An American Civil Liberties Union lawyer argued before a federal court of appeals that the central reason the White House’s proposed travel freeze is unconstitutional is because President Donald Trump is the one who ordered it.
For more than two hours Monday, the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, heard heated oral arguments regarding a lower court order that blocked the president’s controversial travel freeze, which would have temporarily suspended entry into the U.S. from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen — all Muslim-majority countries.
On March 15, a Federal District Court judge in Maryland blocked the travel ban, which was in its second iteration after the initial executive order faced a similar fate. The federal government appealed the decision to the 4th Circuit.
ACLU staff attorney Omar C. Jadwat argued before the circuit court panel that the freeze should be ruled unconstitutional because of then-candidate Trump’s immigration-related comments on the campaign trail. In December 2015, Trump called for “a total and complete shutdown of Muslims entering the United States.”
The premise of Jadwat’s argument led Judge Paul Niemeyer, who was appointed by former President Ronald Reagan, to propose a hypothetical scenario to the ACLU lawyer. Niemeyer asked Jadat if a similar travel moratorium would be accepted as constitutional if it had been signed by a president whose last name was not “Trump.”
After going back and forth a few times, an apparently frustrated Niemeyer offered this detailed scenario:
We have an order on its face. We can read this order and we have no antecedent statements by a candidate about this order. 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 with whatever counsel he took. … He issued this executive order. Do I understand that just in that circumstance the executive order should be honored?
Jadwat had already twice refused to answer the question, but when the judge offered such a comprehensive hypothetical, the liberal lawyer finally admitted: “Yes, your honor, I think in that case it could be constitutional.”
ACLU lawyer: Travel ban would be constitutional if a different president had ordered it
For more than two hours Monday, the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, heard heated oral arguments regarding a lower court order that blocked the president’s controversial travel freeze, which would have temporarily suspended entry into the U.S. from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen — all Muslim-majority countries.
On March 15, a Federal District Court judge in Maryland blocked the travel ban, which was in its second iteration after the initial executive order faced a similar fate. The federal government appealed the decision to the 4th Circuit.
ACLU staff attorney Omar C. Jadwat argued before the circuit court panel that the freeze should be ruled unconstitutional because of then-candidate Trump’s immigration-related comments on the campaign trail. In December 2015, Trump called for “a total and complete shutdown of Muslims entering the United States.”
The premise of Jadwat’s argument led Judge Paul Niemeyer, who was appointed by former President Ronald Reagan, to propose a hypothetical scenario to the ACLU lawyer. Niemeyer asked Jadat if a similar travel moratorium would be accepted as constitutional if it had been signed by a president whose last name was not “Trump.”
After going back and forth a few times, an apparently frustrated Niemeyer offered this detailed scenario:
We have an order on its face. We can read this order and we have no antecedent statements by a candidate about this order. 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 with whatever counsel he took. … He issued this executive order. Do I understand that just in that circumstance the executive order should be honored?
Jadwat had already twice refused to answer the question, but when the judge offered such a comprehensive hypothetical, the liberal lawyer finally admitted: “Yes, your honor, I think in that case it could be constitutional.”
ACLU lawyer: Travel ban would be constitutional if a different president had ordered it