1 00:00:00,520 --> 00:00:03,720 Speaker 1: Another court ruling on Donald Trump's travel ban, another defeat 2 00:00:03,760 --> 00:00:06,760 Speaker 1: for the administration. The latest comes from a Richmond based 3 00:00:06,800 --> 00:00:09,000 Speaker 1: federal appeals court. The court took a look at the 4 00:00:09,039 --> 00:00:12,479 Speaker 1: executive order, in particular it's ninety day ban on entry 5 00:00:12,520 --> 00:00:15,800 Speaker 1: into the US by people from six predominantly Muslim countries, 6 00:00:16,400 --> 00:00:18,720 Speaker 1: and in attend to three decision, the appeals court said 7 00:00:18,720 --> 00:00:21,560 Speaker 1: the purpose behind the policy was not national security, as 8 00:00:21,560 --> 00:00:26,360 Speaker 1: the administration contended, but rather anti Muslim ANIMUS Attorney General 9 00:00:26,440 --> 00:00:28,760 Speaker 1: Jeff Sessions is vowing to take the issue to the 10 00:00:28,800 --> 00:00:31,880 Speaker 1: Supreme Court. With us to talk about the ruling and 11 00:00:32,000 --> 00:00:34,159 Speaker 1: what might be lying ahead in the legal fight over 12 00:00:34,200 --> 00:00:37,440 Speaker 1: the travel ban is David Beer. He's an immigration policy 13 00:00:37,479 --> 00:00:40,680 Speaker 1: analyst at the Cato Institute. And David Rivkin, he is 14 00:00:40,720 --> 00:00:45,000 Speaker 1: a partner at Baker Hostetler. So we'll have dueling David's today. Uh, 15 00:00:45,120 --> 00:00:49,199 Speaker 1: David rivkn let me start with you. I strongly suspect 16 00:00:49,200 --> 00:00:51,280 Speaker 1: there are a lot of things you disagree with in 17 00:00:51,320 --> 00:00:53,519 Speaker 1: this appeals court ruling. We'll try to get to as 18 00:00:53,560 --> 00:00:55,320 Speaker 1: many as we can, but let me ask you to 19 00:00:55,480 --> 00:00:58,400 Speaker 1: pick what you think is the most egregious mistake the 20 00:00:58,880 --> 00:01:02,320 Speaker 1: court made and tell us about that well. The most 21 00:01:02,320 --> 00:01:06,520 Speaker 1: egregious mistake, and you're right, there many other bad aspects 22 00:01:06,560 --> 00:01:10,959 Speaker 1: of the most egregious mistake is willful disregard all binding 23 00:01:11,000 --> 00:01:14,720 Speaker 1: Supreme Court precedents that are free cases that deal with 24 00:01:14,800 --> 00:01:18,480 Speaker 1: immigration matters clientized to Fiallo, and the most recent one 25 00:01:18,600 --> 00:01:22,520 Speaker 1: is called cur versus din. But make it absolutely abundantly 26 00:01:22,600 --> 00:01:26,720 Speaker 1: clear that we regard to these types of decisions. Is 27 00:01:26,800 --> 00:01:33,160 Speaker 1: sufficient for executive branch to articulate a good faith, bonafiti 28 00:01:33,720 --> 00:01:37,360 Speaker 1: explanation as to why this measure is taken. The judiciary 29 00:01:37,440 --> 00:01:40,640 Speaker 1: is not, repeat not supposed to look behind it, and 30 00:01:40,840 --> 00:01:43,600 Speaker 1: even more importantly, it's not supposed to engage in any 31 00:01:43,640 --> 00:01:47,160 Speaker 1: balancing to explain very briefly in domestic line of cases 32 00:01:47,240 --> 00:01:50,840 Speaker 1: from which they partook. Whenever you have somebody who as 33 00:01:50,880 --> 00:01:53,360 Speaker 1: search that a government of action violates the or protection 34 00:01:53,480 --> 00:01:55,880 Speaker 1: rights or First Amendment rights that do process rights, the 35 00:01:55,920 --> 00:02:00,240 Speaker 1: courts