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Supreme Court on Travel Ban; Trump on Supreme Court Ruling; Justices Hear Christian Cake Baker's Appeal; Kennedy's Possible Retirement; CBO Score on Health Care Bill. Aired 12-12:30p ET

Aired June 26, 2017 - 12:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

(COMMERCIAL BREAK)

[12:00:21] JOHN KING, CNN ANCHOR: Thanks, Kate. And welcome to INSIDE POLITICS. I'm John King. Thanks for sharing your day with us.

A giant week ahead in the Obamacare repeal fight. Senate Republicans short votes for their plan and the White House is helping rebut critics who say it will punish the poor and the elderly.

(BEGIN VIDEO CLIP)

TOM PRICE, HEALTH AND HUMAN SERVICES SECRETARY: The plan that we have would -- put in place, would not allow individuals to fall through the cracks, would not -- we would not pull the rug out from under anybody, we would not have individuals lose coverage that they want for themselves and for their family.

(END VIDEO CLIP)

KING: Plus, Russia's colorful ambassador to the United States is heading back to Moscow, but the Kremlin says it has nothing to do with the election meddling investigation.

But we begin this hour with major breaking news. Several big developments as the Supreme Court winds down its term. The most consequential, the justices agree to decide the constitutionality of the Trump travel ban, and in the meantime they clarify who can be blocked from entering the United States and who cannot. That clarification allows part of the Trump travel ban to take effect.

Jessica Schneider's outside the Supreme Court with more on this surprising final day decision.

Jessica.

JESSICA SCHNEIDER, CNN CORRESPONDENT: For sure, John. An unexpected decision by the Supreme Court and a decision that could have both sides in this case, the Trump administration, as well as the plaintiffs, claiming small victories here.

So, the Trump administration will likely claim victory for the fact that the Supreme Court in a 6-3 decision has allowed parts of this travel ban to take effect, saying that some foreign nationals may, in fact, be banned from this country. But the plaintiffs may call it a victory because the Supreme Court has said that anybody who can claim what they're calling a bona fide relationship to any person or entity in this country, that those foreign nationals should be allowed to come here to the United States. Of course, that's exactly what some of these plaintiffs were looking for. One of the plaintiffs in particular, in Hawaii, was looking for a visa for his mother-in-law to come here to the United States.

So as to this surprising and somewhat split decision by the Supreme Court, the question is now, how exactly do immigration officials apply this and will this be an onerous burden on these immigration officials? This was a decision that came down on the Supreme Court on its final day of opinions as we approach the end of the term here. In this 6-3 decision, the descenters included Justice Thomas, as well as Justice Alito, and then included in that descent, the newest justice, Neil Gorsuch. And the descent said that the entire travel ban should have taken effect. And Justice Thomas pointed to the fact that this may in fact be hard to implement as the Supreme Court has issued its decision. Justice Thomas saying that today's compromise will burden executive officials with the task of deciding on peril of contempt whether individuals have a sufficient connection to a person or an entity.

So, yes, the travel ban in some respects has been decided here at the Supreme Court, but many open questions remain. The Trump administration will likely declare this somewhat of a victory. And, of course, John, we will look forward to the next term here where the Supreme Court will hear arguments on the travel ban as a whole, and as to whether or not it is constitutional.

John.

KING: That will be in October. Jessica Schneider outside the Supreme Court. By October we might know a lot more about the partial implementation and whether that impacts the legal arguments.

And with us to share their reporting and their insights, Julie Hirschfeld Davis of "The New York Times," CNN's Manu Raju, Michael Bender of "The Wall Street Journal," and Jackie Calmes of "The Los Angeles Times."

This was a big deal for the president rolled out from the outset. I'm surprised we haven't heard from the White House already celebrating at least a partial victory because the president has said, see you in court. Well, the White House has argued the lower courts were wrong when they looked at the campaign language, when he talked about a Muslim ban, when he himself, even as president-elect, called it a ban and they should focus on his actions as president. So we will see that the big arguments will come in October. But as they implement this, isn't there a good chance, if they implemented in a reasonable, organized way, that the case won't -- might be settled by their actions, not the legal arguments in October?

