Today, Explained - SEE YOU IN COURT

Episode Date: April 24, 2018

The Supreme Court wraps up its term with a bang tomorrow: Trump v. Hawaii, the travel ban case. The Court will hear arguments on whether the ban exceeds the president’s powers under federal immigration law, and whether it violates the establishment clause (unfairly targeting Muslims). Also at issue, the president's tweets. The nine justices will consider whether Donald Trump's tweets and retweets reveal intentions different from what's on paper. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Sweet Caroline. Vander Ploeg. Yeah. Get your head in the game here. Did you know that 80% of employers who post a job on ZipRecruiter get a quality candidate through the site in just one day? I think I've heard that before. Oh, well, it's in this email they wrote me. They said to say that.

Oh, good. Well, glad you said it. So I wanted to say it. So, you know, you can find out more about ZipRecruiter at ZipRecruiter.com slash explain. But we'll figure out this intern thing soon. Oh, yeah. Let's do it like maybe in the middle of the episode. Somewhere in the middle of the episode.

Okay. Okay. See you in court is a thing you can say to a malpracticing doctor, maybe a contractor who didn't finish the job, a spouse as a marriage is crumbling. It's not every day you say see you in court to an actual court. But the president did just that a couple of weeks after entering office last February. We just got a tweet from the president of the United States. This is what he said. He said, see you in court. The security of our nation is at stake. That suggests he's going to continue the legal struggle. Now, to clear up any confusion,

the court the president was tweeting at was the Ninth Circuit U.S. Court of Appeals. The court the president was hoping to see that court in was the Supreme Court of the United States. There's a lot to talk about. The president finally gets his way tomorrow. It is huge. It's the last oral argument of the term. Amy Howe co-founded SCOTUSblog and reports on the Supreme Court.

The case heading there tomorrow is called Trump v. Hawaii. But you might know it as... The travel ban. Maybe even the Supreme Court. The case heading there tomorrow is called Trump v. Hawaii. But you might know it as... The travel ban. Maybe even the Muslim ban? That is the heart of the case, really. Okay, so how did this thing get started? Where exactly does this story begin? For many people, it begins back in 2015 or 2016 when Donald Trump was on the campaign trail following a terrorist attack and called for what he called a ban on Muslims. Total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what the hell is going on.

And then he was elected in 2016. He took office in January of 2017. And at the end of January in 2017, he issued an order kind of out of the blue, which is the one I think that most people think about because of the chaos that resulted at airports around the country and overseas as people struggled to figure out what the order meant. But this was an order that banned travel to the United States for 90 days by residents of seven Muslim-majority countries. And it also suspended the admission of refugees for 120 days. Which countries were listed in the travel ban, the first one? In the first version of the travel ban, it was Iraq, Iran, Libya, Syria, Sudan, Somalia, and Yemen. And what happens when this order is issued?

How does the country respond? How do people respond? There was chaos and confusion at airports today as President Trump's immigration crackdown took effect. Protests erupted as refugees and immigrants from several Muslim-majority countries were detained or blocked from flights. I mean, I think there was a fair amount of outrage, both overseas and in the United States, that this was an order that was intended to target Muslims. People were getting on planes or prevented from getting on planes, not knowing whether they'd be able to come to the United States. Supporters at JFK cheered as one of the two men detained overnight was released.

Iraqi Hamid Khalid Darwish has a special immigrant visa thanks to his work for the U.S. government. I support the U.S. government for the other side of the world. But when I came here, they said no. And they treated me as if I break the rules or do something wrong. There were the scenes on TV of lawyers going to the airport, trying to help people who are arriving to figure out whether or not they were covered by the order. A lot of outrage, both at the substance and at the manner in which it was implemented so abruptly. One day you could come to the United States, the next day you couldn't. And the state of Washington went to court, arguing that the order was illegal. A district judge in Washington state blocked the government from implementing the order. And the government may

have even announced that it was going to seek Supreme Court review, but it didn't. It decided to go back to the drawing board instead. And the president issued 2.0 on March 6th, 2017. President Trump has dropped Iraq from the new travel ban list, which now includes Sudan, Syria, Iran, Libya, Somalia, and Yemen. The citizens of these six countries will not be able to obtain U.S. visas for the next 90 days. And the second version still gets challenged, right? Hawaii, Maryland? Yes. And in both of those cases, again, the district court blocked the government from enforcing the ban. The government went to two different courts of appeals. They upheld the lower court's orders, blocking the government. And then the government went to the U.S. Supreme Court.

As the second order, 2.0, was getting ready to expire, President Trump issued a third proclamation. There's a 3.0. 3.0. And that is actually the order that will be before the Supreme Court tomorrow. Okay. Travel ban 3.0. Travel ban 3.0. Travel ban 3.0.

