Travel Ban Order Challenged in Court


Interviewer: Bringing in CNN Political Analyst and New York Times Deputy Culture Editor, Patrick Healy. CNN Legal Analyst and Criminal Defense Attorney, Danny Cevallos. CNN Political Commentator and Senior Columnist for The Daily Beast, Matt Lewis. And Criminal Defense Attorney and Constitutional Attorney, Page Pate. Wow. This is some panel, beautiful.

All right, let’s first look at what can happen going forward, all right? Page, we have… They can appeal to and bank full bench, 11 judges, the full Ninth Circuit, they can do that. They can go back to the district court and try to have a hearing on the merits here and see how that goes. They could go to the Supreme Court and they’re gonna be some issues there, I want you to tell us about in terms of whether the court would accept this appeal or they could redraft the order. How do you prioritize those?

Page: Well, there are a lot of different options they can take, but in my opinion, there’s only one smart option. And I don’t know if the White House is really considering smart versus not so smart. But, the right legal move here is to simply let the case go back to the district court, to have a full evidentiary proceeding, go through some limited discovery, and really flesh out these issues, so that there can be a full opinion, not just on the standing issue, not just on whether the court has a right to review an executive branch’s decisions in this area, but also on the constitutional arguments.

Once you have a full district court order then you can appeal that. You can go through the process, go back to the Ninth Circuit, and then eventually up to the Supreme Court. If they try to take it to the Supreme Court now, I think that court will be reluctant to accept it because this case is in a very preliminary stage. All we had at the district court level was a temporary restraining order. It was treated like a permanent injunction, but that’s still intermediate. It’s not a final decision. So, I really think the case should go back to the district court, then let it work its way up through the system.

Allison: Okay. So, Page, do you think that that’s what the Ninth Circuit Court decided was where it sort of fell apart for them?

Page: Well, Allison, I certainly think that’s part of it, and I’m just amazed that that lawyer was not prepared for that question. It is the most basic part of their argument that they have to convince the court that this executive order should not be carefully reviewed by a court. But, the answer was somewhat inconsistent. First, he said the president should not have his orders reviewed by a court, but then recognized that there are constitutional limitations to a president’s power even in the area of immigration, even if the reason is national security. Obviously, that was an important issue for the court, we read about it in the 29-page opinion, and I think now, even back at the district court or wherever this case ends up, these judges have told them the way to win the case on standing.

Allison: Gentleman, thank you very much for all of the analysis. It’s really helpful. Great to talk to you.

Page: Thank you.


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