A former US solicitor general said this week that what will be key to whether President Donald Trump is victorious defending his immigration moratorium in the court system is whether the executive order is interpreted solely based on the text of the document.
Charles Fried, who served as solicitor general under President Ronald Reagan and is now a Harvard law professor, told Business Insider that things may not bode well for Trump if the court decides to consider statements he made along the campaign trail about banning Muslims from entering the country.
"What shadows any such effort is the question whether these executive orders have to be interpreted within the four corners (purely on the text of the documents) ... or whether various statements — including statements by candidates, including statements by advisers, including 3 a.m. tweets — whether those bare on the constitutionality in the sense that they are considered competent evidence of the intent of the order," Fried said.
If the executive order is viewed "within the four corners," Fried said he believes it "is really pretty secure."
"If you let in all this other stuff, who knows," he said.
In late December of 2015, Trump announced that he would seek an indefinite ban on Muslims entering the US if he won the election. From then on, Trump made a number of statements related to the barring of Muslims from entering the country, at times backing away from the severity of his initial remark.
Following the implementation of his travel ban last month, Trump said Christians would be given preferential treatment. Additionally, one of his top surrogates and advisers, former New York mayor Rudy Giuliani, told Fox News that Trump was looking for a way to do such a Muslim ban "legally," and enlisted Giuliani to help figure out exactly how to do so. Giuliani later walked back the comment.
At the heart of the matter is the fact that presidents have the authority to suspend entry to groups of individuals deemed to be detrimental to the United States, while, as the 9th Circuit Court wrote in its Thursday decision, the First Amendment prohibits any "law respecting an establishment of religion" and the Equal Protection Clause "prohibits the government from impermissibly discriminating among persons based on religion."
The states arguing against Trump's executive order, Washington and Minnesota, used Trump's past statements to make the case that it was discriminatory based upon religion. But the 9th Circuit Court, in its ruling, did not make a determination on whether the executive order was discriminatory.
Fried said "there are great dangers" about bringing Trump's and his advisers' past statements into consideration.
"Because candidates say all kinds of things, and this president says all kinds of things," the Harvard law professor explained. "Some of which, he contradicts himself with within the next 10 minutes. So a court might be tempted in that context to say, 'we're not going to look at any of this stuff, it's just the text of the order [that will be reviewed].'"
Although he said he "wouldn't go that far" and say the order was constitutional based alone on the text of the order, Fried did say the the "four corners" interpretation would boost the Trump administration's chances of success.
"I would say that it has a very much better chance," he said.
Reince Priebus, White House chief of staff, said Friday that the administration would be "fighting out this case on the merits." Trump has vowed to take the case to the Supreme Court.
The White House is additionally reportedly considering retracting and replacing the executive order with one that is altered slightly and not under a temporary restraining order.
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