1 00:00:01,960 --> 00:00:06,280 Speaker 1: Welcome to Bloomberg Law for this Tuesday, September. I'm Greg's 2 00:00:06,280 --> 00:00:09,400 Speaker 1: store in Washington with June Grasso in New York. The 3 00:00:09,480 --> 00:00:12,440 Speaker 1: fight over Donald Trump's travel ban is taking two important 4 00:00:12,440 --> 00:00:15,120 Speaker 1: turns this week. First, the White House released a new, 5 00:00:15,160 --> 00:00:17,840 Speaker 1: more permanent policy to supersede the temporary one that has 6 00:00:17,880 --> 00:00:20,959 Speaker 1: been partially in effect since June. Among other changes, the 7 00:00:20,960 --> 00:00:23,960 Speaker 1: new policy adds North Korea to the list of affected countries. 8 00:00:24,320 --> 00:00:26,920 Speaker 1: It also bars entry into the US by a handful 9 00:00:26,960 --> 00:00:31,120 Speaker 1: of Venezuelan government officials. Then the Supreme Court reacted by 10 00:00:31,200 --> 00:00:34,040 Speaker 1: canceling what had been a scheduled October tenth argument on 11 00:00:34,080 --> 00:00:36,800 Speaker 1: the earlier band and asking the two sides to address 12 00:00:36,840 --> 00:00:40,040 Speaker 1: whether that case is now legally moot. The upshot is 13 00:00:40,080 --> 00:00:42,559 Speaker 1: the High Court is suggesting the justices might let a 14 00:00:42,600 --> 00:00:44,760 Speaker 1: lower court take the first crack at what are certain 15 00:00:44,800 --> 00:00:48,280 Speaker 1: to be new legal challenges to the new policy. With 16 00:00:48,440 --> 00:00:51,080 Speaker 1: us to make sense of all of this is Josh Blackman. 17 00:00:51,200 --> 00:00:55,240 Speaker 1: He is a professor at South Texas College of Law. Josh, 18 00:00:55,280 --> 00:00:58,520 Speaker 1: thanks for joining us UM. The first two versions of 19 00:00:58,560 --> 00:01:01,400 Speaker 1: Trump's travel band ran into some problems in the courts. 20 00:01:01,840 --> 00:01:06,200 Speaker 1: To what extent does this revise policy give the administration 21 00:01:06,480 --> 00:01:10,319 Speaker 1: a stronger legal defense. Well, thanks for having me back. 22 00:01:10,880 --> 00:01:14,200 Speaker 1: I've often described the first executive order as if we're 23 00:01:14,280 --> 00:01:17,120 Speaker 1: drafted on a cocktail napkin. The second one was a 24 00:01:17,160 --> 00:01:19,760 Speaker 1: little bit better. This third one looks like an actual 25 00:01:19,800 --> 00:01:23,280 Speaker 1: government policy. Over the past three months, the U. S 26 00:01:23,319 --> 00:01:26,679 Speaker 1: Government has coordinated with over two nations around the world 27 00:01:27,160 --> 00:01:30,440 Speaker 1: to determine what sort of identity management processes they have 28 00:01:30,520 --> 00:01:34,600 Speaker 1: in place, and specifically, can they verify who is coming 29 00:01:34,640 --> 00:01:37,440 Speaker 1: to our country and are they who they say they are? Um. 30 00:01:37,480 --> 00:01:39,640 Speaker 1: The good news is for Sudan, they were in the 31 00:01:39,680 --> 00:01:42,319 Speaker 1: travel band and they came off because they've proved the 32 00:01:42,400 --> 00:01:45,480 Speaker 1: satisfaction of the government that they can manage their their 33 00:01:45,520 --> 00:01:48,400 Speaker 1: their aliens. UM. And the bad news is other countries 34 00:01:48,440 --> 00:01:52,840 Speaker 1: were added, Chad, North Korea, and Venezuela, at least some Venezuelans, 35 00:01:53,640 --> 00:01:56,200 Speaker 1: and that's because the government could not determine that these 36 00:01:56,240 --> 00:01:59,640 Speaker 1: people were coming here on legitimate papers. UM. Does this 37 00:02:00,000 --> 00:02:02,760 Speaker 1: stand it better chance of court? Absolutely? I think the 38 00:02:02,800 --> 00:02:05,400 Speaker 1: government is in a pretty good