Alan Dershowitz Says What Media Won't: Same Travel Ban Under Obama Would Have Been Approved

March 20th, 2017 8:15 AM

On Saturday, Harvard law professor, lifelong Democrat and dogged Bill Clinton defender during the late-1990s Monica Lewinsky saga Alan Dershowitz was interviewed on Fox & Friends about U.S. Court rulings in Hawaii and Maryland halting enforcement of the Trump administration's revised temporary travel ban against six countries. Dershowitz, who strongly disagrees with the judges' rulings, made a point which the press has almost uniformly failed to note, and which echoes something I am told the State of Hawaii's Attorney General openly admitted during his court arguments, namely that if former President Barack Obama had issued the exact same order during his administration, it would have been upheld, or even litigated. But because it was Donald Trump's order, it was halted.

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Here is the related video segment:

Transcript (bolds are mine throughout this post):

SANDRA SMITH: President Trump refusing to back down on extreme vetting, as the Trump administration formally filed an appeal against the ruling that blocked the President's latest travel order.

PETE HEGSETH: But our next guest is a lifelong Democrat and says the executive order should have been upheld in court in the first place.

CLAYTON MORRIS: Defense attorney and Harvard law professor emeritus Alan Dershowitz joins us now to weigh in on this. Alan, great to see you this morning. Did these judges overstep their bounds?

ALAN DERSHOWITZ: I think they did. The idea of focusing so heavily on campaign rhetoric and essentially saying, "Look, if Obama had issued the very same order with the same words, it would be constitutional. But if Trump issues it, it's unconstitutional, because he said some things about Muslims in the runup to the campaign, and Rudy Giuliani said some things, and other people said some things" — that's not the way the law is supposed to operate.

And finally, the Trump Justice Department is getting smart. They're appealing this not to the Ninth Circuit, where they're likely to get an adverse ruling. They're appealing it to the Fourth Circuit. And the Fourth Circuit is a much more conservative court, and much more likely to uphold the travel ban. And then if the case goes to the Supreme Court and ties 4-4, Trump wins.

PETE HEGSETH: So professor, what you're saying is, in studying the Constitution, what candidate Trump said about, say, a so-called Muslim ban or whatever, that you're sort of psychoanalyzing him as a candidate and applying it to their constitutional theory. And that's, is there a precedent for that?

DERSHOWITZ: Well, I actually said that this wasn't constitutional analysis, it was psychoanalysis.

There is precedent in extreme cases where legislators, in enacting a statute, say things you can sometimes look to the legislative intent.

But I've never heard of a case where the rhetoric of a candidate — ambiguous rhetoric to be sure — because I do not believe this is a Muslim ban.

Focusing on a country like Iran, the greatest exporter of terrorism. Not only no vetting. It sends terrorists out to kill Americans. Iran has so much blood on its hands of Americans and American allies. To exclude a country like Iran from the list would be absurd. And the list, although for a different purpose, was originally designed by President Obama. So how can you say that the inclusion of the six countries on the list was motivated by what Mr. Trump said when he was candidate Trump? That's just not good legal analysis.

And here I'm putting my reputation on the line, I predict that if the case gets to the Supreme Court, the Supreme Court will uphold the major provisions of this ban.

Dershowitz may be underestimating the Ninth Circuit, and the general willingness of judges in either the Ninth Circuit or the Fourth Circuit to side with Trump.

In an unusual move reported at (court document is here) on Wednesday, five Ninth Circuit judges issued a dissent which ripped the ruling in Washington State which threw out Trump's original temporary travel ban.

To be clear, the matter at issue was whether the Washington State ruling should be vacated. That didn't happen, because courts generally don't do that without a specific request to do so by one of the affected litigants. Regardless, the five judges were merciless in their criticism of the original ruling:

In one of the most ruthless opinions issued of fellow panel judges, five judges from across the political spectrum in the Ninth Circuit went out of their way to issue an opinion about a dismissed appeal, to remind everybody just how embarrassingly bad the prior Ninth Circuit stay panel decision was on Trump’s travel ban. The five judges included the famed, and most respected intellectual amongst the Ninth Circuit, Alex Kozinski. The others included Jay Bybee, Consuelo Callahan, Carlos Bea and Sandra Ikuta. Nobody other than the original panel came to the defense of the original panel decision, a less than promising start for future approvals of district court interference in Presidential immigration policy.

... Aside from the procedural defects of the process, the five panel jurists then noted the deep legal problems with the panel’s order: its a-historicity, it’s abdication of precedent, and its usurpation of Constitutionally delegated Presidential rights.

... As the 5 judges note, “so long as there is one facially legitimate and bona fide reason for the President’s actions, our inquiry is at an end.” The issue is whether a reason is given, not whether a judge likes or agree with that reason. That means the executive order sufficed, and no further consideration of the reasons for Trump’s order were allowed.

The excerpts only scratch the surface of the judges' harsh criticism.

Press coverage of the second stay has almost uniformly stayed away from the assertion Dershowitz stated at the beginning of his interview: If Barack Obama had issued the exact same order, word for word, the order would have stood (and would not even have been contested); but because it was President Trump's order, its enforcement was halted.

That plain truth, which unmasks a portion of the judiciary as motivated by pure politics and not the law, was not stated in original coverage I found at NBC News, or at the New York Times. If that point has been plainly stated elsewhere except briefly on other television shows at the time of the ruling, I haven't heard or seen it.

Cross-posted at