Another court ruling on Donald Trump's travel ban, another defeat for the administration. The latest comes from a Richmond based
federal appeals court. The court took a look at the executive order, in particular it's ninety day ban on entry into the US by people from six predominantly Muslim countries, and in attend to three decision, the appeals court said the purpose behind the policy was not national security, as the administration contended, but rather anti Muslim ANIMUS Attorney General Jeff Sessions is vowing to take the issue to the
Supreme Court. With us to talk about the ruling and what might be lying ahead in the legal fight over the travel ban is David Beer. He's an immigration policy analyst at the Cato Institute. And David Rivkin, he is a partner at Baker Hostetler. So we'll have dueling David's today. Uh, David rivkn let me start with you. I strongly suspect there are a lot of things you disagree with in
this appeals court ruling. We'll try to get to as many as we can, but let me ask you to pick what you think is the most egregious mistake the court made and tell us about that well. The most egregious mistake, and you're right, there many other bad aspects of the most egregious mistake is willful disregard all binding Supreme Court precedents that are free cases that deal with immigration matters clientized to Fiallo, and the most recent one
is called cur versus din. But make it absolutely abundantly clear that we regard to these types of decisions. Is sufficient for executive branch to articulate a good faith, bonafiti explanation as to why this measure is taken. The judiciary is not, repeat not supposed to look behind it, and even more importantly, it's not supposed to engage in any balancing to explain very briefly in domestic line of cases
from which they partook. Whenever you have somebody who as search that a government of action violates the or protection rights or First Amendment rights that do process rights, the courts engage in balancing. It wouldn't surprise your Listen. There's you do the balancing. You have a true master of a decision. You did not do balancing in this space
at all. For the courts to do the balancing, all the constitutional interest profit by the plaintiffs against the vigor, if you will, the imperative of a governmental reasoning, in effect, would make courts ultimate decision making and foreign affairs. This Court not only looked beyond the four corners of the explanation in this executive order, which is an appropriate in and of itself, and it gained them balancing, and he found in favor of the plaintiffs at least for the
injunctive purpose, utterly wrong. David Beer. Um, the Court said that the executive order was facially legitimate, but it wasn't bonafiti literally meaning in good faith, because um, there was no good faith here by the White House, and the plaintiffs had provided ample evidence that national security was not the true reason for the order. So does that change
the game? Right? So? I think it really all does come down to some parsing of the Supreme Court precedence here, and what the Court said was looking at this prior court ruling, they said, you needed a facially legitimate and
bonafide reason uh to deny a visa. And the question really became is it facially legitimate and a facially bonafide reason, or a facially legitimate reason and an independently bonafide reason and the distinction there is that, you know, if it was a facially bonafide reason, it would just be whatever the government said was, uh, you know, the reason for the order, they would have to accept it. And the court said, no, we're not going to accept that interpretation
of what the Supreme Court said. We're gonna say, we're gonna look behind and analyze the motivation behind this order. And really that parsing of those those words really is what it's all going to come down to. Whose interpretation of this president is correct? David riv Can, under your way of thinking about this case, what do we do with this list of evidence that the Appeals Court pointed to for for why it said that national security was not the true reason, not the true reason. And I'll
just point a couple a couple of the examples. They talked about Donald Trump's initial call for a band of Muslims entering the US during the campaign. Um and he talked about the court talked about how quickly the first version of this band was slapped together without any input
from national security agencies. Do we just ignore those things under your thinking about yes, yes, yes, article free futtal courts ignore those reasons, I think for a second about the level of presumption role of poaching on the territory belongs to political branches. If the executive wishes to do something quickly in time of war, in time of crisis, the framers would say that speed and dispatches the essence
of being the executive. If you want to do something in a way, if it's closely held and does not involve the full firmament of government agencies, that may be a policy mistake. But he's not of a judiciary to to to to attribute any insidious weight to this. So if a president wants to have a kitchen cabinet decide in some matter versus having an inter agency process for months, what is it to the judiciary. But look, the broader
problem to understand is with this approach. And by the way, I happened to strongly disagree with the proposition that Trump is a Muslim hater. But let's assume for a second that he is, which again I don't think it's substantiated, and of courts reasoning, this president would be unable to take any action that impacts a Muslim majority country, including
the use of force. You listening to Bloomberg law and we are talking about Donald Trump's travel ban and the federal appeals court ruling that came out late yesterday saying that the president went too far and that the policy was motivated by anti Muslim animus. We're talking with David Rifken, a partner at Baker Hostetler, and David Beer, an immigration
