensively on decisionmaker statement evidence.67 While the first three prongs of Arlington Heights68 may technically be available69 — and some lower courts continue to employ them70 — their utility has eroded.71 Prong four — explicit discriminatory statements by decisionmakers — remains.72 But the Supreme Court’s treatment of presidential speech could close even this narrow opening for proving animus in the case of discrimination by the Executive.73
II. The Supreme Court’s Distaste for Presidential Statements
The Roberts Court has repeatedly signaled skepticism of presidential speech evidence when assessing governmental purpose in challenges to executive actions. Although the Court has not explicitly barred consideration of such speech, Trump v. Hawaii,74 DHS v. Regents of the University of California,75 and Murthy v. Missouri76 illustrate a trend in a hostile direction. If the Supreme Court continues down this path, plaintiffs challenging discriminatory actions by the Executive will not be able to rely on a classic piece of animus evidence — discriminatory statements by the decisionmaker. This Note is concerned with the interaction between presidential speech and discrimination law, so the fact that both Hawaii and Regents concerned discrimination makes them especially illustrative for discussing this collision. But Hawaii, Regents, and Murthy are all relevant because in all three cases, the Roberts Court failed to consider presidential statements as probative purpose evidence.
A. Understanding the Previous Status Quo
A few years ago, “courts for the most part lack[ed] any coherent interpretive framework for evaluating either speech or intent when it c[ame] to the President.”77 Several lower court decisions had considered presidential speech,78 but critics attacked these decisions as pursuing a “path . . . strewn with danger.”79 An attention-grabbing dissent from Judge Kozinski of the Ninth Circuit called the consideration of presidential campaign speech “folly” that encroached on the separation of powers and free speech.80
Shaw and Fields have each produced scholarship suggesting at least some consideration of presidential speech may be appropriate, including in discrimination cases.81 Shaw’s first article on the subject proposes a normative model focused on the speech’s intent and context.82 Presidential speech “offered in the spirit of advocacy, persuasion, or pure politics” should not be considered by courts.83 Speech that shows the President “inten[ded] to enter the legal arena” should be considered.84 Following Shaw’s model, informal statements, like impromptu replies to the press, should be given little weight, but certain prepared statements, like scripted televised addresses, should be taken seriously.85 Shaw’s second article compares presidential speech to legislative intent inquiries and concludes that consideration of the bully pulpit can be justified on analogous analytical grounds.86 Fields focuses on campaign speech from the President, arguing it is relevant evidence for identifying discriminatory purpose.87
But scholars and courts were developing these ideas largely in the dark, without clear contemporary guidance from the Supreme Court.88 In only “a handful of cases” had “the Supreme Court . . . itself made some reference to presidential intent.”89 Before Hawaii, the Supreme Court’s examination of presidential speech amounted to “scattered” references.90 Recent cases more clearly illuminate the Court’s trend away from considering presidential speech.
