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On April 25, the Supreme Court will hear oral argument in Trump v. Hawaii, the latest iteration of Hawaii’s challenge to President Trump’s Executive Order suspending immigrant and nonimmigrant entry into the country by citizens of specific countries. While the original order banned entry of citizens from seven majority Muslim countries, it was superseded by the current order which affects citizens from other countries as well, such as Chad, North Korea and Venezuela. Steve Giaier attended oral argument and will join us to share his observations.
Steven Giaier, General Counsel, House Committee on Homeland Security
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Announcer: Welcome to The Federal Society Practice Group's Podcast. The following podcast, hosted by The Federal Society's International and National Security Law Practice Group, was recorded on Wednesday, April 25th, 2018 during a live courthouse steps teleforum conference call held exclusively for Federalist Society members.
Dean Reuter: Welcome to a special courthouse steps edition of The Federalist Society's teleforum conference call, as today we discuss Hawaii versus Trump, the travel moratorium case argued earlier this morning. I'm Dean Reuter, Vice President, General Counsel, and Director of Practice Groups here at The Federalist Society. Please note that all expressions of opinion are those of the expert on today's call.
Also, this call is being recorded for use as a podcast and will likely be transcribed on The Federalist Society's website. I do also want to draw your attention to a prior teleforum conference call featuring Josh Blackman and Ilya Somin on this same topic, it was a preview of the case. It was recorded and it is available on The Federalist Society's website. If there's any questions or ground not covered today that it might well have been addressed in that earlier teleforum.
But today, we're very pleased to welcome return teleforum guest Steven Giaier. He's the General Counsel int the House Committee on Homeland Security. Also, I'll embarrass him by saying perhaps the best ever intern here at The Federalist Society, although that was a long, long time ago now. But with that, Steven Giaier, the floor is yours.
Steve Giaier: Thank you very much, Dean, and good afternoon everyone. Thank you for dialing in today. So yes, I'll just get right into it. Hawaii beat Trump this morning at the Supreme Court, as everybody on this call is very much aware of the background and history of how we got here, but I'll go through it as briefly as I can.
Starts back in January of 2017, January 27th to be exact, when the President signed a Executive Order suspending certain travelers from certain countries entering into the United States under Section 1182F of the Immigration and Nationality Act. It was immediately challenged in court, and was one week later in a Federal District court in western Washington, was put on hold. A nationwide injunction by Judge Robard, I believe was the gentleman's name. And shortly after that, that injunction was upheld by the 9th Circuit. After that the administration went sort of back to the drawing board and issued a new Executive Order, and that was in March of 2017, with some more contours, with some more waivers, more exceptions, and a more robust finding section of the purpose of the and need of the Executive Order. That also was challenged in Federal court.
A nationwide injunction was also placed on the administration for the second Executive Order, which was upheld by the 9th Circuit under statutory grounds, and by the 4th Circuit under establishment clause grounds. At which point over the summer, in late June of last year, the Supreme Court granted cert and put it on its docket for October of last year, but in doing so narrowed the injunction to people that have a bonafide interest in or bonafide right ... I guess right's not the right word, but bonafide interest in arriving and traveling to the United States.
Then when we got to September, that is when, under the Executive Order number 2A new proclamation came out, whereby DHS through an inter-agency process came up with a new list of countries that would be subject to a new travel restriction. And that was based that the governments of those countries were not able to meet basic minimum baseline standards of information sharing. And given that this new proclamation superseded the Executive Order number 2, the Supreme Court removed that case from its docket in October and vacated the lower court's decision. So the cases and the lawsuits began anew.
This one was in Hawaii. Obviously because of Hawaii vs. Trump, and the judge out there, Judge Derrick Watson, under statutory grounds said that it wasn't ... Issued another injunction, another nationwide injunction that was upheld by the 9th Circuit under statutory grounds, not touching the establishment clause side of things. Meanwhile, in the 4th Circuit, once again, they issued an injunction on establishment clause grounds. Interestingly enough, in an end bank panel, could not get enough votes to issue an injunction on the statutory side. So it was solely on the establishment clause.
At that point the Supreme Court granted certiorari. They placed it on the calendar for this morning, April 25th. It is the last case that they will be hearing in this term. They certified four questions for review. One is whether the challenger's claim is justiciable. Number two is whether the proclamation is lawful under the INA. Number three, whether the proclamation violates the establishment clause, and number four whether the global injunction is impermissibly overbroad.
