1 00:00:00,080 --> 00:00:03,080 Speaker 1: Yesterday, a panel of judges from the Federal Appeals Court 2 00:00:03,120 --> 00:00:06,440 Speaker 1: for the Ninth Circuit heard arguments about President Trump's travel ban. 3 00:00:07,000 --> 00:00:10,280 Speaker 1: The president issued an executive order temporarily prohibiting entry into 4 00:00:10,320 --> 00:00:13,480 Speaker 1: the United States of citizens of seven predominantly Muslim countries 5 00:00:13,520 --> 00:00:16,560 Speaker 1: and of refugees, and a federal judge in Seattle issued 6 00:00:16,560 --> 00:00:19,640 Speaker 1: a nationwide restraining order that blocks enforcement of the order. 7 00:00:20,079 --> 00:00:22,800 Speaker 1: The Justice Department appealed that restraining order, and the court 8 00:00:22,880 --> 00:00:26,240 Speaker 1: held an unusual argument by conference call. The government's lawyer, 9 00:00:26,360 --> 00:00:29,360 Speaker 1: August Flenchy, seemed to run into some skepticism from the 10 00:00:29,400 --> 00:00:32,800 Speaker 1: judges about whether there was sufficient evidence to immediately reinstate 11 00:00:32,840 --> 00:00:38,680 Speaker 1: the ban. How many federal offenses have if we had 12 00:00:39,640 --> 00:00:43,120 Speaker 1: being committed by people who came in with visas from 13 00:00:43,159 --> 00:00:48,239 Speaker 1: these countries, and the ultimate was the answer was, there 14 00:00:48,240 --> 00:00:52,440 Speaker 1: haven't been any. These proceedings have been moving quite fast, 15 00:00:52,520 --> 00:00:56,240 Speaker 1: and we're doing the best we can. Nevertheless, the case 16 00:00:56,320 --> 00:00:59,680 Speaker 1: raises important and difficult questions of executive power and equal 17 00:00:59,680 --> 00:01:02,360 Speaker 1: protest action, among other issues, and it is far from 18 00:01:02,360 --> 00:01:04,200 Speaker 1: a short thing that the Court will keep the restraining 19 00:01:04,280 --> 00:01:06,880 Speaker 1: order in effect. With us to talk about this case 20 00:01:06,959 --> 00:01:09,959 Speaker 1: and the executive order are Elias Shapiro, a Senior fellow 21 00:01:09,959 --> 00:01:13,520 Speaker 1: at the Cato Institute, and Lizagatine, a co director of 22 00:01:13,560 --> 00:01:16,360 Speaker 1: the Liberty and National Security Program at the Brennan Center 23 00:01:16,480 --> 00:01:21,800 Speaker 1: for Justice Ilia. Usually when we talk about, um, you know, 24 00:01:21,880 --> 00:01:24,440 Speaker 1: court cases, we we like to talk about the substance 25 00:01:24,440 --> 00:01:27,240 Speaker 1: of what is at issue, you know, is this legal? 26 00:01:27,319 --> 00:01:29,720 Speaker 1: Is this not legal? What's the court likely to say 27 00:01:29,720 --> 00:01:32,360 Speaker 1: the law is? And obviously that's part of this here. 28 00:01:32,440 --> 00:01:34,839 Speaker 1: But we're sort of in a strange procedural posture because 29 00:01:34,880 --> 00:01:37,360 Speaker 1: we have a temporary restraining order in the courts deciding 30 00:01:37,360 --> 00:01:40,759 Speaker 1: whether or not to stay that order. What exactly does 31 00:01:40,760 --> 00:01:46,559 Speaker 1: the court actually have to decide right now? Well, you 32 00:01:46,560 --> 00:01:48,800 Speaker 1: you put your figure on it. Because t r o 33 00:01:48,960 --> 00:01:52,240 Speaker 1: s typically are not appealed or appealable for that matter. 34 00:01:53,040 --> 00:01:55,279 Speaker 1: It's only in place for ten days. The clock is ticking. 