i'm michael smerconish coming to you from philadelphia. we welcome our viewers in the united states and around the world. last night a federal judge in seattle halted the refugee travel ban nationwide. president trump already tweeting that this means, quote unquote, big trouble. where does this leave them and where does it leave us? the ban was already sparking campus outrage not just from students but from presidents, as 48 college heads wrote president trump a protest letter and eight institutions joined a lawsuit to end it. and is the reason the president promised to destroy the rule preventing nonprofits, including

churches, from making political endorsements because ivanka and jared kushner made him dial back his anti-lgbt stance? and not even the super bowl is safe from politics. our new commander in chief happens to be a pal of the patriots owner, coach and quarterback. i'll ask espn's stephen a. smith how this will all play out tomorrow. but first, permit me to advise our new president. mr. trump, a federal judge appointed by george w. bush has just given you an out. you kept your campaign pledge. you initiated a muslim ban, or as you would say, a ban on seven majority muslim nations. but now comes a temporary restraining order staying the travel ban. look at it as a gift. the ban was ill conceived. it was clumsily rolled out, it provided recruitment fodder for our enemies and it focused on the wrong threat.

it addressed refugees who heretofore have not been support for terror on our shores. the cato institute estimate america's chance of being killed by a refugee is about 1 in 3.64 billion annually. the prudent path would be to tell your supporters you gave it a shot and instead move on. instead the white house has already vowed to fight what it initially called an outrageous ruling before deleting the rule outrageous from the statement. that's a mistake. where the full litigation of this issue could easily take longer than the ban itself would have lasted. what do you think? tweet me @smerconish. joining me, a constitutional scholar. jeffrey rosen is the president of the national constitution center. jeffrey, a tro comes with a high threshold.

may have that to the as yudienc. in order to get a temporary restraining order, there had to be a high likelihood of success of the order. he noted that the order bans christians and seems to engage in religious discrimination and for that reason he said it was necessary to issue the ban nationwide. >> the order is at odds with another order from a federal judge in boston. so how to reconcile those two competing views? >> well, ultimately the supreme court could weigh in but what's so significant is a single federal judge can ban an order for the entire nation. in this order the judge cited the order banning president obama from deporting the parents of illegal immigrants. and the transgender policy by president obama was also blocked by a single district judge. until lower federal courts can

disagree, this ban will remain in place. the appellate courts will hear it. if there's a disagreement among appellate courts, the litigation could take longer than the ban itself. >> jeffrey, we're having this conversation at the end of a week which saw the new president make his selection for replacement for the seat that had been held for antonin scalia. it is ultimately the supreme court that would have to determine the outcome in this case? >> the supreme court could choose to not get involved? and hawaii, virginia, where there's a separate order to deport people, given the disagreement among lower federal courts, that's the kind of situation where the supreme court ultimately usually does step in. >> before we get to that step, jeff riff rorey rosen, you know

different circuits in the nation. with regard to the travel ban that has just been stayed by the judge on the west coast, to what circuit is this going and what is their reputation? >> i'm not going to be able to game that one out right away. but i can say the majority of the circuits are controlled by democratic appointees and the majority of federal district judges are democratic appointees. it will take a long time for the senate to tip that balance. there are many, many potential blocks to the implementation of this travel ban. >> confusion has reigned since the order was put into effect bit president. do you expect there will now at least be uniformity of approach and that all will be respecting the fact that the ban has been stayed? might some clarity come from this is this. >> it's possible and it's significant that the customs and border patrol did order the issuance of visas, which had probably been blocked. the administration told a virginia court that first 100,000 and then 60,000 visas

had been revoked. that will change now. the real drama is will the president comply. there's some reports the government is not complying with the virginia court's order to stop deportation of people at dulles airports. could you see a confrontation between the president and the courts of the kind that we haven't seen since the case where a governor stood at a courthouse door to stop an african-american student from being admitted. the supreme court unanimously ordered the admission and the president did comply. the question of whether president trump will comply with the order will create a constitutional drama of the most high significance. >> and do that point, final question, equally interesting will be to see what the response is from rank and file government employees where already there seems to be some blowback toward the president on a variety of his proposals. >> absolutely. there's a lot of confusion about what the state of the law is but faced with the possibility of this order, that may embolden

