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Legal View with Ashleigh Banfield

Interview with Rep. Sean Duffy and Rep. Joaquin Castro; Obama to Take Executive Action on Immigration; 3 Injured in FSU Shooting

Aired November 20, 2014 - 12:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

MICHAELA PEREIRA, CNN ANCHOR: "LEGAL VIEW" with Ashleigh Banfield starts right about now.

ASHLEIGH BANFIELD, CNN ANCHOR: Hello, everyone. I'm Ashleigh Banfield. And welcome to LEGAL VIEW.

Whatever your views on immigration, it is clear that President Obama's go it alone reform plan is finally ready for prime time. By which I mean he's hammered out the details of an executive order that he'll present to the nation at 8:00 Eastern tonight. That is eight hours from now.

As we speak, Democratic leaders of the Senate are heading on over to the cameras to rebut the Republican claims that the president is crossing a line here and overstepping his bounds. It is an argument made rather forcefully in the past by that guy, Barack Obama, in fact.

Now, however, he is expected to spare from deportation several million undocumented parents of children who were born in the United States. He is not expected to allow those parents to claim health care subsidies under Obamacare and he won't protect parents of so-called dreamers who were brought -- who brought -- who were brought to this country illegally as very young children. The dreamers themselves won protection in 2012 and those protections may be broadened now.

Here's what the president said yesterday on Facebook.

(BEGIN VIDEO CLIP)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: Everybody agrees that our immigration system is broken. Unfortunately, Washington has allowed the problem to fester for too long. And so what I'm going to be laying out is the things that I can do with my lawful authority as president to make the system work better, even as I continue to work with Congress and encourage them to get a bipartisan, comprehensive bill that can solve the entire problem.

(END VIDEO CLIP)

BANFIELD: Straight to Capitol Hill live now, where you can see Harry Reid, the Senate leader for now, is holding a news conference, along with other Democratic leaders. Let's listen in.

SEN. HARRY REID (D), DEMOCRATIC LEADER: This decision to tell innocent children they will not be pulled away from their parents' arms. I've seen this firsthand in Nevada, how a broken immigration system has torn families apart, sometimes forever. The president's decision is not a political victory. It's a victory for families.

We know well that this decision is not a permanent solution. It is a first step. If we had it our way, President Obama would be signing a comprehensive immigration bill into law, instead of an executive action. But we can't sit idly by, waiting for Republicans to act while homes are being broken up all across this nation. We've waited 511 days. All the House would have to do is take up the bill and it would pass. It would pass overwhelmingly. Virtually every Democrat would vote for it and many Republicans would vote for it. It would pass. Republicans keep saying, give us more time. Give us more time. Five hundred and eleven days is enough time. We've given them this time, waiting patiently.

But in the meantime, four (ph) of us will support this historic step of family stability and that's what it's all about. And also, as indicated in the meeting last night at the White House, we told the president and we're telling him before all these TV cameras, we've got his back.

Senator Durbin.

SEN. RICHARD DURBIN (D), ILLINOIS: I want to thank Senator Reid, but I especially want to thank President Obama. He's accepted the responsibility of moving this nation forward to fix our broken immigration system. We tried in the Senate. Senator Schumer and I were part of a group of eight senators, four Democrats, four Republicans. We came up with a comprehensive immigration reform. One that really addressed every aspect of immigration. We passed it with an overwhelming vote in the Senate and sent it to the House of Representatives 511 days ago. Since then, they've refused to call this bill or any part of it.

Now, the president is stepping in with executive action to try to deal with accountability when it comes to immigration. Well, the critics are going to call it amnesty, but as Senator Rubio has reminded us, doing nothing, leaving the current system in place, is amnesty. What the president is calling for is accountability. He is saying to those who have been here at least five years, that they need to step forward, register with our government, pay the filing fee, submit themselves to a criminal background check, and pay their taxes.

