1 00:00:00,120 --> 00:00:03,360 Speaker 1: It feels like deja vu all over again. For the 2 00:00:03,440 --> 00:00:06,280 Speaker 1: second time in about three months, the Ninth Circuit Court 3 00:00:06,320 --> 00:00:09,480 Speaker 1: of Appeals heard oral arguments about the legality of President 4 00:00:09,480 --> 00:00:12,400 Speaker 1: Trump's travel ban, and this hearing was much like the 5 00:00:12,440 --> 00:00:15,040 Speaker 1: one last week at the Fourth Circuit Court of Appeals. 6 00:00:15,360 --> 00:00:18,240 Speaker 1: Once again, the question was whether the ban was motivated 7 00:00:18,280 --> 00:00:23,799 Speaker 1: by religious prejudiced against Muslims or national security concerns. Trump's 8 00:00:23,800 --> 00:00:26,479 Speaker 1: passed rhetoric about Muslims was a key concern for the 9 00:00:26,560 --> 00:00:30,160 Speaker 1: Ninth Circuit judges. At the Seattle hearing, Judge Michael Hawkins 10 00:00:30,200 --> 00:00:34,960 Speaker 1: asked whether Trump has ever disavowed his campaign statements as 11 00:00:34,960 --> 00:00:37,720 Speaker 1: he ever stood up and said, I said before I 12 00:00:37,760 --> 00:00:41,480 Speaker 1: wanted to ban all members of the Islamic faith from 13 00:00:41,720 --> 00:00:45,839 Speaker 1: entering the United States of America. I was wrong. Well. 14 00:00:45,960 --> 00:00:49,879 Speaker 1: Last week, Fourth Circuit Judge Robert King answered that question 15 00:00:49,960 --> 00:00:54,240 Speaker 1: during the oral arguments in Virginia. He's never repudiated what 16 00:00:54,360 --> 00:00:57,440 Speaker 1: he said about the muscle band is still on his website. 17 00:00:58,200 --> 00:01:01,240 Speaker 1: Bloomberg knew his legal reporter, card Came Rhoda, was at 18 00:01:01,320 --> 00:01:05,920 Speaker 1: the hearings and joins us. Now he's written about it. Cardik, 19 00:01:06,200 --> 00:01:11,720 Speaker 1: what were the basic arguments on both sides. The plainiffs 20 00:01:11,760 --> 00:01:14,320 Speaker 1: from the State of Hawaii and the Ninth Circuit made 21 00:01:14,480 --> 00:01:16,680 Speaker 1: fundamentally the same argument has been made for the last 22 00:01:16,680 --> 00:01:20,840 Speaker 1: couple of months that the rhetoric from the campaign um 23 00:01:21,160 --> 00:01:25,000 Speaker 1: is indisputable. There there's no way to interpret the call 24 00:01:25,120 --> 00:01:29,360 Speaker 1: for a Muslim ban any other way that this executive order, 25 00:01:29,440 --> 00:01:31,200 Speaker 1: the first one, the second one where they got rid 26 00:01:31,200 --> 00:01:35,200 Speaker 1: of all the religious context, is in fact um discriminatory 27 00:01:35,200 --> 00:01:37,920 Speaker 1: on religious grounds. It's a violation of the First Amendment's 28 00:01:38,400 --> 00:01:42,320 Speaker 1: rights to religious freedom. The Justice Department continues to argue 29 00:01:42,360 --> 00:01:45,600 Speaker 1: that like this is the president who has privilege to 30 00:01:46,240 --> 00:01:51,160 Speaker 1: uh to determine immigration policy as he sees fit. On 31 00:01:51,640 --> 00:01:54,880 Speaker 1: if that means that certain nationalities are not allowed to 32 00:01:55,080 --> 00:01:57,680 Speaker 1: enter the country for a certain period of time, he 33 00:01:57,800 --> 00:02:00,960 Speaker 1: has that absolute right. Further, the Supreme Court has stated 34 00:02:01,040 --> 00:02:04,480 Speaker 1: that campaign rhetorics shouldn't be admissible as evidence um, so 35 00:02:04,560 --> 00:02:07,480 Speaker 1: that back and forth continued. How they'll rule is still 36 00:02:07,480 --> 00:02:11,240 Speaker 1: a question that is a big question, and at the 37 00:02:11,280 --> 00:02:15,480 Speaker 1: same time, the Fourth Circuit ruling is out there. We're 38 00:02:15,520 --> 00:02:18,800 Speaker 1: talking to Bloomberg News legal reporter Cardike Marotra, who was 39 00:02:18,840 --> 00:02:22,000 Speaker 1: at the hearing of the Ninth Circuit Yesterday the second 40 00:02:22,040 --> 00:02:27,320 Speaker 1: hearing over President Trump's travel ban CARDIKE Judge Michael Hawkins 41 00:02:27,400 --> 00:02:31,040 Speaker 1: asked at one point whether Trump has ever disavowed his 42 00:02:31,240 --> 