Travel ban rewrite: Should judges parse Trump motives as well as the text?

President Trump is expected to release a new executive order affecting people trying to enter the US from seven Muslim-majority nations. Some legal scholars say it's appropriate for judges to also consider statements Trump made before becoming president.

As the Trump administration readies a revised version of its executive order restricting immigration to the United States from seven Muslim-majority countries, some of the reported changes in wording could address problems that caused the original order to be blocked by multiple federal courts.

Still, the revised order, which could be released as early as Tuesday, is likely to be challenged in court.

Although the full text of the order has not been released, the success of such lawsuits could still hinge on the question of whether statements from Trump and his surrogates during his presidential campaign could be used against him as evidence of an unconstitutional motive, even if the statements came before his election.

According to news reports, the administration is working carefully to address some of the more glaring legal holes in its original order.

Specifically, the revised order would exempt US green card holders from the ban, and likely not halt the admission of Syrian refugees indefinitely, The Wall Street Journal and Associated Press reported. The original order suspended for 90 days all travel to the US for citizens of Iran, Iraq, Syria, Yemen, Somalia, Sudan, and Libya, including green card holders from those countries, banned admitting all refugees for 120 days, and indefinitely banned admitting refugees from Syria.

The administration will also provide more evidence for why citizens of those countries are targeted by the order, The Guardian reported. In court filings the administration has said the seven countries were chosen based on a decision last year from the Obama administration to require entrants from those countries to apply for visas, but lawsuits have alleged that the order is a sloppy attempt to implement the “Muslim ban” President Trump called for during his campaign and unconstitutionally targets Muslims.

The order itself is facially neutral – it doesn’t include the word “Muslim,” and it would be surprising if the revised order was any different – but legal challenges have pointed to statements Trump and his surrogates made during the campaign as evidence of its discriminatory intent. A case often cited in briefs has been Rudy Giuliani’s comments that Trump had asked him to “show [him] the right way to do it legally.” Briefs also cites Trump’s comments to the Christian Broadcasting Network, shortly after signing the order, suggesting that Christian refugees would be prioritized.

But the admissibility of those comments is a legally murky area, experts say, particularly those made before Trump became president. Past statements made by an administration are normally fair game as evidence of discriminatory intent of a facially neutral executive order.

“What’s different about this case, and what the Trump administration has been saying, is you can’t take statements made during the course of a campaign to show discriminatory intent,” Steven Schwinn, a professor at the John Marshall Law School in Chicago, told the Monitor earlier this month.

“That raises an interesting question,” he added, “whether statements made during the course of a political campaign can be grounds of discriminatory intent for government action.”

Adding to the uncertainty is that this specific issue was not directly addressed in the biggest court battle over the order so far. When a three-judge panel of the US Court of Appeals for the 9th Circuit upheld a lower-court ruling temporarily blocking the order’s implementation, the panel did not rule on whether the order discriminated against Muslims.

The judges did suggest during oral arguments in the case that the statements could be used as evidence.

“I understand the argument they shouldn’t be given much weight,” said Judge Richard Clifton during arguments. “If they were made, but not made to be serious policy principle, I can understand that, but if they were made it is potential evidence, it is a basis for an argument.”

At least one judge has favored the administration on this question. In a ruling later rendered moot by another federal judge's ruling in Washington State, a federal judge in Boston allowed the government to implement the order partly on the grounds that the order itself is facially neutral.

“Am I to take the words of an executive at any point before or after election as part of that executive order?” Judge Nathaniel M. Gorton asked during arguments in the Boston case.

Washington State Attorney General Bob Ferguson has said he intends to push aggressively to obtain written documents and evidence from the administration, and if those documents yield evidence of discriminatory intent after Trump took office it would likely carry more legal weight than campaign statements.

But if those campaign statements continue to be a critical piece of evidence for people challenging the order, the courts will have the opportunity to weigh in on how seriously, as a legal matter, campaign promises should be taken.

Michael McConnell, a Stanford University Law School professor and former federal appeals court judge, told Reuters that because Trump only swore an oath to uphold the Constitution after he became president, campaign statements shouldn’t be considered. But other constitutional law experts aren’t so sure.

“I get there are reasons why we might worry about relying upon campaign statements as a way of determining, or a way of evaluating, a particular government action,” Jonathan Adler, a professor at Case Western Reserve University School of Law in Cleveland, told the Monitor earlier this month. “I’m not sure that justifies a categorical rule against ever considering such statements.”

Indeed, given the short-termism of politics, it could be argued that public officials “are always necessarily campaigning,” said Professor Schwinn.

“I see no reason why a government official’s statements during a political campaign should be treated any differently from a government officials’ statements when making policy,” he added. “What to do the courts do with that kind of thing? I’m not sure what they’re going to do with it.”