I'm sort of like a high-level to begin with here of where things went from my perch inside the courtroom this morning. I will say from the get-go: the number one and number the justiciability question and the injunction question, there was not much to say about that. They pretty much only focused on number two and number three, the statutory question and the constitutional question. There was only a little bit about justiciability from Justice Gorsuch and only little bit about the injunction also from Justice Gorsuch. And then they just went down to brass tax on the INA and the establishment clause.
So, I'll start with the first one up was the Solicitor General, Mr. Francisco. He was clearly trying to steer the court in the direction that this is a foreign affairs, national security matter, deference to the executive is warranted here. It's a broad inter-agency review, establishes minimum baseline standards of information-sharing that a vast majority of countries throughout the world passed, including a vast majority of countries, assuming a vast majority of Muslim-majority countries. That it was just these eight countries. I should've listed the eight countries at the beginning, I am sorry. Iran, Libya, North Korea, Somalia, Syria, Venezuela, Yemen, and Chad. Chad, as you probably know, about a month ago, maybe a couple weeks ago, was removed from the list. So this was obviously brought up by the Solicitor General that the process is working here. We want these countries to meet these baseline standards for entry, for their residents, their citizens to be allowed entry and we're using this proclamation to exert pressure on these countries to get them up to this baseline.
He went back to that a lot. This was, obviously the argument was making was that it's not a Muslim ban, this is a diplomatic tool, diplomatic national security tool to get these countries in line with what we think are the minimum baseline standards. And one shining example of that is Chad was on the list and now Chad is off the list. They are, within the executive order, every six months there's another look back to see if anybody can be de-listed and under that provision, Chad was able to come back to the table and meet the minimum standard, and now they're off the list.
The Solicitor General didn't say a whole lot, I shouldn't say a whole lot, about the statutory side just because he was peppered with questions mostly about the establishment clause stuff. You'll probably have seen in the news about Justice Kagan sort of quizzing him, for lack of a better word, about what if in the future we have a President who is a, I believe her words were, "vehement anti-Semite" and he wants to issue proclamation under 1182F that says no one from the nation of Israel should be, can be allowed entry into the United States, would that be allowed under the Constitution? And his answer, the Solicitor General's answer was, first he did concede that it was a very tough hypothetical question that Justice Kagan posed to him, but he said that given that, if, I should say, if it was gone through the same rigorous inter-agency, broad inter-agency review, that this one did, that it would almost nullify his "hard of hearts" and if there was a bonafide security reason for it that emerged through that inter-agency route, review, then it could survive the constitutional test.
So, there was a, clearly on the part of Chief Justice Roberts and Chief Justice Alito, a hesitancy to second-guess here. They were clearly on the side of let's let the executive branch do what the executive branch does, this is national security, foreign affairs, let's not open that lid. I think Chief Justice Roberts even posed the question to Neal Katyal, the challenger's attorney, about what if we rule your way here could that open the lid for if a President wants to do an airstrike on Syria and he's made some inflammatory remarks, are you going to come to the courts looking for redress about that, about whether we can judge supposed adamance toward Muslim and then apply it in a military context. And of course Neal Katyal's answer was no, because immigration is separate from military. But that's sort of the ... You can get the flavor of the thinking from the Chief Justice and Justice Alito.
A very interesting moment I thought, Justice Kennedy did not say a whole lot, but in the instances where he did speak, it seemed to indicate that he was sort of leaning towards the restraint of deferring to the executive branch in that it was early on in the Solicitor General's arguments when he was talking about the contents of the executive order, the proclamation, and Judge Kennedy, sort of just on his own, just piped in and said that this is the most detailed executive order that's ever been submitted or released under section 1182 of the INA. There was really no follow-up question to it, it was just sort of like a compliment, which I thought was kind of telling that he just chimed in just to make that specific point.
So that sort of talks about Mr. Francisco. For Mr. Katyal, it was pretty clear to me that he, I don't wanna say put all his eggs in one basket, 'cause he wasn't, but it was clear to me that the thought the statutory arguments were, I guess, a greater chance of him winning because he really drove home about section 1182 and section 1152. Section 1182 is the section on the INA that the government was relying on that says that the President has the authority to suspend entry from any aliens or any class of aliens for a time that he determines. He was making the point that that flatly contradicts section 1152 which is the section of the INA that says that you cannot discriminate in the issuance of immigrant visas and that I think his exact words was that it flatly contradicts 1152 and if that you allow that to just go unimpeded, then the administration of this President or future Presidents can just wipe out other sections of the INA. He brought up family preferences or specialty occupation preferences. These are stuff that can just be ignored under section 1182, his argument, by just a proclamation saying there's a specialty occupation for engineers but because of the economics are of such a situation, then the President can issue a proclamation and say, "No more engineers can go to work in Silicon Valley in California."
