our thanks also to eugene robinson and bob costa of. that does it for this edition of "the 11th hour." brian will be back thankfully next week. have a good night. lots going on tonight, the u.s. circuit court of appeals. bottom line by now, you have good evening from chicago, i'm chris hayes. we were, of course, meant to air a town hall tonight exploring the challenges facing this city, we taped that town hall earlier today. it will now air tomorrow in this hour. the reason is that because tonight we have big, big breaking news. a unanimous ruling by a federal appeals court against president donald trump's travel ban. the trump administration asked the ninth circuit court of appeals to overturn a temporary restraining order on the ban put in place by a lower court last friday. instead, this decision keeps that restraining order in place. in other words, it blocks president trump's executive order nationwide and continues to block it as a lower court fund. we've already gotten response from the president himself posted on twitter in all caps "see you in court, the security of our nation is at stake."

joining me now from the white house briefing room, nbc news capitol hill correspondent kelly o'donnell. kelly, what's the response like there? >> chris, this was an unusual series of events because typically with a ruling of this magnitude, something that affects an administration, a new administration, there would be an official statement from the office. much different, it was a tweet from the president of the united states as you just indicated and we -- a couple of us were waiting around trying to see if there would be any additional information, i turned a corner, a door opened and the president of the united states came right out. i said "hello, mr. president." he stopped, he was willing to take a few questions, other colleagues joined us and we had a back-and-forth with the president who was more than willing to talk about his views and they were, of course, confident, mirroring what he tweeted. we have a little excerpt, audio only, no camera, and this is our conversation with the president of the united states. >> we'll see them in court.

it's a political decision and we're going to see them in court and i look forward to doing it. >> so you believe the judges made a -- >> we have a situation where the security of our country is at stake. and it's a very, very serious situation so we look forward, as i just said, to seeing them in court. >> sir, do you think this has undercut the early days of your presidency? this is such a core issue. >> no, this is just a decision that came down but we're going to win the case. >> and have you confirmed with your new attorney general on this tonight? is he a part of it now? >> no, i haven't, we just heard the decision. >> how did you find out about this mr. president? >> we saw it just like you did. >> via the news, et cetera, the media? >> it's a decision we'll win, in my opinion, very easily. >> and are you -- >> and by the way we won that decision in boston. >> are you any closer to a solicitor general who would speak on behalf of your government? >> i'll be making the decision over the next week about the solicitor general. >> okay. >> so my colleague hallie jackson and i, we were the two questioners there and we covered the topics i think are germane to this issue. there is a new attorney general who will have a responsibility

for carrying out policy that relates to immigration and would be advising the administration on matters like that. that is jeff sessions who took the oath of office today, interestingly, the president had not at that point had a conversation with attorney general sessions about this issue. he told us that he learned the way we all did through news reports and in addition i asked him about the solicitor general because as the president is previewing that this is going to continue to be a matter in court, he has a vacancy in that top job for representing the united states before the supreme court. the solicitor general. so it's a bit of news there that he's saying within the next week he plans to make that announcement. and, of course, the major part of his comments believing that they can be successful in court, calling it a political decision, which is very notable, and saying kind of again and again that he was confident. now, to give you a sense of his demeanor, since we had a chance to assess that and we don't have a video image of it, he was very relaxed. more than willing to stop and

talk. was not walking away from us. and wanted to get this message out. so unlike what we might have seen in administrations past where there would be an official crafted statement, it was by tweet and by hallway conversation that we learned the views of the trump administration on this very important night. chris? >> all right, kelly o'donnell, thanks for that. appreciate that update. let's go to nbc news justice correspondent pete williams. pete, can you give us basically the thrust of what these three federal appellate judges unanimously found? >> yes, and i -- a couple of points to say here, first of all, chris. this is what is called a per curiam decision, meaning it's not signed by any individual judge, it's for the court. so you know you may ask why did they do that? if it's a unanimous opinion perhaps they wanted to stress that it's from a court, not from individual judges so that's one thing to note. let's step back and see how it