JULIE HIRSCHFELD DAVIS, "THE NEW YORK TIMES": Well, don't forget, this was -- this was initially about a temporary action, right? KING: Right.

DAVIS: A temporary ban on these visitors entering the United States, a temporary suspicion of the refugee program. So it's very possible that by the time October rolls around, the administration will argue, well, we've done the -- we've reviewed our vetting procedures. We have everything we need to figure out how to screen these people and protect national security and figure out who can enter and who can't. And this could just sort of collapse under its own weight, although the president has shown very little appetite for reconsidering the original action here. And I do think we're going to hear some pretty boisterous celebration from the White House, whether it's not -- whether or not it's a partial victory, I think the president needed a win on this. He's been repeatedly slapped down by lower courts and he's going to -- he's going to take a big victory lap.

[12:05:02] MANU RAJU, CNN SENIOR CONGRESSIONAL REPORTER: But in some ways it will be hard for the president to declare victory given his own tweets. He had criticized this revised travel ban for not going far enough as the initial travel ban, criticizing his own Justice Department for moving forward on this, even though he, of course, signed this revised travel ban. And what did the court do, they allowed part of their revised travel ban to go into effect, allowed this compromise to go into effect. So that doesn't go nearly as far as what he initially wanted. So I'm sure they will probably spin it as a victory, but the president may not actually feel that way.

KING: Right.

JACKIE CALMES, "LOS ANGELES TIMES": And he has said only recently that he wants to expand this travel ban, even as it had been struck down in courts and was pending before the Supreme Court. So will he take a small victory as a green light?

KING: Right. After several setbacks, though, this is a court allowing him to implement part of the ban and to allow them to at least temporarily block people from those six countries. If they cannot -- if those people, individuals, cannot prove a bona fide, this will become to the hard day-to-day work of the immigration officials, establishing, do you or do you not have a bona fide connection?

But after months of setbacks, you're exactly right, the president wanted a lot more than this. But after months of setbacks, you would assume they would take this at least as a down payment on success?

MICHAEL BENDER, "THE WALL STREET JOURNAL": Absolutely. And this is a president we've seen that will take any daylight here as a victory. Even a straight loss, he will try to find a way to spin it as a victory. And your reporter made a point here of make -- pointing out where Gorsuch is on this. And I think that's going to be really important. This administration has put a lot of eggs in the Gorsuch basket here and -- and they really feel like as his decisions start coming out, that -- that that is really going to pay off.

KING: Right, and I want to talk more about that a bit later in the program because he also was a descent in another important case today, proving to conservatives, at least so far, he's one of them.

But let's stick to the travel ban for a minute because the justices here seem to be siding with the administration, at least in their order. And this is a 16-page order. Often the justices issue one page. We will agree to hear the case in October or in our next term. This is a long 16-page order in which they say this, "in its view the Fourth Circuit, the lower court, should not have asked whether" -- that's the executive order -- "has a primarily religious purpose. The court instead should have upheld executive order number two because it rests on the facially legitimate and bona fide justification of protecting national security."

So in agreeing to hear the case, they seem to be leaning into the fact that what was the White House argument, that, yes, the president said Muslim ban during the compare, but pay no attention to candidate Trump. Pay attention, instead, to the actions of President Trump and his administration. not president-elect trump and his administration. The court here at least seems to be leaning in that direction, even though they're hear arguments in October.

DAVIS: The Fourth Circuit said that this executive order was rooted in religious animus. That is incredibly strong language for that court to have used. And the whole point there was that any national security requirement there might have been for this executive order was out- weighed by the fact that that court felt that this went too far in its -- in its use of a religious test based on what he talked about during the campaign, based on some of these tweets that we saw prior to him taking office. And what this ruling seems to suggest is that the balance is in the other direction that the national security imperative was paramount here to the way that they ruled and we didn't see any mention of any tweets or any campaign speeches in this ruling. And I think that's significant. I mean this was a limited ruling. It's just about whether this goes forward or not before they review the entire case. But the fact that they made no reference to that sort of gives you the sense that that's the direction that they're going.

