Reflections on Analyzing Donald Trump's Words and the So-Called "Travel Ban"

By Dan Cadman on May 24, 2017

Not so long ago, my colleague, Andrew Arthur, wrote an excellent blog, "Loaded Questions and False Assumptions", about the federal Ninth Circuit Court of Appeals' treatment of the president's executive order directing a visa time-out for certain countries deemed a high terrorism risk, which was frequently and erroneously referred to as a "Muslim travel ban".

Arthur is one of several Center fellows and staff who have written about the way the Ninth Circuit, and indeed multiple district courts, engaged in encroachment on questions that rightly belong to the political branches of government rather than the judiciary, when speculating about presidential motive and intent (see for instance, here and here).

This analytical method was particularly notable since the M.O. that the various and sundry jurists generally used in analyses was to delve into speeches given by Candidate (as opposed to President) Trump. It was really quite extraordinary. While Trump's style is more flamboyant than most, what candidate does not engage in hyperbole and over-the-top rhetoric in trying to stir the electorate to vote their way at the polls?

To my knowledge, no other president has ever been subjected to such scrutiny for judicial purposes. Certainly Barak Obama wasn't. Remember how he morphed from "I am not a dictator" in justifying why he could not unilaterally change immigration laws or force a budget agreement to avoid sequestration, into "I've got a pen and I've got a phone" that he used to issue his many imperial edicts?

What's more, this analytical approach to words and deeds has been singularly one-sided, since nothing of the sort seems to have been undertaken in legitimately examining motives (or standing) of the plaintiffs in any of the filings — not only with the so-called "travel ban" but also with litigation challenging the president's executive order to defund sanctuary jurisdictions that shield illegal aliens from federal efforts to identify, locate, and apprehend them.

I myself harbor great doubt about the propriety of using this analytical method of judging candidates' words to arrive at juridical decisions. It is far too subjective and open to interpretive bias.

But be that as it may, since that is the route that several district courts and at least one circuit court have chosen to go, then it seems to me that as the case winds its way toward the Supreme Court, it would be appropriate for these august jurists to take judicial notice of President (not Candidate) Trump's speech to the heads of 50 Muslim nations in Riyadh, Saudi Arabia, on May 19. (It can be heard in its entirety here.) It was measured, statesmanlike, and well received. This, it seems to me, is a better yardstick by far in judging what the Trump White House is trying to achieve in its efforts to keep the American people safe from terror.