1 00:00:00,200 --> 00:00:04,080 Speaker 1: Remember this moment from the presidential campaign, Donald J. Trump 2 00:00:04,160 --> 00:00:08,440 Speaker 1: is calling for a total and complete shutdown of Muslims 3 00:00:08,680 --> 00:00:14,640 Speaker 1: entering the United States until our country's representatives can figure 4 00:00:14,640 --> 00:00:19,279 Speaker 1: out what the hell is going on. Seventeen months later, 5 00:00:19,320 --> 00:00:22,480 Speaker 1: those words from then candidate Trump are making life difficult 6 00:00:22,480 --> 00:00:25,840 Speaker 1: for the lawyers defending now President Trump's travel band. A 7 00:00:25,840 --> 00:00:28,320 Speaker 1: federal appeals court yesterday heard arguments on the band, which 8 00:00:28,360 --> 00:00:31,600 Speaker 1: would temporarily halt entry into the US by people from 9 00:00:31,680 --> 00:00:35,360 Speaker 1: six mostly Muslim nations. A key issue is whether Trump's 10 00:00:35,360 --> 00:00:40,240 Speaker 1: campaign comments show that the executive order unconstitutionally targets Muslims. 11 00:00:40,680 --> 00:00:43,400 Speaker 1: Our guests to talk about the arguments yesterday are Josh Blackman, 12 00:00:43,479 --> 00:00:46,120 Speaker 1: He's a professor at the South Texas College of Law. 13 00:00:46,400 --> 00:00:48,760 Speaker 1: And Liza Gaytean. She is co director of the Liberty 14 00:00:48,760 --> 00:00:51,879 Speaker 1: and National Security Program at the Brennan Center for Justice. 15 00:00:52,360 --> 00:00:55,200 Speaker 1: Welcome to you both, Liza, Let me start with you. 16 00:00:55,760 --> 00:00:59,400 Speaker 1: What argument against the travel band do you sense is 17 00:00:59,480 --> 00:01:04,920 Speaker 1: getting the most traction before the courts. It seems like 18 00:01:05,080 --> 00:01:08,440 Speaker 1: Trump's comments about the travel ban, and comments made by 19 00:01:08,760 --> 00:01:13,080 Speaker 1: his associates and his and people working for him um 20 00:01:13,520 --> 00:01:16,120 Speaker 1: are really having an effect on the court that. You know, 21 00:01:16,160 --> 00:01:18,920 Speaker 1: when he talked about having a complete and total ban 22 00:01:19,000 --> 00:01:22,039 Speaker 1: on Muslims coming into the country. Uh, you know, until 23 00:01:22,040 --> 00:01:24,039 Speaker 1: we could figure out what was going on. You know, 24 00:01:24,080 --> 00:01:27,720 Speaker 1: those words carried a lot of weight, and the courts 25 00:01:27,760 --> 00:01:30,360 Speaker 1: remember them even though he's trying to backtrack from them 26 00:01:30,400 --> 00:01:33,360 Speaker 1: now and say that he's doing something entirely different with 27 00:01:33,480 --> 00:01:36,520 Speaker 1: this order. Now. The government lawyer was trying to argue, 28 00:01:36,840 --> 00:01:40,200 Speaker 1: um that as a matter of law, the judges shouldn't 29 00:01:40,200 --> 00:01:43,360 Speaker 1: actually be looking at these statements. But it didn't seem 30 00:01:43,400 --> 00:01:45,520 Speaker 1: like most of the judges were buying that. They thought 31 00:01:45,560 --> 00:01:48,040 Speaker 1: those statements were very relevant and showed that there was 32 00:01:48,120 --> 00:01:52,400 Speaker 1: religious discrimination behind this order. Josh, if you would spell 33 00:01:52,440 --> 00:01:56,680 Speaker 1: out that government argument for us. Why was it that 34 00:01:56,680 --> 00:02:00,160 Speaker 1: that Jeff Wall was saying that the courts shouldn't be 35 00:02:00,280 --> 00:02:04,320 Speaker 1: considering those comments, Well, thank you for having me back 36 00:02:04,360 --> 00:02:07,760 Speaker 1: on the show. Um. The government's argument was that