engage in balancing. It wouldn't surprise your Listen. There's 36 00:02:00,720 --> 00:02:02,680 Speaker 1: you do the balancing. You have a true master of 37 00:02:02,720 --> 00:02:05,720 Speaker 1: a decision. You did not do balancing in this space 38 00:02:05,720 --> 00:02:08,200 Speaker 1: at all. For the courts to do the balancing, all 39 00:02:08,280 --> 00:02:13,200 Speaker 1: the constitutional interest profit by the plaintiffs against the vigor, 40 00:02:13,240 --> 00:02:15,840 Speaker 1: if you will, the imperative of a governmental reasoning, in effect, 41 00:02:15,840 --> 00:02:19,240 Speaker 1: would make courts ultimate decision making and foreign affairs. This 42 00:02:19,400 --> 00:02:23,440 Speaker 1: Court not only looked beyond the four corners of the 43 00:02:23,520 --> 00:02:26,680 Speaker 1: explanation in this executive order, which is an appropriate in 44 00:02:26,720 --> 00:02:29,040 Speaker 1: and of itself, and it gained them balancing, and he 45 00:02:29,120 --> 00:02:32,720 Speaker 1: found in favor of the plaintiffs at least for the 46 00:02:32,720 --> 00:02:37,840 Speaker 1: injunctive purpose, utterly wrong. David Beer. Um, the Court said 47 00:02:38,080 --> 00:02:41,639 Speaker 1: that the executive order was facially legitimate, but it wasn't 48 00:02:41,639 --> 00:02:46,640 Speaker 1: bonafiti literally meaning in good faith, because um, there was 49 00:02:46,680 --> 00:02:49,640 Speaker 1: no good faith here by the White House, and the 50 00:02:49,680 --> 00:02:54,480 Speaker 1: plaintiffs had provided ample evidence that national security was not 51 00:02:54,639 --> 00:02:57,200 Speaker 1: the true reason for the order. So does that change 52 00:02:57,240 --> 00:03:01,359 Speaker 1: the game? Right? So? I think it really all does 53 00:03:01,480 --> 00:03:06,360 Speaker 1: come down to some parsing of the Supreme Court precedence here, 54 00:03:07,080 --> 00:03:11,080 Speaker 1: and what the Court said was looking at this prior 55 00:03:11,120 --> 00:03:14,280 Speaker 1: court ruling, they said, you needed a facially legitimate and 56 00:03:14,480 --> 00:03:19,000 Speaker 1: bonafide reason uh to deny a visa. And the question 57 00:03:19,040 --> 00:03:24,320 Speaker 1: really became is it facially legitimate and a facially bonafide reason, 58 00:03:24,520 --> 00:03:29,520 Speaker 1: or a facially legitimate reason and an independently bonafide reason 59 00:03:30,000 --> 00:03:33,200 Speaker 1: and the distinction there is that, you know, if it 60 00:03:33,360 --> 00:03:37,400 Speaker 1: was a facially bonafide reason, it would just be whatever 61 00:03:37,440 --> 00:03:42,560 Speaker 1: the government said was, uh, you know, the reason for 62 00:03:42,640 --> 00:03:45,360 Speaker 1: the order, they would have to accept it. And the 63 00:03:45,360 --> 00:03:49,240 Speaker 1: court said, no, we're not going to accept that interpretation 64 00:03:49,400 --> 00:03:53,040 Speaker 1: of what the Supreme Court said. We're gonna say, we're 65 00:03:53,080 --> 00:03:58,840 Speaker 1: gonna look behind and analyze the motivation behind this order. 