Transcripts For CNNW Wolf 20170515

President is disabled, every president , permanently, for making any nationality base distinctions under 1182f, reagan with the cubans, carter with the iranians. Unless you take that road, i dont think theres any way to read the statutes to provide the basis for the injunction we have here. If i could just reserve the remainder of my time. Thank you. Thank you, judge gould. May it please the court, the government would like to pretend that this courts decision in washington versus trump never happened. The government cant shut its eyes to t simple test. Ask yourself if you accept any of the arguments you just heard would it have altered washington versus trump if sn if the answer is yes, that settles it. Mandel applies even though washington said it didnt, when the government claims you cant look beyond the face of the order even though washington said you could, when they say the state doesnt have standing, all of these were things raised and decided by washington versus trump. If i could did the Washington Panel decide the application of mandel on the merits or simply say that courts have jurisdiction to review such things . It resolved the question of whether the mandel standard you think our panel is bound by that . I do. If i could read to you the language from washington versus trump, this is found page 1162. The government cites mandel for the proposition that, quote, when the executive exercise Immigration Authority on the basis of a facially legitimate and bona fide reason, the court also not look beyond that. Apply that this standard governs judicial review executive exercises of Immigration Authority. In fact, the mandel standard applies only to issue or deny individual visa. Present case is not about that application of a specifically enumerated. You read a little bit more into the case than i did. Im just reading to you they didnt really decide those questions. They certainly decided on due process. Im not saying that they reached the establishment cause and found a violation. I am saying, however, for purposes of handel, the government came before this court in washington versus trump and said the standard that governs all of this case is facially neutral and bona fide. This court recited that standard back to them and said it doesnt apply. That is a Square Holding of this court. If i could, i would like to start with judge headachins question about the establishment clause. You asked my friend, mr. Wall, has the president ever disavowed all of these statements. I thought his answer was surprising. He couldnt actually point to you any disavow. He just cited amicus briefs. There is no statement. We give you chapter and verse the things that the president has said. The District Court gave them to you as well, preand post inauguration. Theres not just one. Starting in december 2015, when he called for a, quote, total and complete shutdown of muslims entering the United States. A few months later, quote, i think islam hates us. We cant allow people coming into this country who have this hate of the United States. Then a few months later, my opponent, quote, would admit tens of thousands of refugees from the mideast who would try to take over our children and convince them how wonderful islam is. Mr. Katyal, those statements are profound. Im familiar with them, read them and everything else. S it a little bit concerning that those statements take place during the midst of a highly contentious campaign. Absolutely and we wouldnt dont you need to look at it from that perspective as well . We wouldnt be standing here if it was Just Campaign statements on its own. As the District Court found the president rekindled those statement thrust his actions as president in two different respects. First, when he issued the First Executive order, he read the title of the executive order, looked up at the camera and said we all know what that means. Thats scr 148. And, you know, if it was clear from the title what it meant he wouldnt have had to say it. Its a reference to something else. Indeed when he issued both executive orders, he left on his website that very statement about the complete and total shutdown of muslims, a statement that happened to disappear moments before the Fourth Circuit argument last week. I think the question is, what would an objective observer view these statements as . As the District Court found it would view them as an establishment of a disfavored religion of islam. Were not in favor of psycho analysis or trying to get into the president s head. You dont, your honor, need to be sigmund freud. What would an objective observer think with respect to these statements . These statement does continue. Even last month, the brief filed before you said even last month the president said its easier for muslims to immigrate than Christian Refugees from the middle east and, quote, hes going to be helping the christians big league. This is a repeated pattern of the president. Indeed, two months ago to this day when the District Court struck down the injunction in this case, scr 84, the president said, quote, moments ago i learned that a district judge in hawaii, part of the much overturned ninth circuit just blocked our executive order. This is a waterdowned version of the first one. And, let me tell you something, we ought to go back to the first one and go all the way. Does that mean that all those statements postelection statements, even the one you just read. Does that mean that the president is forever barred from issuing an executive order along these lines . And what does he have to do to issue an executive order that, in your view might pass constitutional muster . Not at all. There are two paths he could take. One is the way our founders thought article section 108, congress in the drivers seat with respect to immigration passes a statute. As Justice Alito says its much less likely to discriminate 535 people versus one, which