President Donald Trump vowed during his campaign last year to improve the refugee vetting process and slow immigration from countries that harbor terrorism.
He tried to make good on that promise during the opening days of his presidency by signing an executive order that temporarily halted the U.S. refugee resettlement program for 120 days while also temporarily halting any travelers from seven Muslim-majority countries — Iraq, Iran, Syria, Somalia, Yemen, Libya and Sudan — from entering the U.S. for 90 days.
The order was immediately challenged in courts across the country and was finally gutted by a U.S. district court judge in Seattle, whose ruling was upheld by the 9th Circuit Court of Appeals.
Instead of going to the Supreme Court, the Trump administration chose to reissue a similar executive order, this one more watered down and removed Iraq from the list of restricted nations. However, it too was finally blocked by a U.S. district court judge last week after being challenged in court.
The Trump administration has since appealed that ruling.
But according to longtime liberal and Harvard law professor Alan Dershowitz, an appeal from the White House shouldn't be necessary because the Maryland judge, Theodore Chuang, should have never ruled against Trump's executive order to begin with.
Chuang said in his opinion that he heavily leaned on Trump's campaign rhetoric on Muslims when making his decision, which makes no sense to Dershowitz.
"That's not the way the law is supposed to operate," Dershowitz said on "Fox and Friends" Saturday.
Then he dropped a bomb, acknowledging that if it was Obama who had issued the executive order, then it would have been upheld by the courts.
"The idea of focusing so heavily on campaign rhetoric and essentially saying, look, if Obama had issued the very same order with the same words it would be constitutional, but if Trump issues it, it’s unconstitutional because he said some things about Muslims in the run-up to the campaign," Dershowitz explained, adding that he has never seen a case where the "rhetoric of a candidate" is used against them in legal proceedings.
But Dershowitz did have some positive news. He explained that because the Trump administration is appealing Chuang's ruling to the 4th Circuit Court of Appeals, which is much more conservative than the 9th Circuit Court of Appeals, the court is likely to rule in Trump's favor. And once the case gets appealed to the Supreme Court, Dershowitz said the court is likely to split 4-4, which would be in Trump's favor too because it would uphold the lower court's ruling.
"I’m putting my reputation on the line — I predict the case gets to the Supreme Court, the Supreme Court will uphold the major provisions of this ban," Dershowitz said. "I do not believe this is a Muslim ban."
Watch his comments below: