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tv   Washington Journal Joshua Geltzer  CSPAN  April 24, 2018 2:48pm-3:20pm EDT

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he's not the kind of person who i think is going to get caught off guard by these kinds of decisions. we'll waiting on the russia sanctions announcement. in the end i think nikki haley will be proved right, what she said. it's a matter of timing. he knows how to deal with the president well. he understands what motivates the president. he has seen him up close. if anybody can handle what might be tactical moves where the president may seem to depart from policies, but he really doesn't, it's pompeo. >> ken weinstein who is the president and ceo of the hudson institute, thanks for your time. >> thank you. the administrator for the u.s. agency for international develop mark green is set to testify this afternoon on the agency's fiscal year 2019 budget request before a subcommittee
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that had been set for 2:30 eastern. they've pushed that back until 3:15 a vote is happening at 3:00 this afternoon on the senate floor. we'll have live coverage of the subcommittee hearing once it gets underway. in the meantime, more from today's washington journal. the senior director at the national security council under the obama administration and currently is a georgetown university law school, the institute of constitutional advocacy and protection where he serves as executive director. the supreme court discusses the president's travel ban tomorrow. could you set up not only what will be debated but what's at stake? >> it's the third attempt by the president to deliver on a campaign promise of this travel ban. but the first time it's actually reaching the supreme court on the merits in full. that's because the first two were temporary bans. they expired before the case could get to the supreme court. now we have the third one.
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it's indefinite. it's made it to the court. when it was issued it was called a proclamation. it applies to eight countries. six were muslim majority countries, and in this third attempt at a travel why must lu majorilump -- muslim. now, chad was just removed a couple weeks ago. but seven countries at stake. and big picture. this has been tied by the white house back to promise that donald trump made when he was candidate to total shut down of the muslims entering the united states, that was his words. >> so as far as position you take, did you contribute anything to the supreme court in leading up to tomorrow? >> so i'm proud to it be ha signatory to amicus brief, friend of the court brief, in which i was joined by 51 former colleagues, national security officials of both parties. and our view is that this
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doesn't really address a national security threat. instead it holds up national security as pre-tex. so when this proclamation went into effect, it kept 150 million people from entering this country with the stroke of a pen. that's not the sort of approach to counter terrorism i or my colleagues are familiar w threats come from individuals that's we have vidized vetting system. keeping out whole countries, that's bad for counter terrorism partnerships hand america's standing in the world. >> so when the court debates this tomorrow, what will be the arguments not only from the government's standpoint, but those the state of hawaii which is bringing the counter? >> that's right. the challenge is brought by the state of hawaii and some other plaintiffs. what the government says initially is worth spending time on. they say the court sees nothing in essence. nothing for the court to get into in the substance of this karks it's off limits. that's a pretty bold argument given how controversial this is and in my view doesn't capture
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what the court has done in past in similar where they have reached merits of the case. getting past that the government says the president deserves presidential deaf remembference. this is where my colleagues says this isn't national security. ultimately what the challengers say is this is consistent with immigration law as given to us by the congress. it's congress, but the constitution charges with setting immigration policy. congress has said you can't keep out people on the basis of nationality. you can't act on emergency powers powers indefinitely. >> the travel ban being debated by the supreme court is topic for this question. if you want to ask questions, 202, 748,000 for democrats, and republicans, and you can tweet
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us as c-span. i'm no lawyer but some of the people who defend the president's actions says whatever the president says class ofally ens will be detrimental to the interests of united states made by pro cla mags as such period deemed necessary, suspendally allens or impose any restrictions he may deem to be appropriate. it goes on from there. but why doesn't that cover this case? >> that's the right place to start. start with the text of the statute. a couple of things keying in on that language. first is language for whaefr period he deems appropriate. of course, this third travel ban is in indefinite. something finite. it is in existence in period of ti time -- in perpetuity.
