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Is Trump’s revised travel ban constitutional?

March 6, 2017 at 6:35 PM EDT
President Trump signed a new executive order that restricts travel from six Muslim majority countries after a first attempt was shot down by the courts. Will the new order pass legal muster? Jeffrey Brown gets debate from Neal Katyal, a former acting solicitor general under President Obama, and Kansas Secretary of State Kris Kobach, about whether it will hold up in court.
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JOHN YANG: As we heard, today’s revised travel ban was drafted by the Trump administration to stand up in court after the first one was rejected by federal courts.

But critics still question its constitutional, amid a broader debate over whether it will really make the country safer.

Here again, Jeffrey Brown.

JEFFREY BROWN: And for that, we are joined by Neal Katyal, a former acting solicitor general under President Obama. He also served as a national security adviser for the Justice Department in the Clinton administration. And Kansas Secretary of State Kris Kobach, he was a top adviser to President Trump during his 2016 campaign and through the transition.

Welcome to both of you.

Let me start with you, Kris Kobach.

The first attempt failed in the courts. What do you see as the key change that might allow this one to pass?

Mr. Kobach, can you hear me?

KRIS KOBACH, Kansas Secretary of State: Now I can hear you, yes. Go ahead.

JEFFREY BROWN: OK. All right. Sorry about the technical problem.

My question was that the first order didn’t pass muster. What’s the key change here that you think allows this one?

KRIS KOBACH: Well, if you look at the two of them side by side, this one is very different in the way it’s packaged and put together.

It reads like a legal brief, rather than like a traditional executive order. It’s filled with case — with citations to statutes. It is filled with factual assertions that the Ninth Circuit said it was lacking.

And so it also goes very specifically point by point through the things that the Ninth Circuit hypothesized could cause a due process issue. So it really — it’s tailor-made to the Ninth Circuit’s decision.

And I think this order, if it were challenged in the Ninth Circuit, it would be the most activist judicial venue for it, I think it will survive. And, of course, if it survives the Ninth Circuit, it will survive anywhere else too.

JEFFREY BROWN: Neal Katyal, will it survive? What do you see?

NEAL KATYAL, Former Acting U.S. Solicitor General: It won’t survive.

I think Kris is just about as right this time as he was last time, on January 30, when he said — quote — “Trump has rock-solid legal authority. These cases are losers.”

He was wrong then. He is wrong now.

He is right that this reads like a legal brief, but it reads like a bad legal brief. It ignores what Congress has said in 1965 in its landmark act, which is, you can’t discriminate on the basis of nationality.

And to attack the Ninth Circuit as being activist, as he said, is, I think, really the wrong way to go. It echoes what President Trump said about so-called judges and so on. Every time they lose a case, they disagree.

But these are rock-solid American values that the challengers are standing up for.

JEFFREY BROWN: One of the challenges had been on constitutional grounds. In this case, is it still a Muslim ban, the way it was before, given the change in language?

NEAL KATYAL: It is.

There are some changes. In this new executive order, it does say: We don’t intend to discriminate against Muslim.

But the Supreme Court has been very clear that just because a government says that — they can always say, we don’t intend to discriminate on the basis of religion.

You have to go back to look at the history of this. And if it’s a pretext for discrimination, as this sure looks like, then it is going to fall in the courts for that reason.

JEFFREY BROWN: Well, what about that, Mr. Kobach, the Muslim issue specifically, and then also that this new law, this new order still distinguishes by nationality?

KRIS KOBACH: Well, if you look at the text of the order, it’s quite clear that it has nothing to do with religion. Indeed, it says that special protection in our refugee program is afforded to those who are members of minority religions, including in cases where the minority religion is the Muslim religion.

If you look at the selection of the six countries, you have got dozens of other countries around the world that are majority Muslim countries that are not selected for special treatment. And, furthermore, this new order calls for a review of all of the countries on the planet to see if they too should be added to the special list.

So, to characterize this as a Muslim ban is just simply false. It is based on facts about these six countries that make them hotbeds of terrorism. And those facts are listed in the order.

As for Neal’s point about somehow this being against what Congress has said, I would direct him to the United States Code Title 8, Section 1182-F, which says the president may, if he finds the entry of certain aliens detrimental to the interests of the United States, he may suspend or bar the entry of those aliens.

That’s exactly what the president did. The statutory grounds for this are very strong. That’s why the challenge had to be based on a due process constitutional ground. And so that’s what we really should be debating. Can they make a constitutional challenge on this one?

JEFFREY BROWN: Let me ask you, Neal Katyal.

That, in part, goes to this attempt time around to fill in the security justifications, right?

NEAL KATYAL: So, two things.

First of all, Kris isn’t reading to the whole statute. First of all, there’s a later statute passed in 1965, 13 years after the one he read, and this says — quote — “No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of that person’s nationality.”

That’s later. And the other part of that law that he read, Section 1182, Congress later implemented — later said that, in order to ban someone on the basis of terrorism, you have to have reasonable grounds on an individualized basis. That’s not what the president did.

JEFFREY BROWN: Let me ask you briefly, though, how much — doesn’t it come down to how much deference the executive is granted when it comes to national security and immigration?

NEAL KATYAL: Sure.

And I used to stand up and defend the United States on national security grounds all the time. This one is a very hard one to defend, because there isn’t the evidence that you need this now. Indeed, the evidence Kris is referring to that was in the executive order is from 1979 and 1984.

So, the idea that you need this magically now is, I think, a very hard argument for courts to accept, particularly given the history of this particular ban. This has been a Muslim ban from the start.

JEFFREY BROWN: Kris Kobach, what’s your response?

KRIS KOBACH: Well, the description in the executive order is not from 1979 or 1983. It talks about conditions on the ground in those six countries right now.

I would also add that, since 9/11, we have had 53 terrorist from those six countries either arrested or convicted of terrorism-related crimes who have entered using those visas from those countries since then. So, this is a very present threat right now.

And so, again, the statutory grounds are very strong. I think Neal has to admit that. But the debate about is, is there a due process violation? And the Ninth Circuit kind of had to bend over backwards and imagine hypothetical cases where somebody might be denied their day in court.

But this order says, look, you are going to get your day. If you’re in the United States illegally, you are still going to be able to make your claims in front an immigration judge.

And so I think it’s just going to be a much harder lift for the attorneys trying to challenge this. Will they challenge it? I’m sure they will.

JEFFREY BROWN: OK. We’re out of time.

But, Neal, harder to challenge, but the challenges will come, in a word, right?

NEAL KATYAL: And they’re not hard. As President Trump says, see you in court.

JEFFREY BROWN: OK.

Neal Katyal, Kris Kobach, thank you both very much.

NEAL KATYAL: Thank you.

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