two of the judges were appointed by democrats william canby and friedland, -- michelle friedland and one by a , republican, richard clifton. justice department lawyer august flentje argued trump's executive order was constitutional. >> congress has expressed the authorized by the president when it is necessary or when otherwise it would be detrimental to the interests of the united states. that is what the president did here. and the president determination that a 90 day pause was needed for the seven countries at issue here in order to ensure adequate standards -- language from the order -- for visa screening was plainly constitutional. the districts courts order, which contained no assessment of illegality to the order, was in ererror and we encoururage the t tuesday. amy: during his argument justice , department lawyer august flentje questioned the role of the court in reveviewing the president's actions. >> the reason we sought isediate relief and a stay because the district court's decision overrides the president's national secure to judgment about the level of risk. and we hav

judge friedland and her colleagues wanted to make clear that the answer is no. the president is not above the law. and that's what this opinion says. >> i want to add one thing. while they coordinated a strong attack on the idea that only the president has the right to deci decide issues in this area of national security, there is wording in the decision that suggests the president may have a zone of national security authority where there's a legitimate threat to the interests of the united states. what they said here was we asked his lawyers repeatedly, where is the evidence that this ban is responsive to an arcticulable national threat and the judges said they couldn't answer the question. we won't reach the eschissue as whether there may be some national security issues reserved for the president but here's there's no evidence of a national security threat. >> when we get to the next steps, david gergen, we don't know. they could go to an eng bank, try to get more judges involved in the ninth circuit, go to the supreme court, the underlying argument of const

that whole line of questioning from judge friedland about evidence.s nothing to do in this stage of the case when you are talking about a temporary reeve strange order and stay and injunction. this is procedural. we are not to the merit stage of the case. i have told you have i was nervous about the 9th circuit. that's why. when you get to the merits of this case, they don't have to show evidence when it comes to national security when the president has a clear constitutional and statutory authority. that he i -- that allows him to act. he doesn't have to prove to this judge or the 9th circuit. liz: jordan, hang on. what is so disturbing sometimes to people out there who are members of victims' families 6 terror. -- of terror. they feel like they are being jeff looked. for the judge to be asking for evidence when clearly the evidence its out there from the federal government itself. >> it's disrespectful, wrong and it was to throw the attorney off. i don't think the attorney did an exceptional job. he was asked a direct question and could have shut th

i thought you'd have friedland voting for washington state, clifton will vote for the government and camby is on the fence. i suspect that in the end he's going to go with the government because the tenor of the argument seemed to suggest concern that this is a presidential prerogative and also a lot of concern that maybe the record isn't complete here. maybe we need a hearing in the lower court before we're going to make such an important ruling. of course if they vacate the stay and send it back they'll have a bigger record to look at. >> alan? >> i have predicted from the beginning this court is not going to upset the current stay because that would create chaos. i do think that the government was not well represented on this appeal, that the lawyer for the government did not have answers to the hard questions. he could have made a much, much more compelling argument. he didn't begin well and he didn't really focus on what the court's concerns were. i think he could have made a much stronger argument on the whole establishment clause issue. here you have the united states governme

william cam beand friedland and.ne point judge clifton asked the attorney for the state of washington how the executive order could be a ban of muslims when muslims from most countries in the world would still be able to enter the united states? >> i have trouble understanding why we're supposed to infer religious animus when in fact the vast majority of muslims would not be affected as residents of those nations. reporter: and judge friedland asked the lawyer for the federal government why president trump's motivation for the executive order, should or should not be considered? >> we're not saying the case shouldn't proceed but it is extraordinary for a court to enjoin the president's national security determination based on some newspaper articles. and that is what is happened here. that is not, that is very troubling second-guessing of the national security decision made by the president. reporter: melissa, the losing side is expected to appeal the decision to the u.s. supreme court. justice anthony kennedy, that

friedland was appointed just two years ago by president obama, notable because at 44, she is among the youngest federal judges in the country. the questions from the judges to both sides of the lawyers were at times very tough. here is a sampling, beginning first with the judges questioning a lawyer for the trump administration. >> has the government pointed to any evidence connecting these countries with terrorism? >> these proceedings have been moving very fast. and the strongest point on that is that in 2015 and 2016 both congress and the administration made determinations that these seven countries posed the greatest risk of terrorism. >> is there any reason for us to think there's a real risk or that circumstances have changed such that there would be a real risk if existing procedures weren't allowed to stay in place while the new administration conducts its review? >> well, the president determined that there was a real risk. that's why the president determined that the best course was a temporary -- it's a short halt in entry for 90 days while these procedures are looked at. an

