1 00:00:00,040 --> 00:00:03,239 Speaker 1: President Trump's first attempt at a travel ban was a failure, 2 00:00:03,360 --> 00:00:05,920 Speaker 1: at least in court. A federal appeals court sided a 3 00:00:05,960 --> 00:00:08,200 Speaker 1: host of reasons in blocking the plan, which tried to 4 00:00:08,240 --> 00:00:10,800 Speaker 1: halt entry into the US by people from seven mostly 5 00:00:10,920 --> 00:00:15,160 Speaker 1: Muslim countries. The administration rescinded the old band yesterday, replacing 6 00:00:15,160 --> 00:00:17,720 Speaker 1: it with a new executive order that addresses some, though 7 00:00:17,760 --> 00:00:21,200 Speaker 1: perhaps not all, of the legal issues. Among the key changes, 8 00:00:21,239 --> 00:00:24,360 Speaker 1: the measure explicitly allows entry by Green card holders, by 9 00:00:24,360 --> 00:00:28,040 Speaker 1: people with valid visas, and by dual nationals traveling under 10 00:00:28,040 --> 00:00:31,360 Speaker 1: a passport from the non covered country. It also drops 11 00:00:31,360 --> 00:00:34,800 Speaker 1: a provision that gave preference to religious minorities in refugee admissions. 12 00:00:35,479 --> 00:00:38,080 Speaker 1: Are these and other changes enough to survive the inevitable 13 00:00:38,159 --> 00:00:41,560 Speaker 1: legal challenges. Our guests today to discuss that are David Beer, 14 00:00:41,920 --> 00:00:46,120 Speaker 1: an immigration policy analyt at the libertarian Cato Institute, and 15 00:00:46,240 --> 00:00:49,239 Speaker 1: Liza Gatine, co director of the Liberty and National Security 16 00:00:49,240 --> 00:00:52,800 Speaker 1: Program at the Brennan Center for Justice. Um, Liza, is 17 00:00:52,840 --> 00:00:56,320 Speaker 1: it fair to welcome to you both? Umliza? Is it 18 00:00:56,360 --> 00:00:58,800 Speaker 1: fair to say that this new executive order is a 19 00:00:59,040 --> 00:01:02,800 Speaker 1: significant improved and from a legal standpoint from the original one. 20 00:01:04,200 --> 00:01:05,880 Speaker 1: I'm not sure I would say that from a from 21 00:01:05,920 --> 00:01:09,160 Speaker 1: a legal standpoint, I think it's certainly made an effort 22 00:01:09,240 --> 00:01:12,920 Speaker 1: to try to defuse some of the legal objections and 23 00:01:12,959 --> 00:01:15,640 Speaker 1: the legal problems with the with the first order, and 24 00:01:15,720 --> 00:01:17,520 Speaker 1: you mentioned some of the some of the ways it 25 00:01:17,600 --> 00:01:21,920 Speaker 1: did that, for example, by eliminating language that carved out 26 00:01:21,920 --> 00:01:26,440 Speaker 1: and express preference for religious minorities, um, and also by 27 00:01:26,480 --> 00:01:30,520 Speaker 1: exempting current visa holders as well as green card holders. 28 00:01:30,760 --> 00:01:33,319 Speaker 1: These were all efforts to try to mitigate some of 29 00:01:33,360 --> 00:01:38,559 Speaker 1: the constitutional concerns with the original policy. UM. I don't 30 00:01:38,560 --> 00:01:41,360 Speaker 1: think they will that will be enough actually to to 31 00:01:41,560 --> 00:01:44,800 Speaker 1: change the legal analysis, because the crux of the order 32 00:01:45,240 --> 00:01:50,480 Speaker 1: remains a policy that on its face has a discriminary 33 00:01:50,520 --> 00:01:56,560 Speaker 1: discriminatory impact on Muslims. After President Trump made a number 34 00:01:56,600 --> 00:01:58,880 Speaker 1: of statements saying that he intended to put in place 35 00:01:58,920 --> 00:02:02,920 Speaker 1: a Muslim Van David, Do you agree that the revised 36 00:02:03,000 --> 00:02:07,400 Speaker 1: order eliminates certain problems, but that the core constitutional problem, 37 00:02:07,480 --> 00:02:13,120 