ACLU: Trump’s travel ban unconstitutional because Trump created it

ACLU: Trump’s travel ban unconstitutional because Trump created it

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ACLU travel ban

ACLU travel banOn Monday, an ACLU attorney told a federal appeals court that President Trump’s temporary travel ban from countries that are hotbeds of terrorism is unconstitutional because Trump created the order, the Washington Examiner reported.  Had someone else won the 2016 election, attorney Omar C. Jadwat said, the order would likely be constitutional.

According to the Examiner:

Judge Paul Niemeyer, an appointee of President Ronald Reagan, raised a hypothetical scenario regarding whether a different outcome in the 2016 election would have changed the constitutionality of the same executive order. In response, the ACLU attorney said the courts could have decided the same action taken by a different president was constitutional.

“We have an order on its face,” Niemeyer said, pressing Jadwat about the hypothetical scenario. “We can read this order and we have no antecedent statements by a candidate about this order. We have a candidate who won the presidency, some candidate, president, other than President Trump won the presidency and then chose to issue this particular order with whatever counsel he took. … He issued this executive order. Do I understand that just in that circumstance the executive order should be honored?”

Judge Paul Niemeyer, an appointee of President Ronald Reagan, raised a hypothetical scenario regarding whether a different outcome in the 2016 election would have changed the constitutionality of the same executive order. In response, the ACLU attorney said the courts could have decided the same action taken by a different president was constitutional.

“Yes, your honor, I think in that case it could be constitutional,” Jadwat said.

Jadwat avoided questions about whether the text of the order itself was unconstitutional, the Examiner further said.

The report adds:

Jadwat said there may be nothing Trump could say now to make his campaign statements about banning Muslims from the U.S. not matter in cases concerning the travel ban.

Pressed by Judge Dennis Shedd, an appointee of President George H. W. Bush, about whether any repudiation of the campaign and post-election comments about a Muslim ban would satisfy Jadwat, the ACLU indicated there’s not much Trump could say now.

According to Jadwat, the court should consider Trump’s comments during the campaign, but Acting U.S. Solicitor General Jeffrey B. Wall disagreed, arguing that the court should not consider Trump’s campaign statements and should consider the actual text of the order.

“[Trump] made clear he was not talking about Muslims all over the world and that’s why this is not a Muslim ban,” Wall said. “Its text doesn’t have anything to do with religion. Its operation doesn’t have anything to do with religion. The only thing they’ve got are to reach back and say what we know despite its text and operation [is] what was in the president’s head. And I think there’s different ways to read those statements and respect for a coordinate branch and a presumption of regularity I think require reading them in a way that is not most hostile to the president, but would render this action lawful.”

What a novel concept…

More arguments are expected to come, the Examiner said, with the 9th Circuit Court of Appeals set to hear arguments next Monday.

But the ACLU’s admission in this case speaks volumes — this has absolutely nothing to do with the law — it has everything to do with politics.

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