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Appeals Court to Hear Arguments on Travel Ban; Bon Jovi Helps the Hungry; Obamacare Replacement Might Take Year; Democrats Protest DeVos Vote. Aired 8:30-9a ET

Aired February 7, 2017 - 08:30   ET


[08:30:00] CHRIS CUOMO, CNN ANCHOR: Them from coming in as long as we possibly can.

JANE HARMAN, DIRECTOR, PRESIDENT & CEO, WILSON CENTER: Well, I want to be safe and I want President Trump and his administration to keep me safe. And, by the way, we have not had a catastrophic attack at the -- at the level of 9/11 since 9/11.

CUOMO: So we only plan after we get attacks?

HARMAN: No. No. So, we have to surge our intelligence. Not denigrate the people who work in our intelligence agencies, but surge our intelligence to find out what plots are out there. That's the best way to protect us. We have to make sure that we have seamless communication among the FBI and law enforcement and our intel agencies in the U.S. to know who's here. But a blanket ban on refugees, who are not the problem -- Alisyn did a brilliant job in the last interview, by the way -- yo, Alisyn.


HARMAN: But --

CUOMO: I object. I'm trying to test a proposition. Don't try to curry favor with her and have her angle into this segment.


HARMAN: You want -- you want to get me started? But at any rate, a blanket ban -- he's asking the wrong question. The right question is, how do we identify the specific bad guys and either keep them out or identify them. Homegrown terror is a bigger problem. Identify them before they hurt us.

CUOMO: Jane Harman, appreciate you coming on, testing these propositions as always and smart move currying favor with Camerota.

CAMEROTA: A woman of excellent judgement.

CUOMO: That works 10 times out of 10.

HARMAN: Thank you.

CAMEROTA: Thanks. Great to see you.

All right, the legal battle over President Trump's travel ban is facing a big test today. What happens if the losing side then appeals? When would this go to the Supreme Court? What would that look like? We take a look at all that, next.


[08:35:29] CAMEROTA: Three federal appeals court judges will hear argument this afternoon on President Trump's travel ban. The losing side is expected to appeal, and that would set the stage for a Supreme Court showdown.

Joining us now to discuss is Norman Eisen. He's a fellow at the Brookings Institution and former ethics czar for the Obama White House, and David Urban, he is a former Trump campaign senior adviser.

Gentlemen, thank you so much for being here.

Norm, let me start with you. You oppose Mr. Trump's travel ban. So if you were going in front of these three federal judges, what would be your argument to them today?

NORMAN EISEN, FELLOW, BROOKINGS INSTITUTION: Alisyn, thanks for having me and it's nice to be here in person for a change.

CAMEROTA: Yes, it is great to have you here in person.

EISEN: I would tell the judges that they have a full co-equal responsibility with the president, the executive branch, and the legislature, Congress, for defending the Constitution of the United States. Donald Trump has transgressed the Constitution and the laws of the United States, not once with this executive order, but again and again and again.

CAMEROTA: But, wait, wait, doesn't the president have ultimate authority to keep America safe on issues of national security?

EISEN: The ultimate authority in the United States, Alisyn, is the Constitution. He's not allowed to discriminate on this order on the basis of religion. He does. He can't discriminate on the basis of national origin. He does.

CAMEROTA: I don't think the travel ban mentions religion.

EISEN: Well --


EISEN: We know what's going on with this religion -- with this travel ban. It's a Muslim ban, Alisyn.

CAMEROTA: Even though it doesn't mention those words?

URBAN: Alisyn -- EISEN: Strict scrutiny. If you were the judge, I would say, you need to apply strict scrutiny. If you look at what he's doing, if you look at what he's said over and over, if you look at what his allies have said.

URBAN: Alisyn, I'd --

EISEN: Also equal protection. Also statutory violations.

CAMEROTA: OK. David, why am I doing your work for you? Go ahead.

URBAN: Yes, Alisyn, let me -- Norm just happens to be factually wrong. Judge Gorton (ph), a federal district court judge in Boston found exactly the opposite of what Norm is saying. The judge in Boston said it was well within the president's power to do what he did, the EO, found it specifically did not target Muslims and therefore didn't -- didn't act. So there are two different judges here taking two different opinions. So Norm is factually wrong because a federal court judge has already spoke to that.

CAMEROTA: OK, go ahead, Norm. A judge disagrees with you.

EISEN: Well, the -- the judge -- you have one judge who has put in a TRO in the Washington case.


EISEN: You have a judge in Boston who disagrees. But those are not the only two --

URBAN: But the judge -- but, Norm, but --

EISEN: Those are not the only two -- let me finish, please. Those are not the only two judges who've spoken.


EISEN: Judges across the country have in joined this unconstitutional ban. And it's not just the religion, Alisyn.

URBAN: What -- what -- what -- what other judges, Norm?

EISEN: It's the -- it's the equal protection.


URBAN: Norm, what other judges?

EISEN: It's also section 1152 of the --

CAMEROTA: OK, but you hear David. David's saying that he doesn't believe that there are judges who (INAUDIBLE) a majority --

URBAN: What other judges?

