WEBVTT - Fourth Circuit Halts Travel Ban in Latest Setback (Correct) 0:00:00.520 --> 0:00:03.720 Another court ruling on Donald Trump's travel ban, another defeat 0:00:03.760 --> 0:00:06.760 for the administration. The latest comes from a Richmond based 0:00:06.800 --> 0:00:09.000 federal appeals court. The court took a look at the 0:00:09.039 --> 0:00:12.479 executive order, in particular it's ninety day ban on entry 0:00:12.520 --> 0:00:15.800 into the US by people from six predominantly Muslim countries, 0:00:16.400 --> 0:00:18.720 and in attend to three decision, the appeals court said 0:00:18.720 --> 0:00:21.560 the purpose behind the policy was not national security, as 0:00:21.560 --> 0:00:26.360 the administration contended, but rather anti Muslim ANIMUS Attorney General 0:00:26.440 --> 0:00:28.760 Jeff Sessions is vowing to take the issue to the 0:00:28.800 --> 0:00:31.880 Supreme Court. With us to talk about the ruling and 0:00:32.000 --> 0:00:34.159 what might be lying ahead in the legal fight over 0:00:34.200 --> 0:00:37.440 the travel ban is David Beer. He's an immigration policy 0:00:37.479 --> 0:00:40.680 analyst at the Cato Institute. And David Rivkin, he is 0:00:40.720 --> 0:00:45.000 a partner at Baker Hostetler. So we'll have dueling David's today. Uh, 0:00:45.120 --> 0:00:49.199 David rivkn let me start with you. I strongly suspect 0:00:49.200 --> 0:00:51.280 there are a lot of things you disagree with in 0:00:51.320 --> 0:00:53.519 this appeals court ruling. We'll try to get to as 0:00:53.560 --> 0:00:55.320 many as we can, but let me ask you to 0:00:55.480 --> 0:00:58.400 pick what you think is the most egregious mistake the 0:00:58.880 --> 0:01:02.320 court made and tell us about that well. The most 0:01:02.320 --> 0:01:06.520 egregious mistake, and you're right, there many other bad aspects 0:01:06.560 --> 0:01:10.959 of the most egregious mistake is willful disregard all binding 0:01:11.000 --> 0:01:14.720 Supreme Court precedents that are free cases that deal with 0:01:14.800 --> 0:01:18.480 immigration matters clientized to Fiallo, and the most recent one 0:01:18.600 --> 0:01:22.520 is called cur versus din. But make it absolutely abundantly 0:01:22.600 --> 0:01:26.720 clear that we regard to these types of decisions. Is 0:01:26.800 --> 0:01:33.160 sufficient for executive branch to articulate a good faith, bonafiti 0:01:33.720 --> 0:01:37.360 explanation as to why this measure is taken. The judiciary 0:01:37.440 --> 0:01:40.640 is not, repeat not supposed to look behind it, and 0:01:40.840 --> 0:01:43.600 even more importantly, it's not supposed to engage in any 0:01:43.640 --> 0:01:47.160 balancing to explain very briefly in domestic line of cases 0:01:47.240 --> 0:01:50.840 from which they partook. Whenever you have somebody who as 0:01:50.880 --> 0:01:53.360 search that a government of action violates the or protection 0:01:53.480 --> 0:01:55.880 rights or First Amendment rights that do process rights, the 0:01:55.920 --> 0:02:00.240 courts engage in balancing. It wouldn't surprise your Listen. There's 0:02:00.720 --> 0:02:02.680 you do the balancing. You have a true master of 0:02:02.720 --> 0:02:05.720 a decision. You did not do balancing in this space 0:02:05.720 --> 0:02:08.200 at all. For the courts to do the balancing, all 0:02:08.280 --> 0:02:13.200 the constitutional interest profit by the plaintiffs against the vigor, 0:02:13.240 --> 0:02:15.840 if you will, the imperative of a governmental reasoning, in effect, 0:02:15.840 --> 0:02:19.240 