got here. the states of washington and minnesota sued. a judge in seattle said i think you've got case here, i'm going to agree to put a temporary ban on enforcement of this executive order. the government went to the appeals court and said please lift that stay, let us enforce the order and the court today said no, we're not going to do that. and it said we're not going to do it because we think the states have a plausible case here when this goes to trial on their climb that this is unfair to people who already were here with visas or got visas, went overseas and want to come back. they say that's predominantly faculty and students at universities, employees of their high tech companies and residents of the state whose families are now ripped apart as a result of this order. they're overseas, they couldn't get back when the immigration order was under enforcement. so that's the claim that the states made and the ninth circuit court of appeals here today said there's some merit to that claim. now, remember the ninth circuit

isn't deciding these issues. all it's saying is when this goes to trial the states have a plausible case and that's why we're going to keep the stay in place. they say that the -- those people that had visas that came here and went back or want to come back and got stuck overseas are being denied their constitutional rights. that people in the united states, even if they're not u.s. citizens, can still assert due process claims and they say that by suddenly putting this order into effect with no warning and giving these people no chance to try to appeal this or change their minds, it de-privates them of their constitutional rights. now, one other thing -- two other quick points here. one is the states argued as well that this was religious discrimination because it seemed to be aimed at muslim countries. the court said, you know, that's for the lower courts to decide, we're not going to get into that. i think the other point here, chris, is that what the court really seems to be saying is if the trump administration had come along with an executive order that simply said anybody in those seven countries that we're naming who wants a visa

from now on, they're going to have to wait for 90 days while we assess whether the process for granting visas to people in those countries is good enough. if somebody says my name is mohammed mohammed and i'm from aleppo, how does the government go to the department of motor vehicles in aleppo to see if they're really that person? that's the government's claim here. the court seems to be saying if you had just limit it to people who want to come to the u.s. for the first time, this would be a much closer case and we might lift the stay but because it's so broad we can't allow this to go back into effect. all right, pete williams, thank you much for that explanation. that was extremely helpful. i really appreciate it. >> okay. i'm joined now by senator brian schatz, a democrat from hawaii. senator, your reaction to the ruling? >> chris, it's a really exciting day. this is a good day for constitutional government, for

the rule of law, it was a decisive decision. one of the things that struck me in the 29 pages is that they were more ambitious, less narrow than they needed to be. they wanted to sort of walk up to the line and talk about whether or not sort of looks like a duck acts like a duct quacks like a duck, it looks like a muslim ban. they wanted to talk about standing and i think they were especially irritated, if you read the decision, at the prospect that certain decisions of the executive branch are, in fact, unreviewable. now i don't have a law degree but when i heard that the government was going to argue that the president had unreviewable authority in this matter that struck a chord with me and it's consistent not just as a legal argument but it's very trumpian in its argumentation. this idea that because he declares something to be true that it must be true. i think the court was especially irritated by that and i think it's a good day for our institutions and our constitutional government.

>> one of the things donald trump has complained about is that the courts are political. he said again today it's political. and, you know, that is not an argument that is only made by donald trump. i remember as the affordable care act -- two affordable care act cases wednesdayed their way through the courts lots of liberals saying they thought the decisions were blatantly political, that it was essentially a bunch of bush appointees who were trying to work over the aca. what's your response to donald trump denouncing this as political? >> well i think it's really important to remember who richard clifton is. he's the bush appointee in that three-judge panel on the ninth circuit. i was listening to the case live on your network and richard clifton is a good, solid republican from hawaii. he was the republican party of hawaii's lawyer. i know him. he is not a liberal and i could hear him sort of trying to get to yes but he was just not persuaded by the government so i think that's what's happening is that even those with their own

ideological disposition, their own partisan disposition, their own views on the issues are basically standing up as a bipartisan majority in the judiciary, some in states and cities, some of them within the executive branch of the federal government and saying, look, there are some things that are more important than politics and especially partisanship and at the very top of the list is the rule of law and so richard clifton is no liberal. he may be coming from hawaii but he was appointed by president bush and he was part of that unanimous decision so i thought that was one of the most consequential aspects of the decision. >> is there a role -- i mean, someone i saw made a remark about how the first three weeks of the presidency have been defined by two of the three branches of the government, the executive and the courts. what role do you see for the senate to deal with what are a sort of thorny and complicated legal issues? >> you're asking exactly the right question. i've been talking with my colleagues and staff about this.

