i'm chris wallace in washington. our coverage of the ninth circuit court decision continues now on "the first 100 days," a very eventful days and the first 100. her guest, counselor to the president, kellyanne conway. that is up next. >> martha: breaking tonight, we are awaiting the very first reaction from the white house. kellyanne conway about to join us after her ongoing meeting with the president and the white house right now. we will also get remarks in the governor of washington state after the ninth circuit court of appeals rejects national security warnings from the president and rules against the white house for the first showdown between president trump and the courts, which has happened just 21 days into his still young presidency. i am martha maccallum entasis "the first 100 days" with a lot of breaking news tonight. so, moments ago, the judges that you heard debating my case live here handed down the highly anticipated disaster and against the president. they will not allow the president's executive orders on

the extreme vetting, the controversial and serious campaign promises to go forward for now. the decision nearly guarantees that despite it will go to the supreme court most likely. huge political fallout being felt immediately. i didn't take long for the president to counter, as he always does. counter punching directly on twitter. he said this. all in caps. "see you in court, the security of our nation is at stake!" moments from now, as i said, we will speak live with kellyanne conway, senior counselor to the president. but first, we begin with dan springer, live in seattle, where the sole legal fight began not too long ago. dan. >> this was a unanimous decision, 3-0. as we mentioned before, there were three judges on this panel. two of them were appointed by democratic presidents, one by president george w. bush. it is pretty incredible. we know during the oral arguments going a lot of the time was taken up with two main issues. what was the motivation behind

the travel ban? they talked about, was a necessary? at one front, one of the judges said, look, none of the attacks that happened since 9/11 or even arrests of people who were plotting attacks from one of those seven countries that travel has been banned from, that was inaccurate. in fact, the "the associated p" did a fact-check and from it to be inaccurate. whether or not the state of washington and minnesota had a standing. in this ruling today, the court of appeals said, yes, washington does have standing, primarily because it students were affected at public universities. it broke in the decision. "the students and faculty cannot travel for research, academic, collaboration, or for personal reasons, their families abroad cannot visit." really, these justices said that washington state was injured because students at its universities that are public, washington, washington state, were injured by this travel ban. pretty incredible that in weighing national security or injury to the state, they said

that those shootings really had a lot of standing in the eyes of the court. this also means that two republican judges, judge robart of the district court level, who was appointed by a republican, george w. bush, and then, this other republican judge on the three-member panel, he has now had two different courts and two different republican judge voting against president trump. martha. >> martha: dan springer, thank you very much. we showed you the tweet that the president sent out right away after this decision. senior white house correspondent john roberts life from the white house lawn with more on the story tonight. good evening, john. >> martha, good evening to you. we heard of the president talk to a number of reporters who were gathered by sean spicer's office. called the white house press pool, a small group of people that go in to the presidents events when he is speaking with dignitaries or having a meeting or as happened today, when he was watching

senator sessions get sworn in as the attorney general. apparently, he came back, had a few words of the pool. we don't have the full content or the words that he said. but apparently, he said, this is a political decision and he looks forward to seeing you all in court. that is repeating the tweet that he sent out a little while ago where he said "see you in court," the safety of the nation is at stake. we don't yet know, martha, the full context of this idea of "see you in court." we don't know if there white house counsel's office and department of justice will seek in on bank session, good be a nine or ten judge panel, depending on which they get to, or whether they will file an emergency appeal with the supreme court or whether they just might decide to let this temporary restraining order stay in place and go back to the district court in seattle for there is already a schedule set for hearings on an injunction, at least, against the

president's extreme vetting order. another of balls in the air tonight at the white house. the white house counselor's office is working on this in conjunction with the department of justice. i believe the newly minted attorney general has a previous engagement tonight but you can bet that he will be on the phone or his email or whatever, staying in close touch with all parties here, as they figure out the way forward. will try you to some more information. >> martha: john, thank you very much. we are about to go live to seattle, where the washington state attorney general bob ferguson is about to speak. you can see the cameras being set up there. the spring and jonathan turley, who was on the phone with us. constitutional attorney. your take on this decision tonight? >> it is obviously a considerable setback for the administration. very few presidents have faced this type of ruling by a court, limiting their inherent or

plenary authority. the court specifically focused on the due process allegation made by the challenger, that said there was no real guarantee of due process that was shown by the administration. in some ways, the opinion takes a couple of shots of the justice department, being unsuccessful creating the type of foundation that the court needed to stay the lower court decision. it said repeatedly, you just haven't given a true proof on critical elements, including, quite notably, the authority of the white house counsel to act as he did to guarantee that visa holders would be exempted from this law. >> jonathan turley, we will go back to you. this is bob ferguson, we have the ball rolling in the state of washington. let's hear from him.