would make courts ultimate decision making and foreign affairs. This 0:02:19.400 --> 0:02:23.440 Court not only looked beyond the four corners of the 0:02:23.520 --> 0:02:26.680 explanation in this executive order, which is an appropriate in 0:02:26.720 --> 0:02:29.040 and of itself, and it gained them balancing, and he 0:02:29.120 --> 0:02:32.720 found in favor of the plaintiffs at least for the 0:02:32.720 --> 0:02:37.840 injunctive purpose, utterly wrong. David Beer. Um, the Court said 0:02:38.080 --> 0:02:41.639 that the executive order was facially legitimate, but it wasn't 0:02:41.639 --> 0:02:46.640 bonafiti literally meaning in good faith, because um, there was 0:02:46.680 --> 0:02:49.640 no good faith here by the White House, and the 0:02:49.680 --> 0:02:54.480 plaintiffs had provided ample evidence that national security was not 0:02:54.639 --> 0:02:57.200 the true reason for the order. So does that change 0:02:57.240 --> 0:03:01.359 the game? Right? So? I think it really all does 0:03:01.480 --> 0:03:06.360 come down to some parsing of the Supreme Court precedence here, 0:03:07.080 --> 0:03:11.080 and what the Court said was looking at this prior 0:03:11.120 --> 0:03:14.280 court ruling, they said, you needed a facially legitimate and 0:03:14.480 --> 0:03:19.000 bonafide reason uh to deny a visa. And the question 0:03:19.040 --> 0:03:24.320 really became is it facially legitimate and a facially bonafide reason, 0:03:24.520 --> 0:03:29.520 or a facially legitimate reason and an independently bonafide reason 0:03:30.000 --> 0:03:33.200 and the distinction there is that, you know, if it 0:03:33.360 --> 0:03:37.400 was a facially bonafide reason, it would just be whatever 0:03:37.440 --> 0:03:42.560 the government said was, uh, you know, the reason for 0:03:42.640 --> 0:03:45.360 the order, they would have to accept it. And the 0:03:45.360 --> 0:03:49.240 court said, no, we're not going to accept that interpretation 0:03:49.400 --> 0:03:53.040 of what the Supreme Court said. We're gonna say, we're 0:03:53.080 --> 0:03:58.840 gonna look behind and analyze the motivation behind this order. 0:03:59.720 --> 0:04:03.160 And really that parsing of those those words really is 0:04:03.200 --> 0:04:06.600 what it's all going to come down to. Whose interpretation 0:04:06.720 --> 0:04:10.040 of this president is correct? David riv Can, under your 0:04:10.080 --> 0:04:12.400 way of thinking about this case, what do we do 0:04:12.480 --> 0:04:15.520 with this list of evidence that the Appeals Court pointed 0:04:15.560 --> 0:04:18.560 to for for why it said that national security was 0:04:18.640 --> 0:04:21.640 not the true reason, not the true reason. And I'll 0:04:21.680 --> 0:04:23.640 just point a couple a couple of the examples. They 0:04:23.720 --> 0:04:26.279 talked about Donald Trump's initial call for a band of 0:04:26.360 --> 0:04:29.400 Muslims entering the US during the campaign. Um and he 0:04:29.440 --> 0:04:31.640 talked about the court talked about how quickly the first 0:04:31.720 --> 0:04:34.799 version of this band was slapped together without any input 0:04:34.880 --> 0:04:38.520 from national security agencies. Do we just ignore those things 0:04:38.560 --> 0:04:42.760 under your thinking about yes, yes, yes, article free futtal 0:04:42.800 --> 0:04:46.200 courts ignore those reasons, I think for a second about 0:04:46.200 --> 0:04:49.400 the level of presumption role of poaching on the territory 0:04:49.480 --> 0:04:53.080 belongs to political branches. If the executive