← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Travel Ban 3.0 and Rinsing off Religious Animus for SCOTUS
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- [00:06]
Noel Francisco
This is not a so called Muslim ban. If it were, it would be the most ineffective Muslim ban that one could possibly imagine.
- [00:14]
Josh Geltzer
An incomplete Muslim ban, if it's still a Muslim ban, is a Muslim ban and that still runs into the First Amendment.
- [00:22]
Dahlia Lithwick
Hi and welcome back to Amica Slate's podcast about the courts and the Supreme Court and the law and the rule of law. I'm Dahlia Lithwick and this week Mark the very last oral argument of the court's 2017 term. And the last argument happened to be the court's marquee case, Trump vs. Hawaii, which is the challenge to the latest version of the Trump administration's entry ban and an appeal that has actually sucked up a lot of legal oxygen both last term and this term. So quite a big week. In a surprise move we hadn't seen since the court released same day audio in Obergefell, that was the marriage equality case. The court actually released same day audio of these momentous arguments. So we're hoping all of you have already listened to and committed to memory the entirety of the hour plus long oral arguments just for backstory. Luminaries in the gallery on Wednesday included Senator Mazie Hirono, Senator Orrin Hatch, Lin Manuel Miranda of Hamilton fame, who was accompanied by his wife, Vanessa Nadal. Also present at Wednesday's arguments was Joshua Geltzer. He is head of Georgetown's Institute for Constitutional Advocacy and Protection. Josh was senior director of Counterterrorism at the NSC under both Presidents Obama and Donald Trump. He held this position when the first travel ban executive order was issued back in January of 2017. Josh was also a signatory to an amicus brief that was filed on behalf of the challengers in this case, along with 51 other national security and foreign policy leaders. So, Josh, long windup, but welcome to Amicus.
- [02:04]
Josh Geltzer
Thanks for inviting me on.
- [02:05]
Dahlia Lithwick
So I guess we need to start by you telling us what the senior director of Counterterrorism at the NSC does all day.
- [02:13]
Josh Geltzer
Sure. So the nsc, just to situate folks in terms of it as an entity, is fairly small. People think of it often as being a lot larger than it is. It's about 200 policy people who work at the White House, but who are drawn from across the national security parts of the government. And there are two functions of the nsc to coordinate national security policymaking across all of those parts of the government and ultimately to advise the president and his senior leadership on the really tough calls. So in the counterterrorism world, that meant working on issues like online Radicalization. It meant working on the counter ISIS campaign. It meant working on counterterrorism partnerships, and it meant working on things like hostage issues, which you may remember the president ordered a comprehensive overview of how those were handled after the terrible series of beheadings headings of American and other foreign hostages by isis.
- [03:11]
Dahlia Lithwick
And you stayed on in your position. So you were sort of there in January 2017 as the first iteration of the travel ban came down, correct?
- [03:23]
Josh Geltzer
That's right.
- [03:24]
Dahlia Lithwick
And how long after that did you stick around?
- [03:26]
Josh Geltzer
I stayed through mid March, I think. The second travel ban came out just after I had left the White House.
- [03:34]
Dahlia Lithwick
So you really were in the thick of this. And I wonder if. Because I know for listeners, we've been living with this for 16 months. So I wonder if you could take a big step back. We've got a travel ban that is now on version 3.0. It's now proclamation number 9645. It's been up and down through various appeals courts. It's been up to the Supreme Court. Is there any way that you can just for framing this conversation, give us the elevator speech? Like, assuming the elevator goes to, like, 2000th floor. So the long elevator speech that locates this case and how we got here so that we can sort of at least somehow parse what happened this week at arguments?
- [04:18]
Josh Geltzer
Sure. I might even begin that story back when Donald Trump was candidate Trump rather than President Trump. And folks may recall he made a lot of waves by calling for a total and complete shutdown of Muslims entering the United States. And once he said it, he stuck with it. It became a big theme that he returned to on the campaign trail. Of course, he's then elected president. And seven days in January 27, he issues what we now tend to refer to as Travel Ban 1.0. So that barred from entry to the United States, the nationals of seven Muslim majority countries, that was pretty quickly struck down by the courts, lower courts. It never reached the Supreme Court in part because it was replaced in March by what we'll call 2.0. That one was down to six Muslim majority countries. Iraq had been removed. And relatively quickly, the courts say no to that. That one began to wind its way to the Supreme Court, but it was temporary and it didn't actually make it. It expired before the Supreme Court could hear the challenges brought to it, which brings to 3.0. That gets issued in September of 2017. And it's different in a number of respects. Perhaps most importantly, it's not temporary. It's by its own terms indefinite. It applied to eight countries, six Muslim majority countries, North Korea and a handful of Venezuelan diplomats. And after being struck down by various courts again on the west coast as well as the east coast, on Wednesday, it finally made it to the Supreme Court. So after all of that, this was the first time the court really grappled with this travel ban project on the merits in full.
- [06:06]
Dahlia Lithwick
Okay. Now I want you to do one other super hard thing in a compressed amount of time, and that is lay out. There's a couple of technical questions before the court, but the big questions are a statutory question around the Immigration and Nationality act and then this First Amendment establishment clause challenge. So the two big, big questions that make it onto the menu this week at the Court are these two. Is there any way, I know it's again, very, very persnickety, but can you lay out the INA provision that is at issue and also just sketch out the establishment clause claims just so that we're all on the same page?