>> good afternoon, everybody. thank you so much for being here. i will say a few words. my associate general, followed by the head of the civil rights unit. then, we are happy to take your questions. for those on the phone, we will try to get your questions after we take them from the room. bottom line, this is a complete victory for the state of washington. the ninth circuit court of appeals in any unanimous decision effectively granted anything we sought. we are a nation of laws, and as i said, as we have said, from day one, those laws apply to everybody in our country. and that includes the president of the united states. we had a chance to take a look at the opinions. one thing i want to mention before i take your questions, throughout this litigation, the president has asserted that his

actions in signing this executive order are unreviewable. you heard the question posed by the ninth circuit judges in the oral argument this week, the question was asked, as of the view of the justice department this was actions are on reviewable. after a lengthy pause, the answer was yes. here's with the ninth circuit had to say about this. there is no precedent to support this claim to interview ability, which runs contrary to the fundamental structure of our constitutional democracy. i am so proud of our team. as many of you know, they have been working literally around the clock on behalf of the people of this state. if the folks you see here will be introducing shortly, also, attorneys and oppression although my professional staff around the office, and different office spread around the state, all working in different ways to assist us with

this filing, these filings which have been done under intense time constraints, as you might imagine. i want to emphasize, this has been a team effort from this law firm. very proud indeed for this law office. i couldn't be more proud of the teamwork that has been involved. with that, i will turn to noah, i will ask them to say a few words and i will summarize essentially what the ninth circuit court of appeals did here today then, a few words. noah. >> thank you. what we argue to the court yesterday was that it is the role of the courts to say what the law is and to serve as a check on the executive branch. that is what the court has done in this opinion, this excellent opinion, this while recent, careful, thoughtful opinion, that seriously considered all of the government's arguments and rejected them. it is important to recognize the real impact of this that it has already been having in people's lives.

we've just heard about what a differences has made. we are so thrilled for that. i want to think it attorney general ferguson for having the bravery to bring this place in the first case, and to bring authorize us to do this. thank you for everyone for the support. i also want to think the people across our office as the attorney general's income of the people in my office. i'm going to forget people. the bottom line is, we have an outstanding office. people do public service every day. we are not in the limelight like this usually, we are not used to it. we are proud to have been able to play this role. just briefly about the opinion, it is at the attorney as the attorney general says, it upholds the district court's injunction in every respect. we couldn't be more pleased with how careful and thought filled the opinion is. the judges did their job

carefully and well and we appreciate their words and thank them for the careful attention that they gave to this case. that is all i will say for now. >> i think i mentioned, our solicitor general, who argued at the hearings before judge robart. at the court of appeals. one thing i appreciate is the fact that this case has had -- an opportunity for the public to see people who work on these cases, folks like the team you see here today. know what is a brilliant lawyer. he is doing an excellent job leading this team. next, colleen, colleen is the head of our civil rights unit. i created that unit a couple of years ago, two years ago. as you may know, up until then, if somebody called our office with the civil rights complaint, despite the fact that we have close to 600 attorneys, we did not handle civil rights complaints on behalf of the people of the state of washington and affirmative ways,

which struck me as something that needed to be remedied. we created a civil rights unit. you see folks part of our team. while i did not anticipate at the time that this team would be pressing the service of a case like this, i am so glad and proud that we had a team of excellent attorneys and excellent professional staff and that civil rights unit, with the background, expertise, and work ethic, who were prepared for this moment in time to bring this case to the successful results we've had so far. colleen melody, colleen. >> thanks, bob. i will pick up from where he left off. from the beginning, on an early saturday morning, when we started talking about how we were going to respond to this case, the people on my team recognized it was a basic fairness, social justice, and civil rights issue. i'm very proud for them to step up and do whatever was necessary to help them get this result that we are talking about today.

we w and introduce marsha, an assistant attorney general, purge . >> martha: we will step away for a moment. we expect to hear more from the white house. kellyanne conway is about to join us in a moment with the first official response from the white house on this decision tonight. the political reaction to this decision is already pouring and all across the country. trace gallagher breaks down we are hearing from our west coast newsroom tonight. >> martha, before you get to kellyanne, i want to get you to some reactions from democrats in future strategy from the trump administration. first, reaction from bernie sanders, who tweeted, "hopefully, this ruling against tom's admin band will restore some of the damage she has done against the reputation around the world." pennsylvania senator quoting, "ninth circuit ruling is a victory for justice, clearer than ever that donald trump's executive order is inconsistent

with the rule of law." properly writing "people of conscious across the u.s., reject trump's administration hateful muslim ban, glad to the ninth circuit upheld this day and reaffirmed refugees welcome." we should note, the ninth circuit being very skeptical about the president's executive order being a muslim ban prayed in the ruling, they said they would not comment about any muslim ban until more evidence was put forth. in other words, right now, they sent we don't buy it. the u.s. arkansas senator tom cotton wrote. we should note that catherine herridge, our cheat intelligence correspondence just got this from the department of justice, as well as the department of homeland security saying, "they are about to hold a conference call to decide what the next moves will be." the questions are, do they file an emergency appeal to the supreme court or do they take

this back to judge james robards' court in seattle, for the restraining order came out of another let this whole thing play out. that might take several months to get through that hearing process. the danger on the flip side of going to the supreme court, martha, is that there is no tiebreaker. right now, if the vote comes out at a 4-4 tie, under an emergency appeal, that means the decision goes back to the ninth circuit court. they would have standing. the department of justice also has one last thing they can do, en banc, we heard about that several times, the ninth circuit court, they would have nine or ten judges that would give a separate ruling. the three judges who made this ruling would be joined by six or seven other judges and they would have a brand-new hearing on that. as we get more reaction and information about what the next apps might be, we will get back to you. >> martha: "see you in trace, u

