Speaker 1: Another court ruling on Donald Trump's travel ban, another defeat
Speaker 1: for the administration. The latest comes from a Richmond based
Speaker 1: federal appeals court. The court took a look at the
Speaker 1: executive order, in particular it's ninety day ban on entry
Speaker 1: into the US by people from six predominantly Muslim countries,
Speaker 1: and in attend to three decision, the appeals court said
Speaker 1: the purpose behind the policy was not national security, as
Speaker 1: the administration contended, but rather anti Muslim ANIMUS Attorney General
Speaker 1: Jeff Sessions is vowing to take the issue to the
Speaker 1: Supreme Court. With us to talk about the ruling and
Speaker 1: what might be lying ahead in the legal fight over
Speaker 1: the travel ban is David Beer. He's an immigration policy
Speaker 1: analyst at the Cato Institute. And David Rivkin, he is
Speaker 1: a partner at Baker Hostetler. So we'll have dueling David's today. Uh,
Speaker 1: David rivkn let me start with you. I strongly suspect
Speaker 1: there are a lot of things you disagree with in
Speaker 1: this appeals court ruling. We'll try to get to as
Speaker 1: many as we can, but let me ask you to
Speaker 1: pick what you think is the most egregious mistake the
Speaker 1: court made and tell us about that well. The most
Speaker 1: egregious mistake, and you're right, there many other bad aspects
Speaker 1: of the most egregious mistake is willful disregard all binding
Speaker 1: Supreme Court precedents that are free cases that deal with
Speaker 1: immigration matters clientized to Fiallo, and the most recent one
Speaker 1: is called cur versus din. But make it absolutely abundantly
Speaker 1: clear that we regard to these types of decisions. Is
Speaker 1: sufficient for executive branch to articulate a good faith, bonafiti
Speaker 1: explanation as to why this measure is taken. The judiciary
Speaker 1: is not, repeat not supposed to look behind it, and
Speaker 1: even more importantly, it's not supposed to engage in any
Speaker 1: balancing to explain very briefly in domestic line of cases
Speaker 1: from which they partook. Whenever you have somebody who as
Speaker 1: search that a government of action violates the or protection
Speaker 1: rights or First Amendment rights that do process rights, the
Speaker 1: courts engage in balancing. It wouldn't surprise your Listen. There's
Speaker 1: you do the balancing. You have a true master of
Speaker 1: a decision. You did not do balancing in this space
Speaker 1: at all. For the courts to do the balancing, all
Speaker 1: the constitutional interest profit by the plaintiffs against the vigor,
Speaker 1: if you will, the imperative of a governmental reasoning, in effect,
Speaker 1: would make courts ultimate decision making and foreign affairs. This
Speaker 1: Court not only looked beyond the four corners of the
Speaker 1: explanation in this executive order, which is an appropriate in
Speaker 1: and of itself, and it gained them balancing, and he
Speaker 1: found in favor of the plaintiffs at least for the
Speaker 1: injunctive purpose, utterly wrong. David Beer. Um, the Court said
Speaker 1: that the executive order was facially legitimate, but it wasn't
Speaker 1: bonafiti literally meaning in good faith, because um, there was
Speaker 1: no good faith here by the White House, and the
Speaker 1: plaintiffs had provided ample evidence that national security was not
Speaker 1: the true reason for the order. So does that change
Speaker 1: the game? Right? So? I think it really all does
Speaker 1: come down to some parsing of the Supreme Court precedence here,
Speaker 1: and what the Court said was looking at this prior
Speaker 1: court ruling, they said, you needed a facially legitimate and
Speaker 1: bonafide reason uh to deny a visa. And the question
Speaker 1: really became is it facially legitimate and a facially bonafide reason,
Speaker 1: or a facially legitimate reason and an independently bonafide reason
Speaker 1: and the distinction there is that, you know, if it
Speaker 1: was a facially bonafide reason, it would just be whatever
Speaker 1: the government said was, uh, you know, the reason for
Speaker 1: the order, they would have to accept it. And the
Speaker 1: court said, no, we're not going to accept that interpretation
Speaker 1: of what the Supreme Court said. We're gonna say, we're
Speaker 1: gonna look behind and analyze the motivation behind this order.
