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February 10, 2017 5:51 pm

Alan Dershowitz: Precedent Trumps President Trump

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Courthouse for Ninth Circuit Court for Appeals. Photo: Wikipedia.

Courthouse of the US Court of Appeals for the Ninth Circuit. Photo: Wikipedia.

According to three judges of the US Court of Appeals for the Ninth Circuit, legal precedents by the Supreme Court doomed President Trump’s Executive Order limiting entry into our country.

This decision creates a conundrum for the Trump administration. They may very well win if and when the case gets to the Supreme Court, especially if Judge Neil Gorsuch is sitting in the ninth seat. The Circuit Court decision, despite its unanimity, is questionable on the law. It extends Constitutional protections to foreigners who have never been in the United States, have no connections to our country and have no Constitutional right to come here.

Consider a family from Yemen, who apply for a tourist visa and are turned down. They couldn’t hire a lawyer to bring a lawsuit in the US and expect to win. The courts would rule that they had no “standing” or viable legal claim. Contrast that family with one already here on an academic visa or with a green card, who are deported or refused re-entry after a trip back to their home country. They would have standing and a plausible claim that their exclusion violated their constitutional rights. But the Ninth Circuit refused to distinguish these cases, ruling instead that the Executive Order was probably unconstitutional regarding all who seek to enter the United States from any of the seven countries originally designated by the Obama administration.

This ruling went beyond what even the State of Washington asked the Federal District Court to declare unconstitutional. It also extended the concept of standing well beyond existing precedents. And it interpreted the Establishment Clause of the First Amendment – “Congress shall make no law respecting an establishment of religion” – more broadly than any previous court, relying on campaign rhetoric by candidate Trump and a media interview with Rudy Giuliani.

The bottom line is that the Trump administration would have a good chance to snatch victory from the jaws of defeat, if they can get the Supreme Court to decide the case on its merits. Total victory would not be a certainty even in the High Court, but partial success might well be achieved.

The problem for the Trump administration is that it would take time for the case to reach the Supremes.  In the meantime, the Executive Order would remain inoperative as a result of the stay ordered by the District Court and affirmed by the Ninth Circuit. It is unlikely, though not impossible, that the stay would be lifted by the Supreme Court or by an en banc decision of a larger number of judges of the Ninth Circuit. But if it isn’t, the stay could remain in effect for many months. Hence the Trump conundrum.

President Trump has said that enforcing his Executive Order is necessary to protect our national security: “The security of our nation is at stake.” He has even gone so far as to claim that if there were any acts of terrorism now, the judges would be to blame. But that’s simply not true. President Trump has the option of re-drafting the Executive Order so as to eliminate its constitutionally questionable aspects, while preserving its most important protective provisions. A re-drafted order could apply only to persons without green cards or other current connections to the United Sates. It could make other changes as well, which would reduce the likelihood that the court would strike it down.

Issuing a re-drafted order would constitute an implicit admission by the Trump administration that there were problems with the original order. And President Trump is not likely to admit he was wrong. But if he really believes that the security of our nation is at stake, he must put our security before his ego. In his press conference on Friday afternoon, Trump implied that he and his team may be working on a replacement or supplementary order. I have been urging them from day one to follow this route, and I hope they will do so.

So let the current case proceed on its slow track to the Supreme Court, but in the meantime let the President work with the new Attorney General and his national security team to draft a revised order that protects us from terrorism without compromising constitutional rights. That would be a win-win for all Americans.

Alan M. Dershowitz is Harvard’s Felix Frankfurter Professor of Law, Emeritus and author of Taking the Stand: My Life in the Law and Electile Dysfunction: A Guide for the Unaroused Voter. A version of this article originally appeared in The Hill.

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