Speaker 1: which is religious discrimination, remains well. I don't particularly take 38 00:02:13,200 --> 00:02:17,240 Speaker 1: the view that this is a constitutional issue. I I 39 00:02:17,720 --> 00:02:20,720 Speaker 1: My argument is that this is a statutory problem for 40 00:02:20,760 --> 00:02:23,400 Speaker 1: the president, that we have a law on the books 41 00:02:23,520 --> 00:02:29,359 Speaker 1: that Congress enacted in nine that bands discrimination based on 42 00:02:30,160 --> 00:02:34,160 Speaker 1: UH nationality for immigrants. So at least as far as 43 00:02:34,200 --> 00:02:39,160 Speaker 1: this band applies to immigrant visa applicants in these countries, 44 00:02:39,680 --> 00:02:43,160 Speaker 1: then it's illegal under the law. And this new order 45 00:02:43,240 --> 00:02:47,840 Speaker 1: did nothing to resolve that fundamental problem that you have 46 00:02:47,960 --> 00:02:51,840 Speaker 1: a statute that bands this type of discrimination. I also 47 00:02:51,880 --> 00:02:54,800 Speaker 1: would say that while I'm not convinced that you know 48 00:02:54,880 --> 00:02:58,720 Speaker 1: that this is necessarily a Muslim band, there are elements 49 00:02:58,760 --> 00:03:02,799 Speaker 1: of this order really undermine the argument that the administration 50 00:03:02,919 --> 00:03:07,079 Speaker 1: is making that this is about vetting people. So, for example, 51 00:03:07,200 --> 00:03:11,119 Speaker 1: the order sites this case of a Somali child who 52 00:03:11,200 --> 00:03:14,240 Speaker 1: was brought over and then grew up here and then 53 00:03:14,280 --> 00:03:17,760 Speaker 1: became a terrorist. Well, that case has nothing whatsoever to 54 00:03:17,840 --> 00:03:21,640 Speaker 1: do with vetting. UH. The person was a child when 55 00:03:21,680 --> 00:03:25,880 Speaker 1: they came over. There's no way to vet for future um, 56 00:03:25,919 --> 00:03:28,680 Speaker 1: you know, intent when you grow up. So that's a 57 00:03:28,760 --> 00:03:32,760 Speaker 1: failure of assimilation, not not vetting. And so now he's 58 00:03:33,240 --> 00:03:37,120 Speaker 1: using this example to say that this band makes sense. Well, 59 00:03:37,160 --> 00:03:40,480 Speaker 1: if the band is only temporary to allow them time 60 00:03:40,520 --> 00:03:44,320 Speaker 1: to review the vetting procedures, well that doesn't really fit 61 00:03:44,400 --> 00:03:47,320 Speaker 1: with this example, and it would indicate that he has 62 00:03:47,360 --> 00:03:51,320 Speaker 1: no plans for it to be temporary, and it really 63 00:03:51,440 --> 00:03:55,960 Speaker 1: is intended to ban people from the United States. Lies 64 00:03:56,040 --> 00:03:58,240 Speaker 1: of the phrase Muslim band is used a lot in 65 00:03:58,280 --> 00:04:03,960 Speaker 1: talking about this UH plan, this order, UM, but it 66 00:04:03,960 --> 00:04:07,400 Speaker 1: really only affects a very small percentage of the world's Muslims. 67 00:04:07,400 --> 00:04:09,640 Speaker 1: And of course it doesn't on its face say anything 68 00:04:09,680 --> 00:04:14,920 Speaker 1: about Muslims. So other than than those comments that that 69 00:04:15,240 --> 00:04:17,559 Speaker 1: the President made during the campaign, other people have made, 70 00:04:18,160 --> 00:04:20,719 Speaker 1: you know, outside the scope of this order, what you know, 71 00:04:20,760 --> 00:04:23,000 Speaker 1: what what evidence do we have that that this should 72 00:04:23,040 --> 00:04:26,000 Speaker 1: be thought of as something that is either a Muslim 73 00:04:26,040 --> 00:04:30,560 Speaker 1: ban or targets Muslims. Well, the fact that the van 74 00:04:30,680 --> 00:04:34,240 Speaker 1: doesn't prohibit