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Court Weighs Legality of Trump's Travel Ban. Aired 12:30-1p ET

Aired May 15, 2017 - 12:30   ET

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

[12:30:03] JOHN KING, CNN ANCHOR: -- he met at this event. You see him now shaking hands as he leaves the stage.

We're also standing by for a very important federal court hearing out in Seattle. The Ninth Circuit Court of Appeals is about to hear arguments on the president's stalled travel ban. The court, you see the picture right there. A rare day to get a camera inside a federal courtroom.

Three judges on the Ninth Circuit Court of Appeals will hear arguments on whether they should leave in place a Hawaii Judge's order blocking, blocking the president's travel ban from taking effect or to see to the administration's argument that that ban was within the president's powers. You see the people standing as the judges come into the room here. Not sure how much of our conversation we'll going to get to have. Well, let's listen in the courtroom here and see what happens.

JUDGE RONALD GOULD, 9TH CIRCUIT COURT OF APPEALS: Good morning.

(OFF-MIC)

GOULD: OK, good morning. I'm Judge Gould and it's a pleasure to be sitting here with my colleagues Judge Hawkins on my right, and Judge Paez on my left. All of us extended welcome to this -- to the distinguished lawyers here to argue their cases and also to our observers. The Sealy case which is number 14-35958 is submitted on briefs. Also the Calvert case number 15-35465 is submitted on briefs.

So the first case for oral argument today is State of Hawaii versus Trump which is 17-15589. That case is set for 30 minutes per side on the oral argument. So please watch your time and try to sum up when the timer is yellow and try to stop when it's red. However, I will also add that the courts are very well aware of the importance of this case.

To all the parties and all the Amicus parties as well and -- we will add extra time if one of you feels you need to present your argument. And certainly if either of my colleagues have questions, once the time is up we will go forward with any further argument on that. But I will also tell the group that after that first cases is argued there will be a recess for about 20 minutes to permit all of those in the courtroom who would like to leave or to exit the courtroom.

And thereafter -- after that 20-minute recess, we'll continue with the other cases. So we'll now turn to the State of Hawaii versus Trump. And Solicitor General Wall may now proceed. JEFFREY WALL, ATTORNEY ARGUING FOR TRUMP ADMINISTRATION: Judge Gould and may it please the court.

Both the constitution and acts of Congress give the president of the United States broad authority to prevent aliens abroad from entering this country when he deems it in the nation's interest. This global injunction restricting that authority cannot stand for three reasons. First, the district court applied the wrong legal standard, constitutional challenges to the exclusion of aliens abroad are governed by Mandel's differential rational basis test, and Section 2 C's temporary pause on six countries that shelter or sponsored terrorism readily satisfies that test.

JUDGE MICHAEL DALY HAWKINS, 9TH CIRCUIT COURT OF APPEALS: What's the difference practically between Mandel, if there is a damn bad faith exception and the Lehman purpose test?

WALL: I think it's that Justice Kennedy and Justice Alito indicated and then that whatever the scope of that exception, and no court has ever applied it to find bad faith, not the Supreme Court or this court. But, we're talking about counselor officer there, Justice Kennedy and Alito said, look, you got to have an affirmative showing of bad faith. And I think if that's what you require for a one-off discretionary decision by a counselor officer.

[12:35:05] You really ought to require the strongest, clearest form of showing where you're talking about the president of the United States and multiple members of his Cabinet whose motives, I take it have not been impugned.

Whatever the bad faith exception is, to say the commander of chief, head of the executive branch and multiple members of the cabinet acted pre-textually. I think you want to require the strongest showing for that sort of a remarkable holding. And I just don't think plaintiffs have put together the kind of record --

JUDGE RICHARD PAEZ, 9TH CIRCUIT COURT OF APPEALS: Did you read that in our case (inaudible) that there is a bad faith exception?

WALL: I do. This court read Justice Kennedy's concurrence and then to be controlling and said there's a bad faith exception. Obviously didn't find bad faith in there but under this court's case, well yes, that exception is there.