- [06:45]
Josh Geltzer
Sure, I'm happy to. So The President in 3.0 relied on what a lot of folks tend to refer to really on both sides of this debate as the emergency provision of the ina, the Immigration and National Act. It's in a sense, the opportunity for the President in a certain instance that requires it to keep out what the statutory provision calls a class of persons for some period of time. Now, part of what's at stake in this case is how to read that provision in light of what is a very long, very complicated statute governing immigration law. And so the challengers point to a couple things. They point to part of the law, and this was a big deal in 1965 that ended a system of nationality based quotas for immigration and said that nationality will no longer be used as the basis for letting or not letting individuals into this country. They, of course, the challengers ask how that can be reconciled with what the President has done in this proclamation, which is very much on the basis of nationality. They also point to the fact that this emergency provision seems to anticipate something that's finite in time when 3.0 is indefinite. So that's the statutory challenge, or at least a couple of the main pieces of it. Then there's a constitutional question. The challengers, Hawaii and the other plaintiffs point back to this project's origins and in particular to the White House, consistently tying it in all three incarnations back to a campaign promise of preventing the entry of people of a certain religion to this country. And perhaps most notably, they point to a moment after the third travel ban was issued in which the President having retweeted a few anti Muslim tweets of a British far right politician, led to some questions about why he had done that and what his view of these issues were. And you have the deputy press secretary when asked say the president has dealt with these issues. He's dealt with them in the recent proclamation and travel ban. So the challengers say, look, this is a project all along. It's been about delivering on that campaign promise and erecting essentially religious tests at our borders. And that's something that the establishment clause of the First Amendment doesn't allow.
- [09:04]
Dahlia Lithwick
So you've sort of already flicked at this, Josh, but I want you to unpack it because I think one of the things that becomes a theme throughout this litigation and certainly is a theme this week at the court is the idea that this, it's like a plate that you have to sent through the dishwasher three times. We've got, you know, what's called the taint of the original. You know, the original travel ban is rinsed off. And it seems to me, and correct me if I'm wrong, that even some of the justices who might have been exercised at the last version of this banner are getting, you know, like, eh, the plate's pretty clean, you know, like we've added some countries and now we've had this interagency review. And the stuff that was maybe horrifying in January of 2017 has been rinsed away. And that, that does seem to be very much an issue here is how long do we hold it against the President that the claims you're making about the original ban or the pre ban campaign speeches and tweets, how much of that is just rinsed away because time has passed and we've made it look a little better.
- [10:14]
Josh Geltzer
My own view is that if there were just statements made in the distant past, then we could get into this really tough question of how much have those statements been rinsed away. But what I find particularly interesting here is that those statements get re upped, doubled down on, if you will. So it's not just a matter of what Donald Trump said on the campaign trail that's interesting here. It's what he said at each turn in delivering on the promise he made back then. So you may recall he signs the first one on January 27th and he reads the somewhat bureaucratic title to it. But he looks up as he's doing so, he looks at the reporters and the cameras and he says, we all know what that means. And then he sends out surrogates like Rudy Giuliani who go on TV and say, look, the president asked me to deliver on his campaign promise of stopping Muslims from coming into this country, and I know how to write legal documents. I did so. And maybe the most interesting moment is actually one that occurred on Wednesday and then was followed up later in the day. So the solicitor general, in his closing argument, really the very end, wanted to leave the justices with one point. He said, look, on September 25th of last year, President Trump said that this isn't a Muslim ban. And so that presumably, in the solicitor General's view, was supposed to cure whatever taint. There is a couple interesting things about that. First of all, I went back and checked. I don't see any statement from September 25th disavowing the project as being a Muslim ban. That was, of course, the day after the president issued 3.0. And I don't know what the solicitor general is referring to. But later in the day, Sarah Huckabee Sanders was asked by a reporter about this. She was told that the president came up with the Supreme Court, that the president never disavowed his campaign promise. Do you disavow it now? This was the opportunity to vindicate her own solicitor General. And what he had said just a couple hours ago to the puzzlement of some of us at the court, she didn't do it. She never disavowed it. And so to me, there's this consistent series of statements that double down on this really being the project that Trump promised way back when.
- [12:22]
Dahlia Lithwick
And I should probably note that there was a colloquy with Neil Kadiel, who was defending the challengers in this case, where he was asked, well, if the president just disavowed this, would this go away? What's your view on the correct answer to that?
- [12:38]
Josh Geltzer
You know, if the president disavowed it before issuing it, I think at least you see the constitutional problem a lot harder, potentially go away. That would at least begin to cure the taint. Now, there'd still be statutory problems if this were done exactly as it has been done. But at the time, at least that would be something that might create the kind of clean break that some of the Supreme Court's case law suggests could avoid an establishment clause problem. But here that hasn't happened even in the many months of litigation after 1.0 and 2.0 and even 3.0, and it didn't even happen in the hours after the argument at the court.
- [13:19]
Dahlia Lithwick
But do you think I'm just wondering, do you think the justices take into account this sort of extracurricular mumblings of Sarah Huckabee Sanders?
