The Daily - Trump’s Travel Ban Goes to the Supreme Court

Episode Date: April 26, 2018

After being blocked for months by lower courts, President Trump’s executive orders that restricted travel from several predominantly Muslim nations have finally reached the Supreme Court. The justices seem focused on one question: Should the president’s authority have anything to do with his personal beliefs? Guest: Adam Liptak, who covers the Supreme Court for The New York Times. For more information on today’s episode, visit nytimes.com/thedaily.

From The New York Times, I'm Michael Barbaro. This is The Daily. Today, after months of lower court battles, the president's travel ban has finally reached the Supreme Court. The justices seem focused on one question. Should the president's authority have anything to do with his personal beliefs?

It's Thursday, April 26th. Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what the hell is going on. Secondly, I'm establishing new vetting measures to keep radical Islamic terrorists out of the United States of America. We don't want them here. President Trump's executive order is temporarily restricting entry into the United States from several predominantly Muslim countries is now in effect.

A federal judge has temporarily halted President Trump's controversial travel ban nationwide. So, what happens next? Travel ban 2.0, President Trump's latest executive order, is a scaled back version of the original, which was struck down by a federal court. So of course, the big question is, is this travel ban 2.0 legal? Federal judge in Hawaii put the president's travel ban on hold. More than half a dozen states. The administration issued another travel ban, its third in eight months. The Trump administration thought it had gotten past legal difficulties by revising the terms of its travel ban, but now a federal judge in Hawaii has issued a new nationwide halt to that travel ban. The Supreme Court will take up President Trump's travel ban.

A line is already forming outside the Supreme Court ahead of a hearing on the president's travel ban on Wednesday. Now the court will hear arguments on whether the ban is legal and will test the limits of presidential power. We'll hear argument today in case 17-965, Donald Trump, President of the United States versus Hawaii. Adam Liptak, set the scene at the Supreme Court on Wednesday. Well, the Supreme Court courtroom, of course, is very grand, but also quite intimate. The lawyers sit right next to each other. They're very close to the justices. When they arrive, the lead lawyers greet each other. They're very close to the justices. When they arrive, the lead lawyers

greet each other cordially. They're professionals. They know and like each other from way back. One of them is the Trump administration's lead appellate lawyer, Solicitor General Noel J. Francisco. The other representing the challengers, Neil Katyal, who represents Hawaii, some Muslim individuals in a Muslim group challenging the ban. They are both very able lawyers who have spent months preparing for this argument, a great historic moment in which the court will examine presidential power in a way it very seldom does. Mr. Chief Justice, and may it please the court, after a worldwide multi-agency review,

may it please the court. After a worldwide multi-agency review, the president's acting Homeland Security Secretary recommended that he adopt entry restrictions on countries that failed to provide the minimum baseline of information needed to vet their nationals. So what's typical of Supreme Court arguments, but may be surprising to some people, is the advocates barely get a chance to start talking before they're hit with questions. And when they start answering a question, they get hit with a different question. So Noel Francisco gets up and he gets maybe three or four sentences out, which is not bad. The proclamation reflects a foreign policy and national security judgment that falls well within the president's power under 1182F. At which point Justice Ginsburg interrupts him to ask the question.

And the worrisome thing about this is that the president asks, Congress is the one responsible for making the laws about immigration. Isn't the power to control immigration up to Congress, not the president? Hasn't the president overstepped his statutory authority? Congress, not the president, hasn't the president overstepped his statutory authority? Your Honor, yes, 1182F is a broad and flexible power. He says it's a broad and flexible power that Congress has given the president, and that's his main point throughout this thing.