is why his mandel point is so problematic. Number one. Second thing, the president could do all the kinds or some of the kinds of things that the District Court found led an objective observer to say this discriminates. Disavow formally all the stuff said before. For example, im going to throw out some examples. Im not trying to make row manage the president. Like president bush said after september 11th, the face of terror is not the true faith of islam. Thats not what islam is about. Islam is peace. Instead, we get, quote, islam hates us. I think islam hates us. I think he could point to changed circumstances from december 2015, when congress debated the exact same evidence that the president relies on in his executive order and say, you know, we actually need more than just denying people entry without a visa, which is what congress required. You need to do more than that. Eliminate the text, which refers to honor killings. Theres a bunch of Different Things that could be done. Our fundamental point to you is that president s dont run into establishment clause problems and the reason for that is this is a very limited, you know, in a really unusual case in which you have these public statements by the president. If you affirm the District Court theres not a thing that any president has done in our lifetime that would be unconstitutional. Suppose it had been another individual that issued the same executive order that hadnt said all these things, would it pass constitutional muster . The most important thing is if you dont say all these things, you never wind up with an executive order like this, which is why no president has done that. I take the hypothetical. If that hypothetical arose, i think it would be different. That is, context matters. Supreme court in mccreery, for example, says governments can close shops on sundays. And if they do it because of labor, they want to give workers a rest, thats fine. If they do it and at the same time announce the reason im doing it is to help churches, thats obviously an establishment clause problem. Thats why context matters. It always has, in the context of the establishment clause and here the history is overwhelming. Thats why this is so unique. This is not, you know, something that is going to hamstring any president from, you know, anything thats happened in our lifetimes. This is a very unusual circumstance in which you have all of these different statements. In your brief before the District Court, you argue the statutory grounds quite extensively. Could you respond to the governments argument . Absolutely. That the two statutes need to be read separately . Judge paez, you have it exactly right. Let me set out exactly what the argument is. That the president is claiming a sweeping power, essentially to set aside the ina. In fact, the president refers to, quote, an absolute right to ban any group or anybody thats in the brief in page three. If you read it that way, if you listen to what mr. Wall said, you are giving the president the anlt to take a magic eraser to the entire United States code with respect to immigration and nullify anything because of this 1182 provision. That cant possibly be what the statute is about. There are four problems with the statutory argument. One is what you were just referring to, swrunlg paez, about 1152, nationality based discrimination. Three other things. Congress finally reticulated scheme, the tenpart test for determining whether someone could be excluded on an individual basis on grounds of 1182a . 1182a and other provisions. Thats there. In addition, you have congress specific judgment on the very evidence that is in the executive order from december of 2015. And what Congress Said is we dont need to have drag net based exclusions but insist on visas when people come in with respect to these very countries. The most important thing, and it sets up your question. The government has not engaged in mass, drag net exclusions in the past 50 years. This is something new and unusual in which youre saying this whole class of people, some of which are dangerous, we can bar them all. Our brief pages 37 to 42. The government hasnt a single answer in their brief to this. Can you read them together . That is absolutely the right way to view this. 1182f gives the president broad powers. We dont disagree with that. One thing it cant do is do to violate a statute and to subpoenaplant a law of congress. To do so basically is to transform the statutes into mere suggestioningses and nothing more than that. So when the Congress Says in clear and unmistakable language that no person should receive preference or priority or being discriminated against because of the persons nationality, thats pretty clear. Now, my friend on the other side says if you read it that way, a libyan will come into the country and so on but i think the d. C. Circuit answered that clearly by saying theres obviously an emergency exception. The statute isnt going to read such a thing. Here theres no emergency precluding congress from acting. If there is a statutory violation here whats the relief as to correct the statutory violation, putting aside the establishment clause for a moment . We think because theres different statutory violations, section two does fall. That is, as a whole. You know, theyre subpoepplantit with a drag net ban. So the whole thing falls. The immigrant visa provision, if we find that our point to you in our brief starts with judge friendlys opinion in 1966, the year after this landmark statute was enacted. Congress didnt just Say Something about immigrant visas. By the way, judge headacawkins, motherinlaw is seeking a green card for dr. El shiek. Thats what your opponent said. I just want to make sure. Congress said in 1965 we are changing fundamentally what our imdwrags system is about and not going to engage in nationality discrimination anymore. It goes through this in painstaking detail as well as 165 