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and nothing defiable about 150 million people. class means something you can put your finger on. they pose a particular type of threat. maybe they were pokesed to particular type of disaster, that seemsz to be the kind of thing congress had in mind writing those words. about 150 million people across the country, there is nothing common you can say. and that's part of what hawaii is challenging. >> religion every come up in the argument that government makes? >> religion plays in by how the white house has framed this project as a whole. let me give perhaps the most interesting example. after the president issues the third attempt at the travel ban, one called proclamation, thereafter he retweets, you remember this, three virulently anti-muslim videos by a far right politician. and the deputy press secretary is asked by journalists a little later, what was the president doing? what's his view? and ts answer is the president, given by the deputy press
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secretary, the president has already addressed these issues. most recently through the issuance of proclamation and travel ban. so that's them saying this delivers on that campaign promise keep out one particular religion from entering this country. >> so is it fair to take things during the campaign as a candidate not as president, apply them to someone who makes policy as president? >> i don't think you need to go to that. that's a good question. we law professors could spend all day on t but here i don't think you need to get back to those campaign statements. you have enough after this president was president. you have when he sits down to sign the first travel ban reads somewhat bureaucratic title to itten looks up and says we all know what that means. then you have sur owe gates like rudy giuliani going on television. then i have the third one being tied back to videos, those weren't videos by national
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security, those are videos about islam phobia. so you can put a side what he said on the campaign trail, and still see the problem with erecting a religion test at these borders. >> did he did any of thee tenants, and can they apply in this case? >> they did not. and i appreciate you asking this. the previous administration dealt with visa waiver program. you can think of that program as extra credit. bonus that countries get if they have really extent vetting systems and really excellent ways of sharing information about their nationals who may be coming to this country. if they do a great job of that, their nationals can enter this country, can travel here more easily. that is supposed to be adjusted depending on how well other countries are doing. it's a carrot and stick for the president. and the previous administration did use it for those purposes, receiving the bonus extra credit and moving them back to the baseline. but what the previous administration never did was go
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below the baseline, and that's because that baseline is by statute. by law. and it says this was a big deal in 1965. it was a change. and it made the law say country by country is not the way to keep folks out of the united states. >> joshua geltzer is joining uggs tomorrow. first call is from craig on our republican line. on with our guests. go ahead. >> caller: thank you. good morning. yes, first of all i find it interesting that district judge in hawaii has more power than the will flt american people as represented by the vote we had in 2016. but my question is, if it's establishment clause of the constitution forbids the establishment of religion through immigration policy, why was the lot enberg amendment
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permitted to allow jewish immigrants specifically from russia in 1991, i think it was? >> let me start with the first part of that question. because you raise an interesting point about how judges now justices are dealing with this case. and ultimately judges and justices aren't there to intervene in ordinary politics, not there to overturn the will of the voters but they are there to patrol the outer limits of what in this case the executive can do. that's always the job of judges, whether it's one district judge hearing a case at the beginning of what can be a long saga or he or nine justices hearing it at the end long saga. but that's the job to patrol the limits to make sure the president and congress act within legal boundaries. to go to your other point. this is not the presidents have done before to keep people out. they have not on the basis of nationality said no to those
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trying to enter this country since 1965. some people point to one counter example when cubans were kept from entering, but that was when cuba had violated treaty obligations. so those who were entering the country at that point were themselves essentially manifestations, personifications of a treaty violation. that incident never made it to the supreme court. one doesn't know how the court came out. here it's clear that the president violated the law. >> and from maryland independent line. matt, hello. >> hi, thanks for taking my call. this argument comes up every once in a while about the idea that president can put restriction and travel ban on certain countries. here's the strange part of this argument. when you refer to it as a travel ban, you are referring to a muslim. but when you talk about the wars oefrpz you would never refer to it asthma majority muslim country we are at work with.
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so what i'm asking you, if there is no national security, are you basically saying you are at war with a country, say majority muslim country, and forget about the majority muslim ban, are you saying that if you are at war with a country you can't consider limiting travel to the country you are at war with? >> so what's interesting is that to the extent that we are engaged in armed conflict in certain of the countries fektded by the travel ban, we are not really at war with those countries. we are in a state of armed conflict with the terrorists threatening us and others from those countries. so something i spent a lot of time working on in government. some of the countries covered by the travel ban, libya, syria, we are as the caller rightly points out using military force against terrorist groups, isis, but not country as a whole. and frankly when we are using military force, we are doing it
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individualized way. they work hard to make sure targets of military actions individuals are lawful targets under domestic law and international law. in this case the law of armed conflict. that individualized approach takes into different context is really what i'm urging here. not just me, but congress. the caller mentioned this issue has come out before. and worth pointing that out. this is something congress debated after 196 # 5 even after 9/11 whether country by country basis the way it was done a number of decades ago. congress is consistently said no to that. and if president trump wants to revisit that issue, congress is the place to take that debate to. until he can change the law though he's bounds by it and that's what the court is being asked to look at. >> does the supreme court take a strict look at the law or consider the larger national security considerations? >> you know, i think the court needs to grapple with what's
