1 00:00:00,040 --> 00:00:05,040 Speaker 1: President Trump recently issued his third version of the travel 2 00:00:05,080 --> 00:00:07,680 Speaker 1: band order that he's been trying to get implemented all year, 3 00:00:08,039 --> 00:00:10,320 Speaker 1: this time limiting or banning entry to the United States 4 00:00:10,360 --> 00:00:15,560 Speaker 1: from eight countries. UH. The legal clash over the travel 5 00:00:15,560 --> 00:00:18,200 Speaker 1: band appeared headed for resolution by the Supreme Court, and 6 00:00:18,320 --> 00:00:20,800 Speaker 1: earliest year this year, the Court had permitted a limited 7 00:00:20,880 --> 00:00:25,159 Speaker 1: version of the original band to take effect, but the 8 00:00:25,200 --> 00:00:29,760 Speaker 1: Court yesterday dismissed the dismissed a case one of the 9 00:00:29,800 --> 00:00:32,480 Speaker 1: two cases that was still before, raising the question of 10 00:00:32,800 --> 00:00:36,600 Speaker 1: whether the court will confront the issues surrounding the president's 11 00:00:36,640 --> 00:00:43,160 Speaker 1: actions at all. With us today is Arthur Andrew Arthur, 12 00:00:43,400 --> 00:00:47,000 Speaker 1: a Resident Fellow in Law and Policy at the Center 13 00:00:47,120 --> 00:00:53,440 Speaker 1: for Immigration Studies, and Leon Fresco, who is also an 14 00:00:53,479 --> 00:00:57,640 Speaker 1: expert in immigration law and a partner at Holland and 15 00:00:58,000 --> 00:01:04,240 Speaker 1: night Lee on what exactly did the Supreme Court do today? Well, 16 00:01:04,280 --> 00:01:07,600 Speaker 1: so there are yesterdays, say yeah, there was yesterday. There 17 00:01:07,640 --> 00:01:10,080 Speaker 1: are two travel ban cases that were pending before the 18 00:01:10,120 --> 00:01:15,440 Speaker 1: Supreme Court. One was an injunction against the second iteration 19 00:01:15,480 --> 00:01:18,080 Speaker 1: of the travel Band, which was a four four circuit 20 00:01:18,160 --> 00:01:23,559 Speaker 1: decision UH that was challenging the the actual second duration 21 00:01:23,640 --> 00:01:25,760 Speaker 1: of the travel band that the President had issued, and 22 00:01:25,959 --> 00:01:29,880 Speaker 1: the courts dismissed that one has moved, meaning it said, 23 00:01:30,080 --> 00:01:33,319 Speaker 1: it's like this case had never existed and there is 24 00:01:33,360 --> 00:01:36,560 Speaker 1: no injunction anymore. But there still is the case at 25 00:01:36,560 --> 00:01:40,600 Speaker 1: Hawaii file on the second travel ban, which has to 26 00:01:40,680 --> 00:01:44,280 Speaker 1: do with the refugee program and whether there could be 27 00:01:44,319 --> 00:01:47,319 Speaker 1: a ban against refugees coming into the United States, and 28 00:01:47,400 --> 00:01:49,840 Speaker 1: that case, the IB prediction is that it's still only 29 00:01:49,920 --> 00:01:53,360 Speaker 1: pending because that band hasn't expired yet, but that when 30 00:01:53,400 --> 00:01:57,880 Speaker 1: the ban expires, that too will be dismissed. At Mood Andrew, 31 00:01:57,960 --> 00:02:02,560 Speaker 1: the justices also set aside the appeals Court's decision that 32 00:02:02,600 --> 00:02:06,040 Speaker 1: blocked the earlier policy, so it can't be used as 33 00:02:06,120 --> 00:02:10,320 Speaker 1: precedent for new challenges. UM. Why did Justice Sonia Soto 34 00:02:10,360 --> 00:02:14,640 Speaker 1: Mayor dissent from that? I think that Justice Sotomayor probably 35 00:02:14,680 --> 00:02:18,640 Speaker 1: agreed with the costic opinion of the Four Circuit in 36 00:02:18,680 --> 00:02:24,200 Speaker 1: that case. It was a particularly biting decision, rather lengthy 37 00:02:24,280 --> 00:02:28,440 Speaker 1: wanted that UM one which with with which I disagree, 38 00:02:28,520 --> 00:02:32,760 Speaker 1: But I believe that Justice Sotomayor probably agree with both 39 00:02:32,800 --> 00:02:36,160 Speaker 1: the analysis and the findings of the court in that case. 40 00:02:37,440 --> 00:02:41,000 Speaker 1: Sole Leon, what happens now that this this case, We've 41 00:02:41,040 --> 00:02:44,680 Speaker 1: got more cases that have been filed below. So where 42 00:02:44,680 --> 00:02:47,440 Speaker 1: do we stand right now legally as far as challenges 43 00:02:47,480 --> 00:02:50,680 Speaker 1: to the president's travel? Then I think the issue and 44 00:02:50,680 --> 00:02:53,000 Speaker 1: then I we talked about this in prior shows is 45 00:02:53,639 --> 