35 00:01:55,440 --> 00:01:59,440 Speaker 1: It's going to expire regardless in a few days anyway. Uh. 36 00:01:59,480 --> 00:02:02,280 Speaker 1: And so the court, the Ninth Circuit could just say, yeah, 37 00:02:02,400 --> 00:02:06,480 Speaker 1: we're we're punting this until there's a a fuller treatment 38 00:02:06,520 --> 00:02:09,720 Speaker 1: by the district court with presumably a preliminary injunction and 39 00:02:09,760 --> 00:02:11,760 Speaker 1: a length of your opinion put in. At that point, 40 00:02:11,919 --> 00:02:13,880 Speaker 1: but then you also have to consider that the executive 41 00:02:13,960 --> 00:02:17,240 Speaker 1: order itself is only good for nine d days, and 42 00:02:17,320 --> 00:02:19,640 Speaker 1: it seems to be a moving target, kind of changing 43 00:02:19,919 --> 00:02:23,120 Speaker 1: weeklier or daily or by the tweet as have you. Uh, 44 00:02:23,160 --> 00:02:25,720 Speaker 1: And so the Ninth Circuit really could go a lot 45 00:02:25,760 --> 00:02:28,240 Speaker 1: of different ways. There's also an issue of standing, another 46 00:02:28,320 --> 00:02:31,360 Speaker 1: kind of procedural hurdle, so we uh, it's not certain 47 00:02:31,400 --> 00:02:33,800 Speaker 1: at all that will have any sort of ruling on 48 00:02:33,840 --> 00:02:38,680 Speaker 1: the merits at this stage. Liza was the administration challenging 49 00:02:38,760 --> 00:02:41,679 Speaker 1: the court's power to make a judgment about Trump's ban. 50 00:02:42,240 --> 00:02:45,600 Speaker 1: Judge Michelle Friedland said, are you arguing then that the 51 00:02:45,639 --> 00:02:49,640 Speaker 1: president's decision in that regard is unreviewable to the Justice 52 00:02:49,639 --> 00:02:54,120 Speaker 1: Department lawyer? And the Justice Department lawyer said, yes, right, 53 00:02:54,200 --> 00:02:56,799 Speaker 1: And what he was talking about specifically was whether or 54 00:02:56,880 --> 00:03:00,000 Speaker 1: not the court could review the judgment of the press 55 00:03:00,000 --> 00:03:03,760 Speaker 1: event with respect to the national security issues that are 56 00:03:03,800 --> 00:03:06,400 Speaker 1: at State Care. And so the president's judgment that as 57 00:03:06,400 --> 00:03:10,600 Speaker 1: a matter of national security, it's necessary to hold integration 58 00:03:10,680 --> 00:03:13,200 Speaker 1: from these countries, which, by the way, we have not, 59 00:03:13,280 --> 00:03:16,080 Speaker 1: in fact had terrorist incidents in this country from people 60 00:03:16,120 --> 00:03:19,280 Speaker 1: from the country. But if that's his judgment, the government 61 00:03:19,400 --> 00:03:22,440 Speaker 1: lawyer was saying that that that judgment could not be reviewed. 62 00:03:22,800 --> 00:03:25,880 Speaker 1: That is more or less the same thing as saying 63 00:03:25,919 --> 00:03:30,480 Speaker 1: that the case cannot be reviewed because, um, the argument 64 00:03:30,720 --> 00:03:33,400 Speaker 1: of the State of Washington is, this was not about 65 00:03:33,560 --> 00:03:39,400 Speaker 1: national security. This is about discriminatory animus and discrimination against Muslims. 66 00:03:39,440 --> 00:03:41,440 Speaker 1: And if the court has to accept that this is 67 00:03:41,480 --> 00:03:45,360 Speaker 1: about national security, UM, that would pretty much end the matter. 