>> can who is the president ceo of the hudson institute, thank you. >> tomorrow we discuss the case in "washington journal". >> joshua served as a senior director of the national security council under the obama administration. currently constitutional efficacy where he serves as executive director. >> the supreme court does the travel ban, what will be debated and that state? >> it's a complicated history. the third attempt by the president to deliver on this. the first time it's reaching the supreme court.

now we have the third one sin definite and made it to the court. when it was issued it was called the proclamation and applied to eight countries. six were muslim majority countries on this third attempt north koreans were added. now one of the muslim majority countries was just removed. this is a big picture spent tied to the white house to deliver on the total and complete shutdown of muslims entering the united states. >> as far as a new take on it where do you stand on it. >> i'm proud to be a signatory to a in which i was joined by 51 former colleagues. national security officials with both parties.

our views it doesn't really adjust the national security threat. when this went into effect he kept 250 million people from entering the country. that's come from individuals. keeping out whole countries it's bad for america standing in the world. >> when the court debates this will be the argument from the government standpoint the challenges brought by the state of hawaii and other plaintiffs. with the government says is that the courts has nothing to see. it's off-limits. that's a bold argument given how controversial this is.

it doesn't capture what the court has done in the past. getting past that the government makes the argument that the president deserves courts to do for him because he's acting in the name of national security. that's where we've weighed in and say there's no threat to justify that. ultimately they would say it's inconsistent with immigration law given to us by congress. congress has said you can't keep out people on the basis of nationality. the so the president has done. they say this violates the first amendment of the constitution. >> if you want test questions you can call in.

i'm no lawyer but some of the people who defends the president's actions title eight of the u.s. code which reads whatever the president finds is any class of aliens he made by proclamation be necessary to suspend entry of all aliens as immigrants or oppose any restrictions. why does it cover this case. >> there's the few things with keenan on. first for whatever time he deems appropriate. this is indefinite. it violates that something is finite.

another key issue is there's nothing definable about 150 million people. classes mean something you can put your finger on. maybe they're exposed to a particular type of disease. but hundred 50 million people across eight countries there's nothing they can say is,. >> does religion ever come up in the text? >> religion comes in with how they have framed it. after the president issues the attempt at the travel ban he retreats three anti- muslim videos posted by far a politician. the deputy secretary sass later what is the president doing and what's his view the president

has already address these issues. most recently through the travel ban. so they're saying this delivers on that campaign promise to keep out one religion from entering the country. >> is it fair to take this as a candidate and apply them to someone who makes a policy? that's a tough question. i don't think you need to get back to the statements. you have enough when he sits down to sign the first travel ban and he looks up and says we know what that means. then he and surrogates like rudy giuliani say he wanted a muslim band and i found a way to write

it for him. i meant to tie back to national security and muslim a phobia. if you can put that aside and still see the problem. >> did the previous administration apply this when it comes to keeping certain people out? >> the previous administration.with the visa waiver program. you can think about that is extra credit. if they have excellent ways of sharing information about their nationality coming to this country. they do a great job they can travel here more easily. the supposed to be adjusted. the previous administration used to for those purposes taking countries who have received it

moving it back to the baseline. but they never did was go below the baseline. that's because it's by law is not a way to keep things out of the united states. our first call comes from baltimore, maryland. this is craig. you're on with our guests, go ahead. >> caller: i find it interesting that a district judge in hawaii has more power than the american people is represented by the vote we had in 2016. my question is, if the establishment clause of the establishment of the religion

why was -- amendment permitted to throw jewish immigrants specifically from russia in 1991? >> you raise an important point about how judges and justices are dealing with the case. ultimately they're not there to intervene in ordinary politics. but they are there to patrol the outer limits of what the executive can do. so is the job of judges. can be a long saga were nine justices hearing it at the end. her job is to patrol the limits to make sure the act within legal boundaries. >> is not something presidents have done to keep people out.

they have not said no since 1965. when cuba had violated treaty obligations those entering at that point were manifestation of a treaty violation. that never made it to the supreme court. here it's clear the president violated the change to the law. >> host: from maryland on the independent line. >> caller: this comes up every once in a while. when you refer to as a travel ban when you talk about the wars you don't refer to the war as a majority much slum country that were at war with.

so if there's a security issue that you're not worried about national security a basically same if you're at war with the country, then forget about the majority muslim band if you're at war with the country you can consider limiting travel to a country you're at war with? >> guest: to the extent that were engaged in armed conflict were not really at war with those countries. we are in conflict with the terrorist groups threatening us from those countries. some of the countries covered by the travel ban we are using

military force against terrorist groups, isis, individuals and al qaeda. but not the country as a whole. even when we are using it military force were doing it in an individual way. we work hard to make sure their lawful targets under domestic and international law. that approach taken into a different context is what similar is urging. the caller mentioned that it has come up before. this is something congress has debated after 1965 and after 9/11 whether we should look at immigration a country by country basis. congress has said no to that. until he can change the law he's bound by. that's what the courts been asked. >> to they only take a strict look at the law? >> i think the court tries to grapple with it.