members of congress that have come before you and explained exactly why thats so. Indeed the government in the olson case didnt even contest that. They said yes, it applies to nonimmigrant visas. So i think its a transformational statute. And, indeed, no president has done anything like this since that statute was you think 1152 applies beyond immigrant veezias . I do. The text doesnt. As judge friendly found and, indeed, as the government conceded in olson, it doesnt extend krond that because of the way in which the statute took relevant factors and said nationality is no longer a relevant factor for purposes of our immigration. And you would have us look to what you argue is the purpose of the statute as opposed to its language . Oh, no. I just well i wouldnt necessarily say the purpose. Immigration law, as the court has said, you always have to look at relevant factors and what does congress deem relevant and whatnot. And when you ask yourself that question, nationality is now no longer such a factor. That is, this was a transformational statute in 95 passed contemoraneporaneously. The more specific finegrained tenfactor test that congress laid down. And the government itself has said to the Supreme Court in the marks case when you have a more specific statute, that controls over the general indeed, Supreme Court case after Supreme Court case have said, look, the statute looks like an unbounded delegation of authority. But, actual ly, we have to read it more narrowly. Counsel if, i could interject a question on the statutory issues. If we were to conclude, hypothetically, that the establishment clause claim cant support the District Courts could we still. Absolutely. In whole or in part . And related to that could you touch on whether the basis of your clients standing on the refugee provisions and i think that would help me out. Absolutely. So if you accepted our larger argument about the statute, judge gould, about 1182, then it would, i think, affirm the District Courts injunction as a whole. Its true 1152, nationality based discrimination, to up hold the junction as a whole, to read nonimmigrant visas as well as judge hawkins was illustrating. That is our reading. Obviously there could be a question about that. With respect to the standing of refugees, both plaintiffs, we think, have standing. Hawaii has standing because in washington versus trump, the court actually found that the state of washington had standing. Indeed even on the refugee claims, which are before the court, and here we have identified, you know, indeed the government has pointed to three refugees that have come in this year in 2017. The District Court proceedings below. So hawaii has an interest in making sure that its refugee programs, dollars spent are actually able to be used. A flat ban on all refugees, which is what that executive order is, would basically force those dollars to be wasted. With respect to dr. El shiek he, too, has standing with respect to the refugees. His mosque has a refugee in it. He is the imam of the largest mosque in hawaii. For all those reasons, there would be standing. Does he have standing on u 1152 . He does. If that applies tonal immigrant visas, does he have standing . He does because she is seeking an immigrant visa, a green card. It allowed family members to bring a lawsuit and found it has standing so it does. Let me ask you the question. The government makes the argument that if you look at the statements surrounding first of all, if you scloof exclude this is a hypothetical. If you exclude the campaign statements, if you look at the statements around the issuance of the second executive order, including you know what this means, theres one way to read it, saying its bad, one way to read it saying its good, why shouldnt we be differential to the office of the president of the United States on such issues . Thats the Million Dollar question, judge hawkins. I dont think theres any precedent that says when youre thinking about what a reasonable observer would view as an establishment clause problem that you defer to a government official. Rather the whole test is an objective observer, not what the president thinks. Were not impugning whats in his head. Were saying objectively, this is how a reasonable viewer would see it. If you gave df you gave deefered give the president the ability to say then you have to defer to me. I dont think its zrimt discriminatory which, by the way, he hasnt exactly said. Immigration restrictions being used to establish a religion. Thats actually what happened in colonial virginia. The best way to think about it this is what Supreme Court says. Think about what an objective observer would view this as. The best evidence is, i think judge paez reported to this, amicus brief after amicus brief. Im not aware of any case like this in which so many amicus brief representing such a wide swath of life said this is an establishment clause violation, 17 states including states like iowa, north carolina. Over 30 cities and counties, including seattle, los angeles, new york city, san francisco, south bend. Leaders across the spectrum, National Council of churches, representing 40 million christians, episcopal bishops, unitarian, the alliance of baptists, the antidefamation league, sciu and American Federation of teachers representing 5. 