- [13:30]
Josh Geltzer
I think they want to be aware of it. I think you have justices, at least some of them, who they don't want to be hoodwinked. Right. They certainly trust government lawyers. They should trust government lawyers, the lawyers arguing in this solicitor general's office, like everyone, they deserve a certain respect. But justices don't want to be hoodwinked. And to the extent that a statement comes out that doesn't really seem consistent with the representation a solicitor general has just made a couple hours before, I think they, at least I think they want to know that.
- [14:05]
Dahlia Lithwick
Right. That's Ruth Bader Ginsburg and Paul Clement. Right. And Abu Ghraib. Those things I think do filter into.
- [14:12]
Josh Geltzer
The that's a They're people of the world, I think, which, you know, it's not going to change how they read a text, but they're people of the world, I think that's right.
- [14:22]
Dahlia Lithwick
So, Josh, my notes for today are full of cautions to myself. Don't only talk about the constitutional question. Don't only talk about the religious animus. So I am going to force us into the wonky place of talking for a moment, if we could, about the Immigration and Nationality act and then we can go back to Trump in his tweets to close out the show. But it's so important, I think, because this gets much less attention what it Is that the INA tried to do in 1965 when they amended the thing, Congress amended it to specifically prohibit the government from barring immigration solely on the basis of nationality. Let's listen to Noel Francisco at argument on Wednesday making the case that this was not about anything other than what he kept calling multi agency scrutiny. So let's have a listen.
- [15:19]
Noel Francisco
It is an order that is based on a multi agency worldwide review that applied neutral criteria all across the world and concluded under those neutral criteria, most of the world was fine, but a small part of it failed to provide us with that minimum baseline of information, the minimum, not the ideal, the bare minimum, terrorism history, criminal history that we need to protect the country.
- [15:44]
Dahlia Lithwick
I guess my question to you is does that satisfy if it's an interagency neutral criteria around the world, these countries just didn't do vetting. Does that satisfy the plain facial meaning of what the INA was trying to stop?
- [16:02]
Josh Geltzer
I really don't think it does. You know, the justices in some ways in the inherited legacy of the late Justice Scalia, have become particularly big on Starting with the text. I tell this to my law students in many contexts. Start with the text. Go to the text. And here the text in 1965 of the INA was changed. This wasn't some little change. This was heralded as a big deal by the Congress that worked through it by the President and the State of the Union thereafter. The idea that we as a country were shifting away from a country by country approach to immigration and instead moving to an individualized approach to immigration, that was supposed to be a big step forward, and that was done with some real consideration of issues like national security, for example. The individualized vetting process that has since been refined as well was designed to put the burden on any particular individual who was seeking to come here to ensure that that person wasn't going to pose a threat once here. But it was supposed to make country by country bars something in the past, something taken off the table for the US approach to immigration policy. And it was. And Congress has revisited this, but chosen to leave that our approach a number of times, including after 9, 11 here, for a President to come along and rewrite the INA by himself with the stroke of a pen. That strikes me as running headlong into the statute that he inherited. And if the President wants to revisit that with Congress, that's a conversation that the political branches can have, but it's not one he's even tried to have in all the months since the first travel ban was issued.
- [17:42]
Dahlia Lithwick
And can I ask just the other hiccup in this statutory argument, and you sort gestured at this when we first started talking, but I'd love for you to unpack it. This was meant to be only temporary changes. Right. The President can make temporary changes to the statutory scheme without congressional approval, but not what Neal Kadiel was calling a perpetual ban, not permanent changes. And he ran into real trouble when he claimed that this was a perpetual ban. Let's listen to Justice Kennedy.
- [18:17]
Josh Geltzer
What is your basis for saying that it is perpetual?
- [18:20]
Neal Kadiel
Well, there's nothing in the order that ends it. And you heard my friend say, oh, that would doom all executive orders, but that's not true.
- [18:26]
Justice Neil Gorsuch
I thought it had to be re examined every 180 days.
- [18:29]
Neal Kadiel
No, that's not what it says. It says there's a report that has to come in at 180 days and nothing happens at the end of the.
- [18:35]
Justice Neil Gorsuch
Report that indicates there'll be a reassessment. Well, and the President has continuing discretion.
- [18:42]
Neal Kadiel
Justice Kennedy, this argument would be there if there was anything about reassessment. The way There are in about half the orders, including the Cuba order, which says it sunsets once the crisis ends. There's nothing like that in this. And it's just like a reporting requirement to Congress in which Congress isn't necessarily required to do anything. Congress has statutes like that all the time. This is that. And that's why this is unlike any other executive order. If you go back and look at all 43 executive orders that presidents have issued, none of them have even arguably countermanded Congress's judgment in the area. They've all been consistent. They've all been supplements.
- [19:17]
Justice Neil Gorsuch
Well, the statute says 1182 for such period as he deems necessary, and he can have continuing supervision over whether it's still necessary.
- [19:27]
Neal Kadiel
Again, we wouldn't have a problem with that if it was tailored to a crisis as it sunsets and then, you know, could be re upped or something like that. That's not what this says. This is about a perpetual problem.
- [19:36]
Justice Neil Gorsuch
I don't want the President to say I'm convinced that in six months we're going to have a safe world.
- [19:40]
Dahlia Lithwick
Was Neal Kadiel's response to that inadequate? It certainly doesn't seem to have changed Justice Kennedy's mind, at least on the national security concern.
