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Speaker 1: It could be a big day for the fate of

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Speaker 1: President Trump's temporary travel band affecting seven mostly Muslim countries.

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Speaker 1: Later today, a federal appeals court will hear arguments on

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Speaker 1: the administration's bid to reinstate the ban, which was blocked

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Speaker 1: last week by a trial judge in Seattle. The court

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Speaker 1: is expected to real real quickly, in a matter of

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Speaker 1: days or perhaps even hours. It's part of a growing

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Speaker 1: legal fight that seemed seems destined one way or another

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Speaker 1: for the Supreme Court. With us to talk about the

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Speaker 1: case and the broader issue of the president's power to

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Speaker 1: restrict entry into the US or two people with very

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Speaker 1: different perspectives. David Ridkin is a former advisor to President's

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Speaker 1: Reagan and the first President Bush and Carry Hong, a

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Speaker 1: professor at Boston College Law School. Welcome to you both, David.

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Speaker 1: Let's let's start with you. Um. The argument today could

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Speaker 1: end up being about some technical issues. UM. But but

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Speaker 1: I want to get into the big, more interesting questions. UM.

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Speaker 1: So you've made the case that this order is legal.

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Speaker 1: Tell us what is the core of the government's case

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Speaker 1: that the president president has the authority to do this? Right?

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Speaker 1: Let me just say, boh, and I respond to a

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Speaker 1: question very quickly that to me, the most fundational problem

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Speaker 1: with this litigation is that the plaintiffs, the states bringing

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Speaker 1: this case have no standing to vindicate post claims, which

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Speaker 1: means that federal courts have no jurisdiction, which means they

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Speaker 1: should not reach the merits. And this is by way,

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Speaker 1: not some pedantic uh nitpick here, but limitation of federal

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Speaker 1: judicial power to case and controversies, the most fundamental cabinet

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Speaker 1: of the power of judicial branch. And David, I'll try

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Speaker 1: to circle back to that later. Go ahead and get

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Speaker 1: to the test of the merits. Look, this is very straightforward.

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Speaker 1: Congress clearly delegated this authority to the president to exclude

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Speaker 1: aliens and classes of aliens if he concludes an absolute

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Speaker 1: discretion entirely nonreviewable. UH. They present fret the national security

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Speaker 1: A president hasn't here in constitutional authority, UH enormous authority

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Speaker 1: in foreign affairs. Both branches spoken unison in this issue. Therefore,

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Speaker 1: under a seminal case of Youngstown Street and Tube, there

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Speaker 1: the president that at the apex of his authority. UM.

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Speaker 1: It is that this simple as that there's absolutely no

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Speaker 1: basis to challenge it on one last point, the notion

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Speaker 1: that a district court can inquire into some subjective alleged

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Speaker 1: intention of the president and called it a Muslim band

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Speaker 1: because of something you said during the campaign as risible.

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Speaker 1: That kind of looking behind what the executive water says

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Speaker 1: is utterly unprecedented. Final point, As a factual matter, numerous presidents,

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Speaker 1: including President Obama, have suspended temporarily uh entry of of

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Speaker 1: of individuals from various countries. President Reagan did it during

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Speaker 1: the you know, for a large chunk of Cuban refugees.

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Speaker 1: Did you of, you know, the fact that Castro was

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Speaker 1: dumping a lot of criminals on us with so called

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Speaker 1: merrial boat lift. We are going to now look at

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Speaker 1: the other side, even though you say there is no

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Speaker 1: other side, there's always another side in the law carry

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Speaker 1: what do the States say? Well, I mean the first

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Speaker 1: question that the issue today is whether the stables um

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Speaker 1: continue or not, which doesn't address any of these merits.

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Speaker 1: Do you want me talk about what the court will

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Speaker 1: be fighting today or or respond well, I'd like to

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Speaker 1: respond to the to the merit argument first and then

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Speaker 1: we'll get to the to the technical parts. Yes, well,

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Speaker 1: I think all those issues are very much more difficult

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Speaker 1: than how they're presented. Starting with the standing issue UM,

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Speaker 1: one court in Texas stopped President Obama's executive authority to

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Speaker 1: exercise his discretion in the immigration manner to to be

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Speaker 1: to to stop deportation for a couple of million individuals

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Speaker 1: last year. And that was just based on the injury

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Speaker 1: that the State of Texas be incurring by issuing driver's licenses.

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Speaker 1: The injury that the State of Washington and UM the

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Speaker 1: State of Hawaii UM have alleged is much much more robust.

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Speaker 1: They're talking about problems to their tax base. They're talking

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Speaker 1: about businesses that will be harmed. UM Hawaii talks about

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Speaker 1: a problem with his tourist injury or to the tourist industry.