2 million workers. Theyre all coming before you and saying, look, this is unprecedented. We have not seen anything like this in our lifetimes in which a president is establishing a disfavored religion. And with real consequences. This isnt just the president saying something without action. This is the president action as well. You have argued in the past to give deference to the executive. Sure. United states against texas, you wrote an amicus brief in which you said the particular demands of the immigration system, in fact, require the executive to wield broad discretion, prioritize enforcement resources in a way that makes the immigration system function effectively, while balancing a range of foreign policy, National Security, economic and humanitarian concerns. Thats your language, isnt it . Absolutely. We dont disagree with any part of that, judge hawkins. Rather what we are saying is that the president has to implement congress will. But it cant be an unbounded tell gas station. Indeed, if you read the governments brief you might think the president can have this, such a sweeping delegation, he could name classes of people, nationality y is and so on. Their reply brief on page 21, you go back and look at what that case is they try to pass that off as the majority opinion by then judge ruth bader ginsburg. Theyre citing from the descent not the majority opinion. They dont tell you that. The descent said that but the mantle has never said that. The law has always been even when there is a delegation of authority, its still got to be viewed within an overall context of the immigration scheme. To view it the way they do would allow the president to take a magic eraser to the entire code. Obviously, the brief in that texas case is not about establishment clause. We understand what that was about. Yes. You wrote a brief in flora v. Lar. Ive been busy. U. S. Policy against aliens is vitally intricately interwoven with Foreign Relations power likewise vested in the political branchs and any rule of constitutional law that would inhibit the flexibility of the political branches of government to respond to changing world conditions should be adopted only with the greatest caution. Right. When i was in the government, i tried to get the Supreme Court to bite on that. They didnt. And i think for, you know but even still, look, were not here saying that theres no the president doesnt have emergency powers, National Security powers. Of course he does. The question is, when you have a circumstance like this, when the very evidence they have pointed to is before the congress of the United States and they said we dont need this mass drag net ban. Instead we can do something more limited, require visas, i think that is all that that is particularly telling. So, obviously, if its an emergency situation its a different matter. Thats not the world were in. Indeed, the government points in its executive order to really only three things. They point to two people from iraq who committed crimes, but iraq is now exempt from the executive order. And someone from somalia who came here as a refugee when he was 2 years old and committed crimes when he grew up. But it exempts somalia. Suppose the president had adopted this second order or third order and identified areas of active combat in these some of these affected countries or in those portions, carefully drawing a map like a legislative gerry mandering, if you will, whether its isis, boko horom, al qaeda, the taliban, and nared it down just to those areas, would that pass muster . I think it very much would. Thats exactly what congress did in 2015. It didnt do nationality base discrimination. This is what the District Court found in er 61. If you isolate where people had come and visited from 2015 Visa Waiver Program works, it doesnt work by where youre born or what passport you hold. It works based on where have you recently been . If youre a swiss citizen and have gone to sudan, youre covered by the 2015 ban. Precisely for the reason youre saying, judge hawkins. In 2015, congress determined there might be some security threats in sudan. What this does is says if youre a syrian and youre born in switzerland, spend your whole life in switzerland and then want to come to the United States, no. Flat ban. Just because of your nationality. That is not something that president s have ever done in our lifetime. Not quite as specific as judge hawkins suggestion, but the order does refer to conditions in the countries that are listed. Why wasnt that sufficient for purposes of facial legitimacy . Visa is to require visas, nothing more than that. I dont think its detrimental to use judge goulds language, detrimental to the interest of the United States. Congress has made that determination. But the order first part of the order, preamble and the subsections of the preamble, section one, goes to the countries and was conditioned in those countries. Conditions described are not what like judge hawkins was alluding to, but do make an attempt. An attempt that was made before congress. And thats it . I think the other important point is if you really believe that, you do that on the basis of transit, someone coming from those countries regardless of what nationality is, swept up by whatever the possible president ial action would be. Thats how congress did it. Thats the way to deal with that problem, not this. If i could, i just want to return to the colloquy that you all were having with my friend about mandel and bad faith. I see that as quite important to the resolution of this case. Obviously, we think mandel doesnt apply because of washington versus trump. If, for some reason you wanted to get into it, we think that the bad faith exception or, as the mandel language itself calls it, bona fide, is enough to rule in our favor andasm affirm the District Court. This court in cardenas said if there is a showing of bad faith, then the mandel standard is met and at sks unconstitutional. If you dont consider the campaign statements do you still prevail . Absolutely. Why . Theres bad faith even past that. The president rekindled all those campaign statements. Even beyond that, all the things that have happened acids, including leaving it up on the website. Including i want to go back to the first ban. Including i prefer christians big league. What he said at the Christian Broadcast Network are all efficient. Mr. Wall says you should give more deference to the president than a counselor or official. In general, that may be true but not when it comes to religion. Our founders