very much. we will take you to the white house. we have audio comments now from president donald trump. let's listen. >> our country is at stake. it is a very, very serious situation. as i just said. >> do you think this undercuts your presidency? >> this is just stated decision that came down. >> have you conferred with the new attorney general on this? >> no, i have not. we just heard the decision. >> how did you find out about it? >> i just saw just like you did. >> via the news? >> is a decision that will win. in my opinion, very easily. by the way, we won the decision in boston. >> are you any closer to the new attorney general -- >> we will give you and it decision in the next week or so. okay? are you done? >> are you headed back to the right has? >> i have a dinner with the

secretary of state. he is also at the dinner. >> thank you. >> enjoy. >> i appreciate your time, sir. >> thank you. >> martha: all right, we are about to be joined by kellyanne conway in just a moment. but we are watching all of this as it comes through and we have marc thiessen standing by with us, as well, and mo elleithee, head of the georgetown institutes of politics. let me start with you, you heard the argument from the lawyers in washington saying that they saw this as a basic fairness issue, a civil rights issue, that they felt extremely passionate about, needed to be stopped. >> they felt that way. in one of the most liberal courts in the country, congratulations. the reality is that this is about the authority of the commander-in-chief and the role of the judiciary. the role of the judiciary is not the role of the judge, the president policy choices. you have to go to a decision you

don't agree with in order to uphold the law. in this case, the law is clearly on the president side. what this does, martha, politically, this dramatically increases the stakes in the neil gorsuch nomination. republicans will have to use the nuclear option. democrats will be under incredible pressure right not to delay, postpone, obfuscate, derail his nomination. they have a 4-4 split court. they have a better chance of defeating trump. imagine if you are the democratic senator who gives the deciding vote to let the denomination go through and then, he rolls and a 5-4 court in favor of trump. you will be castigated by the media, but the liberal base. they will be under enormous pressure to stop him and to delay and use the filibuster. republicans may have no choice but to go nuclear to give them on the court. >> martha: a very dramatic situation when you put those things together. when you pile on top of that, all of the campaign promises that president trump made.

chief among them was that he would work to keep the country safe, extreme vetting. he said, you have seen what has happened in europe, you set the pushback, the refugees and immigrants piling across the borders there. really putting a strain on the systems in european countries. he said he didn't want that to happen here. now, you have judges stepping in and saying that he doesn't have the presidential authority to keep the country safe because they believe it is a violation of civil rights. your thoughts. >> i think the court was pretty clear that there is no precedent for unfettered, unreviewable -- in this issue, when it comes to the president's authority on foreign affairs and emigration. the court has an established precedent and weighing in. politically, where i think this is really interesting, to your point, martha, about the promises he made, i think donald trump just hit a huge brick wall and understanding the authority that the president

actually has. that is a problem. i think the shoot from the hip style that brought him to this point, and it ended up not serving him well. >> martha: standby. thank you so much. we will come back to you but we want to go to the white house and get further response, kellyanne conway, counsel to the president, has been in the process of listening to this, as it came in, with the president. kellyanne, good evening to you. how did the president react when he -- he said he thought on tv. what it was first reaction? >> the white house counsel was in there, as well. totals with the dancers inside. you saw the initial reaction, he said "see you in court." the nation's safety is at risk. this is what it has been about from the beginning, keeping the country safe. not just a promise he made as a candidate, it is his duty and responsibility as president of the united states and commander in chief. in fact, he has promised to do it under the statute. this ruling does not affect the merits at all. it is an interim ruling and we are fully confident that now

that we will get our day in court and have an opportunity to argue this on the merits and we will prevail. >> martha: which court? >> we will have to see what happens. i haven't read the full opinion. i haven't been fully briefed by counsel on that particular point. but we do feel that if you read the statute and the president himself, he took the unusual and i thought a very remarkable and heartening step just yesterday and read the entire statute, the first page of the statute allowed, to the sheriff's meeting, that he addressed yesterday in washington. he made the point that if you read the statute, which had nothing to do with the interim ruling of the ninth circuit, you see very quickly that a president has great authority to protect the national interest and protect the security. let's go back to what his travel executive order related to end what it did not do. it was narrowly prescribed to the seven countries that were first put forth by

president obama. it is temporary. it really is, let's get some better vetting, let's get some special screening in those countries, with foreign nationals from those countries that had been previously edited the mic identified. on temporary basis. we can argue that on the merits and people look at that statute and not just the tro -- >> martha: referring to the 1952 statue, that gives the president broad authority to ban people, whether they be from a group of countries, many believe, many of the legal experts that we have spoken to, did not expect this decision to go the way it did. even though it is a very liberal courts. they felt that based on what was instructed, that it wouldn't stand up. however, we saw that argument go very political very quickly when we listen to that audio, kellyanne, that night. one of the issues is the supreme court. some have suggestions, including judge napolitano, there are 50 something cords that are all bringing these cases, not just