you have institutions across the country, religious institutions, the department of defense, the department of homeland security, states, counties, the judiciary, people, individuals sort of as part of an uprising on behalf of constitutional government. the straggler in all of this is the federal legislative branch. so one of the things we're working on as we resist these nominees, as we exercise our duties under advice and consent is to try to find that bipartisan majority to stand up as a senate, as a legislature on behalf of constitutional government and lawful government. it's going to take a while because we are the branch with elected officials and it's extremely difficult for some of these republicans even the ones that are sort of at least alarmed if not disgusted at what's happening, for them to

get all the way to no so early in this presidency but you can see the dam starting to break. you see ben sasse, you see senator john mccain and i don't think you can go and do battle with the whole legislative branch. not just democrats but republicans, committee chairmen trying to bully them over time is going to backfire. i wish it would happen tomorrow morning but i am confident that it will eventually happen. >> senator brian schatz from hawaii, thank you very much, appreciate. >> it thank you. still ahead, the president is tweeting in all caps following his loss tonight. the reactions on the other side of the aisle continue to pour in. and later, new york attorney general eric schneiderman on what happens next. stick around.

reaction is coming in from capitol hill tonight on the ninth circuit court of appeal's refusal to reinstate president trump's travel ban. senator bernie sanders saying

"hopefully this ruling against trump's immigration ban will restore some of the damage he's done to our nation's reputation around the world. hopefully this ruling teaches president trump a lesson in american history and how our democracy is supposed to work here at home." sanders adding "this was a good day for our system of checks and balances." senator charles schumer weighing in "president trump ought to see the handwriting on the wall that his executive order is unconstitutional, he should abandon this proposal, roll up his sleeves and come up with a real bipartisan plan to keep us safe." joining us, jennifer rubin and howard fineman. jennifer, let me start with you. we know from the reporting and the timing of this, this was extraordinarily rushed. it didn't go through the normal interagency process. in fact, nonlawyer advisers to the president apparently overruled dhs about the scope of this. it was put into place and in many respects the court's ruling, if you read it, is as much as evisceration of the sloppiness of the drafting of

this document as the underlying policy itself. >> i could not agree more, chris. when you think about all the mistakes they made, including green card holders, that was a major part of the ninth circuit ruling. they were told not to do that and they did it anyway. they had zero, zero due process component in this. so when the court looked to see if these people were afforded even minimal due process they saw nothing. when they chose to role back the ruling, it was the white house counsel who signed some stupid memo as opposed to the president signing a new order. they nailed them on that. >> yes, the court -- let me just say the court there, it's one of the most hilarious parts of the decision because the white house counsel says "no, totally jk, just joking, about the green card holders, that's all good, no constitutional issue to see here." and the court says that's not the way it works, the white house counsel is not the president of the united states, he can write anything he wants, it does not effect what you have actually signed? >> and that is a perfect example of how badly this was lawyered,

let me tell you. the thing that struck me was that there was no evidentiary showing by the government. it's like they didn't take this thing seriously. the court begged them, show us where the government, the people of the united states, would be irreparably harmed. that's one of the standards, one of the tests they used in tro. the government gave them nothing. why was that? why were they totally unprepared? why did not not even have an affidavit, something, from the cia, from some agency. even the initial argument, this overly broad argument that this is unreviewable. i mean, post-george bush and all of the cases on detention, that's not a viable serious argument and the court beat them up on that, too. talk about high school students that trump was upset with, he was upset with his own lawyers, not the judges or the states because this was amateur hour and it's kind of breathtaking when you think that this was supposed to be a national security issue of importance to the president. and they went about this in the most sloppy halfhearted way and they got really reamed down by the court. the obvious thing to do would be to redo this, lawyer it better,

come up with a new order and see if it can get through and there probably is some narrow order that would go through, aside from the policy issue which was a different matter. >> right. i think that's exactly right and howard, to jennifer's point, part of the issue if they do as they continue to litigate this the next stop would be the supreme court to review whether the temporary restraining order stays in place is there's a bell the president can't unring and that bell is him calling for a muslim ban. that is entered into evidence by states in this case as the intent of the order when they're making their claim even though they didn't touch the first amendment claims here about religious discrimination. that seems to me at the nexus of the politics of what's happening here as well. >> yeah, i would caution against merely talking about this as sloppy lawyering. because i think what the court is saying out in san francisco is uh-uh, this isn't the way it works. you can operate by fiat in manhattan real estate.