How does the administration's strategy change with this third ban, with 3.0? One difference is just in the countries that are covered. It restricts travel to the U.S. from eight countries, including five on the original ban, Iran, Syria, Somalia, Yemen, and Libya. New to the list, Chad, North Korea, and Venezuela. We have in there some clearly non-Muslim majority countries. And the other main difference is really sort of the way that the Trump administration explains how it arrived at these countries. The Trump administration, when it issued this order, explained that this order

was the process of a lengthy and detailed review by several different federal agencies who concluded that these eight countries weren't providing the U.S. government with enough information and sufficiently reliable information to determine whether people coming to the United States from these countries would pose a threat to the United States. Okay. So the Trump administration is presenting it as something that, whatever you may have thought of these other orders that came before, we arrived at these countries after this careful multi-agency review process. And since the case is called Trump v. Hawaii, I can only assume Hawaii challenges this third travel ban too?

Yes. So we go through the same thing. The district court in Hawaii and Maryland puts the 3.0 ban on hold. So government goes to the U.S. Court of Appeals for the Ninth Circuit, the Fourth Circuit, but at the same time it goes to the Supreme Court, and this was sort of an interesting development, asks the Supreme Court to allow it to implement the ban while the appeals go forward, not only in the Supreme Court when it comes there, but the Ninth Circuit. Okay. And the Supreme Court said yes.

And that is significant because you need five votes at the stay is going to be successful on the merits. So there's clearly at least some sympathy for the Trump administration at the Supreme Court going in. Okay. So in the meantime, this travel ban is in effect, right? It is in effect. That is how this works. That is correct. Because of the stay. Because of the stay. And so all this comes to a head tomorrow at the Supreme Court. It does indeed.

You probably go to the Supreme Court quite a bit. Yes. Will tomorrow be any different? It will be different. People had actually started over the weekend lining up for one of the roughly 50 seats that's available for the public. And so you have a lot of people waiting in line and hope that they will get in. And I think there will be many, many people protesting. It could have a very circus-like atmosphere outside the Supreme Court.

When you go into the Supreme Court, it will also be different. There just tends to be a sense of a buzz almost on the days of these high profile arguments that you don't get, even on relatively significant argument days. There will be many, many more reporters than are usually there. The press section will be very crowded. The chamber itself will be packed to the gills, I imagine. There will be, in all likelihood, celebrities or what passes for celebrities in Washington. You know, it's hard to know for sure who will be there. Yes, I mean, maybe Rudy Giuliani, who was one of the president's advisors, senators. Poor D.C. They need to get themselves some better celebrities. Exactly, exactly.

Amy and Rudy will probably head to the Supreme Court tomorrow. One question the highest court in the land will have to answer, can the president's tweets be used against him? That's in a beat. This is Today Explained. Vanderplug, last time we checked in, we were talking about maybe hiring a summer intern for Today Explained. Yeah, we could use an intern. Yeah, so we're going to go to ziprecruiter.com slash explain to do that. But I was thinking we should talk about what qualities we want this intern to have.

You know, I really always appreciate a can-do attitude. Sure, we need that around here. Good. I want someone who thinks it's important that we feature a wide range of voices on the show in addition to can-do attitude. And, you know, can actually find those voices. That would be good too. That's tricky sometimes. Okay, what else you got?

I was thinking sort of a fast talker. Just somebody- Like a fast talker New Yorker? Yeah, like an auctioneer, you know? Things go faster when you talk faster. Okay, I want someone who brings their own water bottle or at least grabs a glass from the kitchen. None of that plastic water, John.

Oh yeah, that's a given. What else you got? A strong boxer. Just to defend us from intruders. Think we can find all of that at ziprecruiter.com slash explained? I would bet you that we could. Don't bet me any money because it's free. Whoa. When the nine justices hear oral arguments tomorrow in Trump v. Hawaii, they'll be dealing with two big issues.

The one that is probably going to get a lot of airtime, the one that people think about the most, is whether or not the order violates the Constitution's Establishment Clause, which prevents the government from favoring one religion over another. Whether the order is a Muslim ban. Whether it's a Muslim ban, whether it was intended to discriminate against Muslims. Okay, we'll get back to that one. Give me the other really big one. It kind of goes hand in hand, but putting aside the constitutionality of it,

whether or not the order just exceeds the president's powers under federal immigration laws. Okay, so whether or not it goes beyond the means of the office of the president. Yes, exactly. So let's get to that one first then. Does it exceed the president's powers? And the Trump administration's argument, obviously, is that it does not.

They say that the president has very broad powers over immigration, and that's what he was exercising here. He arrived at this order, decided that allowing people from these countries to enter the United States would be detrimental to the country's interests because we're not getting enough information to determine whether there are threats to the U.S. Okay. And I mean, is there any evidence of the efficacy of this travel ban? Has there been less terrorism since we passed it? Is there any evidence that these countries are where the most terrorists come from? That is a question, certainly, that the justices may well ask at the oral argument tomorrow. One of the arguments that the challengers are making, sort of related to that, is that Congress has already tried to deal with these questions.

