Hawaii Lawyer Says Travel Ban Could Be Constitutional if Issued by Different President

EXCERPT:

KATYAL: "I think the most important point is, if you don’t say all these things, you never wind up with an executive order like this which is why no president has done that. But I’ll take a hypothetical. If that hypothetical arose, I think it would be different. Context matters. The Supreme Court in McCreary says governments can close shops on Sundays. If they do it because the labor — they want to give workers a rest, that’s fine. But if they do it and at the same time announce, 'The reason why am doing it is to help churches,' that’s obviously an establishment clause problem. That’s why context matters and always has in the context of the establishment clause. Here, the history is overwhelming. That’s why this is so unique. It’s not something that will hamstring any president from anything that is happened in our lifetimes. This is a very unusual circumstance in which you have all of these different statements."