So that's what he was, his point was that the way they were using the proclamation under 1182 was so at odds that it has to be seen in the broader context in the INA and in this case it was just not allowable. Now, when we get to the subject about Muslim bans and about campaign statements and about statements that he's made as President and under the establishment clause. This is where things got a little interesting because Chief Justice Roberts sort of teed up a question for Mr. Katyal and said, "Okay, these campaign statements. Is there any sort of statute of limitations," I think that was his exact words, statute of limitations, "or are we to just consider them for eternity and they can taint whatever policy the administration may come out with in this term or a second term, should there be a second term?"
And Mr. Katyal immediately said, "You don't need to look at campaign statements." He said that there were plenty of statements post-campaign, post-inauguration that can make the case that this was a Muslim ban and was triggered by animus towards Muslim, which was very interesting. So everybody in the courtroom agreed that campaign statements are off-limits, at least in this context because the government says you shouldn't look at them at all. The challengers say you shouldn't look at them at all because there's all this stuff post-inauguration, he kept saying all of the same stuff after the inauguration and that any reasonable observer would see animus towards Muslims and so you don't need to second-guess the administration. You don't need second-guess the executive, it's all right there for you.
So, that was very interesting. And one very, very interesting point is that Chief Justice Roberts said, "So, if the President of the United States tomorrow were to issue a proclamation saying, 'I have disavowed all prior comments I have made,' and then the day after that issued the same proclamation, would it be okay under the establishment clause?" And Neal Katyal said yes. He said, "I've made that same argument to the 9th Circuit, I'm making the same argument here." He had plenty of time, I'm thinking 460 days into the administration here, he had plenty of time to go back and disavow those statements and he hasn't done that. And so because he hasn't done that from January 20th to today, the statements that he's made give plenty of information on the record that you need to see that this violates the establishment clause. But again, it was clear that he was much more focused on the statutory side and that he, at least to me, it was clear that he thought that that was a winner for him more than the establishment clause stuff, just that they're using 1182 was so at odds that the executive shouldn't be allowed to just go crazy and more or less cancel other parts of the INA.
So, on rebuttal, then Mr. Francisco was able to get down to the minutiae of the statutory side, which I'm very glad he did because section 1152 and section 1182, the one that, the two, I should say, that Mr. Katyal said flatly contradict each other. This has been a top immigration discussion throughout the, from district court to the appellate court to today. Section 1152, as Mr. Francisco rightfully pointed out, only applies to the issuance of immigrant visas. Section 1182, which gives him broad suspension authority, applies to entry.
There is a difference between being awarded a visa in a consulate in a foreign country and being allowed entry. The visa process is controlled by the State Department, the entry process is controlled by US Customs and Border Protection at the border, at the point of entry, here in the United States. So what, the argument that Mr. Francisco made is that a lot of time, I shouldn't say a lot of times, but sometimes a visa will be validly issued and then in the time that it takes between them getting that visa and them arriving to the United States, it is possible and it has happened that we learn something about this individual that would cause them to be not admissible and turned back at the border here in the United States. And because we have some countries of concern that is not able to share with us that information that might fill in those blanks between visa and between entry, then this proclamation is allowable and is valuable and is a valid exercise of executive power and is a good national security tool that the courts should not second-guess or meddle with.
So that is, I guess, where I will leave it there. I'm not going to make a prediction about which way it's gonna go, 'cause I prove myself very, very bad at that, but I will say that Alito, Roberts seemed very much on the side of the government. Sotomayor and Ginsberg were not, I think that's very obvious, because last year you remember when the court granted cert, they stayed the nationwide injunction and let the government completely and totally implement these travel restrictions and the only two Justices to publicly dissent from that decision were Sotomayor and Ginsberg. I read some in the press that people think that Kagan and Breye might be "gettable votes," if you will. Kagan was the only one of the, for lack of a better term, the liberal side of the court to really pepper questions at Mr. Katyal and Gorsuch only spoke up really in those two minutiae issues of justiciability and about the overbroad injunction, which it's pretty clear to me, I doubt that they'll throw it out under justiciability. I think they will get to the merits somehow. Will they try and narrow it from there? I don't know. But that's sort of my best guess at what I saw there. I'll let other people who know the Justices' records better than I make predictions on where it might go. Back to you, Dean.