were very worried about the possibility that one man could establish a religion. Any individual counselor officer will not be able to the stakes are much higher when youre dealing with the president. And so i dont think he gets any special deference. Let me ask you this. And i dont mean to usurp your clo closing language. Well give you extra time if you need it. But there were letters issued by both the department of justice and the department of homeland security, i think on the same day the order was the second order was signed which more or less gives support to the order and say that there are National Security reasons we need to do this. So, do those letters neutralize your assertions that the National Security interests relied on are pretextual . And do they neutralize the bad faith argument . Youre not just saying bad faith of the president but also bad faith of the attorney general and also bad faith of the secretary of homeland security. Right. So i it certainly is true that those letters were written on the morning saying it would be nice to do an executive order like this and the executive order issues. I think those letters dont change the dynamics at all. Rather, the question is, as the District Court found, is this executive order viewed from the standpoint of an executive observer, establishment of a disfavored religion, islam . Even if there is some National Security motivation on the part of these cabinet secretaries, that doesnt eliminate the fundamental problem, which is that this executive order was promulgated by the president and he has billed it in a certain way, the way an objective observer would view it. Imagine, just ask yourself if the president said at the time he was signing the order Something Like i really hate muslims or Something Like that. The fact that cabinet secretaries may have a National Security justification or something that was sent to him, i dont think, would change the under lying constitutional proble problem. I have a quick question on scope, if you dont mind. To study the issues talking about in the context of the order to find out if theres more things that could be done in terms of vetting or procedures or transit or visa issuance, that sort of thing. Is there any justification for that part of the order . May i answer have have half a minute to sum up . Were giving you extra time. Thank you very much. I didnt quite understand mr. Walls statement to the Fourth Circuit. Take mr. Wall at his word. He said they asked the judge in hawaii, can we go ahead with these studies to determine if there are things that can be done. And i take it he was saying that in reaction to the judges on the Fourth Circuit panel saying why havent you done this. Exactly. So let me read to you his words in the Fourth Circuit and go through it. We went back to the hawaii judge and said you couldnt possibly have meant vetting for these six countries and the district judge said yes. I dont think thats quite right. That is, they did ask to clarify the injunction not with respect to the six countries but just generally can they have internal consultation and the like. My question is broader than that. Is there any justification to cover what i just described . I think yes. Answer yes or no . The answer is yes, if it comes to a worldwide study under the auspices of 2a of the order. Reason for that, as we pointed in and out our opposition to the District Court on page 13, this was the governments own theory. So if you see the if you view the 2c exclusion as an establishment or statutory violation, then the 2a worldwide study has to fall. But, judge hawkins, let me reassure you, that doesnt matter at all. That is, the government can and, indeed, has been conducting worldwide vetting, increased studies about all of these thing s. Dont they do something along those lines with the laptops . Absolutely. Not justify the laptops but increase in vetting procedures worldwide. The injunction doesnt ban study at all only the specific study, a study designed to carry out what we view as the muslim ban in section 2a. So the president has been conducting those studies, as every executive well get a chance to hear from mr. Wall. Great. If i could just sum up for 30 seconds or so. Last week, my friend, mr. Wall, closed his argument by saying that the precedent here will transcend this case and this travel ban and i couldnt agree more. If you rule for us, you leave intact the president s powers, including every decision, every president has made in our lifetimes and you preserve a status quo that has existed for decades. If you rule for him, you defer to the president in a way that history teaches us is very dangerous. You open the door to so much. As Justice Jackson said in the context of the First Amendment, in religious freedom case, quote, the First Amendment was designed to avoid these ends by avoiding these beginnings. This very courthouse, which tried, convicted and then later exonerated gordon 44 careers ago stands as a physical reminder about what is at stake. Our constitution and laws are better than this. Our founders wanted america to be a beacon on our coast and that beacon, at the end of the day, is not the quality of our sports teams or quality of our soil. That beacon ultimately is the majestic article iii. We ask the District Courts ruling in joining this unconstitutional and unamerican executive order be affirmed. Thank you, counsel. Solicitor general wall, you had preserved a couple of minutes but we also went over time on the appellees argument so well give you extra time if you would like it. Thank you, judge gould. Ill try not to use all of it. I have a few brief points. The first is, i dont think washington can be taken to resolve the standard of review in this case. I think its mandel. Pretty close, though. Well, it did it in a section called reviewability. To the extent that what washington said, judge paez, was mandel cant govern broad policy