policy analyst at the Cato Institute. David Beer, Uh, we we've talked about this policy before, and I know one argument you've made is that the problem you have with it is a is a question of the immigration laws rather than the constitution. Correct me if I've if I've misdescribed your position. But but I'm wondering whether you think you know that that sort of argument didn't get a whole lot of traction with this appeals court. They jumped
to the bigger constitutional question. Do you think this court was too quick to make this a a full blown constitutional case over uh, you know, the the establishment clause. Well, it's very atypical for the court to skip over the statutory question and go straight to the constitutional one. And several of the concurring opinions, uh, did address this issue, and majority of them agreed that the president is violating
the law as UH as Congress has enacted it. Um. I would say one thing David suggested earlier that the president could never take an adverse action against a Muslim if this decision holds, And like you said, I'm not convinced by the courts constitutional analysis on this point, but that is just plainly false. The president's statements about Muslims
were directly tied to the issuance of this order. He said that he wanted to ban all Muslims and later defended this by saying that Islam hates us and that he would expand the original proposal to ban entire Muslim majority nationalities UH for the same reasons. At the same time, he has provided no evidence that the purpose of this
is national security. So yes, if he told America that he was taking actions against Musle Loans because he's biased against Muslims, and he refused to provide any good reasons why he needed to take them, then yes, this decision would apply to those actions. But that's very different from what David suggested. It's not like he's saying Islam hates us untied to anything he said it in the context of defending banning them from getting visas. To come to
the United States, David Rifton Um. The judges said in the majority order that the order of the President speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination remarkably harsh words. Is the problem, as David said that the White House hadn't detailed the risks posed by the people covered by the order. Um a couple of things, and that also gets unto the point made by my colleague, Uh, let me be blunt.
It is utterly you'll suit it for the judiciary and utterly in consistent judiciaries constitutional authority to be sitting in judgment on whether or not Um the Executive have an articulated and they said it is has been clear. Even this opinion says that it is perfectly reasonable, perfectly plausible reason, which is, you want to slow down the presentation rate of individuals for certain countries that are plagued by Johardi violence.
You want to give opportunities to a law enforcement agencies that are already stretch pre definned to be able to deal with investigations and and sort of new challenges better, perfectly plausible, is utterly inappropriate for judicial to be sitting in judgment on it, and and and trying to do their own risk assessment or quote former government officials that
take a different position that is utterly inappropriate. And but let me also say, and again not the property's role apropos the point made by David I would argue that under the Court's reasoning, any if President Trump, for example, to institute an economic embargo against certain countries, which he can do both on its own authority, but also because Congress issued a number of cross issued excuse me, enacted a number of cross cutting statutes to give President the authority, uh,
and justified in national scooting ground saying we want to hurt the economies because they're supporting jihadis. Again, Um, under the reason of this court there arguing to be obviously just the pretext. This is just nonsense. He's saying it because he's Muslims. Okay. Now, they may decide, in the infinite wisdom doing the balancing that that is not appropriate, uh to conclude that. But they would be in the driver's seat, David Beer, Um, let me ask you as
we look towards the Supreme Court. UH. The Attorney General Jeff Sessions has said that's where we're going next. What are you envisioning there? Is this going to be a close case. I think it's definitely going to be a close case. And really you've seen quite a few different judges from across the country issuing rulings, some of them appointed by Republicans, some of them appointed by Democrats who have found this to be a plausible case, whether the
statutory one or the constitutional one. UM. What will be interesting, however, is if the Ninth Circuit case, the Hawaii UH decision that's been appealed to the to the Ninth Circuit. If the Ninth Circuit agrees with the Fourth Circuit, there really isn't a court split here. That doesn't mean that the Supreme Court couldn't still review it um. But it would be interesting if you had to uh, you know, different
appeals courts agreeing that the president is violent in the law. UH. That would put the pointiffs on a stronger position than um in prior cases. Well, we will, we will definitely be watching for that. The Ninth Circuit decision could come out any day, UH, and the argument suggested they will indeed agree with the Fourth Circuit. UH. The administration could ask the Supreme Court to intervene immediately and enter an emergency order that would put the policy back in place
while the litigation plays out. I want to thank our guests, David Beer the Cato Institute, David Rivken of Baker Hostetler. Coming up, we're going to talk about that Washington Post report that says that FBI investigators in the Russia probe are looking at Jared Kushner as a focus of their investigation. That's all coming up on Bloomberg Law. This is Bloomberg