Acting Solicitor General Admits 'Muslim Ban' Would Be Unconstitutional, Says This Isn't A Muslim Ban

We're going to get a judicial ruling on whether to take Trump seriously.

(photo by Stephanie Keith/Getty Images).

(Photo by Stephanie Keith/Getty Images)

In a way, the Fourth Circuit finally got to the heart of the Muslim-ban issue, during marathon, en banc oral arguments yesterday. Acting Solicitor General Jeffrey B. Wall admitted in open court that a “Muslim ban” would be unconstitutional. He said that it could violate the Constitution to single out a religion for “adverse treatment.”

This is an important concession from the Trump administration, and I don’t want people to miss it. In December 2015, then-candidate Donald Trump released a statement saying, “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.” Wall just admitted that such a “shutdown” could be unconstitutional.

Wall argued in front of the Fourth Circuit that Donald Trump’s travel ban is not the “Muslim ban” Trump called for while running for president. The White House, literally, wants to pretend the statement never happened. The original Muslim-ban press release was still available on Trump’s campaign website… until Monday. Only yesterday did the White House delete that page, and only after White House press gaslighter Sean Spicer was grilled about the page at his briefing on Monday.

What the Fourth Circuit — and eventually the Supreme Court, most likely — has to decide is whether the Trump team can simply delete the statement and pretend like it never happened. Is the Court allowed to look at what the president actually said about his policy? Should it consider the disparate impact the so-called “travel ban” has on Muslims?

Or should it make like Sean Spicer and pretend the statement of intent never happened?

Judge Barbara Milano Keenan pressed Wall on the logical conclusion of his argument. She said that, under Wall’s theory, “a candidate for president could call for a Muslim ban every day for a year, enact a cleverly worded plan that accomplished that on his first day in office, and have courts ignore whether targeting Muslims was his real purpose.”

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The presidential-statements issue cuts both ways, though. Judge Paul V. Niemeyer, while generally being a fan of Korematsu-like deference to the executive on national security issues, also wondered how much we should look to prior statements for signs of intent. He asked ACLU attorney Omar Jadwat: “Can we look at his college speeches? How about his speeches to businessmen 20 years ago?”

I mean, if Hillary Clinton had won but wrote a high-school yearbook quote slyly referencing the creative power of hallucinogenics, she’d be brought up on drug kingpin charges. But sure, white men in power at least can expect that there is some statute of limitations on how far back their past thoughts illuminate their current intentions.

Still, it’s an interesting judicial question. It’s easy enough to rule that the “Travel Ban 2.0” is an unconstitutional religious test on its face. Looking at the president’s intent only highlights the problems with the order.

But the Fourth Circuit seems poised to tell us, one way or another, whether what the president says matters when assessing the legality of his policies.

We live in strange times indeed when the most powerful man in the world is arguing that what he promises to do means nothing. Stranger still when the president’s most ardent supporters beg us to ignore what the man actually says. We’ll see if the courts agree with them.

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President Trump’s lawyers on revised travel ban repeatedly asked about campaign promises [Washington Post]
DOJ lawyer tells 4th Circuit that Trump’s travel order ‘is not a Muslim ban’ [ABA Journal]


Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.