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deference is appropriate. that's how it gets translatesed into something meaningful for the court. but the starting point for the court, and you hear justices and lower court judges say this when they talk about the art of judging, it begins with close readings of texts. that was part of justice scalia legacy, and start with the text. and carefully amended in 19d 65. then gr from there. >> our guest not only served in the obama administration, he was the law clerk to steven breyer. he served as ninth circuit court of appeals. and currently georgetown law school. scottsdale arizona republican line. jack, go ahead. kr >> caller: yeah, good morning. first i'd like to make a comment i ask mr. geltzer a question. you know, we already have what, a million people come into this country, need less to mention we have ten or 15 illegal mexicans
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here, not to count chinese and all the other different ones. the bottom line is, okay, we need though go to under this travel banish u we are discussing, but we need to go like australia, we should select who we want to come in. now this travel ban is sort of like that. okay. we decide who comes in here. now, my question is, to mr. geltzer, what would you do, and i'm sure you have any part of your family, like in arizona here, we've had illegal immigrants deported murdered people. what would you do if one of these people got in on this thing you are fighting for murdered someone close affiliated to your family? >> jack, leave it there. >> so i think what the caller points out this is obviously an issue that excites people's
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passions and in the realm of political debate how we should la approach immigration. that's something a lot of us has been urging for a while, to have a debate on the comprehensive issue. but that's a debate that has to involve the president and u.s. congress. article i of the constitution that puts the authority really the responsibility to set what the constitution calls a uniform rule of nationalization. in other words immigration policy and charges congress with that responsibility. if the president wants to take a different approach, whether that approach is country by country, nationality by nationality or otherwise, he's had over a year to engage in congress and appears to do nothing to change the law. in terms of those that come to this country, like the rest of us the criminal laws are enforced against them. but begins with the debate over changing the law, not simply the president with the stroke of a pen reporting to alter it. >> do previous cases suggest how
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the court might act in this case? >> there are a lot of ways into this case. i think there is a lot there for different justices bring to the case different interests. of course some will start with the text. i think they'll find interesting trying to put together these pieces of immigration and nationality act and especially how it changed in 1965. but then you have justices interested in how much can it giveaway to the president. and it suggests maybe congress has given away too much which may be a reason not to read the law that way. and other justices may hone in on the establishment clause questions, religion questions. so there are so many ways n i'm interested to see which justices take which pieces and go with that oral argument and of course by june we'll probably see which justices come out which way. >> how do justices like anthony kennedy who tends to be the swing vote on a lt of these different types of cases, how is he responded to previous cases
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like this before? >> it is so hard to read tea leaves at the court. the jusz advertises not the current group of nine but even predecessors have often been differential when it comes to national skoort, not always but often. counter examples include the steele seizure case and guantanamo from last couple of decades. and what the court doesn't engage in the deference by the executive branch, they feel the national security doesn't hold up. that's one of the ways my former colleagues and i are urging the court to take a hard look at here. >> republican line, lauren from minnesota. >> caller: yeah, good morning. i think trump is doing an excellent job on immigration. i wish they would allow him to do more. i'm 74 years old. i've never seen so much different people in this country. they want to come here and want to win the american dream and
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ropes over their head, then go back to do that. we don't do that in america. and if i was hawaii we should drop them off as the map as far as state and let the judge have all the immigrants come in there. >> okay. let's go to author in louisiana, new orleans, democrats line. good morning. >> caller: good morning, gentleman. it's interesting to hear people calling in and constantly beating up on the people that are trying to migrate to this country. this is a country of immigrants, period. one of the things that everybody is failing to look at is that there is what is called a bigot factor of the people they want here and people they turn away. good example of that people coming from south america have a baby, want to throw the baby, but instead they come from russia to have babies and living in trump's property. i mean, what's wrong with that?
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something is wrong with the whole picture, don't you sni. >> i think the caller has put his finger on why this case is so important, maybe even beyond the legal arguments, and those of us who are law professors may tend to focus on those. but beyond that, this is in many ways a case about the sole of th -- soul of this country. as the caller mentions this is country of immigrants. and political debate what that should mean. that's a debate to have within the balance of the law, bub also one to have recognizing what this country is. so i think the caller has put his finger on why there is a lot to watch for. >> democrats line missouri. this is john. >> caller: how are you doing? >> fine, thanks. >> caller: let me give you a little bit of history. i'm 73 years old.
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i've voted democrat 50 years. i even voted for obama. however after his first time in office i switched to the republican party. my problem is with the democrats anymore is you've lost touch in reality with the people in this country. you wanted all these immigrants in here, and you think it's fine for them to be here, but every time i walk out the door i see somewhere in this city homeless veterans. i see senior citizens who can't eat. you are spending millions and millions of dollars on these immigrants so that they can survive. you are giving them food. you are giving them utilities. you are giving them money to live on while the senior citizens are struggling to make ends meet because someone in congress said i can't live on $200,000 a year. >> to the travel ban, make your points on this. >> caller: my point is this, how can you actually tell the american people it's fine for
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these immigrants to be here and be against what trump wants when first of all you don't invite someone to dinner trying to kill you. second of all what about your homeless veterans and senior citizens they should be first. >> we'll leave it there. >> this doesn't strike me as necessarily a partisan issue. it's a congress that has worked in different manifestations, democrat leaning republican leaning and with different presidents to give us the immigration law that we have now. and that's the back drop for this case. it was of course republican president, president bush who engaged with congress after 9/11 about immigration policy. and it's republican president, president bush who helped frankly improve the individualized system of vetting that is the hallmark of how we do immigration in this countsry. i would also add those of worked in national security and feel strongly this is being held up.