that's how kids translated into something meaningful. the starting point of the court meal here others say this is it it begins with close readings of text. start with the text. it's very carefully amended in 1965 in the go from there. >> host: our guests served in the obama administration and was the law clerk. he served as a law clerk to chief judge and is currently the georgetown university law school. jack is on the line, go ahead. >> caller: good morning. i like to make a comment before i ask a question. we are ready have a million people come into this country. needless to mention we have ten

or 15 illegal mexicans here, not counting chinese and all the other different ones. the bottom line is, i knew the travel ban is issue but we need to go to australian in their system. we should select to we want to come in. the travel ban is sort of like that. we decide who comes in here. my question is, what would you do -- country have any part of your family like in arizona we fed illegal immigrants to porter murder people. what would you do a phone that these people that god honestly are fighting for merger someone close affiliated with your

family? . . that excites people's passions and it's in the realm of political debate as to how we should approach immigration. that is something a lot of us have been urging for a while now , to have a debate on immigration beyond this travel ban. that's a debate that has to involve the president and the u.s. congress. it is article one of the constitution that puts the authority and really be responsible be the responsibility to set for the constitution called the uniform rule of naturalization immigration policy and the congress with that responsibility. if the president wants to takena different approach wit within hs country by country, nationality or otherwise, he's had over a year to engage with congress and has done nothing to change the law. in terms of those who come to the country like the rest of us, the criminal law must be and are enforced against them but it begins with a debate over changing the law and not simply the president with president wf a pen to alter its.

>> do they suggest how the court might act in this case? >> they are for different justices who bring the case different interests. some will start with the taxes and find it interesting putting together pieces of the immigration and nationality act and how they changed then you have justices have been interested in the question of how much of congress'sre constitutional authority can be itgive away to the president and hear if the president is able to do with the governmen what the e can do it suggests maybe they've given away too much which may be a reason not to read them all l that way and others may hone in on the establishment clause religious question. i'm interested to see which judges take which pieces and of course by june we will see which ones come out which way. >> host: how do those like anthony kennedy who tends to be the swing vote on a lot of differentg cases how has he

responded to previous cases like this before? >> the justices not just the current growth that even the predecessorsen often have been deferential when it comes to national security not always but often. counter examples include the steel seizure case and some of the guantánamo cases the past couple of decades and i think when the court chooses not to accept that framing and engaging the difference requested the executive branch is because they feel it the justifications don't hold up. my colleagues and i are urging the court to take a hard look air. >> republican line from minnesota. >> caller: i think trump is doing an excellent job on this immigration. i'm 74-years-old and i've never seen so much different people in this country they come here with an american dream and have folks over their heads and as far as

hawaii maybe we should drop them off the map as a state and all the immigrants go there. >> host: that' >> host: but to arthur in louisiana on the democrats whine go ahead. >> caller: good morning gentlemen. it's interesting to hear people calling in of conflict beating up on the people trying to migrate to this country. this is a country of immigrants, period. one of the things everybody is failing to look at is what is called a gift factor of the people that want to be here and the people they turn away. a good example people from south america have a baby and want to throw the baby in the back but instead send then they come ane

on trump's property. there's something wrong with the picture don't you think? >> guest: the caller put a finger on why the case is so important maybe even beyond the legal arguments and those of us that are law professors tend to focus on the beyond that in many ways it is about the soul of this country as the caller mentioned it is overwhelmingly a country of immigrants and to the extent there is a political debate over what that should mean that o as a debate be had d within the bounds of the law but also recognizing that this country is and who we all are. so i think that he put his finger on what to watch for this week. >> host: democrats whine and misery this is john. >> caller: how are you doing. >> host: go ahead. >> caller: i'my. 73-years-old. i voted democrat for 50 years i've been a democrat. i even voted for obama but this

time he ran. however after obama's first time in office i switched to the republican party. my problem is with the democrats anymore you've lost touch with reality of the people of the country. we want all these immigrants and think it's fine for them to be here but every time i walk out the door i see somewhere in the city homeless veterans, seniors at the ends that can't eat. you spend millions and millions of dollars on these immigrants so they can survive, you give them food, utilities, money to live on while these senior citizens are struggling to make ends meet because someone in congress that i can't live on 200,000 a year i need to raise. >> host: the travel ban, please make your point towards that. >> caller: how can you tell the american people it's fine

for these immigrants to be here when first of all you don't invite someone to deny that's trying to kill you and the second what about the homeless veterans in senior citizens? >> host: we will leave it there. >> guest: this doesn't strike me as a partisan issue. it's a congress that has worked in different manifestations, democrat leaning and with different presidents to give us the immigration law that we have now is theth backdrop for this case. it was of course a republican president, president bush to engage with congress after 9/11 about immigration policy and republican president bush who helped frankly improved the individualized system of vetting that is currently the hallmark of how we do immigration in this country. i'd also add among those of us that worked on national security and feel strongly this case is one in which it is being held up as a pretense that also bipartisan and it's not just

