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>> the -- yes. what we -- there are obviously constitutional limitations but we're discussing the risk assessment. >> did that exchange concern you. >> no, erin. i think the president has the authority. the president is given wide latitude on matters of national security. i think he not only has the authority but the duty to issue an eo like he did in this case. >> the other issue that kept coming up repeatedly, paul, they kept referencing other cases, and these other cases basically boiled down to whether people who are american citizens were allowed to basically appeal on the behalf of non-a...

The issue of the ninth circuit. but when you get to the united states supreme court, chief justice roberts is not going to find standing for the state of washington and he very well may have at least three or four other people. this is going to be a very hard sell to the united states supreme court for standing, which tries to avoid these kinds of issues like the plague. i think they will probably find a lack of standing but on the merits, you know, they may win. they're going win this injunction, they may win in the ninth circuit, even on the merits or part of the merits. once they get to the...

That were about people who were communists who advocated overthrow of the u.s. government. are you saying that the external evidence here that is alleged, that the intent here was to ban muslims, is equivalent to that? >> if there were an executive order that prevented the entry of muslims there would be people withstanding to challenge that. and i think that would raise establishment cause, first amendment issues. but that's not the order we have here. this order is limited to the countries defined by congress. on the refugee -- >> -- argued that that was the motivation and plaintiffs have su...

Which the government's position is they're not inclued in the scope of the order, i have to say is there any legal authority for the council of the president to have power to instruct the other departments or instruct us as to what the order means? the president can amend the order but i'm not sure the council to the president has that authority. why is it we should be looking at this reconceived order and why is it we should rather than trying to narrowly carve out the injunction you're seeking, practical problems, i don't know how we should write such an order. why shouldn't we look to the e...

Were the justices watching? >> that's what makes this hearing so potentially important because there's only eight justices right now. if this were to go to the supreme court and divide 4-4 then whatever the ninth circuit held is what would hold for now. that gives more port-au-prince to the ninth circuit than if there were nine justices. >> the plaintiffs could have sued but they're smart. the aclu figured out if they appeal this they thai might lose in the first circuit but they're better off relying on the washington stay and that would probably give them a better opportunity to win the case...