66 00:03:59,720 --> 00:04:03,160 Speaker 1: And really that parsing of those those words really is 67 00:04:03,200 --> 00:04:06,600 Speaker 1: what it's all going to come down to. Whose interpretation 68 00:04:06,720 --> 00:04:10,040 Speaker 1: of this president is correct? David riv Can, under your 69 00:04:10,080 --> 00:04:12,400 Speaker 1: way of thinking about this case, what do we do 70 00:04:12,480 --> 00:04:15,520 Speaker 1: with this list of evidence that the Appeals Court pointed 71 00:04:15,560 --> 00:04:18,560 Speaker 1: to for for why it said that national security was 72 00:04:18,640 --> 00:04:21,640 Speaker 1: not the true reason, not the true reason. And I'll 73 00:04:21,680 --> 00:04:23,640 Speaker 1: just point a couple a couple of the examples. They 74 00:04:23,720 --> 00:04:26,279 Speaker 1: talked about Donald Trump's initial call for a band of 75 00:04:26,360 --> 00:04:29,400 Speaker 1: Muslims entering the US during the campaign. Um and he 76 00:04:29,440 --> 00:04:31,640 Speaker 1: talked about the court talked about how quickly the first 77 00:04:31,720 --> 00:04:34,799 Speaker 1: version of this band was slapped together without any input 78 00:04:34,880 --> 00:04:38,520 Speaker 1: from national security agencies. Do we just ignore those things 79 00:04:38,560 --> 00:04:42,760 Speaker 1: under your thinking about yes, yes, yes, article free futtal 80 00:04:42,800 --> 00:04:46,200 Speaker 1: courts ignore those reasons, I think for a second about 81 00:04:46,200 --> 00:04:49,400 Speaker 1: the level of presumption role of poaching on the territory 82 00:04:49,480 --> 00:04:53,080 Speaker 1: belongs to political branches. If the executive wishes to do 83 00:04:53,240 --> 00:04:55,840 Speaker 1: something quickly in time of war, in time of crisis, 84 00:04:56,200 --> 00:04:59,080 Speaker 1: the framers would say that speed and dispatches the essence 85 00:04:59,120 --> 00:05:01,800 Speaker 1: of being the executive. If you want to do something 86 00:05:01,839 --> 00:05:03,680 Speaker 1: in a way, if it's closely held and does not 87 00:05:03,839 --> 00:05:06,920 Speaker 1: involve the full firmament of government agencies, that may be 88 00:05:07,000 --> 00:05:10,480 Speaker 1: a policy mistake. But he's not of a judiciary to 89 00:05:10,480 --> 00:05:15,160 Speaker 1: to to to attribute any insidious weight to this. So 90 00:05:15,200 --> 00:05:17,560 Speaker 1: if a president wants to have a kitchen cabinet decide 91 00:05:17,560 --> 00:05:20,360 Speaker 1: in some matter versus having an inter agency process for months, 92 00:05:20,600 --> 00:05:23,599 Speaker 1: what is it to the judiciary. But look, the broader 93 00:05:23,720 --> 00:05:28,320 Speaker 1: problem to understand is with this approach. And by the way, 94 00:05:28,320 --> 00:05:31,240 Speaker 1: I happened to strongly disagree with the proposition that Trump 95 00:05:31,320 --> 00:05:34,799 Speaker 1: is a Muslim hater. But let's assume for a second 96 00:05:34,839 --> 00:05:37,000 Speaker 1: that he is, which again I don't think it's substantiated, 97 00:05:37,040 --> 00:05:41,359 Speaker 1: and of courts reasoning, this president would be unable to 98 00:05:41,480 --> 00:05:46,400 Speaker 1: take any action that impacts a Muslim majority country, including 99 00:05:46,440 --> 00:05:48,880 Speaker 1: the use of force. You listening to Bloomberg law and 100 00:05:48,960 --> 00:05:51,520 Speaker 1: we are talking about Donald Trump's travel ban and the 101 00:05:51,560 --> 00:05:56,159 Speaker 1: federal appeals court ruling that came out late yesterday saying 102 00:05:56,200 --> 00:05:58,760 Speaker 1: that the president went too far and that the policy 103 00:05:58,880 --> 00:06:03,440 Speaker 1: was motivated by anti Muslim animus. We're talking with David Rifken, 104 00:06:03,480 --> 00:06:06,839 Speaker 1: a partner