Judge Niemeyer’s Dissent

[Draggingtree]

National Review

Judge Niemeyer’s Dissent
May 27, 2017

Judge Niemeyer’s dissent from the Fourth Circuit’s decision against the travel ban does a nice job of explaining what’s wrong with the majority’s decision to base its ruling on its reading of President Trump’s motives. I’m going to quote the whole discussion of the issue: The majority’s new rule, which considers statements made by candidate Trump during the presidential campaign to conclude that the Executive Order does not mean what it says, is fraught with danger and impracticability. Apart from violating all established rules for construing unambiguous texts — whether statutes, regulations, executive orders, or, indeed, contracts — reliance on campaign statements to impose a new meaning on an unambiguous Executive Order is completely strange to judicial analysis. The Supreme Court has repeatedly warned against “judicial psychoanalysis of a drafter’s heart of hearts.” . . . And consistent with that warning, the Court has never, “in evaluating the legality of executive action, deferred to comments made by such officials to the media.” . . . The Court’s reluctance to consider statements made in the course of campaigning derives from good sense and a recognition of the pitfalls that would accompany such an inquiry. Because of their nature, campaign statements are unbounded resources by which to find intent of various kinds.