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Speaker 1: So the level of harm UM is much much higher

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Speaker 1: than what Texas UM showed last year UM in in

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Speaker 1: in the Dopo litigation. So that standing is an important

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Speaker 1: question that needs to be resolved UM. As to what

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Speaker 1: the president canner cannot do UM, the courts are clear

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Speaker 1: that Congress has un enormous amount of discretion to set

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Speaker 1: matters of immigration policy. The question that is before this

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Speaker 1: court and the question that was before the Court and

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Speaker 1: DAPA is well what happens when the president is exercising

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Speaker 1: authority that isn't necessarily expressively delegated um to him um

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Speaker 1: by Congress. To do that is a very different question,

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Speaker 1: which is much more complicated, and ultimately, when the case

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Speaker 1: gets sent to the merits, that's gonna be a pre

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Speaker 1: storny for for the cases to deal with. David, we

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Speaker 1: have a lot of issues on the table right now,

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Speaker 1: but let's go back to that question of standing the

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Speaker 1: right of states to challenges policy at all. What is

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Speaker 1: your response to what CARRY was saying about the case

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Speaker 1: UH during the Obama administration, where a federal district court

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Speaker 1: said that, yes, Texas and other states could challenge the

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Speaker 1: president's power to say I'm going to defer deportation for

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Speaker 1: our whole class of people. Both Yes, both the district

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Speaker 1: court and UH in the in the DAPPA case in

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Speaker 1: the Fifth Circuit have pivoted as far as standing his

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Speaker 1: concern on a declaration which was not disputed by the

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Speaker 1: State of Texas that they're going to incur in our

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Speaker 1: skip a number of reasons why they would incur specific

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Speaker 1: and substantial costs if DAPPA was implemented full stop. Well,

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Speaker 1: we have here are generalized assertions loss to you know,

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Speaker 1: the possible university admissions, loss of possible employment, loss of

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Speaker 1: possible tourisms. These are you know, we laways use words

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Speaker 1: like speculative, attenuated, generalize, utterly, insufficient to support standings. Look,

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Speaker 1: there's no question there's Supreme Court case on this point,

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Speaker 1: but basically says that states, the cases called Massachusetts versus

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Speaker 1: mel And the States cannot vindicate fiddle constitutional rights of

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Speaker 1: its citizens. And by the way, the states, and to me,

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Speaker 1: whoever drafted this stuff should be ashamed. The states clearly

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Speaker 1: in the existing case that don't have equal protection rights. Okay. Um, Therefore,

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Speaker 1: the only way in which you can get around it

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Speaker 1: is a situation like conductor in a case called Massachusetts

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Speaker 1: versus e p A, where you can demonstrate that the

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Speaker 1: state suffers specific damage like the loss of money or

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Speaker 1: in the case of ep A case, damage to the

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Speaker 1: coastline that the state owned. Okay, you cannot make generalized

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Speaker 1: assertions about, oh, well, it's not gonna be good for us,

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Speaker 1: because then not only you're destroying the entire standing doctrine,

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Speaker 1: you basically enable states to challenge everything, at least as

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Speaker 1: a standing matter. And again this is a fundamental separation

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Speaker 1: of powers vertical as well as horizontal separational powers issues.

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Speaker 1: And I'm just I'm amazed, I would be stunned in

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Speaker 1: my prediction. This is how it would ultimately be resolved.

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Speaker 1: The merits would not be reached if it doesn't happen

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Speaker 1: at the Ninth Circuit level. Surely oppened on the Spring

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Speaker 1: Court level because of how clear that the doctor and

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Speaker 1: again of cases like Masters versus mel and cancel back is.

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Speaker 1: We're talking about the Appeals court hearing today affecting President Trump'

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Speaker 1: temporary travel ban on seven Muslim majority nations. Are Guests

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Speaker 1: are David Rifkin, a Washington lawyer who used to advise

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Speaker 1: President Reagan and President George H. W. Bush, and Carry Hang,

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Speaker 1: a professor at Boston College Law School. Carry when we

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Speaker 1: uh started, you you mentioned that that some of these

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Speaker 1: big constitutional questions may not actually be the focus of

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Speaker 1: today's hearing. What do you think is the best argument

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Speaker 1: for the states who are opposing the executive order? What

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Speaker 1: is the best argument that this order um blocking the

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Speaker 1: orders should stay in place. Well, yes, the question before

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Speaker 1: the court right now is not what is is the constitutional?

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Speaker 1: Is the executive order legal or constitutional? That's not what

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Speaker 1: they're addressing. Neither are they're addressing if they had this

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Speaker 1: case on their desk the first time, what would they do? Rather,

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Speaker 1: they're going to be asked, did the district court make

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Speaker 1: a wrong decision as a matter of law or fact?

