Kendall Coffey is a founding Partner at Coffey Burlington, PL, former U.S. Attorney, and frequent guest legal analyst on international television networks. He is also an adjunct professor at University of Miami School of Law.
Kendall Coffey joined the Lars Larson Show on March 9th, 2017 to discuss the recent lawsuits against President Trump’s Executive Order restricting travel from six Muslim-majority countries.
Lars Larson: Mr. Coffey, thanks a lot for joining us again. Tell me what you think of these lawsuits and if they will find any traction in the federal courts.
Kendall Coffey: Well, I think it’s going to be so much tougher this time. The basic theme of the lawsuit seems to be, “Well, this is just another version of the original executive order that was found invalid.” If it looks like a duck, walk likes a duck, quacks like a duck, it’s, after all, a duck.
As people read this, they’ll see that in legal terms, at least, it’s a bird of a different feather. It’s more thoughtfully drafted. It clearly avoids the major legal pitfalls of the original executive order, which was, you will recall, a statement prohibiting green card holders from the 7 countries. This problem was something that I think most analysts thought would be very difficult to overcome in the original order.
This order is not only thoughtful in the way it’s drafted, but it explains some of the concerns of each of the 6 remaining countries that are subject to this. Just to put in context, what the executive order focuses on, it states that there is a need to deal with countries where we don’t trust their informational processes to tell us who is coming to this country from their countries. It’s very specific about that. It says that it requires a process by the major agencies, such as the Department of Homeland Security, to see if these countries can correct their current informational concerns, and at the same time, it calls upon Homeland Security and other agencies to examine the information we’re receiving from all the other countries to make sure that we go through a delivered process and see if there are other countries as well as the 6 that are not giving us reliable information about their citizens when their citizens try to come to this country.
I don’t think that, fairly read, this document is subjected to a strong legal challenge, but the challenges continue, and I certainly won’t predict what may happen. Could there be a federal district court that rules for the challengers? Maybe. But I think if this gets to an appeals court, they’re going to have to look at this document and apply the many decisions of the Supreme Court, which says, basically, that the president has the right to do this order in the name of national security.
Lars Larson: Shouldn’t we be taking a hard look at almost everybody, whether they’re a green card holder or not at some level, and saying, Are we getting the information we need?
Kendall Coffey: Well, that’s what this order requires, and not to read any length, but it talks about the foreign governments’ willingness or ability to share or validate important information about individuals seeking to travel to the USA. I think that we can all agree that’s legitimate. I think we would not want a court to take that power away from the president to be sure. He’s preselected 6 [countries] where there’s going to be a 90 day period. Again, it doesn’t apply to green card holders, doesn’t apply people that already have in-hand, valid travel papers, but it does, according to this document, pick 6 countries where the previous administration identified significant concerns related to terrorism and said while we‘re figuring this out, we want to put a slow down on individuals coming from these 6 countries. Where, again, it’s already been identified that these are countries of concerns with suspected terrorists. The order does a pretty good job at listing them.
I’m going to give you one example: portions of Somalia have been terrorist safe havens. Most countries don’t recognize Somali identity documents. Somalia doesn’t have a capacity to sustain military pressure and investigate suspected terrorism. I don’t think too many people disagree with those findings. Accepting that is something that the president‘s office has looked at. Do we want to keep the president from imposing a slowdown on people coming in from Somalia and other countries where we don’t know if we can get reliable information?
Lars Larson: I’m talking to Kendall Coffey, who’s a former U.S. attorney and also a lawyer in south Florida. One of the things I wondered about when I saw that list is, do you think it’s likely that at the end of trying to find out if these countries are comfortable or willing to tell us the information, that we’re going to determine that they are incapable of both, and we may have to extend for a long period restriction on people coming from those countries?
Kendall Coffey: It’s entirely possible. I think these countries and other countries outside of the list of 6 are going to be challenged to satisfy the United States that we’re getting reliable information about their citizens. The order commands the federal agencies to review the other countries of the world.
To take from this order, which I think specifies very logical and important intent and a commitment to examining other countries as well, and which preselects a handful and a small, small fraction of the world’s Muslim population, to say that this order is religious discrimination, I think goes far beyond the terms of the order. And I think frankly [it] is not a position that an appeals court will agree with or sustain.
Lars Larson: Do you think that it’s fair to say this new lawsuit that been brought is really more about politically opposing Donald Trump than it is objecting to the actual order or the President’s authority to issue the order?
Kendall Coffey: I think lawsuits are filed routinely with respect to their impact on the court of public onion, even if they’re likely not winners in the court of law. That’s a reality that both parties understand and apply when appropriate. I think most experts looking at this lawsuit say that it will have more of an impact on a court of public onion than a court of law. Again, I repeat, I would be surprised if these lawsuits are ultimately successful.
There’s a narrow issue that may not get a lot of attention, and that is a law with respect to refugees. There is international law on that, and this order also puts a hold on admitting new refugees, and even if that became a focus of challenges or focus of the courts, the law has some provisions, some carve outs, that I think will ultimately prompt courts to conclude that yeah, there is an international right of refugees to seek asylum that applies globally, but, you know, a slowdown for a new administration to examine its facts, get its agencies in place, get its policies in place.
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