Democrats threw every legal objection they could think of at President Trump's travel ban when it was first signed more than three months ago. They claimed that it ran afoul of existing immigration law; they claimed that it violated immigrants' rights to due process; they claimed that it was religiously discriminatory.
They were initially successful in raising the specter that the order could be unconstitutional, winning multiple temporary injunctions in Hawaii and Maryland. But as the lawsuits have matured through the appeals process, the legal arguments have been peeled away to reveal a partisan truth: their biggest objection to the executive order is that Trump is the one who signed it.
This is, essentially, what ACLU attorney Omar Jadwat admitted yesterday during an en banc hearing on the travel ban in the Fourth Circuit Court of Appeals, during an exchange with Judge Paul Niemeyer (video above thanks to NTK network):
JUDGE NIEMEYER: We have a candidate who won the presidency, some candidate other than President Trump, won the presidency, and then chose to issue this particular order...Do I understand that just in that circumstance the executive order should be honored?
OMAR JADWAT: Yes your honor, I think in that case it could be constitutional.
This was a huge - and potentially costly - admission by Jadwat. It effectively conceded that the executive order is, in fact, facially constitutional; that is, he agreed that nothing about the text of the order is illegal (so much for the passionate arguments about statutory violations or due process rights!)
Ignoring those other legal arguments aside brings us to the core of the ACLU's argument: the statements that Trump and others made on the campaign trail about “Muslim bans” renders the executive order discriminatory, even if nothing in the actual text makes it so. Those past statements are what the judges spent the majority of their time discussing. They're what have fueled the lawsuits thus far.
But just a few moments after that last exchange, Jadwat seemed to undermine that argument as well:
JUDGE NIEMEYER: You basically want to set aside the prescription of Mandel, which says an order such as this, which on its face is legitimate, becomes illegitimate because of campaign statements that were made by the candidate for president?
OMAR JADWAT: Not at all, your honor.
Likely confused by the inconsistency here, another judge jumped in to clarify what he meant:
JUDGE KEENAN: Are you agreeing that the order is legitimate on its face?
OMAR JADWAT: No, your honor.
Confused? Jadwat said that if another president had issued the order, it would be legitimate; but then he denied that Trump's statements were what made the order illegitimate; then he maintained that the order still isn't legitimate.
This is absurd legal ground to be standing on and runs afoul of decades of Supreme Court precedent on immigration law that prescribes as long as the order is facially legitimate, the court will not look behind it. The ACLU is essentially asking the courts to overturn that precedent and review specific statements that the president and others made in the past.
Would the higher courts be willing to open that can of worms: that judges in the future can take past statements from politicians and use those words, not the actual text of the law in question, to decide whether it is is constitutional?
In any case, it's impossible to know how the 13 judges who took part in the en banc hearing will rule, though the heavily Democratic tilt of the court might provide some guidance.
But let's be hopeful that the farther through the appeals process Trump's travel ban goes - potentially to the Supreme Court itself - there will be less partisan politics and more actual jurisprudence. It's hard to see how the ACLU's grandstanding claims can survive legal scrutiny.