B. Hawaii Rejects Statement Consideration
Hawaii provided the first signal that the Court was averse to considering presidential speech. In Hawaii, litigants challenged a presidential proclamation restricting entry to the United States, claiming that the facially neutral measure was motivated by anti-Muslim animus.91 As evidence of the motivating animus, litigants identified a litany of statements by President Trump, including his claim that the United States was “having problems with Muslims” and his reference to the policy as a “Muslim ban.”92 The Court acknowledged these statements existed but did not cite to any of them in assessing governmental purpose.93 Instead, Chief Justice Roberts emphasized that it was not the Court’s place to “denounce the statements”94 and ruled for the government.95 Justice Sotomayor responded with a blistering dissent, explaining that “[t]he President’s statements, which the majority utterly fails to address . . . , strongly support the conclusion that the Proclamation was issued to express hostility toward Muslims.”96 Although Hawaii can be cabined on various grounds — for example, much of the Islamophobic speech was campaign speech, and alleged national security concerns earned the government more deferential review97 — the majority’s dismissive treatment of presidential speech has led many to condemn the case as a return to Korematsu and a free pass for discriminatory presidential action.98 Hawaii did not explicitly bar consideration of discriminatory presidential speech, but it functionally gave it no weight,99 allowing the President to “launder” discrimination through facial neutrality.100
C. Regents Devalues Speech
Similarly, in Regents, the Supreme Court did not completely bar consideration of presidential speech for discrimination claims, but the plurality treated such speech dismissively.101 The plaintiffs claimed that the Trump Administration’s rescission of Deferred Action for Childhood Arrivals (DACA), a policy that granted certain undocumented “immigrants who grew up in the U.S. . . . temporary protection from deportation,”102 was driven by discriminatory animus against Latinos.103 To show animus, the plaintiffs invoked the Arlington Heights factors, including “statements by President Trump.”104 A plurality of the Court found Trump’s statements to be “unilluminating” because they were “remote in time and made in unrelated contexts.”105 But the statements were not remote.106 The Acting Secretary of Homeland Security rescinded DACA just two weeks after President Trump called immigrants “animals.”107 Some of the statements cited by the plaintiffs were campaign statements, but as Justice Sotomayor’s separate opinion argued, “‘nothing in . . . precedent supports [the] blinkered approach’ of disregarding . . . campaign statements as remote in time from later-enacted policies.”108 “Nor did any of the statements arise in unrelated contexts.”109 The statements all related to Mexican immigration, a focus of DACA.110 Additionally, by the plurality’s determination, other executive branch officials were the decisionmakers, so the President’s remarks were not relevant to identifying discriminatory purpose.111 But the plaintiffs alleged that the President “himself directed the end of the DACA program.”112 And the Court was ostensibly assessing the plaintiffs’ claims under a pleading standard of a mere “plausible inference” of animus.113 Given that even under such a deferential posture, with extensive statements tied to the action by both content and timing, a plurality of the Court was unwilling to find the President’s speech relevant to governmental purpose, it seems the Roberts Court is retreating from considering presidential speech as evidence.
D. Murthy Omits Speech
Murthy is the latest signal of the Court’s reluctance to consider presidential speech in governmental purpose inquiries. In Murthy, the plaintiffs sued the Biden Administration, claiming that government officials had pressured social media platforms to remove content in violation of the First Amendment.114 To illustrate this pressure campaign, the plaintiffs cited to statements by President Biden, including a remark that social media platforms were “killing people.”115 The Court held that the plaintiffs lacked standing, in part because it considered injuries from the social media platforms’ decisions not “fairly traceable”116 to the government defendants.117 Despite the plaintiffs’ attempts to use presidential speech as evidence, the majority did not mention any presidential speech in its opinion, nor did it defend the speech’s omission.118 But Justice Alito’s dissent observed that the social media platforms made “[c]oncrete changes” to their policies “in short order” following President Biden’s comment.119 The Court’s neglect of presidential speech signals its aversion to examining such speech for discerning purpose.
E. Department of Commerce Does Not Counter the Anti-Speech Narrative
Some lower court judges have cited to Department of Commerce v. New York120 to defend consideration of bully pulpit statements.121 Department of Commerce said that courts can “inquir[e] into ‘the mental processes of administrative decisionmakers’” when there is a “strong showing of bad faith or improper behavior.”122 Applying that logic, if the discriminatory motivations of the President drove agency decision-makers to make a decision, it is fair for a court to examine that presidential speech.123 While this could be a potential avenue to defending presidential speech considerations,124 its utility is limited because Department of Commerce was not squarely a presidential speech case.125 In this case, the Department of Commerce claimed that it had added a citizenship question to the census at the DOJ’s request, but that explanation was contrived.126 The Secretary of Commerce had actually asked the Justice Department to make the request.127 The Court held that the agency action could be set aside as pretextual because the Court could not “ignore the disconnect between the decision made and the explanation given.”128 But the speech at issue in Department of Commerce was from the Secretary of Commerce, not the President.129 As four Justices signaled in Regents, presidential speech is distinct from agency speech.130
F. The Supreme Court Cases Collide with Equal Protection
The Roberts Court has not completely barred consideration of presidential speech, but it has suggested that such analysis is disfavored. And in Hawaii and Regents, the plaintiffs’ claims of animus were rejected. That is no coincidence. Examining direct statements by decisionmakers is one of the few methods left for plaintiffs to clear the high bar of discriminatory purpose. But if future cases eliminate presidential speech as a form of proof, plaintiffs will no longer have access to that critical evidence for challenging discriminatory executive action.
