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Speaker 1: The legal firestorm has only intensified over President Donald Trump's

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Speaker 1: temporary travel band for people from seven Muslim majority nations.

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Speaker 1: Late Friday, U S. District Judge James Robart in Washington

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Speaker 1: State blocked Trump's executive order nationwide. That order cleared the

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Speaker 1: way for the arrival into the US of people who

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Speaker 1: had been barred from entering since the travel ban took

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Speaker 1: effect a week earlier. It also provoked angry tweets from

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Speaker 1: the President, who referred to Robart as a quote so

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Speaker 1: called judge, as well as this more measured response from

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Speaker 1: Vice President Mike Pence on Fox News Sunday. We don't

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Speaker 1: appoint judges to our district courts to conduct foreign policy

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Speaker 1: or to make decisions about our national security. Under statutory

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Speaker 1: law and under the Constitution, that authority belongs to the

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Speaker 1: President of the United States. The administration is now asking

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Speaker 1: a federal appeals court to reinstate the travel ban, and

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Speaker 1: should they lose, both sides are poised to turn to

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Speaker 1: the U. S. Supreme Court, and what looms as the

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Speaker 1: Trump Administration's first showdown there with us to talk about

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Speaker 1: the case and the issues are Leon Fresco, a partner

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Speaker 1: at Holland and Knights. He's a former Deputy Assistant Attorney

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Speaker 1: General for the Justice Department's Office of Immigration Litigation. And

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Speaker 1: James Copeland, a senior fellow and director of Legal Policy

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Speaker 1: at the Manhattan Institute. Welcome to you both. Leon. Could

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Speaker 1: you start just by getting us up to speed on

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Speaker 1: where things stand in this legal fight. We're waiting on

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Speaker 1: the Ninth Circuit Court of Appeals to do what exactly correct.

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Speaker 1: There is a good afternoon. There is a schedule that's

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Speaker 1: been laid out right now for briefing of the case,

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Speaker 1: which is that by six pm today the briefing will

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Speaker 1: be fully done in the Ninth Circuit on this motion

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Speaker 1: for an emergency motion for a stay of the District

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Speaker 1: Court's decision. What it's essentially an attempt to cancel the

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Speaker 1: District Court's decision. And then theoretically and a decision could

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Speaker 1: come out any time after six pm today Eastern time. UH.

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Speaker 1: There could be argument scheduled, the decision could be made

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Speaker 1: on the papers. A decision could be made today, it

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Speaker 1: could be made tomorrow, or it could be delayed. It's

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Speaker 1: up to the court. And at the same time, simultaneously,

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Speaker 1: the District Court is proceeding with a briefing schedule. That

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Speaker 1: is also asking for a briefing schedule by five o'clock

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Speaker 1: PM Pacific time, so eight o'clock Eastern time, for to

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Speaker 1: move from what's called the temporary restraining order that the

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Speaker 1: court issued to a larger preliminary injunction analysis, UH, to

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Speaker 1: determine whether it's going to keep this order for a

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Speaker 1: longer period while the entire merits of the case are adjudicated.

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Speaker 1: So there's briefing on both tracks, on both the District

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Speaker 1: court in Seattle still and on the Appellate Court in

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Speaker 1: UH in San Francisco. Jim, how quickly you know once

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Speaker 1: the Ninth Circuit rules, would we expect that this could

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Speaker 1: get to the Supreme Court? My guesses it could be

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Speaker 1: quite quick. Uh. And the reason is, UH, this is

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Speaker 1: is obviously going to be a very hot button issue. So, UM,

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Speaker 1: what what the Trump administration would I presumeably do immediately

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Speaker 1: were they to lose? To lose at the Ninth Circuit

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Speaker 1: is trying to get some sort of emergency action by

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Speaker 1: the Supreme Court. Now would the Supreme Court be likely

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Speaker 1: to do that? As a very different question, Um, but

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Speaker 1: but but my guess is there'd be quite a quick

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Speaker 1: move on it. I mean, these are all very sorts

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Speaker 1: of quick moves. Normally, courts take a long time to

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Speaker 1: decide things right, but when you have something like at

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Speaker 1: t r O, which is an ex party type of

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Speaker 1: of a move like this before you've had any sort

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Speaker 1: of briefing, etcetera, you know, things can move very quickly.

