How both sides see the legal challenge on Trump’s travel ban

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Chicago area immigration attorney Diana Mendoza Pacheco offers her assistance to arriving passengers at O'Hare airport in Chicago, Illinois, U.S. January 30, 2017. REUTERS/Kamil Krzaczynski - RTX2YWOD

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JOHN YANG: Now to the constitutional showdown over President Trump’s executive order on immigration.

For the first of two looks at what’s at stake, we are joined first by Washington State Attorney General Bob Ferguson from Seattle. It was his suit that led to this weekend’s temporary shutdown of the ban.

Attorney General Ferguson, thanks for joining us.

BOB FERGUSON, Washington State Attorney General: Thanks for having me on.

JOHN YANG: If you — if the court lifts this ban, lifts the temporary restraining order, will you appeal to the Supreme Court?

BOB FERGUSON: Well, to be crystal clear, I will use every tool I have to make sure that this unconstitutional executive order doesn’t stand.

That said, we’re confident the Ninth Circuit will affirm what Judge Robart, who was appointed, of course, by President George W. Bush, will affirm his decision to grant that TRO.

JOHN YANG: I assume you’re anticipating if he does keep it in place that the Justice Department will take it to the Supreme Court. What’s your sense of how your chances would fare on the current court?

BOB FERGUSON: Well, I feel very confident.

As I mentioned, Judge Robart is a very serious, well-respected judge appointed by President George W. Bush. And he took the significant step of granting a temporary restraining order. There’s a high hurdle for a lawyer to meet in a courtroom to get a judge to grant a TRO, a temporary restraining order.

So, given that and the fact the Ninth Circuit declined to give an emergency stay a couple nights ago, we feel confident with our case not just at the Ninth Circuit, but frankly all the way up to the U.S. Supreme Court, if that’s what it comes down to.

JOHN YANG: And all this is right now is just over this temporary restraining order. You would still have to go back for a trial on the merits before Judge Robart in Seattle, is that right?

BOB FERGUSON: That’s correct, although we feel confident there, because in order to grant the temporary restraining order, one of the criteria that the judge must conclude is that the state has a high likelihood of prevailing on the merits.

He’s already reached that conclusion that we’re likely to prevail once we get to the merits before the judge.

JOHN YANG: Now, the Constitution gives the president authority to deal with immigration, to conduct foreign affairs and address immigration.

Congress in the immigration law gives the president the power to restrict or suspend the entry of people he may deem appropriate. Why do you argue that this is unconstitutional?

BOB FERGUSON: Well, it’s pretty straightforward.

Yes, the president has broad authority. We don’t question that. But what the federal government is literally arguing, and that your viewers should be aware of, is they’re arguing that it’s unfettered, that the court cannot look behind any motivation for that order or whether or not it’s constitutional.

And that has never been the law and simply cannot be the law. And we are a nation of laws. And nobody can ignore our Constitution. No one’s above the law. And that includes the president of the United States.

JOHN YANG: If this executive order had just called for the extreme vetting, as President Trump calls it, and not specified countries, not given preference to Christians — well, it gives preference to religious minorities in these countries, which means Christians and other religions — would that have removed the constitutional objections, in your view?

BOB FERGUSON: Well, I’m often asked about different permutations that might solve the significant problem the federal government has.

What I can say is, there is pretty significant vetting going on. I just returned from Sea-Tac Airport here in Washington State, where I met individuals who had been denied entry to the country as a result of the president’s executive order, but are now back in.

And in one case, he had gone through a through a two-year process to get his visa. He’s now joining his wife, who’s a citizen of this state, and his cousin, who is a graduate of Washington State University and works at Boeing. These are folks who would be great additions to our life in Washington State. And that’s happening all across the country as well.

JOHN YANG: So, we’re learning that the judge has asked — the appeals court asked for oral arguments today.

Give us a preview. What are you going to be saying before this three-judge panel?

BOB FERGUSON: So, you have news that I just am hearing for the first time.

So, we’re not surprised if there’s oral argument. We anticipated that would be the case for an issue of this magnitude. And we will make the same case, frankly, that we made before Judge Robart, that there can be no unfettered discretion for a president, that you have to look behind what he’s doing here, and that we find in this case that it violates various constitutional provisions, and also violates specific statutory provisions as well.

So we’re confident we will prevail.

JOHN YANG: The president has been tweeting about this. He said that this stay, this temporary restraining order, puts our country in such peril, he says. If something happens, blame him, meaning the judge, Judge Robart, and the court system.

How do you respond to that?

BOB FERGUSON: Well, look, a couple things.

Number one, as a lawyer, his comments about the judge being a so-called judge, for example, or statements like that are deeply concerning to anyone who cares about our judiciary.

Number two, my wife and I, we are raising our twins, our young twins, to be gracious in victory or defeat. And President Trump is obviously having a very difficult time handling the defeat that he suffered before a federal district court judge.

JOHN YANG: What about his underlying argument, though, that this is allowing, this could allow a terrorist to come into the country?

BOB FERGUSON: What did I would encourage the president to do is to draft an executive order that’s constitutional. That’s his job. That’s his responsibility.

My job and my responsibility is to make sure that everybody, including the president, plays by the rules and follows the Constitution. And in a courtroom, it is not the loudest voice that prevails. It’s the Constitution. And that’s why I think we’re prevailing right now.

JOHN YANG: Attorney General Bob Ferguson from Seattle, thank you very much.

BOB FERGUSON: Thank you.

JOHN YANG: And now for a different take on President Trump’s executive order, Republican Congressman Ted Yoho of Florida joins us from Capitol Hill.