the one in washington state and minneapolis, across the country, the supreme court could gather them all together and give a decision based on that. is that something that you think the white house would like? does the president wants us to go to the supreme court? does he feel confident? >> i can't comment on that tonight. i haven't practiced law law any year, happily so. i won't give my opinion on that, i want to be come out at the moment. he will be conferring with the lawyers and make that decision, i am sure. he raised a very important point for your audience to know. there are different options here. i heard what was said earlier about the importance of the supreme court always important, now come with a of judge gorsuc gorsuch, imminently being taken with the senate, we have our eye on that as well. we are hopeful that those ten or 12 democrats had voted to confirm judge gorsuch almost 11 years ago will do the same thing here and give him a full fair hearing so we can have a

complete supreme court. that is not a comment on where this case is headed. it is just -- i am commenting on our confidence that we have an excellent case. the merits were not litigated, the merits were not decided upon today in the ninth circuit. >> martha: with regard to judge gorsuch, you have been watching the news over the past couple of days, back and forth on these underlying issues about what he said. it was seen as a dig out of the president had said about these judges who are involved in this case. the president said himself that he was misrepresented. but several sources said that that is exactly what he meant. he meant that the president's comments were disheartening to him. did the president speak directly with judge gorsuch and ask him what he meant by that? >> i won't comment on private conversations between the president and other people. >> martha: wear to the president gather that

information from? >> i will tell you that they support each other. that is very fair for it to us by the president has full confidence in his supreme court nominee, neil gorsuch. we are happy that he is out there talking to the different senators and getting acclimated to the process of capitol hill. at the same time, we know that members of the judiciary have a right to speak out. the president also has a right to speak out. a time-honored tradition. our branches of government are independent and equal. but there is nothing here that is negative, and so far as the judge is free to speak his mind. i would say terrible things to your audience tonight, martha. number one, during the confirmation hearings of cabinet appointees, president trump made very clear that he respects the men and women who speak their mind and offer their own opinions under oath in those hearings. number two, people didn't get as much done on the latter when president obama himself chided the united states supreme court

right in front of them as his guests at the state of the union, directly filing the citizens united decision. really, i remember justice alito nodding his head because it was such an inappropriate way to reprimand supreme court justices at the state of the union. this is something that is done on occasion. i think that we should look at the mutual respect these two might have for each other, president trump and judge gorsuch, two were nomadic recognized on a list of highly qualified men and women, judge gorsuch is the one that president trump chose to be his nominee. to speed when he stands by his nomination. that's why i'm taking it. judge gorsuch wants very much to continue to be the appointee by president trump, correct? >> i haven't heard otherwise. i have no reason to believe otherwise. >> martha: in terms of the supreme court decision, i know that the president sat down today with a bipartisan group at the white house of moderate senators who he is hoping will

help push this gorsuch nomination through. how confident that you will get of democratic support for him? >> i saw one or two of the senators in the white house. i'm confident that they are listening to the constituents at home. if you are senator joe donnelly in indiana, if you are sanity heidi heitkamp of north dakota, certainly, you are hearing from the president, you are hearing d voters in your own states. states where people believe in the role of law, believe in giving this man a full and fair hearing so he can be voted up or down in a way that is decidedly apolitical. look at what just happened to betsy devos, secretary of education, jeff sessions, new attorney general, swearing in today come a very moment for president trump. it is remarkable to me that not a single democrat voted for the them.

five, six, seven listening to the constituents, think i might want to do the right thing and give the president the deference and the respect he deserves to fill his cabinet as he would like. we hope that the same politics that seem to have applied in these all nighters that the democratic senate pulled over this week will not apply to judge gorsuch. they will do the right thing and hear him through. look at his academic credentials. look at his judicial record, temperament. read those opinions. as president trump, president-elect trump and his team had done when they were deciding to appoint this very important position. we just ask for fairness and openness. >> martha: attorney general sessions voted for eric holder because he wants of the president to have the attorney general that he wanted one that she was on the other foot. i know that you are hoping the same thing will happen. before he let you go, i want to ask you what happened this morning with your comment about

doing a free commercial and encouraging people to buy ivanka trump's products. got a lot of pushback and sean spicer's book about it at the press briefing today and said that you had been counseled on the matter and that he had nothing more to say. how are you canceled? >> i am not going to comment on that, martha. i have nothing more to say about it. >> martha: brought about the letter that has come from jason chaffetz and the house that has gone to the government ethics board? they say they consider that to be a very serious, potentially a serious violation of the government ethics code. >> we are aware of that letter and we are reviewing that internally. i am just really happy that i spent an awful lot of time of the president of the united states this afternoon and that he supports me 100%. >> martha: you spoke about that matter and he is not -- doesn't have any intentions to suspend you? >> we spoke about a range of matters, he supports me 100%. it was was a heartening moment.

all i can say, at some point in your life, you ought to have a boss who treated me the way that the president is treating me today. >> martha: kellyanne conway, a lot to talk about tonight. we thank you very much for being with us. we will see you next time. >> thank you, martha. >> martha: here with more on the ninth circuit ruling, bill bennett, former education secretary, and a fox news contributor. always good to have you with us. good evening, welcome. >> nice to be here. by the way, those stickers at nordstrom anton poured all of that, just don't shop there. i am a private citizen, i can't be counseled. just avoid those places, for pete's sake. >> martha: you are on record as having spoken out on that batter tonight. a lot of people have talked about it today. let me get your thoughts on this ninth circuit decision. but do you make of it? >> very serious. i am totally with the president and what he did, the authority, has authority to have this band.

