“The travel ban is a de facto quota – a return to a discredited national origin quota system that was in our law until Congress wisely abolished it in 1965,” said Peter Margulies, professor at Roger Williams School of Law. Yesterday’s alleged statement “couldn’t have been a clearer example of what Congress wanted to abolish.”
According to Margulies, the latest travel ban should be struck down in court on statutory grounds as a violation of a 1965 immigration law prohibiting discrimination based on national origin.
In other words, Trump’s comments further clarified what was already unlawful about the ban, he said.
On Thursday during a bipartisan meeting on immigration reform in the Oval Office, the president asked those in the room why they would want people from Haiti, Africa and other "s---hole countries" coming into the United States, according to multiple sources either briefed on or familiar with the discussion.
Trump denied that he used "derogatory" language about Haitians, but did not specifically address the comments.
“The president has interjected race and ethnicity into the making of immigration policy in a way this country hasn’t seen since the 1920s,” said Hiroshi Motomura, professor at UCLA School of Law and author of two award-winning books on immigration law and policy.
"Yesterday’s statement makes it more reasonable for courts to decide that the travel ban can be struck down as unlawful — beyond the president’s authority under immigration statutes, and as unconstitutional — without necessarily intruding on the national security authority of a president who exercises that authority in a nondiscriminatory and rational way.” said Motomura.
Later that month, a 9th Circuit Court of Appeals panel upheld a Hawaii district court injunction against travel ban 3.0, agreeing with the lower court that the policy violates federal immigration law and exceeds the authority of the executive branch.
But the ban remained in effect, pending the final U.S. Supreme Court review.
Another appeal that was heard in the 4th Circuit is still awaiting a ruling.
Yale Law School professor Peter Schuck said he thinks the Court will be “very reluctant to take into account informal comments made in a closed political bargaining session a year after the ban was imposed and not relating to Muslims.”
Schuck believes Trump’s call for a “Muslim ban” was more legally fraught than his alleged "s---hole" comment, and so he “can’t see the courts focusing on this particular languages as being important, as odious as it is.”
Similarly, Josh Blackman, a constitutional law expert at South Texas College of Law Houston, said "I don't think these statements, as odious as they are, have any bearing on this case."
"As a general matter, I think the president statements are fair game, but in the context of foreign policy judges have to be deferential to the president,” he added.
Meanwhile, Neal Kaytal, who is the lead lawyer in the Hawaii travel ban challenge, and has a brief due at the Supreme Court today, took to Twitter in the wake of Trump’s comment.
“Past immigration decisions have been made by Presidents who have not harbored this sort of animus. It is a daunting, and un-American, thing to have a President who not only says such vile comments, but acts on them,” he told ABC News when asked if he could expand on his tweet. Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project, who litigated the 4th Circuit appeal, said the “s---hole” comment was “more fuel on the fire.”
“I think it’s further confirmation that prejudice and racism underlie a lot of the president's approach to foreign policy,” he said.
The Department of Justice, which is responsible for defending the president’s policies in court, did not provide a comment on the matter.
James Hill and Jack Date contributed to this story.