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Speaker 1: And that's a very different standard. That's gonna be a

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Speaker 1: standard for any losing party in this case the government

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Speaker 1: to overcome. And what U What the standard is in

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Speaker 1: the Ninth Circuit is that is there a serious legal

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Speaker 1: issue which everyone agrees there is. And the second question

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Speaker 1: is there a harm if if if there's a pause

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Speaker 1: button UM and the state doesn't go into effect. And

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Speaker 1: on that measure, UM, the State of Washington has met

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Speaker 1: its burden because not only has it claimed UM contrary

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Speaker 1: to David's assertion, like, it has named the number of

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Speaker 1: residents that it has that are impacted by the by

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Speaker 1: by the band. It has mentioned by number, how many

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Speaker 1: of those nationals are in its current state, how many

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Speaker 1: are in its universities, how many our students, how many

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Speaker 1: are professors? Um? And UM. How many businesses in particular

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Speaker 1: are going to be impacted. There are five thousand people

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Speaker 1: alone at Microsoft who will be impacted by this order,

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Speaker 1: so the showing of harm is made. The question though,

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Speaker 1: for the court is what happens when the government asserts

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Speaker 1: that if the state does um um uh, if if

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Speaker 1: the executive order is not allowed to continue, there will

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Speaker 1: be a harm against um the entire country as a

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Speaker 1: national security matter. That is an extraordinary claim that is

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Speaker 1: not usually before the court, and I believe that is

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Speaker 1: what the Court's going to be struggling with. So, David,

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Speaker 1: the Court could also cut back that part of the order,

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Speaker 1: could it not. Yeah, the fact that it's a national

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Speaker 1: one injunction is particularly suspect. But let me just say briefly,

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Speaker 1: I disagree fundamentally where my colleague I understand there's a

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Speaker 1: Let let's forget about the fact that it's tr row.

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Speaker 1: Ninth Circuit has a case law which says, when a

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Speaker 1: TROW essentially looks in in essence as a preliminary injunction

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Speaker 1: of p I, you apply the PI standards point number one,

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Speaker 1: point number two. I'm fully aware, having litigated many times

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Speaker 1: in Ninth Circuits, they have a somewhat idiosyncratic application of

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Speaker 1: the four part win to test, which is sprin court

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Speaker 1: case dealing with with women junctive relief, having said all that,

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Speaker 1: aside from the balance of harms, they do have to

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Speaker 1: look at the probability of success in the merits. I

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Speaker 1: don't disagree with whoever or not. There's a serious legal

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Speaker 1: question presented here versus the sort of a strict application

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Speaker 1: on the window test, which is a substantial privilege of

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Speaker 1: success in the merits in my opinion. In my opinion,

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Speaker 1: State Washington's case is so frivolous both as to standing

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Speaker 1: in the merits, that it would not pass master on

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Speaker 1: the any articulation of the winter tests. And I would

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Speaker 1: like to point out I don't understand the notion that

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Speaker 1: the president is acting on his own. Congress gave and

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Speaker 1: I wish I had time expressly gave the president in

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Speaker 1: Section two f any authority banned the entry of any

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Speaker 1: aliens or classes of aliens to suspend the entry if

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Speaker 1: the President finds impose any restrictions could deem them to

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Speaker 1: be appropriate. In that instance, the president is acting one

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Speaker 1: in accordance with that authority. And by the way, okay, David, David,

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Speaker 1: I want to give I give car a chance to respond. Car,

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Speaker 1: we got got about thirty seconds left. Whatever you want

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Speaker 1: last night, Well, well, there there's the control case applies

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Speaker 1: in the Ninth Circuit, which is the serious issues and

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Speaker 1: and harm. That is what's going to be before the court. Um.

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Speaker 1: And as to his standing, um um, David mis stated

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Speaker 1: to say that although he personally disagrees with it, it

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Speaker 1: is a very open question before the court. Which is

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Speaker 1: why the Fifth Circuits said a state's harm in Texas

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Speaker 1: alone was enough and that was a firm four four

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Speaker 1: at the Supreme Court. So this is a very important issue.

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Speaker 1: And then he disagrees with it. This is going to

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Speaker 1: be with the courts for quite some time. Okay, there

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Speaker 1: are a lot of issues here June. We are going

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Speaker 1: to be talking about this some more, I am sure

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Speaker 1: coming up because the hearings today, so tomorrow will be

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Speaker 1: all over. I'm guessing guessing that's the case. Okay. Coming

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Speaker 1: up on Bloomberg Law, there's a twelve year old girl

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Speaker 1: who wanted to play basketball with her with the boys

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Speaker 1: team at her school. Uh, the school said no. Her

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Speaker 1: family went to court and then she got expelled. We'll

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Speaker 1: talk about that coming up on Bloomberg Law. This is

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Speaker 1: Bloomberg