Speaker 1: President Trump's first attempt at a travel ban was a failure,
Speaker 1: at least in court. A federal appeals court sided a
Speaker 1: host of reasons in blocking the plan, which tried to
Speaker 1: halt entry into the US by people from seven mostly
Speaker 1: Muslim countries. The administration rescinded the old band yesterday, replacing
Speaker 1: it with a new executive order that addresses some, though
Speaker 1: perhaps not all, of the legal issues. Among the key changes,
Speaker 1: the measure explicitly allows entry by Green card holders, by
Speaker 1: people with valid visas, and by dual nationals traveling under
Speaker 1: a passport from the non covered country. It also drops
Speaker 1: a provision that gave preference to religious minorities in refugee admissions.
Speaker 1: Are these and other changes enough to survive the inevitable
Speaker 1: legal challenges. Our guests today to discuss that are David Beer,
Speaker 1: an immigration policy analyt at the libertarian Cato Institute, and
Speaker 1: Liza Gatine, co director of the Liberty and National Security
Speaker 1: Program at the Brennan Center for Justice. Um, Liza, is
Speaker 1: it fair to welcome to you both? Umliza? Is it
Speaker 1: fair to say that this new executive order is a
Speaker 1: significant improved and from a legal standpoint from the original one.
Speaker 1: I'm not sure I would say that from a from
Speaker 1: a legal standpoint, I think it's certainly made an effort
Speaker 1: to try to defuse some of the legal objections and
Speaker 1: the legal problems with the with the first order, and
Speaker 1: you mentioned some of the some of the ways it
Speaker 1: did that, for example, by eliminating language that carved out
Speaker 1: and express preference for religious minorities, um, and also by
Speaker 1: exempting current visa holders as well as green card holders.
Speaker 1: These were all efforts to try to mitigate some of
Speaker 1: the constitutional concerns with the original policy. UM. I don't
Speaker 1: think they will that will be enough actually to to
Speaker 1: change the legal analysis, because the crux of the order
Speaker 1: remains a policy that on its face has a discriminary
Speaker 1: discriminatory impact on Muslims. After President Trump made a number
Speaker 1: of statements saying that he intended to put in place
Speaker 1: a Muslim Van David, Do you agree that the revised
Speaker 1: order eliminates certain problems, but that the core constitutional problem,
Speaker 1: which is religious discrimination, remains well. I don't particularly take
Speaker 1: the view that this is a constitutional issue. I I
Speaker 1: My argument is that this is a statutory problem for
Speaker 1: the president, that we have a law on the books
Speaker 1: that Congress enacted in nine that bands discrimination based on
Speaker 1: UH nationality for immigrants. So at least as far as
Speaker 1: this band applies to immigrant visa applicants in these countries,
Speaker 1: then it's illegal under the law. And this new order
Speaker 1: did nothing to resolve that fundamental problem that you have
Speaker 1: a statute that bands this type of discrimination. I also
Speaker 1: would say that while I'm not convinced that you know
Speaker 1: that this is necessarily a Muslim band, there are elements
Speaker 1: of this order really undermine the argument that the administration
Speaker 1: is making that this is about vetting people. So, for example,
Speaker 1: the order sites this case of a Somali child who
Speaker 1: was brought over and then grew up here and then
Speaker 1: became a terrorist. Well, that case has nothing whatsoever to
Speaker 1: do with vetting. UH. The person was a child when
Speaker 1: they came over. There's no way to vet for future um,
Speaker 1: you know, intent when you grow up. So that's a
Speaker 1: failure of assimilation, not not vetting. And so now he's
Speaker 1: using this example to say that this band makes sense. Well,
Speaker 1: if the band is only temporary to allow them time
Speaker 1: to review the vetting procedures, well that doesn't really fit
Speaker 1: with this example, and it would indicate that he has
Speaker 1: no plans for it to be temporary, and it really
Speaker 1: is intended to ban people from the United States. Lies
Speaker 1: of the phrase Muslim band is used a lot in
Speaker 1: talking about this UH plan, this order, UM, but it
Speaker 1: really only affects a very small percentage of the world's Muslims.
Speaker 1: And of course it doesn't on its face say anything
Speaker 1: about Muslims. So other than than those comments that that
Speaker 1: the President made during the campaign, other people have made,
Speaker 1: you know, outside the scope of this order, what you know,
Speaker 1: what what evidence do we have that that this should
Speaker 1: be thought of as something that is either a Muslim
Speaker 1: ban or targets Muslims. Well, the fact that the van
Speaker 1: doesn't prohibit every single Muslim in the world from coming
Speaker 1: into the United States doesn't mean that it can't be
Speaker 1: discriminatory against Muslims. UM. There are plenty of countries that
Speaker 1: are experiencing political chaos UM at the same level of
Speaker 1: some of the countries on this list that are not
Speaker 1: majority of Muslim countries, such as for example, Venezuela that
Speaker 1: are not on this list. And I think if you had,
Speaker 1: for example, an employer who uh, you know, fired twenty
Speaker 1: employees in one year, and all of the employees that
Speaker 1: they employer fired were African American, despite the fact that
Speaker 1: the that there was a you know, a variety of
Speaker 1: races represented in that company. Um. I think the fact
Speaker 1: that there were still some African Americans who were not
Speaker 1: fired wouldn't change your perception that this was discriminatory. Our
Speaker 1: guests are Liza Gatine of the Brennan Center for Justice
Speaker 1: and David Beer of the Cato Institute. David, earlier, you
Speaker 1: were expressing some skepticism about some of the explanations for
Speaker 1: the band, the need for it, But is this an
Speaker 1: area we really want our courts getting into. I mean,
Speaker 1: normally we think that the president is going to know
Speaker 1: much more about the national security needs of the country
Speaker 1: than a court would, or that you're than you or
Speaker 1: I would. Uh, you know what, what's the standard here
Speaker 1: for a court of court saying no, we disagree with you,
Speaker 1: Mr President. Look, I don't think that the courts should
Speaker 1: second guess the president, but I also don't think that
Speaker 1: they should second suck and guests Congress, and it's Congress
Speaker 1: who enacted this prohibition on nationality based discrimination in the law.