00:02:36,200 Speaker 1: campaign statements about Muslims. What was the response of the 43 00:02:36,639 --> 00:02:40,760 Speaker 1: Solicitor General or the acting Deputy Solicitor General. The response 44 00:02:40,840 --> 00:02:44,800 Speaker 1: was that it doesn't matter. The response was that, um, A, 45 00:02:45,440 --> 00:02:50,760 Speaker 1: the campaign comments are completely irrelevant. UM. This president UM 46 00:02:50,800 --> 00:02:54,639 Speaker 1: has UH has the country's national security in mind. UM, 47 00:02:54,760 --> 00:02:58,600 Speaker 1: he's wearing a different hat. UM, so it's well within 48 00:02:58,720 --> 00:03:02,720 Speaker 1: his right to make policy that is in the interest 49 00:03:02,800 --> 00:03:06,320 Speaker 1: of national security, and that as long as the document 50 00:03:06,400 --> 00:03:11,400 Speaker 1: itself isn't unconstitutional, then none of those comments, UM, whether 51 00:03:11,480 --> 00:03:13,520 Speaker 1: a vout or just avout really matter at this point 52 00:03:14,040 --> 00:03:17,680 Speaker 1: in Carter k how satisfied did the three judges on 53 00:03:17,720 --> 00:03:21,640 Speaker 1: the panel appear to be with that answer? That is 54 00:03:21,639 --> 00:03:24,400 Speaker 1: a good question. That's sort of the six or four 55 00:03:24,440 --> 00:03:26,720 Speaker 1: thousand other question. We're all waiting for an answer on 56 00:03:27,160 --> 00:03:30,919 Speaker 1: which will be determined by their their ruling. UM. It 57 00:03:30,960 --> 00:03:35,000 Speaker 1: was followed by multiple questions for both the plaintiff and 58 00:03:35,280 --> 00:03:40,160 Speaker 1: UH and the Justice Department over exactly what those comments 59 00:03:40,200 --> 00:03:43,560 Speaker 1: were and further, UM, what has the president said since 60 00:03:43,680 --> 00:03:48,960 Speaker 1: becoming since inauguration about the travel ban and UM religious 61 00:03:49,000 --> 00:03:53,280 Speaker 1: minorities and his affinity for Christian immigrants. That was sort 62 00:03:53,320 --> 00:03:57,120 Speaker 1: of a point of emphasis as well, that that offered 63 00:03:57,120 --> 00:03:59,840 Speaker 1: a bit of insight that perhaps this logic isn't going 64 00:03:59,880 --> 00:04:04,040 Speaker 1: to enough. When the Acting Solicitor General Jeffrey Wall said 65 00:04:04,120 --> 00:04:07,840 Speaker 1: that Supreme Court precedent was against the judges second guessing 66 00:04:07,880 --> 00:04:12,960 Speaker 1: the president's quote national security determinations that they're sort of 67 00:04:13,160 --> 00:04:16,280 Speaker 1: ill equipped to do. One of the judges brought up 68 00:04:16,320 --> 00:04:20,400 Speaker 1: the infamous case in which Japanese Americans were interned during 69 00:04:20,440 --> 00:04:24,640 Speaker 1: World War Two. What was the response there? The Justice 70 00:04:24,640 --> 00:04:28,239 Speaker 1: Department was adamant in saying that this is not Ka 71 00:04:28,320 --> 00:04:32,039 Speaker 1: Matsu the case you're talking about. That if this was 72 00:04:32,600 --> 00:04:37,120 Speaker 1: an instance of internment, the Justice Department wouldn't be representing 73 00:04:37,560 --> 00:04:42,120 Speaker 1: UM this case. Uh, this particular attorney would not support it. 74 00:04:42,560 --> 00:04:44,960 Speaker 1: The government does not support that kind of behavior. They 75 00:04:45,560 --> 00:04:48,960 Speaker 1: immediately distanced themselves from any notion that this is anywhere 76 00:04:49,040 --> 00:04:54,200 Speaker 1: close to UM Japanese internment. Kardik, what options are on 77 00:04:54,279 --> 00:04:56,320 Speaker 1: the table for the Ninth Circuit? They could, of course 78 00:04:56,400 --> 00:04:59,479 Speaker 1: uphold the travel ban, but if they if they strike 79 00:04:59,560 --> 00:05:03,200 Speaker 1: it down, are there narrower and broader ways they could rule. 80 00:05:04,440 --> 00:05:07,440 Speaker 1: There's a couple of different scenarios. One you can look 81 00:05:07,440 --> 00:05:10,680 Speaker 1: at the Fourth Circuit and see how the Maryland judge there, 82 00:05:10,760 --> 00:05:16,000 Speaker 1: the district judge ruled he only banned portion of the 83 