Two federal judges, one in Hawaii and one in Maryland, have ruled against President Donald Trump‘s new travel ban, issuing temporary orders blocking it from being enforced. Thursday morning, a panel including Harvard Law School Professor Emeritus Alan Dershowitz discussed the latest developments, and how the order may fare if it ends up before the U.S. Supreme Court.
“Can you use the words of a Presidential candidate to strike down a law, an order, that would otherwise be constitutional?” Dershowitz asked, describing a main issue in these cases. Dershowitz said that a similar ban would be constitutional if passed by President Barack Obama, but because of Trump’s statements before he took office, it’s not. “That’s going to be a hard sell for the U.S. Supreme Court,” Dershowitz said.
During his campaign, Trump had often discussed banning all Muslims from coming into the country. The travel ban only targets six countries, but because those countries have Muslim majorities, and the President had discussed a ban on people of that religion, that poses an issue of discriminatory intent.
Dershowitz believes that ultimately, the high court will uphold most of the ban, but strike parts of it, depending on what standard they use. If they look at it from a religious freedom point of view, there will be a more rigorous standard that could be problematic for the travel ban, Dershowitz said. However, he added, if the court examines the case as a matter of Presidential authority and national security, it should get through.
Of course, this is if Trump doesn’t make any additional incriminating comments about the ban between now and then.
“In the end, if the President just stops talking, this will be sustained on appeal,” Dershowitz said.
[Image via CNN screengrab]