WEBVTT - Does New Immigration Order Pass Judicial Muster? (Audio) 0:00:00.040 --> 0:00:03.239 President Trump's first attempt at a travel ban was a failure, 0:00:03.360 --> 0:00:05.920 at least in court. A federal appeals court sided a 0:00:05.960 --> 0:00:08.200 host of reasons in blocking the plan, which tried to 0:00:08.240 --> 0:00:10.800 halt entry into the US by people from seven mostly 0:00:10.920 --> 0:00:15.160 Muslim countries. The administration rescinded the old band yesterday, replacing 0:00:15.160 --> 0:00:17.720 it with a new executive order that addresses some, though 0:00:17.760 --> 0:00:21.200 perhaps not all, of the legal issues. Among the key changes, 0:00:21.239 --> 0:00:24.360 the measure explicitly allows entry by Green card holders, by 0:00:24.360 --> 0:00:28.040 people with valid visas, and by dual nationals traveling under 0:00:28.040 --> 0:00:31.360 a passport from the non covered country. It also drops 0:00:31.360 --> 0:00:34.800 a provision that gave preference to religious minorities in refugee admissions. 0:00:35.479 --> 0:00:38.080 Are these and other changes enough to survive the inevitable 0:00:38.159 --> 0:00:41.560 legal challenges. Our guests today to discuss that are David Beer, 0:00:41.920 --> 0:00:46.120 an immigration policy analyt at the libertarian Cato Institute, and 0:00:46.240 --> 0:00:49.239 Liza Gatine, co director of the Liberty and National Security 0:00:49.240 --> 0:00:52.800 Program at the Brennan Center for Justice. Um, Liza, is 0:00:52.840 --> 0:00:56.320 it fair to welcome to you both? Umliza? Is it 0:00:56.360 --> 0:00:58.800 fair to say that this new executive order is a 0:00:59.040 --> 0:01:02.800 significant improved and from a legal standpoint from the original one. 0:01:04.200 --> 0:01:05.880 I'm not sure I would say that from a from 0:01:05.920 --> 0:01:09.160 a legal standpoint, I think it's certainly made an effort 0:01:09.240 --> 0:01:12.920 to try to defuse some of the legal objections and 0:01:12.959 --> 0:01:15.640 the legal problems with the with the first order, and 0:01:15.720 --> 0:01:17.520 you mentioned some of the some of the ways it 0:01:17.600 --> 0:01:21.920 did that, for example, by eliminating language that carved out 0:01:21.920 --> 0:01:26.440 and express preference for religious minorities, um, and also by 0:01:26.480 --> 0:01:30.520 exempting current visa holders as well as green card holders. 0:01:30.760 --> 0:01:33.319 These were all efforts to try to mitigate some of 0:01:33.360 --> 0:01:38.559 the constitutional concerns with the original policy. UM. I don't 0:01:38.560 --> 0:01:41.360 think they will that will be enough actually to to 0:01:41.560 --> 0:01:44.800 change the legal analysis, because the crux of the order 0:01:45.240 --> 0:01:50.480 remains a policy that on its face has a discriminary 0:01:50.520 --> 0:01:56.560 discriminatory impact on Muslims. After President Trump made a number 0:01:56.600 --> 0:01:58.880 of statements saying that he intended to put in place 0:01:58.920 --> 0:02:02.920 a Muslim Van David, Do you agree that the revised 0:02:03.000 --> 0:02:07.400 order eliminates certain problems, but that the core constitutional problem, 0:02:07.480 --> 0:02:13.120 which is religious discrimination, remains well. I don't particularly take 0:02:13.200 --> 0:02:17.240 the view that this is a constitutional issue. I I 0:02:17.720 --> 0:02:20.720 My argument is that this is a statutory problem for 0:02:20.760 --> 0:02:23.400 the president, that we have a law on the books 0:02:23.520 --> 0:02:29.359 that Congress enacted in nine that bands discrimination based on 0:02:30.160 --> 0:02:34.160 UH nationality for immigrants. So at least as far as 0:02:34.200 --> 0:02:39.160 this band applies to immigrant visa applicants in these countries, 0:02:39.680 --> 0:02:43.160 then it's illegal under the law. And this new order 0:02:43.240 --> 0:02:47.840 did nothing