wishes to do 0:04:53.240 --> 0:04:55.840 something quickly in time of war, in time of crisis, 0:04:56.200 --> 0:04:59.080 the framers would say that speed and dispatches the essence 0:04:59.120 --> 0:05:01.800 of being the executive. If you want to do something 0:05:01.839 --> 0:05:03.680 in a way, if it's closely held and does not 0:05:03.839 --> 0:05:06.920 involve the full firmament of government agencies, that may be 0:05:07.000 --> 0:05:10.480 a policy mistake. But he's not of a judiciary to 0:05:10.480 --> 0:05:15.160 to to to attribute any insidious weight to this. So 0:05:15.200 --> 0:05:17.560 if a president wants to have a kitchen cabinet decide 0:05:17.560 --> 0:05:20.360 in some matter versus having an inter agency process for months, 0:05:20.600 --> 0:05:23.599 what is it to the judiciary. But look, the broader 0:05:23.720 --> 0:05:28.320 problem to understand is with this approach. And by the way, 0:05:28.320 --> 0:05:31.240 I happened to strongly disagree with the proposition that Trump 0:05:31.320 --> 0:05:34.799 is a Muslim hater. But let's assume for a second 0:05:34.839 --> 0:05:37.000 that he is, which again I don't think it's substantiated, 0:05:37.040 --> 0:05:41.359 and of courts reasoning, this president would be unable to 0:05:41.480 --> 0:05:46.400 take any action that impacts a Muslim majority country, including 0:05:46.440 --> 0:05:48.880 the use of force. You listening to Bloomberg law and 0:05:48.960 --> 0:05:51.520 we are talking about Donald Trump's travel ban and the 0:05:51.560 --> 0:05:56.159 federal appeals court ruling that came out late yesterday saying 0:05:56.200 --> 0:05:58.760 that the president went too far and that the policy 0:05:58.880 --> 0:06:03.440 was motivated by anti Muslim animus. We're talking with David Rifken, 0:06:03.480 --> 0:06:06.839 a partner at Baker Hostetler, and David Beer, an immigration 0:06:06.839 --> 0:06:11.279 policy analyst at the Cato Institute. David Beer, Uh, we 0:06:11.279 --> 0:06:14.400 we've talked about this policy before, and I know one 0:06:14.480 --> 0:06:17.760 argument you've made is that the problem you have with 0:06:17.800 --> 0:06:20.920 it is a is a question of the immigration laws 0:06:21.320 --> 0:06:24.000 rather than the constitution. Correct me if I've if I've 0:06:24.240 --> 0:06:27.799 misdescribed your position. But but I'm wondering whether you think 0:06:28.160 --> 0:06:30.240 you know that that sort of argument didn't get a 0:06:30.279 --> 0:06:32.360 whole lot of traction with this appeals court. They jumped 0:06:32.400 --> 0:06:35.480 to the bigger constitutional question. Do you think this court 0:06:35.600 --> 0:06:38.679 was too quick to make this a a full blown 0:06:38.720 --> 0:06:43.800 constitutional case over uh, you know, the the establishment clause. Well, 0:06:43.800 --> 0:06:48.320 it's very atypical for the court to skip over the 0:06:48.360 --> 0:06:52.839 statutory question and go straight to the constitutional one. And 0:06:53.320 --> 0:06:57.400 several of the concurring opinions, uh, did address this issue, 0:06:58.080 --> 0:07:03.040 and majority of them agreed that the president is violating 0:07:03.080 --> 0:07:08.400 the law as UH as Congress has enacted it. Um. 0:07:08.440 --> 0:07:11.600 I would say one thing David suggested earlier that the 0:07:11.640 --> 0:07:16.240 president could never take an adverse action against a Muslim 0:07:16.280 --> 0:07:19.920 if this decision holds, And like you said, I'm not 0:07:19.960 --> 0:07:23.720 convinced by the courts