KING: Right, and it raises the bar for the ACLU, the state attorneys general, those who have argued against it, to convince the Supreme Court essentially, no, no, no, come -- let's go back to some of these -- these campaign statements or early administration statements?

CALMES: And it's still a stay of the main parts of the order.

KING: Right.

CALMES: So -- which is a signal from the courts, anytime there's a stay, that they have concerns about the substance.

RAJU: And, of course, we're going to know in the fall what the issue is and who's going to be in the Anthony Kennedy seat in the fall? Will it be Anthony Kennedy? Will it be a conservative justice, who will release him? Of course that may help the president even more if that's the case.

KING: Right, we'll see if that does. Let's go back into -- you mentioned the dissent. Justice Gorsuch, Thomas and Alito, three conservatives. We knew Alito and Thomas were conservatives. We assumed Gorsuch was, but we're learning more about it with every case decided by the court. They say, "I agree with the court, that the preliminary injunctions entered in these cases should be stayed, although I would stay them in full." Essentially so in the descent, they're saying they should not have allowed just parts of it to go into effect. They wanted to throw this out immediately, the justices there.

And, again, in the dissent, this is three votes -- you know, three of the nine, "the government has made a strong showing that it is likely to succeed on the merits, that is that the judgments below" -- meaning the lower courts -- "will be reversed. The government has also established that failure to stay the injunctions will cause irreparable harm by interfering with its compelling need to provide for the nation's security."

So the Supreme Court is doing here -- this is in the dissent -- but in accepting this case and allowing parts of the travel ban to go into effect and then, in this dissent, you get the impression early on -- and we'll see what happens in the arguments in October, that the Supreme Court is essentially kicking back at the lower court saying you did not give enough balance, enough credence, to a president's authority when it comes to national security.

[12:10:06] BENDER: Yes, I think that's right. And there are a lot of places here for the Trump administration to feel good. This is the first -- the first instance in a while for them on the travel ban that they've -- they've -- they've had some good news. The -- you know, on the other hand, there are -- you know, there -- you know, this idea of a bona fide relationship, I mean there are going to be some real questions for the government to answer here, and they have three people I think that are pretty solid against this it looks like right now and we'll see where this ends up in a couple of months.

KING: Our senior legal analyst Jeffrey Toobin is with us and can join the conversation.

Jeffrey, the non-lawyers have been going through this and reading this and it seems as if the court is leaning, a, number one, they allowed part of this to go into effect, which is a victory for the Trump administration. You'll have the arguments in October. But what's your biggest take-a-way from this in terms of trying to tea leaf this court in how it views the decisions? As Julie noted, the lower courts saying this was religious animus. The Supreme Court doesn't seem ready to go there.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Good news for the Trump administration. I mean not final, definitive news, but certainly this was an order that leaned in the direction of the Trump administration. First of all, you have three votes that are pretty much in the bag for the Trump administration. You have Justice Thomas, Justice Alito and Justice Gorsuch essentially saying, we don't see any problem with this order justifying any sort of interruption. So you have to figure their votes are already locked in, in favor of the Trump administration. And, you know, can they scare up two more votes from the chief justice or from Anthony Kennedy or even from Stephen Breyer or Elena Kagan? I mean I've always thought that this executive order, especially the second version, had a much better case in the supreme Court than it did in the lower courts, and there is certainly nothing in this unusually long order, 16 pages, that persuades me otherwise.

KING: All right, Jeffrey, I'm going to ask you to stand by. We're going to take a quick break.

Ahead, the GOP's difficult hunt for 50 Obamacare reappear votes. But next, more on the Supreme Court's final day. Action on two big gay rights cases and a lot of buzz about a potential retirement.

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[12:16:53] KING: Welcome back.

I want to continue our conversation of the big Supreme Court rulings today, including the travel ban case. The president of the United States just issuing a statement. I want to read some of it to you.

"Today's Supreme Court decision is a clear victory for our national security. It allows the travel suspension for the six terror prone countries and the refugee suspension to become largely effective. As president, I cannot allow people into our country who want to do us harm. I want people who can love the United States and all of its citizens and who will be hard working and productive." The president's statement goes on to say his number one responsibility as commander in chief is to keep the American people safe.

