Alan Dershowitz said on Fox News this morning that because court rulings against President Trump‘s travel ban are bringing up his own past rhetoric, the argument is basically, “If Obama had issued the very same order with the same words it would be constitutional, but if Trump issues it it’s unconstitutional.”

This week a federal judge in Hawaii and a district court judge in Maryland both ruled to block the revised travel ban, with the latter saying in his decision, “The history of public statements continues to provide a convincing case that the purpose of the Second Executive Order remains the realization of the long-envisioned Muslim ban.”

Such statements include President Trump’s initial call during the campaign for a “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what the hell is going on” and Rudy Giuliani saying on Fox a few weeks ago that after Trump announced that call, he asked him for the right way to do that legally.

Dershowitz said this morning that rulings based on campaign rhetoric is “not the way the law is supposed to operate.”

He predicted that the Supreme Court would end up upholding the “major provisions of this ban.”

In a column for The Hill this week, Dershowitz expanded on this idea of Trump vs Obama on the same measure:

The lower courts gave considerable, indeed dispositive, weight to these anti-Muslim statements in deciding that the travel ban was, in reality, a Muslim ban that would violate the constitutional prohibition against discrimination on the basis of religion. Under that reasoning, had the identical executive order been issued by President Obama, it would have been constitutional. But because it was issued by President Trump, it is unconstitutional. Indeed any executive order issued by President Trump dealing with travel from Muslim countries would be constitutionally suspect because of what candidate Trump said. In my view, that is a bridge too far. It turns constitutional analysis into psychoanalysis, requiring that the motives of the president be probed.

You can watch above, via Fox News.

[image via screengrab]

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Follow Josh Feldman on Twitter: @feldmaniac

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