Implications of the Travel Ban
ZAKARIA: "See you in court. The security of our nation is at stake." That was President Trump's tweet on Thursday after a three- judge panel from the Ninth Circuit Court ruled against reinstating the president's travel ban. The White House has given indications that it won't immediately appeal to the Supreme Court. In commentary, both the ban and the panel's decision have come under some criticism. Why? Well, joining me here in New York is Michael Mukasey, former Attorney General of the United States at the end of the George W. Bush administration. And from outside Boston, Laurence Tribe joins us. He is a Professor of Constitutional Law at Harvard. He received tenure there at the astonishing age of 30 and has argued 35 cases before the Supreme Court. Laurence Tribe, let me ask you. Summarize the Ninth Circuit's decision. What can we make of it?</s>LAURENCE TRIBE, PROFESSOR OF CONSTITUTIONAL LAW, HARVARD LAW SCHOOL: Well, the Ninth Circuit quite carefully and unanimously held that the decision of the District Court that put the ban on hold until a full hearing could be held and until its serious legal flaws could be examined, that decision essentially was a defeat for the administration and a victory for the rule of law because the administration, after issuing a ban that was a thinly disguised form of religious discrimination and offering justifications for it that just didn't pan out in the hearing before the Ninth Circuit, essentially was sending a signal to Muslims all over the world and the United States that they're not welcome here. And as your guests in the last segment, Richard Haas and Anne-Marie Slaughter indicated, far from protecting us from terror, that made it harder for us to work with people in countries like Iraq and became essentially an advertisement for ISIS recruiting. So, I think we're much better off now that that ban has been stayed and is not going to quickly be reinstated.</s>ZAKARIA: But, Larry, let me ask you, though, on the specific question. All that may be unwise, why is it unconstitutional? Why does the president not have the authority to do something that might be bad foreign policy?</s>TRIBE: Well, of course, what makes it unconstitutional is not simply that it's bad foreign policy. That wouldn't suffice. It's the First Amendment to the US Constitution, which says that the government cannot draw religious lines. And this was a religious line if ever there was one. Their argument that not all Muslims are being excluded and discriminated against is like saying that if only a few Jews are the subject of a ban that only hits Jews, then it's perfectly all right. There are still some who aren't being hurt. And, in fact, the US Supreme Court in a case from McCreary County, Kentucky, in 2005, made clear that in judging whether something is a form of religious gerrymandering, you look not only at the people who are favored, like in Section 5 of this ban, the Christian minorities of these countries are favored, but you also look at the context, the history, the statements made surrounding the ban. And this couldn't be an easier case from that perspective. Donald Trump campaigned on an anti-Muslim slogan. He said he was going to leave all Muslims out. Then having been told he couldn't quite do that, he apparently asked Rudy Giuliani to put lipstick on the pig. And what we end up with is still a pig.</s>ZAKARIA: Michael Mukasey, what do you make of that decision, the Ninth Circuit?</s>MICHAEL MUKASEY, FORMER ATTORNEY GENERAL: Well, the 9th Circuit decision, unfortunately, was wrong on just about every count that it decided, starting with giving standing to the states of Washington and Minnesota to represent the, quote, "rights" of people who have no rights, that is, aliens who are overseas who have no connection to this country. What they said, what the 9th Circuit said, essentially, was that, if the states, the universities and so on, had made arrangements with students or with lecturers to come here, then they had a third-party right to defend the rights of those people. That assumed that those people have a right to come here in the first place. The -- the universities do not have -- cannot confer rights on aliens, and there was no right that was conferred here. It may very well be that lawful permanent residents have a right to be here and that -- that visa holders have a right to be here, but those could have been carved out. The 9th Circuit specifically refused to do that. Insofar as the question of whether the decision was -- was properly based, there's a statute that defines the president's authority to do this. Not only wasn't it distinguished, it wasn't even discussed or mentioned in the opinion. The statute says, "Whenever the president finds that the entry of any aliens or any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation and for such period that he shall deem necessary suspend the entry of all aliens or any class of aliens as immigrants or non- immigrants or impose on the entry of aliens any restrictions he may deem to be appropriate."</s>ZAKARIA: What about -- what about the '65 -- 1965 Immigration and Naturalization Act which says you cannot discriminate on people on the basis of national origin?</s>MUKASEY: It entirely -- it's entirely consistent with that. This was not a discrimination on the basis of national origin. This was a discrimination on the basis of -- of countries that are -- that are failed states.</s>ZAKARIA: Isn't that national origin, though, if that's a blanket ban on...</s>MUKASEY: No. It is not -- it is not a blanket ban. What the statute bans is discrimination, i.e., drawing a distinction that has no basis in fact. If the distinction has a basis in fact, i.e., you come from a failed state, that's perfectly permissible.</s>ZAKARIA: So you think this -- the decision was wrong and you think -- you think it would be reversed by the Supreme Court?</s>MUKASEY: That's a whole different -- that's a whole different matter. And as I understand it, what they're doing now is redrafting the statute to carve out lawful permanent residents and visa holders. I don't know that that's precisely what they're doing, but there is talk of redrafting the order and then possibly going back, either in a case out of this circuit or in a case out of another circuit where the decision went the other way, or other circuits where it might go the other way.</s>ZAKARIA: All right. When we come back, we will talk about exactly this. What happens next and what happens in a new Supreme Court with one new member?