Alan Dershowitz Schools Van Jones on Constitutionality of Travel Ban

Late Wednesday evening, news broke that another liberal judge had put a temporary hold on the implementation of President Donald Trump’s travel ban. And during CNN’s Anderson Cooper 360, commentator Van Jones voiced his approval. “An action can be ruled unconstitutional if it's on the face of it, it looks like it's a good thing but there's an intent that's unconstitutional,” he argued, “There's a discriminatory intent here. And the discriminatory intent of the Trump administration is clear.

According to Jones, the reason the travel ban is discriminatory, and thus unconstitutional, is because during the election Trump announced he wanted a Muslim ban. “Donald Trump has said a gazillion and 50 times, I counted, that he wants a Muslim ban,” Jones joked, drawing laughter from the rest of the panel, both left and right-wingers.

But Harvard Professor Alan Dershowitz (who disagrees with Trump on the travel ban) found a major conflict in reasoning if the Supreme Court ruled on Trump’s intent as Jones framed it. “If it does, it will have to decide that words in an order can be constitutional when issue by Barack Obama but the very same words unconstitutional when issued by Donald Trump. That makes it very, very personal,” he explained.

Dershowitz reminded viewers that President Obama had selected all of the counties mentioned in the ban for needing additional scrutiny. “Well-motivated not on the basis of a Muslim ban, on the basis of a desire to protect the United States,” he continued, “but that becomes unconstitutional because of what [Trump] said during the campaign.”

Bizarrely, Jones seemed to ignore what Dershowitz had just said and the facts of the matter, as he claimed that:

I am no fool to get into a fistfight on national television with Professor Dershowitz. But I have to say that what President Obama was doing with those seven countries is not related to what Donald Trump is trying to do. Listen, the explanation that the Trump administration is giving is completely arbitrary and irrational. There are other countries that should be included under the rationale he's putting forward. The only thing that holds these countries together are majority Muslim countries. There’s no other criteria that holds up.

Sounding confused, Dershowitz quickly asked, “Name a country that's not Muslim that would come under a ban at this time?” Without hesitation, Jones started rattling off names of European countries, asserting that “if what you're concerned about is countries that have a history of extremism, there are European countries that do, yet none of them are included.

The Harvard professor shot him down in a heartbeat with the fact that “The European countries have mechanisms for sorting out dangerous people that these countries, President Obama said, don't have the appropriate mechanism.”

Dershowitz did agree that if Trump’s campaign comments were taken into account he would lose in court, noting that “The question is, is that the jurisprudence that the Supreme Court will apply? That's a tough argument to make.” But he ultimately believed that the Supreme Court would uphold the President’s travel ban. 

Transcript below: 

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CNN
Anderson Cooper 360
March 15, 2017
8:38:02 PM Eastern

VAN JONES: An action can be ruled unconstitutional, if it's on the face of it, it looks like it's a good thing but there's an intent that's unconstitutional. There is clearly an unconstitutional intent here. Donald Trump has said a gazillion and 50 times, I counted [laughter], that he wants a Muslim ban. And so, it's actually bizarre to expect a court to pretend what has happened hasn't happened. And to pretend this piece of paper is only what’s written on it.

There's a discriminatory intent here. And the discriminatory intent of the Trump administration is clear. I am proud that this judge actually responded to it, but something else happened tonight which is wrong. You heard a veiled threat from the President of the United States to break up the ninth circuit because he did like a ruling. This the kind of stuff that authoritarian blowhards do all across the world. They start threatening judges, they start threatening the judicial branch. That is completely unacceptable. And so, I think what you’ve got to be able to recognize here is: you have a judge that’s willing to look at reality and the reality is this is a discriminatory intent here and unconstitutional.

COOPER: Professor Dershowitz though, you argue that it is constitutional. Why do you disagree with Van on this in terms of the intent? And why is candidate Trump's statements not important here?

ALAN DERSHOWITZ: Well, that's the question that the Supreme Court will have to confront. If it does, it will have to decide that words in an order can be constitutional when issue by Barack Obama but the very same words unconstitutional when issued by Donald Trump. That makes it very, very personal.

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After all, the selection of these countries, seven of them, was made by Obama, well-motivated not on the basis of a Muslim ban, on the basis of a desire to protect the United States. Then President Trump selects six of those seven countries, the very same counties, but that becomes unconstitutional because of what he said during the campaign.

That's the issue the Supreme Court will have to confront. And I think it's very difficult to predict how it will come out but I think that the law tends, at this point, to support the conclusion that, if the statute on its face is constitutional that the statements made during his campaign do not turn it unconstitutional. But it could come out the other way, but my prediction is it will come out in favor of the Trump administration based on that logic and that argument.

COOPER: Van?

JONES: I am no fool to get into a fistfight on national television with Professor Dershowitz. But I have to say that what President Obama was doing with those seven countries is not related to what Donald Trump is trying to do. Listen, the explanation that the Trump administration is giving is completely arbitrary and irrational. There are other countries that should be included under the rationale he's putting forward. The only thing that holds these countries together are majority Muslim countries. There’s no other criteria that holds up.

DERSHOWITZ: Name a country that's not Muslim that would come under a ban at this time?

JONES: France. How about France?

JONES: Let me tell you, just because France is in Europe and Denmark are in Europe, if what you're concerned about is countries that have a history of extremism, there are European countries that do, yet none of them are included. My only point is this -- let me –

DERSHOWITZ: The European countries have mechanisms for sorting out dangerous people that these countries, President Obama said, don't have the appropriate mechanism. Look, I agree with you, this is a complex issue, and I agree with you that if they look at the statements made by President Trump, he will lose. The question is, is that the jurisprudence that the Supreme Court will apply? That's a tough argument to make.

Nicholas Fondacaro
Nicholas Fondacaro
Nicholas C. Fondacaro