you can intimidate construction contractors. you can intimidate hapless republican presidential candidates. you can even try to bully reporters but when you're talking about going to the fundamental rights of the american people, it's the constitution that rulesened you must be careful. so i think this -- what they did here was not nearly sloppy, it showed their attitude at the beginning of the presidency and i think as bernie sanders said and to view this in an optimistic light, this court is trying to teach donald trump and his people a lesson. you don't operate this way as president of the united states. you don't just say national security gives me untrammelled right to do anything outside of the constitutional framework and to get to your specific point about muslims, you know, they might have been able to escape

that except for the fact that the hotheads inside the white house insisted on special language protecting religious minorities in these seven countries which basically translates to christians. so that made the establishment religion clause thing viable in this case. and i would say another thing in terms of politics. don't forget that donald trump over the last few days called one of the judges a so-called judge. said yesterday that, you know, that's kind of good but common sense, meaning my common sense is better. that's not the way this system works. and interestingly enough, in other presidencies, whether it was franklin roosevelt in the court packing incident or richard nixon, constitutional crises came at the end. what the court in san francisco

is trying to say look, let's have it out now, get it straight now so you operate within the rules. >> you know, that's an interesting point and one of the things that i find most troubling, jennifer, here, is increasingly it seems the rhetoric that emanates from the white house, particularly the president, is to essentially lay a predicate for blame if and when something terrible happens. and the threat of a terrorist attack in this country is obviously real, it demands tremendous vigilance and sophisticated operation in counterterrorism which is very difficult and in this really sort of chilling way it seems they're as interested in laying the predicate for blame in actually getting their own executive order put into law. >> i absolutely agree with that and i think howard is right when he talks about this hubris, i can do whatever i want. just like the campaign, i can put out whatever white paper and people will go along with it because i'm donald trump. i do think that at least with

respect to this ruling, i would like to think that there is somebody in the white house, anybody in the white house, who says you know what? we screwed up, mr. president, let's do this again, let's do it the right way. let's do it narrowly, let's have all of our ducks in a row. they can take the blame on themselves. if they don't trump will go up to the supreme court and you're right, whether he wins or loses he's going to blame, strangely enough, something on the court which is preposterous because, of course, it's within his power to draft a new order right now. but this is what he does. he essentially calls people traitors when they question him. you don't have the right to question me, you're enabling the enemy, you're setting us up for all kinds of harm. that's not how democracies work. >> and howard, we've seen that widely dispersed throughout his political life in this incarnation from the campaign to his presidency to today when he was attacking john mccain, essentially, for besmirching the name of a fallen sailor, that is the most weaponized kind of rhetoric that a president can deploy.

>> yeah, it is. and having covered trump in the campaign and having known him some in years before then and having spoke within him and been with him, he doesn't have a reverse gear and he -- apology, an admission of wrong and mistake is something he rarely if ever does. jennifer is right. if he plunges ahead with this ill-crafted sloppy order as is and tries to maintain it as is and refuses to admit that they were overwhelmed -- he's got plenty of excuses, by the way. he can say i didn't have my attorney general, we didn't have the whole thing in order. we moved -- there's a way that somebody who was willing to admit a mistake could easily do but i'm very dubious of whether he'll do it in this case. by the way, one of the candidates for solicitor general

who would be the person who would argue this case before the supreme court if it gets there is none other than kellyanne conway's husband george conway, a major lawyer in new york. let's see if he gets that job. >> yeah, kellyanne conway who was issued a rare repudiation today from the republican chair of the house oversight committee for urging people buy the president's daughter's items. jennifer rubin and howard fineman, thank you very much, appreciate. >> it thank you. our coverage continues ahead. new york attorney general eric schneiderman says tonight's ruling is a huge win for the idea that no one is above the law. he joins me after this break.