Speaker 1: And really that parsing of those those words really is
Speaker 1: what it's all going to come down to. Whose interpretation
Speaker 1: of this president is correct? David riv Can, under your
Speaker 1: way of thinking about this case, what do we do
Speaker 1: with this list of evidence that the Appeals Court pointed
Speaker 1: to for for why it said that national security was
Speaker 1: not the true reason, not the true reason. And I'll
Speaker 1: just point a couple a couple of the examples. They
Speaker 1: talked about Donald Trump's initial call for a band of
Speaker 1: Muslims entering the US during the campaign. Um and he
Speaker 1: talked about the court talked about how quickly the first
Speaker 1: version of this band was slapped together without any input
Speaker 1: from national security agencies. Do we just ignore those things
Speaker 1: under your thinking about yes, yes, yes, article free futtal
Speaker 1: courts ignore those reasons, I think for a second about
Speaker 1: the level of presumption role of poaching on the territory
Speaker 1: belongs to political branches. If the executive wishes to do
Speaker 1: something quickly in time of war, in time of crisis,
Speaker 1: the framers would say that speed and dispatches the essence
Speaker 1: of being the executive. If you want to do something
Speaker 1: in a way, if it's closely held and does not
Speaker 1: involve the full firmament of government agencies, that may be
Speaker 1: a policy mistake. But he's not of a judiciary to
Speaker 1: to to to attribute any insidious weight to this. So
Speaker 1: if a president wants to have a kitchen cabinet decide
Speaker 1: in some matter versus having an inter agency process for months,
Speaker 1: what is it to the judiciary. But look, the broader
Speaker 1: problem to understand is with this approach. And by the way,
Speaker 1: I happened to strongly disagree with the proposition that Trump
Speaker 1: is a Muslim hater. But let's assume for a second
Speaker 1: that he is, which again I don't think it's substantiated,
Speaker 1: and of courts reasoning, this president would be unable to
Speaker 1: take any action that impacts a Muslim majority country, including
Speaker 1: the use of force. You listening to Bloomberg law and
Speaker 1: we are talking about Donald Trump's travel ban and the
Speaker 1: federal appeals court ruling that came out late yesterday saying
Speaker 1: that the president went too far and that the policy
Speaker 1: was motivated by anti Muslim animus. We're talking with David Rifken,
Speaker 1: a partner at Baker Hostetler, and David Beer, an immigration
Speaker 1: policy analyst at the Cato Institute. David Beer, Uh, we
Speaker 1: we've talked about this policy before, and I know one
Speaker 1: argument you've made is that the problem you have with
Speaker 1: it is a is a question of the immigration laws
Speaker 1: rather than the constitution. Correct me if I've if I've
Speaker 1: misdescribed your position. But but I'm wondering whether you think
Speaker 1: you know that that sort of argument didn't get a
Speaker 1: whole lot of traction with this appeals court. They jumped
Speaker 1: to the bigger constitutional question. Do you think this court
Speaker 1: was too quick to make this a a full blown
Speaker 1: constitutional case over uh, you know, the the establishment clause. Well,
Speaker 1: it's very atypical for the court to skip over the
Speaker 1: statutory question and go straight to the constitutional one. And
Speaker 1: several of the concurring opinions, uh, did address this issue,
Speaker 1: and majority of them agreed that the president is violating
Speaker 1: the law as UH as Congress has enacted it. Um.
Speaker 1: I would say one thing David suggested earlier that the
Speaker 1: president could never take an adverse action against a Muslim
Speaker 1: if this decision holds, And like you said, I'm not
Speaker 1: convinced by the courts constitutional analysis on this point, but
Speaker 1: that is just plainly false. The president's statements about Muslims
Speaker 1: were directly tied to the issuance of this order. He
Speaker 1: said that he wanted to ban all Muslims and later
Speaker 1: defended this by saying that Islam hates us and that
Speaker 1: he would expand the original proposal to ban entire Muslim
Speaker 1: majority nationalities UH for the same reasons. At the same time,
Speaker 1: he has provided no evidence that the purpose of this
Speaker 1: is national security. So yes, if he told America that
Speaker 1: he was taking actions against Musle Loans because he's biased
Speaker 1: against Muslims, and he refused to provide any good reasons
Speaker 1: why he needed to take them, then yes, this decision
Speaker 1: would apply to those actions. But that's very different from
Speaker 1: what David suggested. It's not like he's saying Islam hates
Speaker 1: us untied to anything he said it in the context
Speaker 1: of defending banning them from getting visas. To come to
Speaker 1: the United States, David Rifton Um. The judges said in
Speaker 1: the majority order that the order of the President speaks
Speaker 1: with vague words of national security, but in context drips
Speaker 1: with religious intolerance, animus, and discrimination remarkably harsh words. Is
Speaker 1: the problem, as David said that the White House hadn't
Speaker 1: detailed the risks posed by the people covered by the order.
