Thursday, May 11, 2017

ACLU lawyer: Trump’s Travel Ban Might Be Constitutional If Ordered By Hillary Clinton

Via NTK and Powerline, a memorably awkward moment from yesterday’s Fourth Circuit hearing on the travel-ban order. Alan Dershowitz warned of this bizarre scenario, in which the same executive order might be constitutional or unconstitutional depending purely on which president signed it, when Trump’s revised travel ban was blocked by two federal judges in March. The order was discriminatory, the courts reasoned, not so much because of what it said but because of what Trump said when he was a candidate. He had talked about discriminating against people based on faith (e.g., a temporary worldwide ban on Muslims from entering the U.S.), therefore it was safe to presume that his travel ban had a discriminatory motive even though it applied only to a small number of Muslim countries. By that logic, Barack Obama or Hillary Clinton could have signed the same order, word for word, and it probably would have been upheld as constitutional, accorded the usual benefit of the doubt the president receives from courts on national security matters.
By looking past the text of the order to statements outside the record, courts are setting themselves up for eye-crossing exercises in divining purpose. How should a judge weigh Trump’s since-abandoned proposal of a Muslim ban (which has now been scrubbed from his campaign website) against him telling a crowd, “I love the Muslims. I think they’re great people,” and claiming he’d have no problem appointing a Muslim to a cabinet position? Is there a time limit on how far back into the past you can reach to try to decipher his motives? For instance, is something he said the day before he announced his candidacy out of bounds whereas something he said the day after fair game for judges to consider? Should statements made by other people, like Rudy Giuliani or Stephen Miller, be taken into account in deducing the executive branch’s motives? Most importantly, if Trump is guilty of a discriminatory motive, how does he “cure” that for constitutional purposes so that his travel ban can pass court scrutiny? Does he need to give a “Muslims are awesome” speech? Formally apologize for the Muslim-ban idea from the campaign? The Fourth Circuit didn’t know what to make of all this yesterday: --->
Read the rest from ALLAPUNDIT HERE and follow links to related stories below:

ACLU Makes It Official: The Only Thing Wrong With Trump’s Travel Order Is Trump

ACLU Lawyer Argues Travel Ban ‘Could Be Constitutional’ — If Enacted By Hillary!

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