traditionally 37 00:02:07,880 --> 00:02:12,600 Speaker 1: courts defer to the executive when matters of national security 38 00:02:12,639 --> 00:02:17,200 Speaker 1: or at stake, and in particular, when the actual policy, 39 00:02:17,320 --> 00:02:19,760 Speaker 1: the face of the document on the four corners doesn't 40 00:02:19,800 --> 00:02:23,920 Speaker 1: have any sort of uh, improprieties, then the courts are 41 00:02:23,919 --> 00:02:27,520 Speaker 1: not supposed to look behind it to look behind the wall. Um. 42 00:02:27,800 --> 00:02:30,519 Speaker 1: If you actually read the executive ordered issue, it doesn't 43 00:02:30,560 --> 00:02:34,480 Speaker 1: make any references to Islam religious discrimination. The only hook 44 00:02:34,760 --> 00:02:38,560 Speaker 1: that the plaintiffs can hanger had on is statements made 45 00:02:38,600 --> 00:02:42,440 Speaker 1: by candidate Trump and then one ambiguous statement made by 46 00:02:42,560 --> 00:02:45,600 Speaker 1: President Trump as he was signing it. Um. One of 47 00:02:45,639 --> 00:02:48,600 Speaker 1: the points that I think made some residents yesterday was 48 00:02:48,639 --> 00:02:51,560 Speaker 1: the oath of office. Things that Trump said in the 49 00:02:51,600 --> 00:02:56,400 Speaker 1: campaign trail were you know, primarily uh, not very reliable, 50 00:02:56,520 --> 00:02:59,160 Speaker 1: not very accurate to a a lot of respects. But once 51 00:02:59,160 --> 00:03:01,639 Speaker 1: he became president Dent and he took the oath of office, 52 00:03:01,720 --> 00:03:04,000 Speaker 1: and he formed a government and he had a cabinet. 53 00:03:04,360 --> 00:03:07,600 Speaker 1: At that point they actually issued the policy, and the 54 00:03:07,639 --> 00:03:11,520 Speaker 1: statements following the inauguration are former probative of the president's 55 00:03:11,520 --> 00:03:14,639 Speaker 1: intent rather than that of a reality show superstar with 56 00:03:14,720 --> 00:03:19,280 Speaker 1: the time few people. Actually, Seriously, Liza, what do you 57 00:03:19,320 --> 00:03:21,880 Speaker 1: make of that argument? You know, this this is you know, 58 00:03:22,000 --> 00:03:24,280 Speaker 1: kind of an exercise in line drawing. You know, how 59 00:03:24,320 --> 00:03:27,520 Speaker 1: far back do you go to looking at what somebody said? 60 00:03:27,720 --> 00:03:29,799 Speaker 1: And Jeff Wall yesterday did say, hey, there was a 61 00:03:29,919 --> 00:03:33,480 Speaker 1: very constitutionally significant event that happened on January twentie, Donald 62 00:03:33,480 --> 00:03:36,160 Speaker 1: Trump became president, he stopped being a candidate and he 63 00:03:36,240 --> 00:03:40,200 Speaker 1: stopped being the president elect. Um that doesn't that line 64 00:03:40,680 --> 00:03:44,160 Speaker 1: mean something in terms of you know what, what import 65 00:03:44,200 --> 00:03:47,240 Speaker 1: we give to various statements? Well, that line is not 66 00:03:47,360 --> 00:03:49,640 Speaker 1: quite as sharp as I think the government's lawyer would 67 00:03:49,720 --> 00:03:53,000 Speaker 1: would like people to bleed. Insofar as President Trump did 68 00:03:53,120 --> 00:03:57,040 Speaker 1: issue an executive order at his first travel ban which 69 00:03:57,080 --> 00:04:01,160 Speaker 1: did have expressly religious discriminatory langue in it. So the 70 00:04:01,240 --> 00:04:05,720 Speaker 1: first attempt at the travel band UH exempted essentially religious minorities, 71 00:04:05,880 --> 00:04:08,760 Speaker 1: and Trump publicly said that the reason for this was 72 00:04:08,800 --> 00:04:11,720 Speaker 1: to allow Christians to come into the United States. Um. 