The NPR Politics Podcast - Analysis: The Impact Of The Supreme Court's Decision To Uphold Trump's Travel Ban

Episode Date: June 26, 2018

In a 5-4 ruling that gave broad leeway to presidential authority, the U.S. Supreme Court upheld President Trump's travel ban that barred nearly all travelers from five mainly Muslim countries. The NPR Politics team breaks down the decision and its impact. This episode: Congressional correspondent Scott Detrow, national political correspondent Mara Liasson, and White House correspondent Scott Horsley. Email the show at [e-mail]. Find and support your local public radio station at npr.org/stations.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hello, this is Eric from Fort Worth, Texas, where me and some friends just got done knocking on doors and telling people who they can vote for in the November elections. This podcast was recorded at 1 24 Eastern on Tuesday, June 26. Things might have changed by the time you've heard this and a special shout out to my friend Tyler who introduced me to this show and just got engaged. Congrats, buddy. Okay, here's the show. It's the NPR Politics Podcast. The Supreme Court has upheld President Trump's travel ban. This is a great victory for our Constitution.

We have to be tough and we have to be safe and we have to be secure. We're here to tell you what's in the ruling and what it means. I'm Scott Detrow. I cover Congress. I'm Mara Liason, national political correspondent. And I'm Scott Horsley. I cover the White House. This has been one of the most high profile issues of the Trump administration. It caused all of those those demonstrations in the first few weeks of the administration, an extended, dragged out court battle today, a five to four decision. The Supreme Court says that President Trump's travel ban was, quote, squarely within the scope of presidential authority under the Immigration and Nationality Act.

So, Mara, let's start with this. Can you remind us what the initial travel ban actually did? Well, the initial travel ban was very broad and it covered a lot of countries that were majority Muslim. It was struck down by a court, and it had to be rewritten. And it was actually rewritten twice, once to take out Iraq, mostly because a lot of people who had helped the United States military effort in Iraq were blocked by that. And then later, two countries that weren't Muslim, North Korea and Venezuela, were added to the list to kind of water down its appearance as a Muslim ban. And that is the one that the court has finally upheld. Yeah, it was the third time was a charm for the Trump administration. They did a couple of things. They added some non-Muslim countries.

They also built in more exceptions, more latitude for the State Department to let in people on a case-by-case basis. And both of those were things that the Supreme Court pointed to in their decision upholding that version 3.0 today. And I think one other really important difference between that initial ban and later ones was that the initial ban applied to green card holders as well, who for all intents and purposes have the same rights as American citizens, yet they were being stopped and not let into the country in those initial days. So what the court was looking at was not that hastily written order that caused so much confusion when it was implemented on almost no notice. Scott, can you walk us through what the court actually ruled, specifically the language about how this was allowed under the Immigration and Nationality Act? What is that and what authority does that give the president?

Well, Chief Justice John Roberts wrote for the five-person majority, and he said that Immigration and Nationality Act exudes deference to the White House. It gives the president broad latitude to decide who can come into the United States. Now, Justice Roberts sidestepped the whole question of whether this was just a Muslim ban in disguise. The critics had argued this is the president dressing up the promise that he'd made during the campaign and afterwards for a complete shutdown of Muslims coming into the United States. Robert said the question isn't really whether we condemn those statements. It's how should we look at those statements if we're trying to decide the legality of a presidential order that's neutral on its face than the president's acting within his authority. And he basically avoided the constitutional question about whether this was an exercise of religious bigotry. And Mauro, was the argument,

it doesn't matter what the president says when he's campaigning, or is the argument regardless of what the president says and whether or not that fits within the spirit of the Constitution, if he has the authority to do this, he can do this? Yeah, I think it was to ignore the president's words entirely, not just on the campaign trail. And that's what the dissenters were saying. You can't ignore that. You know, as we all know, on the campaign trail in December of 2015, Donald Trump stood up and said he was calling for a total and complete shutdown of Muslims coming to the United States. 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. Until we can figure out what's going on with terrorism. We have no choice. We have no choice. Later, when the first version of the travel ban was rejected by the courts, he complained that his lawyers were pushing a, quote, watered down politically correct version. Later, he said the travel ban should be tougher, more specific, but stupidly, that would not be politically correct. When he actually signed the executive order, the first one, it was called protecting the nation from foreign terrorist entry into the United States. Didn't say anything about Muslims, but then he said, we all know what that means. So he was pretty clear what he wanted. And you remember,

Rudy Giuliani even said, you know, he wants a Muslim ban. It's our job to make it constitutional. And Sonia Sotomayor wrote one of the dissents that's getting a lot of attention. As we mentioned, Chief Justice Roberts wrote the majority opinion. I want to read a few lines from this dissent that's getting attention that gets to this point. She wrote, taking all the relevant evidence together, a reasonable observer would conclude that the proclamation was driven primarily by anti-Muslim animus rather than by the government's asserted national security justifications. She goes on to say what Scott said, starting with calling for a total and complete shutdown of Muslims entering the United States. It morphed into a proclamation. She said, quote, This new window dressing cannot conceal an unassailable fact.