i think it was judge clifton who pointed out, judge friedland, i'm sorry, maybe both. kerry versus dinn says exactly the opposite. this court's decision says exactly the opposite. if the plaintiff makes plausible allegations, sufficiently supported of bad faith, the court can look behind the motives and in those cases just to be clear, those are cases where the -- the case had to do with excluding an alien who had never been here and had no right to be here. so if anything, the court should take a more harder look at the real motives in a case where there are significant impacts on people who do live here, who've been here for many years who are longtime residents and who clearly are entitled, themselves, to constitutional rights of due process, equal protection unlike in kerry and mandell where really it was, you know, the rights being harmed were of the people jooverseas. it was the people here who were asserting them. >> the assertion the court took up the claim only because in the case of kerry versus dinn, miss dinn was a u.s. citizen. the number of people affecte

quickly, jeffrey, the fact that it was a unanimous decision by these three federal judges, canby, friedland, clifton, how significant is that in considering where to go next? if it were 2-1 would that have made a difference? >> as a technical matter there is no difference from a 2-1 to this decision. as a matter of the public perception of the two rulings there is a difference between 2-1 and 3-0 especially when the judges come from different politic political back rounds. this decision will have a lot more credibility because it is unanimous and i think it complicates the trump administration's attempt if they choose to make it to disparage this decision as simply a political act. the fact it comes from a diverse political panel will insulate this decision from a kind of criticism that it would have gotten if it had been two democrats versus one republican. >> major setback for president trump and his administration. a complete setback i should point out. the order, the travel ban, that he wanted to go into effect will not at least for now -- will not go into effect. senator, i know you've

and judge michelle friedland, born in berkeley and a stanford grad. she is one of the youngest federal judges at age 44. >>> president trump got his way on capitol hill just barely for the first time in history, a vice president cast the tie breaking vote to confirm a cabinet nominee. mike pence's vote confirmed her. they cited her lack of familiarity with public education. >> i do not believe betsy voss should be the next secretary of education. >> 51-50. >> we'll have more on these appointments coming up on "nightly news." >>> a hawaii getaway didn't go as planned for some bay area travelers. this is the route united airlines flight 1111 was supposed to take. this is the path that actually took. it looks like a child's doodle. not long from taking off, the plane developed a mechanical issue forcing the turn-around. before handlanding, it burned o four hours worth of fuel in stormy weather. >>> let's get back to our micro climate weather alert. a key road into yosemite has been closed. this is just inside yosemite national park. that means there no,

junior, appear pointed by jimmy carter, judge clifton an pouted by president bush, and michelle friedland appointed by president obama. the case before the 9th circuit centers on a challenge to the trump administration from the states of washington and minnesota which argued the ban was unconstitutional and would harm their economy. california has joined 15 other states filing a friend of the court brief in this case arguing the ban harms the state's universities affecting scholars and students. nearly 100 tech companies also filed a brief including apple, airbnb, google, facebook, and tesla, arguing it would damage their ability to innovate by preventing qualified employees to enter the u.s. others have also filed amicus briefs including a group of former national security officials including madelyn albright and john kerry what said there was no national security purpose for such a ban. in its response the justice department reasserted the authority of the president saying, quote, the state asks the courts to take the extraordinary step of second- guessing a formal national security jud

somebody named milton friedland long ago that a universal guaranteed income is something that will haveo happen in the future. >> the idea is taking it from the rich, giving it to the poor? haven't we seen this before? socialism, communism? it hasn't worked out well in the past. i think anthony is right. somebody needs to program all these robots. fix all these robots when they break. fix their robot stds they will get. >> tom: is the robot going to get stds? >> viruses. devore. during the raid, it was the fifth crack of the show. >> i'm here to make a difference. i'm here to change minds. >> tom: it's not just liberals calling for this. elon musk is no liberal. milton friedman is no liberal. >> no, he's not a liberal. >> tom: what do you think of the ubi? i think it would be part of it because conservatives are for it. >> look. this is one of the challenges of capitalism. i do sort of agree that there are jobs that will happen that we cannot foresee. but we are already seeing with factories and with automation that a lot of people are going to be put out of business because we are succ

