WEBVTT - Second Immigration Order Blocked in Courts (Audio)

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<v Speaker 1>You're listening to Bloomberg Law. I'm Greg Store in our

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<v Speaker 1>studios here in Washington, along with Michael Best in New York.

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<v Speaker 1>Donald Trump's new travel band isn't fearing any better in

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<v Speaker 1>court than his first one did. Late yesterday, a federal

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<v Speaker 1>judge in Hawaii halted Trump's latest effort to block people

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<v Speaker 1>from a handful of largely Muslim countries from entering the US.

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<v Speaker 1>Judge Derrick Watson said the policy was driven by religious animus,

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<v Speaker 1>likely violating the Constitution, even though Trump had moved away

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<v Speaker 1>from the explicit ban on Muslims that he proposed during

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<v Speaker 1>the presidential campaign. At his re election rally and Nashville yesterday,

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<v Speaker 1>Trump was defiant. You don't think this was done by

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<v Speaker 1>a judge for political reasons? Do you know? This ruling

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<v Speaker 1>makes us look weak, which, by the way, we no

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<v Speaker 1>longer are. Believe me, just look at our borders. Adding

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<v Speaker 1>to the administration's problems, a judge in Maryland separately issued

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<v Speaker 1>an order blocking a Porsche and of the travel band.

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<v Speaker 1>With us to discuss these new developments are Hans von Spakovski,

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<v Speaker 1>a senior legal fellow at the Heritage Foundation, and David Beer,

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<v Speaker 1>an immigration policy analyst at the Cato Institute. Welcome to

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<v Speaker 1>you both, Hans. You've defended this policy and by its terms,

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<v Speaker 1>it talks about countries, not religion. But Judge Watson pointed

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<v Speaker 1>to a long list of comments from Trump and some

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<v Speaker 1>of his aids and advisers that that suggested the goal

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<v Speaker 1>was the same as it was when Trump was explicitly

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<v Speaker 1>calling for a religious test. So was Judge Watson wrong? Yeah,

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<v Speaker 1>I think he was. Look, you can you can have

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<v Speaker 1>a debate, uh, And I'm sure I could have a

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<v Speaker 1>debate with the CATO in suit about whether this is

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<v Speaker 1>a good policy or necessary policy, But that is not

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<v Speaker 1>the issue, or shouldn't be the issue in this case.

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<v Speaker 1>The issue should be as the President acted within the

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<v Speaker 1>authority delegated to him by by Congress. And I found

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<v Speaker 1>it simply amazing that you can read through the entire

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<v Speaker 1>forty three page opinion issued by the judge in Hawaii

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<v Speaker 1>and there is no discussion about the legality or constitutionality

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<v Speaker 1>of the federal immigration provision on which the order was

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<v Speaker 1>explicitly based. This is a a section UM eleven eight two

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<v Speaker 1>f of the US Code um UH that gives the

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<v Speaker 1>President of power to suspend the entry of any aliens

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<v Speaker 1>or class of entry, class of alien if he believes

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<v Speaker 1>it will be detrimental to the interests of the United States.

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<v Speaker 1>There's no discussion of that provision anywhere in the order,

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<v Speaker 1>and that's what the judge should have done and didn't

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<v Speaker 1>do well. David, you know, to follow up on that point.

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<v Speaker 1>It seems as though the judge, at least in Hawaii,

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<v Speaker 1>felt that the UH there was a constitutional problem with

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<v Speaker 1>the order, notwithstanding any congressional delegation of power here. So

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<v Speaker 1>you've got a broad delegation of power from Congress. I

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<v Speaker 1>don't think anyone disputes that. In the president UH supporters

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<v Speaker 1>in the in the White House depend on that as

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<v Speaker 1>their argument. But if there's a if the judge is

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<v Speaker 1>right that there is an animus here, is there a

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<v Speaker 1>constitutional limit on what the president can do as regards immigration?

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<v Speaker 1>There are, um, there were several noted in the Ninth

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<v Speaker 1>Circuit Court decision that originally barred the first Order. UM.

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<v Speaker 1>But I would say that I think hanss is correct.

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<v Speaker 1>I agree that the court should have focused on the

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<v Speaker 1>statutory question here. I would just disagree with the assessment

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<v Speaker 1>that the president has the power that he's asserting UM.

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<v Speaker 1>Section two oh two of the Immigration and Nationality Acts

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<v Speaker 1>specifically bar the President UM or any executive official from

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<v Speaker 1>discriminating against immigrants based on nationality. And this provision was

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<v Speaker 1>instituted in nineteen It came after these earlier provisions that

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<v Speaker 1>Hans discussed talking about the president's power to bar entry UM.