68 00:03:45,400 --> 00:03:47,200 Speaker 1: But I don't think that the judges were buying that, 69 00:03:48,280 --> 00:03:51,840 Speaker 1: Eliot do the do The court's comments me seemed to 70 00:03:51,880 --> 00:03:53,880 Speaker 1: indicate that at least some of the judges on this 71 00:03:53,960 --> 00:03:57,680 Speaker 1: panel feel that the um, they should be looking at 72 00:03:57,680 --> 00:03:59,920 Speaker 1: the underlying rationale for the order, and we have about 73 00:03:59,920 --> 00:04:02,520 Speaker 1: the thirty seconds for that. Yeah, I mean, that's that's 74 00:04:02,520 --> 00:04:05,360 Speaker 1: probably what's going on in the background atmospherically. But I 75 00:04:05,400 --> 00:04:07,760 Speaker 1: can't imagine an opinion that I would expect to come 76 00:04:07,760 --> 00:04:10,800 Speaker 1: out imminently, certainly by the end of the week, that 77 00:04:10,840 --> 00:04:13,320 Speaker 1: they're going to have a full long discussion of national 78 00:04:13,360 --> 00:04:16,919 Speaker 1: security versuscrimination and the statutory context, because at the end 79 00:04:16,960 --> 00:04:19,279 Speaker 1: of the day, I think this is just like the 80 00:04:19,400 --> 00:04:23,440 Speaker 1: United States versus Texas DAPPA litigation is going to turn 81 00:04:23,560 --> 00:04:28,520 Speaker 1: on statutory questions of immigration law not necessarily constitutional one um. 82 00:04:28,560 --> 00:04:30,040 Speaker 1: But that's I think what's in the background, and I 83 00:04:30,080 --> 00:04:32,000 Speaker 1: would expect more likely than not that the state to 84 00:04:32,080 --> 00:04:34,880 Speaker 1: be denied. It'll go back to the lower court for 85 00:04:34,880 --> 00:04:38,080 Speaker 1: for further proceedings. The Ninth Circuit Court of Appeals is 86 00:04:38,080 --> 00:04:42,120 Speaker 1: considering whether to reinstate President Trump's executive order temporarily banning 87 00:04:42,160 --> 00:04:46,320 Speaker 1: refugees and citizens of seven predominantly Muslim countries from entering 88 00:04:46,320 --> 00:04:48,640 Speaker 1: the US. The government has asked the court to lift 89 00:04:48,640 --> 00:04:50,920 Speaker 1: a restraining order imposed by a lower court judge that 90 00:04:50,960 --> 00:04:54,240 Speaker 1: prevents enforcement of the order nationwide, and the Appeals Court 91 00:04:54,279 --> 00:04:56,680 Speaker 1: could rule anytime this week, although of course no one 92 00:04:56,680 --> 00:04:59,000 Speaker 1: knows what's going to happen. We're talking about the executive 93 00:04:59,080 --> 00:05:01,000 Speaker 1: order and the court case with Liza Gautin, the co 94 00:05:01,120 --> 00:05:03,640 Speaker 1: director of the Liberty and National Security Program at the 95 00:05:03,640 --> 00:05:07,880 Speaker 1: Brennan Center for Justice. Liza, you've got a preliminary injunction 96 00:05:07,880 --> 00:05:10,240 Speaker 1: motion pending in the district court while this is going on. 97 00:05:10,440 --> 00:05:12,799 Speaker 1: Because there is considering the next motion at the district 98 00:05:12,839 --> 00:05:15,120 Speaker 1: court level. You have the possibility of a Supreme Court 99 00:05:15,120 --> 00:05:17,880 Speaker 1: appeal depending on what happens here. Let's say the court 100 00:05:18,080 --> 00:05:20,479 Speaker 1: the Ninth Circuit keeps the restraining order in effect. What 101 00:05:20,600 --> 00:05:25,520 Speaker 1: happens next at that point, we're going to see briefing 102 00:05:25,600 --> 00:05:29,000 Speaker 1: an argument on the motion for a preliminary injunction in 103 00:05:29,120 --> 00:05:33,040 Speaker 1: front of the district court, and I think that's where 104 00:05:33,320 --> 00:05:36,080 Speaker 1: we're going to see the government trying to scrounge together 105 00:05:36,160 --> 00:05:39,000 Speaker 1: some evidence, um, to support the notion that this is 106 00:05:39,040 --> 00:05:42,320 Speaker 1: a national security imperative, this executive order. What we saw 107 00:05:42,360 --> 00:05:46,160 Speaker 1: in the Ninth Circuit argument with some pretty probing questioning 108 00:05:46,360 --> 00:05:49,160 Speaker 1: by the judges of the government