Speaker 1: Um a couple of things, and that also gets unto
Speaker 1: the point made by my colleague, Uh, let me be blunt.
Speaker 1: It is utterly you'll suit it for the judiciary and
Speaker 1: utterly in consistent judiciaries constitutional authority to be sitting in
Speaker 1: judgment on whether or not Um the Executive have an
Speaker 1: articulated and they said it is has been clear. Even
Speaker 1: this opinion says that it is perfectly reasonable, perfectly plausible reason,
Speaker 1: which is, you want to slow down the presentation rate
Speaker 1: of individuals for certain countries that are plagued by Johardi violence.
Speaker 1: You want to give opportunities to a law enforcement agencies
Speaker 1: that are already stretch pre definned to be able to
Speaker 1: deal with investigations and and sort of new challenges better,
Speaker 1: perfectly plausible, is utterly inappropriate for judicial to be sitting
Speaker 1: in judgment on it, and and and trying to do
Speaker 1: their own risk assessment or quote former government officials that
Speaker 1: take a different position that is utterly inappropriate. And but
Speaker 1: let me also say, and again not the property's role
Speaker 1: apropos the point made by David I would argue that
Speaker 1: under the Court's reasoning, any if President Trump, for example,
Speaker 1: to institute an economic embargo against certain countries, which he
Speaker 1: can do both on its own authority, but also because
Speaker 1: Congress issued a number of cross issued excuse me, enacted
Speaker 1: a number of cross cutting statutes to give President the authority, uh,
Speaker 1: and justified in national scooting ground saying we want to
Speaker 1: hurt the economies because they're supporting jihadis. Again, Um, under
Speaker 1: the reason of this court there arguing to be obviously
Speaker 1: just the pretext. This is just nonsense. He's saying it
Speaker 1: because he's Muslims. Okay. Now, they may decide, in the
Speaker 1: infinite wisdom doing the balancing that that is not appropriate,
Speaker 1: uh to conclude that. But they would be in the
Speaker 1: driver's seat, David Beer, Um, let me ask you as
Speaker 1: we look towards the Supreme Court. UH. The Attorney General
Speaker 1: Jeff Sessions has said that's where we're going next. What
Speaker 1: are you envisioning there? Is this going to be a
Speaker 1: close case. I think it's definitely going to be a
Speaker 1: close case. And really you've seen quite a few different
Speaker 1: judges from across the country issuing rulings, some of them
Speaker 1: appointed by Republicans, some of them appointed by Democrats who
Speaker 1: have found this to be a plausible case, whether the
Speaker 1: statutory one or the constitutional one. UM. What will be interesting, however,
Speaker 1: is if the Ninth Circuit case, the Hawaii UH decision
Speaker 1: that's been appealed to the to the Ninth Circuit. If
Speaker 1: the Ninth Circuit agrees with the Fourth Circuit, there really
Speaker 1: isn't a court split here. That doesn't mean that the
Speaker 1: Supreme Court couldn't still review it um. But it would
Speaker 1: be interesting if you had to uh, you know, different
Speaker 1: appeals courts agreeing that the president is violent in the law. UH.
Speaker 1: That would put the pointiffs on a stronger position than
Speaker 1: um in prior cases. Well, we will, we will definitely
Speaker 1: be watching for that. The Ninth Circuit decision could come
Speaker 1: out any day, UH, and the argument suggested they will
Speaker 1: indeed agree with the Fourth Circuit. UH. The administration could
Speaker 1: ask the Supreme Court to intervene immediately and enter an
Speaker 1: emergency order that would put the policy back in place
Speaker 1: while the litigation plays out. I want to thank our guests,
Speaker 1: David Beer the Cato Institute, David Rivken of Baker Hostetler.
Speaker 1: Coming up, we're going to talk about that Washington Post
Speaker 1: report that says that FBI investigators in the Russia probe
Speaker 1: are looking at Jared Kushner as a focus of their investigation.
Speaker 1: That's all coming up on Bloomberg Law. This is Bloomberg