The NPR Politics Podcast - Supreme Court Appears Ready To Side With Trump On Travel Ban

Episode Date: April 25, 2018

The Supreme Court heard arguments today in the case of Trump v. Hawaii, better known as the travel ban case. Also the latest with DACA. This episode: political reporter Danielle Kurtzleben, national political correspondent Mara Liasson and political editor Domenico Montanaro. 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

Hi, this is Alex Godschalk calling from Richmond, Virginia, at the Richmond Public Forum, where I'm about to see Mara Liason. This podcast was recorded at 106 p.m. on Wednesday, April 25th. Things may have changed by the time you hear this. Keep up with all of NPR's political coverage on NPR.org, on the NPR One app, and on your local public radio station. All right, here's the show. And he's about to hear Mara Eliason. No kidding. It's meta, man. Hey there, it is the NPR Politics Podcast, and we are here with a quick take that is all about the Supreme Court. Specifically, it's about a little case called Trump versus Hawaii,

which many listeners may know better as the case that deals with the Trump administration's travel ban. This is not that Trump hates Hawaii. No, not remotely. That is a very good clarification, Domenico. The Supreme Court heard arguments in this case today. And we are going to talk about what we know and what it means going forward. I am Danielle Kurtzleben, political reporter. I'm Mara Liason. I cover the White House and I'm the national political correspondent. There you go. And I'm Domenico Montanaro, political editor.

Okay. So we have a lot to dig into here. As with all things Supreme Court, to be honest, I'm a little intimidated because, you know, legal stuff is complicated. It's like facts and arguments and stuff. You're good at that kind of thing. You know, I'm not a legal scholar. Neither am I, but I'll play one in this podcast. But you've talked to... I've talked to one. Yeah, exactly. That's close enough. I'm friends with Nina Totenberg. We have the same source. All right. So the Trump administration, its travel ban has reached the highest court in the land this week, the Supreme Court. And so the case, it's had kind of a rocky journey. You know, it's been bouncing around from one court to the next. It's even gotten to the Supreme Court before this. And it's gone through a few iterations as well. So let's start with the basics. Mara, Domenico, both of you, how did we get here? Walk through this. Well, essentially, when President Trump was almost immediately after he was sworn in within that first week, he put out this executive order that's become known as the travel ban and what critics have been calling the Muslim ban. Because what it originally did was ban people from seven countries from coming into the United States. And those were all from Muslim-majority countries.

Then as the government review kind of continued on and it had this rocky rollout, they pared it down to six countries. And then there's now the third iteration, which is what has landed at the Supreme Court to make it more palatable for the court. They've made it five countries that are Muslim-majority countries, and they also included North Korea and government officials from Venezuela. Also in this ban, they had originally had Sudan, Chad, and Iraq, and the United States decided to take them off of that list because they had fulfilled minimum security and vetting standards. And what's so interesting about this, the long and tortured history of this travel ban, is that during the campaign, President Trump clearly described this

as a Muslim ban. Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States. And that, on its face, is unconstitutional because it's a religious test. Right. So, and later on, Rudy Giuliani, who's an on-again, off-again advisor to the president and currently has joined his legal team, called this a Muslim ban, but acknowledged that it had to be cleaned up in order to pass constitutional muster. When he first announced it, he said Muslim ban. He called me up. He said, put a commission

together, show me the right way to do it legally. And what we did was we focused on instead of religion, danger, the air areas of the world that create danger for us, which is a factual basis, not a religious basis, perfectly legal, perfectly sensible. and that's what the ban is based on he is trying to say this isn't on a religious basis but he is kind of shooting himself in the foot right he's saying the guy wants a muslim ban but i gotta make it constitutional how am i gonna do that i gotta make it seem like it's not a religious test right and that and that even though that's what he wanted right yeah and Yeah. And so and that tape is actually from January 2017. It's from just after the president signed this travel ban. The interesting

thing about this, the original ban was that it was always meant to be temporary. And the idea was that whether it was 90 days or 120 days during that period of time, a couple of things would happen. Number one, these countries would have the opportunity to get their screening processes up to snuff, and also that the United States would institute what President Trump has often called extreme vetting. So those deadlines have long passed. And as Domenico mentioned earlier, some of the original countries that were on the list have dropped off because presumably they've now met the United States criteria for screening. Although one thing we should add in here is that initially there was one indefinite part of this. It did initially indefinitely stop Syrian refugees from coming to the U.S.

