Decisions, dissents
Judges far from unanimous over the ban’s meaning
Since President Trump issued two executive orders in January and March to ban travelers from at least six predominantly Muslim nations, federal judges have clashed over a central question: Can Trump’s statements as a candidate and since be used against him?
Here’s a sampling from those decisions and dissents:
STATEMENTS ARE RELEVANT:
U.S. Court of Appeals for the 9th Circuit, three-judge panel, Feb. 9:
“It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.”
Federal District Court Judge Leonie Brinkema, Eastern District of Virginia, Feb. 13:
“Just as the Supreme Court has held that ‘the world is not made brand new every morning,’ a person is not made brand new sim- ply by taking the oath of office.”
Federal District Court Judge Derrick Watson, Hawaii, March 15:
“The record before this court is unique. It includes significant and unrebutted evidence of religious animus driving the promulgation of the executive order and its related predecessor.”
Federal District Court Judge Theodore Chuang, Maryland, March 16:
“Simply because a decisionmaker made the statements during a campaign does not wipe them from the ‘reasonable memory’ of a ‘reasonable observer.’ ”
Federal Appeals Court Chief Judge Roger Gregory, U.S. Court of Appeals for the 4th Circuit, May 25:
“These statements are the exact type of ‘readily discoverable facts’ that we use in determining a government action’s primary purpose. They are explicit statements of purpose and are attributable either to President Trump directly or to his advisers.”
STATEMENTS AREN’T RELEVANT:
Federal Appeals Court Judge Alex Kozinski, dissenting
from refusal to reconsider 9th Circuit panel ruling, March 17:
“Even if a politician’s past statements were utterly clear and consistent, using them to yield a specific constitutional violation would suggest an absurd result — namely, that the policies of an elected official can be forever held hostage by the unguarded declarations of a candidate.”
Federal District Court Judge Anthony Trenga, Eastern District of Virginia, March 24:
“This court is no longer faced with a facially discriminatory order coupled with contemporaneous statements suggesting discriminatory intent.”
Federal Appeals Court Judge Paul Niemeyer, dissenting from 4th Circuit ruling, May 25:
“The Supreme Court surely will shudder at the majority’s adoption of this new rule that has no limits or bounds — one that transforms the majority’s criticisms of a candidate’s various campaign statements into a constitutional violation.”