Dean Reuter: Very good, thank you so much. Let's open the floor to questions. In a moment, we'll all hear an announcement that will say the floor mode is on. After you hear that announcement, if you have a question, push the star button and then the pound button on your telephone.
One again, if you have a question for our expert, push the star button and then the pound button on your telephone. We've got quite a few people on the call, we'll get to as many questions as possible. We'll begin today with five such questions, so let's turn right away to our first caller.
Trying to reach the caller at 818. If you have your telephone muted, you need to come off mute.
Tom Watson: I'm off mute, sorry about that.
Dean Reuter: We can hear you.
Tom Watson: I'm Tom Watson in Los Angeles. I was wondering, was there any discussion concerning the President's authority under article two of the Constitution versus the delegated authority under federal statutes and whether one would be broader than the other?
Steve Giaier: And the answer to your question is big no. I was actually talking about a friend that I saw on the sidewalk after the oral argument and we ... No, the article two in this arena and whether what the contours are was not brought up at all.
Dean Reuter: That's interesting, this is Dean, because you mentioned that Solicitor General Noel Francisco started off talking about foreign affairs and national security, but without really invoking article 2 powers.
Steve Giaier: Right. Yes, that is correct. I shouldn't say that it wasn't brought up, it was not really delved into.
Dean Reuter: Okay.
Steve Giaier: It was in the context of foreign affairs, national security, clearly some Justices were in agreement. Some Justices were, I guess, lightly pushing back, but aside from that, that was that and they went into the statutes, then they went into the establishment clause and there wasn't much of a back and forth of to what degree to we get to get beyond that, if you will, and take a second look.
Dean Reuter: Good. Alright, once again, if you have a question push the star button, then the pound button, on your telephone. We've got quite a few people with questions, but we'll get to as many as possible. Go right ahead, caller.
Matthew M.: Hi, this is Matthew McReynolds of Pacific Justice Institute. Great discussion today. Question for you regarding the establishment clause. Since the Supreme Court has had very little jurisprudence on hostility establishment clause cases, what cases were discussed? What precedent was brought up for the hostility claims?
Steve Giaier: Mostly Mandel, about bonafide reasons for the action and at what point are we able to look past that. And as I just said, there was not a whole thorough discussion about obviously the Justice Kennedy concurrence in Mandel about, excuse me, about looking past the bonafide reason. That was not discussed in great length. I kept waiting for, frankly, Neal Katyal to bring up Justice Kennedy's concurrence just as the 4th Circuit did, sort of teeing that up or trying to tee it up, and it didn't come up. I was waiting for him to say something like, "Justice Kennedy, just as you said in your concurrence, so on and so forth," and there was not, as I said, not a real great discussion.
Dean Reuter: Let's turn to our next caller now. Reminder to callers, if your microphone comes on, if you're the next questioner, you need to unmute your own phone. Please do so. Go right ahead, caller.
Bob Fritz: Hi. Bob Fritz [inaudible 00:25:17] here in DC. The issue that's fascinated me is this electioneering evidence. I gather there was little or no discussion. Was there briefing on the effect of the admissibility and consideration of such evidence would have on electioneering, political process, making candidates more politically correct?
Steve Giaier: I cannot speak to briefing. I will say that the big case, the one case that I'm familiar with that takes that issue head on is a case out of the 10th Circuit from a couple years ago. If you'll forgive me, I do not remember the name of the case, but the holding on that case is that you really can't take a political campaign speech into consideration because of a chilling factor. As far as briefing in this case, I'm sorry, I will have to plead ignorance. I will have to defer to people like Josh Blackman, Professor Somin who have been more in the weeds of every record and every submission to the court as far as amici and official briefing.
Bob Fritz: But basically a concession by both sides?
Steve Giaier: Yeah.
Bob Fritz: It was just simply not to be considered in this case.
Steve Giaier: Yeah. That's right. The government's position is that it should not be considered and the challenger's position was that it need not be considered, and so it was a [inaudible 00:26:54] complete agreement around the room that you only need to consider the statements from January 20th on.
Bob Fritz: Thanks. Appreciate it.