That has been backed off. But initially that is one indefinite part of this ban. So that's from way back when this all started. But let's fast forward to today. Right. Because today, both sides came forward. They made their arguments on this. And we have some big news out of these arguments. Right, Domenico But Nina felt very clearly that there were very intense arguments in the court and that the court's conservative majority appears ready to side with President Trump on this travel ban. Justice Kennedy, who's often a swing vote in this, multiple times, repeatedly through the arguments today, said that the court does not usually second guess a president's national

security decisions, even in the context of an immigration law that bans discrimination based on nationality. Now, why that's important is because at issue here really is one big question. The president's national security power, which is usually unquestioned versus the congressional power on immigration. There was a 1965 law that went into effect that banned discrimination based on nationality or religion. What Kennedy here clearly is saying is that the president's national security authorization takes precedence over that. What's so interesting also about the journey that this ban has taken is each iteration, as it's gotten punched in the nose by the court, has changed. And Trump has complained about it. He said that

this version is a watered down version. It's really not what he wanted. I guess some critics would say what he wanted was a Muslim ban and it's had to get watered down so it doesn't look like one. But that's what's so interesting about this. And just to give some ballast to Nina Totenberg's impressions, every other court watcher who I have read today agrees with her. That there's going to be a 5-4 majority. And that's exactly how I would put it, them agreeing with her. It's very important. And that's the way we're going to leave that.

Nina leads, the world follows. I would say that in the court today, you know, you had Justice Kagan really made the strongest argument in support of the challengers or at least what the government had to face from her. Because she created this hypothetical where she said, imagine in a future time a president who's elected as a vehement anti-Semite, sort of flipping the script on this and saying that president issues an order that dots all the I's and crosses the T's when it comes to process, but that issues this proclamation that says no person may be permitted from Israel. So she threw that to the Solicitor General, Noel Francisco, who's making the case for the government. And he replied that if the administration as a whole agreed, if the cabinet agreed that there was national security risk for people coming from Israel, then the court will be

obligated to uphold that order. And he pointed out that that hypothetical, though, isn't what's actually happening in this case. Now, Kagan sort of slyly replied to him and said, well, let's just say this is an out of the-the-box president. And that actually prompted mass laughter within the court because of the elephant in the room. Right. So we've gone through some of the government's arguments, you know, the government saying that the president has the power, Mr. Francisco arguing this argument about Israel with Justice Kagan. Let's look at very briefly at Hawaii's side of this. What were Hawaii at all with their attorney, Neil Katyal?

What were they arguing today? So when you look at what Neil Katyal, who's somebody who has argued landmark cases before the Supreme Court previously, both for and against executive power on the context of national security, is somebody who's done a lot of work at the court. He calls this unconstitutional, unnecessary and un-American. Right. The people who are arguing this, they're essentially talking about a lot of what we talk about with politics, that this has to do with morality and the immigration law and putting more power on not banning people because of specific countries or because of religion, but because of actual risk. And he's saying that that doesn't exist. Here are folks from these countries, none of whom in the last 40 years have actually caused any problems in the United States. And yet the president and the administration are putting them on the list.

Let's repeat that. The countries on this list, we have not had a terrorist attack in the United States that was perpetrated by any person who came from any of the countries on that list in 40 years. Is that correct? In the United States. In the United States. Correct. But that's what we're talking about, people coming to the United States. It is. That's exactly right. We are not a legal podcast. We are a politics podcast. So put this in context for us. Like, grand scheme of things, Mara, how big of a deal is this case right now?

Well, I think this case is part of a very big theme of President Trump's, which is this to me is the kind of bedrock. This is the touchstone of Donald Trump's political appeal. He rode down the escalator at Trump Tower, called Mexicans rapists. Every time he's ever gotten into a political corner, he has reached into his political tool bag and pulled out some kind of xenophobic appeal about a caravan of illegal immigrants coming, about a Mexican-American judge. Actually, he was born in America. His parents were Mexican-American, who couldn't be fair to him. It's always he returns to these same themes, whether they're Muslims or Mexicans. That is really kind of his deepest, I think the president thinks, his deepest bond with his base is around these issues. So let's say that the court rules against the Trump administration.