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Speaker 1: And with the Ninth Circuit Panel that drew this case

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Speaker 1: was trying to do was look at this and uh,

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Speaker 1: they wanted to see briefing before they made a call

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Speaker 1: one way or the other. Here, my guess is the

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Speaker 1: Supreme Court might do the same thing, but we see

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Speaker 1: very quick action eat on either side with an adverse.

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Speaker 1: If I could just make one, if I can make

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Speaker 1: one caveat to that. The only thing I will say

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Speaker 1: is typically, and obviously there's no rules that apply here.

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Speaker 1: You you could have it. You could have it exactly

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Speaker 1: as was described. You typically wouldn't want to appeal to

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Speaker 1: the Supreme Court a t r O denial or grant.

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Speaker 1: You would want to wait till the preliminary injunction itself

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Speaker 1: was granted or denied, so you'd have a little bit

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Speaker 1: more of a fulesome record. But having said that, appeal

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Speaker 1: certainly could be filed and the Supreme Court could make

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Speaker 1: a decision about whether it wanted to hear the t

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Speaker 1: r O or wait for the preliminary injunction. But but

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Speaker 1: just to be clearly and and tell me if I'm

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Speaker 1: if you don't think I have this this correct um,

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Speaker 1: what what I would anticipate is that the after the

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Speaker 1: Ninth Circuit acts today tomorrow, whenever it does, there would

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Speaker 1: be a requested the Supreme Court for an emergency action.

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Speaker 1: Not an actual certain petition that would ask ask the

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Speaker 1: Court to take up the case, but just something that

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Speaker 1: asked the Court either to uh stay the trial judge's decision,

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Speaker 1: reinstate this band, or to lift the state that the

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Speaker 1: Ninth Circuit sure no, absolutely absolutely, And then the question

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Speaker 1: would be whether you'd end up in the same four

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Speaker 1: for stalemate that you essentially saw in the Texas litigation.

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Speaker 1: And that would basically bring us back to this preliminary

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Speaker 1: injunction mode. That is where's where I anticipate I was heading.

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Speaker 1: But you know, I'm probably getting ahead of the questioning here,

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Speaker 1: so outside I tend to agree with that too. By

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Speaker 1: the way, I think I think the Supreme court would

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Speaker 1: wait silist a puliminary in junction before it would move.

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Speaker 1: Probably right, Well, Jim, let's let's get into the actual

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Speaker 1: merits of this of this case and the legal challenge

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Speaker 1: to the order. What are the constitutional arguments here against

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Speaker 1: the executive order? Sure? And and and on an emphasis.

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Speaker 1: In my opinion, this is largely an issue of first impression.

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Speaker 1: So I think anyone on either side trying to say

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Speaker 1: very very vigorously or this is a clear slam dunk,

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Speaker 1: it's probably wrong. Um. You know, they may be right,

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Speaker 1: but they're reading tea leaves. In other words, I don't

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Speaker 1: think there's a clear answer here. What what the states

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Speaker 1: here are arguing, uh, is really two parts of the

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Speaker 1: Constitution are being violated. One is the equal protection clause

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Speaker 1: of the Fourteenth Amendment, but which applies back through the

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Speaker 1: Fifth Amendment to the federal government. Uh and basically that

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Speaker 1: the order is discriminating on the basis of religion and

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Speaker 1: national origin. The second claim is the establishment cause of

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Speaker 1: the First Amendment, which says Congressman, no law respecting an

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Speaker 1: establishment of religion, and saying that because there is a

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Speaker 1: religious element here within this executive order, that that's that's

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Speaker 1: being violated. We're talking about the court fight over President

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Speaker 1: Donald Trump's travel ban, and our guests are Leon Fresco

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Speaker 1: of Holen A. Knight and James Coupling of the Manhattan Institute.

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Speaker 1: And I want to let our listeners know that we

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Speaker 1: may be cutting away because the President is scheduled to

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Speaker 1: speak in just a few minutes. He is making his

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Speaker 1: first visit to UH the US Central Command in Tampa,

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Speaker 1: Florida at mcdale Air Force Base. UH schedules. Start speaking momentarily,

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Speaker 1: Jim Copeland, let me, um, we we're talking about the

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Speaker 1: constitutional questions here a minute ago. Let me ask you

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Speaker 1: a statutory question. There are a couple of different statutes.