The words of the president and his advisers create the strong perception that the proclamation is contaminated by impermissible discriminatory animists against Islam and its followers. It's kind of like she's saying it doesn't matter what the plain words of the third version say. Donald Trump meant it to be a Muslim ban. But it isn't. But the majority is saying, no, it isn't. He might have wanted that. But now they've written something that is not a religious test. Sotomayor made an explicit comparison between this policy and the infamous policy during World War II of interning Japanese Americans.

And that came up in the majority opinion as well. That's right. She likened this decision to the notorious Korematsu decision, which justified the interning of Japanese Americans in those camps during World War II. Justice Roberts bristled at that comparison, and he took the opportunity to make express what he said is already obvious, that Korematsu was gravely wrong the day it was decided. It's been overruled in the court of history, he said, and to be clear, it has no place in law under the Constitution. Justice Sotomayor came back and said, well, that's laudable and long overdue that you now see that the Korematsu decision was wrong. But she said this decision just follows the same dangerous logic by blindly accepting the government's misguided invitation to sanction a discriminatory policy towards a disfavored group. And she said by striking down Korematsu

and passing this decision, the majority was simply replacing one gravely wrong decision with another. So Mara, this whole thing started off as a real mess, an order that was not well written, not well thought out. It created chaos. It created a lot of political drama. But here we are a year and a half later. And after a few false starts, after a few false tries, it makes its way through the court. And President Trump is now fully vindicated. And this is a legal law of the land policy. I mean, this is a pattern that in one extreme or another has played out a few times. Right. This was a campaign promise.

He tried to enact it, had a lot of chaos and confusion at the beginning of it. And in this case, legally, he's come out the victor. Now, when you look at the family separation practice, which flowed from his zero tolerance policy, it was very similar. Wasn't quite sure how it was going to work. Got a lot of blowback. Tried to fix it, creating more confusion. And now he's trying to get Congress to pass something. Today, he really expressed his whole frustration with the whole complicated web of immigration laws when he was asked about why we need more judges on the border. It is a hodgepodge of laws that have been put together over years.

And we have to change it. It's so simple. It's called, I'm sorry, you can't come in. And that's it in a nutshell. The president isn't interested in the details of these policies. He knows what he wants. He wants fewer immigrants. What's striking about this is that, like the initial travel ban,

and of course, all of the rhetoric about Muslims before it and after it really, have been a really concerning action, a really concerning set of statements that the president has made to a large chunk of people. And the only thing that has really matched that since has been what happened over the last couple of weeks, this policy of separating the children of parents who enter the country illegally.

That's something that even though the president backtracked on that pretty quickly last week when he got criticism, he's continued to defend saying it's a tough policy. So President Trump comes out today and really spikes the football about this ruling and all the criticism he's been getting. The ruling shows that all of the attacks from the media and the Democrat politicians are wrong and they turned out to be very wrong. And what we're looking for as Republicans, I can tell you, is strong borders, no crime. It's certainly a consistent message that the president is delivering. It's one which his critics would point out is often at odds with the facts.

Just as opponents of the travel ban pointed out that there were no terrorist threats linked to the countries named in the travel ban. Critics today of the policy on the southwest border point out that there is no linkage between increased crime and, say, immigrants crossing the border illegally from Central America. Well, Scott, you're acting as if this travel ban or the immigration policies are meant to address an actual problem. That's not their point at all. Their point is to send a political message. We are tough on immigration. We want to keep American sovereignty. We don't like the way America is changing. We want to decrease legal immigration. Immigration is a threat. It brings terrorists from Muslim countries. It brings criminals from South America and Mexico. Even today, in this long back and forth with reporters when he met with lawmakers at the White House, at one point, he talked about the EU. He said the EU

is meeting to, quote, toughen up their immigration policies because they have been overrun. A lot of these countries are not the same places anymore. In other words, the character, the national character of Europe is changing because they're taking too many immigrants. Scott is absolutely right. What Trump is doing is disconnected from any real actual problem. But it's sending a message to his supporters that America is under threat or has changed in a way that they are uncomfortable with, and he is going to try to reverse it or at least stop it. Though I think one reason why it really struck a nerve with so many people, both of these policies,

is that in a very dramatic and immediate way, this went from something the president issued or signed or decreed to affecting real people in very immediate ways, leading to detention, leading to them not being allowed into this country, leading to those scenes early on of people stuck in getting to airports and being detained there for hours and hours and not let into the country. Right. And that's what makes the backlash. But that's kind of collateral damage in the president's over and Stephen Miller, who's his immigration advisor's overall effort to decrease the number of non-white Christian people who immigrate to the United States. And if opponents of those policies are counting on the Supreme Court to hold the line, don't bet on it.