Mr. Yoho, thanks for being with us.

I don’t know. I hope you were able to hear the attorney general from Washington.

REP. TED YOHO, R-Fla.: Yes, I was. Yes.

JOHN YANG: What do you say to him? He says this violates both the Constitution and immigration law. What do you say to that?

REP. TED YOHO: I disagree with that.

I think the president — the executive, regardless who it is, has the ability to decide who comes in and doesn’t if it’s a national security risk. And all he’s asking — I have read the executive order — all he’s asking is put a pause on it so that we get the metrics right, so that we can do the background checks correct.

I don’t see a problem with that. And he’s got in there where you come back in 30 days, reassess it, 60, 90, and 120 days.

This is a pause. This is not a ban, complete ban. It is a pause. And I think anybody that is concerned with national security, and if you look at our Constitution — he kept talking about being Constitution — the Constitution states very clearly that the number one task of our government is to provide for the common defense and protection of this country.

And I think, when you look around the world, other areas that have not done this, I think they’re wishing they would have been a little bit more stringent in the examination of people coming in, in the refugee program.

You know, look at Belgium, look at Paris, look at Germany. And I think this is a time that we have to do that. And it’s — again, it’s a temporary pause. And people, I think, just need to calm down, let us work through the process.

The courts will work this out. But I think it’s also good that it brought to light how we have to fix our immigration policy. So I welcome that, too.

JOHN YANG: And the opponents of this are also arguing that — in their court challenge, that this creates — even this ban, this temporary — temporary pause, as you call it, as you say, would create immediate and irreparable injury, in employment, education, business, family relations and freedom to travel.

How do you respond to that?

REP. TED YOHO: You know, I think those are talking points that people are throwing out there.

There is going to be some inconvenience. But how inconvenient was 9/11? How inconvenient were the attacks in Belgium and Brussels? Those were extreme consequences that came from not vetting people properly.

We don’t want to make that mistake. Would you rather make the mistake and err on the side of caution or wait until something happens and then answer to the American people, why you didn’t vet these people properly?

JOHN YANG: In the last Congress, you were on the House Foreign Affairs Subcommittee on Terrorism.

Are these countries, the countries that are specified in the executive order, given your experience on that panel, are these the countries you would have chosen?

REP. TED YOHO: I think these are good countries to put on there.

You look at Syria, you look at Somalia, you look at these other ones, they don’t have the infrastructure or the I.T. to go back and look at somebody’s birth record, their history, their work records.

You look at other countries, and we hear, well, Saudi Arabia is not on, and that’s where the 9/11 terrorists came from, or the majority of them. We have sat down with Saudi Arabia, the UAE. In Egypt, they have good technology. They have good I.T. systems where we can do these background checks. In fact, they have beefed that up since then.

And so we feel comfortable with there. But look at Syria. It’s a nation ravaged with war that they can’t go back and look at these records, or Somalia. You can’t go in there in a country like that.

Then you look at the people that have infiltrated the refugee programs. We know they’re using fake passports. We know countries that are complicit making fake passports.

And so let’s get this right. Let’s let people calm down and make sure that we go through the vetting process, and then we will get through this.

JOHN YANG: If the courts were to block this for longer or even maybe strike it down, is there a congressional fix for this?

REP. TED YOHO: Yes. Sure.

It’s going through and doing legislation, passing it in the House and the Senate, and the president will sign it. And these are things that will be stimulated. This is a catalyst that tells us that we should go ahead and get these processes done. So, yes, for sure.

JOHN YANG: And let me ask you about President Trump’s tweets.

I know you were elected as a member of the Tea Party. You believe in the Constitution and the three branches of government.

REP. TED YOHO: Absolutely.

JOHN YANG: What do you think of him saying — calling this judge a so-called judge and saying, if something happens, blame him?

REP. TED YOHO: Well, you know, Mr. Trump has his own style, his own technique, his own uniqueness.

It’s not something I probably would have done, but, again, that’s the way he has evolved to this point in his life. And it’s worked well for him. And I expect you’re going to see more of that.

That’s a minor thing compared to what he’s trying to do. He’s putting national security in front, where it needs to be. And we have had such a lapsed process over the last probably 15 years, that it’s time that somebody stands up and does that.

And when you do that, when you have the leadership and the strength to do that, people get upset. And it just takes somebody willing to stand up and take the arrows for that. And, again, it’s a pause. It’s not a ban.

JOHN YANG: And, also, let me ask, finally. You were very critical of President Obama for his executive orders, for going around Congress.


JOHN YANG: How is this different? Why is this case different, in your mind?

REP. TED YOHO: I think the big thing is, this centers on national security.

When you look at what President Obama did with the executive order November 20 of 2014, he was giving a blanket amnesty to five million people that came into this country illegally. Again, you can’t vet that many people properly.

And you can’t use a blanket order for that. That’s not discretionary review of those type of individuals.

President Trump, on the other side, is standing up on the — erring on the side of caution on a national security basis that I think we all should applaud, that we’re putting the country first and the Constitution of protecting and preserving our freedoms here.

So, that’s where I see a difference. And if you look at what President Obama did, right before he got out, he removed wet foot-dry foot on our Cuban Adjustment Act. And nobody said a word about that, but yet he did the same thing, and I applaud him for doing that.

JOHN YANG: Representative Ted Yoho, thanks for joining us.

REP. TED YOHO: Yes, sir. Have a good evening.

JOHN YANG: Thank you.

The post How both sides see the legal challenge on Trump’s travel ban appeared first on PBS NewsHour.