A debate is taking place in legal circles, matching the contentious findings of the various judges that have been dealing with figuring out how Trump's executive orders are related to his earlier statements.
During the campaign trail, Trump said he would institute a Muslim ban. Most legal experts would consider such a ban to be a violation of the Constitutionally protected right to freedom of religion. Now that Trump is trying to enact a travel ban from several countries where Muslims are the majority, the claim that travel from the countries poses a risk to the U.S. is not enough.
His first attempt at the travel ban was struck down in court because of his earlier statements. Those arguing against the ban said that because Trump had earlier said he wanted a Muslim ban, no matter what he says now about a travel ban, the ban is actually a ban against Muslims, even if it has no language in it mentioning religious affiliation. Trump's second attempt at travel restrictions is facing similar challenges.
Another aspect of the debate is the question of what would be enough to satisfy those arguing against Trump that he no longer wanted a Muslim ban, and just wanted to increase security. In the Fourth Circuit Court of Appeals this week, Judge Robert King asked, "What if the President repudiated his statements in the campaign and post-election about the Muslim ban? What if he repudiated them all?"
The lawyer for the International Refugee Assistance Project, Omar Jadwat, responded that it would be "a significant fact" but that it "would not change the result."
Judge Dennis Shedd then followed up, "What if he says he's sorry every day for a year? Would that do it for you?"
Jadwat responded, "... Here's the issue, your honor. What the establishment clause prohibits is targeting and denigrating religion. At a minimum, that's what it prohibits. And the question is, would reasonable people see what he was doing in total as achieving that effect?"
"You say reasonable people would say he doesn't really mean it when he says he's sorry?"
"Your honor, I think it's possible that saying sorry is not enough."
Other hypotheticals were posed by the court, such as whether another candidate had won the election and they tried to instute the travel ban, or if Trump had said he hated Muslims earlier in life (in college), or if there was a clear threat from a religious group. The questions circle the main issue: Are executive orders to be judged based just on national security, or does the religious liberty clause jurisprudence come into play as well?
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