constitutional analysis on this point, but 0:07:23.840 --> 0:07:28.520 that is just plainly false. The president's statements about Muslims 0:07:28.600 --> 0:07:32.640 were directly tied to the issuance of this order. He 0:07:32.720 --> 0:07:35.360 said that he wanted to ban all Muslims and later 0:07:35.400 --> 0:07:39.720 defended this by saying that Islam hates us and that 0:07:39.760 --> 0:07:43.960 he would expand the original proposal to ban entire Muslim 0:07:44.000 --> 0:07:49.120 majority nationalities UH for the same reasons. At the same time, 0:07:49.280 --> 0:07:53.000 he has provided no evidence that the purpose of this 0:07:53.520 --> 0:07:58.200 is national security. So yes, if he told America that 0:07:58.280 --> 0:08:01.480 he was taking actions against Musle Loans because he's biased 0:08:01.520 --> 0:08:05.240 against Muslims, and he refused to provide any good reasons 0:08:05.280 --> 0:08:08.800 why he needed to take them, then yes, this decision 0:08:08.840 --> 0:08:11.800 would apply to those actions. But that's very different from 0:08:11.840 --> 0:08:15.720 what David suggested. It's not like he's saying Islam hates 0:08:15.840 --> 0:08:19.000 us untied to anything he said it in the context 0:08:19.080 --> 0:08:22.440 of defending banning them from getting visas. To come to 0:08:22.440 --> 0:08:26.480 the United States, David Rifton Um. The judges said in 0:08:26.520 --> 0:08:30.640 the majority order that the order of the President speaks 0:08:30.640 --> 0:08:34.640 with vague words of national security, but in context drips 0:08:34.640 --> 0:08:40.640 with religious intolerance, animus, and discrimination remarkably harsh words. Is 0:08:40.679 --> 0:08:45.480 the problem, as David said that the White House hadn't 0:08:45.520 --> 0:08:49.440 detailed the risks posed by the people covered by the order. 0:08:50.720 --> 0:08:53.040 Um a couple of things, and that also gets unto 0:08:53.120 --> 0:08:56.760 the point made by my colleague, Uh, let me be blunt. 0:08:56.880 --> 0:08:59.599 It is utterly you'll suit it for the judiciary and 0:08:59.720 --> 0:09:04.640 utterly in consistent judiciaries constitutional authority to be sitting in 0:09:04.720 --> 0:09:09.920 judgment on whether or not Um the Executive have an 0:09:10.000 --> 0:09:13.920 articulated and they said it is has been clear. Even 0:09:14.000 --> 0:09:19.480 this opinion says that it is perfectly reasonable, perfectly plausible reason, 0:09:20.640 --> 0:09:23.120 which is, you want to slow down the presentation rate 0:09:23.120 --> 0:09:26.400 of individuals for certain countries that are plagued by Johardi violence. 0:09:26.760 --> 0:09:31.320 You want to give opportunities to a law enforcement agencies 0:09:31.360 --> 0:09:34.360 that are already stretch pre definned to be able to 0:09:34.400 --> 0:09:39.440 deal with investigations and and sort of new challenges better, 0:09:39.679 --> 0:09:43.240 perfectly plausible, is utterly inappropriate for judicial to be sitting 0:09:43.240 --> 0:09:45.520 in judgment on it, and and and trying to do 0:09:45.600 --> 0:09:49.600 their own risk assessment or quote former government officials that 0:09:49.720 --> 0:09:53.120 take a different position that is utterly inappropriate. And but 0:09:53.200 --> 0:09:55.760 let me also say, and again not the property's role 0:09:55.800 --> 0:09:58.880 apropos the point made by David I would argue that 0:09:59.040 --> 0:10:02.880 under the Court's reasoning, any if President Trump, for example, 0:10:03.320 --> 