On Tuesday’s broadcast of MSNBC’s “Hardball,” host Chris Matthews remarked that he’s worried about courts making policy decisions and going beyond their expertise while discussing the court battle over President Trump’s immigration order with Yale University Law Professor Harold Koh.
Koh said, “I think the question is whether the status quo is defective, and whether we needed this Muslim ban. If it was a terrorist ban, then why don’t they go against countries that actually sent us terrorists. Instead, they went against a bunch of countries where not a single person caused a fatal terrorist attack.”
Matthews responded, “What about Hezbollah, do you think — you don’t think Iran is a threat to the United States in terms of Hezbollah and it’s support for that terrorist group around the world? How can you argue that Hezbollah is not our enemy?” Koh countered that he wasn’t arguing that.
Matthews then cut in, “But you said that these countries don’t pose a threat to us because of, you know, the way that you count — you calculate the history. But certainly, in real time, right now, Hezbollah is our problem…from Iran.”
Koh then stated, “The question is, what kind of system we need and the system that we had was extreme vetting. So, President Trump said, I want extreme vetting. What he didn’t notice is that’s what we already had. It’s an individualized determination … And so, we had a system where, if you pose a threat, then you have to individually extremely vetted. And they proved that there was no new threat. So, the national security officials who filed the declaration, you saw their brief had included two secretaries of state, four former directors of the CIA, four people who on the threat stream one week before, Chris, one week before, and they said, there is no new threat. And, our system there’s no reason to think it’s not working.”
Matthews then asked, “[H]ow do you know, as a legal scholar, where our threat comes from? I mean, Hezbollah works out of Lebanon, but it’s actually being financed always by Iran. … This is very complicated, and if you’re a judge, and you’re wrong about this, and we do suffer an attack from one of these countries, what do you say? It’s not my fault?”
Koh answered, “What the judge said to the government is, prove there’s a threat that’s not being addressed –.”
Matthews cut in to say he was asking about a threat that would occur after the ruling, and that presidents are responsible for what happens in the future. Koh asked what evidence of a new threat there was.
Matthews then asked if judges were “immune to consequence?” Koh answered that they weren’t, but that judges have to rely on facts and whether the response to them is consistent with the law.
Koh added that presidents don’t get deference when they don’t make “reasoned” decisions “or throw out procedures that are working without explanation, and causing chaos in the process.” Matthews responded that he was talking the buck ultimately stopping with the president.
Later, Koh stated that the executive order banned people based on “stereotype,” “religion,” and “national origin.” Matthews agreed, but added that Trump won, and he decided to go another way, and that this will be tested in court, but expressed concern about “arguing over policy in a court room –.” And that if it comes down to a question of what’s good policy, he’d put his money on the politicians.
Matthews further stated that the president is responsible for the country’s protection, “If they obey the law, but this consequential — we have to observe the consequence here.”
Matthews stated, after questioning from Koh, that the president gets their power from the Constitution, and the Supreme Court is the final say in what’s constitutional, but that he worries about courts talking policy and going “beyond their ken.”
Matthews concluded that he agrees with Koh, but “I worry about policy decisions made by judges.”
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