employees who are not inclined to enforce the travel ban and will make it all the more difficult to get national uniformity. but it's a huge deal. it's just a really dramatic example of how a single district judge, one federal judge, can enforce the constitution for the entire nation. >> jeffrey rosen, president of the national constitution center, thank you so much for your time and expertise. >> thank you, michael. >> how will president trump respond to this latest setback in here's a tweet just in this morning. quote, the opinion of this so-called judge -- hey, can i stop right there? hold on, just freeze the image. so-called judge? it's a federal judge appointed by president george w. bush. i try and so the office of the president respect in the way that he ought to be showing respect for a member of the federal judiciary with a lifetime appointment.

that's not right. frankly, i lost track of whatever the second half of that tweet was. celina zito is here thank goodness. hey, i'm sorry to drag you into this but come on, you're the commander in chief, you can't be disappointed with the outcome of a federal case and say, "well, the so-called judge." he did that in the trump university case. i thought it was appalling. >> but are you really surprised? i mean, this is the way that he communicates. every day, every minute, every hour we're breathlessly reporting on how surprised we are by his behavior. and while it is completely different from president obama, president bush, president clinton and so on, this is exactly what people voted for. whether you like it or not. the people that showed up to vote in the states that count, they wanted this disruption. they wanted this guy that talks the way he does.

now, that might not sit well with a lot of people, but this is who he is and it's not going to change. he's 70 years old. >> i mean, i get it, yeah, that's a good point, too. it's hard to teach an old dog new tricks. by the way, i love dogs, don't beat up on me for that. i don't mean salena. you know, it's one thing if you're talking about rosie o'donnell but the beating up of someone who has ali lifetime appointment and has been vetted by the senate, it bothered me. isn't it time prudently to fold his tent in he gave his supporters what they wanted, now he should move on rather than litigate this for a time period that would extend beyond the

band himself. >> you gave a good point. when i interviewed him last april, when i asked him about all the litigation that he faces, that's when he was a businessman. he said he doesn't go into a lawsuit or go into a fight that has to deal with litigation, with money, with consequence that he doesn't think he's going to win. that actually might be an option that he considers. i thought it was a really good point that you made. >> cnn has brand new polls out this shows most americans, 53-47, oppose his travel ban. that's part of the reason why i say it would be politically prudent to keep moving. otherwise it risks bogging down the remainder of his agenda. can you have the final word on that. >> look, i think this could have been handled better. i think he could have gone out there and said i really apologize for my harsh rhetoric

during the campaign but as your president, i know things that this will keep us safe and it's time to take a pause and relook at how we screen people. that would have been much better received. instead we're facing all this chaos. >> i recognize the backdrop from pittsburgh, pennsylvania. thank you, salena. thank you very much. >> thank you. >> tweet me @smerconish. "your reasoning regarding the ban is sound but you are trying to appeal to an unreasonable man." well, i think it makes sense all around, right? good for the country and frankly good for him politically. mr. president, if you're watching from mar-a-lago, i just gave you the out. >> up ahead, college campuses have always been a hotbed of activism from the student body but this week four dozen college and university presidents turned

activists sending the president a letter against the refugee ban. were they out of line? and it's super bowl weekend but this year one team has close ties with the president and politics have spilled on to the field. luckily, stephen a. smith is here. you're gonna love birds eye steamfresh vegetables. wait for it. in about five minutes you get delicious, premium veggies, steamed to perfection. now! ♪ ahhhhhhhhhhh... mmmm heavenly, right?