I want to move on to other Supreme Court decisions in a minute, but let's just dwell on this for a second. Number one, he calls it the travel suspension. The president repeatedly has angered his own legal team by saying it's a ban, it's a ban. I know they don't want me to say ban, but it's a ban, in this tweets. And so the president here calling it a suspension. But, number on, the point we were making before we got this, as we expected, a bit of a celebration by the White House and this is it.

BENDER: This is it, but it's far from the Twitter celebration that we usually see. This is -- this is kind of more of what we're used to in past presidents, an official statement, not, you know, -- not something abbreviated with weird punctuation and misspellings on Twitter. And this is the -- as you mentioned, the more -- more -- more sort of subtle, protective language that he (INAUDIBLE).

KING: Well, being careful in his language here because there are arguments in October. If he starts using ban again between now and October, that could complicate the arguments when they have to argue the final case.

Everybody keep that in your mind.

Let's also bring in more of the big headlines in this final day of the Supreme Court's term. The justices also agreed to hear a major case that puts gay rights on a collision course with religious liberties. The appeal before the court is from a Colorado banker who lost a discrimination case after he refused to sell a wedding cake to a same- sex couple. The couple then filed a civil rights complaint and won, and that finding was upheld in lower courts. Banker Jack Phillips argues his refusal is justified because of his personal religious beliefs.

Jeff Toobin, who's also back with us.

Jeff, how consequential is this case?

TOBIN: Well, it's an interesting case. I mean this is a case that is very similar to what happened in Indiana when Mike Pence was governor, when he and the Indiana legislature passed a law that essentially gave immunity to bakers and wedding photographers and people who did not want to participate in any sort of business relationship with same-sex marriages. There was a tremendous backlash to that, and the law was changed, but the issue remains.

And, you know, there was another Supreme Court decision today, a 6-3 decision, overturning an Arkansas -- was it Arkansas? I think it was Arkansas. Was it Arkansas? I'm blanking all of a sudden. Yes, it was an Arkansas law that said that same-sex couple could not have both their names on their kids' birth certificates. And by a vote of 6-3, they overturned that law and said, no, you have to treat same-sex marriage -- same-sex couples essentially identically to opposite sex couples.

The question of whether individual conscience allows you to not participate in same-sex unions in a way that you can't have individual conscious to say, I will not participate in racial intermarriage, I will not participate in religious intermarriage, that's the question that really is before the court, and it's a tough one.

[12:20:18] KING: And, Jeff, for all the court did say today, there was something that was not said. A lot of people were wondering -- there's been a lot of buzz in Washington, a lot of talk among conservatives, that Anthony Kennedy has been hinting to friends and colleagues he might call it quits and retire. But nothing. Do we read into that?

TOOBIN: Nothing. Well, I mean, yes, I mean it's a very big deal. His departure would be enormous. I do put in the caution that there is no law that says Supreme Court justices have to retire on the last day of the term. Sandra Day O'Connor announced her retirement two days after the last day of the term in 2005.

But, you know, Anthony Kennedy is someone who has a great reverence for the court. I think he saw that the court had a tumultuous year with the long vacancy followed by the arrival of his former law clerk Neil Gorsuch. I would have bet that he was going to stay this year, but leave next year. He's about to turn 81. Most people who are 81 decide to retire, but it's a good deal to be Anthony Kennedy these days given the amount of power he wields and I think he enjoys it.

KING: Absolutely.

Jeff Toobin, thank you. Let's bring it back into the room here.

And Justice Kennedy, if nothing else, has a sense of humor. He had a big reunion with his former clerks in town and he said he had a big announcement to make at this big -- and then he announced, "the bar will remains open even after the end of the formal program" Amen to Justice Kennedy there.

But he is the most influential member of this court on these kind -- on the types of questions that the court is going to face. He is someone who has proven he can swing conservatives and moderates back and forth. And at least on this day, on this day, there's a lot of talk among Trump supporters that the president would get a second one early on. On this day that seems, and, again, Jeff makes an important point, let's wait a day or two or three -- but on this day, probably not? Is that we assume?

RAJU: It doesn't seem that -- it doesn't seem that way. Of course we never know. It can happen at any minute.

KING: Right.

