It seems to me that most f the discussion about the role of intent in analyzing the legality of government actions has been pretty fuzzy. So let me offer some thoughts. Of course, this issue has come up most dramatically in the context of the appropriately nicknamed “Muslim Ban,” but obviously it is highly relevant to many actions in a time such as this in which every branch of government (except maybe the Supreme Court) is dominated by one party, in this case one with a long history of “dog whistling.”
One way of structuring the inquiry is to focus on where and when the greatest dangers occur from refusing to look beyond the face of an enactment to find illegal intent.
Probably the greatest danger of completely hidden intent occurs when the action is taken by one person or entity. Had the “Muslim Ban” been enacted through a legislative or even a regulatory process, then the evidence of intent would have come out in the back and forth. While that evidence might have been rejected in a challenge, because the court would have relied on the supposed facial neutrality of the enactment, none the less the evidence would have been there for all to see. So Executive Orders are an area of particular risk.
Different kinds of evidence of intent are not only of different probative value, but their being ignored can cause different kinds of harm. Thus, ignoring statistical evidence of harm means that harmful enactments go into force, but do not necessarily represent a public endorsement of the illegal result. On the other hand, ignoring the clear evidence of the statements of Trump and his “gang” of their goals, sends a strong public message that those goals are in fact allowed and not forbidden. That is a terrible message.
Moreover, while the general discussion of this topic has suggested that campaign statements are less worthy of consideration in looking at intent, it may be that the harm in ignoring them is even greater than the harm in ignoring post election statements. The reason is that ignoring such campaign statements of a winner tells the protected minority and politicians that it is acceptable to use discriminatory appeals to win elections is OK — and that those promises can be kept. Is there anything worse in the entwining of race with elections and government?
So my general conclusion would be that clear evidence of illegal intent should always be relevant, but that the weight of the evidence should depend on a) the nexus between the person making the statement and their role in the enactment, and b)the extent to which the statement of intent increases the harm of legitimizing the illegality of the action.