- [19:50]
Josh Geltzer
I think what Neil was doing, which I regard as spot on, was starting with the text. This is what the Court encourages advocates to do. And the text here is the text of the proclamation of Trump's third travel ban, the one that made it to the Court, which on its own terms is, is permanent. Now, it does say that every 180 days a report will emerge, or at least emerge internally within the Executive branch. No one actually knew when the first one emerged until the White House popped up and said that Chad, which seems to have been added to 3.0's travel ban only because they ran out of paper stock to print model passports, was now being removed. But that doesn't stop the proclamation from being permanent. That proclamation stays in place. And of course it stays in place for the five Muslim majority countries that were on 1.0. They were on 2.0, they were on 3.0, and there's no indication that they're going to be taken off anytime soon. So even if there's a reporting requirement built into the proclamation, that doesn't stop it from its own text from being indefinite in nature.
- [20:55]
Dahlia Lithwick
And I want you to respond if you can. This has been an argument that's been advanced throughout the litigation. I remember it from 1.0 in the lower courts, this argument that this isn't a Muslim ban. It can't be a Muslim ban, Josh, because it's a really bad Muslim ban because it only bans some Muslim countries. We can listen. Here's Noel Francisco making this point.
- [21:18]
Noel Francisco
This is not a so called Muslim ban. If it were, it would be the most ineffective Muslim ban that one could possibly imagine, since not only does it exclude the vast majority of the Muslim world, but it also omits three Muslim majority countries that were covered by past orders, including Iraq, Chad and Sudan.
- [21:37]
Dahlia Lithwick
If the basis of that argument is we only ban some Muslims so it can't be a Muslim ban, or we only ban a handful of all Muslim countries so it's not a Muslim ban, that has gotten an unbelievable amount of traction in the courts. That strikes me as not hugely persuasive argument. And yet Justice Sam Alito was all in on that.
- [21:58]
Josh Geltzer
If you look at what was done, it does not look at all like a Muslim ban. There are other justifications that jump out as to why these particular countries were put on the list. So it seems to me the list creates a strong inference that this was not done for that invidious purpose. Dalia, you and I are united in our mystification here. And I think Neil responded to this quite persuasively on Wednesday at the court. He made the comparison to workplace discrimination. He said, look, let's say you have employees, maybe 10 African American employees who work for you. You fire five of them for being African American. It's presumably not an answer to say, well, there are five who are still working here. The five you've fired, you've still fired on totally improper, impermissible grounds here. An incomplete Muslim ban, if it's still a Muslim ban, is a Muslim ban, and that still runs into the First Amendment. The entire thing has been a witch hunt.
- [23:04]
Justice Neil Gorsuch
I've seen the tweet about tapes.
- [23:06]
Josh Geltzer
Lordy, I hope there are tapes. The president is not against immigration.
- [23:10]
Neal Kadiel
Alternative facts.
- [23:11]
Dahlia Lithwick
I guess it's kind of like we're living in the Twilight Zone when the.
- [23:15]
Josh Geltzer
News changes quickly and Washington feels like a circus. We're here to help you make sense of it all.
- [23:21]
Dahlia Lithwick
I'm Emily Bazelon.
- [23:22]
Noel Francisco
I'm David Plot.
- [23:23]
Josh Geltzer
And I'm John Dickerson.
- [23:24]
Dahlia Lithwick
We're the co hosts of the Political.
- [23:26]
Noel Francisco
Gabfest, the essential weekly political news podcast from Slate.
- [23:31]
Josh Geltzer
Subscribe to the Political Gabfest to stay up on the latest news from Washington. Find us wherever you get your podcasts.
- [23:41]
Dahlia Lithwick
And I want to take a moment to talk to you about our membership program, Slate plus, if you are hearing this, you're listening to the regular version of our show, which is awesome. But if you sign up for Slate plus, you will romp through the show commercial free and you'll get access to amazing bonus segments and extended versions of your favorite Slate shows. It only costs $35 for your first year. $35. And you can sign up for free for two weeks just to check it out first. One more thing. By signing up for Slate plus, you will be supporting this show and all of our journalism here at Slate, which you know is more important now than ever. To learn more and to begin your free two week trial, go to slate.comamicus/ Josh Geltzer is head of Georgetown's Institute for Constitutional Advocacy and Protections. He was a signatory to an amicus brief in this case along with 51 other national security and foreign policy leaders. Now I want you to do the law professor thing for me, if you would, and just help explain to folks who don't understand when we're looking at the the Establishment clause claims. So now we've moved into the constitutional claims and the idea that this is based in a decision that has religious animus. And there's these two lines of cases that the court is throwing around at argument. One is this 1972 case, Kleindeist v. Mandel, where it says the courts have to uphold a law that excludes aliens as long as it has, quote, a facially legitimate and bona fide reason. And then that's in tension with this 2005 case, McCree vs. ACLU, that says that the government can violate the Establishment Clause if a reasonable observer, an objective, reasonable observer observer, finds that it disfavors certain religions. These two cases are in tension, but I'm guessing a lot of listeners don't quite know why. Can you help unpack all that for us?
