In Travel Ban Battle, Don't Look at Campaign Statements, DOJ Says

By Casey C. Sullivan, Esq. on March 27, 2017 | Last updated on March 21, 2019

In determining the constitutionality of President Trump's travel ban executive order, courts shouldn't look back to Trump's statements as a candidate, the Department of Justice says. District courts in Maryland and Hawaii blocked Trump's newest travel ban two weeks ago, finding it to be likely unconstitutional. Both judges relied significantly on the president's public statements when doing so.

In a brief filed with the Fourth Circuit last Friday, the DOJ argues that the travel ban does not discriminate on the basis of religion, despite Trump's calls for a "Muslim ban" during his presidential campaign. Considering such statements would be impermissible "second-guessing" of the president's stated purpose, the brief argues.

Establishment Clause Takes Center Stage

President Trump's new executive order halts travel from six majority-Muslim nations in order to "prevent infiltration by foreign terrorists" and review entry procedures. The order is a revised version of administration's previous travel ban, which was enjoined on due process grounds. Here, the president seems to be losing on the Establishment Clause front, instead.

Judges in both Hawaii and Maryland found that the new travel ban was motivated by impermissible religious bias. In Hawaii, Judge Derrick K. Watson wrote that "any reasonable, objective observer" would recognize the law's bias, "in spite of its stated, religiously-neutral purpose." He cited the president's campaign statements as "significant and unrebutted evidence of religious animus."

Maryland's Judge Theodore D. Chuang came to a similar conclusion. There's significant evidence from the president's statements "directly establishing that Trump intended to effectuate a partial Muslim ban by banning entry by citizens of specific predominantly Muslim countries," rather than all Muslims, Judge Chuang wrote.

Should Trump's Statements Count?

In its brief, the DOJ presents two main arguments against Judge Chuang's Establishment Clause ruling. First, the court applied the wrong test, according to the DOJ. Both Judges Chuang and Watson had evaluated the ban under the Lemon test, finding that it failed at the first step of analysis -- determining whether the government action has a secular purpose.

But the proper test for immigration decisions is established in Kleindienst v. Mandel, the government argues. Under that standard, the government must advance only a "facially legitimate and bona fide reason" behind its policy. This argument was also advanced by the Ninth Circuit's Judge Jay Bybee just days before.

When it comes to determining whether the EO was motivated by impermissible animus, the DOJ continues, the court should not look beyond the order's ostensible religious neutrality. To look at the president's past statements, "nearly all before assuming office, while still a private citizen and a political candidate," verges on "judicial psychoanalysis."

Virtually all of the President's statements on which the district court relied were made before he assumed office -- before he took the prescribed oath to "preserve, protect and defend the Constitution." Taking that oath marks a profound transition from private life to the Nation's highest public office, and manifests the singular responsibility and independent authority to protect the welfare of the Nation...

We'll soon see if this argument is effective. A response from the ban's challengers is expected on April 14th, with oral arguments scheduled for May 8th.

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