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came out strongly against the ban, first to their own universities and then a letter to the president saying if left in place, the order threatens both american high are education and the defining principles of our country." washington university at st. louis has about 50 students from the countries on the list and which hosted the presidential debate between trump and hillary clinton. joining me nicholas szep owe and carol swayne, who quote "trump's order is a bomb for christians, not a ban on muslims." mr. chancellor, i broadcast my radio show twice this year from your campus. i love your campus. why did you again out and get so

active along with your brethren? >> this great asset attracts talented people from all around the world. we're fortunate to be able to work with some of the finest students. i might know that we've recruited a great many faculty members from other countries. about 30% of our faculty were born in another country. america is a great country. our research university enterprise is world class. the executive order issued by the president undermines our effort to strengthen our ties internationally and undermines our effort to build collaborations that are going to contribute to a stronger, more vibrant u.s. economy. >> can i pick up on that word collaboration, because something that occurred to me is the fact we have 17,000 of these students studying in the united states, more than 12,000 alone come from iran. who would we rather iranians get

their news and information about the united states from, the supreme leader or those 12,000 who come here and study and go home and spread the word about the united states? >> it's very important that we draw students from all parts of the world. it's important for american education. the u.s. citizens who come to washington university benefit eno eo enormo enormously with the interaction from those students. those students who come from other countries are our ambassadors. in fact, under the leadership of president bush and secretary of state condoleezza rice, they embraced international higher education in the national interests. i think we need to affirm the importance of working collaboratively. there are global problems that we need to address together and the talented people from the

united states and from around the world should work together to address these problems. >> mr. chancellor, thank you so much for your time. >> thank you. >> professor swayne, to my point that we are casting aside the use of 17,000 ambassadors, they come here, get a taste, they're exposed from a wonderful campus like vanderbilt, i have a daughter who graduated from vanderbilt, they go home and spread the truth at home. no? >> i disagree. i think there is a false narrative that this is a ban against muslims, that's not true. and i believe the president operated fully within his executive authority. what i see coming from the universities is an astonishing amount of hypocrisy. the president's ban is not that different from the one that president obama put in place. we did not hear screaming from

these leaders when that occurred. we also did not hear them speaking out when the obama administration had a policy that resulted in syrian christian refugees making it almost impossible for them to come to the united states. so there's been a discrimination against syrian christians by the obama administration. the obama administration when it comes to cuba, it's changed its policy in a way that disadvantaged refugees. why weren't they university presidents speaking out? and 28 colleges have announced their sanctuary campuses, they get federal funds, they're supposed to follow the federal law. they need to be teaching all of our students about the constitution, about executive orders, about separation of powers. i believe they're failing in their mission and right now they're engaged in a huge

distortion. everything is not about them and their mission. i agree that we're enriched by students from all over the world, but at the same time i don't believe the president's ban jeopardizes any of that. and that's what i have to say. >> i appreciate your perspective. you're here for the umpteenth time because i want to hear what you want to say, even if i don't agree with it. i'm worried about the young scientist, aspiring scientist in one of these countries who maybe has already applied to your school and been accepted for next year, maybe early decision. and now they're saying, geez, am i still going to go to the united states? i mean, the turmoil that's been created surrounding people who don't cause a risk to this country. they're not the ones. we have more problem from people who are here in the states and are americans and have become radicalized through the internet. >> michael, whenever there's a policy change, someone is going to be inconvenienced. i agree that the policy was

rolled out very poorly, it could have been better done, but it was fully within the president's authority. i think his executive order is constitutional and that it will be upheld by the courts. a lot of partisanship is taking place in all of this debate. the media of course is shaping public opinion because it's making it seem like it's a muslim ban. it's not a muslim ban. and again, there's a lot of hypocrisy and i think people, including the media, need to do more studying of the issue. >> all right. let me, a, say the media today is whatever you want it to be. the media is fox and it's breitbart and it's drudge and it's a.m. talk radio and its alternative. let me say practical advice for the president. i hear everything you've just said but it is really worthwhile to now litigate this for a time period longer than the ban itself would have lasted? >> well, i think that -- if i were president trump, i think i

would slow down with the executive orders and do more -- take more time with some of the actions that he's trying to accomplish, but i think if you look at president obama legislative using an executive order, when he put daca in place, no one complained. his actions were unconstitutional. >> everybody complained. a lot of people complained. you complained. >> i complained. who am i. who cares? >> appreciate you being here. >> thank you. >> let see what some of you are think ing. what do we got, katherine? "we the people wanted this 90-day pause, he ran on this ban. we the people voted for him because of his promises." okay, i get that but now we have to respect the rule of law. do we now want to duke it out over this for longer than 90 or

120 days? that makes no sense. and it's not wise for the president to expend political capital on it. that's my thought. want to escape all the politics? it is super bowl weekend, but this year politics have spilled on to the gridiron. stephen a. smith is up next. and safe driver, mul, that help them save on their car insurance. any questions? -yeah. -how do you go to the bathroom? great. any insurance-related questions? -mm-hmm. -do you have a girlfriend? uh, i'm actually focusing on my career right now, saving people nearly $600 when they switch, so... where's your belly button? [ sighs ] i've got to start booking better gigs.

