Does New Immigration Order Pass Judicial Muster? (Audio)

perhaps not all, of the legal issues. Among the key changes, the measure explicitly allows entry by Green card holders, by people with valid visas, and by dual nationals traveling under a passport from the non covered country. It also drops a provision that gave preference to religious minorities in refugee admissions. Are these and other changes enough to survive the inevitable

legal challenges. Our guests today to discuss that are David Beer, an immigration policy analyt at the libertarian Cato Institute, and Liza Gatine, co director of the Liberty and National Security Program at the Brennan Center for Justice. Um, Liza, is it fair to welcome to you both? Umliza? Is it fair to say that this new executive order is a significant improved and from a legal standpoint from the original one.

I'm not sure I would say that from a from a legal standpoint, I think it's certainly made an effort to try to defuse some of the legal objections and the legal problems with the with the first order, and you mentioned some of the some of the ways it did that, for example, by eliminating language that carved out and express preference for religious minorities, um, and also by exempting current visa holders as well as green card holders. These were all efforts to try to mitigate some of

the constitutional concerns with the original policy. UM. I don't think they will that will be enough actually to to change the legal analysis, because the crux of the order remains a policy that on its face has a discriminary discriminatory impact on Muslims. After President Trump made a number of statements saying that he intended to put in place a Muslim Van David, Do you agree that the revised order eliminates certain problems, but that the core constitutional problem,

which is religious discrimination, remains well. I don't particularly take the view that this is a constitutional issue. I I My argument is that this is a statutory problem for the president, that we have a law on the books that Congress enacted in nine that bands discrimination based on UH nationality for immigrants. So at least as far as this band applies to immigrant visa applicants in these countries,

then it's illegal under the law. And this new order did nothing to resolve that fundamental problem that you have a statute that bands this type of discrimination. I also would say that while I'm not convinced that you know that this is necessarily a Muslim band, there are elements of this order really undermine the argument that the administration

is making that this is about vetting people. So, for example, the order sites this case of a Somali child who was brought over and then grew up here and then became a terrorist. Well, that case has nothing whatsoever to do with vetting. UH. The person was a child when they came over. There's no way to vet for future um, you know, intent when you grow up. So that's a failure of assimilation, not not vetting. And so now he's

using this example to say that this band makes sense. Well, if the band is only temporary to allow them time to review the vetting procedures, well that doesn't really fit with this example, and it would indicate that he has no plans for it to be temporary, and it really is intended to ban people from the United States. Lies of the phrase Muslim band is used a lot in talking about this UH plan, this order, UM, but it really only affects a very small percentage of the world's Muslims.

And of course it doesn't on its face say anything about Muslims. So other than than those comments that that the President made during the campaign, other people have made, you know, outside the scope of this order, what you know, what what evidence do we have that that this should be thought of as something that is either a Muslim ban or targets Muslims. Well, the fact that the van doesn't prohibit every single Muslim in the world from coming into the United States doesn't mean that it can't be

discriminatory against Muslims. UM. There are plenty of countries that are experiencing political chaos UM at the same level of some of the countries on this list that are not majority of Muslim countries, such as for example, Venezuela that

are not on this list. And I think if you had, for example, an employer who uh, you know, fired twenty employees in one year, and all of the employees that they employer fired were African American, despite the fact that the that there was a you know, a variety of races represented in that company. Um. I think the fact that there were still some African Americans who were not

fired wouldn't change your perception that this was discriminatory. Our guests are Liza Gatine of the Brennan Center for Justice and David Beer of the Cato Institute. David, earlier, you were expressing some skepticism about some of the explanations for the band, the need for it, But is this an

area we really want our courts getting into. I mean, normally we think that the president is going to know much more about the national security needs of the country than a court would, or that you're than you or I would. Uh, you know what, what's the standard here for a court of court saying no, we disagree with you,

Mr President. Look, I don't think that the courts should second guess the president, but I also don't think that they should second suck and guests Congress, and it's Congress who enacted this prohibition on nationality based discrimination in the law. And when they did that in nine we did have a very discriminatory immigration system we banned almost all Asian in the United States, for example, And the reason why they got rid of this band is because they thought

it would be good for US security interest. They thought that it was harming our battle against the Communists, that communists were using it for recruitment. And the same arguments that Congress was using then against banning all Asians, UH, really applies with the same level of force, UH to this current band. So just so I'm clear, Um, So

I'm clear. So you're saying that even if the President really had a compelling reason to say, as a national security reason why this particular country we need to prevent people from from entering the kind tree, that wouldn't be enough because of this statue of Congress had passed. Exactly. Congress has already exercised its authority on this issue. It has the power to set immigration statutes, and this is the one that it chose. So the courts shouldn't second

guess the security judgment of Congress. Liza. One thing I find curious with the order is in justifying the need for national security more national security they talk about. It talks about three people who entered the country as refugees who were the subject of counter terrorism investigations. It only talks about within that three individuals January to Iraqi nationals

in October, a native of Somalia. They failed to put in the nine eleven hijackers, and Saudi Arabia is not on this list, which is now different than the list that Obama had. So is there any reason for not putting Saudi Arabia on this list? Well, there's certainly no reason if the true purpose is a national security one. But um, as you know, you and others have pointed out that the national security justification here is fairly thin. The three hundred investigations that are mentioned, um, all we

know about them is that they are investigations. The FBI has a number of different levels of investigation, and some are as low as uh following up on a on a hunch or a tip. So we have no way of knowing how how serious these investigations are when it comes or or frankly, how many of them were launched after the courts said there was no national security justification

for this policy. Um, you know, when it comes to the examples, which were presumably the strongest examples that the administration was able to find in the weeks that it has had to put together this revised order. You know, one of those examples, as has already been noted, relates to a a Somali American who came to this country as a child, and then with the subject of an FBI sting where the FBI actually put together the plot and took the lead on the plot. It was a

fake plot. Uh. The other example involves Iraqi refugees who were plotting terrorist attacks in irect, not in the United States. So if those are the most convincing examples the administration can come up with, that really undermines the pretextual national security justification. David, A big issue of the last time around was whether anybody, like a state, had had legal

standing to challenge the travel band. How about with this the revised band, is anybody going to have the right to go to court to say that the president has gone too far? Well, it's true that visa applicants don't typically have constitutional rights to challenge their denials, but American citizens who are petitioning for them to come over would had standing to sue. And so in the exact s in court in Seattle that heard the case that you know, put a hold on the executive order the first time.

There's another case brought by US citizens who are petitioning for their family members to come over on immigrant visas, and they would be the ones to challenge, not the immigrant visa applicants themselves, and so I do think you will get standing to sue. The question ultimately will come down to whether or not the courts are willing to side with Congress and the statute, or whether they're going to side with the President and his national security justifications.

If I gave you only ten seconds, could you tell me if you agree with that, Yes, I would agree with that. I think the ten seconds that I have, I want to say that this is this discriminates against people from majority Muslim countries without any evidence of a national security harm. So I think the courts need to look at that really closely. Okay, Thanks Lizagotine of the

Brennan Center and David Bier of the Cato Institutes. I'm sure we'll be talking more about Donald Trump's revised travel band, which he issued yesterday and which almost certainly will be taken on in court in the coming weeks.