Are they entitled then to government programs? No. But they can legally work in America, period. That is what the president is proposing. That, to me, is humane. He is looking to those families where there are already U.S. citizens as part of the family. Senator Reid said he's seen these families. I've seen them too. Broadway -- Broadview, Illinois, is a suburb outside of Chicago and every Friday morning a bus pulls in and is filled with those who are about to be put on airplanes at O'Hare and sent down largely to Mexico, out of this country. I've been there. I've been there with many people who stand in vigil as they're being sent away. And I've met these families. It's a heartbreaking situation.

These are not felons. These are members of families. These are not criminals. These are children. And what the president is saying is, set a priority to keep America safe. Let's make sure we go after those with a criminal record and tell them they have no place in America. Let's make sure we go after repeat offenders and tell them they have no place in America. But when it comes to families with citizens in the household, if they've been here at least five years, we give them a chance to come out of the shadows, play by the rules, and be held accountable.

And the president believes that by doing this we can devote even more resources to a safer boarder between the United States and Mexico. That is a good outcome for America. The Republicans who are criticizing the president for this executive action ignore the fact that 11 previous presidents have done exactly the same thing, using their executive authority to address the issues of immigration. This president is going to uses his executive authority to try to solve a problem which the House Republicans refuse to even address.

It's the right move for America. It is a first step. We still have our responsibility, to do something in Congress. But until we do, the president is doing the right thing for America.

BANFIELD: Senator Dick Durbin, the majority whip, also joining Harry Reid and other Democratic leaders from the Senate in advance of what is going to be a major address in prime time by the president to announce his executive action dealing with immigration reform. Executive action exactly not perfectly lined out and explained yet, but just wait because it's coming.

And joining me today from Los Angeles is our senior legal analyst Jeffrey Toobin, who is good at this stuff because, Jeff, we're hearing lots of echoes of lawsuits and legal action against this executive action. This is complicated stuff. It is murky at best, even for constitutional scholars it would seem. But, effectively, is what the Republicans -- is what they're saying, that you can't just make a rule that undoes law? Is that what they're saying when they say they have the right to sue?

JEFFREY TOOBIN, SENIOR LEGAL ANALYST: Well, there are a couple of different things here. There are laws on the books that say certain people may be deported under certain circumstances. And what the president is doing is he is creating certain categories of people that the government will exercise its prosecutorial discretion and say, we're not going to be deporting those people for the time being.

Now, remember, one thing that I think is worth keeping in mind about executive orders in general is, they can be overturned by subsequent presidents. That's a big difference between an executive order and a law. Laws have to be overturned by Congress. But a new president could come in 2019 and say this whole thing was a terrible idea and overturn it. This only will be in existence as long as a president, Barack Obama or his successor, keeps it in place.

BANFIELD: So I just want to read something here that I think is helpful from our CNN wire service. If the president's actions effectively nullify federal law, then they're unconstitutional.

TOOBIN: Right.

BANFIELD: But if his actions merely channel enforcement resources to other areas covered under the law, then it's within its discretion to do so. So is the layperson's version of that, if you're going 70 in a 55, the policeman might pull you over. But if you're going 60, he might use that discretion and say, I'm going after the worst guys, and that's allowed?

TOOBIN: That's right. And just to think about it in a different context. Colorado and Washington state have legalized marijuana. Marijuana is still illegal under federal law. But what the Obama administration has done has said effectively, we are going to put Washington and Colorado on probation, so we are not going to prosecute marijuana cases, except in certain limited circumstances, in those states to see how it goes.

Now, that's not overturning the federal prohibitions on marijuana law. It's an exercise of prosecutorial discretion saying, we're not going to bring those cases for the time being. That's a similar thing to what's happening with immigration now. They will not bring deportation actions against certain categories of people because of what the president is going to do tonight.

BANFIELD: So, you know, Rick Perry, the Texas governor, has said yesterday and even today at a governors' convention, that this is - it's definitely within his reality to launch a lawsuit, saying that his state suffers immensely the cost of illegal immigration. Technically speaking, in order to actually bring suit, don't you have to have standing and don't you have to prove some kind of injury.

TOOBIN: Yes.

BANFIELD: And to that end, I know that sounds simple, but when you're talking about government, government action and executive action, what does that look like?

