The United States Supreme Court is going to decide whether Donald Trump’s anti-Muslim tirades can be used to determine whether his new immigration order is constitutional. When deciding the meaning of a written document, courts look at its plain language. If the words are clear, that decides the case. When there’s an ambiguity in the language, judges will try to determine the underlying intent of the person or people who wrote it to see if the uncertainty can be resolved. Cases like that are common.

The Trump immigration case is unique because the wording of his immigration order is obvious but the legal question is whether he actually means what he said. To my knowledge, there’s never been a case in which that question has had to be answered. Then again, we’ve never had a president like Donald Trump. That’s a perfect combination for truly unique litigation.

Trump’s first immigration order was declared void by a court because it targeted only Muslims from entering the United States. Religious minorities from Muslim majority countries (i.e. Christians) would be permitted to come to the U.S. but no one else. After that case, Trump wrote a new order that was also challenged. That second one appears constitutional because it does not say, as the first order did, that only religious minorities from Muslim majority countries (i. e. Christians) will be permitted to come to the U.S. To clarify, Trump’s first order clearly said that immigrants from certain Muslim majority countries were banned unless they were Christian. The second order stopped all immigration from certain Muslim majority countries with no distinction between Muslims and Christians. The second order was struck down because it was written by Donald Trump.

In the second case the appellate court conceded that a president has a lot of latitude in setting immigration policy and is entitled to substantial deference in that area by the courts. But there are limits to that deference. Immigration decisions are not a blank check and must be constitutionally permissible. One of those boundaries is the First Amendment provision that government shall not favor or disfavor one religion over another. Under established case precedent, immigration laws must have a secular purpose that is real and not a pretense of neutrality toward religion.

The appellate judges reviewed Trump’s statements as a candidate and as president and wrote that on numerous occasions he promised to ban Muslims from the United States. He also admitted that he would “circumvent scrutiny of the Muslim ban by formulating it in terms of nationality rather than religion.” Trump administration officials declared that the changes in the second order were “minor technical differences” with “the same policy outcomes for the country” and that the “principles of the second order are the same as the first.” In a speech at a rally, Trump divulged that the second order was a “watered down version” of the first. Given those admissions the court decided that Trump’s second order is a fraud fabricated solely to ban Muslims from the United States.

As in all cases that it decides, the United States Supreme Court will have the final word. This one’s fifty-fifty even though the Court has a Republican majority who will want to give Trump a victory. Trump’s latest tweets in the aftermath of the London Bridge attacks repeating that his latest order is a watered-down Muslim ban will force even the most conservative justices to be concerned with the difference between Trump’s written words and his admissions to the contrary.

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Dick Graham is a lawyer, political writer/operative and raconteur. He is a mix of Oscar Wilde and Jeff Foxworthy which is what happens when someone from Zanesville goes to college and law school.

 

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