determinations. Even plaintiffs dont try to defend that reasoning. I dont think this court should overread it. Under that standard im glad to hear counsel say we wouldnt be up here if it werent just the campaign statements. Those are not statements in an official capacity and dont tell you what the official objective is. People say things on a campaign trail and take an oath to uphold the constitution, form an administration and consult with them on the policies they develop. We shouldnt start down the road of psycho analyzing what people meant in the campaign trail. And then, judge paez, in answer to your question, down to a handful of statements. The only one that directly affects this order is the one that the president said we all know what that means. And in the presence of a newly sworn in secretary of defense was i am signing this order because i want to increase the vetting procedures for radical islamic terrorist groups. He makes the sixword offhand comment. Its clear in context and within the presumption that we ought to afford to a head of a Government Branch that hes talking about terrorist groups not all muslims anywhere in the world. There isnt enough in this record to get you to bad faith under den and counsel wants to discount how remarkable it would be on a handful of statements made by the president. Look at scr 90. I want people to come here and love this country. Many muslims do. And we can go back and forth on the president s comments over time. Thats just not a judicial inquiry, like what mandel commands courts to do. And under that inquiry, theres not bad faith here. On the statute, you know, for all the rhetoric, judge hawkins, the language of the statute doesnt get you where he wants to go. 1152 deals with the issuance of immigrant visas. We make nationality based distinctions every day. Thats what the Visa Waiver Program is. Nationals of some countries have to get a visa. Nationals of other countries dont. Olson doesnt say anything different. At most it gets you an injunction very different from this one, one that would be more harsh to the people that counsel purports to defend. 1182f, judge ginsburg, footnote two of her decision, the president s sweeping proclamation power to suspend the entry of any class of aliens when he deems it in the nations interest. I know counsel wants to second guess the exercise of that power here. But hes right, whatever this court says will govern president s exercise of that authority for years and decades to come. And no court has ever read into 1182f, ever, from 1152 or other statute that counsel wants to find in it. Last thing ill say is just the overbreath of this injunction. Counsel barely mentioned section six. Sections 2 a and 2b of the order say that the state department and dhs and dni are to look at our informationsharing agreements with other countries and determine whether sufficient vetting procedures are in place and theyre supposed to produce a report. That was tied to the suspension, in a sense because the president said im not sure and that will free up resources to do the review. We went back to the District Court, as counsel knows, and said, look, even if you give them the suspension of entry, all thats in their complaint, it doesnt get you to section 2 or section 6. Surely, we can still produce the report require bid sections 2a and 2b and the District Court said i have joined all of section 2 and section 6. I want to be clear with the court even if were wrong about standing and even if were wrong on the merits, the most he ought to be able to get under decisions from this court is an injunction under 2c for dr. El shiek and his motherinlaw or, at most, any students whom hawaii identifies if you conclude that hawaii has standing. He is conflating the nature of his legal argument with the kind of relief his clients are entitled and mine and other cases so no matter what the scope of his legal argument and what it would suggest about the propriety of the order at most they get an injunction that addresses their injuries. Dr. El shiek, his motherinlaw and maybe a handful of students in 2c. Not the rest of section 2, nothing in section 6. He doesnt have anybody seeking refugee admission. Section 6 shouldnt even be on the table. Look, ill wrap up in the same way. Yes we did say to the Fourth Circuit last week that the precedent set by this court in the president s Immigration Authority will long transcend this debate, this order and constitutional moment. Counsel is right that this country is a beacon. What makes it a beacon is the rule of law. Under the settle e ed legal rul for statutory interpretation, what the president did here falls squarely in his constitutional and strattory authority. I know they disagree with this president but none of that converts this into a constitutional crisis and we respectfully submit that this court shouldnt treat it like one. It ought to leave this debate where it belongs, in the political arena. The United States respectfully submits that this injunction should be vacated or, at a minimum, substantially narrowed. Thank you, solicitor general wall. And thank you counsel katyal. The court appreciates the very high quality of the arguments on both sides. The court will now take a recess for i would say this case is submitted at this point. And the court will take a recess for 20 minutes. So the recess has started. They heard arguments from both sides, the 9th Circuit Court of appeals for more than an hour, both sides making their case as far as the president s revised version of the travel ban. Im wolf blitzer reporting. We welcome our viewers here in the United States and around the world. Theres a lot to discuss. Were also waiting, momentarily, for the White House Press briefing to begin. Sean spicer will be going to the lectern. Live pictures from the west wing of the white house. Live coverage of that is expected to begin momentarily. But here to discuss what we just heard over