Excluding consideration of presidential speech would effectively bar discrimination claims by plaintiffs when such speech is the only discriminatory statement evidence offered. But the reach of such a restriction is broader. Claims with other statement evidence, like discriminatory statements by an agency decisionmaker,131 would become precarious. Arlington Heights is a “cumulative” test,132 so ignoring presidential speech could still undermine the feasibility of claims, even when discriminatory statements by other government officers are available for review. Plus, if a President knows that a secretary’s speech will be reviewed, but not his own, there are clear gamesmanship incentives.133 The President can openly speak to his discriminatory motivations, and if “subordinates” offer a nondiscriminatory justification,134 the President can “whitewash his animus through the authority of Executive Branch officials.”135 The President can score political points by “[s]capegoating minority groups”136 while avoiding the meaningful judicial checks that discrimination law should apply to majority power.137 Allowing the President to openly admit to and implement discriminatory policies in this way inflicts harm and undermines governmental legitimacy.138
Insulating presidential speech is also logically inconsistent with the Court’s embrace of unitary executive control.139 It is an “obvious fact that the President is the chief executive who is ultimately responsible for his Administration.”140 “[T]here can be no serious doubt that” presidential speech will often “tell us something about why” an administration takes an action.141 This seems especially true if the President is viewed as dominant over the Executive.142 Refusing to consider presidential speech but finding that the President has complete executive control grants the President broad power while eliminating corresponding responsibility.143
And cutting off presidential speech from consideration runs counter to Davis and Arlington Heights. Davis adopted a relatively expansive purpose inquiry,144 emphasizing that discriminatory purpose could “often be” deduced “from the totality of the relevant facts.”145 Similarly, Arlington Heights originally adopted a broad multifactor framework that encouraged consideration of an extensive pool of evidence to identify discriminatory purpose.146 The Arlington Heights framework was intended to be probing, with the opinion noting that testimony by government officials may be appropriate in “extraordinary instances.”147 Indeed, considering decisionmaker statements is a standard inquiry with which courts are familiar.148 The Supreme Court’s current approach to presidential speech runs directly counter to the kind of thorough review imagined by these foundational discriminatory purpose cases. It eliminates a core piece of evidence for discriminatory intent, even though Arlington Heights explicitly endorsed careful scrutiny of statements by government decisionmakers.149
III. The Percolation in District Courts
The Supreme Court’s resistance to weighing the bully pulpit could collide with discrimination doctrine. But as lower courts have encountered opportunities to develop the issue, they have increasingly considered such speech in assessing government intent, including for discrimination claims.150 The Supreme Court should draw on “the experience of [its] thoughtful colleagues on the district and circuit benches,” as these lower court assessments of presidential speech “could yield insights (or reveal pitfalls)” that the Court “cannot muster guided only by [its] own lights.”151
In a flurry of recent cases,152 lower courts, especially district courts, have coalesced in considering bully pulpit speech as evidence of governmental purpose.153 While judicial consideration of presidential speech for purpose inquiries has implications for several doctrinal areas,154 its effects will be particularly significant in discrimination cases.155
A. Identifying Discrimination with Speech
Judges in at least four district court cases have found bully pulpit speech probative of discriminatory purpose: Miot v. Trump,156 National TPS Alliance v. Noem157 (Nepal TPS), National TPS Alliance v. Noem158 (Venezuela TPS), and CASA, Inc. v. Noem.159 In these cases, the plaintiffs alleged that the Trump Administration’s termination of Temporary Protected Status (TPS) — “a government protection” allowing certain individuals to stay in the United States due to dangerous conditions in their home countries160 — was motivated by “racial- and national-origin-based animus.”161