Speaker 1: And when they did that in nine we did have
Speaker 1: a very discriminatory immigration system we banned almost all Asian
Speaker 1: in the United States, for example, And the reason why
Speaker 1: they got rid of this band is because they thought
Speaker 1: it would be good for US security interest. They thought
Speaker 1: that it was harming our battle against the Communists, that
Speaker 1: communists were using it for recruitment. And the same arguments
Speaker 1: that Congress was using then against banning all Asians, UH,
Speaker 1: really applies with the same level of force, UH to
Speaker 1: this current band. So just so I'm clear, Um, So
Speaker 1: I'm clear. So you're saying that even if the President
Speaker 1: really had a compelling reason to say, as a national
Speaker 1: security reason why this particular country we need to prevent
Speaker 1: people from from entering the kind tree, that wouldn't be
Speaker 1: enough because of this statue of Congress had passed. Exactly.
Speaker 1: Congress has already exercised its authority on this issue. It
Speaker 1: has the power to set immigration statutes, and this is
Speaker 1: the one that it chose. So the courts shouldn't second
Speaker 1: guess the security judgment of Congress. Liza. One thing I
Speaker 1: find curious with the order is in justifying the need
Speaker 1: for national security more national security they talk about. It
Speaker 1: talks about three people who entered the country as refugees
Speaker 1: who were the subject of counter terrorism investigations. It only
Speaker 1: talks about within that three individuals January to Iraqi nationals
Speaker 1: in October, a native of Somalia. They failed to put
Speaker 1: in the nine eleven hijackers, and Saudi Arabia is not
Speaker 1: on this list, which is now different than the list
Speaker 1: that Obama had. So is there any reason for not
Speaker 1: putting Saudi Arabia on this list? Well, there's certainly no
Speaker 1: reason if the true purpose is a national security one.
Speaker 1: But um, as you know, you and others have pointed
Speaker 1: out that the national security justification here is fairly thin.
Speaker 1: The three hundred investigations that are mentioned, um, all we
Speaker 1: know about them is that they are investigations. The FBI
Speaker 1: has a number of different levels of investigation, and some
Speaker 1: are as low as uh following up on a on
Speaker 1: a hunch or a tip. So we have no way
Speaker 1: of knowing how how serious these investigations are when it
Speaker 1: comes or or frankly, how many of them were launched
Speaker 1: after the courts said there was no national security justification
Speaker 1: for this policy. Um, you know, when it comes to
Speaker 1: the examples, which were presumably the strongest examples that the
Speaker 1: administration was able to find in the weeks that it
Speaker 1: has had to put together this revised order. You know,
Speaker 1: one of those examples, as has already been noted, relates
Speaker 1: to a a Somali American who came to this country
Speaker 1: as a child, and then with the subject of an
Speaker 1: FBI sting where the FBI actually put together the plot
Speaker 1: and took the lead on the plot. It was a
Speaker 1: fake plot. Uh. The other example involves Iraqi refugees who
Speaker 1: were plotting terrorist attacks in irect, not in the United States.
Speaker 1: So if those are the most convincing examples the administration
Speaker 1: can come up with, that really undermines the pretextual national
Speaker 1: security justification. David, A big issue of the last time
Speaker 1: around was whether anybody, like a state, had had legal
Speaker 1: standing to challenge the travel band. How about with this
Speaker 1: the revised band, is anybody going to have the right
Speaker 1: to go to court to say that the president has
Speaker 1: gone too far? Well, it's true that visa applicants don't
Speaker 1: typically have constitutional rights to challenge their denials, but American
Speaker 1: citizens who are petitioning for them to come over would
Speaker 1: had standing to sue. And so in the exact s
Speaker 1: in court in Seattle that heard the case that you know,
Speaker 1: put a hold on the executive order the first time.
Speaker 1: There's another case brought by US citizens who are petitioning
Speaker 1: for their family members to come over on immigrant visas,
Speaker 1: and they would be the ones to challenge, not the
Speaker 1: immigrant visa applicants themselves, and so I do think you
Speaker 1: will get standing to sue. The question ultimately will come
Speaker 1: down to whether or not the courts are willing to
Speaker 1: side with Congress and the statute, or whether they're going
Speaker 1: to side with the President and his national security justifications.
Speaker 1: If I gave you only ten seconds, could you tell
Speaker 1: me if you agree with that, Yes, I would agree
Speaker 1: with that. I think the ten seconds that I have,
Speaker 1: I want to say that this is this discriminates against
Speaker 1: people from majority Muslim countries without any evidence of a
Speaker 1: national security harm. So I think the courts need to
Speaker 1: look at that really closely. Okay, Thanks Lizagotine of the
Speaker 1: Brennan Center and David Bier of the Cato Institutes. I'm
Speaker 1: sure we'll be talking more about Donald Trump's revised travel band,
Speaker 1: which he issued yesterday and which almost certainly will be
Speaker 1: taken on in court in the coming weeks.