1 00:00:00,120 --> 00:00:03,680 Speaker 1: We just got news that the Ninth Circuit has decided 2 00:00:03,840 --> 00:00:06,560 Speaker 1: the case before it on the Trump travel ban, and 3 00:00:06,640 --> 00:00:11,239 Speaker 1: it has ruled against President Trump's revised travel ban. We're 4 00:00:11,240 --> 00:00:13,760 Speaker 1: going to take a look at the reasons now with 5 00:00:14,120 --> 00:00:18,040 Speaker 1: Bloomberg News legal reporters Eric Larsons in our studio in 6 00:00:18,079 --> 00:00:22,200 Speaker 1: New York and Card Came Morotra, who is in San Francisco. 7 00:00:22,760 --> 00:00:26,800 Speaker 1: So Eric, start with the basic reason why the Ninth 8 00:00:26,800 --> 00:00:31,320 Speaker 1: Circuit rejected the second travel ban. Well, the court ruled 9 00:00:31,360 --> 00:00:36,360 Speaker 1: this time around that the executive order violated US immigration 10 00:00:36,440 --> 00:00:41,440 Speaker 1: law by making decisions based on nationality, which Congress specifically prohibited, 11 00:00:42,120 --> 00:00:46,440 Speaker 1: and that that's different from the Fourth Circuits determination that 12 00:00:46,479 --> 00:00:50,600 Speaker 1: it was really religious discrimination. So the effect is the same, 13 00:00:50,680 --> 00:00:55,160 Speaker 1: but the reasons are are different, which is interesting. Card case, 14 00:00:55,280 --> 00:01:00,320 Speaker 1: was there any language in the opinion that struck you? Yeah, 15 00:01:00,360 --> 00:01:07,280 Speaker 1: they the refugees language was was noteworthy. They spoke specifically 16 00:01:07,319 --> 00:01:13,160 Speaker 1: to whether the President actually had sufficient findings to UH 17 00:01:13,200 --> 00:01:16,000 Speaker 1: to invoke the travel band. It said the President must 18 00:01:16,000 --> 00:01:18,600 Speaker 1: make a sufficient finding with the entry of these classes 19 00:01:18,600 --> 00:01:21,360 Speaker 1: of people would be detrimental to the interests of the 20 00:01:21,440 --> 00:01:24,360 Speaker 1: United States UH, which which is certainly not worthy and 21 00:01:24,440 --> 00:01:26,839 Speaker 1: was part of their argument in in the Ninth Circuit, 22 00:01:26,959 --> 00:01:32,080 Speaker 1: but the court didn't buy it, and Eric did they 23 00:01:32,160 --> 00:01:34,640 Speaker 1: in the ninth Circuit did they use any of his 24 00:01:34,959 --> 00:01:39,880 Speaker 1: language from you know, from outside the briefs itself, his 25 00:01:40,040 --> 00:01:43,120 Speaker 1: language on the campaign trail, or his language what he 26 00:01:43,240 --> 00:01:45,920 Speaker 1: called it in his tweets. Yeah, it was very interesting. 27 00:01:46,080 --> 00:01:48,840 Speaker 1: I looked through expecting to see some of that and 28 00:01:48,880 --> 00:01:51,600 Speaker 1: I didn't. Um, and perhaps I might miss some. I 29 00:01:51,600 --> 00:01:55,640 Speaker 1: don't think so. But there was no reference to his 30 00:01:55,840 --> 00:01:59,240 Speaker 1: call for a total shutdown on Muslims and reference to 31 00:01:59,240 --> 00:02:03,160 Speaker 1: the Muslim band on Um. There was also no reference 32 00:02:03,200 --> 00:02:05,760 Speaker 1: to comments made by his surrogates on the campaign trail 33 00:02:05,800 --> 00:02:08,800 Speaker 1: which were highlighted in the Fourth Circuit's rulings, such as 34 00:02:09,160 --> 00:02:13,120 Speaker 1: comments made by former Mayor Rudy Giuliani. Um, those those 35 00:02:13,160 --> 00:02:16,560 Speaker 1: were missing. So it really did focus entirely on the 36 00:02:16,560 --> 00:02:20,119 Speaker 1: the U S Immigration law and the simple, fairly straightforward 37 00:02:20,520 --> 00:02:22,639 Speaker 1: assarch and in that law that there can't be decisions 38 00:02:22,680 --> 00:02:26,359 Speaker 1: based on the nationality Carke. Let's talk a little bit 39 00:02:26,400 --> 00:02:31,200 Speaker 1: more about the Fourth Circuit and how this decision differs 40 00:02:31,280 --> 00:02:36,120 Speaker 1: from the Fourth Circuit in reasoning if if not an outcome, well, 41 00:02:36,560 --> 00:02:41,239 Speaker 1: h the Virginia based court focused on on what Eric 42 00:02:41,320 --> 00:02:45,600 Speaker 1: was talking about the motivation of the travel band Here 43 00:02:45,639 --> 00:02:48,440 Speaker 1: in this opinion, the court set of the