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it's not just folks like susan rice who have worked for democrats, but folks like richard lou gear republican who chimed in on this case. >> washington jur fiscal editorial talks about the travel ban. they make the argument saying it was chief justice john roberts he explained decision of 2010 that jushl is idiciary ill suit reading). added when it comes to collecting evidence and drawing factual inferences, the lack of competence on the part of the courts reading) is appropriate. >> so i agree with that line from the chief justice verbatim. i think he's spot on. the question is does one need to defer to the government, the executive branch here? i don't think so. this is about reading the statute and constitution that says the president can't do
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this. i think it helps to say the president also hasn't articulated good national security reason that get limp into the lane that quotation mentions. for example, ninth district said in its opinion it requires findings. so if the president should write down something more to articulate what is the national security basis. government didn't respond to that and hasn't offered up something even at the most general beyond saying initially we need to keep people out of this country and now really in shifting rational saying we need to do berth information with certain partners. >> mark, independent line, go ahead, you are on with our guest. >> caller: i wanted to agree with one of the callers saying that its our work on national security. and i love this country.
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and i feel that if we are going to be anti-immigrants then we don't have any value left in the country. like what's left to fight for? what does this country stand for? what makes us better or different than any other country in the world? >> that goes to theler taking and legacy issue which is why i think this is so important beyond the legal ins and outs. it is of course tradition of this country founded by immigrants to welcome immigrants. now, i believe in national security as well. and i bloo eve in keeping this country safe from not just terrorist threats but frankly the whole range of very real threats to this country. i just don't believe what the president has done is responsive to those threats. and it goes beyond what the president has the authority to do under immigration law and the constitution. but i'm all for keeping this country safe. and i'm all for if this president is concerned about how
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the individualized vetting is being done of people coming into this country, him working with those across his intelligence community, law enforcement to improve that. it's been improved with 9/11 repeatedly. and if there is more work that needs to be done, that's where the president should focus his efforts. >> if the court goes for hawaii does it limit president to put bans in place of similar nature? >> so much hinges how much the court writes down reasons. letsds say for example the court says nationality was taken off the table in 1965. whatever the president can and can't do to keep folks out of the country, he can't do it on the basis of country of nationality. flou, that actually would yield an interesting possibility. it would yield the chance for this president to go right down the street from where you and i and talk to congress about that. something other presidents have discussed with congress. hasn't been changed since is the 65. but that would be where that sort of conversation should take place. because that would be in the
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shadow of knowing that the statutes passed by congress really do set meaningful constraints on the president. >> here is phil in texas. independent line. go ahead, please. >> caller: i'm calling about the obama administration. and what was the percentages of christians that were brought over compared to the muslims? >> i don't know the exact figures on that. but i do know the obama straks in approaching the immigration issue tried to do at least two things. one to stay within the bounds of the law to utilize the tools by the law, that's where the visa waiver program came into play quite prominently. at the same time, to work on the individualized vetting side. and there were improvements made throughout those eight years attempting to ensure all the information possessed by law enforcement by the intelligence community was used and used as effectively as possible to identify those who might come to this country and pose threats. that's where i think ongoing
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project of improving system should continue. >> all right. john, in minnesota, republican line. hi. >> caller: good morning. i'm hoping that as a senior adviser presidents on counter terrorism, you might have an answer to this. i'm wondering how many countries of the trump administration has added to the list that they inherited from the obama administration, i believe it was six or seven countries since he's been in office? and how many muslim countries there are, actually? >> so to be clear, there were no kournltryes receiving this sort of treatment before president trump came along. hirs travel ban applied to seven muslim majority count wrist. second one applied to six, iraq was removed. then the third one one making its way to the court now ha plied initially to six muslim majority countries plus north korea which has very few
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individuals trying to enter the united states and to handful of venezuela diplomats. and chad removed. >> joshua geltzer, formerly obama administration and georgetown university law school institute for constitutional advocacy and protection talking about the travel ban case being held on thursday. >> thanks for having me on the show. >> this subcommittee hearing should be getting under way shortly. senators like chris coons. there has been a vote on the senate floor. originally set for 2:30 is to take a look at the agency's 2019 budget request us aiaid. sows is in session at 330.
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they take up six bills today. including a sanctions bill on iran. you can follow the house on k c-span and the senate on c-span2.
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