I'm wondering, is there still sort of a political win there for Donald Trump? At the very least, because he really likes having someone to push against. He likes having a green card. But I think it's unlikely. Look, that's a very unlikely hypothetical based on everything that we know from our Supreme Court experts. But if they rule against him, he'll go after the court system as he has many, many times. But I think more likely is that he wins. And that's why I'm waiting to see what kind of victory Dancy does. And if he reverts to the original appeal of this ban, the original political appeal was that it was a Muslim ban, not that it was something carefully

crafted for national security. Let's say the court does go in the direction that Nina and other court observers have seen today. Sure. The likelihood that that could fire up Democrats and liberals just five months before the election is quite high. Right. Because what we've seen here, you know, we were talking about the grievance politics. But again, it's satisfying to Trump's base. And the worst thing that can happen in a midterm election is that that president's party or any group is satisfied. Because if you feel good about the direction of the country, if you're satisfied with how things are going, that makes who want to fight a resistance, feeling like that this president is, you know, fueling, as Mara said, xenophobic ideas that go against what they believe deeply and morally is antithetical to American-ness. But overall, we know that immigration and these cultural issues about Hispanics or Muslims, whatever it is, are very important to Trump's base. But as a specific issue, the travel ban really isn't that emotional an issue.

The wall, I think, packs a bigger punch. Right, but combined, the travel ban, the wall. Yeah, all those things. And not only that, but the travel ban was such a central part of his campaign. He can count it as a campaign promise kept. Yes, there's no doubt about that. But I agree with Domenico. A political win in the Supreme Court fires up his opponents as much, if not more, than his own base. So there's a sort of win-win and lose-lose for the Trump administration on this. And the fact of the matter is, you know, I keep coming back to it.

And I know some people don't like when I talk about this who may be hosting this podcast. Are you going to say elections have consequences? I may be implying that elections perhaps might have consequences, especially when they come to things like the Supreme Court and foreign policy. Both of these have to do with those things, you know, by happenstance. So try not to subtweet me on that. And what will happen, I think, if the president wins in the court is the Democrats get to have a jolt of energy in the Senate races, which are their biggest hill to climb this year. Yeah. Gotcha. So, Domenico, when should we expect this ruling? Well, this was the grand finale at the court.

That was my grand finale trumpet. It wasn't very good. No, I got that. I got that. So this was the last oral argument of the Supreme Court's session. We're not expecting a decision until June. The court is backed up with a ton of other cases. There are maybe eight to 10 major cases that still have not been decided, including some things from the fall. The court hasn't gone

to July in quite some time, but don't be totally shocked. But June is when we're expecting the decision in this case. Okay. We are going to take a quick break. And when we come back, we will talk more immigration. We will talk about DACA. Support for this podcast and the following message come from FrameBridge. Easy online custom framing for your favorite art and photos. The perfect Mother's Day gift is already on your phone. Frame it with FrameBridge. Their team will custom frame your pictures and deliver them straight to you in days. Get 15% off your first order at FrameBridge.com with promo code NPR. Hey, I'm Kelly McEvers, host of NPR's Embedded, and we've got a new episode all about how Scott

Pruitt ended up running the EPA. It's a story about Pruitt's life in the Southern Baptist Church, how he handled a major pollution case, and why he sued the EPA 14 times. Just search for Embedded on the NPR One app or wherever you get your podcasts. Okay, we are back. So let's talk DACA. That's the Deferred Action for Childhood Arrivals program. It's an Obama administration policy that you may remember was instituted to allow people who were brought to the U.S. illegally as children to stay. And we had some news on that last night, right, Mara? What happened? Yes, we did. We had a judge in the federal district court in the District of Columbia saying that DACA would have to continue and that the government would have to not only continue renewing DACA permits, but they would have to allow new permits to be issued.

The judge said that the administration's argument was, quote, virtually unexplained, and that they have 90 more days to come back and explain better why they want to terminate DACA, why it's unconstitutional. And what's really interesting about this is that DACA, as you said, was this Obama-era program that gave relief from deportation to certain people who were brought here illegally as children in some cases and were either enrolled in school or the military. They had to fulfill certain criteria. Donald Trump ended this program. And when he ended it, he said, I'm giving Congress a March deadline to either legislate this, turn it into law, or I'm going to end this program. So far, we've had three courts rule against Trump on this. We have had, I think, one court in Texas, a lower court rule for him.