to resolve that fundamental problem that you have 0:02:47.960 --> 0:02:51.840 a statute that bands this type of discrimination. I also 0:02:51.880 --> 0:02:54.800 would say that while I'm not convinced that you know 0:02:54.880 --> 0:02:58.720 that this is necessarily a Muslim band, there are elements 0:02:58.760 --> 0:03:02.799 of this order really undermine the argument that the administration 0:03:02.919 --> 0:03:07.079 is making that this is about vetting people. So, for example, 0:03:07.200 --> 0:03:11.119 the order sites this case of a Somali child who 0:03:11.200 --> 0:03:14.240 was brought over and then grew up here and then 0:03:14.280 --> 0:03:17.760 became a terrorist. Well, that case has nothing whatsoever to 0:03:17.840 --> 0:03:21.640 do with vetting. UH. The person was a child when 0:03:21.680 --> 0:03:25.880 they came over. There's no way to vet for future um, 0:03:25.919 --> 0:03:28.680 you know, intent when you grow up. So that's a 0:03:28.760 --> 0:03:32.760 failure of assimilation, not not vetting. And so now he's 0:03:33.240 --> 0:03:37.120 using this example to say that this band makes sense. Well, 0:03:37.160 --> 0:03:40.480 if the band is only temporary to allow them time 0:03:40.520 --> 0:03:44.320 to review the vetting procedures, well that doesn't really fit 0:03:44.400 --> 0:03:47.320 with this example, and it would indicate that he has 0:03:47.360 --> 0:03:51.320 no plans for it to be temporary, and it really 0:03:51.440 --> 0:03:55.960 is intended to ban people from the United States. Lies 0:03:56.040 --> 0:03:58.240 of the phrase Muslim band is used a lot in 0:03:58.280 --> 0:04:03.960 talking about this UH plan, this order, UM, but it 0:04:03.960 --> 0:04:07.400 really only affects a very small percentage of the world's Muslims. 0:04:07.400 --> 0:04:09.640 And of course it doesn't on its face say anything 0:04:09.680 --> 0:04:14.920 about Muslims. So other than than those comments that that 0:04:15.240 --> 0:04:17.559 the President made during the campaign, other people have made, 0:04:18.160 --> 0:04:20.719 you know, outside the scope of this order, what you know, 0:04:20.760 --> 0:04:23.000 what what evidence do we have that that this should 0:04:23.040 --> 0:04:26.000 be thought of as something that is either a Muslim 0:04:26.040 --> 0:04:30.560 ban or targets Muslims. Well, the fact that the van 0:04:30.680 --> 0:04:34.240 doesn't prohibit every single Muslim in the world from coming 0:04:34.240 --> 0:04:36.039 into the United States doesn't mean that it can't be 0:04:36.080 --> 0:04:40.240 discriminatory against Muslims. UM. There are plenty of countries that 0:04:40.320 --> 0:04:44.359 are experiencing political chaos UM at the same level of 0:04:44.400 --> 0:04:47.120 some of the countries on this list that are not 0:04:47.279 --> 0:04:50.640 majority of Muslim countries, such as for example, Venezuela that 0:04:50.800 --> 0:04:53.960 are not on this list. And I think if you had, 0:04:54.080 --> 0:04:59.960 for example, an employer who uh, you know, fired twenty 0:05:00.360 --> 0:05:03.000 employees in one year, and all of the employees that 0:05:03.040 --> 0:05:06.719 they employer fired were African American, despite the fact that 0:05:06.800 --> 0:05:10.400 the that there was a you know, a variety of 0:05:10.520 --> 0:05:13.839 races represented in that company. Um. I think the fact 0:05:13.880 --> 0:05:15.760 that there were still some African Americans who were not 0:05:15.880 --> 0:05:20.440 fired wouldn't change your perception that this was discriminatory. Our 0:05:20.480 --> 0:05:23.200 guests are Liza Gatine of the Brennan Center for Justice 0:05:23.240 --> 0:05:26.600 and David Beer of the Cato Institute. David, earlier, you 0:05:26.640 --> 0:05:30.880 were expressing some skepticism about some of the explanations for 0:05:31.000 --> 0:05:34.160 the band, the need for it, But is this an 0:05:34.200 --> 0:05:37.200 area we really want our courts getting into. I mean, 0:05:37.240 --> 0:05:39.599 normally we think that the president is going to know 0:05:39.800 --> 0:05:43.440 much more about the national security needs of the country 0:05:43.480 --> 0:05:46.159 than a court would, or that you're than you or 0:05:46.200 --> 0:05:49.080 I would. Uh, you know what, what's the standard here 0:05:49.120 --> 0:05:51.400 for a court of court saying no, we disagree with you, 0:05:51.480 --> 0:05:55.839 Mr President. Look, I don't think that the courts should 0:05:55.880 --> 0:05:58.680 second guess the president, but I also don't think that 0:05:58.680 --> 0:06:02.600 they should second suck and guests Congress, and it's Congress 0:06:02.640 --> 0:06:08.200 who enacted this prohibition on nationality based discrimination in the law. 0:06:08.320 --> 0:06:11.800 And when they did that in nine we did have 0:06:11.880 --> 0:06:16.239 a very discriminatory immigration system we banned almost all Asian 0:06:16.839 --> 0:06:20.279 in the United States, for example, And the reason why 0:06:20.279 --> 0:06:22.679 they got rid of this band is because they thought 0:06:22.680 --> 0:06:27.599 it would be good for US security interest. They thought 0:06:27.720 --> 0:06:32.760 that it was harming our battle against the Communists, that 0:06:33.200 --> 0:06:37.200 communists were using it for recruitment. And the same arguments 0:06:37.240 --> 0:06:41.440 that Congress was using then against banning all Asians, UH, 0:06:41.720 --> 0:06:45.839 really applies with the same level of force, UH to 0:06:46.000 --> 0:06:49.800 this current band. So just so I'm clear, Um, So 0:06:49.839 --> 0:06:52.039 I'm clear. So you're saying that even if the President 0:06:52.040 --> 0:06:54.440 really had a compelling reason to say, as a national 0:06:54.440 --> 0:06:58.560 security reason why this particular country we need to prevent 0:06:58.600 --> 0:07:00.800 people from from entering the kind tree, that wouldn't be 0:07:00.920 --> 0:07:04.039 enough because of this statue of Congress had passed. Exactly. 0:07:04.120 --> 0:07:07.680 Congress has already exercised its authority on this issue. It 0:07:07.760 --> 0:07:11.480 has the power to set immigration statutes, and this is 0:07:11.480 --> 0:07:15.000 the one that it chose. So the courts shouldn't second 0:07:15.000 --> 0:07:20.440 guess the security judgment of Congress. Liza. One thing I 0:07:20.480 --> 0:07:25.840 find curious with the order is in justifying the need 0:07:26.000 --> 0:07:30.880 for national security more national security they talk about. It 0:07:30.920 --> 0:07:34.360 talks about three people who entered the country as refugees 0:07:34.400 --> 0:07:38.360 who were the subject of counter terrorism investigations. It only 0:07:38.480 --> 0:07:44.800 talks about within that three individuals January to Iraqi nationals 0:07:44.920 --> 0:07:50.200 in October, a native of Somalia. They failed to put 0:07:50.240 --> 0:07:54.920 in the nine eleven hijackers, and Saudi Arabia is not 0:07:55.120 --> 0:07:58.280 on this list, which is now different than the list 0:07:58.320 --> 0:08:02.000 that Obama had. So is there any reason for not 0:08:02.080 --> 0:08:06.080 putting Saudi Arabia on this list? Well, there's certainly no 0:08:06.160 --> 0:08:09.840 reason if the true purpose is a national security one. 0:08:10.040 --> 0:08:13.160 But um, as you know, you and others have pointed 0:08:13.160 --> 0:08:16.560 out that the national security justification here is fairly thin. 0:08:16.880 --> 0:08:20.400 The three hundred investigations that are mentioned, um, all we 0:08:20.440 --> 0:08:23.000 know about them is that they are investigations. The FBI 0:08:23.040 --> 0:08:26.400 has a number of different levels of investigation, and some 0:08:26.680 --> 0:08:30.240 are as low as uh following up on a on 0:08:30.280 --> 