73 00:04:11,840 --> 00:04:15,160 Speaker 1: So there were actions and statements made after January twentieth 74 00:04:15,240 --> 00:04:21,000 Speaker 1: which also confirmed this pattern of discriminatory statements in terms 75 00:04:21,080 --> 00:04:26,400 Speaker 1: of looking behind national security decisions. The problem here really 76 00:04:26,440 --> 00:04:29,360 Speaker 1: for the judges is that we have two lines of 77 00:04:29,640 --> 00:04:34,640 Speaker 1: constitutional case law that are coming into conflict in a way. Um. 78 00:04:34,720 --> 00:04:37,159 Speaker 1: There there's a doctrine that says that when the president 79 00:04:37,160 --> 00:04:40,000 Speaker 1: makes a national security judgment, the court's relations look behind 80 00:04:40,040 --> 00:04:42,640 Speaker 1: that very carefully. And then there's a separate doctrine that 81 00:04:42,720 --> 00:04:45,560 Speaker 1: says that when you're looking to see whether there's been 82 00:04:45,600 --> 00:04:49,760 Speaker 1: a violation of the establishment pause. You should look at 83 00:04:49,800 --> 00:04:53,240 Speaker 1: motives and statements and background, so then those two things 84 00:04:53,240 --> 00:04:56,440 Speaker 1: are somewhat intention in this case where both of those 85 00:04:56,839 --> 00:04:59,719 Speaker 1: factors are at issue. So that's what we're seeing. The 86 00:04:59,760 --> 00:05:03,159 Speaker 1: judge is wrestle with, I think, is to what extension 87 00:05:03,240 --> 00:05:06,080 Speaker 1: did they be differing on the national security side, and 88 00:05:06,120 --> 00:05:08,400 Speaker 1: to what extent should they be doing what the case 89 00:05:08,480 --> 00:05:10,680 Speaker 1: laws suggests they should do in the first amendmic context, 90 00:05:10,720 --> 00:05:12,559 Speaker 1: which is to give this a very good hard look. 91 00:05:13,040 --> 00:05:17,240 Speaker 1: Yesterday's Appeals court hearing, Trump administration lawyer Jeffrey Wall said 92 00:05:17,279 --> 00:05:20,400 Speaker 1: the President isn't trying to impose a Muslim band with 93 00:05:20,440 --> 00:05:23,839 Speaker 1: his executive order restricting entry into the US from six countries. 94 00:05:24,760 --> 00:05:26,480 Speaker 1: It's text doesn't have anything to do with the religion. 95 00:05:26,520 --> 00:05:29,080 Speaker 1: It's operation doesn't have anything to do with religion. The 96 00:05:29,120 --> 00:05:31,400 Speaker 1: only thing they've got are to reach back and say, 97 00:05:31,600 --> 00:05:34,760 Speaker 1: what we know, despite its text and operation, what was 98 00:05:34,800 --> 00:05:38,760 Speaker 1: in the president's head. That wasn't enough for Judge Robert King. 99 00:05:39,520 --> 00:05:43,880 Speaker 1: He changed it from religion to nationality. He explained that 100 00:05:43,920 --> 00:05:46,479 Speaker 1: he wasn't gonna call it religion anymore, he was going 101 00:05:46,520 --> 00:05:49,640 Speaker 1: to call it nationality. And Mayor Juliani advised him to 102 00:05:49,640 --> 00:05:52,360 Speaker 1: do it that way. He did do that. He's never 103 00:05:52,480 --> 00:05:56,000 Speaker 1: repudiated what he said about the bugle banner still on 104 00:05:56,080 --> 00:06:00,200 Speaker 1: his website. Our guests are Josh Blackman, professor at South 105 00:06:00,240 --> 00:06:03,240 Speaker 1: Texas College of Law, and Liza Gatine, Co director of 106 00:06:03,240 --> 00:06:05,920 Speaker 1: the Liberty and National Security Program at the Brennan Center 107 00:06:06,040 --> 00:06:10,520 Speaker 1: for Justice. Josh, what Judge King said there about Donald 108 00:06:10,520 --> 00:06:14,720 Speaker 1: Trump not repudiating the