yes, they could have written a little bit better. but that does not have anything to do with the basic question of law and constitutionality. this is an open and shut case when it comes to the constitution. barack obama blocked iraqis for six months. if jimmy carter some irradiance. >> martha: let me just stop you there. the argument that the obama administration gave her that, at no time, did they stop 100% the flow of people from a rack into the country. they think that that makes it a different thing. does it or does it not? >> in one way, but in in a majr way, no. donald trump has not stopped the flow of muslims into the united states. green card holders, people from other countries, and so on. the president's authority here is the issue in question. i don't think the constitution has any ambivalence about this at all. this is what donald trump

campaigned about. by the way, i would issue a caution to kellyanne conway and my other friends about "see you in court." the courts are the problem! this is what donald trump was getting out and the campaign. you may not get that satisfaction out of the court. you won't get satisfaction out of the supreme court. again, this is part of what the campaign was about. >> martha: will they rule against him on this? >> they'll go four-44, is what i predict, right where it is today. they will go to district court. ultimately, this is an unpleasant fact, an unpleasant thing. ultimately, i think donald trump will be vindicated god help us and god help members of those courts if we see some terrorist acts as we have seen from people from those countries. the president is clearly within his authority. he is trying to protect us. i heard my friend and esteemed

colleague, charles krauthammer, said to somehow this was almost criminally negligent. i think he used the word criminally on the part of donald trump. no, it wasn't. again, the thing could happen more carefully done. but the real aggregation, the abandonment of responsibility, was by these judges, who were sworn to uphold the constitution of the united states. i have the president sticks clearly to his guns. do not expect vindication by the courts. the courts are our problem. judicial restraint it is not an oversupply right now. >> martha: right now, the court has won in this case. there are 50 something other courts that are already pressing against it. that is the way the system works. they have put this thing on hold for now. the president doesn't have that many options other than to get them to list that by continuing to go to the courts. we know president trump, before that, donald trump as a businessman, he does not believe in settling anything. not that that is a direct option

here. he will fight this all the way. >> sure, he will fight it. i don't think he will follow the president of one president, who said the court has made its decision, let's enforce it. i think you might follow the president of lincoln, who continue to challenge the court, the case of dred scott and other situations, when he thought it was wrong. the president has to explain to us why this is wrong. i think the case being argued in district court needs to be made plainly. tom caught that has made this point. he is a graduate of harvard law school, a real lawyer, i am not, a graduate of harvard law school but not a real lawyer. i do know this much. the constitution clearly gives this kind of authority to the president. a lot of us were upset during the clinton administration with the return of gonzalez to cuba. but there was very little questioning about whether the president had the authority to do it. authority in this area is unquestionable and clear and the constitution. again, this is going to be settled in the end, i believe, politically.

the president may not win this case in court and any of these courts that we are talking about. but i think the american people who responded so positively to him during the campaign will now see what he was talking about and god help us if we see some terrorist act committed by someone from one of these countries. >> martha: the president has essentially said as much. he sort of pushed it back from the court and said, i'm trying to protect the american people. but many people see it so differently. when we listen to the attorneys who were giddy with enthusiasm and the ninth circuit, they talked about civil rights, protecting the people of -- you were trying to get into this country and all of those university professors and students and people who work there, who couldn't get home for a few days, in most cases. i'm not talking about refugees. that's a different question. i'm talking about the people who were held up, whoever accidents, green cards, who were delayed and now able to get back. your thoughts?

>> sure, that is right. put that on one side of the slate. on the other side of the slate come up with the last three or four or five years. put orlando up there, san bernardino, boston. with the president is talking about is not make-believe. it is very, very real. again, we shall see what happens in the next few months. i don't expect that the courts are going to come out the way that the president would like them to you but i would like them to. most importantly, the with the cost constitution directs. i think this will stick to the president, to the american people, too. part of what they object to is this kind of judiciary, which doesn't seem to abide or take seriously democracy and the opinions of the american people as expressed by them themselves and in the person of their president, president trump. >> martha: we are looking for a narrow decision to be made based on whether they could uphold that ban, they really

brought in and out and get a lot of the issues that were underlying. a lot of people feel that that was not the right way to go to her about it judicially. bill bennett, thank you very much, sir. always good to see you. >> by the way, i think it strengthens his position on neil gorsuch, a real constitutionalist. >> martha: we'll see. thank you, sir. so, the president has argued that this executive order is absolutely supported by federal statutes. here is an argument we have heard several times from the white house this week. listen. >> i would like to know, does anybody disagree when i read this? i will read what is in dispute, what is in question. you will see, suspension of entry or imposition of restrictions by the president. okay? now, that this isn't just me.