every single Muslim in the world from coming 75 00:04:34,240 --> 00:04:36,039 Speaker 1: into the United States doesn't mean that it can't be 76 00:04:36,080 --> 00:04:40,240 Speaker 1: discriminatory against Muslims. UM. There are plenty of countries that 77 00:04:40,320 --> 00:04:44,359 Speaker 1: are experiencing political chaos UM at the same level of 78 00:04:44,400 --> 00:04:47,120 Speaker 1: some of the countries on this list that are not 79 00:04:47,279 --> 00:04:50,640 Speaker 1: majority of Muslim countries, such as for example, Venezuela that 80 00:04:50,800 --> 00:04:53,960 Speaker 1: are not on this list. And I think if you had, 81 00:04:54,080 --> 00:04:59,960 Speaker 1: for example, an employer who uh, you know, fired twenty 82 00:05:00,360 --> 00:05:03,000 Speaker 1: employees in one year, and all of the employees that 83 00:05:03,040 --> 00:05:06,719 Speaker 1: they employer fired were African American, despite the fact that 84 00:05:06,800 --> 00:05:10,400 Speaker 1: the that there was a you know, a variety of 85 00:05:10,520 --> 00:05:13,839 Speaker 1: races represented in that company. Um. I think the fact 86 00:05:13,880 --> 00:05:15,760 Speaker 1: that there were still some African Americans who were not 87 00:05:15,880 --> 00:05:20,440 Speaker 1: fired wouldn't change your perception that this was discriminatory. Our 88 00:05:20,480 --> 00:05:23,200 Speaker 1: guests are Liza Gatine of the Brennan Center for Justice 89 00:05:23,240 --> 00:05:26,600 Speaker 1: and David Beer of the Cato Institute. David, earlier, you 90 00:05:26,640 --> 00:05:30,880 Speaker 1: were expressing some skepticism about some of the explanations for 91 00:05:31,000 --> 00:05:34,160 Speaker 1: the band, the need for it, But is this an 92 00:05:34,200 --> 00:05:37,200 Speaker 1: area we really want our courts getting into. I mean, 93 00:05:37,240 --> 00:05:39,599 Speaker 1: normally we think that the president is going to know 94 00:05:39,800 --> 00:05:43,440 Speaker 1: much more about the national security needs of the country 95 00:05:43,480 --> 00:05:46,159 Speaker 1: than a court would, or that you're than you or 96 00:05:46,200 --> 00:05:49,080 Speaker 1: I would. Uh, you know what, what's the standard here 97 00:05:49,120 --> 00:05:51,400 Speaker 1: for a court of court saying no, we disagree with you, 98 00:05:51,480 --> 00:05:55,839 Speaker 1: Mr President. Look, I don't think that the courts should 99 00:05:55,880 --> 00:05:58,680 Speaker 1: second guess the president, but I also don't think that 100 00:05:58,680 --> 00:06:02,600 Speaker 1: they should second suck and guests Congress, and it's Congress 101 00:06:02,640 --> 00:06:08,200 Speaker 1: who enacted this prohibition on nationality based discrimination in the law. 102 00:06:08,320 --> 00:06:11,800 Speaker 1: And when they did that in nine we did have 103 00:06:11,880 --> 00:06:16,239 Speaker 1: a very discriminatory immigration system we banned almost all Asian 104 00:06:16,839 --> 00:06:20,279 Speaker 1: in the United States, for example, And the reason why 105 00:06:20,279 --> 00:06:22,679 Speaker 1: they got rid of this band is because they thought 106 00:06:22,680 --> 00:06:27,599 Speaker 1: it would be good for US security interest. They thought 107 00:06:27,720 --> 00:06:32,760 Speaker 1: that it was harming our battle against the Communists, that 108 00:06:33,200 --> 00:06:37,200 Speaker 1: communists were using it for recruitment. And the same arguments 109 00:06:37,240 --> 00:06:41,440 Speaker 1: that Congress was using then against banning all Asians, UH, 110 00:06:41,720 --> 00:06:45,839 Speaker 1: really applies with the same level of force, UH to 111 00:06:46,000 --> 00:06:49,800 Speaker 