After all, the whole vetting system is essentially determined by the executive branch. It's up to the executive branch to set it up. It's up to the executive branch to maintain it. And it's up to the executive branch to constantly improve it. So this is about the power of the president to issue such a ban. And in addition, whether the ban he may or may not have the power to issue is discriminatory in a way that violates the Constitution. Very nicely put. Yes. So we're immediately seeing one of these two questions coming up, the question of the extent of the president's power. Yes, so that's one of the questions that runs through the case,

one of the themes, but not long afterwards. I agree. So this is a hypothetical that you've heard a variant of before that the government has at any rate. Justice Elena Kagan asks a very sharp and provocative question that goes to the second major issue in the case, that of religious discrimination. So let's say in some future time, a president gets elected who is a vehement anti-Semite and says all kinds of denigrating comments about Jews and provokes a lot of resentment and hatred

over the course of a campaign and in his presidency. And in the course of that, asks his staff or his cabinet members to issue recommendations so that he can issue a proclamation of this kind. And they dot all the I's and they cross all the T's. And what emerges, and again, in the context of this virulent anti-Semitism, what emerges is a proclamation that says no one shall enter from Israel. Right. Is that appropriate? And Francisco, to his credit, engages in the hypothetical, doesn't try to duck it, which is what a lot of advocates would try to do.

If his cabinet, and this is a very tough hypothetical that we've dealt with throughout, but if his cabinet were to actually come to him and say, Mr. President, there is honestly a national security risk here and you have to act. I think then that the president would be allowed to follow that advice, even if it's in his private heart of hearts. He also harbored animus. So Francisco says you can even have bad motives, but if you're getting good advice and you're following national security advice, you're allowed to do that thing that you have an illicit motive to want to do anyway. And that's a fairly bold claim. So he's delicately weaving together these two questions of power and discrimination and saying the president has the power to be discriminatory, perhaps, if he has a good national security rationale for doing so.

Yes, quite right. It really illuminated what's at stake in the case. You said something earlier, General. I want to make sure that I got it right. You said if at the time the president had said, we don't want Muslims coming into this country, that that would undermine the proclamation. Did I get you right?

Yes. So then we go into a discussion of, well, what are we to make of President Trump's campaign statements? We are very much of the view that campaign statements are made by a private citizen before he takes the oath of office and before, under the opinions clause of the Constitution, receives the advice of his cabinet, and that those are constitutionally significant acts that mark the fundamental transformation from being a private citizen to the embodiment of the executive branch. So the lawyer for the president is basically saying you shouldn't take into account what the president said before he was president, while he was a candidate. What do the justices say to that idea put forward by the government lawyer?

Suppose you have a local mayor, and as a candidate, he makes vituperative, hateful statements. He's elected, and on day two, he takes acts that are consistent with those hateful statements. Justice Kennedy seems not to be buying it. Whatever he said in the campaign is irrelevant. Your Honor, if he takes the same oath. Is it what you would say? Whatever he said in the campaign is irrelevant? I would say two things. And the second thing is the point I was about to turn to.

I would say yes, because we do think that oath marks a fundamental transformation. But I would also say here, it doesn't matter. This is not a so-called Muslim ban. If it were, it would be the most ineffective Muslim ban that one could possibly imagine, since not only does it exclude the vast majority of the Muslim world, it also omits three Muslim-majority countries that were covered by past orders, including Iraq, Chad, and Sudan. And so this order is what it purports to be, and what its process and substance confirms that it is.

Can I ask a more? This is a really fascinating back and forth. The liberal justices are saying that the president's words before he was inaugurated should be taken into consideration when assessing the action that he takes as president. And when you take those words into consideration, you can't see this as anything but a discriminatory policy towards Muslims. I think they would say, or some of them, that the original sin of the campaign statement has persisted through the three travel bans, that they're all of a piece, that they all mean to make good on a central promise of the Trump campaign. And that's a perfectly plausible argument.

In other words, despite those revisions, the statements the president made, particularly the ones about the need for a ban on Muslims, that those will never really go away. I think that's what they'd say. Thank you, Mr. Chief Justice. Thank you, General. We will afford you rebuttal time. The government's lawyer sits down, and then his adversary, representing the challengers, Neil Katyal, got up. Mr. Katyal?

