The U.S Supreme Court eventually will uphold President Donald Trump's travel ban, but it will be a close vote, former Justice Department official John Yoo told Newsmax TV.
The 9th Circuit U.S. Court of Appeals on Monday issued another blow to Trump's attempt to restrict travel from six countries with known ties to terrorism, but the White House already has appealed a similar ruling by the 4th Circuit to the high court.
"I don't think this is going to change the legal landscape for President Trump's immigration order," Yoo told Steve Malzberg on Monday. "Let me stress how unprecedented, though, both decisions are, because I take it the 9th Circuit, like the 4th Circuit, are looking at the motives of President Trump and issuing an order. That is completely unprecedented."
Previous rulings have focused on Trump's call, before assuming office, for a travel ban against "all Muslims" in denying the ban, even though the eventual ban focused only on countries with terror ties and not on people based on their religion.
"The Supreme Court has never allowed courts to say, let's guess at why the president issued an executive order despite the fact that the order on its face is legal and well within the grounds, delegated by Congress to regulate immigration," Yoo said.
One or two justices on the Supreme Court might actually agree with lower courts that Trump's words before taking office should be considered, Yoo said, but warned that would be opening a Pandora's Box.
"They're looking at comments Trump made as a candidate, not as president," Yoo said. "They're looking at comments that aides to Trump made. They're looking at comments that people who aren't even in the government like Rudy Giuliani are just making because they claim they heard Trump say something. That's why courts have never gone down this road in the more than 220 years of history of our republic. Because once you start looking at that, where does it stop?"
In the end, Yoo said he expects the travel ban to pass constitutional muster, but likely will pass the high court on a 5-4 vote.
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