Judges Who Ruled Against Trump Made One Key Error

Trump's campaign call for Muslim ban is irrelevant, says columnist
By John Johnson,  Newser Staff
Posted Feb 10, 2017 9:40 AM CST
Appeals Court Got It Wrong on One Key Point
A man walks up the steps of the 9th U.S. Circuit Court of Appeals building Thursday in San Francisco.   (AP Photo/Marcio Jose Sanchez)

The three-judge panel who ruled against President Trump on his travel ban set a dangerous precedent, writes Eugene Kontorovich in the Washington Post. Kontorovich thinks the 9th Circuit's decision was weak in general, but he zeroes in on one point in particular: The judges took into account Trump's statements as a candidate about the need for a Muslim ban. The attorneys challenging the travel ban had made the case that it's motivated by religious bias and thus unconstitutional, and they called attention to Trump's comments from the campaign trail. The appellate court accepted the basic premise, declaring that the "States' claims raise serious allegations and present significant constitutional questions." Kontorovich cries foul.

"There is absolutely no precedent for courts looking to a politician’s statements from before he or she took office, let alone campaign promises, to establish any kind of impermissible motive." Such promises are often full of bluster, and Trump was a private citizen at the time, making him "a legally differently obligated person." He should be held accountable only for his actions made after taking the oath of office, an oath that would "presumably" affect "his policies and their relation to the Constitution," Kontorovich writes. The ruling "throws open a huge door to examinations of the entire lives of political officials whose motives may be relevant to legal questions," he continues, warning that it could make a mess out of future cases. "Without a clear cutoff at assumption of office, attacks on statutes will become deep dives into politicians’ histories." Click for the full column. (More Trump travel ban stories.)

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