this is for obama, for ronald reagan, for the president. this was done, very importantly, for security. >> martha: with their take from each side on this issue, founder and chair of act! for america and a religious studies scholar. welcome to both for you. your reaction to this decision by the ninth circuit court. you just heard president trump talking about what he want to do in his mind, keep the country safe with this move. >> americans are less safe today than they were yesterday because of this decision. we are playing with american lives. the last at least ten terrorist attacks were committed by refugees who enter this country. the last two terrorist attacks at ohio state flasher, who went on a slashing spree, was a somali refugee. two months before that, the refugee who started killing

people and the ball of minnesota. the iraqi refugee he wanted to blow up the galleria and houston. the other refugees, the boston bombers who came here as refugees. there is a lot of families today who lost loved ones because of these terrorists who came into our country because we opened our arms to them. who are now very disappointed watching the news and wondering, what is going on in our country. we must protect the country from our enemies who wish to do us harm. >> what is your response? >> once again, you are propagating things that are flatly false. this is something that many of people are growing quite familiar with and comfortable with. the truth of the matter is, refugees are vetted more than anyone else in the world. they are vetted extremely well. what i hear the last guest, mr. bennett, talk about san bernardino, that was an american. orlando, that was an american. one of the thing that ms. gabriel does, she no longer describes criminality. what happened in ohio was, a somali refugee acted like a criminal. just because that person happen

to be somali doesn't mean the actions terroristic. that is what they do. they conflate every criminal act that happens to be carried out by muslims as necessarily terroristic. that is a circular argument. it proves itself. that is why it is incorrect. more propaganda than reality periods >> criminal does not cream alla akbar. we have seen terrorist attacks. a huge difference cream in a criminal act in a terrorist act screaming fat. we must protect the country. these are refugees coming into the country and committing attacks, endangering the lives of americans. this ban or order is only for certain countries who are harboring terrorism. look at indonesia, the largest islamic country in the world, 204 million muslims. it is not on the list. egypt, 80 million muslims, not on the list. afghanistan is not on the list! this ban affects only 10% of the

muslim population worldwide and those countries, he did not single out muslims. if you are an atheist coming from yemen or a christian, you cannot enter the country for 90 days because you are a citizen of yemen. >> martha: it's a 90 day temporary ban that prevents people from coming in for a few months. you look at the history of immigration and what people have gone through to get into this country, i know people from eastern europe we had to leave the country for six months, a year, 18 months in order to get to the proper papers to come in and go through the proper vetting process. a lot of people look at that and say, if it makes one person safer, why wouldn't any american, anti-christian, anti-muslim, who is a resident of this country, want that? why wouldn't everybody want tha that? >> that is the strength of the politics of it, martha. we are aware that the president in december of 2015 said that he was going to ban all muslims.

this was very powerful political rhetoric. >> martha: that is not the language in the order. >> let me respond to -- >> martha: every other politician has the the right to change their tune, abortion, serious issues. the language of that executive order did not include anything about banning muslims. it's different. the order should be judged based on the words that are in it. >> in fact, every country listed on that ban or temporary suspension, we have no person who committed terrorist attacks from those countries! there is something vacuous there. it is true! it is true! >> martha: you guys are never going to agree on that but there are facts to back up the notion that there are people from those countries who have committed attacks in this country. the obama administration most of those same seven countries. there is reason based on intelligence to save may be these are places we want to be

more careful. that is all that is said. why is that such a huge mountain to climb over to say, let's be more careful? >> because we are talking about two things that need to be seen together. we are talking about the legal issue. in terms of the legal issue, there are still the merits of the key is to be argued. as we have seen and discussing tonight, we will see that is continuing. there is a political context, as well. let's not pretend there isn't a political context here. this administration has made islamophobia a centerpiece of its politics, of the way it is going to talk to the country, the way it will present itself to the world. at times, it is exploiting certain avenues within the legal framework to advance what is clearly, politically being portrayed as an islamophobic presidency. quite proud of it, in fact. steve bannon makes islamaphobia a centerpiece of his politics. we can't ignore that. to ignore that would be irrational! it will be to put heads in the sand. >> you will be irrational not to

hear somebody screaming "allah akbar" wanting to cut off your head. there is a reason why americans are concerned about the threat of radical islam and the united states. look at what is happening in europe, look at what came out of yesterday, over 50%, 57% of europeans wish they never opened up their -- speaker to the president not say he wants to ban all muslims? to the current president of united states say he wants to ban all rossum's? how is that irrelevant? what people say they want to do is very relevant. >> martha: >> there is nobody fe countries that have done a terrorist attack. i am at a loss here. >> i just recited to you -- >> martha: we will have you back. thank you very much. i have to cut you off. thank you very much. we continue on bay breaking news news tonight to get some more

political reaction to all of this. trace gallagher with us. the incoming reaction to this huge decision tonight. >> we are getting reaction and scanning through this ruling from the ninth circuit court of appeals. we have to note, the government's key argument was that washington state didn't have the authority to challenge because the president has unreviewable authority to suspend the admission of any class of aliens, the court ruled, although, this is reading from the thing, although the jurisprudence has long counseled deference to the political branches on matters of immigration and national security, neither the supreme court, nor our court, has ever held that courts lacked the authority to review executive action or complaint to the constitution. on that, president trump tweeted, quoting here, "see you in court, the security of our nation is at stake!" now, we have just gotten us from washington state governor jay inslee, responding, the