- [25:35]
Josh Geltzer
Sure. I think these cases, they are trying to get at in some ways the same thing, which is courts don't want to be peering into the souls of elected officials, whether those officials are the president or members of Congress or if it's at the city or state level, other forms of legislators or executive branch officials. That's not something a court is particularly good at. I'm not sure it's something that any of us is particularly good at. But I actually think these cases can be harmonized if one realizes that's the principle both have. That's where they're trying to say, don't tread into that kind of psychoanalysis, where I think that leaves us for the current case is not needing psychoanalysis to see what's going on here. We've been helped, and I think the court has been helped in a sense, by not just the tweets and statements of the president himself, but by the White House presumably responding to his direction and articulating at every turn that we are to understand these three attempts at a travel ban as all part of a single project. They've all been tied to each other even by their own texts. And that project, of course, is one that various press secretaries and even the president have said is intended to deliver on the promise he made back on the campaign. And that's a religiously animated promise. You know, one of the cases that came up on Wednesday at the court happens to have one of my favorite case names of any Supreme Court case. It's the city of Hialeah vs Church of the Lakumi Babalu.
- [27:05]
Dahlia Lithwick
Aye, that's my favorite, too.
- [27:07]
Josh Geltzer
It's the best. They're not going to beat that. And there the unanimous court, as I recall, I think, set out the principle that's really uniting all three of the cases, the two you mentioned and City of Hialeah, which is if a court can glean, if a court can look at the texts and look at the world and see that religious animus is pushing a legislature or in this case, a president in a certain direction, then you begin to get into the establishment clause analysis. And I think that's all one needs to do here. The court, just so long as it doesn't blind itself essentially to context, to text and to what the White House has said this project is all about. I think that's enough to get at the establishment clause question.
- [27:53]
Dahlia Lithwick
So that leads inexorably to, I think, one of the strangest colloquies of the day. And that is Justice Elena Kagan, who's pressing Noel Francisco, the solicitor General, on this hypothetical where you have a president who's just a rabid anti Semite. Let's have a listen first to the back and forth.
- [28:14]
Justice Elena Kagan
So let's say in some future time a president gets elected who is a vehement anti Semite and says all kinds of denigrating comments about Jews and provokes a lot of resentment and hatred over the course of a campaign and in his presidency, and in the course of that, asks his staff or his cabinet members to issue a proc to issue recommendations so that he can issue a proclamation of this kind. And they dot all the I's and they cross all the T's, and what emerges? And again, in the context of this virulent anti Semitism, what emerges is a proclamation that says no one shall enter from Israel.
- [29:06]
Josh Geltzer
Right.
- [29:07]
Justice Elena Kagan
Do you say Mandel puts an end to judicial review of that set of facts?
- [29:13]
Noel Francisco
If his cabinet and, and this is a very tough hypothetical that we've dealt with throughout, but if his cabinet were to actually come to him and say, Mr. President, there is honestly a national security risk here and you have to act, I think then that the President would be allowed to follow that advice even if in his private heart of hearts he also harbored animus.
- [29:36]
Dahlia Lithwick
Josh, is that in effect what you were just telling me? That's Kagan trying to press on this idea that really, really we're not going to probe whether there's animus at all after Mandel. That's what she's trying to do there. Right.
- [29:53]
Josh Geltzer
I think that's what she was getting at. She was trying to understand where the line is between the psychoanalysis that I think the court, in my view, rightly has said is not the right way to approach establishment clause questions. But an awareness of context, a sense of the real world is part of that. And part of what's interesting that came out later in Wednesday's argument is the government on the one hand, wanting the President to own this decision. And in fact, the government needs the President to own this decision because the text of the particular statutory provision, the emergency provision we were talking about earlier, it says the word the President, this one's on him if he's going to declare this sort of emergency and adjust immigration policy to deal with the emergency. On the other hand, they then want to shift this. The government then wants to shift this away from the President. They want to speak to some multi agency review to recommendations from cabinet members. But it does say the President, it was a Presidential proclamation. And so the question of whether the President was animated by animus here, it seems to me not just fair game, but in fact the right question.
- [31:03]
Dahlia Lithwick
It's so interesting that we're having this conversation that's kind of born out of a long standing judicial reluctance to probe what you're describing as sort of the dark psychological reaches of the decision maker. That seems to be taboo. And yet the dark psychological processes of this decision maker are all over this case. I mean, this is just such a strange inversion of this sort of general principle that we don't want to know why someone does what they do. In this case, the President has been telling us time and time again in his tweets and in his statements and not, you know, Long after he was off the campaign trail. No, really, this is really what I wanted to do. And yet we're still talking about it as though it's this exercise in complicated and inappropriate judicial psychoanalysis. Right.
- [32:03]
Josh Geltzer
It does have this strange feeling to it, as if we would need to somehow peer into his heart of hearts or guess about his intentions to understand what this project is about. The White House, the president himself, they keep telling us what this project is about. They told us before it was a travel ban. They told us when it was 1.0, 2.0, and now 3.0. And when given the opportunity, after argument, essentially, to disavow it as being that sort of project, the White House didn't take that opportunity. So it doesn't seem to me to require a lot of peering to understand what this travel ban delivers on for the President.
- [32:41]
Dahlia Lithwick
Josh, you clerked for Justice Breyer, right?
- [32:43]
Josh Geltzer
Yes.
- [32:45]
Dahlia Lithwick
So what was he doing? I think he was doing one of his sort of Breyer sort of solo skates where he's kind of talking about the waivers, and maybe there's a way through by looking at who was not entitled to a waiver and had been denied entry. Do you have any sense of where he was going with all that?
