Alan Dershowitz told CNN that he’s not surprised at all that the Hawaii court halted Trump’s 2nd attempt at a travel ban because, to this judge, it’s not about the travel ban at all but about what Trump said in 2016:
Here’s his comments:
The attitude of the court is that there can’t be any lawful order as long as candidate Trump said what he said and Giuliani said what he said. That makes anything that happens thereafter simply a cover for a Muslim ban. And so the whole effort to try to clean it up was futile.
Taking out the religious part of it which gave religious preference to discriminated-against groups – that didn’t matter. Because if the entire ban, no matter what it says, was badly motivated, then it’s struck down.
Now the problem is that the Supreme Court has taken exactly the opposite attitude when it comes to looking at motive and intent. They said you don’t look at motive and intent, you look at the words of the regulation and that’s what the Supreme Court will ultimately hold.
Dershowitz was then asked if he believed this was headed to the Supreme Court:
They’re going to go to the ninth circuit first and there it’s a crap-shoot. There you have to see what panel you get; there are twenty some odd judges, some of them liberal, some of them conservative. They’ll probably seek expedited appeal through the ninth circuit and up to the Supreme Court.
But I think even with eight justices, they have a very good chance of winning in the Supreme Court and if they get their ninth justice in there in a timely way, I think it’s an almost certainty that they would uphold at least the core of this newly revised travel prohibition.
I’m not saying it’s a good ban or a good prohibition, but there’s a difference between something being bad as a matter of policy and being unconstitutional.
There was nothing wrong with the first travel prohibition and there’s nothing wrong with this one. It’s either constitutional or it isn’t, and clearly Dershowitz believes it is and that this liberal court is wrong to rule on motive.