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<v Speaker 1>So this section two o two that was enacted in

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<v Speaker 1>nineteen sixty five would be seen as limiting this earlier

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<v Speaker 1>provision of law UM and it and it goes even

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<v Speaker 1>beyond that. When Congress amended these these immigration laws in ninet,

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<v Speaker 1>it not only enacted this blanket prohibition on discrimination, but

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<v Speaker 1>it also enacted a statutory scheme intended to produce unbiased

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<v Speaker 1>immigration between countries. Before we had the Chinese Exclusion Act,

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<v Speaker 1>we had the Asiatic bar Zone, and Congress in Nineve

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<v Speaker 1>was saying, no, we're not going to do that anymore.

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<v Speaker 1>We're gonna have uh immigrant visas issued equally between the nations,

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<v Speaker 1>and uh, really, what Trump is trying to do is

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<v Speaker 1>overturn that system. Hans. Other thing Judge Watson talked about

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<v Speaker 1>what he said that the connection between this policy and

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<v Speaker 1>any actual acts of terrorism was pretty weak, and the

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<v Speaker 1>policy itself mentioned a couple of past incidents, but one

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<v Speaker 1>had to do with Iraqis who are not covered by

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<v Speaker 1>this policy, and the other had to do with a

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<v Speaker 1>Somali who came here as a child. So even if

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<v Speaker 1>we sort of grant that the president has very broad

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<v Speaker 1>authority over national security, how does this even pass sort

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<v Speaker 1>of the Laft test? Well, the the executive orders gave

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<v Speaker 1>a couple of examples, it couldn't list the I think

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<v Speaker 1>more than sixty examples of individuals convicted for terrorism related

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<v Speaker 1>activities from these originally seven countries UH from a Senate

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<v Speaker 1>um Um Committee report from from last year. But the

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<v Speaker 1>other point that they just kind of gloss over is

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<v Speaker 1>the fact that, look, three of these countries are considered

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<v Speaker 1>by the U. S. State Department to be state sponsors

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<v Speaker 1>of terrorism. And as the government said very uh explicitly

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<v Speaker 1>in his brief UM, that makes vetting very difficult for

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<v Speaker 1>people coming from those countries because you can't trust the

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<v Speaker 1>information being given to you by the government. Three of

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<v Speaker 1>the other nations in this UH, in this designated list

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<v Speaker 1>are countries of concern as designated by the prior administration

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<v Speaker 1>who also have big terrorist ties or failing governments, which

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<v Speaker 1>makes it extremely difficult to vet people coming from those countries.

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<v Speaker 1>All of those things taken together, give a solid basis

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<v Speaker 1>for what the President did. And by the way, just

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<v Speaker 1>very quickly, UM, I have to mention that the Supreme

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<v Speaker 1>Court has since that provision that David was talking about,

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<v Speaker 1>has in more than one case for upheld the ability

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<v Speaker 1>of the president again to to suspend the entry of aliens.

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<v Speaker 1>You may recall in nine George H. W. Bush issues

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<v Speaker 1>an executive order barring refugees from Haiti from coming into

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<v Speaker 1>the country. Bill Clinton continued that bad and it was

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<v Speaker 1>upheld by the U. S. Supreme Court in a case

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<v Speaker 1>in David we have about thirty seconds. But um, is

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<v Speaker 1>it appropriate for the courts to be looking at whether

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<v Speaker 1>or not there are security incidents from these countries when

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<v Speaker 1>it considers these questions. I think it's appropriate to look

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<v Speaker 1>at whether or not he's using a pretext to discriminate. UM.

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<v Speaker 1>I would just note on the Supreme Court case, it

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<v Speaker 1>was really not addressed to people who were eligible for

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<v Speaker 1>immigrant visas, who are being petitioned by US citizens, who

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<v Speaker 1>have rights in the United States to our access to

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<v Speaker 1>our immigration system, and what President Trump is doing is

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<v Speaker 1>really not analogous to what these other presidents have done

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<v Speaker 1>in the past. He's enacting a blanket ban on immigration

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<v Speaker 1>from these countries and that's really not in accord with

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<v Speaker 1>the statutes or with the laws. And you know, I

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<v Speaker 1>would really think that the courts will uphold, uh, you know,

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<v Speaker 1>this per vision. David, We're gonna have to leave it there.

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<v Speaker 1>I want to thank David Beer, the Cato Institute, Hanson

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<v Speaker 1>von Spakovsky of the the Heritage Foundation, and uh, coming up.

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<v Speaker 1>That's it for this edition of Bloomberg Law. We'll be

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<v Speaker 1>back tomorrow and coming up on Bloomberg Radio Bloomberg Markets

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<v Speaker 1>with Carol Masser and Corey Johnson. Stay tuned for that

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<v Speaker 1>and more here on Bloomberg Radio. This is Bloomberg