HAWKINS: So I understand your position. It's that the then exception only applies to individual visa denials?

WALL: No, I don't think so at all. I think then applies to the same full scope as Mandel, to say challenges to the exclusion of aliens abroad, whether those exclusions are the Congress, the president, whether they're statute or in executive order, Mandel has always governed those kinds of challenges. And I think the difference between then and then requires at least some affirmative showing of bad faith. I think here in this context and all of you really high one, so it isn't just a sort of a wide-ranging de novo inquiry into subjective motivation. HAWKINS: If we conclude that the district court applied the wrong standard, the government's position is that it should be Mandel, correct?

WALL: That's right.

HAWKINS: Shouldn't we send it back to the district court to apply Mandel and to see appointees can make out an affirmative case of that faith?

WALL: I think you could send it back Judge Hawkins, but I have to say that I think plaintiffs haven't sought any additional discovery here where we have a record, we know what the statements were as a matter of fact. I think this court is as well placed as the district court to look at those statements and to determine in the absence of testimony or credibility of determination, any of that, none of which went on below due -- are those enough to give us bad faith under then (ph). I think it would be the same inquiry in the district court as in is this court.

PAEZ: Is there any -- there is no case like this is there?

WALL: Well, no Judge Paez. I think in part because no one has ever attempted to set aside a law that is neutral on its phase and neutral on operation on the basis of largely campaign trail comments made a private citizen running for office.

PAEZ: When I read Mandel it's clearly dealing with a specific application. A standard to a specific visa denial. And that's not what we have here at all.

WALL: No. But of course Judge Paez, the Supreme Court in Fiallo (ph) applied it equally to a statute.

PAEZ: That's correct.

WALL: The courts of appeals like the 2nd Circuit have applied it to broad policy determinations by the executive. I don't think the Supreme Court or really any of the courts of appeals has ever tried to limit the Mandel test to just a discretionary denial of visa by a counselor officer. And I think for the reason some members of this court gave at the rehearing stage in Washington case, it really wouldn't make more -- much sense to say that a singular counselor officer oversees in denying a visa gets more deference than the president of the United States in making a formal national security determination in an executive order.

PAEZ: Well, in the context of this case, the executive order is an extremely broad order. We're not dealing with an individual one-off determination by a counselor officer.

WALL: Well, it is a policy and of course Judge Paez that's what executive orders do. They don't deal with one-off denials. But I don't know that there's an extremely broad policy. I mean, Congress and the previous executive designated these countries as those that sponsor and shelter terrorism. They took individuals -- HAWKINS: Then how many nationals does it apply to out of those

countries? A large number.

WALL: Well, I mean, whatever the number of nationals who try to travel to the country and can't otherwise obtain waivers, we don't know yet obviously because we haven't been able to implement the order. But my point is just the distinctions were made by Congress and the previous administration, who took individuals with connections to these countries out of the visa waiver program. This administration, to be sure, said as a matter of policy, I'm not sure that's enough, I don't know if I'm getting reliable information from the governments of these six countries so I'm going to put a brief pause on entry while I look at the vetting procedures for those nations subject to a pretty robust individualized waiver process.

That's a policy judgment to be sure and a difference in degree but I don't think it's a difference in kind from what the previous administration did.

HAWKINS: Let -- can we step back just a little bit? Your brief, you start off by challenging the standing Dr. Elshikh in Hawaii.

WALL: Right.

HAWKINS: Is that still a core argument for you in this case?

WALL: Yes. I mean, we've made the arguments in our briefs but I think the easiest way to think about I were going to boil it down Judge Paez is --

[12:40:05] HAWKINS: You didn't raise a standing at the district court level, correct?

WALL: No, we did. We argued both in the district -- we argued extensively in the district court about whether they had both Article 3 injury and credentials standing, Judge Hawkins. But if you look at the Cardenas case, Judge Paez, I really that's the roadmap. This court said correct, look, the denial of entry to aliens abroad is generally not reviewable because those aliens don't have any constitutional rights.