president said "see you in court, the security of our nation is at stake!" and the governor responds, "mr. president, we saw you in court, and we beat you." of course, the governor is the one that got the ball rolling to the attorney general, the general hand us off to the district court, james robart, the one who made, or issue the restraining order against the president's executive order. now, the question for the department of justice and the department of homeland security, they are about to hold a conference or may be now are holding a conference call, that is the next step. you go to the supreme court or do you go back to judge robart district court to try to figure out this whole thing again? that might tie this executive order up for several months. the risk if you go to the supreme court come because they don't have a tiebreaker, if youe away with a 4-4 tie, then, the order for the ninth circuit court of appeals would vend a stand. >> martha: thank you so much. let's go back to marc thiessen,

and moa lethe. both are fox news contributors. thank you for sticking around during all of this breaking news. we appreciate it. let's get to the big political picture from you now. because resist and pushback are pretty much all this presidency has known and that is only 21 days old at this point. they have already had their first head-to-head run-in with the courts and something that was a basic tenant of the president's campaign. as kellyanne conway says, she believes it is a tentative being president. they are getting an enormous amount of pushback. marc, how are they doing? to the need to do anything differently? >> this is just the beginning. this is only the first issue that is coming up for litigation. the democrats and the left will follow a policy of obstruction by litigation on everything donald trump does. when he reveals regulation, they will sue. when he approves the keystone xl pipeline, they will sue. they will use the courts to come up has administration and stop

them. the only first skirmish in a larger battle that is going to be taking place. you pointed out earlier in the show that there are 50 different cases and 50 different courts right now. all of those courts have been stacked over the last eight years with liberal judges appointed by barack obama with a simple majority because the democrats in both the nuclear option in 2013 to make it easier to put liberal judges on the court that will be otherwise on confirmable. right now, the circuit course, court, when obama came to office, 10 of 13 had a conservaf geordie, now, 9 of 13 have a liberal majority. we have a major fight going forward about the state of the courts. we will have -- president trump i have to a big push to federal judges so we can get good rulings. right now, he is facing a liberal onslaught of my courts. >> martha: interesting piece in "time," mo come about

chuck schumer, who has become the harry reid's, the opposition, whatever you want to characterize it. it goes back and traces these two men from new york, how much they have in common. a fundraiser that was thrown out mar-a-lago for chuck schumer when he was running for office. now, chuck schumer had these protesters show up outside his house with signs that said "grow a spine," he didn't like that too much. now, these people who have known each oany years, work together on a lot of things, who, by the way, agree on things like nafta and tpp, suddenly seemed to be able to find no areas of compromise at all. explain. >> i think it goes both ways, to be honest. the president has drawn a bout of lines in the sand and so has senator schumer. there will be a certain amount of that, the irresistible force heading the immovable object.

that goes both ways. you asked mark a question that was interesting. do these guys need to do anything differently. i think there is a political upside and a downside here. the downside is, the shoot from the hip approach that is part of his political charm for a lot of people has its limits. we saw that here. we saw how badly the rollout of this ban was. we saw how a lot of the rhetoric that was used, the president using the word "ban," attaching muslim to that, that hit a wall. >> martha: everybody acknowledges what was set on the campaign trail. a lot of things were said. it was not an executive order to ban muslims, there are many large nations that are not banned. >> it is not uncommon for courts to look at intent. let me finish the thought about

the upside. there is a significant portion of the electorate out there, of his supporters, who want him to pick fights with institutions, whether that institution is the media, the judiciary. he got a major talking point in that fight tonight. for his supporters -- we heard bill bennett just now talk about the judiciary. i think that is a very dangerous approach, to undermine the american people's faith in our core institutions. i find that dangerous. but for a lot of the president supporters, that is what they want to hear and he is more than happy to serve it up to them. i think this fight is really just beginning. >> martha: marc. >> here's an upside and a downside. not only will that energize his face, it will rally people around president trump's who are normally trump supporters. there are a lot of republicans who didn't vote for him and didn't support him. he wasn't their first choice,

they were ambivalent. they are rallying around him because he is in a fight with the organized left. this is rallying the country. the downside for him, going forward, despite, if it continues come bowl suck the oxygen out of washington. a lot of other issues, the trump agenda, tax or from, health care reform, regulatory reform, thinks he campaigned on also will fall by the wayside because we don't have the time or space. >> martha: they said tax reform is just a couple of weeks away. and the bill o'reilly interview, he said it would happen sometime this year. maybe they will put the focus on something else for little while. we will see, mo and marc, thank you very much. let's check in one more time with senior white house correspondent john roberts, who is very busy today. in the briefing room right now. hi, john. >> here's a situation at the white house. the president is at the residence having dinner with rex tillerson, his secretary of, sheldon eight oh seven, one or

two other people. while don began, is on the second floor trying to figure out or the next steps are. we saw kellyanne conway a short time ago, i said, will you go back to the ninth circuit court of appeals, a en banc section? emergency appeal? she said, all of that is yet to be determined. we are working on it. she said something to me that will keep us potentially here for a long time. she said the night is still young, john. [laughs] don't know where we are going with this, martha. the president said "see you in court," he thinks this is a political decision. he thinks the ninth circuit has made a decision that is bad for the security of this nation. you can bet that tomorrow you will hear a lot about that because the president believes that these judges are potentially putting the country at risk. a lot still to be determined that i want more news to come out of this white house tonight or tomorrow. >> martha: the tension between these branches, executive and judicial and legislative, that