Dean Reuter: Was that the biggest surprise? This is Dean, by the way. Was that the biggest surprise, that concession, and was there any attempt by the government to say, "No, let's not consider all the statements from January 20th forward, what you should consider are the statements from between the issuance of the second order and the final proclamation, that those are the relevant, that's the relevant time."
Steve Giaier: Sure. So, the government's response to that was that yes he made those statements from January 20th on, but there are also plenty of statements that he made that are on the complete opposite side in how he said that. Mr. Pence has said that he said Islam was one of the great, world's great religions and that most American Muslims are peaceful, America-loving individuals. I'm paraphrasing this of sorts. But his response was not look at only these or this time frame, but for every negative comment, there's a positive comment, for lack of a better explanation. And yes, I ... I don't wanna say that I'm surprised that Mr. Katyal went immediate contradicted that, 'cause just because I think that he saw, I shouldn't try to read his mind here, that maybe it was a can of worms that wasn't worth opening, especially when he thinks that he has all this, for lack of a better term, ammo from January 20th on. That sort of "Don't go down that road, we're good."
Dean Reuter: Interesting. And were there, before we go to our next audience members and we will turn back to the audience shortly, was there any discussion of statements by others in the administration during any period of time?
Steve Giaier: Not on the ... I know in the briefings there were, but not on the record or in the oral arguments. There was some briefings submitted about some statements that Steven Miller made about how the forthcoming executive order is going to accomplish pretty much the same stuff as the prior executive orders and so drawing the line there, sort of tainted product and such. But as far as the courtroom today, it was solely on the statements of the President.
Dean Reuter: Yeah, that's interesting because my guess would be, and I've not done the empirical study, but if you take the post-January 20th statements, not just of the President, but everyone in the administration, there's probably more positive than negative statements. If the government was arguing with the President alone, my guess is that others within the administration were saying more positive and fewer negative things.
Steve Giaier: And that could very well be the case, yeah.
Dean Reuter: Once again, if you'd like to join the queue, push the star button and the pound button on your telephone. We've got four callers with questions, so let's now turn to our next caller.
Jordan Lawrence: Hi, this is Jordan Lawrence. I work with Alliance Defending Freedom and we do a lot of First Amendment cases. I'm really hoping that the establishment clause issue will not get addressed by the court because whenever they're looking for bad motives, it always seems like they mess up the law. So, two quick questions, do you think they might avoid writing about the establishment clause at all? And also, was there any discussion on whether the actual order, let's say that there is animus, the actual order has to implement it. And if it doesn't fully implement the animus, it doesn't seem to me that the relevance of these statements would invalidate it under the establishment clause. I hope that made sense.
Steve Giaier: So, if I could take your second one first there, the challenger's attorney, Neal Katyal, said that, forgive me for paraphrasing here, but if the court would take the requested action, then it would only invalidate 39% of the executive order, and so I'm guessing that that meant that it would only invalidate the travel restrictions and that the rest of it, as far as doing nationwide review and always looking for better vetting and establishing baselines, that's okay. But the restrictions would be tossed out. I'm guessing that's what he said. So, I guess I don't know if that completely answered your question, I guess I'm not sure of understand the question about applying the animus, but as best I understand your question, he was asking them to apply the animus to the travel restrictions, this 39% of the order that he pointed out.
And forgive me, I forgot your first question.
Jordan Lawrence: Am I still on? Can you hear me still?
Steve Giaier: Yes, yes I can hear you.
Jordan Lawrence: Might they avoid the establishment-
Steve Giaier: Oh! Avoid it!
Jordan Lawrence: Clause altogether. And then the thing that I'm getting at is that a ban against Muslims would ban people from Indonesia and Saudi Arabia, and the fact that they're not doing that says to me it's not really banning on the basis of religion so that the the whole premise that there's an establishment clause violation here is factually wrong because the travel ban doesn't do that.
Steve Giaier: Right. So, Mr. Francisco, the Solicitor General, made that exact point. I think his exact words were that, "If this is a Muslim ban, it's a really inefficient one." Justice Alito brought up that point, too, that there's I think he said 50 majority Muslim countries in the world and this is affecting five of them, and so, yes. Those points were definitely made, that you can't call this a Muslim ban because it's not. It is a national security tool based on an inter-agency review that is used to apply diplomatic pressure on certain countries who do not share enough information.