Thank you, Mr. Chief Justice, and may it please the court. The executive order is unlawful for three reasons. It conflicts with Congress's policy choices. It defies the bar on nationality discrimination, something you never heard my friend talk about. And it violates the First Amendment. the bar on nationality discrimination, something you never heard my friend talk about, and it violates the First Amendment. And Justice Francisco had gotten tough questions mostly from the liberals. Katyal starts getting tough questions mostly from the court's conservatives and notably from Chief Justice John Roberts. Your argument based on discrimination, based on the campaign

statements, is there a statute of limitations on that, or is that a ban from presidential findings for the rest of the administration? Whether he's forever disabled from issuing policies about immigration because of things he said in 2015. And we think, absolutely, my friend is right. You shouldn't look to campaign statements in general or stuff like that,

it's statements of a private citizen. The only thing is here, they themselves, the president and his staff have rekindled exactly that. If you look at page 70 of our red brief, you have a very good example of this. After the executive order, this latest executive order was promulgated, the president tweeted these three virulent anti-Muslim videos. And then this press spokesman was asked, what does this mean? What is this about? And the answer was, the president has spoken about exactly this in the proclamation. My question was whether or not the inhibition on the ability to enter one of the proclamations applies forever. Right. No, I think the president could have easily moved away from

all of these statements, you know, but instead they embrace them. That's the difference. And then he asks, sort of as an analogy to the earlier question about anti-Semitism, a different kind of hypothetical question. He asks, would the president be able to try to thwart an attack from Syria? Let's suppose that the intelligence agencies go to the president and say, we have 100% solid information that on a particular day, 20 nationals from Syria are going to enter the United States with chemical and biological weapons. They could kill tens of thousands of Americans. In that situation, could the president ban the entry of Syrian nationals on that one day?

So Chief Justice Roberts is basically arguing that it's, in his mind, ridiculous to hold a president to statements he made during a campaign for the duration of his presidency. I mean, he seems to be asking just how long can you hold a candidate who becomes president accountable for words that might seem discriminatory, since it could implicate all sorts of later decisions. Yeah, he sure seems to be saying that. And he seems to be saying that that kind of legal rule could lead to really dangerous consequences. Because anything relating to Muslims or Islam could be seen as essentially illegal. That was the direction his question was taking. The lawyer challenging the ban said, wait a second, nobody doubts that in a national emergency the president can act. It's a different question to say, can he restrict travel by 150 million Muslims indefinitely? this proclamation without taking into account statements think that this was a Muslim ban? I mean, I think there are 50 predominantly Muslim countries in the world. Five predominantly

Muslim countries are on this list. The population of the predominantly Muslim countries on this list make up about 8% of the world's Muslim population. If you looked at the 10 countries with the most Muslims, exactly one, Iran, would be on that list of the top 10. So would a reasonable observer think this was a Muslim ban? If it were just the text of the order alone, it might raise eyebrows for fit and other reasons that the briefs go into, but we wouldn't be here. You have to look to all the circumstances around it that are said, the publicly available ones. You know, in Justice Alito, the fact that the order only encompasses some Muslim countries, I don't think means it's not religious discrimination.

For example, if I'm an employer and I have 10 African-Americans working for me and I only fire two of them, I don't think, you know, and say, well, I've left the other eight in. I don't think anyone can say that's not discrimination. No, I understand that. And it is one of our fundamental values that there is religious freedom here for everybody and that member adherence to every religion are entitled to equal treatment. My only point is that if you look at what was done, it does not look at all like a Muslim ban. There are other justifications that jump out as to why these particular countries were put on the list. So it seems to me the list creates a strong inference that this was not done for that invidious purpose. Adam, a lot of the exchanges we're talking about are about the question of discrimination, whether this ban is anti-Muslim in a way that violates the Constitution. Where does that leave the question of the president's power to enforce this kind of a ban?

Well, so the two things intersect, right, Michael? Because if you disable this president from being able to make national security determinations because of supposed religious discrimination, then you take away from him the authority that the conservatives certainly seems to think that he needs, which is to respond to threats to the nation's security. And so your argument is that courts have the duty to review whether or not there is such a national emergency. That's for the courts to do, not the president. One telling moment was when Justice Kennedy asks, listen, at the end of the day, the question is, do presidents make national security judgments or do courts second guess them? And he sure seemed to suggest that presidents may make bad policy and may do things you don't approve of, but do you want unelected federal judges to be interfering with that function that the Constitution may well assign to the president? And Kennedy strongly suggested that this was not a matter for the courts.