space right now, and 39 00:02:05,720 --> 00:02:08,040 Speaker 1: if the court does ever reach this question, I think 40 00:02:08,080 --> 00:02:11,320 Speaker 1: the government will prevail. Josh, does it matter that this 41 00:02:11,400 --> 00:02:14,160 Speaker 1: doesn't seem to be an effective way to reduce the 42 00:02:14,280 --> 00:02:17,720 Speaker 1: risk of terrorism. There's a CATO Institute studies showed that 43 00:02:17,760 --> 00:02:21,320 Speaker 1: there were zero terrorists murders over the last four decades 44 00:02:21,400 --> 00:02:25,720 Speaker 1: committed by nationals of the eight targeted countries. Well, I'm 45 00:02:25,760 --> 00:02:28,040 Speaker 1: also an adjunct scholar at CATO, and I agree with 46 00:02:28,080 --> 00:02:31,320 Speaker 1: that study emphatically. But the government's purpose here is not 47 00:02:31,440 --> 00:02:34,360 Speaker 1: just to stop terrorism or to perhaps say which countries 48 00:02:34,400 --> 00:02:38,280 Speaker 1: have exported terrorism. The government's purpose here is to say 49 00:02:38,360 --> 00:02:41,440 Speaker 1: are people who they say they are? And in terms 50 00:02:41,520 --> 00:02:44,440 Speaker 1: of that, there's very little to argue with the fact 51 00:02:44,520 --> 00:02:46,840 Speaker 1: that the countries that issue do not have good diplomatic 52 00:02:46,880 --> 00:02:49,720 Speaker 1: relations with the United States, they don't have good bureaucracies, 53 00:02:49,720 --> 00:02:52,760 Speaker 1: they don't have good passport registration systems, and there's a 54 00:02:52,760 --> 00:02:55,359 Speaker 1: good reason to think that passports in these countries may 55 00:02:55,360 --> 00:02:58,440 Speaker 1: not be authentic and they may not be an accurate 56 00:02:58,480 --> 00:03:02,480 Speaker 1: assessment for person's identity. Josh. One of the arguments against 57 00:03:02,520 --> 00:03:07,920 Speaker 1: the policy has been that it allegedly targets Muslims. The president, 58 00:03:07,960 --> 00:03:10,720 Speaker 1: of course, when he was candidate, Trump called for a 59 00:03:10,720 --> 00:03:14,920 Speaker 1: ban on Muslims entering the US. That has has since evolved. 60 00:03:15,520 --> 00:03:18,200 Speaker 1: My question is, so you know South Korea actually be 61 00:03:18,240 --> 00:03:21,600 Speaker 1: North Korea has added to this to this policy and 62 00:03:21,760 --> 00:03:26,359 Speaker 1: a few people from Venezuela, both non Muslim countries. Um. 63 00:03:26,440 --> 00:03:29,440 Speaker 1: Does that do anything to to help the the administration 64 00:03:29,440 --> 00:03:32,800 Speaker 1: in that regard or are are they that just basically 65 00:03:32,800 --> 00:03:36,160 Speaker 1: a fig leaf to give it something the point to? Uh? 66 00:03:36,600 --> 00:03:40,000 Speaker 1: In defense of that that argument, well, I've never been 67 00:03:40,040 --> 00:03:42,160 Speaker 1: persuaded that this was actually a Muslim ban. I think 68 00:03:42,160 --> 00:03:45,360 Speaker 1: there was always a legitimate justification, a justification that I 69 00:03:45,400 --> 00:03:48,080 Speaker 1: don't agree with this matter of policy. But the executive 70 00:03:48,120 --> 00:03:50,320 Speaker 1: does have the progative to design entry to those he 71 00:03:50,440 --> 00:03:53,960 Speaker 1: teams detrimental to American interests. But the bigger question is 72 00:03:54,440 --> 00:03:56,840 Speaker 1: this is not a slap dash policy drafted on a 73 00:03:56,880 --> 00:04:00,480 Speaker 1: cocktail napkin a right. This was something done after months review, 74 00:04:00,640 --> 00:04:04,280 Speaker 1: with coordination with governments around the world. Um. And it's 75 00:04:04,360 --> 00:04:06,840 Speaker 1: very hard to look at this very sophisticated twenty page 76 00:04:06,840 --> 00:04:09,240 