The plaintiffs in Miot moved to stay the Administration’s termination of TPS for Haiti.162 The court granted the stay.163 Judge Reyes of the U.S. District Court for the District of Columbia found the plaintiffs were likely to succeed on the merits of their equal protection claim, with a section of her Arlington Heights analysis entitled “President Trump has expressed racially motivated animus.”164 Judge Reyes explained that President Trump had expressed animus toward Haitians by calling Haiti a “shithole country” and saying “Haitians ‘probably have AIDS.’”165 During his 2024 campaign, President Trump falsely “accused Haitians of . . . ‘eating the pets of the people [who] live’ in Springfield, Ohio.”166 Presidential speech supported a finding of discriminatory purpose.167
The government argued that consideration of presidential speech for an animus inquiry was improper by pointing to Regents, but Judge Reyes rejected this contention: “[T]he Supreme Court did not place any categorical bar on considering a President’s statement in the Equal Protection context.”168 Judge Reyes distinguished Regents, arguing that the presidential speech here was tied to the challenged action because (1) it was made close in time and (2) the President had motivated the decisionmaker, Secretary of Homeland Security Kristi Noem.169 Secretary Noem made “three TPS decisions about Haiti,” two of which were issued within a month of President Trump making discriminatory statements.170 President Trump had publicly taken credit for terminating TPS for Haiti, and Secretary Noem had expressed her deference to the White House.171
Similarly, the plaintiffs in Nepal TPS challenged TPS terminations for Nepal, Honduras, and Nicaragua as discriminatory.172 The government argued the plaintiffs had failed to state a claim and moved for dismissal or summary judgment,173 but the U.S. District Court for the Northern District of California held that the terminations were unlawful.174 The court considered statements made by the President, including his claims that many immigrants had “murdered far more than one person” and that murder is “in their genes.”175 The President also said “migrants were ‘poisoning the blood of our country’” and “ask[ed] why people ‘could not come from nice countries . . . like Denmark, Switzerland, and Norway.’”176 The court found these statements akin to the “ugly abyss of racism” of Korematsu.177 The government argued that Trump’s statements “should not [be] consider[ed]” in assessing “discriminatory motive” because the Secretary of Homeland Security was the TPS decisionmaker.178 The court rejected that argument, finding the statements to be “circumstantial evidence.”179 “[A]nimus can reasonably be shown from the statements made by Secretary Noem and/or President Trump alone.”180 The plaintiffs had a potential equal protection claim because the President was not permitted to launder his intent.181 “The President is not above the law.”182
Venezuela TPS challenged the terminations of Venezuela’s and Haiti’s TPS status.183 The district court set aside the terminations on statutory grounds184 and noted that “animus can reasonably be inferred from” President Trump’s statements.185 The Ninth Circuit affirmed.186 In concurrence, Judge Mendoza relied extensively on presidential speech, including the President’s claims that immigrants were “animals” and “gang members,” to argue that the vacaturs were impermissibly motivated by animus and arbitrary and capricious.187 Judge Mendoza said that looking to this speech was proper because the President “influenced and directed the policy” and the statements were closely related to the challenged action in both time and content.188 Judge Mendoza emphasized that Hawaii and Regents did not bar consideration of presidential speech and explained that Department of Commerce actually required looking at this speech to reject “post hoc or contrived justifications.”189 “When decision-makers so brazenly broadcast their racially charged reasons for reaching a decision, we should take them at their word.”190
The U.S. District Court for the District of Maryland in CASA, Inc. also considered challenges to TPS terminations, this time for Afghanistan and Cameroon.191 The court denied the government’s motion to dismiss the plaintiffs’ equal protection claims.192 The court considered statements by President Trump signaling animus toward nonwhite immigrants to be “examples of ‘contemporary statements’ by decisionmakers that can be ‘highly relevant’ to the question of discriminatory intent.”193 The district court quoted President Trump’s statements “that ‘very bad people’ had come to the United States from ‘Congo and Africa,’ ‘from Asia,’ ‘from the Middle East,’ and ‘from South America.’”194 “President Trump’s statements [were] relevant to” assessing animus, the court explained, because they were tied directly to racial preferences in immigration policy, and Secretary Noem had clearly looked to the President when issuing the TPS terminations.195