U.S. citizens can attempt to argue that their own constitutional rights have been infringed by the denial of entry. The problem here is, Hawaii doesn't have any rights to claim under the establishment of clause, the due process clause. So really Dr. Elshikh, he is not raising his own establishment clause right. He is raising his own due process clause right.

So if you think he's got Article 3 injury he can at least raise due process claim. But the problem with that claim is, it fails on the merit because he doesn't have a protected liberty interest with respect to his mother-in-law --

PAEZ: Let me re-evaluate his claim in light of our holding in Catholic league. WALL: I don't think -- Catholic League doesn't suggest that -- it doesn't take any issue with the general rule that where you're claiming alleged discrimination on some basis like religion only the victims are punitive targets of that discrimination have standing to challenge it. Here, this order is aimed at aliens abroad who themselves have no constitutional rights. Doctor Elshikh doesn't have an establishment clause right to raise and I don't think the Catholic League case indicates any differently.

HAWKINS: His argument is that -- go ahead. His argument is that this in reality this is a ban against members of -- adherence of the Islamic faith, correct? That's his argument.

WALL: No, that's --

HAWKINS: And that this broad policy disparages adherence to that faith in the same way that individual residents of San Francisco County felt disparaged when the board of supervisors adopted this resolution saying that the cardinal of that diocese was acting in a terrible and unAmerican way by refusing to refer adoptees to same-sex couples. So what's the difference?

WALL: So I think you have two key differences. One, that was explicitly religious speech, this is not. The order on its face has nothing to do with religion and an operation doesn't distinguish on the basis of religion. And two, that explicitly religious message was directed at the community of which the plaintiffs were a member.

Here, this E.O. operates with respect to aliens abroad. And so the way plaintiffs try to get around that is they say, well, it sends a message and it sends a message to all Muslims in America. And I think the problem they have with that and the D.C. Circuit said this in the Navy chaplains (ph) case, is if you take government conduct directed toward others and reframe it as a message directed generally to all people aware of the government conduct, you've both overturned and affect cases like Daly Forge (ph) and you have eviscerated settled limitations on standing. I mean, this is at least two bridges beyond the Catholic League case.

HAWKINS: Well, Dr. Elshikh isn't he an imam, if I'm not mistaken of his local.

WALL: Yes.

HAWKINS: I mean it's direct to him, isn't it?

WALL: Well, the suspension of entry is just on the nationals of the listed countries. Now, yes as a --

HAWKINS: How does his mother-in-law fit into this?

WALL: His mother-in-law is a national of one of the listed countries. She can apply for a waiver. I think based on what they have alleged, it's exceedingly likely she'd get one which I think goes to show why.

HAWKINS: And how does that affect his injury (ph) or harm? WALL: I think it shows that his harm speculative and his claims are unright. But if you disagreed with us on that and you found that he had standing then I think you turn to the merits and what you'd say is, he is attempting to raise an establishment clause claim on behalf of somebody else. That's not properly before the court.

He is raising his own due process claim but it fails on the merits because no court has extended the due process right to in-laws and whatever process he wants, this order more than gives it to him and his mother-in-law because there's no doubt about why, if she doesn't receive a waiver which we think she's likely to, what the reason for that would be. It's on the face of the order itself. There's nothing more that we could tell you. And that's why below they disavowed any desire for individualized hearings or the like because this is a categorical policy. There's no more process we can give them and they've never said what it would look like they would do anything more to inform them about what the reason for the E.O. is.

I think what they're really raising is a substantive challenge. But again, they have two problems. One, they can't make out that case on the establishment clause side. And two, they never pleaded a substantive due process claim below. They phrased it only in procedural due process terms.

HAWKINS: She's not seeking an immigrant visa, correct?

WALL: I believe she is seeking -- no, I guess it's a non-immigrant visa to visit. I think you're right, Judge Hawkins.

HAWKINS: She wouldn't fall within 1152 power that relates to 1183 or whatever?

[12:45:04] WALL: That's right. I mean -- and I think our position --

HAWKINS: This and the doctor is not the sponsor, correct?

