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Legal Learning: Is the 'travel ban' unconstitutional?

The "travel ban" case raises an interesting legal question — can statements made by Candidate Donald Trump be considered by judges when deciding if an order by President Donald Trump is constitutional?

During the presidential campaign last year, Candidate Trump called for a "total and complete shutdown of Muslims entering the United States." Shortly after becoming president, he told the Christian Broadcasting Network that the United States would prioritize Christian refugees over Muslims.

When he issued his travel ban it applied only to Muslim countries, but allowed exceptions for members of minority religious groups (i.e. non-Muslims). The day after the executive order was signed, his surrogate Rudy Giuliani went on Fox News to tell viewers how the ban came about: "So when [Trump] first announced it, he said 'Muslim ban.' He called me up. He said, 'put a commission together. Show me the right way to do it legally.'" His commission said to focus on danger rather than religion — even though the countries listed in the ban have not been a source of terrorist attacks in the United States.

President Trump issued his original order on Jan. 27, a week into his presidency. It banned entry into the U.S. for travelers from Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen for 90 days, and banned refugees from Syria. Foreign travelers found themselves stranded at chaotic airports; foreigners with visas (teachers, students, business people) who were traveling abroad were not allowed back into the U.S.

The ACLU sued the government, asserting that the travel ban was a violation of the First Amendment to the Constitution as an "establishment of religion." The Acting Attorney General of the United States, Sally Yates, announced that she could not defend the government because of the Department of Justice's "solemn obligation to always seek justice and stand for what is right." She referred to "statements made by (the) administration... that may bear on the order's purpose." Sally Yates was immediately fired by President Trump.

Less than two weeks later the Court of Appeals for the Ninth Circuit affirmed a lower court order halting Trump's travel ban, saying it was unconstitutional. Rather than appeal to the Supreme Court, President Trump issued a revised order on March 6. The second order allowed case-by-case exceptions for incoming travelers and lifted the ban against Iraqi visitors. It also deleted explicit references to religion. Both orders suspended the nation's refugee program for 120 days and reduced the annual number of refugees from 110,000 to 50,000.

In May, the Court of Appeals for the Fourth Circuit struck down the revised order. In a 205 page opinion the court ruled 10-3 that the order "speaks with vague words of national security, but in context drips with religious intolerance, animus and discrimination." The lower court said they could not ignore the remarks from Mr. Trump and his allies: "Simply because a decision maker made the statements during a campaign does not wipe them" away. The three dissenting judges argued that it is a grave error to consider Mr. Trump's political comments to interpret his executive orders, calling campaign statements ambiguous by nature and "often shorthand for larger ideas."

Now the U.S. Supreme Court has weighed in. Last month in an apparently unanimous decision the Court delivered a compromise neither side had asked for: it said the government may not bar those with a "bona fide" connection to the United States, such as having family members here, or a job in an American university. But the justices indicated that lower courts had gone too far in completely freezing Trump's order. The court gave no hint about the "Muslim ban" issue, saying it will hear the merits of the case in the fall.

The interesting legal question is this — if another president, who had never made anti-Muslim statements during the campaign, were to issue an identical order, would it be constitutional? I suggest that the answer is "Yes." But because the intent of a law or an executive order does matter when deciding its constitutionality, I predict that the Supreme Court will hold that Trump's order was intended as a Muslim ban and therefore violates the First Amendment to the Constitution.

James H. Manahan is a Harvard Law School graduate and was named one of Minnesota's Top Ten Attorneys. He now handles family law, wills, and probate in and around Lake County, and does mediation everywhere. He writes a regular column on legal issues for the News-Chronicle. The opinions expressed in this column are those of its author and are not to be attributed to his employer.