RAJU: But I think that for Democrats and liberals, they're very nervous because the president has said that he would nominate justices from the judicial list of -- that he revealed during the campaign, roughly 20 or so, that have very staunchly conservative credentials, people who are supported by people in the federal society and other conservative legal groups. And almost certainly you could assume the president is going to nominate a conservative that would tilt the court further to the right. And now that there's no more -- no filibuster rules in which 60 senators can block, you need 60 senators to overcome a filibuster, they changed the rules to allow Neil Gorsuch to be confirmed by a simple majority of senators, that means a new justice will almost certainly have that as well. The Republicans are in a very strong position to appoint -- confirm whoever Trump nominates.

KING: And to circle back to the Gorsuch conversation. Conservatives always watch. They always worry about the next David Souter. Someone who's appointed by a Republican president on conservative grounds who turns up -- even Anthony Kennedy has disappointed a lot of conservatives by being more of a centrist on the court and a bridge builder.

To that case Jeff mentioned, the court overturning an Arkansas state law that allowed -- that didn't have to have -- they wanted biological parents, not same-sex couples, but the biological parents on the birth certificate. Gorsuch dissented, essentially saying this is a state decision. So another -- this -- and one of the -- we do want to call it a culture war case.

CALMES: Right.

KING: Another -- on the travel ban, for executive power. Here, for states authority. If you're a conservative and you had doubts about Gorsuch or you at least had questions about Gorsuch, you're feeling good at the end of his first term, right?

CALMES: Absolutely, because you look at who he descented with --

KING: Right.

CALMES: And that is -- couldn't be better news for conservatives. He didn't go with his -- his mentor, Anthony Kennedy, as -- you know, he's always described as a former law clerk to Anthony Kennedy, as if they're in sync legally. And he's more in sync with Justice Alito and Justice Thomas.

DAVIS: Right. And we all talked about when President Trump was deciding who to replace Scalia with that, was he trying to send a message to Kennedy that it's safe for you to retire by naming Gorsuch, his former clerk.

CALMES: Yes.

DAVIS: And, you know, Gorsuch has turned out to be everything that Trump and his supporters wanted. But without trying to get too much in Kennedy's head, he may resent a little bit feeling like he's, you know, being pushed or prodded --

KING: Being nudged.

DAVIS: And perhaps he feels like sticking around a little while longer.

KING: Maybe that's why the bar will remain open after the end of the formal program.

Everybody sit tight.

Next, Senate Republicans want to pass their Obamacare replacement plan this week, but as we speak, they are well short in the hunt for votes.

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[12:28:39] KING: Welcome back.

To the other big, developing story here in Washington now, the Senate Republican leadership wants to pass its plan to replace Obamacare this week, but you don't need to be a math whiz to know the votes just aren't there as the workweek begins. Republicans can afford to lose only two of their 52 votes. Mike Pence then would break the tie. Well, Susan Collins of Maine, Dean Heller of Nevada, just two of the moderate Republicans who begin the work week as "no" votes. And on the conservative side, Ron Johnson of Wisconsin in a "New York Times" essay today says this of the current GOP plan. "Like Obamacare," that tells you enough right there -- "like Obamacare it relies too heavily on government spending and ignores the role that the private sector can and should play. That's one conservative. Another conservative, Rand Paul of Kentucky, isn't ruling out a compromise later in the week but says the current version flunks a big test.

(BEGIN VIDEO CLIP) SEN. RAND PAUL (R), KENTUCKY: I think there's a bill that all 52 Republicans agree on if they keep narrowing the focus. They've promised too much. They say they're going to fix health care, premiums are going to go down. There's no way the Republican bill brings down premiums.

(END VIDEO CLIP)

KING: If there's no way the Republican bill brings down premiums, can the Republicans pass a bill? If -- I mean we're waiting for the CBO score, the Congressional Budget Office, forgive me, America. The Congressional Budget Office will do an analysis of the Republican plan and it will lay out what it projects, how much it will costs, will the premiums go up and down, which groups, whether it's low income people, elderly people, you know, who would get helped and hurt the most about that. But when you have a Republican senator, and he's not the only one --

[12:30:11] DAVIS: Right.