TOOBIN: Well, I think Rick Perry's lawsuit, if it happens, will be thrown out of court for just that reason. And I'm not saying that because I think President Obama's doing the right thing or this is a good idea. I just think as a purely legal matter, standing is a very well-established concept in the Supreme Court and you need a legal injury. You need your taxes raised. You need an enforcement action against the state of Texas.

This executive order does not do anything to the state of Texas. Any effects would be indirect against the state of Texas and that is not enough for legal standing, at least as far as I understand it. So, you know, it may be that Congress can try to defund certain activities. That certainly is within Congress' power. But a lawsuit by a state just doesn't seem to be procedurally something that the courts would listen to under any circumstances.

BANFIELD: Well, it will be interesting to see what the president says and then what everyone else does afterwards. Jeff Toobin, always good to see you, thank you.

TOOBIN: Okeydoke.

BANFIELD: And a programming note for you. You can see President Obama outline these plans for immigration reform tonight, 8:00 p.m. Eastern Time. We're going to carry it live, from start to finish, right here on CNN with all the analysis to help sort out sort out what all of this means and where it goes from here.

And where does this show go from here? Oh, straight to Capitol Hill because two members of Congress with very different views on just how the United States needs to go about immigration reform are about to speak with us. They're smiling. They're smiling now, but I guarantee you in two minutes' time they're going to be at each other's throats. I mean it in the kindest way. Looking forward to hearing from both Representative Joaquin Castro and Representative Sean Duffy right after the break.

(COMMERCIAL BREAK)

BANFIELD: We're a few hours away from a presidential address to the nation, but you won't see this broadcast on the big broadcast networks because officially the White House didn't even request network air time. Of course, CNN is going to bring you complete special live coverage before, during and after the president's remarks on immigration. He promised months ago that if Congress couldn't pass a bipartisan reform plan, he would act on his own, which he is now about to do and that through the form of an executive order.

Among other things, he's expected to focus on deportation efforts on illegal immigrants who commit crimes and spare the law abiding undocumented parents of kids who were actually born here, who are U.S. citizens.

And joining me now from Capitol Hill to hash out this whole debate, Congressman Joaquin Castro, the Democrat from Texas, and Congressman Sean Duffy, the Republican from Wisconsin.

And I'm going to start with you, if I could, Congressman Duffy. It all sounds so good when you hear it in a headline, helping keep the families together. You know, deciding when Congress won't work, the president will. What's wrong with what the president's doing?

REP. SEAN DUFFY (R), WISCONSIN: So, first off, the president had an opportunity to pass immigration reform when he had the Senate and the House his first two years of his presidency. He said no. He also said he can't do this because he's not an emperor. He said it's not lawful. And he's going to do it anyway.

But I think what the biggest concern that even the Hispanic community has, because less than half of Hispanics agree with executive orders on immigration, but they do agree with immigration reform, they're concerned that it doesn't give them security. It doesn't give them a long-term knowable immigration reform package. They know this is short term and that short term package could be overturned by the next president, it could be overturned by the courts. And when they don't have security, they understand that's a risk to their community. Not only that, Ashleigh, if you notice (ph), this is going to deal

with 5 million people potentially. There's another 10 to 15 million Hispanics who are here without documentation who are going to have the whole immigration debate in the House blown up and nothing's going to happen and they're going to be left out to dry.

BANFIELD: OK. So, Congressman Castro, your state, I think your governor just said this morning that Texas spends 12 million a month on securing the border. And if what Congressman Duffy just said is true, is it true that that many Hispanic people feel that that's the wrong way go about this, that they don't agree with executive action, that it is ruling as an emperor?

REP. JOAQUIN CASTRO (D), TEXAS: No, I disagree with the numbers and the argument, although we'll have to compare notes later. But the fact is, the president is doing the right thing. America has waited many years for Congress to tackle comprehensive immigration reform and particularly over the last two years, there were enough Democratic and Republican votes for Speaker Boehner to put a bill on the House floor and for it to pass. And if that had been done, then this executive order would be unnecessary. And so the president was very clear. He gave the Congress a long time to act. The Republican leadership refused to act, and so the president is taking action. And I think he's doing the right thing.