folks like susan rice who worked for democrats but folks like richard lugar. >> host: "the wall street journal" this morning in the editoriall section talks about the travel ban and the editors make this argument from previous cases saying it was chief justice john robertsts have explained in the decision of 2010 that the judiciary is not suited to make the judgment since information can be difficult to obtain and the impact is difficult to access and when it comes to collecting evidence in this area the lack of confidence and respect for the government conclusions as appropriate. >> guest: i agree with that verbatim i think that he's spot on. the question is does one need to defer to the government executive branch here. i don't think so. it's about reading the statutes and the constitutio constitutios

been interpreted that says the president can't do this. it helps to say he hasn't articulated a good reason that would get himcu into the lane of the r quotation mentioned for example the ninth circuit court of appeals after that struck down one attempt atal the travel ban it said in its opinion it requires findings he di and the president wants to try this again he should write down some of the findings that would be classified as something more to articulate. the government doesn't respond to that and hasn't offered up something even at the most general level beyond saying we need to keep people out of the countryp t and now in a shiftig rationale saying we need to incentivize better information sharing. >> host: mark in silver spring maryland on the independent whine go ahead you are on with our guest.. >> caller: i just wanted to agree with one of the calls saying i work on national security and i love this country

and i feel if we are going to be anti-immigrant who don't have any value left in this country. like what's left to fight for a. what does this country stand for and what makes it different or better than any other country in the world. >> guest: that goes to the issues i'vissue i mentioned befh isis why this case is so importt beyond the legal. it is a tradition ofe the couny founded by immigrants to welcome immigrants. i believe in national security as well and keeping the country safe not just from two greatest threats of a whole range of threats toal the country. i just don't believe that the president has done is responsive to those threats in any meaningful way and it goes beyond what the president has the authority to demand of the immigration law and the constitution but i'm all for keeping the country safe and the

concern of how to individualize the bedding being done as people come into the country and working with those across the intelligence community and law enforcement officials that is an ongoing project that's been improved since 9/11 and there's more work to be done and that's where the president should be focusing his efforts. >> host: if the court goes for hawaii pacific limit future decisions to put fans in place of a similar nature? >> guest: it hinges on the reasons for the revolt if let's say for example the clerk says nationality was taken off the table in 1965 whatever the president can and can't do to keep folks out of the country can't do it on the basis of country of nationality. that actually would yield an interesting possibility and the chance for this president to go right down h the street from whe yoyou have ir and talk to the congress about it, something other presidents have discussed it hasn't been changed. that would be where that conversation would take place

because that would be in the shadow of knowing the statutes passed really do set up meaningfults constraints. >> guest: >> host: bill from texas on the independent whine go ahead. >> caller: i'm calling about the obama administration and what were the percentages of christians that were brought the muslims. to >> guest: i don't know the exact figures on that but i do know that in approaching the immigration issue they tried to do at least two things, one is to stay within the bounds of the law to utiliz' the tools given to the candidates where the visa waiver program camvisawaiver pry quite prominently and at the same time to work on the and individualized settings either. there were improvements made throughout the years to ensure all of the holdings and informatioininformation possessw enforcement and the community was used to identify those that come to the country to pose

threats and that's where an ongoing project of improving the system should continue. >> host: jo join in minnesota on the republican line. >> caller: good morning. the senior advisers i'm wondering how many countries the trump administration has added to the list that they inherited from the obama administration since he's been in office and how many muslim countries there are. thank you.u. >> guest: to be clear there were no countries receiving this sort of treatment before president trump came along. the first band applied to seven majority and then the third one that's making its way to the quick now applied initially to the six muslim majority countries plus north korea which is very individuals trying to

enter the united states and apl handful of venezuelan diplomats. chadha, one of the countries has been removed so that adds up to fight muslim majority countries consistently in play at the corner of the project. >> host: chowchilla of the former obama administration and the institute for constitutional advocacy talking about the travel ban case being heard on wednesday. thank you for your time. >> guest: thanks for having me on the show. mac

"new york times" versus united states pentagon papers case. president nixon is using his executive authority to prevent the times from publishing thesee top-secret documents related to the vietnam war. the lower court judges actually stopped the presses for the first time in american history the press had been stopped by someone who fears the exposure of the information might be dangerous to national security and another judge refuses to stop oppressing his out of that anthataddsoutfit hadfollowed th. the pentagon papers case haven't seen the movie but it's a great story that only stands for the proposition that the government can't stop the press in advance but the court acknowledges there's thereis a possibility ow york times" and "washington post" published this there could be prosecutions afterwards. i think the gravitational force of "the new york times" case has

created a political atmosphere where in broadest terms we don't go for the press for publishing things even where statutes seem to say that h we could. >> watch landmark cases, with guests floyd abrams who represented the times and its case against the nixon administration and the former solicitor general under president george w. bush. bush. why is monday night at eight eastern months he spent. >> at the heritage foundation, the head of facebook local policy management talked about the social media companies future and how facebook monitors content from its users. this is in our. [applause] good morning and welcome to the heritage foundation