Will Donald Trump's anti-Muslim words on travel ban hurt his case?

Richard Wolf | USA TODAY

Show Caption Hide Caption Timeline: Trump's response to travel ban scrutiny Here's a look at some of the comments made by Trump and his advisers that have been cited by judges that have blocked his travel ban.

WASHINGTON — It's been 18 months since Donald Trump, presidential candidate, called 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."

It's been nearly six months since Trump, as president-elect, was asked if terror attacks in Europe had affected his proposed Muslim ban. "You know my plans," he said. "All along, I've been proven to be right."

And it's been less than a week since President Trump trumpeted the travel ban he first proposed in January, which would have shut down virtually all travel from seven majority-Muslim countries while giving Christians preferential treatment. "The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C.," he tweeted.

Now "S.C." — the Supreme Court — may have the last word on whether those words of Trump's matter. The justices could decide as soon as this week whether to overrule lower courts and let the travel ban go into effect temporarily, as well as whether to rule on its overall constitutionality. Oral arguments could be held within weeks, or later in the year. Ultimately, the ban could be implemented — or permanently blocked.

Trump's statements lie at the heart of the legal battle federal courts from Virginia to Hawaii have wrestled with since February in deciding whether the president's temporary travel ban is constitutional. While the fight has raised questions about national security, presidential power and due process rights, what's garnered the most attention has been whether Trump's rants and tweets trump his actions.

"It's a genuinely difficult question," says Kate Shaw, an associate law professor at Benjamin N. Cardozo School of Law, who says Trump's words reveal his intentions. "This is not a question that the Supreme Court has resolved."

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Trump was one of 14 Republican candidates still seeking his party's presidential nomination on Dec. 7, 2015, when he made his first statement about Muslim immigration. Now he's the president who twice has sought a temporary ban on immigrants from predominantly Muslim nations with ties to terrorism, as well as all refugees.

Did the campaign rhetoric presage the presidential policy? Most of the judges who have issued rulings on Trump's travel ban — a name the president embraced in all CAPS as recently as this week — have said his statements as a candidate, president-elect and president are relevant.

"These statements, taken together, provide direct, specific evidence of what motivated both (executive orders): President Trump’s desire to exclude Muslims from the United States," Chief Judge Roger Gregory wrote for the U.S. Court of Appeals for the 4th Circuit in a 10-3 ruling last month.

A 'brand new' day?

But several judges have argued that campaign promises should be off-limits, or at least dwarfed by government actions that are not overtly discriminatory.

"Opening the door to the use of campaign statements to inform the text of later executive orders has no rational limit," Judge Paul Niemeyer wrote in dissent to the 4th Circuit decision. He mused that such past history could extend to "statements from a previous campaign, or from a previous business conference, or from college."

Judges in California, Hawaii, Maryland, Massachusetts, Virginia and Washington have weighed in on the question this winter and spring, raising a number of issues that are likely to come before the Supreme Court as soon as later this month.

The majority of them have said courts can and should examine the purpose behind government actions; that Trump's words reveal his purpose to be, at least in part, banning Muslims; that his initial focus on Iran, Libya, Somalia, Sudan, Syria and Yemen is but a means to that end; and that Trump the president cannot claim to be different than Trump the candidate.

“Just as the Supreme Court has held that 'the world is not made brand new every morning,’ a person is not made brand new simply by taking the oath of office,” said Judge Leonie Brinkema of the U.S. District Court for the Eastern District of Virginia.

Her reference was to a Supreme Court ruling in 2005, in which Justice David Souter wrote that two Kentucky counties could not hide the unconstitutional religious purpose of their Ten Commandments courthouse displays by later adding additional documents.

"Reasonable observers have reasonable memories," Souter wrote. "Our precedents sensibly forbid an observer 'to turn a blind eye to the context in which the policy arose.'”

But Mathew Staver, who represented the two counties before the Supreme Court, says the original display and later versions all represented government actions. "Here, you have comments by the president before he was president," Staver says. "That is fundamentally different."

Looking past the policy

In Trump's case, some travel ban opponents say, one doesn't need a long memory because he never stopped talking in stark terms about the travel ban.

“There is a continuous run of statements from the campaign, through the election, through the inauguration and right up to this week," says Micah Schwartzman, a University of Virginia School of Law professor specializing in religion. "The president has never expressly disavowed those earlier statements."

Judges and legal analysts who defend the travel ban argue that Trump's words and those of his aides cannot form the basis for a constitutional violation. It takes too much interpretation, they say, to read anti-Muslim bias into an executive order devoid of religious content.

“The policy he spoke about … is not in any way the policy that was passed,” says Northwestern University law professor Eugene Kontorovich, who specializes in international law. “It’s not clear this is about Muslims. This is about countries that everyone agrees are among the world’s most messed up.”

Even so, the Supreme Court has said judges can look beyond the challenged policy in cases involving religious liberty or civil rights to determine if there was another purpose, or if the stated purpose was a sham. Justice Anthony Kennedy, who could be the swing vote in the travel ban case, made that point in a 2015 ruling involving the government's denial of a visa to a U.S. citizen's husband.

Even though the court upheld the visa denial, Mark Haddad, who represented the woman in court, said Kennedy's cautionary view shows that courts should not take government policies at face value.

“There has to be a way to show that the government’s acting in bad faith," Haddad says. "Otherwise, the check on the government’s power is non-existent.”