bottom line -- this is a complete victory for the state of washington. the ninth circuit court of appeals in a unanimous decision effectively granted everything we sought. we are a nation of laws and as i've 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. >> attorney general bob ferguson of washington state who brought the lawsuit against the president's travel ban expressing his happiness over tonight's unanimous ninth circuit court ruling -- former u.s. attorney general eric holder tweeted a picture of former acting attorney general sally yates who was fired by president trump for refusing to defend the ban with the caption "skill, judgment, courage, vindicated 3-0."

an apparent reference to the unanimous decision. hillary clinton also tweeting simply "3-0." joining me is eric schneiderman, the new york state attorney general who recently joined 15 other attorneys general from across the country to oppose the president's travel ban. and attorney general schneiderman, let me start with this. some folks said there was no standing here. so basically they were saying the state university systems at play gave the state standing. >> well, they did. they focused on the universities but really this is -- there's no question that states can assert standing of institutions they represent.

in fact, schools assert standing on behalf of their students. organizations like the naacp assert standing on behalf of their members. so the court's holding on standing is squarely within the case law so the fact that states have standing to protect the rights of their own institutions, in new york we have health care institutions, universities, economic losses caused by this order so i don't think there's going to be much of a dispute as to whether or not states have standing. the court ruled on that and then moved on to the merits. but there's no question attorney general ferguson and the attorney general from minnesota who joined him had standing and that was adopted by all of us who put in amicus briefs. >> you seem confident it was not going to stand up to the test in courts. how much of that from your reading of the ninth circuit's opinion is about the way in which they've gone about that as opposed to some ostensible version of the policy that was more cleverly and rigorously lawyered? >> well, i think it's a combination.

the government in this case and the court point this is out artfully was driven to take the federal government very extreme positions. they took the position that a presidential proclamation relating to immigration is unreviewable by the courts. that's an extraordinarily extreme position but they had to because of the way the executive order was drafted. we took an incredibly extreme position of the other people in the united states other than citizens have no due process rights when seeking to reenter to the united states. everyone in the united states, whether it's lawful, unlawful, tourist visas, you have standing. the president's lawyers take very extreme positions because of the sloppiness of the order. but i don't think they much doubt when you get to the merits

of the case that the court was correct in finding there was substantial evidence that trump's lawyers had not overcome -- met their burden of showing they had a likelihood of success in prevailing on the claims. that this was not an order whose intent and purpose was to discriminate against muslims and deny people their due process rights. >> that point you just made was striking in the language of what -- of the court's ruling. almost bristling against the breadth of the claims made against the government that for instance the president can ban any class of "alien" he wants for essentially any purpose in a fashion that is unreviewable by the entire judiciary and the courts just -- the language there is strong. they say it's anathema to the function and structure of our constitution. do you think that was a guiding legal ethos taken by the -- this

is how we should interpret this executive branch's view of the expansiveness of its powers. >> yes, i think the famous expression, the founding of the republic, we're trying to create a government of laws, not men. it's clear the current president would like to reverse that in a government of a man, not laws. and this court stood up to him firmly, rooted its decision in unassailable authority. but for them to assert that the president has unreviewable authority to suspend the admission of any class of alien is an extraordinary statement. presidents are subject to the constitution and that's case law that comes from republican and democratic jurists, this is a unanimous decision by republican and democratic jurists and it's supported by cases that have dealt with much more challenging circumstances than we face right now, during world war ii, during the civil war when it made clear how exigent the circumstances, presidents are subject to the rule of law and the courts should decide if their actions are constitutional or unconstitutional.

the president's order was so extreme it drove his lawyers to take extreme positions and the court slapped them down one after another. >> eric schneiderman, the attorney general for the state of new york, thanks for joining us, appreciate it. >> thank you, chris. coming up, will the fight go to the supreme court? white house press secretary sean spicer responds to that question. what he said that have break. how do you become america's #1?