0:08:32.640 a hunch or a tip. So we have no way 0:08:32.679 --> 0:08:36.240 of knowing how how serious these investigations are when it 0:08:36.320 --> 0:08:39.240 comes or or frankly, how many of them were launched 0:08:39.280 --> 0:08:42.719 after the courts said there was no national security justification 0:08:42.840 --> 0:08:45.720 for this policy. Um, you know, when it comes to 0:08:45.800 --> 0:08:50.040 the examples, which were presumably the strongest examples that the 0:08:50.040 --> 0:08:52.760 administration was able to find in the weeks that it 0:08:52.840 --> 0:08:55.600 has had to put together this revised order. You know, 0:08:55.800 --> 0:08:59.400 one of those examples, as has already been noted, relates 0:08:59.440 --> 0:09:02.920 to a a Somali American who came to this country 0:09:03.280 --> 0:09:05.959 as a child, and then with the subject of an 0:09:06.000 --> 0:09:09.520 FBI sting where the FBI actually put together the plot 0:09:09.760 --> 0:09:11.320 and took the lead on the plot. It was a 0:09:11.320 --> 0:09:15.520 fake plot. Uh. The other example involves Iraqi refugees who 0:09:15.520 --> 0:09:19.319 were plotting terrorist attacks in irect, not in the United States. 0:09:19.320 --> 0:09:22.200 So if those are the most convincing examples the administration 0:09:22.240 --> 0:09:27.480 can come up with, that really undermines the pretextual national 0:09:27.520 --> 0:09:30.480 security justification. David, A big issue of the last time 0:09:30.520 --> 0:09:33.520 around was whether anybody, like a state, had had legal 0:09:33.559 --> 0:09:37.360 standing to challenge the travel band. How about with this 0:09:37.640 --> 0:09:39.760 the revised band, is anybody going to have the right 0:09:39.800 --> 0:09:41.960 to go to court to say that the president has 0:09:42.000 --> 0:09:47.280 gone too far? Well, it's true that visa applicants don't 0:09:47.679 --> 0:09:52.880 typically have constitutional rights to challenge their denials, but American 0:09:52.960 --> 0:09:57.000 citizens who are petitioning for them to come over would 0:09:57.040 --> 0:09:59.839 had standing to sue. And so in the exact s 0:10:00.040 --> 0:10:04.840 in court in Seattle that heard the case that you know, 0:10:04.880 --> 0:10:08.800 put a hold on the executive order the first time. 0:10:08.840 --> 0:10:12.560 There's another case brought by US citizens who are petitioning 0:10:12.640 --> 0:10:16.600 for their family members to come over on immigrant visas, 0:10:16.679 --> 0:10:20.720 and they would be the ones to challenge, not the 0:10:20.760 --> 0:10:25.880 immigrant visa applicants themselves, and so I do think you 0:10:25.960 --> 0:10:29.679 will get standing to sue. The question ultimately will come 0:10:29.720 --> 0:10:32.320 down to whether or not the courts are willing to 0:10:32.360 --> 0:10:35.320 side with Congress and the statute, or whether they're going 0:10:35.360 --> 0:10:40.840 to side with the President and his national security justifications. 0:10:40.880 --> 0:10:42.959 If I gave you only ten seconds, could you tell 0:10:43.000 --> 0:10:47.080 me if you agree with that, Yes, I would agree 0:10:47.120 --> 0:10:48.920 with that. I think the ten seconds that I have, 0:10:49.200 --> 0:10:52.360 I want to say that this is this discriminates against 0:10:52.679 --> 0:10:56.839 people from majority Muslim countries without any evidence of a 0:10:56.960 --> 0:10:59.080 national security harm. So I think the courts need to 0:10:59.080 --> 0:11:02.679 look at that really closely. Okay, Thanks Lizagotine of the 0:11:02.679 --> 0:11:05.160 Brennan Center and David Bier of the Cato Institutes. I'm 0:11:05.200 --> 0:11:08.439 sure we'll be talking more about Donald Trump's revised travel band, 0:11:08.640 --> 0:11:11.280 which he issued yesterday and which almost certainly will be 0:11:11.880 --> 0:11:14.559 taken on in court in the coming weeks.