Seventeen months and a presidential inauguration have intervened since Donald Trump announced in December 2015 that he was calling for “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.”

But the president’s words echoed throughout the land Monday as 13 federal appeals court judges in Richmond weighed a challenge to the revised version of Trump’s executive order limiting travel to the United States from several majority-Muslim countries.

The questions from the judges, for both Acting Solicitor General Jeffrey B. Wall and Omar Jadwat, a lawyer for the plaintiffs challenging the order, focused on a real conundrum: In assessing the constitutionality of an order affecting immigration, should judges look beyond the text of the document to consider what the president said on the campaign trail?

U.S. District Judge Theodore D. Chuang suggested the answer was yes. In March he blocked the order and wrote that 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.” (Chuang cited not only the “shutdown” campaign statement but also an interview after his inauguration in which Trump said he “would give preference in refugee applications to Christians.”)


I’m on record as having a problem with this approach — two problems, actually. One is general: I don’t think campaign rhetoric is a workable guide for courts in interpreting public officials’ actions. But there is separate problem with the argument that the “original intent” of Trump’s temporary ban on travel from seven (later reduced to six) Muslim-majority nations was to give force to religious prejudice.

As I wrote in February, Trump’s proposal for a temporary “shutdown” of Muslims entering the U.S. was far more likely to have resulted from sloppy thinking: The terrorists he was worried were Muslims, so he decided to “err on the safe side” and ban all Muslims. It was an ignorant as well an offensive impulse. After that was pointed out to him, he adopted a more targeted strategy, one that was defined geographically not by religion. (That doesn’t make it wise or effective, of course.)

The judges at Monday’s arguments at the U.S. 4th Circuit Court of Appeals posed some other challenges to the plaintiffs’ theory. What if Trump apologized for his statements about his offensive statements? Would that remove the taint from the executive order? Would the executive order be constitutional if it had been issued by a different president? If the executive order is supported by the attorney general and the secretary of the Department of Homeland Security, does that neutralize the problem caused by Trump’s past statements?

The court also had some tough questions for Wall, the government’s lawyer, and it’s possible that it will rule for the plaintiffs and legitimize the dubious principle that courts should start parsing campaign speeches (which almost by definition are poor guides to policy) when they evaluate the constitutionality of presidential actions. If so, it will be another fine mess Donald Trump has gotten the country into.


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