Former Acting Solicitor General Discusses Legal Arguments Against Travel Ban

The immigration order has created many legal challenges for those dealing with refugee cases. National security law professor and former acting solicitor general Neal Katyal discusses with Rachel Martin.

RACHEL MARTIN, HOST:

President Donald Trump has gone after judges he disagrees with in the past. He did it again yesterday, a day after a panel of judges on the 9th Circuit Court of Appeals expressed skepticism about Trump's immigration order.

STEVE INSKEEP, HOST:

Speaking to a gathering of law enforcement officials, the president said delaying his travel ban makes the country less safe.

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PRESIDENT DONALD TRUMP: Courts seem to be so political, and it would be so great for our justice system if they would be able to read a statement and do what's right. And that has to do with the security of our country, which is so important. Right now, we are at risk because of what happened.

INSKEEP: The 9th Circuit is expected to give its decision on the president's immigration order any day now.

MARTIN: Legal experts around the country are watching that decision carefully, including Neal Katyal. He served as acting solicitor general under President Obama and, more recently, he filed the state of Hawaii's legal challenge to the president's travel ban.

Thank you so much for being with us.

NEAL KATYAL: Thank you.

MARTIN: You represent the state of Hawaii, which filed an emergency motion to join with Washington state and Minnesota in their legal challenge to President Trump's executive order on immigration. What standing does Hawaii have, and what is the state's argument here?

KATYAL: So Hawaii believes that the presidential executive order is flatly illegal, that it's unconstitutional because it violates and creates an establishment of religion. It violates the law that Congress has laid down in 1965 that bars discrimination on the basis of nationality, what nation a person is from in the immigration context and for a host of other reasons, the due process clause and equal protection. When you have a ban like this which is motivated by and has the effect of religious discrimination, it really does undermine the kind of associational rights, the kind of freedom of their residents to associate with people of different faiths.

MARTIN: You know that the administration argues otherwise. They say this is not a Muslim ban, that the majority of the world's many billions of Muslims are not banned under this executive order.

KATYAL: Well, suppose I'm an employer and I have five Muslim employees and I fire one of them because of their faith. The fact that I didn't fire the other four, it doesn't mean that I'm not discriminating on the basis of religion.

MARTIN: Although, again, the executive order doesn't mention any kind of discriminatory behavior or exclusion based on religion or faith. It's based on geography or national identity.

KATYAL: But that can't be the standard. If that were the standard, it would allow the government to discriminate in all sorts of ways without using the one dirty word. And that's never been the way the Supreme Court has understood religious discrimination. Rather you peer behind the veneer of the surface and ask what's really going on.

MARTIN: So you're saying that you can think about, take intent into the equation.

KATYAL: Yes. The Supreme Court has been very clear. When it comes to religious discrimination, you can take intent into consideration. And here we have prima facia evidence of that because President Trump contemporaneously with issuing the executive order told the Christian Broadcast Network that his intent was to prefer Christians in the immigration context once they allowed people from these seven countries to come back in. Maybe there's some sort of policy rationale behind that that he hasn't articulated, but whatever it is, it flatly violates the Constitution.

MARTIN: If this makes it all the way up to the Supreme Court, do you think the court will uphold the order?

KATYAL: You know, I never want to be in the business of predicting what the U.S. Supreme Court will do. But I will say that the arguments that the Trump administration has made echo those that were made by Vice President Cheney in the early years of the George W. Bush administration, that the federal courts can't review what's going on in national security determinations. And those kinds of arguments are always losers at the U.S. Supreme Court. And, you know, what the administration is doing here is asserting a broad unreviewable power that I think is fundamentally un-American and in tension with our checks and balances.

MARTIN: Minority leader Chuck Schumer said recently he has, quote, "serious concerns" about Neil Gorsuch. You wrote a robust defense of Gorsuch when he was nominated. Why do you think he should be confirmed?

KATYAL: I don't want to get into predicting how Judge Gorsuch would vote on the Supreme Court as a Justice Gorsuch. But I will say that those of us who've seen him in court as a judge, those of us who have worked with him as I have on a appellate rules committee, understand that this is a man who brings independence and integrity to the job. And I understand that some Democrats don't want to confirm anyone after the historic unprecedented obstruction of Merrick Garland.

And my piece was directed at those people in the country who think someone should be confirmed because it's good to have nine justices as opposed to an even number. And if you're in that camp, I think Judge Gorsuch should be at the top of the list. And I'm certainly no defender of President Trump, but on this one thing, I think he made a wise nomination.

MARTIN: Neal Katyal is a professor of national security law at Georgetown University. He served as acting solicitor general under President Barack Obama. Thank you so much.

KATYAL: Thank you.

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