BANFIELD: So when the two of you pass each other in those hallowed halls behind you, do you have the kind of conversation that we're having, which is at each other, or do you have quiet, thoughtful, introspective conversations about how to actually work through this instead of working towards the interviews on cable news, which will help you with your constituencies, but really paralyzes everything on Capitol Hill?

DUFFY: I noticed that Joaquin has some sharp elbows. He's jabbing me here. But, listen, I mean, it's important that we have these dialogs. And I'm one who will agree with immigration reform. Now, there's probably a lot of points on immigration reform that the two of us agree on. There's probably a few that we don't. But it's not insurmountable that we can't get (INAUDIBLE) that come from the House.

BANFIELD: Then why 511 days? Why, if there are so many things that you can agree on, what's wrong? What's happening?

DUFFY: Well, listen you're - let's be clear, we are a co-equal branch of government. If -- I think we should act. But if we choose not to, that is our prerogative. And you know that the - that the president has talked about this for some time and Republicans won a historic majority. Joaquin's party hasn't had less seats in 80 years. We just won control of the Senate.

I do think we have to get it done. But we also have a balance of power and a Constitution that I think we have to follow. And if you usurp that, if you jump ahead and say, I'm going to do it on my own, I think that undermines the whole process that makes this country great, which is our rule of law. BANFIELD: So, Congressman Castro, look, the president has made no

secret of not being a huge fan of executive action and then here he is even saying that he's - you know, he has a strong pen and telephone. My concern, you know, not only for what this is going to do and how members of Congress are going to deal with it afterward, whether it's by, you know, going after the budget or whether it's, you know, suing the president or blocking the nominees or, oh, my God, maybe even impeachment -

CASTRO: Right.

BANFIELD: My concern is for what your relationships are going to be like, the two of you, and everybody else who has to go to work every day in the next two years and beyond? Is this executive action going to be so ugly that there will be no getting past anything anymore because of the animosity that it generates?

CASTRO: I don't think so and I hope not. You know, as the president has said and the White House has said, just because you disagree on one policy issue doesn't mean that that should spoil your relationship with every policy issue. There are a lot of other big, important things, obviously, that the American people care about. And so, you know, I hope that this will start congressional action and not close off congressional action. And also, you know, I think it's important to know and to remark that there were five Republican presidents that have taken action on immigration, executive action on immigration, and so the president is being very consistent with what other presidents have done in dealing with this situation.

DUFFY: But, Ashleigh, the -- we have a new Congress that's about to be sworn in, in January. Why can't the president wait? He was going to do this in the summer and he waited off until September, then he waited till after the elections. He can actually wait and there's going to be no harm done.

But if you look at what's happened with the Republican Party, Marco Rubio, a Republican from Florida, had a dreamers bill that helped deal with the kids who come here, no fault of their own. The president, instead of letting that bipartisan bill come out of the Senate, he jumped ahead of them with DACA. And then as you had John Boehner, Kevin McCarthy, Eric Cantor, Paul Ryan, our leadership, working in the spring and the summer to get an immigration bill out of the House that was the work of the House, you saw all the kids come from central America to our southern border, which I think totally has thrown us off track.

BANFIELD: So -

DUFFY: So the president has a huge role in undermining the bipartisan work that's happening in this institution. And we do want to work together. We do want a long-term solution on immigration reform.

CASTRO: Sure.

DUFFY: And this is not the answer to it.

BANFIELD: And both sides say it without question.

CASTRO: Well -

DUFFY: But give us time.

BANFIELD: And both sides have said it and I think just to what you're saying, Congressman Duffy, is that, you know, Dick Durbin had just said moments before you, oh, 511 days, how much time do you need? So there's definitely that debate on either side.

Here's what I love. When I began in cable news about, I don't know, 14, 15 years ago or so, I used to get interviews all the time exactly staged the way they are right now, a Republican and Democrat who stood beside each other and did these conversations. And can I tell you, it's getting less and less frequent that you will agree to do these things. So I applaud you and commend you for coming out together.