michelle friedland was appointed by obama, and clifton is bush. have two by democrats, one by republican. the line of questioning seemed to reflect those political leanings. has politics seeped too deeply into our court system. >> the 9th circuit is california's appeal's court. this is the same court that ruled "under god" is unconstitutional in our pledge of allegiance. when it comes to the way the arguments went yesterday, the strong suggestion is they are examining the moral relevance of trump's executive order and not the letter of the law. and it should not about the emotional side of this. it should be exploring whether it's allowed for president trump to do what he's doing. and at this rate they are not doing it. i think the democrats wi win and it will go to the supreme court, but it will take some courage. charles: there is another major debate there as well with respect to the constitution being read the way it's written or somehow being thought as some form of evolving poetry that changes with the times and the mood of the nation. >> we

friedland was appointed just two years ago by president obama,

canby junior, appointed by jimmy carter, judge richard cliff top, appoint by judge but and michelle friedland, appointed by barack obama. on sun date refused the white house's request to immediately restore the ban. the case before the 9th crier kit centers on a challenge to the trump administration from the states of washington and minnesota which argued the ban wons constitutional and would harm their economy. others have since joined in to challenge the ban filing friend of the court briefs including a group of law procedures almost 100 tech companies who argued would it damage their ability to innovate. the aclu and a group of former national security officials including madelyn albright and john kerry who said there was no national security purpose for such a ban. in the brief filed late this afternoon the justice department says, "the state asks the courts to take the extraordinary step of second- guessing a formal national security judgment made by the president himself. oral arguments have been set for tomorrow at 3:00 p.m. over the phone. each side will have 30 minutes to argue their

. >> george friedlander. my concerns with all of this are a million but i will go to the two extreme ones. one is the problem at federal level of project selection which has never been solved sufficiently. when you have a federal role. and then at the state and local level, there's the problem of the political cycle which is if i do things on the cheap for now, i will get reelected. if i do what is really needed, it will be too costly and i probably won't. it seems a lot of it all seems to come back to return on investment and nobody, i don't think, has figured out how you measure roi on this. >> so your first point is project selection, right? okay. behind you over there? >> thank you very much. i appreciated your -- both of your comments about user fees. i would be interested in your thoughts about what i call the invisible users so there might be absentee land owners next to a transit section or highway. they never i don't the highway but get a windfall on land value. should they be paying user fees? >> an

listening to the arguments were william canby in phoenix, richard clifton on the phone and michelle friedland calling in from san jose. they were asked by president trump through his justice department to reject a seattle judge's temporary ruling that blocked the president's ban on immigration from seven mostly muslim countries. that ban, as you know, sparked chaos and protests at airports nationwide until it was lifted last friday. opponents wanted it to stay on hold arguing the president's executive order is unconstitutional and discriminatory. here's some of the back and forth. >> is there any reason for us to think that there's a real risk or that circumstances have changed such that there would be a real risk if existing procedures weren't allowed to stay in place while the administration, the new administration conducts its review? >> well, the president determined that there was a real risk. the president is the official that is charged with making those judgmens. >> are you arguing then that the president's decision in that regard is unreviewable? >> yes. >> it has always been the jud

martha: that was just one of the contentions exchanges from earlier tonight between judge michelle friedlandf the ninth circuit court in the government, represented. at end of the hearing without announcing a ruling. they did say they will issue that decision as soon as possible. from that tense exchange to this joyous moment, just one more time, i promise. patriots fans turned out in droves of despite the fact that it was pouring rain in boston. congratulations to them. for the quote of the date, what else could we do but bill belichick? "mental toughness is doing the right thing for the team when it is not the right thing for you." on that, have a good night, ever ♪ >> tom: welcome to "red eye," hello everyone, i am tom shillue. let's check in with tvs andy levy over at the "red eye" tease deck. >> andy: thanks, tom, coming up in the big show, the university starts a fight club to take on the publicans. hollywood celebrities rejoice, plus president obama goes kite boarding with richard branson. see, trump isn't the first president to enjoy water sports. finally, a new wheeled robot sweeps

also judge michelle friedland appointed by president obama and richard clifton, an appointee of george bush who sits in honolulu. >> we also have 16 states attorneys general who have filed -- they agree with the states of washington and minnesota, and they are saying we agree that this is in violation of the constitution. interesting, but does it do anything to bend the mind of these justices? >> it is very unusual for states to try to join a lawsuit that they didn't bring in the first place. >> are they joining it or just saying we -- >> they're trying to intervene. hawaii is trying to intervene. the other states have filed a brief supporting the arguments. eventually this decision is going to affect every state. it doesn't surprise me you'd have other states step in to try to support the arguments made by washington and minnesota that this ban affects our people and nobody else is here to speak up for them except the states. >> in making its rule, will the three-judge panel weigh in on whether or not there is, in fact, a threat from the types of people of this travel ban keeps out? >