attorney saying, you know, 109 00:05:49,200 --> 00:05:52,040 Speaker 1: what is your evidence essentially that there's a national security 110 00:05:52,680 --> 00:05:56,240 Speaker 1: harm at stake here? And the attorney essentially said things 111 00:05:56,240 --> 00:05:58,320 Speaker 1: are moving very fast, so we haven't put our evidence 112 00:05:58,360 --> 00:06:01,760 Speaker 1: together yet, um. And that's you know, that's that's fairly 113 00:06:01,760 --> 00:06:05,479 Speaker 1: remarkable to say it was absolutely necessary as a matter 114 00:06:05,480 --> 00:06:08,919 Speaker 1: of national security to take this step, but we have 115 00:06:09,000 --> 00:06:12,119 Speaker 1: no evidence of any sort of national security risk. Um. 116 00:06:12,200 --> 00:06:14,159 Speaker 1: But you know, the government will have another chance to 117 00:06:14,200 --> 00:06:17,680 Speaker 1: sort of develop the record on that as we move forward. Liza, 118 00:06:17,760 --> 00:06:20,240 Speaker 1: does it seem to you that the case will not 119 00:06:20,640 --> 00:06:24,520 Speaker 1: stall on the issue of standing whether the states have standing? 120 00:06:24,560 --> 00:06:28,320 Speaker 1: Because Judge can be appeared to indicate that the harm 121 00:06:28,520 --> 00:06:33,440 Speaker 1: alleged to state universities was enough. I think that's right. 122 00:06:33,520 --> 00:06:36,280 Speaker 1: And there was also some question about whether Washington State 123 00:06:36,320 --> 00:06:39,520 Speaker 1: could actually represent the interests of its citizens, um, and 124 00:06:39,600 --> 00:06:42,760 Speaker 1: that was another point of contention. And I don't see 125 00:06:42,760 --> 00:06:46,960 Speaker 1: the judges being inclined to uh dismiss the case or 126 00:06:47,120 --> 00:06:51,040 Speaker 1: or uh you know, issue any ruling on the basis 127 00:06:51,080 --> 00:06:53,840 Speaker 1: of these questions. That standing, it looks like this case 128 00:06:53,960 --> 00:06:56,240 Speaker 1: is going to go forward, you know, in the event 129 00:06:56,279 --> 00:06:58,159 Speaker 1: that it didn't for some reason. There are many other 130 00:06:58,200 --> 00:07:01,480 Speaker 1: cases moving forward across the country, or than fifty lawsuits 131 00:07:01,520 --> 00:07:04,719 Speaker 1: in fact, um, many of which are brought by people 132 00:07:04,760 --> 00:07:08,000 Speaker 1: directly affected by this band. So one way or another, 133 00:07:08,279 --> 00:07:10,480 Speaker 1: this is getting through the courts. It is almost certainly 134 00:07:10,480 --> 00:07:13,880 Speaker 1: headed to the Supreme Court. Well, Liza, you know, earlier 135 00:07:13,920 --> 00:07:16,680 Speaker 1: Eliot Sapiro said he thought that this court would probably 136 00:07:16,760 --> 00:07:19,560 Speaker 1: keep the restraining order in effect. What do you think 137 00:07:19,640 --> 00:07:22,800 Speaker 1: is going to happen this week? That is my sense 138 00:07:22,840 --> 00:07:26,640 Speaker 1: as well. Uh. The court seems to want to rule 139 00:07:26,760 --> 00:07:29,600 Speaker 1: fairly quickly on this. They said to expect a ruling 140 00:07:29,680 --> 00:07:32,920 Speaker 1: sometime this week probably, so that means they're not looking 141 00:07:32,960 --> 00:07:35,480 Speaker 1: to run out the clocks. On the ten day temporary 142 00:07:35,520 --> 00:07:39,080 Speaker 1: restraining order. Um. You know, it's it's very difficult to 143 00:07:39,160 --> 00:07:42,280 Speaker 1: predict what courts are going to do based on the 144 00:07:42,400 --> 00:07:46,040 Speaker 1: questioning of judges during oral argument. Um. But to the 145 00:07:46,080 --> 00:07:48,280 