Muslim ban. Wouldn't his legal position 109 00:06:14,760 --> 00:06:18,599 Speaker 1: be stronger if he if he actually did repudiate it. Well, 110 00:06:18,600 --> 00:06:21,800 Speaker 1: I have two responses. First, he has repudated. He said 111 00:06:21,839 --> 00:06:23,960 Speaker 1: he's not doing a Muslim ban, he is doing a 112 00:06:24,000 --> 00:06:27,480 Speaker 1: ban on certain territories. But second, even if Trump came 113 00:06:27,520 --> 00:06:30,480 Speaker 1: out and apologized profusely, saying I had had to come 114 00:06:30,520 --> 00:06:32,359 Speaker 1: to god moment, I am no longer a bigot. I 115 00:06:32,360 --> 00:06:34,360 Speaker 1: do not want to do this v still you would 116 00:06:34,400 --> 00:06:36,760 Speaker 1: still so him think he doesn't really mean it's not genuine. 117 00:06:36,960 --> 00:06:39,440 Speaker 1: This is why this entire exercise and utter waste of 118 00:06:39,480 --> 00:06:42,560 Speaker 1: time in the minds of the challengers, the resistance, if 119 00:06:42,560 --> 00:06:45,280 Speaker 1: you will, Trump is forever tainted by the statements he made, 120 00:06:45,520 --> 00:06:48,159 Speaker 1: and nothing he can ever do remove that paint. This 121 00:06:48,279 --> 00:06:50,800 Speaker 1: is a stunning proposition if you think about it. If 122 00:06:50,800 --> 00:06:53,560 Speaker 1: Trump ever decided to launch a military strike in a 123 00:06:53,600 --> 00:06:56,760 Speaker 1: majority of Muslim country, which he has uh to the 124 00:06:56,839 --> 00:06:59,679 Speaker 1: argument he made that he's doing this because he hates Muslims. Um, 125 00:06:59,680 --> 00:07:03,200 Speaker 1: this has no limiting principle if we actually take this seriously, 126 00:07:03,240 --> 00:07:06,479 Speaker 1: which is why whether he deletes the website, keeps it off, apologize, 127 00:07:06,520 --> 00:07:08,640 Speaker 1: that gets down to his knees and you know gives uh. 128 00:07:08,680 --> 00:07:10,400 Speaker 1: You know, David Cole kiss, I don't think it really 129 00:07:10,480 --> 00:07:13,040 Speaker 1: matters what's going to happen because the claims will be 130 00:07:13,120 --> 00:07:16,200 Speaker 1: exactly the same. Just to clarify, David Cole is the 131 00:07:16,320 --> 00:07:18,880 Speaker 1: national legal director of the c l U H Liza, 132 00:07:19,000 --> 00:07:21,760 Speaker 1: what what about that argument? I didn't come up during 133 00:07:21,800 --> 00:07:24,640 Speaker 1: the arguments yesterday. One of the judges asked the s 134 00:07:24,680 --> 00:07:27,280 Speaker 1: c l you you lawyer. Uh, you know what if 135 00:07:27,360 --> 00:07:30,320 Speaker 1: Donald Trump, you know, apologize every day for you know, 136 00:07:30,640 --> 00:07:34,400 Speaker 1: a year, Um, it is Donald Trump forever barred from 137 00:07:34,400 --> 00:07:37,840 Speaker 1: from doing something like this. Absolutely not. I think that's 138 00:07:37,920 --> 00:07:40,000 Speaker 1: that's a bit of taking it much much further than 139 00:07:40,040 --> 00:07:43,040 Speaker 1: the plaintiffs would ever argue. Um. I think saying I'm 140 00:07:43,080 --> 00:07:45,400 Speaker 1: sorry every day is a bit beside the point. But 141 00:07:45,760 --> 00:07:48,960 Speaker 1: usually when you know a president makes a decision in 142 00:07:49,040 --> 00:07:51,760 Speaker 1: national security, the courts don't look behind that. They don't 143 00:07:51,840 --> 00:07:55,360 Speaker 1: question whether there is a valid national security justification there. 