And one way that it's done it is what's known as the visa waiver program. The idea that there are some countries where when you come to the United States, and other countries do the same thing for U.S. citizens, you don't need to get a visa because we have enough information from these countries about whether or not someone from the United Kingdom or from France is going to pose a threat to the United States. And so they said that Congress has already decided that this is how we're going to deal with that problem. And so you can't just then impose a blanket ban because you don't like the information. The solution then is to require people to apply

for visas and evaluate these on a case-by-case basis rather than just banning 150 million people. The other argument that the challengers are making is that they'll agree with the Trump administration to a point. They'll say, yes, the president does have a lot of broad powers to regulate immigration, but this just goes too far. This order doesn't just suspend the entry of people from these countries into the United States. It imposes the ban indefinitely, and the president can't do that. The president can't discriminate based on the nationality. And there is precedent for this, right? I mean, Japanese internment comes to mind first

off, but what else is the Supreme Court looking at as far as prior casework? And there is precedent for this, right? I mean, Japanese internment comes to mind first off. But what else is the Supreme Court looking at as far as prior casework? Sure. I mean, that's kind of lurking. That was U.S. citizens living in the United States during World War II. But one of the things that the Trump administration does point to is that during the Iranian hostage crisis back in the late 1970s, President Jimmy Carter ordered a virtual shutting off of all Iranian immigration into this country by refusing new visas to Iranian citizens. And President Ronald Reagan did put a freeze on people from Cuba coming to the United States. They say if President Trump can't do this, then those actions would be illegal as well. How much might the fact that this isn't so much about one country or one nationality, but the fact that if you look at a common thread through a lot of these countries up until the third travel ban, it's religion. I guess this is one of the other big issues, right?

Whether or not this is a Muslim ban. Whether this is a Muslim ban. And the president's argument points to exactly how we got here. He said, you know, whatever you may have thought of the first order or the second order, this was something that we did very carefully. We decided that these countries don't provide us with the kind of information we need. So we're going to have to suspend entry of nationals from these countries. And they point out that there is a case-by-case waiver process. So it's not that people from these countries can never come, but it's just harder to come. The challenger's argument really is that this is old wine in new bottles, that this order is a

direct descendant, and it's a phrase that they use, of the first two that added some token restrictions on North Korea, Venezuela, and Chad, and particularly North Korea and Venezuela. They point at the orders themselves, particularly the first two orders, and then at the president's comments on the campaign trail and his tweets. And so that is a fascinating aspect of this case. The justices likely follow social media to differing degrees depending on the justice but are not themselves on social media. But this is really the first Supreme Court case that I can remember where so much of the evidence to support this allegation that the order violates the Constitution's Establishment Clause is the comments by the president and his tweets.

The Supreme Court is going to be very conscious that, you know, whatever they say about how much you can consider these tweets and these statements is making law not just for this case, but for future cases. President Trump tweeted the following quote, we have to get tougher and smarter than ever before, and we will need the wall, need the ban. The Justice Department should have stayed with the original travel ban, not the watered down politically correct version. People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a travel ban. Is there a precedent for considering what a president has said on twitter when when a case

goes to the supreme court no we are in in uncharted waters the government's argument is that really where do you draw the line if you look at comments that were made on the campaign trail do you go back before they were running for office do you go back and look at what's in college and the challengers counter argument would be i think that you don't need to go back to college. All you need to do is go back and look at what he said as a candidate and as president. But it really is a minefield that the justices are probably going to have to navigate. So what happens if the justices find that, oh, this is a Muslim ban? Is it thus unconstitutional? violates the constitution. And so if they were to determine that it was intended to target Muslims, that would almost certainly weigh very heavily in favor of striking it down, but I'm not necessarily

sure that it would be enough. Okay. This has been a long time coming, this appearance of this travel ban in the Supreme Court. Is there some sense that at least in a month or two, we'll have a final answer as to whether this kind of thing is allowed or not? I think that we can say with a fair amount of confidence that by the end of June or early July, but I think probably by the end of June, the Supreme Court will issue its decision and it will tell us what it thinks about Travel Ban 3.0. McCarthy, our engineer is Afim Shapiro, Luke Vanderplug produces, the Honorable Breakmaster Cylinder makes music for us, and sometimes our own Noam Hassenfeld makes music for us too. Shoutouts to Paige Flager and Jillian Weinberger for pinch

producing this week, and to Julie Bogan for handling the tweets. Find us on Twitter at today underscore explained. Score Explained. All right, Luke, before we post all of our info to ZipRecruiter.com slash explained for free, should we narrow it down a bit? I think we have like six ideal qualifications. Yeah, that was a lot. So I think we really need that can-do attitude. Can-do attitude. I really think the diversity of voices is important.

And I'm still thinking we need a boxer. Oh, perfect.