1: this current band. So just so I'm clear, Um, So 112 00:06:49,839 --> 00:06:52,039 Speaker 1: I'm clear. So you're saying that even if the President 113 00:06:52,040 --> 00:06:54,440 Speaker 1: really had a compelling reason to say, as a national 114 00:06:54,440 --> 00:06:58,560 Speaker 1: security reason why this particular country we need to prevent 115 00:06:58,600 --> 00:07:00,800 Speaker 1: people from from entering the kind tree, that wouldn't be 116 00:07:00,920 --> 00:07:04,039 Speaker 1: enough because of this statue of Congress had passed. Exactly. 117 00:07:04,120 --> 00:07:07,680 Speaker 1: Congress has already exercised its authority on this issue. It 118 00:07:07,760 --> 00:07:11,480 Speaker 1: has the power to set immigration statutes, and this is 119 00:07:11,480 --> 00:07:15,000 Speaker 1: the one that it chose. So the courts shouldn't second 120 00:07:15,000 --> 00:07:20,440 Speaker 1: guess the security judgment of Congress. Liza. One thing I 121 00:07:20,480 --> 00:07:25,840 Speaker 1: find curious with the order is in justifying the need 122 00:07:26,000 --> 00:07:30,880 Speaker 1: for national security more national security they talk about. It 123 00:07:30,920 --> 00:07:34,360 Speaker 1: talks about three people who entered the country as refugees 124 00:07:34,400 --> 00:07:38,360 Speaker 1: who were the subject of counter terrorism investigations. It only 125 00:07:38,480 --> 00:07:44,800 Speaker 1: talks about within that three individuals January to Iraqi nationals 126 00:07:44,920 --> 00:07:50,200 Speaker 1: in October, a native of Somalia. They failed to put 127 00:07:50,240 --> 00:07:54,920 Speaker 1: in the nine eleven hijackers, and Saudi Arabia is not 128 00:07:55,120 --> 00:07:58,280 Speaker 1: on this list, which is now different than the list 129 00:07:58,320 --> 00:08:02,000 Speaker 1: that Obama had. So is there any reason for not 130 00:08:02,080 --> 00:08:06,080 Speaker 1: putting Saudi Arabia on this list? Well, there's certainly no 131 00:08:06,160 --> 00:08:09,840 Speaker 1: reason if the true purpose is a national security one. 132 00:08:10,040 --> 00:08:13,160 Speaker 1: But um, as you know, you and others have pointed 133 00:08:13,160 --> 00:08:16,560 Speaker 1: out that the national security justification here is fairly thin. 134 00:08:16,880 --> 00:08:20,400 Speaker 1: The three hundred investigations that are mentioned, um, all we 135 00:08:20,440 --> 00:08:23,000 Speaker 1: know about them is that they are investigations. The FBI 136 00:08:23,040 --> 00:08:26,400 Speaker 1: has a number of different levels of investigation, and some 137 00:08:26,680 --> 00:08:30,240 Speaker 1: are as low as uh following up on a on 138 00:08:30,280 --> 00:08:32,640 Speaker 1: a hunch or a tip. So we have no way 139 00:08:32,679 --> 00:08:36,240 Speaker 1: of knowing how how serious these investigations are when it 140 00:08:36,320 --> 00:08:39,240 Speaker 1: comes or or frankly, how many of them were launched 141 00:08:39,280 --> 00:08:42,719 Speaker 1: after the courts said there was no national security justification 142 00:08:42,840 --> 00:08:45,720 Speaker 1: for this policy. Um, you know, when it comes to 143 00:08:45,800 --> 00:08:50,040 Speaker 1: the examples, which were presumably the strongest examples that the 144 00:08:50,040 --> 00:08:52,760 Speaker 1: administration was able to find in the weeks that it 145 00:08:52,840 --> 00:08:55,600 Speaker 1: has had to put together this revised order. You know, 146 00:08:55,800 --> 00:08:59,400 Speaker 1: one of those examples, as has already been noted, relates 147 00:08:59,440 --> 00:09:02,920 Speaker 1: to a a Somali American who came to this country 148 00:09:03,280 --> 00:09:05,959 Speaker 1: as a child, and then with the subject of an 149 00:09:06,000 --> 00:09:09,520 Speaker 1: FBI sting where the FBI actually put together the plot 150 00:09:09,760 --> 00:09:11,320 Speaker 1: and took the lead on the plot. It was a 151 00:09:11,320 --> 00:09:15,520 Speaker 1: fake plot. Uh. The other example involves Iraqi refugees who 152 00:09:15,520 --> 00:09:19,319 Speaker 1: were plotting terrorist attacks in irect, not in the United States. 