CASTRO: Sure.

BANFIELD: And I encourage you to continue doing this and tell your fellow congressmen to do this as well, show up together and debate each other and discuss.

DUFFY: You don't look old enough for have been doing this for 14 years, Ashleigh.

BANFIELD: You know what's awful, it (ph) was 15 years before cable news, so it's really like closer to 30. It takes a village. I don't just roll out of bed looking like this.

DUFFY: It takes a lot (ph).

BANFIELD: Gentlemen, thanks a lot. Appreciate talking to you.

CASTRO: Thanks for having us.

DUFFY: Thank you, Ashleigh.

BANFIELD: Bye-bye.

All right, so we've got a lot of other things on the agenda for today. Another big story, a shooting at a major university campus. Shots ringing out in the library on campus at Florida State. One person dead, several injured. And a lot of questions remain unanswered. Who did this? What was the motive? Does it even matter anymore when so many people are so frustrated with these kinds of crimes? Live to Tallahassee, next.

(COMMERCIAL BREAK)

BANFIELD: It has still not been made public who started shooting at the crowded library at Florida State University overnight, whether the shooter was a student or school staff or someone from off campus. But this is for absolute sure, everyone involved at the university is rattled today and campus police had to take the most extreme measure to keep more people from getting hurt. It was just after midnight that the campus library was packed, of course, with FSU students who were cramming for final exams. The shooter opened fire, either inside the building or nearby, and three people were wounded. And when word began to spread that someone was running around with a gun, some people in the library thought it was a joke.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: Wait. Are you serious? Oh, my God, are you OK?

(END VIDEO CLIP)

BANFIELD: So not long after this cell phone video was shot, the gunman was surrounded by FSU campus police. CNN's Nick Valencia has the story.

(BEGIN VIDEOTAPE)

NICK VALENCIA, CNN CORRESPONDENT (voice-over): Breaking overnight.

UNIDENTIFIED FEMALE: Are you serious? Oh, my God, are you OK?

VALENCIA: Moments of fear inside this Florida State University library. An FSU student captures it on cell phone video.

UNIDENTIFIED MALE: This is the Tallahassee Police Department, here with the FSU Police Department. There has been a shooting in the library. Stay where you are.

VALENCIA: Just before 12:30 this morning, an unidentified gunman opens fire in a crowded library.

UNIDENTIFIED MALE: If you know of somebody who has a gun, or if you know of somebody that's been shot, call 911.

VALENCIA: One man is seen lying on the floor, apparently shot in the leg, as the library makes a frantic 911 call.

UNIDENTIFIED FEMALE: Oh, my God.

VALENCIA: FSU senior Sarah Evans shot the heart-pounding video and describes a chaotic scene.

SARAH EVAN, SENIOR FLORIDA STATE UNIVERSITY: I saw one of the employees kind of looking frantic, going crazy, and that's when I thought, something was pretty wrong.

VALENCIA: The campus on lockdown as police swarm the building. Students warned to seek shelter immediately, stay away from doors and windows, via the university's emergency alert system. As the ordeal unfolds, photos flood Twitter and show police with assault rifles inside the library, eventually leading the students to safety. At least three people are injured and transported to the hospital, one in critical condition. The shooter, shot and killed in front of the library.

DAVE NORTHWAY, TALLAHASSEE, FLORIDA POLICE: They gave them -- gave the suspect commands and the suspect did not comply with the commands and actually shot at one of the officers. They returned fire and the subject was killed.

VALENCIA: After a nearly three hour ordeal, university officials assure the FSU community the situation is under control. Classes have been canceled at FSU for the day.

CHIEF MICHAEL DELEO, TALLAHASSEE, FLORIDA POLICE: Obviously everyone wants to know why and that those are -- that's the hard question that we're going to continue to investigate and try to find those answers for everybody.

(END VIDEOTAPE)

VALENCIA: And within the last couple of minutes, police just started to remove that crime scene tape behind me.