EISEN: There's been a series of courts who have enjoined portions. David, you don't disagree that portions of the order have been enjoined. The most sweeping injunction, it was a TRO, has come in the Washington case.

CAMEROTA: Yes, look, David, obviously there are judges who feel differently about this. We've featured them on our program.

URBAN: Exactly.

CAMEROTA: What's your -- what's your argument to those federal judges today for why they should see this so clearly?

URBAN: Alisyn, it's clear the president has authority granted under the Constitution and by the Congress to do what he did in our national security interests. The president is given wide latitude to do what he did when he's acting in our national security interest and with respect to immigration.

CAMEROTA: Does this go to the Supreme Court, Norm?

EISEN: He has wide latitude, Alisyn, but not unlimited latitude. And that is why it's going to go to the Supreme Court because the president cannot discriminate against lawful permanent residents and others. He has a lot of latitude for those who haven't yet entered the country, but he can't take away the due process rights of green card holders. He can't discriminate against students who have student visas on the basis of religion. He can't violate Congresses' own dictate that lawful, permanent residents cannot lawful --

URBAN: Norm, that's your -- that's your opinion, Norm.


EISEN: David, let me finish, please. That lawful, permanent residents cannot be discriminated against on basis of country of origin.

CAMEROTA: Got it. David, you're -- I'll give you the last word. Do you also think that this is going to the Supreme Court and what happens there with a 4-4 split?

URBAN: Alisyn, it will go to the Supreme Court and I expect that it won't be heard until we have Judge Gorsuch confirmed in the fall.

[08:40:06] CAMEROTA: OK. David, Norm, thank you both very much for the debate. That gives us a little taste of what we might see today. Thank you both.


CUOMO: Dershowitz said the same thing, that unless the court feels that it has a 5-3, 6-2 decision on, maybe they don't take it until they have a full bench.

All right, so what's the future for Obamacare? It could be around longer than Republicans planned. Is that necessarily a bad thing? We get "The Bottom Line," next.


CUOMO: Time now for the "Five Things to Know for Your New Day."

Number one, the Ninth Circuit will hear arguments today on the president's controversial travel ban. The Justice Department says national security is the issue. Two states suing the president say his order is unconstitutional.

CAMEROTA: Democrats staging a marathon protest on the Senate floor. They are hoping to block the confirmation of Betsy DeVos as education secretary. That vote is today at noon.

[08:45:01] CUOMO: A senior U.S. military official telling CNN the Yemen raid last month aimed to capture top al Qaeda leader in the Arabian Peninsula Qasim al-Raymi. He was not captured. U.S. CENTCOM denies he was the target.

CAMEROTA: The NCAA ramping up pressure on North Carolina to strike down its controversial bathroom bill. The Collegiate Sports Association says it will ban the state from hosting any championship games for the next six years until the law is repealed.

CUOMO: Boston, oh, they're happy in bean town, throwing the Super Bowl camp New England Patriots another parade this morning. That will be the fifth celebration. This, of course, the biggie, the thrilling come-from-behind overtime historic win that cemented that man's place as the best of all-time.

For more on the "Five Things to Know," go to for the latest.

CAMEROTA: So, President Trump promised to quickly repeal Obamacare. Then why don't the Republicans have a replacement plan yet? "The Bottom Line," next.

CUOMO: But first, you may know him as a celebrity entertainer and a global icon, but Grammy award winning artist Jon Bon Jovi --

CAMEROTA: Jersey boy.

CUOMO: Also tops the charts feeding America's hungry. We see how he impacts your world one soul at a time.



UNIDENTIFIED FEMALE: This may look like a trendy New Jersey restaurant, but it's actually a unique movement to feed those in need.

JON BON JOVI: I thought, how can we bring people together in an affordable, accessible way. And we focused on the issue of homelessness and then housing and food insecurities. It was one soul at a time.

UNIDENTIFIED FEMALE: Welcome to the JBJ Soul Kitchen, with two locations. Here, each meal is a mission.

BON JOVI: We have created what we now call a pay it forward model.

UNIDENTIFIED FEMALE: So that would be some way that you could participate and help us.

UNIDENTIFIED FEMALE: A non-profit within rocker Jon Bon Jovi's Soul Foundation, this community kitchen welcomes everyone at the table, regardless of their ability to pay.

BON JOVI: There's no prices on the menu. If you are, in fact, in need, you volunteer. That pays for a meal for you and for your family.

UNIDENTIFIED FEMALE: And there's some bread and butter.

BON JOVI: Should you choose to enjoy a meal, we suggest that you buy a pay it forward card so that you not only affect change by paying for your meal, but the one next to you.

UNIDENTIFIED FEMALE: So you don't know if somebody's dining here because they're in need or to pay it forward. Everyone's treated the same.

Howard, how's that meatloaf?

BON JOVI: That's the key the our success is empowering the individual.



[08:51:17] CUOMO: All right, so during the campaign, President Trump promised to repeal Obamacare on day one. Republicans are now grumbling after the president said replacement may not happen until next year.

Let's get "The Bottom Line" with David Drucker, senior congressional correspondent for "The Washington Examiner."