00:02:56,640 Speaker 1: but the Supreme Court has been very reticent because this 46 00:02:56,720 --> 00:03:00,480 Speaker 1: has been a very important power that the president has 47 00:03:00,480 --> 00:03:04,120 Speaker 1: to make a long term decision that will impact not 48 00:03:04,160 --> 00:03:07,680 Speaker 1: only this president but other presidents based policies that no 49 00:03:07,800 --> 00:03:10,680 Speaker 1: longer exist. And so what the Supreme Court is saying 50 00:03:10,800 --> 00:03:14,120 Speaker 1: is the stakes are so high, these powers are so important, 51 00:03:14,400 --> 00:03:16,640 Speaker 1: we have to be so careful that if we're going 52 00:03:16,720 --> 00:03:18,920 Speaker 1: to do something, let's do it on the actual policy 53 00:03:19,000 --> 00:03:22,519 Speaker 1: that exists. And so this is why now these challenges 54 00:03:22,560 --> 00:03:26,000 Speaker 1: are happening. To the third iteration of the travel land 55 00:03:26,480 --> 00:03:29,440 Speaker 1: in the Ninth Circuit, Andrew, do you agree? Do you 56 00:03:29,440 --> 00:03:35,080 Speaker 1: think the Justice are basically avoiding a politically charged clash. 57 00:03:35,120 --> 00:03:38,360 Speaker 1: I think they're avoiding a politically charge class. I agree 58 00:03:38,360 --> 00:03:42,080 Speaker 1: with Mr Fresco that they want to issue their decision 59 00:03:42,160 --> 00:03:45,240 Speaker 1: based upon the most recent version of the order. At 60 00:03:45,280 --> 00:03:49,240 Speaker 1: this point, we're basically up to uh, you know, Travel 61 00:03:49,360 --> 00:03:52,080 Speaker 1: Order three point oh uh and I think that they 62 00:03:52,120 --> 00:03:55,360 Speaker 1: want to wait until that's fully implemented before they make 63 00:03:55,400 --> 00:03:59,680 Speaker 1: their determination. Well, Leon, the Court hasn't been willing to 64 00:04:00,200 --> 00:04:03,680 Speaker 1: affirm these lower court decisions that so far, at least 65 00:04:03,720 --> 00:04:06,720 Speaker 1: that have um, you know, limited the President's ability to 66 00:04:06,800 --> 00:04:09,480 Speaker 1: issue a travel band, although the you know, they did 67 00:04:09,520 --> 00:04:12,360 Speaker 1: send it back uh previously a previous version of the 68 00:04:12,440 --> 00:04:14,760 Speaker 1: order on a more and allowed it to be enforced 69 00:04:14,760 --> 00:04:17,919 Speaker 1: on a more limited basis than had originally been written. 70 00:04:18,600 --> 00:04:22,039 Speaker 1: Do you think if the lower courts start affirming this 71 00:04:22,200 --> 00:04:25,279 Speaker 1: third version, which many think has a better chance of 72 00:04:25,320 --> 00:04:28,680 Speaker 1: surviving legal challenge, that the Supreme Court might just stay 73 00:04:28,680 --> 00:04:31,320 Speaker 1: out of this entirely. Well, yeah, I think if the 74 00:04:31,440 --> 00:04:35,560 Speaker 1: Ninth Circuit says that the third Travel Order is constitutional 75 00:04:35,680 --> 00:04:39,120 Speaker 1: and violate no laws, I won't see any scenario whereby 76 00:04:39,160 --> 00:04:42,760 Speaker 1: the Supreme Court then takes that case. But I do 77 00:04:42,880 --> 00:04:45,960 Speaker 1: think of the Ninth Circuit invalidates the third Travel Order, 78 00:04:46,040 --> 00:04:50,000 Speaker 1: then you would scenario Supreme Court would take that case. 79 00:04:50,640 --> 00:04:54,880 Speaker 1: But I think the key already ahead. Andrew tell us 80 00:04:54,920 --> 00:05:00,720 Speaker 1: about the litigation that's been filed over the latest travel band. Well, 81 00:05:00,839 --> 00:05:06,240 Speaker 1: it's it's interesting because of course they're challenging, uh, the 82 00:05:06,320 --> 00:05:09,039 Speaker 1: latest travel ban in Hawaii on the same basis that 83 00:05:09,040 --> 00:05:11,120 Speaker 1: they did originally, and that is that it violates the 84 00:05:11,240 --> 00:05:15,760 Speaker 1: Establishment Clause. I'm I'm concerned, however, by an order that 85 00:05:16,080 --> 00:05:19,000 Speaker 1: Judge Derek Watson now in Hawaii, who is the original 86 00:05:19,080 --> 00:05:22,760 Speaker 1: judge to hear the original nine Circuit case UH, issued 87 00:05:22,800 --> 00:05:26,360 Speaker 1: in which he wants to see the report that the 88 00:05:26,440 --> 00:05:31,600 Speaker 1: Department of Homeland Security UH prepared and sent to President 89 00:05:31,680 --> 00:05:36,760 Speaker 1: Trump that detailed country by