As far as your first point, the constitutional avoidance, it's possible. Obviously, as we've learned in the past, the Chief Justice, when the mood strikes him, likes to build coalitions to get from point A to point B in a sticky situation with as much consensus as possible. I know from listening to the teleforum, the preview from last week that Dean mentioned, if I can speak for Josh Blackman, he made the prediction that it would be seven to two on the statutory side and five to four on the constitutional side. So yeah, I suppose it's possible that they, if they are so inclined, they could do, sort of worm their way out, or who the heck knows if there's some other, smaller issue that they could get rid of it with, for lack of a better term.
One additional point I should make that I didn't make was that Justice Breyer was very caught up on these waiver provisions within the proclamation and he was saying that he didn't quite know these figures, like how many waivers are being issued, what is the process, is the process being applied uniformly. He was saying was it a legit waiver process or was it just "window dressing," as some of the amicus briefs had said that it was. They have issued 430-some-odd waivers under the proclamation. Neal Katyal made the point that they do not relieve the denominator, that is they don't know from what kind of pool these 435 are coming from. Is it from 500? Is it from 5,000? And the Solicitor General said that the processes are fully transparent on the State Department website, they're applied to every single waiver application. One point that Justice Breyer brought up was do we need to send this back down and get more further information on these waivers before we make a decision. So, I don't wanna say that there was a broad consensus that that was a good way to go, but at least one Justice is thinking of potential ways to dispense of this in a more narrow fashion.
Dean Reuter: One again, we're speaking with our expert, Steven Giaier, on today's oral argument, Hawaii versus Trump. If you have a question, push the star button, then the pound button on your telephone. We've got three questions pending, so let's carry on with our callers.
Gloria Peterson: Hi, my name's Gloria Peterson. Thanks very much for your excellent presentation. You had mentioned that Justice Gorsuch had raised some questions regarding justiciability. Would you please identify what aspects of justiciability? Was it, for example, the political question doctrine or other aspects that he addressed? And what, please, were the responses?
Steve Giaier: Sure, it was mostly on the standing argument about third party standing, and it was very quickly dispensed with by Mr. Katyal saying that these plaintiffs had suffered injury and that was pretty much that.
As I said, the justiciability question did not get much air time this morning.
Gloria Peterson: Thanks.
Dean Reuter: Well, very good. Let's turn to our next caller.
Trying to reach the caller at area code 201. If you have your phone muted, you need to come off mute.
Speaker 9: Oh, okay. I'm here, no problem. Sorry 'bout that. It's a three part question, but the first part was addressed a couple calls ago about the issue of Indonesians, Saudi Arabians, so I'll skip that. My question is what if it was an outright Muslim ban? Would foreign nationals on foreign soil be covered by that? Did that issue come up at all?
And then the second part of my question is the issue of relevance from the comments during the campaign. In the issue of intent, is that a result of the Griggs versus Duke Power case back in the 1970s? Where again, we're not really looking at the actual text of a policy or law, you're looking at the intent behind it to see if there's actually animus and to see if that's relevant?
Steve Giaier: So, to your first one about outright ban, I would just go back to the question posted by Justice Kagan to the Solicitor General about her hypothetical about suspending all Israeli travelers to the United States and the way that the Solicitor General handled that was that as long as it has gone through this rigorous process that this one went through, where it was brought inter-agency, where it was used for a diplomatic tool to pressure them to give us more information, more valuable to national security information, then yeah, it would be okay under, according to the Solicitor General.
As far as your second point, I will say I don't know exactly ... I guess, if you could repeat it again. I'm sorry. I'm sorry.
Speaker 9: Yeah, no, the reason ... The issue is President Trump made comments during the campaign. You have the actual travel ban itself, it has language, it doesn't talk about Muslims-
Steve Giaier: Oh, I see.
Speaker 9: [crosstalk 00:39:36] the issue that it's only a few countries. So, is the actual intent the issue and people are saying that he's intending to stigmatize and punish Muslims. Is this an outgrowth of the Griggs versus Power, Duke Power?
Steve Giaier: I see. So, sort of going beyond the four corners of the page. Okay. I don't know enough to answer your question about outgrowth of that case, but I will tell you that it was the one that was talked about most was the Mandel case about being the bonafide reason, and as long as it's a bonafide reason for this, then sort of the exercise, the judicial exercise stops there and that is what the Solicitor General referenced more than a couple times. And that because it was this inter-agency process, because it was this broad review by a lot of people, by a lot of experts within the agency, because it establishes this baseline and that some passed but a very few didn't, that it met that bonafide standard. And so no need to go beyond the four corners.
