On Monday’s broadcast of MSNBC’s “Morning Joe,” George Washington University Law Professor Jonathan Turley stated that while he thinks President Donald Trump’s order on immigration from some Middle Eastern countries isn’t a good idea, legally, “the odds are in his favor.” And “This is not a Muslim ban.”
Turley said that the order was a “terrible mistake.” But that this doesn’t factor into the legal dynamic. He continued, “And president’s power is at its zenith at the border. The courts have historically given great deference to the president. He has the advantage here, putting aside all these objections, historically, presidents have been allowed to do very similar things. In fact, President Obama, just last year, told the Supreme Court, courts should not second-guess presidents on immigration, national security –.”
He further stated that the Trump administration has “a lot to use. People, I think, have been underestimating the precedent here that can be marshalled by the Trump administration. He has the advantage on the law, because the Supreme Court has recognized this kind of plenary authority in a president to control these borders. And a court will not view this as a Muslim ban, at least I don’t expect them to.”
Turley said that while there was “some good groundwork to make a challenge” it “probably” won’t overcome the president’s authority. And “presidents historically have said that these regions, or these areas are matters of concern. The president here is saying, I want to freeze refugee entries until we can have a better vetting process. What you’re asking a federal judge to do is to substitute his or her judgment for a president saying as a national security matter. They will not.
He further said, “[T]here was case in the ’70s in which a Marxist was kept from coming into the country, in my view, it was a terrible decision. He was being kept out because they didn’t like his views. The Supreme Court still upheld that decision and established, well, it did establish that the courts could review these types of questions. The standard was very, very low as to whether the president could state an articulable or bona fide reason. He has. You can disagree with it, but he has done that.”
Turley added, “I think the odds are in his [Trump’s] favor. But I also think also people need to argue against what is there, not what is more easy to attack. You can’t — the ACLU has said in the filings, this is a Muslim ban. And that’s a very — that would be a great thing to challenge. It’s not this thing. This is not a Muslim ban. A court is not going to read into it that this is a religious test, because it excludes most of these other countries. So, there’s plenty of reasons to object to this order without creating something it’s not.”
He concluded that DOJ lawyers went into the fetal position when former New York City Mayor Rudy Giuliani (R) said that Trump asked how to do a Muslim ban legally.
(h/t RCP Video)
Follow Ian Hanchett on Twitter @IanHanchett
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