orders flawed 44 00:02:48,440 --> 00:02:51,760 Speaker 1: because again it didn't explain why permitting entry of the 45 00:02:51,840 --> 00:02:57,840 Speaker 1: national trumbo six six countries, um would be harmful at all. Uh. 46 00:02:58,000 --> 00:03:00,760 Speaker 1: It's it's a new, uh way of looking at this, 47 00:03:01,440 --> 00:03:05,480 Speaker 1: Eric said, Uh, it's another argument that that the Trump 48 00:03:05,480 --> 00:03:10,760 Speaker 1: administration will have to battle sprint court. So, Eric, what's 49 00:03:10,800 --> 00:03:15,720 Speaker 1: the significance you have two appeals courts on opposite sides 50 00:03:15,800 --> 00:03:20,040 Speaker 1: of the country and the Ninth Circuit. Uh. Certainly President 51 00:03:20,040 --> 00:03:24,119 Speaker 1: Trump has criticized the Ninth Circuit as being liberal. Um. 52 00:03:24,200 --> 00:03:27,760 Speaker 1: So you have two circuits saying the same thing about 53 00:03:27,840 --> 00:03:33,040 Speaker 1: this travel ban. What's the significance of that. Well, the significance, 54 00:03:34,200 --> 00:03:36,880 Speaker 1: I suppose is that anytime you have two appeals courts 55 00:03:36,920 --> 00:03:39,160 Speaker 1: coming to the same conclusion, even if it is through 56 00:03:39,200 --> 00:03:42,600 Speaker 1: different reasoning, Um, that it does make the case difficult 57 00:03:42,880 --> 00:03:48,720 Speaker 1: to overcome potentially. But but the Fourth Circuit is also 58 00:03:48,880 --> 00:03:51,360 Speaker 1: you could say liberal as well. I mean it was. 59 00:03:51,480 --> 00:03:54,640 Speaker 1: The ruling was ten to thirteen on party lines for 60 00:03:54,640 --> 00:03:57,240 Speaker 1: the most part, and a lot of those judges that 61 00:03:57,360 --> 00:04:01,280 Speaker 1: were ruled against Trump were appointed Clinton and Obama. So 62 00:04:02,360 --> 00:04:04,920 Speaker 1: it remains to be seen what another appeals court might 63 00:04:05,080 --> 00:04:06,640 Speaker 1: say on this, but I don't know if we'll ever 64 00:04:06,680 --> 00:04:09,920 Speaker 1: get the chance to find out. So well, Card k, 65 00:04:10,160 --> 00:04:12,680 Speaker 1: this is before the Supreme Court, and first of all, 66 00:04:12,760 --> 00:04:15,960 Speaker 1: let's let's talk about the fact that usually when two 67 00:04:16,000 --> 00:04:19,320 Speaker 1: circuit courts are in agreement, the Supreme Court doesn't take 68 00:04:19,360 --> 00:04:23,960 Speaker 1: the case. But this is a different situation. I mean, 69 00:04:23,960 --> 00:04:28,240 Speaker 1: it's just so politically sensitive and um as I was 70 00:04:28,279 --> 00:04:31,440 Speaker 1: just speaking to our Supreme Court reporter who said that, 71 00:04:31,520 --> 00:04:34,679 Speaker 1: you know, ultimately the Supreme Court may want to take 72 00:04:34,720 --> 00:04:39,160 Speaker 1: the responsibility of determining whether the president's an executive order 73 00:04:39,560 --> 00:04:42,040 Speaker 1: should be knocked down or not, that they don't want 74 00:04:42,080 --> 00:04:45,720 Speaker 1: to leave it up to a district court or an 75 00:04:45,720 --> 00:04:48,400 Speaker 1: appellate court to make that final call, to be the 76 00:04:48,440 --> 00:04:53,359 Speaker 1: final voice. So although we have two similar rulings in 77 00:04:53,440 --> 00:04:56,680 Speaker 1: their actions from the appellate court, Supreme Court may may 78 00:04:56,760 --> 00:04:59,320 Speaker 1: ultimately decide that this issue is just too important to 79 00:05:00,320 --> 00:05:03,080 Speaker 1: not lay in on. Eric, what do you think because 80 00:05:03,200 --> 00:05:07,800 Speaker 1: the Trump administration has placed so much on this travel ban, 81 00:05:08,080 --> 00:05:11,400 Speaker 1: I mean, it's from the very beginning, it's it's placed 82 00:05:11,560 --> 00:05:15,839 Speaker 1: so much effort on the travel ban, so so many lawyers, 83 00:05:16,279 --> 00:05:20,480 Speaker 1: so many courts and revisions, and then you had Trump 84 00:05:20,520 --> 00:05:24,039 Speaker 1: criticizing his own Justice Department about how they handled it 85 00:05:24,080 --> 00:05:27,400 Speaker 1: at the Supreme Court. Uh is the Supreme Court likely 86 00:05:27,480 --> 00:05:30,320 Speaker 1: to take it? Oh? I wish I knew, But it 87 00:05:30,320 --> 00:05:33,160 Speaker 