144 00:07:56,040 --> 00:08:00,800 Speaker 1: In a case where president has made these discriminatory statement 145 00:08:00,880 --> 00:08:05,600 Speaker 1: showing religious animals, that has consequences. It should have consequences, 146 00:08:05,640 --> 00:08:08,440 Speaker 1: and the consequences are that the courts can look behind 147 00:08:08,760 --> 00:08:12,240 Speaker 1: the near assertion of a national security interest and say, well, 148 00:08:12,520 --> 00:08:15,440 Speaker 1: show me, show me the national security interests. Now, I 149 00:08:15,480 --> 00:08:18,960 Speaker 1: think it's in fact there were a major attack inside 150 00:08:19,000 --> 00:08:22,640 Speaker 1: this country, or several major attacks by nationals of the 151 00:08:22,680 --> 00:08:25,400 Speaker 1: countries in question, right, the six countries that are on 152 00:08:25,440 --> 00:08:27,680 Speaker 1: the list that are subject to the travel ban, then 153 00:08:27,760 --> 00:08:30,680 Speaker 1: absolutely there would be a justification there. But I think 154 00:08:30,840 --> 00:08:35,880 Speaker 1: given Trump's discriminatory statements, many many discriminatory statements, the courts 155 00:08:35,880 --> 00:08:37,760 Speaker 1: are going to look for that kind of evidence. From 156 00:08:37,800 --> 00:08:40,440 Speaker 1: what you have here is the exact opposite. You have 157 00:08:40,520 --> 00:08:44,960 Speaker 1: a situation in which literally none of the countries that 158 00:08:45,000 --> 00:08:48,520 Speaker 1: are on that list have been shown to pose any 159 00:08:48,600 --> 00:08:52,160 Speaker 1: significant threat to this country. There there are two examples 160 00:08:52,200 --> 00:08:53,920 Speaker 1: that the government has been able to come up with. 161 00:08:54,320 --> 00:08:57,679 Speaker 1: One is an example of Iraqis who are no longer 162 00:08:57,800 --> 00:09:00,480 Speaker 1: on the list, and the other is the sample of 163 00:09:00,520 --> 00:09:03,280 Speaker 1: a Somali national who came to this country when he 164 00:09:03,320 --> 00:09:05,960 Speaker 1: was very young. So the extreme betting they're trying to 165 00:09:05,960 --> 00:09:08,280 Speaker 1: come up, we wouldn't have prevented his coming into the country, 166 00:09:08,679 --> 00:09:11,720 Speaker 1: and his attack was staged by FBI agents doing a sting. 167 00:09:12,120 --> 00:09:15,199 Speaker 1: Those are the strongest arguments that the government has been 168 00:09:15,200 --> 00:09:18,520 Speaker 1: able to make for this fan So, of course, given 169 00:09:18,559 --> 00:09:21,320 Speaker 1: the discriminatory statements Trump has made, if the courts are 170 00:09:21,320 --> 00:09:23,679 Speaker 1: going to look a little harder, they're gonna say you 171 00:09:23,720 --> 00:09:27,520 Speaker 1: haven't presented the evidence that this is a national security measure. Josh, 172 00:09:27,559 --> 00:09:29,040 Speaker 1: I want to ask you to respond to that. First. 173 00:09:29,160 --> 00:09:31,120 Speaker 1: I don't want to forget to mention since Judge King 174 00:09:31,240 --> 00:09:35,120 Speaker 1: talked about the statements still being on Donald Trump's website, Uh, 175 00:09:35,160 --> 00:09:37,320 Speaker 1: it is no longer on the website. As of yesterday, 176 00:09:38,320 --> 00:09:42,199 Speaker 1: all of the campaign statements have have disappeared from Donald 177 00:09:42,240 --> 00:09:46,080 Speaker 1: Trump's campaign website. I'm not sure that has any legal significance. Uh, 178 00:09:46,440 --> 00:09:48,040 Speaker 1: either of you can tell me if you think it does. 179 00:09:48,120 --> 00:09:50,920 Speaker 1: But I just wanted to mention that. So josh Um 180 00:09:51,520 --> 00:09:55,960 Speaker 1: so Liza was talking about the um sort of interview, 181 00:09:56,000 --> 00:09:59,120 Speaker 1: the pointlessness of