The Trump Administration has maintained that the new executive order on refugees is not a Muslim ban. It is a compelling argument given the fact that only seven Muslim countries are singled out. Yet, Administration lawyers will have to deal with countervailing statements from President Trump that he wants to give preference to Christians as refugees. Now Former New York City Mayor Rudy Giuliani (R), a close confidant to President Trump, may have magnified the problems with an interview where he discusses how President Trump asked him to craft “Muslim ban.”
Guiliani told Fox News that Trump told him that he wanted to enact a “Muslim ban” and turned to him to help: “When he first announced it, he said ‘Muslim ban. He called me up and said, ‘Put a commission together, show me the right way to do it legally.’”
Giuliani formed a “commission” of former Attorney General Michael Mukasey, Rep. Michael McCaul (R-Texas), Rep. Pete King (R-N.Y.) and others. Guiliani said that they decided that the legal way was to “focus] on ― instead of religion ― danger . . . The areas of the world that create danger for us, which is a factual basis, not a religious basis ― perfectly legal, perfectly sensible, and that’s what the ban is based on. It’s not based on religion. It’s based on places where there are substantial evidence that people are sending terrorists into our country.”
The interview is yet another headaches for Administration officials and an unexpected boon for challengers of the law. Here is Guiliani publicly stating that Trump really did want a Muslim ban when he asked for the order to be legally drafted. Usually confidants of a president studiously avoided disclosing such communications, particularly when it clearly undermines the legal position of the president.
In fairness to Guiliani, he was trying to explain that, despite the initial reference to a Muslim ban, the commission chose to focus not on the dominant religion but the inherent danger of certain counties. However, he has giving an added source for the alleged motivation behind the order for those who say that the order is little more than thinly veiled religious ban,
In the end, neither the Trump nor Guiliani comments should be determinative in the analysis of the ACLU challenge. The Court will analyze the order according to the justification advanced by the Administration as it did in 1972 in Kleindienst v. Mandel. In that case, the Court voted 6-3 to uphold a refusal to allow a marxist Belgian scholar to enter the U.S. to give a series of lectures. It was an abusive and wrong decision by the Administration in my view but the Court did not get into the wisdom but the constitutionality of the decision. While the court affirmed that it could review such decisions, it also held that it was enough that the government based the decision to exclude Mandel on reasons that were “facially legitimate and bona fide.”
Thus, the public statements will likely be cited by the challengers but the standard remains highly forgiving to the President and his executive order.