What’s swirling around the 9th Circuit Court of Appeal’s review of the Trump Executive Order is something neither party nor the court wants to explicitly deal with, because it opens a Pandora’s box for our political system. The issue comes down to whether campaign speech or rhetoric can be used by a court to infer actual intent. The arguments and questions currently being discussed are only the first set and as a matter of procedure, almost exclusively limited in scope to the issue of the court’s power to review and issue the temporary restraining order. However one requirement for the restraining order is that the party needs to show a strong likelihood of success.
Herein lies the conundrum. An Executive Order by a President specifically stating what this order states, is clearly permitted under our Constitution and for the most part beyond the jurisdiction of the courts. Simply put, a President can suspend entry of citizens of another country without the approval of the court or legislature.
The real problem in the present case is not what is written in the Order, it is whether the Order was actually instituted because President Trump wants to discriminate against people on the basis of religion. Now the problem becomes clear. Candidate Trump made many comments about his desire to ban Muslims. It could be argued his desire for the ban even then, was driven by a wrongheaded view it would make the United States safer. If that were the case, with the order written more broadly, we would be facing a true Constitutional crisis, so let’s leave that for another day. In the present situation, what is clear is that candidate Donald Trump is on record advocating for a ban based on religion and the current Executive order would at least indirectly advance this general sentiment.
Now many may not see a problem yet but that’s because they haven’t considered the impact of the precedent being created and the havoc it would cause in the future. If the court allows for this case to proceed it will have no choice but to create a bad rule or a worse one regarding the office of President and foreign policy. On the one hand if they go forward and agree to look to the actual intent by reviewing the campaign statements, then forever onward political opposition will have fodder to file preemptive lawsuits whenever they disagree with official actions, even when clearly permissible as written.
In contrast if this goes forward and the statements cannot be used to show intent, it will be quite damaging to the public’s perception of the courts and promote the view that its elected leaders can take “illegal” actions as long as they word them correctly. Neither result is beneficial and highlight how the trial court seriously erred in ever allowing the temporary restraining order to go forward. This mistake is now exacerbated by the Appellate hearing where the Judges’ questions seemed to suggest they would be looking at the actual intent without saying so.
Simply put, politicians have never been legally held to their campaign rhetoric in any form and it is a terrible idea to open this Pandora’s box now. There is a path to void illegal actions or unconstitutional laws. In a nutshell, that means either showing that they are unconstitutional as written or in their application. The court should not make a new path because of this President, no matter how vile his campaign rhetoric.
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