this of this order, that it's not 182 00:09:59,160 --> 00:10:02,600 Speaker 1: really serving serving a powerful interest. And and one thing 183 00:10:02,600 --> 00:10:04,520 Speaker 1: I have been wondering is that you know, this is 184 00:10:04,520 --> 00:10:07,760 Speaker 1: a designed to be a temporary measure. Uh. Donald Trump 185 00:10:07,800 --> 00:10:09,800 Speaker 1: said it was needed to stop people from pouring in. 186 00:10:09,880 --> 00:10:13,560 Speaker 1: And now we're, however, many months into his presidency. Um, 187 00:10:14,160 --> 00:10:16,880 Speaker 1: you know, what's the argument that this is is actually 188 00:10:16,920 --> 00:10:19,480 Speaker 1: going to this ninety day ban is actually going to 189 00:10:19,520 --> 00:10:24,240 Speaker 1: do anything to make us all more secure. Um. Frankly, 190 00:10:24,320 --> 00:10:26,840 Speaker 1: it doesn't matter whether it will make this all secure, uh, 191 00:10:26,840 --> 00:10:29,720 Speaker 1: Donald Trump on the election, he's the commander in chief. 192 00:10:30,080 --> 00:10:32,200 Speaker 1: He makes certain decisions that I won't agree with, and 193 00:10:32,240 --> 00:10:35,440 Speaker 1: that the Brennan Center won't agree with. Um. Of the 194 00:10:35,520 --> 00:10:39,040 Speaker 1: six nations that he picked, three or state sponsors of terror. 195 00:10:39,360 --> 00:10:42,520 Speaker 1: The other three of an infiltrated by ISIS and terrorist groups. 196 00:10:43,040 --> 00:10:45,760 Speaker 1: It's unclear if the records those countries are giving us 197 00:10:46,160 --> 00:10:48,760 Speaker 1: are accurate enough that we can know who's coming and 198 00:10:48,800 --> 00:10:51,320 Speaker 1: who they are that they say they are. That's enough, 199 00:10:52,000 --> 00:10:54,720 Speaker 1: that's enough. In no sense does the court have the 200 00:10:54,760 --> 00:10:57,200 Speaker 1: prerogative to pick and choose and take it the everything. Well, 201 00:10:57,480 --> 00:10:59,439 Speaker 1: you've had not had any terrorist attacks from here. We've 202 00:10:59,440 --> 00:11:01,960 Speaker 1: had some from year Um, the president doesn't need to 203 00:11:02,000 --> 00:11:04,400 Speaker 1: wait for an attack to happen. And also, I don't 204 00:11:04,440 --> 00:11:06,600 Speaker 1: have a security clearance. I don't think my scene colleague 205 00:11:06,600 --> 00:11:09,520 Speaker 1: goes either. There maybe information that's available to the president 206 00:11:09,600 --> 00:11:12,040 Speaker 1: that we don't have. Um. In fact, the courts are 207 00:11:12,200 --> 00:11:14,760 Speaker 1: doing what they say they're not supposed to do, saying that, well, 208 00:11:15,120 --> 00:11:16,640 Speaker 1: maybe there could be a threat, but there's not an 209 00:11:16,679 --> 00:11:19,920 Speaker 1: actual threat. This is an insane line of reasoning, and 210 00:11:19,960 --> 00:11:22,599 Speaker 1: there's absolutely zero precedent for it. Wasn't the fact that 211 00:11:22,640 --> 00:11:25,120 Speaker 1: the judges don't like Donald Trump and they're applying a 212 00:11:25,120 --> 00:11:27,439 Speaker 1: different set of rules because they think he represents some 213 00:11:27,520 --> 00:11:30,000 Speaker 1: sort of existential threat to the rule of law. I 214 00:11:30,040 --> 00:11:32,079 Speaker 1: think at Bottomed that was actually on here. They think 215 00:11:32,080 --> 00:11:34,800 Speaker 1: Trump is dangerous and they're upping their a game. Uh, 216 00:11:34,880 --> 00:11:37,840 Speaker 1: and that is not how courts at operate. Well, Josh, 217 00:11:37,840 --> 00:11:39,320 Speaker 1: what do we do with this whole line of cases 218 00:11:39,400 --> 00:11:42,120 