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dealing with the temporary restraining order, we look forward to having a rule on the merits, we feel very, very confident in the president's authority on this. as stated in the u.s. code, the president has the authority to make sure people coming into this country are doing so with the proper intentions. >> so obviously the first question, will this go all the way to the supreme court? >> i think we'll have to reexamine our legal office. >> white house press secretary sean spicer speaking with breitbart news on facebook live tonight after the unanimous ninth circuit court decision

against restoring president trump's travel ban. i'm joined by a professor of immigration law at american university who was also counsel to the assistant attorney general for national security at the department of justice. gdir abbas and the deputy director of the immigrant rights project at the aclu. lee, let me begin with you. i saw you outside the eastern district courthouse in brooklyn on the night this first went into effect when the first temporary restraining order was put into place. it was much narrower than what was put into place than the district judge on the west coast. where does this case go next now that the ruling has gone down? >> we've come a long way. when i argued that first case that first night you were the first person i saw when i came out of court and that set off everything else and now we've really come a long way and this was a really great opinion today. i don't know where we go next because i don't know whether they're going to go to the

supreme court or -- it could go back to the district court stay in the court of appeals. >> lee, i have a hint, i think the government will appeal this to the supreme court given the american the white house and the ethos with which he tends to drive things. the idea that they will stop, lick their wounds, gather themselves and reconsider seems unlikely to me. >> that may be right. >> go ahead. >> i was going to say one great thing about the opinion is that it recognized the human dimension going on. you know, these are -- immigrants have been so part and parcel of who we are as a country. whether your name is mohammed, smith, green. that comes through in the opinion that there's real harm to real people. in addition to all the great legal points that were made so that was heartening. >> jennifer, let me -- can i play devil's advocate for a second? as i was going through the opinion i realized that, you know, there's a fundamental

question here and it gets to kind of the core appeal of donald trump's version of kind of nationalism and american nationalism which is this kind of thing of, well, what exactly do we owe people who aren't americans? what do we owe people that are non-citizens who live in the u.s., undocumented, people who want to come to this country, does the constitution protect everyone? do we basically have a -- under the fifth amendment due process applies to the billions of people on earth and anyone who wants to come to the u.s. could come in because our constitution grants everyone on the planet due process? what are the limits here? >> so the answer to that is clearly no, the due process clause does not protect everybody. but what the court was strong about in this opinion is that the due process clause does protect aliens who are here. and it rejected even the trump administration effort to save this order by narrowing it saying okay, if you disagree with us and think the executive order should be struck down, here's an alternative, let's limit the executive order so it

carves out legal permanent residence and admitted aliens who want to go overseas temporarily and come back thinking that that would save the due process argument. the court said no. if you're an alien here, even if you're unlawfully present, you have due process rights and if you're a non-immigrant visa holder and you want to travel overseas temporarily, you have due process rights and the executive can't just take away your immigration benefits and rip them up without some sort of notice and some sort of process, which is what happened here. >> right. so it's not -- i mean because i think the argument that i've seen people like steven miller has even made on television, like we're not a nation if we can't control who comes in and the president at s at the high point of his authority in matters of immigration because that's dealing with protecting our country. the issue here is that fundamentally what the court is saying the constitution pertains to everyone here. whatever their status is. you can't do whatever you want at a whim to people who are not citizens.

>> and the court says you can't say it's unreviewable because it's subject to broad executive authority. you can't act in ways that violate the constitution and here the court was clear that it thought the actions violated the due process rights of individuals who are present in the united states. >> i want to read this part of the ruling because i thought it was remarkable and it goes to what we were discussing with attorney general schneiderman. the government made the argument that it was unreviewable, what the president did. that the president had unreviewable authority to ban any class of aliens he wanted to and the court says "the government has taken the position the president's decision about immigration policy, particularly when motivated by national security concerns are unreviewable even if those actions potentially contravene constitutional rights and protections. there is no president to support this claimed unreviewability which runs contrary to the fundamental structure of our

constitutional democracy." those are strong words from the court. >> those are very strong words but there is one precedent, the president for deferring blindly to the executive branch resulted in the internment of thousands upon thousands of japanese americans. at the tail end of world war ii out of a concern that the japanese were about to invade california. looking in hindsight, japan at that point didn't have a navy to invade the united states with so wherever we're seeing this type of radical deference to the executive branch, that's where we're seeing the worst most historically embarrassing tragic examples of executive overreach. deference to the executive branch is what justifies indiscriminate surveillance, it's what justifies these types of blanket bans on people and remember the executive branch, if they had evidence that any single green card holder, visa holder was engaged in criminal activity, they still retain the right to arrest that person so essentially the trump

administration is taking the position that we should be able to ban these people from our country without any evidence of wrongdoing and that's an objectionable and dangerous idea that was soundly rejected by the ninth circuit today. >> lee, finally, one thing that is important to keep in context here is the president talks about people pouring in. if you ever knew anyone from any of these countries who tried to get an american visa, that is not an easy process. >> right. that's a great point, chris, these are people, especially these early arrivals have been so extensively vetted. these are not people we don't know anything about. look at the two people who were the named plaintiffs in our case. one was an interpreter for our military, risked his life. so this is not people pouring in we don't know anything about. that's a myth that's been propagated and it's simply wrong. >> jennifer, gadeir, lee, thank you for watching me through that, appreciate.