WALL: I believe it's his wife that is the sponsor but I --

HAWKINS: And is she the plaintiff?

WALL: No, she is not a plaintiff.

HAWKINS: OK.

WALL: And she -- so I take your point, Judge Hawkins, and just to say a word about the statute to make clear. We think they operate. 1182 applies to entry by its terms. Nothing in 1152 which deals with the issuance of immigrant visas limits in any way 1182 nor could it. It would raise serious constitutional problems if for instance it were to disable the president from suspending nationals from a particular country, if say he got actual intelligence that someone was attempting to bring a, let's say a dirty bomb into the country.

So really what we're just down to is the question, are we required to issue immigrant visas to the 30 percent of people affected by this order who want immigrant visas even though once they arrive at the borders, we can keep them from entering under 1182 f. The state --

HAWKINS: You didn't say before the 4th Circuit that is a practical effect implementation of the pause or ban. However you want to phrase it sort of precludes really from your 1152.

WALL: Yes. What we told the 4th Circuit was the State Department has always implemented suspensions under 1182 F by denying visas because otherwise you'd be letting people come to the country with visas as travel documents. And then once they got here at the borders you'd be turning them away. And the State Department has never read 1182 or 1152 to require that kind of fruitless and harsh exercise.

We also told the 4th Circuit the same thing I'll say to you. If you agree with them on their reading of 1152, it can't ground the current junction. At most it would be an injunction against the government that would require us to issue immigrant visas to people who want to come here even though once they arrive we could keep them from entering under 1182 F. We don't think that system would make a lot of sense.

HAWKINS: (INAUDIBLE) Tom Hanks at the airport, right?

WALL: I think that's right. I mean -- and that's why the State Department has always said, when you are denied a visa under 1152, it's only because you are validly suspended under 1182 F. That's the reason. It's not an affect the nationality base distraction.

But again if you disagree with us on that, you -- it would be the basis for a different injunction. One that I think would be practically pretty fruitless and harsh but that would be the result. I don't think there's any way that you can read 1152 to limit the person's suspension of entry power under 1182 F. So once you make that move then there's no basis for the injunction.

PAEZ: I have to read them together. That is you're dealing with the process, isn't that right?

WALL: I think that's right but the way to reconcile them I think, Judge Paez, is the way that the State Department has which is to say, look 1152 governs the issuance of immigrant visas all the time and that's where the contexts. Where you have 1182 suspension? We're not denying you on the basis of your nationality. We're just denying you because you're invalidly suspended. But if you thought they conflicted, I'd still say 1182 F is the more specific with Trump -- because what you're talking about is the president making a specific finding with respect to these categories of aliens and then suspending their entry. But again --

PAEZ: But 1152 is more recent. Congress passed that one in '65.

WALL: That's right. But then you have to get pass the presumptions against implied repeal. You have to see that Congress -- when Congress --

PAEZ: Why that are implied repeal and it's just -- you read them together? WALL: Well, because I think judge --

PAEZ: I think we're taught to, you know, reconcile statutes and to read them together.

WALL: Completely but I think it's pretty clear that what Congress was doing was getting rid of the previous nationality of quotas on immigrant visas. It wasn't doing anything to limit the president's suspension power. And I just want to point out by the way -- I mean, if you really take their arguments seriously, I think they're committed to the view that under 1182 F, even if the president got actionable intelligence tomorrow that let's say a Libyan national were attempting to enter the country but the president didn't know his identity, to commit some terrorist act, they'd say, well, the president can suspend entry of all Libyan nationals for some short period of time because that's a nationality base distinction.

I think I would raise serious constitutional concerns and so courts have never read the statutes to conflict in that way they've always reconciled them.

GOULD: Solicitor General Wall, if I can interject to question on the merits here? The executive order sets out national security justifications. But how is a court to know if in fact it's a Muslim ban in the guides of a national security justification?