Speaker 1: that that lies are referred to? Where where the Supreme 219 00:11:42,160 --> 00:11:45,120 Speaker 1: Court has said we will look not just at when 220 00:11:45,120 --> 00:11:47,840 Speaker 1: we're looking at getting with the religion, we will look 221 00:11:47,840 --> 00:11:52,199 Speaker 1: at whether there was a religiously motivated purpose behind a 222 00:11:52,280 --> 00:11:55,160 Speaker 1: government action action. Does that just not apply in in 223 00:11:55,240 --> 00:11:58,800 Speaker 1: this context? No, In fact, the government has adopted a 224 00:11:58,840 --> 00:12:00,800 Speaker 1: point that I've been making for two months. Those are 225 00:12:00,840 --> 00:12:04,320 Speaker 1: domestic cases involving things such as mundane things like you know, 226 00:12:04,400 --> 00:12:07,760 Speaker 1: tank commandment displays and courthouses. Um. This may come as 227 00:12:07,760 --> 00:12:12,040 Speaker 1: a surprise for listeners, but our immigration law explicitly considers religion. 228 00:12:12,440 --> 00:12:15,280 Speaker 1: We have special visas for preachers, right, we give special 229 00:12:15,520 --> 00:12:18,520 Speaker 1: visas to members of the cloth. On the domestic side, 230 00:12:18,559 --> 00:12:20,880 Speaker 1: that would be entirely in constitutional to give a special 231 00:12:20,920 --> 00:12:24,880 Speaker 1: privilege to members of religion and not people who aren't. Um. 232 00:12:24,920 --> 00:12:27,079 Speaker 1: I don't think these laws at all apply these cases 233 00:12:27,120 --> 00:12:30,480 Speaker 1: about the ten Commandment displays. UM. At a minimum. If 234 00:12:30,520 --> 00:12:33,640 Speaker 1: they do, it's only a bare rational review. Does this 235 00:12:33,760 --> 00:12:36,680 Speaker 1: make sense? And the answer is yes, Um. I think 236 00:12:36,960 --> 00:12:39,679 Speaker 1: you know. These inferior court judges will probably latch onto this, 237 00:12:39,840 --> 00:12:42,760 Speaker 1: but I fully expect the Supreme Court to say, look, 238 00:12:42,760 --> 00:12:44,679 Speaker 1: we have the s existing body of case law. We 239 00:12:44,720 --> 00:12:47,640 Speaker 1: have lots of immigration law that considers religion. We can't 240 00:12:47,679 --> 00:12:49,959 Speaker 1: rock the apple cart. This may not may not be 241 00:12:50,000 --> 00:12:51,760 Speaker 1: a good policy, but we will uphold it, and I 242 00:12:51,760 --> 00:12:53,880 Speaker 1: expect the Court to do so. We only have about 243 00:12:53,920 --> 00:12:56,160 Speaker 1: twenty about twenty seconds, but I'll give you the last word. 244 00:12:56,960 --> 00:12:59,200 Speaker 1: I think the president does have more latitude at the border, 245 00:12:59,280 --> 00:13:01,480 Speaker 1: but he does not have the latitude to completely ignore 246 00:13:01,520 --> 00:13:04,600 Speaker 1: the establishment clause at the First Amendment. And what Josh 247 00:13:04,640 --> 00:13:06,280 Speaker 1: is saying would be a license for the president to 248 00:13:06,320 --> 00:13:08,920 Speaker 1: issue an order saying I find on national security grounds 249 00:13:08,920 --> 00:13:10,920 Speaker 1: that all Muslims have to be permanently kept out of 250 00:13:10,960 --> 00:13:14,079 Speaker 1: this country. According to Josh's logic, that would be constitutional, 251 00:13:14,120 --> 00:13:16,880 Speaker 1: or that would be permissible. Okay, we're gonna have to 252 00:13:16,920 --> 00:13:18,320 Speaker 1: We're gonna have to leave it there. I want to 253 00:13:18,360 --> 00:13:20,960 Speaker 1: thank you both Liza Goitian and Josh Blackman for being 254 00:13:20,960 --> 00:13:22,280 Speaker 1: with us today on Bloomberg Law.