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tomorrow's a big day in america, an annual rite of passage in which we gather in our home among family and friends and we watch football. historically the day has ban respite, a break in our own conflicts of life so as to watch warriors on the gridiron. sure, we'd wager against one another and root for our favorite teams but with a sense of camaraderie and celebration. now politics are permeating a

national pastime, just as they're showing up in every other aspect in life. you can't buy a cup off coffee or get in an uber without thinking of the political posture of your vendor. and don't even think about turning on an award show unless you're ready for a political speech. and tomorrow it will be hard to escape politics. president trump will be interviewed by bill o'reilly on the pregame show and trump is well known to be a friend and fan of patriots owner robert kraft, coach bill belichick and quarterback tom brady. when players had a press availability earlier this week, there questions about roger goodell that went mysteriously missing. former president george h.w.

bush and first lady barbara will participate in the coin toss. no conflict there. but lady gaga supported hillary clinton. so anything can happen. all that not to mention a controversial commercial from budweiser highlighting the immigration path of founder adolphis bush. he's taunted with cries of "you don't look like you're here, go back home" or "you're not wanted here." anheuser bush said they had no partisan agenda. they said they believe beer should be bipartisan. if it is, it's one of the only things left. joining me now, stephen a. smith. i remember frazier/ali '71 at the garden. i was just a kid. it had a lot of political

ramifications to it. do you feel the same way about this game? >> i don't think the game itself has a lot of political ramifications, i think when you talk about president trump, his relationship with tom brady and owner robert kraft and of course bill belichick, which has been well documented, i think that's where it goes from there. and not only that, let's keep in mind goodell as well, which is not the greatest relationship in the world. remember that president trump before he ever ran for office wanted to own an nfl team, in particular the buffalo bills from a few years ago and that's something that fell through. you have some people who have speculated that's actually what spearheaded trump to actually run for the presidency, that had he ultimately captured an nfl franchise, he may not have even run for president. you look at it from that perspective, there are tent i

calls into the world of sport. i don't think as it pertains to this specific weekend it applies in this regard. >> the nfl seems to be swimming upstream and trying to keep politics far away from housetto. i'm thinking of transcripts where they left out regarding trump and goodell. >> trump has had a lot of things to say, not just about his relationship with brady, belichick and kraft. roger goodell is about the business of making money for the national football league and we do live in polarizing times right now, no question about it. as a result of that, the nfl, which is always been guarding, its money, its shield, its brand, doesn't want to do anything to alienate an audience. earlier in the season everybody was talking about ratings,

looking at the nfl in a way, asking questions about whether the nfl would continue to prosper. and anything that would remotely create headlines to take away from the online performance of the falcons and the patriots is something he's going to avoid. it's a shame with the history of donald trump in some capacity he would try to get away with something like that because it came across as incredibly weak again. >> do you think goodell has his fingers and toes crossed for a falcons victory? how awkward would it be for him to present that trophy to kraft? how awkward would it be if brady is the mvp and he's presenting that trophy to brady? >> i think it would be very, very awkward but nothing compared to what it would have been last year, even before

brady's official four-game suspension had been handed down. if roger goodell had to present the trophy to robert kraft and bill belichick and tom brady, i think it would have been incredibly awkward. it still would be because, again, tom brady, served a four-game suspension, dropped about 28 touchdowns, only threw two interceptions, threw for over 4,300 yard and is a clear bona fide, legitimate mvp candidate. he shut up all the nay sayers to some degree but you've got to believe there's a part of him that feels like roger goodell needs to be called to the carpet. his father was on the record saying roger goodell should basically be ashamed of himself. when you take all of those things into consideration, there's no doubt what the feelings are in the brady