1: seems like if they did, based on the different reasoning 88 00:05:33,200 --> 00:05:36,239 Speaker 1: that the travel band was shot down on the fourth 89 00:05:36,320 --> 00:05:39,520 Speaker 1: and the Ninth Circuit, there a variety of ways that 90 00:05:39,640 --> 00:05:42,960 Speaker 1: they could go about shutting it down themselves. Or maybe 91 00:05:42,960 --> 00:05:46,479 Speaker 1: there's a surprise way that they have to uh back 92 00:05:46,480 --> 00:05:48,960 Speaker 1: it legally that we just haven't heard a judge say yet. 93 00:05:49,360 --> 00:05:53,599 Speaker 1: But um, it's also possible that the case could just 94 00:05:53,640 --> 00:05:55,599 Speaker 1: be resolved before it ever goes to a trial at 95 00:05:55,600 --> 00:05:57,800 Speaker 1: the Supreme Court. You never know, he might just drop 96 00:05:57,839 --> 00:06:01,600 Speaker 1: it on. Really, I would think that's the one thing 97 00:06:01,640 --> 00:06:05,279 Speaker 1: that might not happen of all the things that could happen. CARDC. 98 00:06:05,839 --> 00:06:07,880 Speaker 1: If the argument, if the case does go to the 99 00:06:07,920 --> 00:06:10,839 Speaker 1: Supreme Court and they take it, what's the basic argument. 100 00:06:12,720 --> 00:06:14,719 Speaker 1: I think it's the same argument that we've been hearing 101 00:06:15,720 --> 00:06:21,120 Speaker 1: since late January, that the president has the ultimate power 102 00:06:21,160 --> 00:06:25,480 Speaker 1: to determine the country's immigration policy, and that this is 103 00:06:25,520 --> 00:06:29,279 Speaker 1: not a religious document. There is no reference to religion here. 104 00:06:29,320 --> 00:06:33,600 Speaker 1: There is reference to nationality. Is on that basis which 105 00:06:33,640 --> 00:06:37,880 Speaker 1: the government has attempted to bar the entry of nationals 106 00:06:37,880 --> 00:06:40,839 Speaker 1: from the six countries. I don't I don't expect anything 107 00:06:40,880 --> 00:06:43,280 Speaker 1: new there. It will be the same argument we might. 108 00:06:43,360 --> 00:06:47,320 Speaker 1: They're just hoping that a new court may hear it differently. Yeah. 109 00:06:47,720 --> 00:06:51,799 Speaker 1: Is this the point, Eric, where Justice gorssh would really 110 00:06:51,920 --> 00:06:55,800 Speaker 1: be looked at because he is a Donald Trump appointee 111 00:06:56,279 --> 00:07:01,240 Speaker 1: and uh, if his decision sways things, Oh, absolutely, I'm sure. 112 00:07:01,240 --> 00:07:04,279 Speaker 1: I'm sure they will be the same way that Roberts 113 00:07:04,320 --> 00:07:08,880 Speaker 1: was looked at with Obamacare several years ago. Um. But 114 00:07:09,360 --> 00:07:11,520 Speaker 1: another point that might be made in the Supreme Court 115 00:07:11,760 --> 00:07:15,040 Speaker 1: showdown would be h that, like Cardike said, that is 116 00:07:15,120 --> 00:07:17,520 Speaker 1: that is what Trump wants to argue. But there also 117 00:07:17,680 --> 00:07:20,160 Speaker 1: is the the argument that they should look at what's 118 00:07:20,200 --> 00:07:22,680 Speaker 1: outside the four corners of the executive order, look at 119 00:07:22,720 --> 00:07:24,680 Speaker 1: his motivation and the things that he said, and the 120 00:07:25,160 --> 00:07:27,640 Speaker 1: and the Fourth Circuit really did do that. So it's 121 00:07:27,680 --> 00:07:30,320 Speaker 1: not even if they strip out all the language about religion, 122 00:07:30,360 --> 00:07:33,720 Speaker 1: which they did with the revised Executive Order, the judges 123 00:07:34,360 --> 00:07:36,400 Speaker 1: knew what had been said before that and it's a 124 00:07:36,480 --> 00:07:39,680 Speaker 1: question of how far back they'll go, all the way 125 00:07:39,720 --> 00:07:42,920 Speaker 1: back to the campaign, uh, into determining what he what 126 00:07:43,000 --> 00:07:46,040 Speaker 1: he was getting at. Well, it's going to continue to 127 00:07:46,200 --> 00:07:49,760 Speaker 1: be a subject that will be talking about, certainly until 128 00:07:49,760 --> 00:07:52,360 Speaker 1: the Supreme Court makes it's a decision. Thank you both 129 00:07:52,400 --> 00:07:55,520 Speaker 1: for coming on Bloomberg Law that's Eric Lawson and Carter 130 00:07:55,640 --> 00:07:58,680 Speaker 1: came a road trip, both Bloomberg News legal reporters