WALL: Judge Gould, I think that really -- that's the knob of the case and that's Mandel, right. In Mandel, Justice Marshall and descent said, look, if you'll take even the briefest pick behind the reason that the attorney general has given, you'll see that it's not really why they denied them. They really denied them because he was communist and they wanted to come in and give lectures on communism.

[12:50:13] And the court said, we're not going to look behind, we're not going to take a look at any of that evidence that's in Justice Marshall's descent. This is rational basis review. Is it a legitimate purpose on its phase and is it bonafide? Does it vary rationale relationship to what the government done in this court? And number of cases has said, Mandel's rational basis review.

And I think the benefit of that standard as the court recognized in Mandel, Judge Gould, is it doesn't call on courts to make these sorts of determinations, the second guessing of national security determinations that there is sort of ill-equipped to do. And the flip side of course is what the plaintiff has won in the Washington case, right? They've asked for up to year of discovery and up to 30 depositions of White House officials to find out exactly what was in the heads and what were the motives of the people framing this E.O. and that's the road that in Mandel of the Supreme Court clearly said it was not going to go down. Subject as Judge Paez said to the narrow bad faith exception in Den (ph) where you got an affirmative showing of bad faith.

And here, you would need official capacity statements or unequivocal, right. Post-inauguration to show that the president and members of his cabinet who are acting in bad faith, and I just don't think they can make that kind of a remarkable showing here.

HAWKINS: Let met ask the same question that my friend Robert King asked you a week ago. Has the president ever disavowed his campaign statements? Has he ever stood up and said, I said before I wanted to ban all members of the Islamic faith from entering the United States of America. I was wrong, I've consulted with lawyers. I'm now addressing it simply for security needs. Has he ever said anything approaching that?

WALL: Yes, Judge Hawkins, he has said several things approaching that and I think it's detailed in various Amicus brief. The best one is probably the southeastern legal foundation brief in part free walks through the comments. And shows that over time the president clarified about what he was talking about were Islamic terrorists and the countries that shelter or sponsored them, and over time he and his advisers clarified that what he was focused on were groups like ISIS and Al Qaeda. And really the one post-inauguration statement they've got that we all know what that means. I'd encourage the court to go back and look at the ceremony in which the president signed that executive order.

HAWKINS: The second one.

WALL: The -- well, that's the first point. They don't have anything on the second order. But even if you said, OK, that's the first one and we'll carry that through which for various reasons --

HAWKINS: The statements where his surrogates have said, the president is simply carrying out his campaign promises on this issue.

WALL: But that's true Judge Hawkins because during the campaign, he clarified that what he was talking about were territories and countries that Congress and the previous administration had determined were dangerous. And what he wanted to do was he said, increase the vetting procedures and that's what he said three minutes before he signed the first order, standing there next to the newly sworn in Secretary Mattis.

HAWKINS: It sounds like you argue the -- our approach to these statements should be sort of an abusive discretion review. If you could read the statements good or bad, we should refer to the good.

WALL: I think the value of the Mandel's standard is that --

HAWKINS: But you don't look.

WALL: -- is that -- of course don't start engaging in this but if you do and, you know, for the reasons we have said in our briefs we think is a matter of why you shouldn't. But if the court were taking them all into account, and in here I mean, not just the post-inauguration official capacity statements but the campaign trail staff. We would still say, look, the president clarified over time and in a face of ambiguity about that both respect for our coordinate branch and the presumption of regulatory would require not reading them. I think the district coordinate here and the way most hostile and least favorable to the president. PAEZ: There -- we did, you know, you're right. We did received a number of briefs in this case, a number of Amicus briefs. And Judge Hawkins' question remind me of something that caught my eye in one of the briefs which is the Korematsu from -- the brief from Korematsu center. Would the Korematsu executive order passed master into test today?

WALL: No, Judge Paez.

PAEZ: Why not?

WALL: I wanted to be --

PAEZ: Facially legitimate. That's all you say. You emphasized facially legitimate.

