STEVE INSKEEP, HOST:
For all the power they've lost in Washington, Democrats do still have power in a number of big states. And in a system with the separation of powers, that gives them an opportunity. Eric Schneiderman, the attorney general of New York, is among those challenging President Trump's travel ban aimed at seven majority-Muslim nations.
ERIC SCHNEIDERMAN: My job is to protect New Yorkers. And his executive order on immigration was an all-out assault against the rights of hundreds of thousands of New Yorkers, against our economy, our health care and educational institutions. And I'm absolutely going to get involved when that happens.
INSKEEP: Schneiderman has been on the phone with other Democratic attorneys general.
Are you gearing up for several years of challenging this administration?
SCHNEIDERMAN: Well, it certainly appears from the first three weeks like - as though they're going to keep us busy. But I have to say - and some of the courts have commented on this - the positions that the administration has taken in court are offensive to lawyers across the political spectrum. This is a matter of respect for the fact that no one, not even the president, is above the law.
INSKEEP: You're talking about the administration's position that courts had no business in this matter at all. Is that correct?
SCHNEIDERMAN: They initially took an outrageous position that the president can do whatever he wants in the area of immigration. And then it's not subject to review by the judiciary, which is not the law. It's totally contrary to our constitutional system of checks and balances. And they also took the position that immigrants don't have due-process rights. And the court in the 9th Circuit made clear that everyone present in the United States, citizen or not, has some rights. We're a nation of laws, not men. And this seems to be a direct attack on that assertion.
INSKEEP: So the courts have found that they do, in fact, have a role to play, although they acknowledge they need to provide deference to the president's wishes in a matter like this involving national security or foreign policy. It's just not that they would totally stay out of it. The next question is what the business is of a state government in getting involved with a national security or foreign-policy decision.
We had Jonah Goldberg on the program the other day. He's a writer for National Review. He considers the travel order to be a really bad order that was badly defended in court. But he also thought it was a bad court decision because it suggests that states could sue about almost anything. Let's listen for a moment.
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JONAH GOLDBERG: If the president of the United States has the power to impose a naval blockade around the United States, that is going to have disparate impact on different states that have different kind of immigrants coming to them. Do those states all get to sue the federal government? Well is going to affect certain universities or certain states more than others economically. Are we really going to have judges intervening and trying to stay the president's power to, you know, conduct foreign policy like that. I think it just is a weird situation that we've gotten into.
INSKEEP: Do states have the rights, Attorney General, to intervene anytime that any of your residents are affected in any way?
SCHNEIDERMAN: Well, every court that has looked at this has concluded that states do have standing under two different theories. We have proprietary standing because it is affecting our institutions. It is costing us money. It is affecting our ability to run health-care institutions. And that's...
INSKEEP: Because doctors can be kept out or because students might be kept out.
SCHNEIDERMAN: No, doctors are being kept out. There are people who are not getting health care because of this travel ban. There also is what's called parens patriae standing, our ability to speak on behalf of the people we represent. It's well-established case law that institutions can represent people that belong to those institutions. So this is not much of a reach.
INSKEEP: Well, just to pursue Jonah Goldberg's question a bit more, is there no limit to what you can sue over?
SCHNEIDERMAN: Sure, there are limits. We're subject to the same constitutional limits as the president. And, you know, he's trying to drag a foreign policy example having to do with, really, sort of the president's power to order the military to do things within immigration order, which is a very different matter.
INSKEEP: Have you looked back at what Republican attorneys general did during the Obama administration when, for example, a great many states sued over the Affordable Care Act?
SCHNEIDERMAN: Well, we've looked at it certainly and have been involved in those cases in many respects. There have been coalitions of attorneys general on both sides of a lot of those issues.
INSKEEP: And have you learned anything from watching what Republicans did then?
SCHNEIDERMAN: Yeah. I mean, they've certainly expanded the role of state attorneys general in challenging federal policies. But they had a philosophy that, really, was a little bit different than ours. They really seemed to be of the view that if they could just gum up the works and stop any government program from working, that in and of itself was something that they thought was worthwhile. We don't take that approach. We want the government to work. We want the government to serve our people, want our programs to succeed.
INSKEEP: Has this experience given you any different view of federalism, the rights of the states as opposed to the central government?
SCHNEIDERMAN: No. I've always been a believer in the federal system, believer in the two-tier system of protections that the founders created. It was very much on the mind of the founders of the republic that this new president and central government they were creating could turn into a tyranny.
They thought King George was a tyrant. And they left a lot of power in the hands of the states for that very reason. But my office has never been shy about challenging a presidency, whether it's Democratic or Republican. And I think you're going to see a lot more activity by state attorneys general. And we're prepared to fight.
INSKEEP: Attorney General Schneiderman, thanks very much.
SCHNEIDERMAN: OK. Thank you.
INSKEEP: He's the attorney general of New York. Transcript provided by NPR, Copyright NPR.