B. Identifying Impermissible First Amendment Purposes
In the TPS cases, the courts considered presidential speech for discrimination claims and consistently distinguished their cases from the Supreme Court’s hesitant decisions on presidential speech. Similarly, in several First Amendment cases, district courts have analyzed presidential speech as relevant to whether the Trump Administration has acted with an impermissible purpose to retaliate and limit free speech rights.196 In American Ass’n of University Professors v. Trump197 (AAUP), the court relied on presidential speech to find that the government was engaged in unlawful coercion.198 Perkins Coie LLP v. U.S. DOJ199 and Chicago Headline Club v. Noem200 both cited presidential statements to support findings of retaliation.201
President & Fellows of Harvard College v. U.S. DHS202 contained a full-throated defense of weighing presidential statements.203 In finding retaliatory purpose, the court considered the President’s social media posts.204 The court explained that ignoring the presented evidence, including the President’s statements, “would require the Court to ‘blind [itself] to reality.’”205
In each case, the relevant district court granted the relief requested by the plaintiffs after extensive presidential speech consideration,206 signaling the growing district court trend of weighing presidential speech for purpose inquiries. The courts cited statements by the President made in interviews, on social media, and during press conferences.207 They analyzed statements made both before and during his presidency.208
C. Revealing Pretext with Speech
District courts have also deemed presidential speech weighty when conducting inquiries into pretextual governmental purposes. In AFSCME v. U.S. Office of Management & Budget,209 the district court found that reduction in force (RIF) guidance was likely arbitrary and capricious, in part based on bully pulpit statements that indicated the RIFs were political retaliation.210 The government claimed the RIFs were for proper “efficiency” purposes,211 but the court found the RIFs to be retaliatory since the President had stated, “We’re closing up Democrat programs.”212 In City & County of San Francisco v. Trump,213 the Trump Administration claimed that an executive order pertaining to funding in sanctuary jurisdictions was aimed merely at identifying funds for termination in sanctuary jurisdictions, rather than the actual freezing of those funds.214 But the court found the Administration’s explanation pretextual, since President Trump had posted online that he was “[w]orking on papers to withhold all Federal Funding” from sanctuary jurisdictions.215
Similarly, Rhode Island State Council of Churches v. Rollins216 considered a motion for enforcement of a temporary restraining order (TRO) after the plaintiffs alleged that the Administration had failed to comply with a TRO that mandated payment of Supplemental Nutrition Assistance Program (SNAP) benefits.217 The district court found the Administration’s explanation — that it was conserving funding for Child Nutrition Programs — pretextual.218 The court relied on Trump’s statements, including a Truth Social post where he explained that “SNAP BENEFITS . . . will be given only when the Radical Left Democrats open up government.”219 The court held the President to his words, explaining that it was “not naïve to the administration’s true motivations.”220
D. The Impact of the District Court Approach
Carrying the approach of the district courts forward paints a vastly different picture for the future of equal protection and presidential speech than the tenor of the Supreme Court’s recent cases. The district courts are not allowing the Executive to speak to discriminatory purposes out of one side of its mouth while naming legitimate justifications with the other.221 Instead of further limiting the reach of equal protection and giving the President a get-out-of-jail-free card for discrimination, the district courts are maintaining a path to relief.
But while these district court cases are notable, their meaning should not be overstated. Many of these decisions involve preliminary rulings or have been appealed.222 Plus, there are substantive limits on the reach of these district court cases. First, in many of these decisions, presidential speech was not the only relevant evidence. There was often other Arlington Heights–esque evidence, like discriminatory statements by other Administration officials.223 So while district courts appear to have coalesced around giving presidential speech real weight, it is unclear if presidential speech alone would be enough to find discriminatory purpose, and if not, how much other evidence is necessary.