- [33:07]
Josh Geltzer
Part of what I admire so much about Justice Breyer is his commitment to being grounded in the real world. Yes, he wants to study legal texts, but he also wants to know what effects legal texts have on real people. And his line of questioning on Wednesday was getting at this issue of waivers. He was looking back to earlier invocations of this or in one case, of a different authority by other presidents that were different in many ways. But one thing he noted about those earlier invocations of authority is that waivers were available. The people with hardship in quite significant numbers from countries affected by earlier travel ban, like proclamations, were able to enter this country. And what Justice Breyer asked about was, is that really available here? Yes, the text of 3.0 claims it's available, but is it really available? And the answer from the solicitor is General wasn't terribly reassuring to my mind. He said, Look, 430 people have been able to avail themselves of waivers. Well, travel ban 3.0 was applicable to 150 million people. The idea that 430 of them were able to acquire waivers, that's essentially a trivial, perhaps below trivial number. What's more than that is a process question. Justice Breyer pressed on whether this is the waiver process is well advertised in the countries affected. Whether people who might qualify would actually know that they might qualify and know how to go about availing themselves of that relief. And the solicitor general, as far as I could tell, really said no. He said the information is available on the State Department website, but that, I don't think, addresses something being well publicized and made meaningfully available to masses of people affected by it. All in all, I think it speaks to the idea that, that the waiver, like some other aspects of 3.0, for example, the inclusion of North Korea, with only a handful of people actually trying to come to the United States each year, or the inclusion of a few Venezuelan diplomats, this looks more like window dressing than anything, actually paring down the scope of this travel ban.
- [35:21]
Dahlia Lithwick
So the legal force of the waiver conversation is in effect to say, look, you can keep spit shining this thing, but it's the same old travel ban, and this looks like spit shining.
- [35:32]
Josh Geltzer
I think that's right. And I think it was also to see whether the waivers were another way in which this proclamation differs from something President Reagan did with respect to Cuba, something that President Carter did with respect to Iran, where the waiver process was meaningful, where it seems to have allowed in people in significant numbers. Now, it's interesting that those are just presidential precedents, if you will. It's not like what those presidents did, went to the Supreme Court to get validated, vindicated by it there. But I think Justice Breyer was pressing on how different this proclamation was in that respect among a number of others from what earlier presidents had done.
- [36:11]
Dahlia Lithwick
So I want to get to the national security questions, because that's kind of your thing. But before we do that, I just want to hear for one second from Neil Gorsuch, who put into words on Wednesday something that's also been percolating in the legal stratosphere, and that is this idea of that these nationwide injunctions from a single judge are horrible and new. Let's listen to Neil Gorsuch.
- [36:36]
Justice Neil Gorsuch
We have this troubling rise of this nationwide injunction, cosmic injunction, not limited to relief for the parties at issue or even a class action. And near as I can tell, that's a really new development where a district court asserts the right to strike down of a federal statute with regard to anybody anywhere in the world. What do we do about that?
- [37:01]
Dahlia Lithwick
Josh, I'm sorry, Did these nationwide injunctions get invented in the past year? And I got confused.
- [37:09]
Josh Geltzer
No, you are not. You are not confused. They are not brand new and the courts are not somehow differing from how they've treated this in the recent past. There are folks out there myself included, who suspect that the reason you see a rise in the past year, year and a half in judges issuing nationwide injunctions is not about those judges, but about the behavior of a particular executive branch that they find themselves needing to enjoin. That seems to be the real cause for an increase here. In particular, this seems, and this came up at the court on Wednesday, a somewhat poor case for the government to be trying to bring this issue to the Supreme Court because by the Constitution's own direction, immigration policy is supposed to be uniform. It's a uniform rule of naturalization that Article 1 of the Constitution charges the Congress with implementing. And so here to think that one district judge should, for the benefit of the few plaintiffs who got before him or her, put a hold on something like travel ban 3.0, but to have another district judge somewhere else not put a hold on it and allow it to go into effect, and then have plaintiffs running to all sorts of different judges all around the country seeking relief and in some cases getting it, in some cases not, that hardly looks uniform. And so it seems like a particularly bad case for the court to try to get at this issue if there is something to get at there.
- [38:37]
Dahlia Lithwick
I want to talk about your amicus brief in this case, and I want to talk about the whole cloud of national security doubt that shimmered around argument on Wednesday. I think that, you know, one might think from this argument that we are in brand new, incredibly perilous times, and I think you're probably better situated than almost anyone to confirm or deny whether that's true. But UN 52 former National Security officials submit this amicus brief in this case on the side of the challengers of the ban. And you essentially, essentially say, look, we are people who really know some stuff about national security, and this travel ban did not put forth a valid argument for why we need to do this. So I want you to talk a little bit about there is a general presumption that the judiciary massively defer to the executive when national security is at stake. And it's certainly, I think the argument could be made that you just don't like like this travel ban. Right, Josh? But your brief suggests otherwise.