David, this is no surprise. This is a huge entitlement program essentially and it was never going to be repealed and replaced on day one.

DAVID DRUCKER, SR. CONGRESSIONAL CORR., "THE WASHINGTON EXAMINER": No, and it's not just a big entitlement program. What President Obama and the Democrats did is completely overhaul how health care works in America. And so what the Republicans are trying to do, when they talk about repealing and replacing Obamacare, the Affordable Care Act, is overhauling the health care system all over again. It's one-sixth of the economy. Its tentacles are everywhere. It's not just as simple as passing a repeal bill and, boom, you just have health care that everybody likes, as the Democrats figured out from the opposite direction.

CUOMO: They didn't just over shoot with timing, though, they over shot with their appraisal as well. When you listen to the Republican rhetoric is it, it is a disaster, it is a huge mess. Ron Brownstein has been doing the forensic reconstruction --


CUOMO: Of what the ideas are and he can't find ideas that are being floated around right now that won't leave people venerable to not having coverage, not just access to coverage, but actual coverage, and that doesn't punish the exact group that got Donald Trump elected in the states where he needed to win in order to win the election.

DRUCKER: Right. So what Republicans -- that's all true. But what Republicans have going for them is that Obamacare hasn't been operating as advertised either. Premiums have been rising. Prices have been rising. There has been -- there have been problems with access to the kind of care people want. They've been loaded up with insurance plans that give them things they don't want, not giving them enough of what they do want and so there's an opening here.

But what Republicans have to figure out, on the conundrum they're having right now is, on the House side, for instance, they haven't yet picked their replacement plan. I've been talking to members of Congress and asking, do you have a plan? Maybe you don't want to reveal it yet but you have it? They have a lot of ideas. They have a lot of proposals. It's not fair to say they don't. But they haven't picked a replacement plan that they're going to run with. They also --

CUOMO: They'll probably do it piecemeal, right? That's why the word repair is --

DRUCKER: Yes, they don't -- yes, they don't want to do a big 3,000- page bill. And so what people should look for, when they eventually get around to this, and I think they're going to get around to it, and then the question --

CUOMO: All right.

DRUCKER: (INAUDIBLE) work is, look for many bills attacking different parts of the health care problem. But they have to first pick a plan.

CUOMO: Right.

DRUCKER: The Senate has to decide what it wants. I hear Senate Republicans may be a little bit further along. And then they have to know exactly what President Trump wants and what he doesn't want. What will he accept and what won't he accept?

CUOMO: Or deliver it veto-proof, which requires Democrats. And, who knows, they may get lucky there.

Next topic -- let's show a live picture. The Democrats are still doing their marathon debate to forestall the final vote, a cloture vote on Betsy DeVos, but it's going to happen. And when it does, even if it's 50/50, unless they sway Republicans, Trump's going to get his person. Is that the right outcome?

DRUCKER: Yes, and that's what's going to happen. I don't think there are enough Republicans left that are vulnerable or that don't need to be with Trump, even if they theoretically could be vulnerable because they weren't supportive enough of him in the election and they want to have credibility with their primary voters next year.

CUOMO: Who wants to be the senator who has the whole thing hung on his or her head?

DRUCKER: The deciding vote.

CUOMO: Right.

DRUCKER: And so you're going to see this -- now, look, there's just a difference of education policy between the right and the left. I think you're seeing that play out with the argument over DeVos. But, ultimately, I think the reason we're seeing this fight over DeVos with the all-night speaking on the Senate floor by the Democrats is, this appeared to be ultimately the weakest link that the president has put up so far because they were actually one vote away from losing. And so this is where they decided to fight because that's what the Democratic base wants, fight, fight, fight.

[08:55:04] CUOMO: They're also fighting on the ban. We'll see what the courts do. But from a political perspective, is this a must win for the president?

DRUCKER: Well, I think for the reputation of his White House in terms of knowing what it is doing, being completely struck down by the courts and being forced to go back to square one I think would be a bit of an embarrassment. Now, we don't know necessarily politically how this would play out. There is a lot of support to beef up the security and vetting methods --

CUOMO: Everybody wants to be safer.

DRUCKER: Because you can talk to particularly Republicans on The Hill who have said their concern is in countries like Syrian that are lawless, that there are not vetting -- that we can't properly vet people even though we'd like to. So I'm curious to see if the president decides to go through Congress where his executive order would become much stronger.

CUOMO: David Drucker, appreciate "The Bottom Line," my friend, as always.

DRUCKER: Thank you.

CUOMO: "NEWSROOM" with Poppy Harlow and John Berman begins for you right after this quick break. Have a good morning.


POPPY HARLOW, CNN ANCHOR: Good morning, everyone. I'm Poppy Harlow.

JOHN BERMAN, CNN ANCHOR: Hello there. I'm John Berman. Thanks so much for joining us.

[08:59:55] This morning, the fate of one of the president's most controversial acts is very much in question and the truth of one of his new controversial statements is beyond question, really. Later today, three federal judges will hear arguments on the telephone on whether to reinstate the travel ban on folks from seven Muslim majority nations.