153 00:09:19,320 --> 00:09:22,200 Speaker 1: So if those are the most convincing examples the administration 154 00:09:22,240 --> 00:09:27,480 Speaker 1: can come up with, that really undermines the pretextual national 155 00:09:27,520 --> 00:09:30,480 Speaker 1: security justification. David, A big issue of the last time 156 00:09:30,520 --> 00:09:33,520 Speaker 1: around was whether anybody, like a state, had had legal 157 00:09:33,559 --> 00:09:37,360 Speaker 1: standing to challenge the travel band. How about with this 158 00:09:37,640 --> 00:09:39,760 Speaker 1: the revised band, is anybody going to have the right 159 00:09:39,800 --> 00:09:41,960 Speaker 1: to go to court to say that the president has 160 00:09:42,000 --> 00:09:47,280 Speaker 1: gone too far? Well, it's true that visa applicants don't 161 00:09:47,679 --> 00:09:52,880 Speaker 1: typically have constitutional rights to challenge their denials, but American 162 00:09:52,960 --> 00:09:57,000 Speaker 1: citizens who are petitioning for them to come over would 163 00:09:57,040 --> 00:09:59,839 Speaker 1: had standing to sue. And so in the exact s 164 00:10:00,040 --> 00:10:04,840 Speaker 1: in court in Seattle that heard the case that you know, 165 00:10:04,880 --> 00:10:08,800 Speaker 1: put a hold on the executive order the first time. 166 00:10:08,840 --> 00:10:12,560 Speaker 1: There's another case brought by US citizens who are petitioning 167 00:10:12,640 --> 00:10:16,600 Speaker 1: for their family members to come over on immigrant visas, 168 00:10:16,679 --> 00:10:20,720 Speaker 1: and they would be the ones to challenge, not the 169 00:10:20,760 --> 00:10:25,880 Speaker 1: immigrant visa applicants themselves, and so I do think you 170 00:10:25,960 --> 00:10:29,679 Speaker 1: will get standing to sue. The question ultimately will come 171 00:10:29,720 --> 00:10:32,320 Speaker 1: down to whether or not the courts are willing to 172 00:10:32,360 --> 00:10:35,320 Speaker 1: side with Congress and the statute, or whether they're going 173 00:10:35,360 --> 00:10:40,840 Speaker 1: to side with the President and his national security justifications. 174 00:10:40,880 --> 00:10:42,959 Speaker 1: If I gave you only ten seconds, could you tell 175 00:10:43,000 --> 00:10:47,080 Speaker 1: me if you agree with that, Yes, I would agree 176 00:10:47,120 --> 00:10:48,920 Speaker 1: with that. I think the ten seconds that I have, 177 00:10:49,200 --> 00:10:52,360 Speaker 1: I want to say that this is this discriminates against 178 00:10:52,679 --> 00:10:56,839 Speaker 1: people from majority Muslim countries without any evidence of a 179 00:10:56,960 --> 00:10:59,080 Speaker 1: national security harm. So I think the courts need to 180 00:10:59,080 --> 00:11:02,679 Speaker 1: look at that really closely. Okay, Thanks Lizagotine of the 181 00:11:02,679 --> 00:11:05,160 Speaker 1: Brennan Center and David Bier of the Cato Institutes. I'm 182 00:11:05,200 --> 00:11:08,439 Speaker 1: sure we'll be talking more about Donald Trump's revised travel band, 183 00:11:08,640 --> 00:11:11,280 Speaker 1: which he issued yesterday and which almost certainly will be 184 00:11:11,880 --> 00:11:14,559 Speaker 1: taken on in court in the coming weeks.