Legal Scholar Alan Dershowitz On 9th Circuit Decision

SCOTT SIMON, HOST:

The last day has held a lot of drama over President Trump's executive order to ban immigrants from seven largely Muslim countries and the unanimous decision by three judges on the Ninth Circuit refusing to reinstate it. It looked like the White House might not appeal to the U.S. Supreme Court. Now officials say they will. Though, aboard Air Force One last night, President Trump didn't rule out withdrawing his order and signing a revised version. We're going to turn now to Alan Dershowitz, who is - well, he's Alan Dershowitz. And he's been critical of both the president's executive order and the Ninth Circuit's decision. Alan, thank you so much for being back with us.

ALAN DERSHOWITZ: Thank you.

SIMON: Help us understand what I'll refer to as your nuanced view. You don't - sounds like you don't like the ban but believe parts of it are not constitutionally sound.

DERSHOWITZ: There's no conflict between not liking a ban and not regarding all of it as unconstitutional. I don't think the ban is unconstitutional as it affects a family in Yemen who has had no contact with the United States and simply applies for a tourist visa to come see the Statue of Liberty. I'd love to see them come, but they have no constitutional or - property or other cognizable right. And so I think the court made a mistake by considering those cases together with people who have green cards and people who have legitimate visas. And so I do think that if the Trump administration appealed it ultimately to the Supreme Court, they'd win a partial victory.

But it would take them a long, long time to do it because I don't think they're getting a stay - that would cause chaos at this point - to reinstitute the ban and then maybe undo it a few weeks from now. So I think that it's a wise decision by the president to consider issuing a new order that's much more narrowly drawn and that could survive constitutional attack.

You talked about a drama. The drama will continue. We're going to see continuing checks and balances of this administration's approach to immigration. And the checks are going to come not only from the courts, but from the states as well. It's a new phenomenon that states can now sue the national government and become a kind of check and balance on the excesses of the federal government.

SIMON: And what do you think of that? Is that a healthy thing for this country?

DERSHOWITZ: I think it's a healthy thing if it's kept in check. I don't think states should be given broad, broad standing to represent people who otherwise would have no standing to challenge. But I think states do have an interest. Their tax base, their universities, their hospitals are affected by an immigration ban. And so I think we need, as you put it, a nuanced and calibrated approach to this problem that neither the Ninth Circuit nor the Trump administration has given us thus far.

SIMON: And is it a Muslim ban in your judgment?

DERSHOWITZ: No. I think it's rhetoric to call it a Muslim ban. That's, of course, what he campaigned on. But he also campaigned on saying Islamic terrorism is the danger, not just terrorism. He was different from the Obama administration. And so he picked seven countries originally focused on by the Obama administration, all of which are Islamic. It wouldn't have saved it if he had added Armenia, for example, which is a Christian country.

You can focus on religion if religion is relevant to a secular purpose. For example, it says that minority religions will be given preference. That's acceptable. When the Jews were being persecuted by the Nazis in 1944 we passed the War Refugee Act, which focused on rescuing Jews, a religious group. But if the religious group is the subject of the persecution based on their religion, it's perfectly OK for a First Amendment-bound society to emphasize their rescue, just as it is perfectly OK to emphasize the fact that many, if not all of the perpetrators of Islamic terrorism, come from countries with a history of supporting terrorism.

It doesn't have to include all the countries. Would it have been better if it included Egypt and Saudi Arabia? That would have made it even more Muslim in its orientation, but it would have covered two countries that contributed much too much to 9/11.

SIMON: So we've got about 15 seconds left. That's your advice as a legal scholar. As a citizen, do you like orders like this?

DERSHOWITZ: No, I don't. I think we have enough in place. I don't think we need this order. But as a lawyer, I have to say what I think the law is. When I first made this proposal, people laughed at it. But I think the administration realized that's the best course of conduct to follow. It potentially gives us a win-win, protects our citizens and at the same time defends the Constitution.

SIMON: Alan Dershowitz, thanks so much for being with us.

DERSHOWITZ: Thank you.

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