0:10:07.280 to institute an economic embargo against certain countries, which he 0:10:07.360 --> 0:10:09.920 can do both on its own authority, but also because 0:10:09.960 --> 0:10:13.040 Congress issued a number of cross issued excuse me, enacted 0:10:13.080 --> 0:10:16.640 a number of cross cutting statutes to give President the authority, uh, 0:10:16.840 --> 0:10:19.520 and justified in national scooting ground saying we want to 0:10:19.600 --> 0:10:24.480 hurt the economies because they're supporting jihadis. Again, Um, under 0:10:24.520 --> 0:10:26.960 the reason of this court there arguing to be obviously 0:10:27.080 --> 0:10:29.160 just the pretext. This is just nonsense. He's saying it 0:10:29.200 --> 0:10:33.080 because he's Muslims. Okay. Now, they may decide, in the 0:10:33.080 --> 0:10:38.720 infinite wisdom doing the balancing that that is not appropriate, 0:10:39.679 --> 0:10:43.000 uh to conclude that. But they would be in the 0:10:43.120 --> 0:10:48.240 driver's seat, David Beer, Um, let me ask you as 0:10:48.760 --> 0:10:51.800 we look towards the Supreme Court. UH. The Attorney General 0:10:51.840 --> 0:10:54.560 Jeff Sessions has said that's where we're going next. What 0:10:54.640 --> 0:10:57.360 are you envisioning there? Is this going to be a 0:10:57.400 --> 0:11:01.000 close case. I think it's definitely going to be a 0:11:01.000 --> 0:11:06.280 close case. And really you've seen quite a few different 0:11:06.320 --> 0:11:09.480 judges from across the country issuing rulings, some of them 0:11:09.480 --> 0:11:14.400 appointed by Republicans, some of them appointed by Democrats who 0:11:14.760 --> 0:11:18.960 have found this to be a plausible case, whether the 0:11:19.000 --> 0:11:24.600 statutory one or the constitutional one. UM. What will be interesting, however, 0:11:25.120 --> 0:11:29.440 is if the Ninth Circuit case, the Hawaii UH decision 0:11:29.480 --> 0:11:32.839 that's been appealed to the to the Ninth Circuit. If 0:11:32.840 --> 0:11:35.840 the Ninth Circuit agrees with the Fourth Circuit, there really 0:11:35.920 --> 0:11:38.959 isn't a court split here. That doesn't mean that the 0:11:39.120 --> 0:11:42.320 Supreme Court couldn't still review it um. But it would 0:11:42.320 --> 0:11:46.160 be interesting if you had to uh, you know, different 0:11:47.440 --> 0:11:52.560 appeals courts agreeing that the president is violent in the law. UH. 0:11:52.600 --> 0:11:56.280 That would put the pointiffs on a stronger position than 0:11:56.920 --> 0:12:00.400 um in prior cases. Well, we will, we will definitely 0:12:00.440 --> 0:12:02.959 be watching for that. The Ninth Circuit decision could come 0:12:02.960 --> 0:12:06.240 out any day, UH, and the argument suggested they will 0:12:06.280 --> 0:12:09.360 indeed agree with the Fourth Circuit. UH. The administration could 0:12:09.400 --> 0:12:13.000 ask the Supreme Court to intervene immediately and enter an 0:12:13.040 --> 0:12:16.800 emergency order that would put the policy back in place 0:12:16.800 --> 0:12:19.319 while the litigation plays out. I want to thank our guests, 0:12:19.400 --> 0:12:23.040 David Beer the Cato Institute, David Rivken of Baker Hostetler. 0:12:23.400 --> 0:12:25.679 Coming up, we're going to talk about that Washington Post 0:12:25.679 --> 0:12:29.079 report that says that FBI investigators in the Russia probe 0:12:29.120 --> 0:12:32.920 are looking at Jared Kushner as a focus of their investigation. 0:12:33.320 --> 0:12:37.720 That's all coming up on Bloomberg Law. This is Bloomberg