00:05:16,080 --> 00:05:18,760 Speaker 1: second travel ban that was a sixth nation ban, while 84 00:05:18,800 --> 00:05:24,960 Speaker 1: the refugees UH policy and the ability to research um 85 00:05:25,040 --> 00:05:29,760 Speaker 1: immigration policy is still intact in the executive order. So 86 00:05:29,839 --> 00:05:32,800 Speaker 1: the Ninth Circuit could do something like that, a partial 87 00:05:33,400 --> 00:05:36,520 Speaker 1: repudiation of the order, where they say, look, the sixth 88 00:05:36,640 --> 00:05:41,440 Speaker 1: nation ban is in fact discriminatory, but look, the Justice 89 00:05:41,520 --> 00:05:44,919 Speaker 1: partner needs the power to research its policies, and the 90 00:05:44,960 --> 00:05:50,279 Speaker 1: refugee ban um is valid um. The other um, what 91 00:05:50,440 --> 00:05:53,159 Speaker 1: experts see is the more likely option is as you said, 92 00:05:53,320 --> 00:05:57,680 Speaker 1: the Ninth Circuit upholds the district courts order and the 93 00:05:57,720 --> 00:06:02,599 Speaker 1: travel ban remains enjoined from enforcement. Sometimes you get a 94 00:06:02,640 --> 00:06:07,760 Speaker 1: feeling in these arguments about which way the judges are 95 00:06:07,839 --> 00:06:10,680 Speaker 1: likely to go. Sometimes that feeling is wrong. But did 96 00:06:10,720 --> 00:06:14,360 Speaker 1: you get any feeling in this in this case as 97 00:06:14,400 --> 00:06:17,320 Speaker 1: to UH whether they were being tougher on one side 98 00:06:17,360 --> 00:06:20,640 Speaker 1: than the other, or which white it might go. The 99 00:06:20,680 --> 00:06:23,040 Speaker 1: first time around in February, when we were talking about 100 00:06:23,080 --> 00:06:26,200 Speaker 1: the first travel ban, it was pretty clear that the 101 00:06:26,279 --> 00:06:28,680 Speaker 1: ruling was either going to be the three judge panel. 102 00:06:28,680 --> 00:06:30,640 Speaker 1: It would either be two to one or three nothing 103 00:06:31,080 --> 00:06:36,640 Speaker 1: in favor of extending the temporary restraining order. At the time, 104 00:06:37,400 --> 00:06:40,320 Speaker 1: this is a lot harder to read because the judges 105 00:06:40,400 --> 00:06:44,320 Speaker 1: were I had some pretty tough questions for both sides. Further, 106 00:06:44,640 --> 00:06:48,520 Speaker 1: the Justice Department was far better prepared to argue this 107 00:06:48,600 --> 00:06:52,480 Speaker 1: case this time around. Uh, They've done their homework. They've 108 00:06:52,480 --> 00:06:56,479 Speaker 1: had weeks months to prepare for this litigation, whereas the 109 00:06:56,520 --> 00:07:00,080 Speaker 1: initial ban, everything unfolded within days and there was a 110 00:07:00,120 --> 00:07:02,560 Speaker 1: ton of turnover among the U. S attorneys who are 111 00:07:02,600 --> 00:07:06,880 Speaker 1: handling the case. Uh, it's pretty hard to handicap this one. 112 00:07:06,960 --> 00:07:10,760 Speaker 1: But the case of being before the Ninth Circuit, historically 113 00:07:10,840 --> 00:07:14,640 Speaker 1: liberal court. All three of these judges were Democratic appointees 114 00:07:14,720 --> 00:07:18,920 Speaker 1: by Bill Clinton. UM. Most experts believe that the Ninth 115 00:07:18,920 --> 00:07:23,080 Speaker 1: Circuit will rule to continue to ban the travel ban well, 116 00:07:23,120 --> 00:07:27,360 Speaker 1: and also President Trump has said such lovely things about 117 00:07:27,360 --> 00:07:30,360 Speaker 1: the Ninth Circuit. I'm sure that they're dear to him, 118 00:07:30,400 --> 00:07:33,520 Speaker 1: but thank you so much. And we will have to, 119 00:07:33,560 --> 00:07:36,800 Speaker 1: of course see whether the Ninth Circuit ruling is in 120 00:07:36,920 --> 00:07:39,720 Speaker 1: conflict with the Fourth Circuit ruling, which would set this 121 00:07:39,880 --> 00:07:43,240 Speaker 1: up perhaps for Supreme Court review. Thanks for being with 122 00:07:43,360 --> 00:07:46,360 Speaker 1: us here on Bloomberg Law and for your reporting. That's 123 00:07:46,440 --> 00:07:49,680 Speaker 1: card came Rotra, who is a Bloomberg News legal reporter 124 00:07:49,800 --> 00:07:52,640 Speaker 1: and wrote about this story for Bloomberg