But, if you did go beyond the four corners it's okay, because yes, there were some inflammatory comments made after January 20th, but there were also plenty of positive comments made and so we're good here, moving on, type of thing.
Dean Reuter: This is Dean. I think we've got three caller questions pending, but let me follow up there. I think what the caller might have been getting at in Griggs versus Duke Power is the idea of disparate impact, and was there any discussion in this case that, regardless of the animus perhaps even despite it, if they had a benign reason for implementing this, if it has a disparate impact on Muslims it fails some tests. Was there any discussion along those lines?
Steve Giaier: I see. There was no discussion on that issue, no.
Dean Reuter: Okay. Very good. Once again if-
Steve Giaier: My apologies for misunderstanding the question.
Speaker 9: No, no, actually. Can you hear me?
Dean Reuter: Yeah, go ahead, caller.
Speaker 9: I wasn't concerned about the disparate impact, I was really the issue of in that case back in the 1970s, it was clear that the new policy of a power company was targeted at blacks. It just said, "Well, we're only gonna promote those with high school diplomas." It did have a disparate impact, but it was through the animus of blacks that caused it. So, the Justices understood that there was, this was all sort of a ruse. It was targeting blacks.
So, this is the same idea that, yeah, there are only a few countries, but really Trump is really going after Muslims, that was his real intent. That's what I'm getting at.
Steve Giaier: I see. I see. Yeah, not that I could tell.
Speaker 9: Okay. Thanks very much.
Dean Reuter: Thank you, caller. Once again, if you have a question push the star button, then the pound button on your telephone. We've got almost 20 minutes, three questions pending, so we'll turn now to another caller.
Sam Sodegy: This is Sam Sodegy from Orange County, California. Thank you for your great presentation. I was wondering, I have two questions and they're related to each other. The first is was there any discussion of limiting the enforceability of the travel ban to those foreign nationals who don't have a bonafide relationship to an American entity or person, similar to what the Supreme Court did last year? And the related point is was there any discussion of the rights of an American citizen who, say, years before this travel ban went into effect petitioned for an immediate family member to come to the US to visit them?
Steve Giaier: Okay, so your first question first. The only discussion about the injunction, about limiting or not limiting, or about the issue of the district courts issuing nationwide global injunctions, I believe Justice Gorsuch referred to it as a cosmic injunction, so we're going beyond earth. It came from Justice Gorsuch and it was to Neal Katyal, and he said that in this case, I guess the district courts issued a nationwide injunction because under the INA, we need uniform rules regarding immigration. So therefore they made nationwide injunctions; however, this court trimmed down the injunction significantly in this case and so to revisit it in this immigration context, you don't really need to do. Because if you did, it would sort of be like almost an advisory opinion, and the district courts are currently debating this, and so no need to go there. And to be frank, I doubt they will go there. I wouldn't be surprised if they just don't, they just save that question for another day.
Your second question about, are you still there? I'm sorry, I keep forgetting second questions on the call today.
Sam Sodegy: Yeah, no problem. The second question was about any right an American citizen would have who, years before the travel ban went into effect, petitioned for their immediate family member to come and visit them. Was there any discussion of that?
Steve Giaier: As far as standing, or where are you getting that there?
Sam Sodegy: So, how this travel ban as an executive order would affect the rights of American citizens here in the US, who under the federal statute, years ago petitioned for their immediate family member to come to the US and the family member's been waiting in line, as you know, there are all these quotas. And then all of a sudden, the ban comes into effect.
Steve Giaier: I see.
Sam Sodegy: How does that affect the rights of the American citizen here who wants their family member who happens to be from one of these countries to visit them here?
Steve Giaier: Okay. Frankly, no. That was not addressed at all. I'm sorry, I didn't quite understand your question, but now I see, because of the lengthy time it takes from applying to getting a visa and this came in the middle of it, how would that affect American citizens? And no, that was not addressed.
Sam Sodegy: Okay. Thank you.
Dean Reuter: Thank you, caller, let's take another call.
Ken Cuccinelli: Hi, this is Ken Cuccinelli and I appreciate your presentation. I have an analogy question for you and one clarifying. First I'll do the easy one, the clarifying. You mentioned of the four questions presented the time was most spend on either two and three or one and four, but I'm not sure I caught which of the pair.
Steve Giaier: Sure. Most time was spent, instead of memory, I'll just label 'em. The most time was spent on statutory and establishment clause. The justiciability and the injunction questions were hardly addressed at all.