country efforts to step up 90 00:05:36,760 --> 00:05:39,479 Speaker 1: the vetting of foreigners who apply for visas. I'm not 91 00:05:39,520 --> 00:05:41,880 Speaker 1: a percent sure what he's going to do with that, 92 00:05:42,720 --> 00:05:45,800 Speaker 1: and I'm especially concerned that he's going to attempt to 93 00:05:46,720 --> 00:05:50,560 Speaker 1: use his own basis of knowledge to assess the wisdom 94 00:05:50,600 --> 00:05:53,360 Speaker 1: of that policy. And that's a that's a big issue 95 00:05:53,760 --> 00:05:57,160 Speaker 1: UH for District Court judge to tackle. Quite frankly, I 96 00:05:57,240 --> 00:05:59,200 Speaker 1: don't think that the Supreme Court is going to stand 97 00:05:59,200 --> 00:06:02,119 Speaker 1: for that. At the end of the day, Leon, let's 98 00:06:02,320 --> 00:06:04,560 Speaker 1: talking about the challenge that's going on now. I mean, 99 00:06:05,040 --> 00:06:10,160 Speaker 1: the case in Hawaii UH involves yet another claim that 100 00:06:10,200 --> 00:06:14,159 Speaker 1: the this this band, like the others, was motivated by 101 00:06:14,640 --> 00:06:19,560 Speaker 1: animus against Muslims. Do you think that the there's more 102 00:06:19,600 --> 00:06:21,880 Speaker 1: of a chance that the Ninth Circuit will end up 103 00:06:22,400 --> 00:06:24,560 Speaker 1: finding for the President in light of that claim, or 104 00:06:24,600 --> 00:06:26,360 Speaker 1: are we going to end up back in the same place. 105 00:06:27,040 --> 00:06:29,200 Speaker 1: Well so, so there's two points to be made. The 106 00:06:29,240 --> 00:06:32,720 Speaker 1: first one is that's going to continually be the claim, 107 00:06:32,720 --> 00:06:34,880 Speaker 1: and maybe that claim will need to be litigated in 108 00:06:34,920 --> 00:06:37,560 Speaker 1: the Supreme Court. Is this issue of does the original 109 00:06:37,600 --> 00:06:41,240 Speaker 1: sin of the president announcing he wants a travel ban 110 00:06:41,960 --> 00:06:47,320 Speaker 1: permanently make any travel order that is pursued too that 111 00:06:47,520 --> 00:06:53,359 Speaker 1: policy void on religious discrimination grounds, regardless of what the 112 00:06:53,400 --> 00:06:55,160 Speaker 1: policy is, And that will be a question for the 113 00:06:55,200 --> 00:06:57,560 Speaker 1: court to determine. I I don't think the courts will 114 00:06:57,600 --> 00:06:59,680 Speaker 1: want to say that the president for the next four 115 00:06:59,760 --> 00:07:02,599 Speaker 1: years or is banned from doing anything with regard to 116 00:07:02,640 --> 00:07:05,400 Speaker 1: immigration restriction. I think this is what's going to be 117 00:07:05,400 --> 00:07:08,240 Speaker 1: problematic here. And the thing is that the Ninth Circuit 118 00:07:08,360 --> 00:07:10,720 Speaker 1: didn't say that in the prior case. They said that 119 00:07:10,800 --> 00:07:15,760 Speaker 1: the order was so poorly reasoned that that it didn't 120 00:07:15,800 --> 00:07:19,240 Speaker 1: survive even the basic level of scrutiny. And that's just 121 00:07:19,360 --> 00:07:21,559 Speaker 1: going to be very hard to show. In the third 122 00:07:21,640 --> 00:07:26,720 Speaker 1: iteration of the order, Andrew, in about thirty seconds that 123 00:07:26,760 --> 00:07:29,360 Speaker 1: we have left, do you think this thing is gonna 124 00:07:29,400 --> 00:07:32,160 Speaker 1: end up getting upheld or are we ending up back 125 00:07:32,160 --> 00:07:34,600 Speaker 1: in the Supreme Court. I think that this. I think 126 00:07:34,640 --> 00:07:38,600 Speaker 1: that the third travel ban is very carefully reasoned. Uh, 127 00:07:38,720 --> 00:07:42,520 Speaker 1: it's very limited. It explains the reasons, uh why the 128 00:07:42,600 --> 00:07:46,000 Speaker 1: President has taken this action. And again it's important to 129 00:07:46,040 --> 00:07:50,800 Speaker 1: notice Mr Fresco, did the Ninth Circuit upheld the disrecord 130 00:07:50,960 --> 00:07:55,080 Speaker 1: on statutory grounds, not on the establishment clause grounds. I 131 00:07:55,080 --> 00:07:57,320 Speaker 1: think that probably this is this one is going to 132 00:07:57,400 --> 00:08:00,680 Speaker 1: survive Ninth Circuit review. Our thanks to Andrew Arthur of 133 00:08:00,680 --> 00:08:04,320 Speaker 1: the Center for Immigration Studies in Leon, Fresco of Holland 134 00:08:04,320 --> 00:08:06,480 Speaker 1: and Knight for being with us here on Bloomberg law.