The politics of President Trump's travel ban

This is a rush transcript from "Special Report with Bret Baier," June 26, 2018. This copy may not be in its final form and may be updated.


PRESIDENT DONALD TRUMP: The Supreme Court ruling was a tremendous victory for our country. We have to be tough and we have to be safe and we have to be secured.

SEN. CORY BOOKER, D-N.J.: This is a moral moment for our nation, where a president who openly wants to put a religious test on citizenship.

SEN. LINDSEY GRAHAM, R-S.C.: This is not a religious ban.
You're picking up countries with high threat levels, with poor vetting process, so it makes sense, and I think this ruling makes us safer.


BRET BAIER, ANCHOR: Today the Supreme Court handing President Trump and his administration a big win, upholding travel ban 3.0. Five-four decision, the majority, you see the justices voting in the majority there and the dissenting. The opinion on the majority saying, quote, "The proclamation is squarely within the scope of presidential authority under federal law.
Indeed, neither dissent even attempts any serious argument to the contrary." The dissent written by Justice Sotomayor says, quote, "This repackaging does little to cleanse presidential proclamation number 9645 of the appearance of discrimination that the president's words have created.
Based on the evidence in the record, a reasonable observer would conclude that the proclamation was motivated by anti-Muslim animus."

With that let's bring in our panel: Byron York, chief political correspondent for The Washington Examiner; Mollie Hemingway, senior editor at The Federalist, Charles Lane, opinion writer for The Washington Post. OK, Byron, significant ruling today?

This was all we were talking about in the first few months of the Trump administration, and it should have been a slam dunk for White House, and the fact that it was not is really amazing. John Roberts is correct. It was clearly within the scope of the president's constitutional powers. And the biggest argument against it was that even though it was a legitimate presidential power, that this president, Donald Trump, had exercised it with impure motive.

And you had a situation in which an executive order word for word if signed by another president would have been constitutional, and yet since it was signed by Donald Trump with his history of anti-Muslim statements it was therefore unconstitutional. That would have been a crazy legal area to go into in the court. It's a relief really that the court did not do that.

BAIER: Mollie?

MOLLIE HEMINGWAY, THE FEDERALIST: Chief Justice Roberts specifically addressed the issue of whether it was a religious test or not, pointing out that it covered only eight percent of the world's Muslims, that it was using a list that had been developed by a previous administration, the Obama administration, and that it also included North Korea and Venezuela so that it was hard to argue that this was -- even though this is what the conversation had been in the media, that this was a Muslim ban and even Donald Trump referred to it is that, this really is an important decision dealing with whether the executive has the authority to make decisions about national security related to immigration.

And it's important also to consider how the Obama administration fared with the Supreme Court when it tested executive authority. It repeatedly was turned away by the court, sometimes by nine to zero decisions. So this is something that I think the Trump administration can be legitimately be pleased with on the question of executive authority.

BAIER: Interesting reaction from all over Capitol Hill and elsewhere.
Here's one commentator on another channel with an interesting analogy.


STEVE SCHMIDT, FORMER REPUBLICAN STRATEGIST: What Usama bin Laden hoped to provoke was a war of civilization, a war between the west and 1 billion Muslims. And so what Donald Trump and this Muslim ban signaled to the world is that Muslims are not welcome here, that this is, whether the conservative justices say that in fact this is about executive power, the president's clear intent was to impose a religious test. And that is as fundamentally on un-American as anything that he is done over the course of this presidency.


BAIER: What about the majority opinion that was looking at the words on the paper there?

CHARLES LANE, THE WASHINGTON POST: I would like to just react to that in tandem with reacting to Byron. Byron is absolutely right.
If you just took the 3.0 version of this, not the first two, which were quite different, the biggest problem was the problem the president created for himself through all this extravagant hostile rhetoric towards Muslims.
George W. Bush of course, who was president right after 9/11, went out of his way to signal that the United States did not have a quarrel with all Muslims, just the Islamist terrorists. And so I think that commentator you just put up there has a point that the atmospherics around this were terrible.

One of the lessons of this decision is not everything that has terrible atmospherics, that's perhaps even stupid and offensive, is unconstitutional or even in this case, because there was a statutory argument against it, against the statutes either. I don't consider this so much victory or even a vindication, which is the president's other word for this. I think when he got from the Supreme Court today was a rather grudging almost acknowledgment that, OK, you can do this if you insist. There's no rhetoric in any of the majority or concurring opinion say, yes, this is absolutely necessary, et cetera. It was like, well, we can't stop you, we have no basis to stop you, so you can go ahead.

BAIER: But at its heart, Mollie, was an increase in this 3.0 version of the stipulations to get in, what these countries were doing to vet the people who are actually getting to the U.S. Chad was on the list but then taken off because they met the stipulations.

HEMINGWAY: Right, so it's hard to argue that it was some arbitrary list.
In fact, I think the first version of the ban actually would have held up under the decision-making that the court had today.

Another issue where atmospherics was bad, though, is that you had a district court doing an injunction against a national ruling. And this is a trend that we are seeing a lot, particularly during the Trump administration where district courts are thwarting national issues, and Clarence Thomas specifically said in his concurring opinion that this is something that might have to be taken up soon to discuss the legality of it.

The fact that this was a five-four decision is also significant because it means that we are getting very narrow decisions based on highly political cases. It is a tremendous argument in favor of those people who did vote for Donald Trump that they were able to get a five-four decision on this and also the decision that forbids the state of California from forcing pro-life groups to advocate for abortion. But the fact that they are five- four decisions means we're going to see this court continue to be a very political issue.

BAIER: It shows also shows how important being able to have a nominee that becomes a Supreme Court justice is in this political world that we live.

YORK: If Donald Trump ever says anything bad about Mitch McConnell again, he shouldn't. He will, I'm sure, but he shouldn't. But look at some of the precedents that could have happened if this had gone the other way.
The shackles that could have been put on a future president's ability to act in national security instances. And also it seemed to want to create some of the proponents, the opponents of the ban, with foreign nationals physically outside the United States, seemed to create some sort of constitutional right of entry into the United States, and that would have been a terrible precedent.

BAIER: Our late friend Charles Krauthammer weighed in on this last year.


CHARLES KRAUTHAMMER, SYNDICATED COLUMNIST: I'm not against tightening the vetting, we should. But I think what we are seeing is the kind of kabuki that we do as a way to make ourselves think that we are safer from terrorism. There are a lot of sources of terrorism. The whole list, probably at the bottom is the idea of infiltration from these states.
These are seven states -- in 15 years since 9/11 there hasn't been a single murder of an American by a national of these countries.


BAIER: Chuck.

LANE: That's another good point is that quite a few of the recent lone wolf attacks have taken place by people who are either born in the United States or who were here on green cards, and the relationship between terrorism in these particular countries, though not completely disjointed, is a little tenuous.

It's just that I think what the court was wrestling with, particularly Chief Justice Roberts and Justice Kennedy, do we take this power away from all future presidents because we are so uncertain about the trustworthiness of the current one? And I think they felt we are going to have to swallow this exercise of the power in case of a very, very inflammatory president because it could be used legitimately when the presidency is occupied by a different person later on.

BAIER: Last word.

YORK: Look at the circuit courts that were willing to do that. Not just the ninth circuit, the fourth circuit, all the judges short of the Supreme Court, big majorities were willing to do that with the president.

BAIER: And some of them will be changed because, as the judges get through the process up on Capitol Hill, including the Ninth Circuit.

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