USA TODAY US Edition

Decisions, dissents

Judges far from unanimous over the ban’s meaning

- Richard Wolf and Alan Gomez USA TODAY

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.”

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AP Watson
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AP Gregory
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GETTY IMAGES Kozinski

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