justices did ask the administration and the law representing the administration, judge michelle friedland asked, right out of the gate, can the government point to any evidence, quote, connecting any of these countries with terrorism. that's the crux of the government's argument. what's your overall read on where the three justices fell on that point? >> we know one is leaning in favorite of washington state, one in favor of the government, and one is kind of the swing vote, william canby. they're not second-guessing the risk assessment by the president of the united states. they know the president has prerogative. but they're trying to limit the fact, they're groan whether to reverse or reinstate the ban. in order to do that, you have to articulate whether or not there is an actual present risk, and the government could not make that case as of yet. there is the confidentiality, the classified nature of documents, that may be the case, but the doj lawyer did not raise that point, leaving us all to wonder, is it a pretext for religious discrimination or was it in fact an issue of national

the holocaust from beginning to end, from top to bottom, no one will ever do better then charles friedlander. what i wanted to do was bring some clarity to the subject. to look at the insights of scholars over the last 30 years of enormously productive work and bring the insights into service of the practical answers to the questions that people ask. i had two additional purposes. i wanted to close the gap which has become very wide, between what the general public thinks it knows about the holocaust and what scholars think they know about the subject. i wanted to set the record straight. i was haunted by an observation by a historian recently deceased, who quite rightly wrote that "impossible to describe as it really was, the holocaust is inherently vulnerable to being remembered as it wasn't" the result of affect is a great deal of distortion about how and why it happened. the more i studied the subject, the more misconceptions i encountered in the more i thought that the sort of book i had in mind is needed. let me summarize for you the eight questions that propelled the book. it has a tw

stuart: it sounded like michelle friedland. justice-- >> judge.tuart: judge, was clearly a political judge. >> and i heard questions from the other two, one is a friend of mine, i heard political questions from the other two as well. stuart: president trump is going to be addressing this issue. he's speaking momentarily and he'll talk about it and we'll take you there then. have we got breaking news on this. ashley: there are excerpts kind of been provided by his staff. he goes-- he talks about the need and you know, we have to protect america first. he says whether a child lives in.detroit, chicago, no one should be punished because of the city where he or she is born. i don't see anything pertaining exactly to his travel restriction issues, but we know that's coming up because it deals with the safety of us all. stuart: it's the side of the case-- >> the excerpt says the sheriff thanked his backing of border security and immigration policy. the sheriffs back him on that. stuart: he'll be speaking at that podium. a meeting from law enforcement ar

martha: that was just one of the contentions exchanges from earlier tonight between judge michelle friedlandthe ninth circuit court in the government, represented. at end of the hearing without announcing a ruling. they did say they will issue that decision as soon as possible. from that tense exchange to this joyous moment, just one more time, i promise. patriots fans turned out in droves of despite the fact that it was pouring rain in boston. congratulations to them. for the quote of the date, what else could we do but bill belichick? "mental toughness is doing the right thing for the team when it is not the right thing for you." on that, have a good night, everybody. we will see you back here tomorrow. ♪ >> bill: "the o'reilly factor" is on tonight. >> you are saying that you are anti-muslim, antiblack. does it hurt your feelings that they are making you into a hater? speak to how was president trump handling all the personal attacks that come daily has way? tonight, he will tell us. >> we had extraordinarily little opportunity to gather and present evidence. >> bill: a federal court of a

judge friedland asked a lot of tough questions to the attorney for the doj for the trump administrationdge clifton asked some pretty pointed questions and had some strong comments to the attorney for the states. let's listen in. >> these proceedings have been moving quite fast and we're doing the best we can. i can cite -- >> you're saying the proceedings are moving fast, but you appealed to us before you continued in the district court to develop the record. so why should we be hearing this now if it sounds like you're trying to say you're going to present other evidence later? >> well, i was just about to at least mention a few examples. there have been a number of people from somalia connected to al shabaab who have been convicted in the united states. >> is that in the record? can you point us to where in the record you're referring? >> it is not in the record. there has also been other examples. you're correct. these are not in the record. >> well, there have been presidential orders in the past by prior presidents that treated people based on their nation. why shouldn't that sugge