at Baker Hostetler, and David Beer, an immigration 105 00:06:06,839 --> 00:06:11,279 Speaker 1: policy analyst at the Cato Institute. David Beer, Uh, we 106 00:06:11,279 --> 00:06:14,400 Speaker 1: we've talked about this policy before, and I know one 107 00:06:14,480 --> 00:06:17,760 Speaker 1: argument you've made is that the problem you have with 108 00:06:17,800 --> 00:06:20,920 Speaker 1: it is a is a question of the immigration laws 109 00:06:21,320 --> 00:06:24,000 Speaker 1: rather than the constitution. Correct me if I've if I've 110 00:06:24,240 --> 00:06:27,799 Speaker 1: misdescribed your position. But but I'm wondering whether you think 111 00:06:28,160 --> 00:06:30,240 Speaker 1: you know that that sort of argument didn't get a 112 00:06:30,279 --> 00:06:32,360 Speaker 1: whole lot of traction with this appeals court. They jumped 113 00:06:32,400 --> 00:06:35,480 Speaker 1: to the bigger constitutional question. Do you think this court 114 00:06:35,600 --> 00:06:38,679 Speaker 1: was too quick to make this a a full blown 115 00:06:38,720 --> 00:06:43,800 Speaker 1: constitutional case over uh, you know, the the establishment clause. Well, 116 00:06:43,800 --> 00:06:48,320 Speaker 1: it's very atypical for the court to skip over the 117 00:06:48,360 --> 00:06:52,839 Speaker 1: statutory question and go straight to the constitutional one. And 118 00:06:53,320 --> 00:06:57,400 Speaker 1: several of the concurring opinions, uh, did address this issue, 119 00:06:58,080 --> 00:07:03,040 Speaker 1: and majority of them agreed that the president is violating 120 00:07:03,080 --> 00:07:08,400 Speaker 1: the law as UH as Congress has enacted it. Um. 121 00:07:08,440 --> 00:07:11,600 Speaker 1: I would say one thing David suggested earlier that the 122 00:07:11,640 --> 00:07:16,240 Speaker 1: president could never take an adverse action against a Muslim 123 00:07:16,280 --> 00:07:19,920 Speaker 1: if this decision holds, And like you said, I'm not 124 00:07:19,960 --> 00:07:23,720 Speaker 1: convinced by the courts constitutional analysis on this point, but 125 00:07:23,840 --> 00:07:28,520 Speaker 1: that is just plainly false. The president's statements about Muslims 126 00:07:28,600 --> 00:07:32,640 Speaker 1: were directly tied to the issuance of this order. He 127 00:07:32,720 --> 00:07:35,360 Speaker 1: said that he wanted to ban all Muslims and later 128 00:07:35,400 --> 00:07:39,720 Speaker 1: defended this by saying that Islam hates us and that 129 00:07:39,760 --> 00:07:43,960 Speaker 1: he would expand the original proposal to ban entire Muslim 130 00:07:44,000 --> 00:07:49,120 Speaker 1: majority nationalities UH for the same reasons. At the same time, 131 00:07:49,280 --> 00:07:53,000 Speaker 1: he has provided no evidence that the purpose of this 132 00:07:53,520 --> 00:07:58,200 Speaker 1: is national security. So yes, if he told America that 133 00:07:58,280 --> 00:08:01,480 Speaker 1: he was taking actions against Musle Loans because he's biased 134 00:08:01,520 --> 00:08:05,240 Speaker 1: against Muslims, and he refused to provide any good reasons 135 00:08:05,280 --> 00:08:08,800 Speaker 1: why he needed to take them, then yes, this decision 136 00:08:08,840 --> 00:08:11,800 Speaker 1: would apply to those actions. But that's very different from 137 00:08:11,840 --> 00:08:15,720 Speaker 1: what David suggested. It's not like he's saying Islam hates 138 00:08:15,840 --> 00:08:19,000 Speaker 1: us untied to anything he said