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Speaker 1: One from nineteen I think fifty two says that the

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Speaker 1: president has broad power to exclude any class of alien

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Speaker 1: from the country. And then there's another one a few

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Speaker 1: decades later that says the president can't discriminate on various bases,

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Speaker 1: including religion when it comes to giving out excuse me,

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Speaker 1: including national origin when it comes to giving out visas.

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Speaker 1: Can you sort of clarify how those two statutes work together. Yeah,

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Speaker 1: there there are two different statutes, and people are making

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Speaker 1: assertions about these. My best reading of it is UH.

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Speaker 1: And normally courts are inclined to read statutes so there's

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Speaker 1: not a conflict. So the section governing UH presidential authority

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Speaker 1: over admission of aliens, which is a USC section eleven

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Speaker 1: eight two UH, is in one section of of of

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Speaker 1: the code governing the immigration law. The other section governs

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Speaker 1: the granting of immigrant visas, and that was passed in

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Speaker 1: nineteen sixty five. And basically before that point, under US

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Speaker 1: law there was significant national origin discrimination in the granting

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Speaker 1: of visas, premised on specifically preferencing the European countries by

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Speaker 1: and large UH and and at that point in time

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Speaker 1: there was a shift to saying, well, no, we're not

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Speaker 1: going to preference any one country in national origin. I

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Speaker 1: think the courts are likely to read these as as

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Speaker 1: not particularly in conflict. In other words, as long as

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Speaker 1: I mean, I think if the President of the United

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Speaker 1: States were to engage in sort of a permanent restructuring

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Speaker 1: of of the visa allocation process that was in contravention

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Speaker 1: of the congressional statute, he'd have a problem. But when

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Speaker 1: it comes to that sort of temporary denial of admission

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Speaker 1: for a class of aliens, which is specifically authorized in

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Speaker 1: another section of the Code. I mean, I think the

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Speaker 1: President putting those constitutional arguments to the side, or any

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Speaker 1: sort of contracts at or due process claims. Uh, you know,

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Speaker 1: I think when it comes to us a conflict of

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Speaker 1: laws type of question between these two provisions of the Code,

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Speaker 1: the presidents on pretty strong ground. There leon one thing

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Speaker 1: the President has done that was a little unexpected, shall

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Speaker 1: we say, is when he said about the judge out

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Speaker 1: West who enjoined the order. They called him a so

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Speaker 1: called judge and attacked him and said that, you know,

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Speaker 1: he and the judiciary are going to be responsible for

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Speaker 1: anything that goes wrong. Now, how might that impact this litigation?

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Speaker 1: Very difficult if you are a line attorney who's a

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Speaker 1: career attorney at the Department of Justice, who isn't a

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Speaker 1: political appointee to go into court any time anybody is

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Speaker 1: commenting on the litigation, because every one of those comments

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Speaker 1: can be used in the litigation, and oftentimes the the

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Speaker 1: opposing party will cite those comments back to the court,

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Speaker 1: and it's it creates a very uncomfortable position for the

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Speaker 1: attorney who's just trying to argue the law based on

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Speaker 1: the statutes before them, to have this in the backdrop.

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Speaker 1: The best analogy I can come up with was the

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Speaker 1: Texas case that was challenging the President Obama's Deferred Action program,

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Speaker 1: where they're the judge was actually affirmatively reading the newspaper

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Speaker 1: and citing things that the judge could find anywhere in

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Speaker 1: the newspaper to support arguments that the judge wanted to make.

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Speaker 1: And there there was actually nobody, no one commenting from

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Speaker 1: the Justice Department or the White House on the litigation itself.

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Speaker 1: So he or if a judge was inclined to do that,

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Speaker 1: the judge would have much more, uh, much more things

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Speaker 1: to cite, uh, And so that makes it always, I think,

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Speaker 1: much more complicated for the attorneys. There is a lot

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Speaker 1: more to talk about on this issue, but unfortunately we're

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Speaker 1: gonna have to leave it there. Thank you to our

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Speaker 1: guests Leon Fresco of Holland and Knight, James Copeland of

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Speaker 1: the Manhattan Institute talking about Donald Trump's travel ban for

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Speaker 1: for people from seven mostly Muslim countries coming up on

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Speaker 1: Bloomberg Law. We've talked to Connecticut Attorney General George Jepson.

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Speaker 1: He's one of the attorney's general who is planning on

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Speaker 1: taking on the Trump administration that's coming up. This is

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Speaker 1: Bloomberg