Speaker 1: extent you can do that, I think it is probably 146 00:07:48,320 --> 00:07:51,600 Speaker 1: correct that they're going to leave the temporary restraining order 147 00:07:51,680 --> 00:07:54,640 Speaker 1: in place. Um. Then it will be up to uh 148 00:07:54,920 --> 00:07:57,760 Speaker 1: Judge Robot in Seattle to decide whether to issue a 149 00:07:57,800 --> 00:08:03,760 Speaker 1: preliminary injunction, which again and merely stays the executive order 150 00:08:04,240 --> 00:08:08,400 Speaker 1: while the ultimate question of its legality is decided. At 151 00:08:08,480 --> 00:08:12,880 Speaker 1: one point, they the Justice Department lawyers offered a middle 152 00:08:12,920 --> 00:08:15,520 Speaker 1: ground for the court to reinstate a part of the 153 00:08:15,560 --> 00:08:18,320 Speaker 1: ban against people who have never been in the United States, 154 00:08:18,760 --> 00:08:22,040 Speaker 1: but Judge Clifton shot back that the administration would be 155 00:08:22,080 --> 00:08:25,120 Speaker 1: in a better position to narrow its executive order, which 156 00:08:25,120 --> 00:08:28,640 Speaker 1: I found interesting. Yeah, I thought that was interesting too. 157 00:08:28,680 --> 00:08:31,920 Speaker 1: I mean, you know, the executive branch often complains under 158 00:08:32,000 --> 00:08:36,120 Speaker 1: various administrations that the judiciary is trying to make law, 159 00:08:36,520 --> 00:08:39,320 Speaker 1: and here, in effect, the government attorney was inviting the 160 00:08:39,440 --> 00:08:42,400 Speaker 1: judiciary to create its own executive order that was sort 161 00:08:42,440 --> 00:08:45,160 Speaker 1: of more tailored in scope, and the Court did not 162 00:08:45,760 --> 00:08:49,160 Speaker 1: did not take the beat essentially, and the judge said, 163 00:08:49,240 --> 00:08:50,640 Speaker 1: you know, that's that's on you. If you want to 164 00:08:50,640 --> 00:08:53,760 Speaker 1: make this order narrower, you can, that's not our job. 165 00:08:53,760 --> 00:08:57,120 Speaker 1: We have about thirty seconds left. Do you think, whatever 166 00:08:57,160 --> 00:08:59,040 Speaker 1: the court does, that either party is likely to go 167 00:08:59,120 --> 00:09:01,280 Speaker 1: up on the temporary training order to the Supreme Court 168 00:09:01,320 --> 00:09:03,120 Speaker 1: now or they more likely to wait into the lower 169 00:09:03,120 --> 00:09:06,800 Speaker 1: court rules. That's a good question. That's a strategic decision 170 00:09:06,880 --> 00:09:08,920 Speaker 1: to make. You know. We we haven't seen a lot 171 00:09:08,960 --> 00:09:13,120 Speaker 1: of litigation yet by this administration, but the administration does 172 00:09:13,160 --> 00:09:16,040 Speaker 1: seem to want to pursue this as aggressively as possible. 173 00:09:16,280 --> 00:09:18,800 Speaker 1: So it is quite possible that they would try to 174 00:09:19,120 --> 00:09:21,959 Speaker 1: appeal to the Supreme Court on the t O. It's 175 00:09:21,960 --> 00:09:24,520 Speaker 1: also quite possible in the Supreme Court wouldn't wouldn't take that, 176 00:09:25,000 --> 00:09:27,440 Speaker 1: and would just keep it down in the lower courts 177 00:09:27,480 --> 00:09:29,680 Speaker 1: until they get to a further stage in the proceedings, 178 00:09:29,679 --> 00:09:32,679 Speaker 1: the preliminary injunction stage. Well, thank you very much to 179 00:09:32,720 --> 00:09:35,680 Speaker 1: Liza gytan Co, director of the Liberty and National Security 180 00:09:35,679 --> 00:09:38,040 Speaker 1: Program at the Brennan Center for Justice for being with 181 00:09:38,120 --> 00:09:39,360 Speaker 1: us on Bloomberg Law.