it in the context 139 00:08:19,080 --> 00:08:22,440 Speaker 1: of defending banning them from getting visas. To come to 140 00:08:22,440 --> 00:08:26,480 Speaker 1: the United States, David Rifton Um. The judges said in 141 00:08:26,520 --> 00:08:30,640 Speaker 1: the majority order that the order of the President speaks 142 00:08:30,640 --> 00:08:34,640 Speaker 1: with vague words of national security, but in context drips 143 00:08:34,640 --> 00:08:40,640 Speaker 1: with religious intolerance, animus, and discrimination remarkably harsh words. Is 144 00:08:40,679 --> 00:08:45,480 Speaker 1: the problem, as David said that the White House hadn't 145 00:08:45,520 --> 00:08:49,440 Speaker 1: detailed the risks posed by the people covered by the order. 146 00:08:50,720 --> 00:08:53,040 Speaker 1: Um a couple of things, and that also gets unto 147 00:08:53,120 --> 00:08:56,760 Speaker 1: the point made by my colleague, Uh, let me be blunt. 148 00:08:56,880 --> 00:08:59,599 Speaker 1: It is utterly you'll suit it for the judiciary and 149 00:08:59,720 --> 00:09:04,640 Speaker 1: utterly in consistent judiciaries constitutional authority to be sitting in 150 00:09:04,720 --> 00:09:09,920 Speaker 1: judgment on whether or not Um the Executive have an 151 00:09:10,000 --> 00:09:13,920 Speaker 1: articulated and they said it is has been clear. Even 152 00:09:14,000 --> 00:09:19,480 Speaker 1: this opinion says that it is perfectly reasonable, perfectly plausible reason, 153 00:09:20,640 --> 00:09:23,120 Speaker 1: which is, you want to slow down the presentation rate 154 00:09:23,120 --> 00:09:26,400 Speaker 1: of individuals for certain countries that are plagued by Johardi violence. 155 00:09:26,760 --> 00:09:31,320 Speaker 1: You want to give opportunities to a law enforcement agencies 156 00:09:31,360 --> 00:09:34,360 Speaker 1: that are already stretch pre definned to be able to 157 00:09:34,400 --> 00:09:39,440 Speaker 1: deal with investigations and and sort of new challenges better, 158 00:09:39,679 --> 00:09:43,240 Speaker 1: perfectly plausible, is utterly inappropriate for judicial to be sitting 159 00:09:43,240 --> 00:09:45,520 Speaker 1: in judgment on it, and and and trying to do 160 00:09:45,600 --> 00:09:49,600 Speaker 1: their own risk assessment or quote former government officials that 161 00:09:49,720 --> 00:09:53,120 Speaker 1: take a different position that is utterly inappropriate. And but 162 00:09:53,200 --> 00:09:55,760 Speaker 1: let me also say, and again not the property's role 163 00:09:55,800 --> 00:09:58,880 Speaker 1: apropos the point made by David I would argue that 164 00:09:59,040 --> 00:10:02,880 Speaker 1: under the Court's reasoning, any if President Trump, for example, 165 00:10:03,320 --> 00:10:07,280 Speaker 1: to institute an economic embargo against certain countries, which he 166 00:10:07,360 --> 00:10:09,920 Speaker 1: can do both on its own authority, but also because 167 00:10:09,960 --> 00:10:13,040 Speaker 1: Congress issued a number of cross issued excuse me, enacted 168 00:10:13,080 --> 00:10:16,640 Speaker 1: a number of cross cutting statutes to give President the authority, uh, 169 00:10:16,840 --> 00:10:19,520 Speaker 1: and justified in national scooting ground saying we want to 170 00:10:19,600 --> 00:10:24,480 Speaker 1: hurt the economies because they're supporting jihadis. Again, Um, under 171 00:10:24,520 --> 00:10:26,960 Speaker 1: the reason of this court there arguing to be obviously 