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Hawaii Plans To Amend Lawsuit Challenging Trump's Travel Ban


Overnight, lawyers filed the first challenge to President Trump's new travel order. This order stops the arrival of refugees and visitors from six countries. It replaces an order that was blocked by multiple courts. And the state of Hawaii argues it still doesn't work. Neal Katyal is their lead attorney. He's on the line from Washington, D.C. Welcome to the program, sir.

NEAL KATYAL: Thank you, good to be here.

INSKEEP: OK, so the president's new travel order explicitly fixes problems that judges objected to last time. I'll just give one example. It's less abrupt. People who have valid visas aren't going to show up at the airport in a couple of hours and discover they suddenly can't get in. That's fixed. There's a delay before this takes effect. Isn't this better?

KATYAL: Well, no. I mean, the delay is something that actually, I think, shows that there isn't a national security justification. That is to say, when President Trump issued his first order, he said, quote, "if the ban were announced with one week notice, the bad would rush into our country during that week. A lot of bad dudes out there." That's a quote from the president of the United States. And this order delays things by 10 days. So if you really thought this was needed for national security, you'd want it to go into effect right away.

And indeed, you wouldn't have sat on your hands for seven weeks. But the fundamental thing here is that the objection has never been really just about the, you know, whether it goes into effect immediately or not. It's about the constitutional and statutory values of the United States. And...

INSKEEP: Well, let's dig into that because we should be clear, a lot fewer people are covered by this. Green card holders can continue to come and go. They're not suddenly banned from entering the United States for whatever period this ultimately turns out to be. But you just said it's still unconstitutional. What is the constitutional argument against a temporary ban from visitors from these six country?

KATYAL: Right, so you're absolutely right that the new order covers fewer people. And in that sense, you know, it's better. But it doesn't make it legal. That is to say, if I'm an employer and I fire one person for being Muslim, that's a heck of a lot better than if I fire 10 people for being Muslim. But both are race discrimination. And the fundamental problem with what President Trump is trying to do is he's trying to seek sweeping authority to do what he wants and disregard Congress and the courts.

And today, yes, it's six countries and it has some carve outs for green card holders but tomorrow could include those. Tomorrow it could be 60 countries, and the next day it could be 160 countries. And Congress has passed laws saying that the president can't discriminate on the basis of nationality. In our Constitution, our bedrock principle, you know, indeed what the nation was founded on, is an idea of freedom of religion, that we don't single out people because of their religion.

INSKEEP: OK, let's sort this out. You're referring - there's a couple of different laws that may apply here. There's one from the 1950s that says the president can exclude a class of people for national security. There's one from the 1960s that I think you're referring to that prohibits this kind of discrimination. But what evidence are you going to put on the table to show that this is discrimination against Muslims as opposed to national security aimed at countries where there have been severe security problems?

KATYAL: So two things. First, the statutory argument is not about - in the 1960s laws is not about religion but discrimination on the basis of nationality. And that's just evident on the face of what the president is trying to do by, for the first time, the president is seeking to name certain countries as ones that are, you know, on the bad list. And here's what the Congress said in that landmark 1965 law, quote, "no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person's nationality."

And that's as clear as day. Indeed, a conservative set of judges in the D.C. Circuit, our nation's second-highest court, said this is an unambiguous, easy-to-follow command.

INSKEEP: What happens when the lawyer for the other side in court comes back at you and says, well, we're not keeping them out because of their nationality. We're keeping them out because that nation hasn't provided proper security vetting information yet.

KATYAL: Well, that's a nice argument to make on an individualized basis for something like that. But what Congress has said is you can't do it on the basis of nationality, that there has to be some more individualized process that takes place. And indeed, Congress has set up a long statutory scheme for trying to assess those things.

INSKEEP: Are you going to make the argument that has been made against the previous travel order that President Trump said during the campaign he wanted a Muslim ban and therefore, his intent was a Muslim ban and even if he changes the order, as he clearly has so that it's not nearly as sweeping, you're still going to consider it a Muslim ban?

KATYAL: We certainly are. I'm very proud to stand with the attorney general of Hawaii, Douglas Chin, who's been a leader in this in understanding this order for what it truly is, which is discrimination on the basis of religion. And, yes, now the new order expressly says, oh, we aren't motivated by racial animus. But our Supreme Court has been very clear that the government can't just simply say something and make it so.

And this order from start to finish, from the campaign to every iteration, to what President Trump has said about the order when it was issued, the first order when it was issued, and all of its effect is all about discrimination against Muslims.

INSKEEP: How is this an establishment of religion? Which is what people on your side of the argument have said because the Constitution prohibits an established religion.

KATYAL: Yeah, so the idea is that the Constitution has said if you're preferring certain people on the basis of religion or discriminating against them, that violates our fundamental guarantees of the First Amendment. And here, what is being singled out, and the president was very clear on this during the campaign, was singling out people who are Muslim.

INSKEEP: But I want to make sure that I understand this. Are you arguing that because the president said on the campaign trail he wanted to ban Muslims, he now can't do anything in order to make sure that visitors from certain places or certain visitors are secure coming into the United States because anything that he does that affects a Muslim will be seen as a Muslim ban?

KATYAL: Oh, of course not. Of course not - absolutely can. And, you know, normally we aren't in this situation because normally presidents color within the lines and, you know, don't stray beyond the constitutional mandates. But what the Supreme Court has said about this in the McCreary case in 2005 is that if there's any doubt as to whether or not a government is discriminating on the basis of religion, you can't just look to their say-so saying, oh, we don't discriminate on the basis of religion.

You have to look to the history behind the government action. And here, that history from start to finish is really quite suspect.

INSKEEP: OK, well, Neal Katyal, thank you very much. Really appreciate it.

KATYAL: Thank you.

INSKEEP: Neal Katyal is a former acting solicitor general in President Obama's Justice Department. He's now with the law firm Hogan Lovells. And he was involved in filing a lawsuit on behalf of the state of Hawaii, which is challenging the latest version of President Trump's travel ban, which is supposed to take effect in a few days. Transcript provided by NPR, Copyright NPR.