But this has not been resolved by the court system. Meanwhile, Trump and Congress have tried several times and failed every time to come up with some kind of a negotiated compromise to pass a DACA bill. What's fascinating about this here, though, this judge, Judge Bates in D.C., is actually a Bush appointee in 2001. And he described the administration's decision essentially to try to phase out DACA as, quote, arbitrary and capricious because the department failed adequately to explain its conclusion that the program was unlawful. If they fail to come back and make this argument within 90 days, then the government's going to have to, the Department of Homeland Security is going to have to accept and process new as well as renewal DACA applications. That's kind of a big deal.

Right. Yeah. And, you know, looking ahead, first of all, Mara sort of got at this a bit. This has DACA kind of like the travel ban has had kind of a bumpy ride. It's had other courts rule against it. But looking ahead, there could be yet more courts. I mean, there's still a path ahead for this, right? There are appeals courts. This is not the high court of the land, as we had first talked about in the top of this podcast about the Supreme Court, right? This is the third decision in recent months that have gone against the Trump administration when it comes to DACA. There was one in Brooklyn, one in San Francisco, and now one in D.C.

Like, OK, but what do all those have in common? They're blue states. Right. They are blue places. And inevitably, what's going to happen most likely is there will be a challenge or an appeal to one of these decisions made to the Supreme Court. The court will decide if it will accept it. And then likely next year, sometime, most likely, we're going to be talking about DACA right after we've now talked about the travel ban case. And what do all these things have in common for politics? Immigration, grievance policies.

And, Mara, you know, Domenico was talking about these court decisions out of blue states. I mean, do the potential political ramifications of this case of DACA, do they look a lot like the ramifications we talked about with the travel ban earlier? I think so. They're very similar. Trump loves to go against the Ninth Circuit and complain about them. And even though he really hates to lose, I would make the argument that politically, having the court not finally resolving this issue is a good thing for Donald Trump politically, because he doesn't have to be the guy who's going to start deporting DACA kids. Many of them were brought here as infants, their first responders, their teachers. Some of them are in the military. And Donald Trump has talked about the DACA recipients in many different ways. Sometimes he says, I love them. They have nothing to worry about from me. I want to resolve this with a lot of heart. But every time Congress and the White House have gotten right up to the edge of a compromise on this. Trump has usually backed away because he's

insisted on adding restrictions for legal immigration into some kind of a DACA deal. And also getting like full funding for the wall. Yes, but the Democrats were willing to give him full funding for the wall in exchange for legalizing the DACA recipients. But at the end, he always says, no, we also have to get rid of family reunification and the diversity lottery, which has a result of decreasing legal immigration to the United States by 44 percent. And so I think like just explaining what family reunification means is, you know, you come to the U.S., you know, you get a green card or you get citizenship legally, and then you're able to bring over various family members. And the Trump administration want to limit the number of family members who come because critics call that chain migration. The thing that's so interesting to me is that we've talked a lot about the raw emotion of the immigration issue.

The policy debate on immigration has really morphed. During the campaign, Donald Trump, it was all about illegal immigrants. Now it's become about legal immigration. And there is a strong feeling among Trump aides like Stephen Miller that we just have too many immigrants. The immigration hardliners who do have Trump's ear on this believe that legal immigration to the United States must be sharply curtailed. That's all that the debate about family unification, which they call chain migration and diversity lottery is about. All right. Well, whether it's the 2018 midterms, appeals courts, the future of the Democratic Party, we could go on about this for five more hours. We could. We're going to keep going right now.

All right. Well, you two leave the room. But meanwhile, that's it for today. We will be back in your feed tomorrow with our usual weekly roundup. Meantime, you can keep up with our coverage on NPR.org, NPR Politics on Facebook, and, of course, on your local public radio station. Thanks to everyone for submitting timestamps for the top of the show. We're only able to use some of them, but we listen to all of them and we enjoy hearing you. So if you want to submit one, just email a recording of yourself to NPR Politics. That's all one word, NPR Politics at NPR.org. I am Danielle Kurtzleben, political reporter.

I'm Mara Liason, national political correspondent, and I cover the White House. And I'm Domenico Monsignor, political editor. And thank you for listening to the NPR Politics Podcast.