>> it thank you. joining me on the phone is noah purcell who argued the challenge before the supreme court in seattle which led to the temporary restraining order. mr. purcell, you must be feeling pretty good this evening. >> we're, of course, very happy with the results and the court's ruling. >> what do you find as indications of what this means going forward? do you expect, for instance, the government to appeal to the supreme court and try to get the ban temporarily reinstated via the supreme court? >> well, i can't answer that. that's a question for the federal government but i can say that we're extremely pleased with how thorough and careful and thoughtful the opinion is. it really addresses all of the government's arguments at length and explains why they're incorrect and i think it's wonderful. >> sean spicer at the top of this block in that facebook live

interview said that, you know, this is not -- this is a ruling on the temporary restraining order about whether this gets stayed. whether the temporary pause on enforcing this policy stays in place, it's not on the merits. is that accurate? my sense is that some peek at the merits is part of what the court issued today? >> you're right. it's true this is not a final decision but a court does not grant temporary restraining order without finding that the plaintiff is likely to succeed on the merits and that's what the court -- that's what the judge found in the district court that we were likely to succeed and that's what the ninth circuit agreed with, that we were likely to succeed on at least two of our claims and they didn't feel like we had to address others but we show confidence in all of our claims, we just haven't had a chance to fully present them. so it's not correct to say

there's nothing do with the merits yet. >> are you confident that that a -- if this executive order were to be withdrawn and a policy along the rough contours of this were redrafted with an eye towards insulating it to something you make in this case, that it could survive scrutiny or is it rot on the the core in your estimation? >> that's a fair question. it's hard to down what's been done. the same policy can be unconstitutional or not depending on what motivates it. so i think the challenge -- i think the challenge for the administration will be to -- if they want to do something similar to this they have to explain why it's different enough or narrow enough to not

raise that same concern. we certainly recognize that it's the president's job to protect the country and he has a lot of power to do that. he just can't do it in an unconstitutional way and there are a number of tool at his disposal to protect the country without this blanket ban that applies to infants and school children and law-abiding high tech workers or faculty at universities and so there are things he could be well within the law to improve security but instead of doing those things he focused on this broad band that serves no national purpose. >> washington state solicitor general noah purcell who is doing the lawyering olympics on this thursday night. thanks for talking to me, appreciate it. >> my pleasure, thank you. programming note. we told you about the town hall i hosted in chicago today. due to the breaking news, that will air tomorrow night. but we had a lively, emotional at times raw and fascinating debate with members and leaders of the community about what's happening in chicago, a city that president trump has repeatedly used as a kind of short hand for violence.

>> to president trump, come here to chicago, see what all of these folks in this room -- black, white, democrat, republican, city official, civic leaders -- are doing in this city and they need the resources of the federal government to ensure there's no more blood, not a police officer, not a community member, spilled another day in this city from this day moving forward. [ applause ] >> we will air that town hall discussion tomorrow night 8:00 p.m. missing. after the break, more on the breaking news tonight, federal appeals court ruling against president trump's travel ban, stay with us.

>> i think it shows the checks and balances in our system will work. obviously this executive order, many thought it made this nation less safe. i've talked to world leaders who told me it will be a recruitment tool by the terrorists so the courts have ruled and they have blocked it from going forward. that's important for the executive order itself but it also shows that president trump who has the propensity to issue a lot of executive orders, that his power is not unlimited. >> senator ben cardin, democrat from maryland, just moments after the ninth circuit court of appeals ruled against reinstating the president's currently paused travel ban. joining me now, betsy woodruff, political reporter for a daily beast, matthew miller, one time aide to former attorney general eric holder, former spokesperson for the justice department.

