Originally Posted by
MSPeconomist
Are you kidding? I realize that the ACLU is generally a liberal organization, but how can a supposedly competent lawyer make this argument with a straight face? Have we abandoned any pretense of "rule of law" versus the politics of the situation? That's outrageous.
I don't think it has much to do with politics, but the creative structuring of legal arguments.
EO 1.0 would've been unconstitutional no matter who enacted it. It would be easy pickings even for someone fresh out of law school. It violated no less than a dozen SCOTUS cases.
To defeat EO 2.0 requires more skill. The ACLU successfully struck down EO 2.0 on the district level by stringing together two judicial precedents: 1) Lemon test and 2) McCreary County vs ACLU (2006).
Lemon test basically requires that the government prove secular purpose in any action that it takes to abide by the establishment clause. McCreary, while unrelated, allows the judiciary to take into account evidence beyond the plain text of the matter at hand. That would include social media, public speeches, etc...
So what the ACLU did was take Trump's campaign rhetoric and tweets into the equation. They made a good case that the words "Muslim ban" means this ban does not fulfill the secular purpose requirement. Hence EO 2.0 was struck down.
This time around, the DOJ lawyer asked whether the ban would be constitutional under a Clinton presidency. Since much of the ACLU's argument hinged on this "secular intent" argument, and said argument relied upon an examination of Trump's intent, I'm guessing the ACLU lawyer didn't expect this curveball. Of course, a better attorney would've deflected.