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Dissecting The Laws Surrounding President Trump's Travel Ban


We'd like to hear another perspective on the president's executive action that bars people from certain countries from entering the U.S. That action, as you have been hearing, has been blocked temporarily in federal court while the administration prepares to defend it and those who oppose the president's order continue their fight as well. Yesterday, we heard from the attorney general in Washington state, Bob Ferguson, whose lawsuit against the White House order led to the temporary restraining order.

So today we thought we'd seek some additional insights from Jonathan Adler. He's a professor of law at Case Western Reserve University, where he teaches courses on constitutional law, among other areas. He's a contributor to the conservative outlet the National Review online, as well as The Washington Post's legal blog. He's been honored by the conservative Federalist Society for his teaching and his scholarship. Professor Adler, thanks so much for speaking with us.

JONATHAN ADLER: My pleasure.

MARTIN: Could you just help us understand what are the legal arguments on each side in this area, that each side is likely to make here?

ADLER: Sure. Well, for starters, it's generally been understood that the federal government has near-plenary authority to control who can or cannot come into the country. And what the White House is arguing with some force is that Congress has delegated almost all of that authority to the executive branch and in particular to the president. The White House's position is that what the president is doing here, whether or not we agree it's good policy, is well within the traditional power that the executive branch has exercised to control the nation's borders.

MARTIN: All right. What's the other side of that?

ADLER: Well, the other side of that is first that this policy, if not in word in its intent, embodies some form of impermissible discrimination. So the concern is that either by singling out individuals from particular countries or the suspicion that this is about keeping people out of the country of a particular religious background, this particular policy does not have the bare minimum of rationality we expect of any governmental action.

MARTIN: Now, I've asked you to focus our attention on the law here as opposed to the personalities involved. But I do want to ask you how President Trump's comments about the - Judge Robart, calling him a so-called judge, will be received by the judiciary. And does this cause concern?

ADLER: I'm not a fan of government officials making these sorts of comments about judges. As you may remember, President Obama was criticized for some comments that he made that, by comparison, were more mild than the current president's tweet. I think it's - particularly concerning is that the comment suggests that there is something improper about what the judge did.

The White House may believe - and they certainly do - that this judge, in issuing the temporary restraining order, exceeded what he should have done. But that's why we have an appeals process. In my view, it's not appropriate to go beyond saying we disagree and we're going to appeal. And certainly it's inappropriate to question the legitimacy of a validly appointed and confirmed federal judge.

MARTIN: Before we let you go, is this - I am asking you to speculate, and I apologize for that - but is this the sort of case that you envision will eventually go to the Supreme Court?

ADLER: It certainly could. There's another case out of - a decision out of Massachusetts where another federal judge took a very different position and largely upheld what the federal government did. Typically, when we see lower courts reaching different conclusions, that's a good indication that the Supreme Court's likely to get involved. And it could reach the Supreme Court rather quickly.

MARTIN: That is Jonathan Adler. He's a professor of law at Case Western Reserve University. He's the director for the Center for Business Law and Regulation. Professor Adler, thank you so much for speaking with us.

ADLER: My pleasure. Transcript provided by NPR, Copyright NPR.