Early in the presidential campaign, Trump called for a "complete shutdown" of Muslims entering the US
Two different federal judges have now blocked the ban's implementation
"The second executive order remains the realization of the long-envisioned Muslim ban," one wrote
When then-presidential candidate Donald Trump called for a “total and complete shutdown of Muslims” entering the US back in 2015, he probably didn’t imagine those words would come back to haunt him federal court in 2017.
Two different federal judges have now blocked implementation of Trump’s new travel ban with lengthy written opinions in which his own past rhetoric and recent statements from his advisers have taken center stage.
Trump announced his plan via a press release calling for a “total and complete shutdown of Muslims” entering the US in late 2015. He then made plain his opposition to Islam in an interview with CNN’s Anderson Cooper last year, asserting: “I think Islam hates us.”
When asked by NBC later last year if he was rolling back his Muslim ban plan, Trump responded: “I don’t think it’s a rollback. In fact, you could say it’s an expansion. I’m looking at now at territories. … I’m talking about territory instead of Muslim.”
Then, after the first executive order was rolled out in January, former New York Mayor Rudy Giuliani told Fox that “when (Trump) first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’”
After the original travel ban was halted by the courts, White House senior adviser Stephen Miller downplayed the differences between the first and second executive orders, saying the revised version would be “responsive” to court challenges, but described the forthcoming changes as “mostly minor technical differences.” In a Fox News interview, Miller stated that the “basic policies are still going to be in effect.”
Each of these statements have been referenced in page after page of federal court decisions evaluating the legality of the revised executive order.
“There is nothing ‘veiled’ about this press release: ‘Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States,’” US District Court Judge Derrick Watson in Hawaii wrote.
“These plainly-worded statements, made in the months leading up to and contemporaneous with the signing of the Executive Order, and in many cases, made by the Executive himself, betray the Executive Order’s stated secular purpose,” Watson wrote.
Another federal judge in Maryland wrote, “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.”
Why do past statements matter?
The administration spent more than a month rewriting the executive order – exempting large categories of foreign travelers and taking care to make no expressed mention of religion – all in the hopes of avoiding legal scrutiny a second time.
But statements from Trump and his team, especially when combined with his continued inclusion of a 90-day ban on foreign nationals from six Muslim-majority countries, have proved – at least for now – insurmountable in court.
The Justice Department protests that none of Trump’s statements before he was president should count against him. In other words, courts should not peek behind “the veiled psyche of government officers.”
But the challengers of the new executive order have argued judges are permitted to “look behind” a “facially neutral” executive order to find an alleged discriminatory purpose – and so far, judges resoundingly agreed.
US District Court Judge Theodore Chuang said the consideration of such evidence by a federal court a matter of “common sense,” as such “explicit statements of a religious purpose are ‘readily discoverable facts’ that allow the court to identify the purpose of this government action without resort to ‘judicial psychoanalysis.”
Drawing on Supreme Court precedent, Chuang added: “Simply because a decision maker made the statements during a campaign does not wipe them from ‘reasonable memory’ of a ‘reasonable observer.’”
Some legal experts removed from the lawsuits have expressed skepticism at this outcome – whereas others say these federal judges’ opinions are on all fours.
“A leopard cannot change his spots by taking a bath,” Cornell Law Professor Stephen Yale-Loehr said. “President Trump’s lawyers cleaned up the first executive order by taking out certain inflammatory language in the revised version, but courts have consistently ruled that they can look beyond an order’s facial neutrality to determine its true intent.”
The administration plans to appeal the rulings.