household, which would make roger goodell uncomfortable. the chants in foxboro have been asking where is roger? >> does lady gaga get political at halftime? >> yeah. i don't think she can help herself and i think that musicians live by a different creed. they're free throwing, they've got renegade tendencies and they're the type of folks that always are looking for an opportunity to make a statement for whatever cause they vehemently support. lady gaga certainly falls under that category and it would not surprise me at all if she tried to make a political statement. but it also would not surprise me at all if the national football league did everything to incentivize her not to. i think she'll give the impression that she'll listen but not totally. >> all right. final subject. i know you've seen the budweiser commercial. they say, hey, come on, beer is bipartisan. what did you make of the

commercial? >> i definitely thought they were making a statement. i think to say they were making a statement, you're spitting in our face, telling us it's raining. they clearly were making a statement against our president and his policies on immigration, building a wall, et cetera, et cetera. they wanted to make sure that they came across as very inclusionary, and that may very well be their conscience and most people may feel a willingness to applaud it. but for me, michael, it all comes down to the all mighty dollar. whatever positions you to make the most amount of money is what position you're going to adopt in corporate america. that is my experience covering big business in the world of sport. whatever works for the bottom line is something that you're going to support and clearly budweiser feels that's probably the situation in this particular instance and that's why they did the commercial that they did. they can deny it. they might be right. i just don't think so. >> safe travels to houston.

you are rocking the turtle neck getting ready for super bowl. >> no problem, take care. >> a lot of reaction already. keep the tweets coming. "i was a die hard brady fan. then i found out he's cozy with trump." . "smerconish, i have never felt more proud to are a canadian." >> that's what makes it so fun trying to fix this country. >> a 60-year-old law which -- was he throwing a bone to evangelicals because his daughter and son-in-law made him reverse his anti-lgbt stance? ♪

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is religion freedom under threat? that's what president trump claimed this weekend at a prayer breakfast and promised to repeal the johnson amendment that regulates what tax exempt organizations like churches can do in the political arena. >> i will get rid of and totally destroy the johnson amendment and allow our representatives of faith to speak freely and without fear of retribution. i will do that. remember. >> but the "new york times" suggests he was throwing a bone to evangelicals when he said that because they wanted him to roll back president obama's lbgt protections. trump pulled back the order after being swayed by ivanka and her husband jared kushner. what's going to happen in this

tricky interplay of church and state? joining me now tony perkins, the president of the family research council, a conservative policy and lobbying organization and rob boston, director of communications at american united separation of church and state and the author of "taking liberties." rob, let me begin with you. back up a step. what's the premise? what's the idea behind giving churches a tax-exempt status to begin with? >> it goes all the way back to the roman empire. the idea is these are charitable institution, providing something good for society, beneficial. that's why they're not supposed to be partisan political. they're providing a benefit. politics is not their job. >> in other words, it's a social contract, hey, we want people to do, pun intended, god's work so

we're going to make it easier for you. we're going to give you a tax-exempt status to pursue those endeavors. >> tax exemption is extended to lots of organizations, it's given to artistic societies, literary societies, my own organization is tax exempt. we are not supposed to be telling people they ought to be voting for or against a particular candidate and there are restrictions on lobbying. there are a lot of controls that come with the benefit of tax exemption because it is a benefit. >> this is a perfect example. your organization, as i understand it, played a role in the immigration ban litigation that i've been talking about throughout the course of the program. if i write a check to your group, i'm getting a tax break, right? but if i write a check to your group and now you get partisan, not a church but your group gets partisan, what of the tax consequence of my donation?

>> what concerns me about that is it can turn our houses of worship in little political action committees. why would anybody give money directly to a campaign and find it to be not tax exempt when they can give it to a sham church and moneyland are it. we don't want our houses of worship turned into political action committees. the american people are against the idea of churches being able to endorse candidates and being partisan because they don't think that's what churches are for. the one thing people like about a church is you can get away from the red/blue divide in the country. to allow churches to jump in that would be legally a mistake but it affects their culture and their financial.

