In determining the constitutionality of President Trump's travel ban executive order, courts shouldn't look back to Trump's statements as a candidate, the Department of Justice says. District courts in Maryland and Hawaii blocked Trump's newest travel ban two weeks ago, finding it to be likely unconstitutional. Both judges relied significantly on the president's public statements when doing so.
In a brief filed with the Fourth Circuit last Friday, the DOJ argues that the travel ban does not discriminate on the basis of religion, despite Trump's calls for a "Muslim ban" during his presidential campaign. Considering such statements would be impermissible "second-guessing" of the president's stated purpose, the brief argues.