WALL: I wanted to be very clear about this. This case is not Korematsu and if it were, I wouldn't be standing here and the United States would not be defending it. When council said below and this is on Page 116 of the supplemental excerpts of record, look, we'll concede that in order like this might will be constitutional in other contacts, where that you didn't have statements like this that they were attributing, you know, impermissible motive. I think you know right then you're not anywhere approaching Korematsu. I think it -- I cannot imagine that any court would say that the --

[12:55:02] PAEZ: How do you apply your -- how do you apply the facially legitimate standard to an executive order like that? I mean, there was no reference to Japanese in that executive order. Look what happened.

WALL: Judge Paez, I'm not familiar with all the ins and outs of that have executive order. I'm come back and look at that. I can't imagine that courts would say that it survived the Mandel standard.

But the point is just -- I think counsel here have implicitly recognized below that if some other president had done this without the statements, that this executive order would almost certainly be constitutional. And then what they're left with other statements and they're saying, look, on its face, it's neutral. It doesn't operate on the basis of religion.

But we think the president made clear over time why he was really doing it and you should look behind it. I think that's a very different situation from Korematsu and I don't think they've pointed to a single case either under Mandel or even if you want to curiae lacuni (ph) that would say we have a law that isn't religious gerrymander like lacumi (ph). It doesn't distinguish -- it's not explicitly religious like amici curiae (ph), but we're still going to set it aside base on what we believe to have been the subjective motivations of the President or advisers who adopted and crafted the policy. That's a really remarkable holding, Judge Paez.

HAWKINS: Is the bad faith determination under Den (ph), the same thing is a purpose determination under Lemon? WALL: I think it's a little different in the sense, Judge Hawkins. That -- look, it's one sentence objective and Justice Kennedy concurrent. So I don't want to read too much into it because no courts ever applied it to actually find bad faith.

But I think what he has in mind there is pretext. He cites the portion of Mandel with the court reserves the question of what would happen if the executive put forward no justification at all. So I think what he has in mind, is when the counselor officer either gives you no reason or gives you a reason that's obviously untrue on its face, of pretext sort of finding, I think that's a little different from purpose.

And again, to say that the President and three members of his cabinet acted in bad faith pre textually by adopting an order and saying on the face of the order that it is for national security purposes when it's not. I think to go down that road you would need the strongest and clearest showing of bad faith.

GOULD: Solicitor General Wall, I would appreciate hearing a little more on the government's view on the statutory side of the case. And specifically what I have in mind is that there's an 1182, there's a need to find that entry would be detrimental to the United States.

And so I have a question whether there's an adequate finding of detrimentality to justify keeping everybody from the particular company out of the country, from a particular country out of the country. And then I also have a question on making it a national origin ban, because that seems to conflict with the 1985 statute although that was limited to immigrant visas. But if you could touch on those issues, I appreciate it.

WALL: Sure. So, Judge Gould, on the first question of the Fourth Circuit had a number of questions about this, too. The President in sections 1D and E and F of the order makes clear that what he's concerned about is really two things. One, the ties between terrorist groups and these six countries that were listed by Congress in the previous administration and the concern that the governments of those countries and the deteriorating conditions in places like Iran and Syria, may mean we're not getting reliable information.

And so what the President found was he said, look, I find that it would be detrimental to let internationals for a brief period of 90 days while I ascertain whether the vetting procedures that we having place for this countries are actually adequate.

So he wasn't saying I find they would be detrimental because they're dangerous or they are potential terrorists or anything like that. He was saying in the face of uncertainty about whether we're getting good information from their governments so that we can screen them out in the visa process, I'm going to put a temporary hold subject to the visa waiver. And I think under a Mandel rational basis review but frankly under any legal standard, I think the President's detrimentality determination there would easily survive.

The second half of your question gets back a little bit to what Judge Hawkins and I were talking about. 1182 was entry. 1152 A is issuance of immigrant visas. The State Department has always reconciled those by saying that when the President suspends a group, even if in part on the basis of nationality that the reason for denial under 1152 is not the nationality is that you're subject to a valid suspension.

So the State Department has in practice always reconcile them so they were not giving travel documents to people who would arrive and then we would keep them from entering. But again, if the court just agrees with us on that --