Speaker 1: policy say oh, this is just a ruse right to 77 00:04:09,320 --> 00:04:11,080 Speaker 1: try to pull the wool over eyes and this is 78 00:04:11,120 --> 00:04:14,840 Speaker 1: just a secret Muslim ban. Um. This looks, feels, and 79 00:04:14,920 --> 00:04:17,559 Speaker 1: reads like an effort by the government to assess who's 80 00:04:17,600 --> 00:04:20,039 Speaker 1: coming to the country and to exclude those who can't 81 00:04:20,040 --> 00:04:23,080 Speaker 1: be verified. Um, the argument that this is a pretext 82 00:04:23,160 --> 00:04:27,839 Speaker 1: for religious based discrimination or Islamophobia, I think is not 83 00:04:27,920 --> 00:04:31,599 Speaker 1: credible at this point. Josh, explain what's happening at the 84 00:04:31,640 --> 00:04:38,800 Speaker 1: Supreme Court at the different levels. I wish I knew yesterday. Oh, 85 00:04:38,920 --> 00:04:41,480 Speaker 1: I know, I know. Yesterday at the Supreme Court, the 86 00:04:41,640 --> 00:04:44,440 Speaker 1: justices issued in order and the first thing they did 87 00:04:44,520 --> 00:04:47,000 Speaker 1: was they took the case off the calendar. It was 88 00:04:47,040 --> 00:04:50,760 Speaker 1: supposed to be argued on October tenth, basically meant two weeks, 89 00:04:50,839 --> 00:04:53,680 Speaker 1: so it's off for now. They also asked the parties 90 00:04:53,760 --> 00:04:56,840 Speaker 1: to submit additional briefs on the question of does this 91 00:04:56,920 --> 00:04:59,440 Speaker 1: case even have America anymore? Should we just dismiss it 92 00:04:59,480 --> 00:05:03,200 Speaker 1: because the policy has gone? Don't forget the issue before 93 00:05:03,240 --> 00:05:07,680 Speaker 1: the court was was Executive Order number two constitutional? But 94 00:05:07,760 --> 00:05:10,600 Speaker 1: now we're on version three point Oh, and it's entirely 95 00:05:10,640 --> 00:05:13,600 Speaker 1: possible that Justice has just dismissed the casing. Go back 96 00:05:13,600 --> 00:05:15,760 Speaker 1: to the lower courts. Don't bother us with this until 97 00:05:15,839 --> 00:05:18,400 Speaker 1: you have a full record developed on this third order, 98 00:05:19,080 --> 00:05:21,920 Speaker 1: or it's possible, and I think there's a decent chance 99 00:05:22,040 --> 00:05:24,480 Speaker 1: the Court keeps it and says that the second order 100 00:05:24,520 --> 00:05:26,920 Speaker 1: perhaps is similar enough to the third order, and we'll 101 00:05:26,920 --> 00:05:30,560 Speaker 1: go ahead and uh and review it. Well, in terms 102 00:05:30,560 --> 00:05:33,560 Speaker 1: of the specific legal question the court asked, they asked 103 00:05:33,800 --> 00:05:39,360 Speaker 1: whether this case is moot? So they the version to 104 00:05:40,000 --> 00:05:45,880 Speaker 1: executive order, Um, it extends until um the middle of 105 00:05:45,920 --> 00:05:49,640 Speaker 1: October in some regards. And then, as I understand it 106 00:05:49,680 --> 00:05:53,279 Speaker 1: and correct if I'm wrong, this new policy three point oh, 107 00:05:53,320 --> 00:05:55,760 Speaker 1: as you've put it, essentially takes over for all the 108 00:05:55,760 --> 00:06:01,000 Speaker 1: effective affected countries. What's the argument then that the version 109 00:06:01,040 --> 00:06:06,160 Speaker 1: to policy might still be something worth fighting about in court. Well, 110 00:06:06,400 --> 00:06:10,600 Speaker 1: the underlying issue, and with the Silu and Hawaii have alleged, 111 00:06:11,440 --> 00:06:14,400 Speaker 1: is that the president's animus has painted or infected this 112 00:06:14,480 --> 00:06:17,920 Speaker 1: policy and all future iterations of the policy. So it's 113 00:06:17,960 --> 00:06:20,480 Speaker 1: conceivable the court says, even though you slapped a new 114 00:06:20,560 --> 00:06:22,800 