Mr Trump’s rhetoric hampers the legal argument for travel bans.
Two federal judges, one in Hawaii and the other in Maryland, have reservations about the President’s revised travel ban. Although the White House and the justice department believe that the new executive order is not aimed at a particular religion, especially during the trump campaign, the judges are divided over what Mr Trump himself has said.
Donald trump has called for a complete and complete shutdown of muslims entering the United States.
We cannot allow those who come to this country to hate the United States…
ANDERSON COOPER: I think the question is…
TRUMP:…… Not Muslim.
CORNISH: but not every legal opinion agrees that the President’s statement as a candidate should be decided by his executive order. Josh blackman is a professor at the south Texas law school in Houston. I first asked him to explain the court’s reasoning and then explain his reasons.
JOSH BLACKMAN, although on the surface of a policy made no mention of religion, but the court will review candidates trump’s statement on the campaign trail, and to make sure he is in his heart there is a kind of anti-muslim bias despite policy has modified many times, and he is away from his initial proposed Muslim ban, but still polluted by campaign statement first.
CORNISH: what kind of case law, or to the Supreme Court to try to find out how we intent or trying to figure out lawmakers hope to achieve what purpose by law and implementation ideas, regardless of what actually writing?
Blackman: thirty years ago, judge sutter wrote that the court should refuse to analyse the heart of the drafters. The court can study various objective facts and explain why the policy may be affected by bias. They can look at the formulation. They can look at some aspects of the law itself.
But what they can’t do is to make sure that the person himself – in this case, the President of all – is in his mind, and that’s not going to be eliminated. It does not allow this permanent stain. I think that’s where the courts of Hawaii really go.
Kangsi: now, is it possible to develop an unconstitutional policy to fix or rewrite legal challenges in the way these problems are addressed? I mean this is the second order of this order.
Blackman: in fact, the second executive order explicitly denies the old policy, and we will not follow it. The governor is making serious efforts to comply with the ninth circuit court ruling. Hawaii’s judges scoff. It’s as if the order has never been modified, even if there are significant changes. Why – again, because he thinks Donald trump is paranoid, and nothing can be done.
CORNISH: that’s what you read. I should have noticed the judge…
CORNISH:…… Do not write such things in the order.
Blackman: well, I know he doesn’t, but that’s the problem. At the bottom, what we’re talking about here is the court says, because what trump said during the campaign — he wants to ban muslims — you can’t give that up. Imagine if President trump were to resign tomorrow, we had the President penny, he did the same thing, right? Maybe the court will support it. But as long as Mr Trump is on the job, I think it still exists.
CORNISH: what should the White House get? Of all the executive orders, this one faces the greatest challenge of legal challenge. What do we know about the relationship between trump and the court?
Blackman: trump is very unhappy with the court. He has been very critical of them. And he commented on his race, race, etc. But I’m in trouble with the court. Even if Mr Trump is destroying all political norms, I don’t think the courts are breaking the rules.
Last night, even the opposition judge in the ninth circuit, who agreed with Mr Trump, expressed how the President’s views were out of line. It’s a great idea for me, or one of your other guests, but I think the judge should simply accept it. They have tenure. They should not respond to political impulses. I think they’re taking trumps bait, which is unfortunate. The court should do better.
CORNISH: josh blackman – he spoke to us via Skype at Texas law school in Texas – thank you for taking the time to talk to us.
Blackman: thank you.
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