Trump's Campaign Rhetoric Hinders Legal Argument For Travel Ban

NPR's Audie Cornish talks to Josh Blackman, a professor at South Texas College of Law Houston, about how President Trump's speech against Muslims during the campaign has hurt him in his legal arguments for the travel ban.

AUDIE CORNISH, HOST:

Two federal judges, one in Hawaii and one in Maryland, have put a hold on President Trump's revised travel ban. Though the White House and DOJ argue that the new executive order does not target one religion in particular, the judges disagree in part, they say because of Trump's own words during his presidential campaign.

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PRESIDENT DONALD TRUMP: Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.

And we can't allow people coming into this country who have this hatred of the United States...

ANDERSON COOPER: I guess the question is...

TRUMP: ...And of people that are not Muslim.

The Muslim ban is something that in some form has morphed into a extreme vetting from certain areas of the world.

CORNISH: But not every legal mind agrees that the president's statements as a candidate should inform a decision about his executive order. Josh Blackman is a professor at the South Texas College of Law - Houston. I started by asking him to explain the court's reasoning, then his.

JOSH BLACKMAN: Even though the policy on its face made no reference to religion, the court will look back to statements made by candidate Trump on the campaign trail to determine that he in fact has a sort of anti-Muslim bias in his heart of hearts and that even though the policy was modified several times and he moved far away from what he had initially proposed, which was a Muslim ban, it's still tainted by those initial statements on the campaign trail.

CORNISH: What is the kind of case law, or what do we know about how the Supreme Court feels about trying to figure out intent or trying to figure out what lawmakers hope to achieve with a law regardless of what's actually written?

BLACKMAN: Three decades ago, Justice Souter wrote that courts should resist performing a judicial psychoanalysis of a drafter's heart of hearts. Courts can look to various objective facts about why this policy may be infected by bias. They can look at statements made the time it was enacted. They can look at some of the aspects of the law itself.

But what they can't do is determine whether the person himself - the president, in this case, of all people - has this animus in his heart, which would - really can never be eliminated. It doesn't allow that sort of forever taint to occur. And I think that's where the court on Hawaii really ran afar.

CORNISH: Now, is it possible for a policy found unconstitutional, to have legal challenges to be fixed or rewritten in a way to neutralize these problems? I mean this is the second time around for this order.

BLACKMAN: Indeed, the second executive order expressly repudiated the old policies that we will not follow this anymore. The governor's making a good-faith effort to comply with the 9th Circuit's ruling. And the Judge in Hawaii thumbed his nose at it. It's as if this order was never modified even though there were significant changes made. Why - again because he thinks Donald Trump is a bigot, and nothing can ever be done to remove that.

CORNISH: And this is your read of what the judge says. I should note that the judge...

BLACKMAN: Yeah.

CORNISH: ...Doesn't write anything like that in the order.

BLACKMAN: Oh, I know he doesn't, but that's the problem. At bottom, what we have here is the court said because of what Trump said on the campaign trail - he wanted to ban Muslims - you can't move away from that. Imagine if President Trump resigned tomorrow and we had president Pence and he implemented the same policy, right? Maybe the court would uphold it. But so long as Trump is in office, I think that taint remains forever.

CORNISH: What should be the takeaways for this White House? Of all of the executive orders, this one faced the most in terms of legal challenge. What are we learning about the relationship between Trump and the courts?

BLACKMAN: Trump has been egregious towards the courts. He has been very critical of them. And he's made comments about their race, ethnicity that are beyond the pale. But I'm troubled of the courts replying in kind. Even if Trump is disrupting all political norms, I am not comfortable that the courts are disrupting judicial norms.

Last night, even the dissenting judges on the 9th Circuit who agreed with Trump made the statement how the president's comments were out of bounds. That's a fine point for me to make or one of your other guests to make, but I think judges should simply take it. They have lifetime tenure for a reason. They're not supposed to respond to political impulses. And I think they're taking Trumps bait, which is very unfortunate. Courts should do better.

CORNISH: Josh Blackman - he spoke to us via Skype from the South Texas College of Law in Houston - thank you for taking the time to talk with us.

BLACKMAN: Thank you.

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