Candidate Donald Trump's calls for a ban on Muslim immigration are at the heart of a challenge to his revised executive order restricting travel, to be considered Monday by a federal appeals court.
To those who successfully sued to stop enforcement, his statements are clear proof that the order was based on religious discrimination. But to the Trump administration, they are irrelevant, because all that counts is what the president said and did after he took the oath of office.
The government is urging the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, to lift a stay imposed by a federal judge in Maryland on March 16 blocking the administration from carrying out the executive order. The full 15-member court will consider the appeal, bypassing the normal first step of a hearing before a three-judge panel.
Justice Department lawyers say the court should evaluate the words of the executive order and the administration's explanation for its purpose, avoiding "judicial psychoanalysis" of what Trump may have meant during the campaign.
"Statements of what candidates might attempt to achieve if elected, which are often simplified and imprecise, are not official acts," the government says. Courts must judge the constitutionality of the executive order by what it says, "not by what supposedly lies at the heart of its drafters."
But the American Civil Liberties Union, representing a group of refugee aid organizations and Muslim residents whose overseas relatives are seeking visas, says Trump never disavowed his plan to target Muslim immigration.
"President Trump publicly committed himself to an indefensible goal: banning Muslims from coming to the United States," and the court should consider those statements in deciding whether the executive order is based on anti-Muslim animus, the ACLU says.
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Under the government's approach, the ACLU says, if a politician campaigned on a promise to make Christianity the national religion, the courts would be forbidden to consider the candidate's speeches, literature and websites, no matter how specific and consistent the promises, how quickly they were carried out after the election and how much they affected non-Christians.
The administration's lawyers say the revised order — imposing a 90-day ban on travel from Iran, Sudan, Syria, Libya, Somalia and Yemen — was intended to enhance national security by allowing the government to study its ability to properly vet visa applications from those countries.
The goal was not to restrict travel by Muslims, the Justice Department says in its legal brief submitted ahead of Monday's courtroom showdown. "Those countries represent a small fraction of the world's 50 Muslim-majority nations and approximately ten percent of the global Muslim population."
What's more, the government says, any claim of discrimination now is premature, because visa applicants from those countries can seek waivers from the executive order. The Iranian wife of one of the challengers was granted an immigrant visa May 1, the government says.
But the ACLU counters that the executive order was aimed at countries whose populations are overwhelmingly Muslim. The harm to Muslims in the United States is immediate, the ACLU says, because the Trump order creates feelings of marginalization and exclusion.
The challengers "invoke their rights to be free from government condemnation of their religion within the United States," the ACLU says.
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Trump's original travel order, issued seven days after his inauguration on Jan. 20, was blocked by court rulings. Enforcement of the revised order, which was to have taken effect on March 16, was also barred by a federal judge in Hawaii. The 9th U.S. Circuit Court of Appeals will hear an appeal of that ruling later in the month.
Both appeals courts would have to rule in the administration's favor to allow enforcement of the revised executive order. But if either court rules against the government, an appeal to the Supreme Court seems certain.
