Omar C. Jadwat, an American Civil Liberties Union senior staff attorney, argued that the revised ban should be deemed unconstitutional because of Trump's anti-Muslim comments while on the campaign trail and after the election.

Judge Paul Niemeyer, an appointee of President Ronald Reagan, raised a hypothetical scenario regarding whether a different outcome in the 2016 election would have changed the constitutionality of the same executive order. In response, the ACLU attorney said the courts could have decided the same action taken by a different president was constitutional.

"We have an order on its face," Niemeyer said, pressing Jadwat about the hypothetical scenario. "We can read this order and we have no antecedent statements by a candidate about this order. We have a candidate who won the presidency, some candidate, president, other than President Trump won the presidency and then chose to issue this particular order with whatever counsel he took. … He issued this executive order. 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 answered.

Jadwat then avoided questions from the judges about whether the text of the order itself was unconstitutional. Jadwat said there may be nothing Trump could say now to make his campaign statements about banning Muslims from the U.S. not matter in cases concerning the travel ban.

Pressed by Judge Dennis Shedd, an appointee of President George H. W. Bush, about whether any repudiation of the campaign and post-election comments about a Muslim ban would satisfy Jadwat, the ACLU indicated there's not much Trump could say now.

"I think a simple repudiation might not, no, would not change the result," Jadwat told Shedd.

"Let me follow up then, what if he says he's sorry every day for a year?" Shedd said to laughter in the courtroom. "Would that do it for you?"

"No, your honor," Jadwat answered.

"Your honor, I think it's possible that saying sorry is not enough. That's true in a lot of circumstances, your honor."

Jadwat's argument hinged partly on the idea that the court should consider Trump's campaign comments about banning Muslims when ruling on the March executive order.

Acting U.S. Solicitor General Jeffrey B. Wall argued that the court should not look back on the president's campaign statements and should look to the text of the order. Wall said the president was responsive to earlier courts' http://www.washingtonexaminer.com/aclu-tells-court-that-trumps-travel-ban-is-unconstitutional-because-trump-created-it/article/2622474concerns when writing the new executive order.