- [39:49]
Josh Geltzer
That's right. The brief says, look, there are 52 of us who believe that there are many appropriate circumstances for the judiciary to defer to the executive when the executive has been able to articulate some recognizable national security threat that merits such deference. But here we don't see one. There are a couple reasons we don't see one. First of all, well, it's hard to think of a threat coming from 150 million people, the number of people affected by travel ban 3.0. That's just not the way counterterrorism threats or frankly, other threats work. They come from individuals, they come from networks. They don't come from 150 million people. Also, the countries targeted by travel ban 3.0, they just don't make sense for the threat that the government is claiming. No national from any of the countries affected by 3.0 has been responsible for adapting death from terrorism on US soil since 1975. So it's hard to see what the threat is that this approach is really making better. Now, the group of us who signed onto that amicus brief, we do believe there are serious terrorist threats to this country. That's what individualized vetting is for. And that vetting system was improved after 911 as well it should have been. It's been improved repeatedly since. And it's the type of important national security measure that should always be reassessed for whether it can be improved further and to the extent. The President has particular concerns about that vetting system, which of course tries to draw on the holdings of the intelligence community and law enforcement to figure out whether people entering this country pose some sort of threat. The President should work with his colleagues across the government to make any improvements necessary. But that's very different from overhauling an individualized vetting system and turning it into a country by country ban.
- [41:42]
Dahlia Lithwick
Well, but the response to that is Noel Francisco saying, no, no, we did a coordinated, agency wide, multi agency, sober, neutral, criteria based review. We did all the things you're asking for, and this is what we came up with. Is your answer that that's just not true?
- [42:02]
Josh Geltzer
You know, I think the Solicitor General was particularly interesting because he didn't articulate threats of entry. He really said this is now justified on the grounds that we need to incentivize better information sharing. And that's where the country by country review that he claimed the government conducted purportedly enters the picture. But Congress has already anticipated that. Congress has already dealt with in the INA the idea of incentivizing countries to share information better about potential travelers. They did that through something called called the visa waiver program. The visa waiver program is essentially bonus points. It's extra credit. If a country does a really good job of culling information on potential travelers and sharing it with us in a way that's useful to us for vetting them, they get put into the visa waiver program, which means their nationals are able to come here more easily. That's the carrot, so to speak, that Congress set up. And it's a big one. In fact, the Obama administration moved a number of countries in the course of of its eight years from being in the extra credit bucket to back to the baseline. But that baseline is individualized vetting. What Trump has tried to do with travel ban 3.0 is lower below the baseline and actually Reneg on the 1965 change to the law itself. That said, we're not doing this on a nationality by nationality basis. That's just not something he can do. It's something he can talk to Congress about doing if he feels it's appropriate, but it's not something he can do within the bounds of existing immigration law.
- [43:34]
Dahlia Lithwick
So I want to play for you the other truly, I think starkly baffling colloquy between Chief Justice John Roberts and Neal Kadial, again, because it's in your wheelhouse of national security. So let's have a listen.
- [43:49]
Justice Neil Gorsuch
What if the military advisers tell the president that in their judgment the president ought to order a strike, an airstrike against Syria? Does that mean he can't? Because you would regard that as discrimination against a majority Muslim country?
- [44:04]
Neal Kadiel
Absolutely not. There's nothing to do with the text of the statute. The 1152 statute is about discrimination in the, quote, issuance of visas, and that's all that.
- [44:12]
Justice Neil Gorsuch
So under 1182 F, you would say that there's no problem under that provision?
- [44:16]
Neal Kadiel
Well, under 1182, as I understood, was a strike. And so I don't think there's any immigration issue. And you're hypothetical. I might be misunderstanding it. Mr. Chief Justice.
- [44:24]
Dahlia Lithwick
So, Josh, how did we go from being an immigration case to being a case about the president's war powers?
- [44:33]
Josh Geltzer
This was a moment where I think the argument slid a little bit from being about the statute, the immigration law, which of course would not apply in any way to the sort of hypothetical the chief justice was posing, back to the constitutional question perhaps of the establishment clause and whether there's a disfavoring of religion. But even taking it on those latter terms, it seems hard to think that the sort of action that this president in fact has recently taken in conducting strikes against Syria, which is of course a Muslim majority country and one of the countries subjected to the travel ban and all three incarnations of it, that that would be susceptible to a plausible establishment clause problem. That's because the president has made quite clear why he launched both last year and then again this year strikes against Syrian regime targets, and it was the regime's use of chemical weapons. Now, a person can like or dislike that action. They can like or dislike the legal theory on which it's based. But I don't think anyone is raising establishment clause concerns, and I don't think it's something the chief justice needs to worry about.
- [45:41]
Dahlia Lithwick
And yet I think, correct me if I'm wrong, but this overarching theme seems to have captured the day, that is that the courts should not be in the business of reviewing whether there's national security emergencies. The courts should not be in the view of second guessing the executive. It does seem as though the court almost I don't want to say the court, but I want to say at least it seems to me five members of the court were very, very firmly in the camp that it is just not the purview of the courts to get into this second guessing game that you're pushing us into. Mr. Kadial, right or wrong?
- [46:23]
Josh Geltzer
I think it's hard to read. It's hard to read in particular because there are enough issues going on in this case and enough justices who may get interested in different issues that I'm not sure we saw from all of them where they stand on those different issues. I'm not sure we saw each justice really worked through the complicated statutory provisions and their relationships to each other of the ina. I'm also not sure if we saw a couple of the justices grapple with one angle in this case that I think might interest them, which is the idea that if Congress, which of course is the branch of government assigned to do immigration policy by Article 1 of the Constitution, if it is really written, a statute that can be read as the government claims here, essentially inviting the president to overhaul how our country approaches immigration with the stroke of his pen, that raises concerns about whether Congress has actually abdicated its constitutional responsibility in this area. That's something a couple of justices have been quite interested in in other contexts. And as they work through that, as they really dive into the text of the ina, as they work through these issues that didn't get fully aired at arguments, I think it's just hard to see how they'll come out.
