ALI VELSHI (HOST): A number of people opining that, partially because of the make-up of the Supreme Court, this particular executive order moving its way to the Supreme Court may not be good for the Trump administration.
JESSE WEGMAN: I think in a normal administration and with a rational president, you might see maybe a resistance or hesitance to approach the court on this. He's lost in virtually every judicial forum that they've defended the ban in. And, you know, I think what you would be very likely to see happen if they do take it to the court and the court did accept the case is probably another loss. Now, this is a preliminary stage of the case, so there's a long road ahead but --
VELSHI: So I was speaking to a constitutional lawyer last night who said that whether or not you agree with the merits of the case, that's actually their strongest part of the case. In other words the procedural stuff, the political stuff, the bungled rollout -- if they were to concentrate on a new executive order or a refined executive order, they may have a better chance of saying, on the merits, the federal government suffers more harm than the states argue that they do.
WEGMAN: That sounds like a good argument to me. I mean, I think it's clear that their best course right now would be to go back and to fix the order. The Ninth Circuit in its ruling gave them plenty of opportunities and plenty of hints about how they might do that. On the other hand, you have President Trump's tweets, and this is sort of an endless headache for --
VELSHI: Do you think it influences judges? Because it's not just that they're an irritant. It's the idea that he has said that the courts shouldn't have or don't have the right to question the elected commander in chief's authority when it comes to national security. And the ninth circuit court of appeals seemed to imply they always have the right.
WEGMAN: That was the Justice Department's argument, and that was a plausible argent to make. They lost it this time, but --
VELSHI: President Obama made the same argument, George W. Bush made the same argument. We have seen a lot of executive presidencies.
WEGMAN: That's true, but what you haven't seen from either President Obama or President Bush is personal attacks on the judiciary, threats to the judiciary, and basically preemptively blaming the judiciary for any terrorist attacks that might happen in the future because they are following the law and the Constitution.I think that's where you see judges stepping back and saying this is not the same as other assertions of executive authority we've seen.
