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Trump's anti-Muslim comments could come back to haunt his new travel ban

It’s clear Donald Trump and his administration took great pains to differentiate the new executive order released Monday from his embattled first attempt at limiting immigration from Muslim-majority countries. Version two is more than twice as long and notably excludes green card-holders as well as language about prioritizing entry for minority religions (aka Christians — Trump said so himself) from the six countries now included.


But the Trump administration is forgetting one important fact: It can’t erase the past. Previous anti-Muslim comments made by the president and his A-team, including an official statement calling for a “total and complete shutdown of Muslims entering the United States” still on his campaign website, could be used against the new executive order in court. In fact, they already were.

“Those statements, as well as statements by advisers during the litigation and drafting of the new executive order, will definitely be part of the legal challenges,” said Ruthann Robson, a constitutional law professor at the City University of New York. “Simply put, the government cannot say, ‘Nevermind, we didn’t mean what we said.’”

Courts in multiple states have already ruled to temporarily halt the first executive order. That’s why Trump needed a second, revised one. The changes attempt to negate the constitutional concerns successfully raised in those cases — that the order violated protections for due process and religious freedom. There’s even a section in the new text (Section b, iv, to be specific) that explains why the original order didn’t target one specific religion.

In one decision heavily focused on the freedom of religion guaranteed by the First Amendment, a federal judge ruled that Trump and his advisors’ previous statements suggest a religious intent for the original executive order. Attorneys arguing against the ban in the 9th Circuit Court of Appeals — which temporarily stopped deportations nationwide — hinted at the same idea. While judges would have to come to the same conclusion in any future litigation, attorneys arguing against the ban can point to those decision to convince them of the statements’ relevance.


“It’s not like an administration that makes statements about a Muslim ban can wash its hands clean of that animus,” said Brandon Garrett, professor at the University of Virginia School of Law. “That evidence of intent doesn’t go away just because they redrafted it a few weeks later.”

Considering the inclusion of his previous statements in legal cases, Trump sent what could be considered an ill-advised fundraising email Monday afternoon. In it, he called the six countries included in the new executive order “compromised by radical Islamic terrorism.” The last three words — previously avoided by Presidents Bush and Obama in fear of associating Islam with violence — throw religion back into the mix.

“As a civil rights lawyer, I think he should keep talking about Islam — while he’s at it he should talk more about Mexicans,” said Justin Cox, staff attorney with the National Immigration Law Center. He’s working on a challenge against “Muslim ban 2.0,” as he calls it, in Maryland. “I’m certain that [Trump has] been told by his lawyers multiple times that he shouldn’t be saying the types of things he continues to say.”

In fact, Cox’s organization isn’t even planning to file a new lawsuit. Instead, he and other attorneys working on the case are simply going to amend the complaint they filed challenging the original executive order. That’s possible, according to Alina Das, associate professor of clinical law and co-director of the Immigrant Rights Clinic at New York University, because the second ban still affects education and businesses, which gave many states what’s called the “standing” to challenge the first time around.

All this isn’t to say that the Trump administration has no chance of success. Courts have traditionally granted presidents a lot of leeway when ruling on national security. And the administration has framed both executive orders toward national security, rather than immigration. Then again, the new restrictions won’t take effect until March 16 — which could affect the government’s ability to categorize the need for the order as dire, according to Garrett.

“Courts can be deferential on national security, but they tend to be more deferential when there’s an emergency,” he said. “So taking more time to roll it out, it undercuts the idea that this is a crisis, and they have to do something right away.”