- [47:35]
Dahlia Lithwick
So can we close with a meta question? Go meta with me, Josh. Here's my question, and I've been writing about this since the Fourth Circuit argument, since the Ninth Circuit argument that threaded through all of the Trump Justice Department defenses of each version of the travel ban. There is this argument. You've mentioned it several times. There's this Presumption. I think Jeff Wall, when he was the acting sg, would call it the presumption of regularity, the presumption of normalcy, that something magical settles on the shoulder of Donald Trump when he becomes president and everything falls away, whether it's his campaign statements before or even his tweets after. We have to just assume for legal purposes that he is the same president that Marco Rub or Carly Fiorina would have been for constitutional purposes. And that becomes a huge theme you've mentioned. You know, we had a lot of talk about whether things said on the campaign trail can still be tainting the existing ban. Also, whether things ongoing after he gets sworn in can somehow be factored in. And, and it seems to me that Noel Francisco is really taking this very strong position throughout the argument that, no, this is you, this is simply the executive acting as the executive. And everything he says and does has to be taken as a presidential act that is accorded all the deference of the presidency. That here's my question that was a huge setup to the question that I want to ask, which is, as we've watched this thread, its way through the courts. We've seen an awful lot of judges just say no to that argument. I won't ignore the tweets. I won't pretend this is normal. I won't bracket the fact that this person has tweeted threats at judges or said, you know, so called judges. All of that stuff has to be somewhere baked into the cake of this opinion. It seems to me, again, I may be wrong, that once the case gets to the Supreme Court's doorstep, that presumption actually begins to take hold and that the argument we witnessed this week was a bunch of justices who just really want there to be a presumption that this is all normal and that the branches are checking each other and everything's working because they can't do their job if they were to start an opinion saying the president is really deeply weird. I don't know if that's a question, Josh, but would you engage with that long discursion of mine?
- [50:31]
Josh Geltzer
I'm with you. And I'm willing to indulge the idea that, at least for purposes of argument, that January 20th of last year could constitute a reset or a refresh and that some presumption of irregularity could settle on what was at that point a brand new president. It just didn't take that long for that presumption to be overcome and for some very irregular things to start happening. In fact, it took in this area Only seven days. It took seven days for an executive order to emerge that nobody knew how to implement. And folks will recall those scenes at the airports. The folks on the ground didn't know who was supposed to be allowed to enter the country and who didn't. The Secretary of Homeland Security laid later said he didn't really know this was coming or how to order people to implement it. There is nothing regular about an executive branch process that yields that. And that hasn't had a clean break since we've instead had a series of attempts to refresh or repair this travel ban, all of which get pegged by the President himself, back to that original one, back to the project that he has said is about delivering on a campaign promise. So even if we indulge that presumption on January 20th of last year, it has long since been proven that this is irregular. And I think the lower courts in this case have. They haven't been willing to blind themselves to that. They've insisted on being engaged with the world around them and understanding what this project has meant, what its real world impacts are and where it has come from. And I think the hope of many of us is that the Supreme Court Court will be similarly grounded as it grapples with this tough case.
- [52:18]
Dahlia Lithwick
Just as a coda to all that, what do you say to the supporters of the President who take the position? I think it's not entirely implausible, Josh, that this actually weakens the presidency. That if we're going to have courts who make determinations that the President isn't reliable, he isn't to be trusted, that his tweets matter, that he's all over the place, that he can never. I think the Chief justice asked about this. He can never cleanse himself of whatever the opposite of the presumption of regularity is, the presumption of crazy, that there's nothing that the President can do to fix that, and how that deeply, deeply damages the constitutional branches, what's the answer to that?
- [53:02]
Josh Geltzer
I'm someone who's all for a strong executive branch. I worked on counterterrorism issues, and both as a lawyer and as a policymaker, I pushed for some. Some fairly aggressive policies and at times, aggressive readings of the law that I felt could support those policies. But that doesn't justify trampling a statute that Congress has written setting out what the President can and can't do in implementing an immigration policy set by Congress, which is where the Constitution says it has to be set. And it also doesn't justify trampling on the first amendment and its guarantee of no official disfavoring of a religion. So those seem here to be the dominant features of what the president has attempted. And to weigh in on that, to put the president back within lawful limits and then to allow real national security work to be done, that strikes me as something that should be reassuring rather than concerning.
- [53:56]
Dahlia Lithwick
Josh Geltzer is head of Georgetown's Institute for Constitutional Advocacy and Protections. He was a signatory to an amicus brief in this case, along with 51 other national security and foreign policy leaders. Joshua, thank you so very much for even going meta with me, but just generally being unbelievably clear on a very, very complicated case. Thanks for being here.
- [54:19]
Josh Geltzer
Thanks very much for having me on.
- [54:22]
Dahlia Lithwick
And that is going to do it for this episode of Amicus. Thank you so very much for listening. If you would like to get in touch and we love it when you do. Our email is amicuslate.com and you can you can find us@facebook.com amicuspodcast and we really like to hear from you. So do it. Today's show was produced by Sara Burningham. Steve Lichtai is our executive producer and June Thomas is senior managing producer of Slate Podcasts. We will be back with you in two more weeks with another episode of Amicus. Sam.