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Today (26th of June 2018), the SCOTUS decided that the Sept. 2017 Executive Order banning travelers from several predominantly Muslim countries from entering the United States (the "Travel Ban") does not violate the 1st Amendment of the US constitution. Notably, the SCOTUS declared that the campaign promises that the President made during his campaign rallies of banning all Muslims from entering the country (paraphrasing here) should not be taken into account when deciding whether this order is violating the 1st Amendment.

As someone who doesn't live in the USA and isn't a constitutional lawyer, I don't really understand that. If I say "I'm going to kill the guy who slept with my wife" and 3 days later I jump out from behind a tree and kill him, that's considered premeditation, which increases the severity of the murder charge. However, if the President says "I'm going to ban all Muslims" and then a year or so later does something to that effect, why is it not taken into account?

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  • The constitutionality of an executive order should be judged based on the order alone, not with regard to statements made by the person making the order. I think what the SCOTUS is saying is that "this order is constitutional regardless of the motivations behind it", In your example that may be like being charged with murder is correct, regardless of it being premeditated or not.
    – Ron Beyer
    Commented Jun 26, 2018 at 17:23
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    @RonBeyer that's not what the court said; they said that the government's position is sufficient to survive a rational basis review. They did not make an absolute statement prohibiting the consideration of extrinsic statements. In fact, the majority opinion states the opposite: "In doing so, we must consider not only the statements of a particular President, ..." and "For our purposes today, we assume that we may look behind the face of the Proclamation....". The dissent concerns both the selection of review standard and the outcome of the review under that standard.
    – phoog
    Commented Jun 26, 2018 at 18:39

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Because the nations that made the list (which was modified at the time of the SCOTUS hearing) were selected based on their ability to provide the US with documentation for vetting of immigrants (or rather their lack of an ability), not religion, and the courts give the legislature (Congress) and the executive branch (President) wide discretion when matters of security are involved as they are related to foreign relations where the Judiciary have very limited powers. The specifics of the law which the Executive order modifies do not limit the President beyond a bona fide reason for which the selection was made.

The court also ruled that the document contains no mention of any religion specifically or any matters pertaining to religion, and that several nations on the list have no Muslim Majority (they cite 2, but I am only aware of Venezuela being on the list). Additionally, the nation of Chad was removed from the list after their standards were brought up to scratch.

In the original opinion, they did say that the campaign remarks were considered in that they pointed to the plaintiff's standing in the case (you need to show a potential harm is inflicted on you by the law in order to get a court case. Or in other words, I cannot ask the court to hear a case on rights of a vampire, because I am not a vampire) but found that the request to probe for malice in the minds of the President and his staff was not an area they could tread as there was a good reason for the law and several prominent Muslim Majority nations were not included.

Basically, if the government could show that the order was made by some objective standards that neither favored nor disfavored a religion, then it is not a violation of the first amendment. For five of the justices, the government satisfied this requirement.*

*Note, I am still reading through the ruling... my PDF of it keeps crashing and I lose my place.

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    The other non-Muslim country affected by the ban is North Korea.
    – phoog
    Commented Jun 26, 2018 at 18:14
  • @phoog Thanks. Cannot believe I choked on NK being the other nation on the list.
    – hszmv
    Commented Jun 27, 2018 at 15:33

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