Adam, what seems a little curious about that question is that isn't it in fact the job of the courts to inevitably second-guess the executive branch, as it is the job of the courts to also inevitably second-guess the legislative branch when there are legal questions about the decisions they make? In practice, the court is much more likely to strike down legislative judgments than executive ones. And in the specialized realm of national security, judges don't have the array of information and real-time intelligence to decide whether a president's national security determinations are lawful or not. Thank you, counsel. The case is submitted. So, in thinking about how both sides are talking about this, the two factions, the liberal and the

conservative justices on Wednesday, it strikes me that the liberals are focused on the question of discrimination, and the conservatives are focused on this question of authority, whether the president can do this unilaterally. But both of them are very much contemplating how much both of those questions should be viewed through the lens of this president versus the presidency. Yes, that was certainly the unspoken background principle that everyone was asking questions against,

which is, are we making a legal decision about the power of the presidency in the abstract, or are we addressing the power of this president, this particular president, who arrived in office having made statements that, at least in recent American history, are unheard of in the anti-Muslim animus they seem to convey. Is there a world in which the court could find that while the president should have the authority

to set immigration policy in the way that President Trump has, this president shouldn't have that authority because of what he has said and because of the motivations that may have been revealed by what he said. And therefore, a policy that might be legal by a different president becomes corrupted. There is such a world and that world will almost certainly be reflected in the opinion of at least a couple of Supreme Court justices, but my best guess is that opinion will be a dissent. Meaning that the majority will side which way? I think President Trump is likely to prevail based on the questioning at the argument. The court's five-member conservative majority, I think, based on the evidence of the argument,

is likely to sustain the tribal men. Which is to say, from what you could tell, there are five justices who believe that the president's authority to do this should be weighed over anything he said as a candidate that might be discriminatory. Yes. Adam, if the justices decide in favor of the president, which you predict they will, is the big takeaway that the court believes that it's not really their job to look into the president's heart and seek out motivations, but that ultimately they're just deciding what his authority is and that they will have decided he has the authority to do this and his motivations do not matter.

I think that's exactly right. If the court rules for President Trump, it will rule on the basis of we're going to look at what he did, we're going to look at the objective evidence, and we're not going to try to psychoanalyze the guy. Adam, thank you very much. We appreciate it.

Thank you, Michael. The Supreme Court is expected to issue its ruling in the case during the last week of its session, at the end of June. We'll be right back. Here's what else you need to know today. Mr. Speaker, Mr. Vice President, honorable members of the United States Congress,

ladies and gentlemen. One day after French President Emmanuel Macron and President Trump showered each other with praise at the White House, Macron appeared before Congress and spoke more critically of his host's policies. There is an existing framework called the JCPOA to control the nuclear activity of Iran. We signed it at the initiative of the United States. We signed it both the United States and France. That is why we cannot say we should get rid of it like that. Macron made the case that the U.S. should not withdraw from the Iran nuclear deal,

as President Trump has threatened to do, implicitly criticizing the president's America-first approach to foreign policy. And the Times is reporting on new allegations of misconduct against Dr. Ronny Jackson, President Trump's choice to lead the Department of Veterans Affairs, whose nomination is already in peril. Veterans Affairs, whose nomination is already in peril. Senators reviewing Jackson's record as White House physician have been told that he routinely wrote himself prescriptions in violation of medical ethics, kept private stockpiles of controlled substances, and once wrecked a government car after becoming drunk at a Secret Service going-away party.

Dr. Jackson's record as a White House physician has been impeccable. In fact, because Dr. Jackson has worked with an arm's reach of three presidents, he has received more vetting than most nominees. On Wednesday, Press Secretary Sarah Huckabee Sanders continued to defend Jackson and the process by which the White House had vetted his nomination. Given his unique position of trust and responsibility, Dr. Jackson's background and character were evaluated during three different administrations. Dr. Jackson has had at least four independent background investigations conducted during his time at the White House, including an FBI investigation conducted as part

of the standard nomination vetting process. During each of those investigations, Dr. Jackson received unanimous praise from dozens of witnesses, and the investigations revealed no areas of concern. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.