You're listening to Bloomberg Law. I'm Greg Store in our studios here in Washington, along with Michael Best in New York. Donald Trump's new travel band isn't fearing any better in court than his first one did. Late yesterday, a federal judge in Hawaii halted Trump's latest effort to block people from a handful of largely Muslim countries from entering the US.
Judge Derrick Watson said the policy was driven by religious animus, likely violating the Constitution, even though Trump had moved away from the explicit ban on Muslims that he proposed during the presidential campaign. At his re election rally and Nashville yesterday, Trump was defiant. You don't think this was done by a judge for political reasons? Do you know? This ruling makes us look weak, which, by the way, we no
longer are. Believe me, just look at our borders. Adding to the administration's problems, a judge in Maryland separately issued an order blocking a Porsche and of the travel band. With us to discuss these new developments are Hans von Spakovski, a senior legal fellow at the Heritage Foundation, and David Beer, an immigration policy analyst at the Cato Institute. Welcome to you both, Hans. You've defended this policy and by its terms,
it talks about countries, not religion. But Judge Watson pointed to a long list of comments from Trump and some of his aids and advisers that that suggested the goal was the same as it was when Trump was explicitly calling for a religious test. So was Judge Watson wrong? Yeah,
I think he was. Look, you can you can have a debate, uh, And I'm sure I could have a debate with the CATO in suit about whether this is a good policy or necessary policy, But that is not the issue, or shouldn't be the issue in this case. The issue should be as the President acted within the
authority delegated to him by by Congress. And I found it simply amazing that you can read through the entire forty three page opinion issued by the judge in Hawaii and there is no discussion about the legality or constitutionality of the federal immigration provision on which the order was
explicitly based. This is a a section UM eleven eight two f of the US Code um UH that gives the President of power to suspend the entry of any aliens or class of entry, class of alien if he believes it will be detrimental to the interests of the United States. There's no discussion of that provision anywhere in the order, and that's what the judge should have done and didn't do well. David, you know, to follow up on that point.
It seems as though the judge, at least in Hawaii, felt that the UH there was a constitutional problem with the order, notwithstanding any congressional delegation of power here. So you've got a broad delegation of power from Congress. I don't think anyone disputes that. In the president UH supporters in the in the White House depend on that as
their argument. But if there's a if the judge is right that there is an animus here, is there a constitutional limit on what the president can do as regards immigration? There are, um, there were several noted in the Ninth Circuit Court decision that originally barred the first Order. UM. But I would say that I think hanss is correct. I agree that the court should have focused on the
statutory question here. I would just disagree with the assessment that the president has the power that he's asserting UM. Section two oh two of the Immigration and Nationality Acts specifically bar the President UM or any executive official from discriminating against immigrants based on nationality. And this provision was instituted in nineteen It came after these earlier provisions that Hans discussed talking about the president's power to bar entry UM.
So this section two o two that was enacted in nineteen sixty five would be seen as limiting this earlier provision of law UM and it and it goes even beyond that. When Congress amended these these immigration laws in ninet, it not only enacted this blanket prohibition on discrimination, but it also enacted a statutory scheme intended to produce unbiased
immigration between countries. Before we had the Chinese Exclusion Act, we had the Asiatic bar Zone, and Congress in Nineve was saying, no, we're not going to do that anymore. We're gonna have uh immigrant visas issued equally between the nations, and uh, really, what Trump is trying to do is
overturn that system. Hans. Other thing Judge Watson talked about what he said that the connection between this policy and any actual acts of terrorism was pretty weak, and the policy itself mentioned a couple of past incidents, but one had to do with Iraqis who are not covered by this policy, and the other had to do with a Somali who came here as a child. So even if we sort of grant that the president has very broad authority over national security, how does this even pass sort
of the Laft test? Well, the the executive orders gave a couple of examples, it couldn't list the I think more than sixty examples of individuals convicted for terrorism related activities from these originally seven countries UH from a Senate um Um Committee report from from last year. But the other point that they just kind of gloss over is the fact that, look, three of these countries are considered by the U. S. State Department to be state sponsors
of terrorism. And as the government said very uh explicitly in his brief UM, that makes vetting very difficult for people coming from those countries because you can't trust the information being given to you by the government. Three of the other nations in this UH, in this designated list are countries of concern as designated by the prior administration who also have big terrorist ties or failing governments, which makes it extremely difficult to vet people coming from those countries.
All of those things taken together, give a solid basis for what the President did. And by the way, just very quickly, UM, I have to mention that the Supreme Court has since that provision that David was talking about, has in more than one case for upheld the ability of the president again to to suspend the entry of aliens. You may recall in nine George H. W. Bush issues an executive order barring refugees from Haiti from coming into
the country. Bill Clinton continued that bad and it was upheld by the U. S. Supreme Court in a case in David we have about thirty seconds. But um, is it appropriate for the courts to be looking at whether or not there are security incidents from these countries when it considers these questions. I think it's appropriate to look
at whether or not he's using a pretext to discriminate. UM. I would just note on the Supreme Court case, it was really not addressed to people who were eligible for immigrant visas, who are being petitioned by US citizens, who have rights in the United States to our access to our immigration system, and what President Trump is doing is really not analogous to what these other presidents have done
in the past. He's enacting a blanket ban on immigration from these countries and that's really not in accord with the statutes or with the laws. And you know, I would really think that the courts will uphold, uh, you know, this per vision. David, We're gonna have to leave it there. I want to thank David Beer, the Cato Institute, Hanson von Spakovsky of the the Heritage Foundation, and uh, coming up.
That's it for this edition of Bloomberg Law. We'll be back tomorrow and coming up on Bloomberg Radio Bloomberg Markets with Carol Masser and Corey Johnson. Stay tuned for that and more here on Bloomberg Radio. This is Bloomberg