Speaker 1: name and label on it two point oh, three point oh, 115 00:06:22,800 --> 00:06:25,599 Speaker 1: it doesn't matter, it's still islamophobia. Right, So the court 116 00:06:25,640 --> 00:06:29,039 Speaker 1: could say, we'll still resolve this issue. Um. Alternately, the 117 00:06:29,040 --> 00:06:31,680 Speaker 1: court could simply say the lower courts screwed up. We're 118 00:06:31,680 --> 00:06:34,240 Speaker 1: going to get rid of those opinions and start from scratch, 119 00:06:34,320 --> 00:06:36,360 Speaker 1: which I think is the most likely outcome at this point. 120 00:06:39,200 --> 00:06:41,760 Speaker 1: Let's let's just if we could let's game this out 121 00:06:41,760 --> 00:06:44,599 Speaker 1: a little bit um, putting aside the legal question of 122 00:06:44,600 --> 00:06:48,799 Speaker 1: whether it's it's moot um who should want the Supreme 123 00:06:48,839 --> 00:06:53,640 Speaker 1: Court to keep this case. The administration has seemed to 124 00:06:53,680 --> 00:06:58,120 Speaker 1: take an approach where they are kind of half hearted 125 00:06:58,160 --> 00:07:01,480 Speaker 1: about whether they actually want the super court to decide 126 00:07:01,480 --> 00:07:04,840 Speaker 1: the merits of this case. Would you anticipate they would 127 00:07:04,880 --> 00:07:08,479 Speaker 1: want the court hanging onto this or would they rather have, 128 00:07:08,800 --> 00:07:12,880 Speaker 1: as you were discussing, a federal district court take the 129 00:07:12,920 --> 00:07:16,800 Speaker 1: first crack at this this newest policy. You know, I'm 130 00:07:16,840 --> 00:07:19,840 Speaker 1: of two minds of that question. On the one hand, 131 00:07:19,880 --> 00:07:22,120 Speaker 1: it's always risky for the Supreme Court to rule and 132 00:07:22,200 --> 00:07:25,560 Speaker 1: executive power unlike a lower court. When Supreme Court makes 133 00:07:25,560 --> 00:07:29,320 Speaker 1: a decision, it has wide ranching effects, So the the 134 00:07:29,400 --> 00:07:32,200 Speaker 1: US government may be hesitant to let the justices rule 135 00:07:32,200 --> 00:07:34,840 Speaker 1: in this matter. But on the flip side, the lower 136 00:07:34,880 --> 00:07:38,040 Speaker 1: courts have been utterly hostile to President Trump at every juncture. 137 00:07:38,560 --> 00:07:40,880 Speaker 1: The only court that's given Trump affair shake has been 138 00:07:40,880 --> 00:07:43,720 Speaker 1: the Supreme Court. In fact, on three occasions, the Supreme 139 00:07:43,760 --> 00:07:45,760 Speaker 1: Court is pushed back on the Ninth Circuit, sing, you 140 00:07:45,760 --> 00:07:48,520 Speaker 1: guys went too far, So there might be a Kernel 141 00:07:48,560 --> 00:07:51,160 Speaker 1: of Truth, saying, let's let the Supreme Court give us 142 00:07:51,160 --> 00:07:53,600 Speaker 1: a ruling on the merits. But I don't think it 143 00:07:53,640 --> 00:07:56,080 Speaker 1: matters what the government wants. If the Justices want to 144 00:07:56,120 --> 00:07:57,880 Speaker 1: dump this case, they dump it. If they want to 145 00:07:57,960 --> 00:08:00,480 Speaker 1: keep it, they keep it. At this point, what the 146 00:08:00,480 --> 00:08:02,840 Speaker 1: government has done is put themselves in the best position 147 00:08:02,880 --> 00:08:06,120 Speaker 1: to win, either here or in the lower courts. I 148 00:08:06,120 --> 00:08:08,600 Speaker 1: want to thank our guests, Josh Blackman, and professor at 149 00:08:08,600 --> 00:08:11,800 Speaker 1: South Texas College of Law, talking about the latest developments 150 00:08:11,880 --> 00:08:15,200 Speaker 1: on the Trump travel band, including the Supreme Court's decision 151 00:08:15,280 --> 00:08:17,920 Speaker 1: to cancel the argument that had been scheduled for October 152 00:08:18,200 --> 00:08:18,240 Speaker 1: t