betsy, republicans is in the house and senate have largely been either approving or just sort of silent on this, even as it's been one of the bigger issues in washington. do you think that changes after tonight? do you think we'll have to get off the sidelines? >> i think it's possible. remember one core republican talking point going back for decades is the judiciary branch is out of control. that judges have too much power, that they need to be reined in, that they're legislating from the bench and i think donald trump has framed this debate in a way that's going to be conducive and safe for republican members of congress to get on board. they can say look, these judges, they can echo what trump is saying and hold that these judges are putting the safety of our country, our national security at risk in exchange for trying to damage president trump and in terms of politics, in terms of talking points, that's what the republican have been using for years and years and years. so it's easy for them to get on board here. >> that's a great point but i

would note from a substantive standpoint, that argument about judicial activism is usually about laws that are duly passed by legislatures and that signed into law and the courts are steeling that power from legislature. in this case there's no legislature, this is a piece of paper the president of the united states signed. >> that's going to make it useful for republicans. they'll say rather than courts stealing power from congress, they're stealing power from president trump who's trying to keep it safe. so either way it's going to work but this situation is unprecedented so we'll see how long the talking point is effective. >> matthew, a lot of people have viewed the story of this executive order as kind of this test in miniature of american institutions. we knew we were in uncharted territory in certain historical senses with president trump, someone who never served a single moment any public office in the military for the first time this constitutional republic's history and the question of how our government will respond. what's your assessment of how it's responding three weeks in?

>> well you're right. he was elected president by showing how so many institutions could fail. the republican party, in some ways the press and tonight was a big example of the court saying at least we are not going to it is idly by and let the president make whatever claims about executive power he wants to make. there were two things the court was pushing back on, one was the words of the order, the president made claims very similar to the claims you saw in the bush administration that some of the national security policies of the president can't be reviewed by courts. and it took really till the end of the bush administration for courts to say, no, we're not going to let that stand. we're three weeks into the trump administration and they're saying no, we're not going to let that kind of argument stand. and i think the other thing that's not in the text but i have to believe was in the judges' mind for a long time will be the president's attacks on the judiciary, going to far as to blame them for future terrorist attacks. judges notice that and they will

want to show they need a put a box around this president's power early. >> betsy, there's a traditional way of thinking about political capital, particularly someone newly elected and particularly a newly elected president which is is that it's the reserve that gets drawn on and you can leak it and you decline in political capital. this president was elected as fairly unpopular. do you think essentially defeats like that have the traditional effect on political capital? >> not necessarily. it's also important to remember this is only a temporary defeat. all signs point to trump taking this to the supreme court. first off there would be an argument before justice kennedy. it's possible he could overturn the panel from the ninth circuit's decision on this so this is not a permanent defeat at all. trump sees this as a battle just getting started. that all caps tweet indicated as much. this is something that revs him up.

this is something he gets excited about. he gets to pit himself as part of a conflict. he gets a foe. it's likely as this court battle plays out we see trump goes go back into campaign mode, which is the most he's most comfortable being in. in terms of what that does for his capital, i think it excites his base. i think the folks who support him get more excited. trump's opponents are likely to be more galvanized than ever. >> if this plays out in any way that normal washington works, someone will walk the plank for this. betsy woodruff and matthew miller, thanks for joining us, appreciate it. >> sure thing. that is "all in" for this evening. again, our town hall from chicago will air tomorrow night at 8:00 p.m. eastern. you want to check that out. the rachel maddow show starts right now. good evening, rachel. >> thanks, my friend, appreciate it. thanks at home for joining us. lots going on tonight as we are absorbing this unanimous ruling from the federal appeals court.

bottom line, by now you have heard the president's ban is not in effect. the refugee ban, the travel ban on people from majority muslim countries, it is legally blocked by this ruling the trump administration has been denied again in its efforts to have its ban reinstated. and we're going to hear in just a couple of minutes from some of the people who have been involved directly in this case, including the man who brought this case. we'll hear about what this means, what is expected to happen next. we'll hear about who what the scope is of this ruling, what the judges could have ruled on and what they did rule on. but for those of us who aren't lawyers and those of us watching this case so raptly, not just because we care about this policy but also because we care about our country more broadly and we're wondering what this new administration is going to be like, w