>> rob boston, thank you for the expertise. appreciate it. >> my next guest, tony perkins, welcome back. do you feel that the president came to that prayer breakfast and stressed his desire to get rid of the johnson amendment because you're not getting what you were looking for from him on the lgbt rollback from president obama? >> not at all. the president talked about this throughout the entire campaign. it was in the republican party platform, i was on the platform committee, amended the platform to make clear the repeal of the johnson amendment. by the way, it was reintroduced into congress by the majority whip on wednesday, the day before the prayer breakfast. that's the reasons president mentioned it. it has nothing to do with money being expended on political campaigns. this is about speech. it's about allowing pastors, other religious organizations to speak freely, yes, on candidates

but more importantly on issues. we had 99 churches in 2015, the irs opened investigations on them for various reasons. look, where would this nation be if we did not have minister like the reverend dr. martin luther king, who spoke out about political, use that were spiritual at their core. that's what we're talking about here. >> yeah, but any religious leader can say whatever he or she wants to say, including politically but you're asking me as an american taxpayer to continue to provide you with a tax exempt status as you do so. right now i as a taxpayer am supportive of all of the efforts of all of the churches in this country. but if they get political, i don't think it's fair for me as a taxpayer to continue to provide them that benefit. >> it depends. look, we have issues that are inherently moral and spiritual, life, human sexuality, marriage.

those are spiritual issues. they've been made political. so what we have like we saw in houston a few years ago where those issues were declared strictly political and pastors had their sermons subpoenaed by government officials. these issues predate government. the church predates government and longstanding tradition in this country has been until the the 1950s when the johnson amendment was added, that pastors and churches can speak freely. this goes back to pastors paul and john, we're accountable to god, not some government bureaucrat. >> okay, final point. i don't think it says this in the good book, but i've heard, be careful what you wish for. have it occurred to perkins, you could be outflanked by liberal nonprofits that then get politically energized? >> michael, i have defended liberal church right to speak when george w. bush's

administration opened an investigation on them. i believe in the freedom of the pulpit to speak what it declares biblical, no matter if it's left or right. >> okay. and i agree with you. and i believe in the ability of anybody to speak their piece. but whether i as a taxpayer should be subsidizing it is a different question. tony, thank you, as always. i appreciate you being here. >> all right, michael. have a great day. still to come, your best and worst tweets. hit me, katherine. what have you got? "smerconish, you are an asshole." i am, you are correct. "you only respond to tweets that i a line with you. trump is right and you are stupid to realize it. rsvp." hey, lynn, i think i just did. by the way, lynn, have you noticed on balance that the tweets that get put on the screen are not the ones that kiss my, well, the word you just used. [john] what if instead of waiting weeks for your

tax refund, you can get an advance on that refund? [zombie] an advance on my tax refund. [john] doesn't take brains to see the value in that. [zombie] ha! [john] arghh. [vo] you can get a refund advance of up to $1250 no interest at block. [john] get your taxes won. you're gonna love birds eye steamwait for it.bles. in about five minutes you get delicious, premium veggies, steamed to perfection. now! ♪ ahhhhhhhhhhh... mmmm heavenly, right? birds eye steamfresh. so veggie good.

you can follow me on twitter, if you can spell smerconish. what have we got? "smerconish, a bunch of tlib college presidents don't like what trump does. here's my shocked face." hey, bill, 17,000 students were caught in the switches on that, 12,000 plus from iran. i think i make a good point when i say, those 17,000 are the best ambassadors we have and to jam them up is a big mistake. next? "budweiser says beer should be bipartisan. that's why i switched from yuengling. they rubbed their nose in my bipartisanship." one more. "smerconish, expect trump to tweet during super bowl. he can't stand any show that gets better ratings than him. so sad." larry, sad is a word he would probably use. thanks for watching.

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good evening. i'm poppy harlow, live in new york. thanks for joining us. it is 7:00 a.m. here on the east coast and we begin with protests near president donald trump tease fro's the front door. people marching near his mar-a-lago resort where he's spending the weekend. jessica schneider is there for us and she has the latest on all of this. jessica, a lot of tweets from the president tonight, but defiant in the face of this ruling from a federal judge. >> reporter: that's right, poppy. you know, really, a flurry of activity around mar-a-lago tonight. also, a flurry of activity on