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While arguing before the Fourth Circuit Court of Appeals on Monday, American Civil Liberties Union Lawyer Omar Jadwat admitted that if former Democratic nominee Hillary Clinton had enacted President Donald Trump’s proposed travel ban, it may have been constitutional.

Jadwat, a senior staff attorney for the ACLU, had been arguing before the court that Trump’s revised ban was unconstitutional because of anti-Muslim comments he made on the campaign trail. Judge Paul Niemeyer then challenged his assertion.

The judge raised a hypothetical scenario in which a different outcome in the 2016 election could have changed the constitutionality of the exact same executive order.

“If a different candidate had won the election and then issued this order, I gather you wouldn’t have any problem with that?” Niemeyer asked.

Jadwat stumbled over his words and avoided answering the question directly.

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Niemeyer, a President George W. Bush appointee, repeated his question.

“We have a candidate who won the presidency, some candidate other than President Trump won the presidency and then chose to issue this particular order, with whatever counsel he took,” Niemeyer said. “Do I understand that just in that circumstance, the executive order should be honored?”

“Yes, your honor, I think in that case, it could be constitutional,” Jadwat said.

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Judge Shedd then chimed in, asking Jadwat if the “order was legitimate on its face.”

“I don’t think so your honor,” Jadwat replied. “The order is completely unprecedented in our nation’s history.”

Even if the Trump administration prevails in the 4th Circuit, the ban will not immediately go into effect.

The 9th Circuit Court of Appeals will begin hearing another case on Trump’s travel ban next Monday — a result of U.S. District Court Judge Derrick Watson’s ruling that the president’s executive order violates the Establishment Clause of the Constitution.

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