is how this country was formed. you're watching it play out tonight. john, thank you so much. joining me now is "the washington times" opinion editor and fox news contributor. julie roginsky, a democratic analyst and fox news contributor. matched lap, chairman of the american conservative union. donald trump's supporter. great to have all of you here tonight. >> hi, martha. >> martha: david, let me start with you. you are a trump supporter. you know donald trump weil, president donald trump. how does he respond to being challenged by the judges? >> one thing we know, mr. trump tactically is a brilliant guy. his campaign proof that. i don't believe he will go down the path of the ninth circuit court of appeals. as dan springer said in the show, 90% of their decisions last year were reversed by the supreme court. this is very interesting, martha. the one judge assigned to ninth

circuit ritz or emergency appeals as anthony kennedy. a reagan appointee, a conservative judge, mr. trump can go to him tonight to seek the reversal. i wouldn't be surprised. also, be careful what you rush for. he could present what amounts to intelligence, to the supreme court, something that the public would not know and ask for a far greater scope of a ban of travel based on many more countries, based on intelligence they receive. if that is a possibility as far as a change in tactics, i know it will be big. mr. trump is not going to take this lying down. he knows how critical it is protecting americans, and it's his number one priority, not banning muslims. within 24 hours, i expect a big move. >> martha: kellyanne conway said we might be here all night. what is your reaction, julie? >> of the president can do what he wants. he does have a lot of discretion as to how he keeps the nation safe. i will say, he consistently had

courts rule against him in this. part of it is because of his rhetoric during the campaign, part of it is what rudy giuliani said about wanting to institute a muslim ban. his own words are coming back to bite him. we will see this in the supreme court, i am sure, as david said. it will be after the supreme court to decide. ultimately, this energizes his base. it makes the confirmation process for judge gorsuch that much more important for both sides if you have a supreme court that is either divided on this, 4-4, or a supreme court that rules very narrowly against the president and make the supreme court nomination for judge gorsuch that much more critical for his base. >> martha: charlie, it is important to remember where this decision came from in the ninth circuit. very important to remember that they have been overturned a lot. when we listen to their audio of their discussion, everybody anticipated it would be narrow. based on the four corners of the executive order, whether there

had been irreparable harm to the people who were delayed, getting back to the university, not quite that narrow, but that is part of it. what do you think? >> it is not called the ninth circuit for nothing. the fact that these judges did get so far into the weeds with the particulars of the case, prima facie evidence, these judges are actually legislating from the bench. they think that they are supplanting the president's judgment for their own. this is a fight that we have seen on the national stage for 40 years, 40 plus years. i think that donald trump -- i think he is eager to have this fight. it is a fight over a very clear black-and-white issue between protecting the homeland and not protecting the homeland. if he can condense that fight down into why americans should care about judicial activism, i think that he will campaign across the country on that. i think he will win that fight and i could get neil gorsuch

confirmed that another supreme court confirmed. >> martha: basically, articulation, explaining the arguments and a clear way that everybody understands where you are coming from. some might say that there have been some missteps on that fron front. >> absolutely. donald trump has a lot of things going for him. he has a moral case on his side. the clear legal case on his side. as charlie just explained, he has got the political case on his side. i really think donald trump believes he has got to take his issues to the american people if he is to be a successful president. there are all kinds of conversations about what was in the ceo and not, at the heart of it, the desire to keep us safe from jihadists. it is a measured response, especially in light of the campaign rhetoric, to try to accomplish that. i think if we are talking about this for a protracted period of time, it does help the confirmation of neil gorsuch.

i think republicans are talking about judges, we are winning. i want to talk about judges throughout the whole year. we have to radically rebalance how these issues are handled. >> martha: tom price is being a sitter tonight, supposed to go into the morning. the cabinet has been held up dramatically during the course of all this. are democrats going to find some common ground at some point? >> it is interesting to hear anybody say that because obviously, we are waiting for the confirmation for the last supreme court justice. >> oh, come on. >> what is good for the goose, you can't get upset --dash go >> martha: if you think that was wrong, we will do the same thing to you. a very infantile argument. >> not exactly. i think the problem is you have nominees who have not gone through government and the way they should have. most importantly, harry reid got rid of the filibuster on these nominees, go ahead, you got control of everything. i don't know what the holdup is. >> martha: i want to thank all

of you. fascinating night to watch all of this unfold. we will continue to do throughout the course of the evening. bill o'reilly is coming up next with mark. thank you for joining us. we will see you tomorrow on "the first 100 days" ." ♪ >> bill: hi, i am bill o'reilly. thanks for watching us a nice. big, breaking news day. led by the ninth circuit court of appeals. upholding the stoppage of president trump's immigration order and that is the subject of this evening's "talking points" memo. let's cut through all the mumbo-jumbo. it will give you a headache. let's cut through the political hackery. here's what is really happening. the trump administration believes that terrorists are nations with no central control can get to the usa in a way that is far too