172 00:10:27,080 --> 00:10:29,160 Speaker 1: just the pretext. This is just nonsense. He's saying it 173 00:10:29,200 --> 00:10:33,080 Speaker 1: because he's Muslims. Okay. Now, they may decide, in the 174 00:10:33,080 --> 00:10:38,720 Speaker 1: infinite wisdom doing the balancing that that is not appropriate, 175 00:10:39,679 --> 00:10:43,000 Speaker 1: uh to conclude that. But they would be in the 176 00:10:43,120 --> 00:10:48,240 Speaker 1: driver's seat, David Beer, Um, let me ask you as 177 00:10:48,760 --> 00:10:51,800 Speaker 1: we look towards the Supreme Court. UH. The Attorney General 178 00:10:51,840 --> 00:10:54,560 Speaker 1: Jeff Sessions has said that's where we're going next. What 179 00:10:54,640 --> 00:10:57,360 Speaker 1: are you envisioning there? Is this going to be a 180 00:10:57,400 --> 00:11:01,000 Speaker 1: close case. I think it's definitely going to be a 181 00:11:01,000 --> 00:11:06,280 Speaker 1: close case. And really you've seen quite a few different 182 00:11:06,320 --> 00:11:09,480 Speaker 1: judges from across the country issuing rulings, some of them 183 00:11:09,480 --> 00:11:14,400 Speaker 1: appointed by Republicans, some of them appointed by Democrats who 184 00:11:14,760 --> 00:11:18,960 Speaker 1: have found this to be a plausible case, whether the 185 00:11:19,000 --> 00:11:24,600 Speaker 1: statutory one or the constitutional one. UM. What will be interesting, however, 186 00:11:25,120 --> 00:11:29,440 Speaker 1: is if the Ninth Circuit case, the Hawaii UH decision 187 00:11:29,480 --> 00:11:32,839 Speaker 1: that's been appealed to the to the Ninth Circuit. If 188 00:11:32,840 --> 00:11:35,840 Speaker 1: the Ninth Circuit agrees with the Fourth Circuit, there really 189 00:11:35,920 --> 00:11:38,959 Speaker 1: isn't a court split here. That doesn't mean that the 190 00:11:39,120 --> 00:11:42,320 Speaker 1: Supreme Court couldn't still review it um. But it would 191 00:11:42,320 --> 00:11:46,160 Speaker 1: be interesting if you had to uh, you know, different 192 00:11:47,440 --> 00:11:52,560 Speaker 1: appeals courts agreeing that the president is violent in the law. UH. 193 00:11:52,600 --> 00:11:56,280 Speaker 1: That would put the pointiffs on a stronger position than 194 00:11:56,920 --> 00:12:00,400 Speaker 1: um in prior cases. Well, we will, we will definitely 195 00:12:00,440 --> 00:12:02,959 Speaker 1: be watching for that. The Ninth Circuit decision could come 196 00:12:02,960 --> 00:12:06,240 Speaker 1: out any day, UH, and the argument suggested they will 197 00:12:06,280 --> 00:12:09,360 Speaker 1: indeed agree with the Fourth Circuit. UH. The administration could 198 00:12:09,400 --> 00:12:13,000 Speaker 1: ask the Supreme Court to intervene immediately and enter an 199 00:12:13,040 --> 00:12:16,800 Speaker 1: emergency order that would put the policy back in place 200 00:12:16,800 --> 00:12:19,319 Speaker 1: while the litigation plays out. I want to thank our guests, 201 00:12:19,400 --> 00:12:23,040 Speaker 1: David Beer the Cato Institute, David Rivken of Baker Hostetler. 202 00:12:23,400 --> 00:12:25,679 Speaker 1: Coming up, we're going to talk about that Washington Post 203 00:12:25,679 --> 00:12:29,079 Speaker 1: report that says that FBI investigators in the Russia probe 204 00:12:29,120 --> 00:12:32,920 Speaker 1: are looking at Jared Kushner as a focus of their investigation. 205 00:12:33,320 --> 00:12:37,720 Speaker 1: That's all coming up on Bloomberg Law. This is Bloomberg