Ken Cuccinelli: Got it. Thank you. And was in either oral argument or any of the briefing that you happened to look at, the example of President Obama's direct statement about Obamacare, that it is not a tax and yet the courts, while presented with that statement, ignored it and whether that was of relevance to the court's treatment to any of Donald Trump's statements.
Steve Giaier: That is an excellent question. I do not know the answer to that question as far as the briefing. I can tell you that today it was, the example was not brought up.
Ken Cuccinelli: Hm. Alright, thank you. That's all I have.
Dean Reuter: Thank you, caller. We're down to our final question. If you'd like to join the queue, push the star button, then the pound button on your telephone. For now, let's head to area code 614. Go ahead, caller.
Speaker 12: Was the underlying premise of the argument that foreigners have a right to immigrate here? Or was it acknowledge somewhere that the United States doesn't have to take any immigrants?
Steve Giaier: So, no, there was no discussion about the rights. It was more a discussion on the limits of the executive under the Constitution, under the establishment clause, and under law and how far this 1182 statute can be applied given the other confines of the INA.
Speaker 12: Thank you.
Dean Reuter: Let me make a final call for questions. If you have a question, now's the time, push the star button, then the pound button on your telephone. We do have another question, so check in with another caller. Area code 951, go ahead, caller.
Speaker 13: Hi, this is Jeff Aaron from Riverside, California. I just wondered in line with the last question, but one that was asked, whether or not there was any discussion in oral argument about signing statements and the weight that court gives those, which I think in the Hampton case, was not much.
Steve Giaier: Hm. Specifically on the subject of signed statements, no. That was not brought up. It was noted by Justice Kennedy, as I said, that the proclamation was very detailed, it was the most detailed ever was his words under 1182, but the comparison to signed statements or legislative history or whatever else paper might be out there, no.
Speaker 13: Okay, thank you.
Steve Giaier: Yep.
Dean Reuter: We do have another question. Let's head in the direction of area code 916 now.
Speaker 14: Question about whether there was any discussion by way of analogy or reference, anything else, touching on religious asylum in the immigration context.
Steve Giaier: No. Are you specifically referring to the comments the President made about, I guess it was, I can't remember the news outlet, but how he was gonna give preference to, he might give preference to certain religions? Is that what you're getting at there?
Speaker 14: No, I was thinking more in terms of the separate issue of religious asylum and whether that comes into play at all in the thinking on this, as to whether the court's likely to say anything that would in any way touch on that.
Steve Giaier: If they were likely to say anything, they didn't say it today. Is it possible that it's in one of the back of their minds? I guess, anything's possible, but on the record today, no.
Speaker 14: Okay. Thank you.
Dean Reuter: Very good. It looks like we've had our final question. Let me ask one question and I think you can answer this probably quickly in the form of "no," but, and that's whether or not there was any discussion that was brought up in our first teleforum conference, our earlier teleforum conference call on this topic, the preview of this case. Ilya Somin made a point about the Blaine Amendments, as series of amendments to state constitutions that were adopted over a century ago. All, I shouldn't say all, but they're arguably with an anti-Catholic animus and folks have been arguing in court that those ought to be overturned given that animus, which I suppose there's no opportunity for the adopters to retract that or rephrase the animus. Any discussion on that?
Steve Giaier: As you predicted, no.
Dean Reuter: Very good.
Steve Giaier: I've been saying no a lot today. I'm very sorry. I don't mean to be so negative, but there was really a rehashing of a lot of arguments, a lot of questions, that was really zeroed in on the subjects that I rehashed and rehashed today while saying no to everything else. So, sorry about that.
Dean Reuter: Well, no worries. I think I count that as one of the values of these types of programs. That you were in the room and our callers are able to ask you these specific questions, and it's either yes or no.
With that, it looks like we've had our final question. I wanna thank our special guest today, Steven Giaier, for not only his time this afternoon, but for making his way to the courtroom and sitting through the oral argument. It's great to have your insights and your expertise, might well have you back when this case is decided, which I suppose can't go much later than the end of June given the court calendar.
Steve Giaier: I would count on the last week of June on this one. I have a feeling this is gonna be one of the very, very last ones to come out.
Dean Reuter: I want to thank, also, the callers for dialing in. A reminder to the callers to check the Federalist Society's website for upcoming teleforum conference calls. The next scheduled call is tomorrow at 2:00 PM. We'll be discussing at the same number shareholder activism, but until that next call, we are adjourned. Thank you very much, everyone.
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