Well, yes. And I would be hard pressed to find someone who was counting on the Supreme Court. But because this was predicted, once they sanitized the travel ban, most Supreme Court watchers felt it would pass muster. In the clip we heard from President Trump, he said it right there. He said, I've been criticized for this. I've been told it was wrong. I'm now vindicated by the Supreme Court. My policies have been vindicated. How does that affect the political conversation about all of this? Well, that's what's so interesting. Up until now, Republican voters have been much more motivated by the Supreme Court as an issue than Democratic voters. In other words, they really care about who's president because they get to appoint Supreme Court justices. Democratic voters have not been so seized with the urgency of this. So the question is, now that the Supreme Court has ruled in the president's favor and Republicans can see how effective Mitch McConnell was by keeping that

seat open for so long, waiting and hoping there would be a Republican president to fill it, they might feel vindicated. The question is, will Democratic voters feel motivated and start really caring about going out and voting so that they can potentially, you know, down the road shape the court more to their liking? And this has been an issue that the Republicans really have been better at mobilizing around than Democrats. And I wonder if something like this might change that or not. And let's remember, Mitch McConnell had the power to stall and hold that vacancy for nearly a year. Because he was the majority leader.

Because of the midterm elections in 2014, which gave the Republicans the Senate majority. So that midterm elections really matter. And he tweeted today an incredible picture. Well, he had him shaking hands with Neil Gorsuch and that the caption was Team Mitch. Yeah. Over and over again over the last couple of weeks, as as five to four decisions have started to come out, you've heard louder and louder cries from frustrated Democrats saying, you know, these would be five to four decisions the other way if we had been allowed to have a vote on Merrick Garland. Of course, they could have voted and rejected his nomination, but the Senate never did anything with President Obama's nomination.

And I think that that outrage on the Democratic front really went into fifth gear today with this decision. But Mara and Scott, as you pointed out, Mitch McConnell is very happy to own that and is very proud of that fact. Oh, absolutely. And when you look at the redistricting decisions that the Supreme Court has come down with, in many ways, they are locking in Republican electoral advantages for years to come. Okay. So we talked about the Roberts majority and we talked about the Sotomayor dissent when it comes to how to treat the president's statements about Muslims and how to constitutionally deal with them. There was an interesting, ambiguous, slightly cryptic middle ground from Justice Kennedy,

who concurred with the majority opinion, but issued a relatively short concurring opinion that, Scott, how would you best sum up what Justice Kennedy said? Well, I think this gives Kennedy sort of some cover in the idea that he's not endorsing the president's statements about Muslims. In fact, he says the very fact that an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more important for him to adhere to the Constitution and its meaning and its promise. So he's taking the president to task for his comments about Muslims, and yet he is not doing so in a way that actually changes the course of the president's actions.

Mara, what do you make of that, particularly at a time when everyone's wondering, will the weekend with Justice Kennedy announcing his retirement, which would allow President Trump to pick his successor. What do you make of chiding the president, even if he didn't choose to issue a ruling against the president? Well, this is way above my pay grade, trying to figure out the tea leaves. Does this mean Anthony Kennedy is more? I don't know, Ma. Everyone in Washington is looking at those tea leaves. You're very well qualified. Well, you know, the question is, does this mean Anthony Kennedy is more or less inclined to retire this summer? That's the big question.

The White House has been doing everything it can to send every possible signal to Anthony Kennedy that he should retire. Neil Gorsuch was a Kennedy clerk. Everyone on the short list of possible Supreme Court nominees is a Kennedy clerk. And they're trying to say to him, the court will be in good hands. It will be in your protege's hands if you leave. So please do. Well, we may have a better sense of all that by the end of the week when we're doing our weekly roundup. So I should mention this. This was not the only decision the Supreme Court put out this morning. The court also sided with California anti-abortion crisis pregnancy centers, saying that a California law that required the centers to be more explicit about their services

violated the First Amendment. The Supreme Court has one more day of decisions. That's tomorrow. That would likely, but not necessarily, be the day where Kennedy would or would not announce his retirement. So we are going to do a deep dive on the abortion decision and tomorrow's decision. That tomorrow's decision is a big one for organized labor. Do government employees who don't choose to belong to a union still have to pay partial union dues? So we'll talk about those two decisions. May or may not talk about a retirement as well. We will talk about all of that in our weekly roundup.

I'm Scott Tetreault. I cover Congress. I'm Mara Liason, national political correspondent. And I'm Scott Horsley. I cover the White House. Thank you for listening to the NPR Politics Podcast. Hey there, I'm Joshua Johnson, the host of 1A. There are lots of places to debate today's issues if you don't mind getting attacked for speaking your mind or asking a simple question. But 1A is different. You'll find the 1A podcast on the NPR One app or wherever you listen to podcasts.