Second, these cases have generally not distinguished different forms of bully pulpit speech, which limits their explanatory force. Speeches might be considered more probative than social media posts,224 and campaign speech might be weighed differently than speech while in office.225 In Illinois v. Trump,226 a case challenging President Trump’s deployment of the National Guard in Chicago, the district court endorsed the idea that presidential speech can have varying degrees of probative value.227 The court found speech more probative when it was “made during [the] Presidency, close in time to [the] official action, and [was] likely [to] be looked to by the members of [the] administration who [we]re tasked with implementing [the] order.”228 But other recent cases have not been as particular.229 AAUP considered campaign speech, despite it occurring before the President’s actual period of authority,230 and several cases have analyzed social media posts.231
Work by Shaw and Fields has wrestled more directly with these questions of form.232 But this Note does not take a position on how much weight different forms of presidential speech should get. It does argue that, at least in the discrimination context, courts should consider presidential speech as potentially probative evidence of governmental purpose.233 To do otherwise could practically gut discrimination claims.
IV. Learning from Lower Court Wisdom
Although the Supreme Court has not explicitly barred consideration of presidential speech, it has repeatedly signaled its disfavor.234 But lower courts, particularly district courts, have shown an appetite for “rel[ying] on President Trump’s campaign and post-election statements as probative of intent where . . . they are closely connected in time and substance to the challenged action.”235 The Court can now benefit from lower court ruminations that have coalesced around finding presidential speech considerations both wise and workable.236
Shifts in sentiment from Senior Judge Bybee exemplify the degree of acceptance that presidential speech has achieved in the lower courts. Senior Judge Bybee was appointed to the Ninth Circuit by President George W. Bush.237 During the first Trump Administration, then-Judge Bybee believed that judges should “not get to peek behind the curtain” at presidential speech.238 But in a recent statement supporting a rehearing en banc in Oregon v. Trump,239 he asserted “that the court can and should consider [presidential speech],” at least “for the case at hand.”240 Oregon concerned whether President Trump had lawfully deployed the National Guard to Portland.241 In court, the government claimed the deployment was aimed at supporting federal law enforcement,242 as permitted by statute.243 But, as Senior Judge Bybee cataloged, President Trump had repeatedly stated that his purpose was to police crime in Portland.244 Those statements, Senior Judge Bybee contended, should factor into the court’s analysis.245 As lower court judges have had the opportunity to examine presidential speech, even a past skeptic like Senior Judge Bybee has been persuaded that the bully pulpit can sometimes be examined.
District courts have also laid out pathways for the Supreme Court to distinguish its past speech-hesitant decisions in future disputes. Some district courts have relied on factual differences.246 For example, courts have distinguished Regents on the ground that presidential speech was not considered there because the connection with the governmental action was too attenuated.247 Therefore, speech can be examined if it is more closely tied to the challenged action. District courts have also seized on language from Regents and Department of Commerce as license to analyze presidential statements in cases alleging bad faith and pretext.248 But the potential reach of these cases is unclear: On the one hand, they say speech should be examined if it reveals that the government’s offered explanation for an action is pretextual, but their application to presidential speech might be limited since the Supreme Court has indicated that such speech is distinct from other executive speech.249
Conclusion
As this Note has identified, discrimination doctrine and presidential speech are on track to collide. If the Supreme Court continues on its current path, given the limited evidentiary methods available to plaintiffs claiming discriminatory purpose, Presidents will be given a free pass to discriminate, and victims of executive discrimination will be left without recourse. But with the district court method, equal protection claims against the Executive remain feasible.
As Justice Scalia warned, discrimination by the Executive will continue to rear its head.250 Speaking on Korematsu, Justice Scalia said: “[Y]ou are kidding yourself if you think the same thing will not happen again.”251 Equal protection means little if the President is free to openly admit to discriminatory policy. Moving forward, therefore, the doctrine will hopefully more closely track the trends in district courts, rather than the tone set in recent Supreme Court cases. Presidential speech should not be removed from animus review.