the past hour, joining us, cnn politics reporter, eugene scott, Jackie Cucinich and erol lewis. Cnn chief Political Correspondent dana bash and our legal analyst, laura coates. Laura, let me start with you. Break it down for us. Both sides arguments. A critical moment as far as the constitutionality of President Trumps revised travel ban. In effect, at least temporarily, banning people from six muslim majority countries from coming to the United States. Yes. Youre seeing here the courts battling with the question weve all been battling the last several months. That is this. Whether or not the president of the United States, National Security interest, in his total prerogative and right to be able to make decisions based on a National Security interest, how that balances against an establishment clause type of argument. Which essentially says this. Listen, you cannot do anything to try to hinder a religion or advance a religion. It appears from his commentary on the campaign trail and statements that he made that really rekindled, as neil katyal talked about, on the website, saying its a muslim ban as well, whether a rekindling of those statements otherwise undermined any argument that removing those words or those terms in the second ban was sufficient to sanitize that actual travel ban. The courts are saying, theyre begging the lawyers to say please explain to me whether we should use those previous statements against the president of the United States, whether the campaign trail is to guide us now and, most importantly, whether or not an otherwise facially neutral executive order that does not mention religion any longer, whether that was enough to sanitize his other comments. You saw the court giving back and forth saying were not quite sure yet. You listen closely to the questions raised by these three federal judges. All, by the way, nominated by former president bill clinton. How did you see this debate, this argument moving . I thought it was a very row boust hearing and showed all the people watching the depth of the questions. I think it comes down to two things. One, how should they assess what President Trump was trying to do here . Has he disavowed what he said during the campaign . That was a very serious question from all three of the judges up there. The other question they had was dpg forward, however they rule, how could this affect president s power in the future . The main point you heard from the government lawyer, jeff wall, was this could impinge on president s and their effort to fight terrorism in the future. But the lawyer for the challengers said no, this was such an unprecedented order that if you affirm the lower court ruling, put a halt to enforcement of the executive order, you will not be doing anything different. President s will still have power in the future because this was so unprecedented. At this point its hard to know where they would go. It would be a real surprise if they fully reverse the District Court order. That would be another major setback, dana bash, for the president of the United States. Second time even his revised travel ban would go down, at least temporarily. Thats right. Im not a legal scholar but more of a political ear i have sounded like a lot of skepticism about the notion that this was just about National Security and that the Campaign Pledge we heard so many times duringthe campaign that there would be a muslim ban did not feed into this. Heard that skepticism from several judges. One explicitly saying, you know, have you heard the president dial back on that . You know, thats where the idea that we should use the president s words now, not actions, that you cant psycho analyze this or any president came into play with regard to the argument that the president s lawyer, acting solicitor general used. It didnt sound like there was a whole lot of sympathy for the response and answers that the president s lawyers gave. And we did hear from the president. If this Court Rejects his arguments, theyre willing to go all the way to the United States Supreme Court, which now has nine justices on the Supreme Court. Everyone, stand by. I want to show our viewers once again live pictures coming in from the west wing of the white house. Were moments away from the White House Daily press briefing still going on. Sean spicer is about to step up to the lectern. Well have live coverage of that and all the other developments after a quick break. Only tmobile gives you unlimited data with taxes and fees included. Thatll save you hundreds. Get two lines for a hundred dollars. Thats right. Two lines of unlimited data. A hundred bucks. All in. And right now, were giving you even more. For a limited time, get a free Samsung Galaxy s8 when you buy one. 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Aleve, live whole not part. Tell you what, ill give it to you for half off. Just getting these images from the white house where the president greeted the crown prince of the united arab e emirates. The meeting comes ahead of the president s trip to the middle east and europe later this week. Saudi arabia will be his first stop. Then he heads to jerusalem and bethlehem and the west bank, vatican, brussels and civilly for the g7 summit. Were watching the press bri briefing rom where sean spicer is scheduled to speak to reporters momentarily and take questions. There are plenty of questions left to answer on the firing of the fbi director james comey and on the search for his successor. We have seen, by the way, eight names under consideration to be the new fbi director, but remember the search for secretary of state, we saw a list of names seemingly out of nowhere rex tillerson, the ceo of exxon mobile was named secretary of state. Would it be a surprise if the president goes off this menu. Here with us once again is cnn political commentator and ab kor for Spectrum News anchor. We also just learned that mitch mcconnell, the majority leader, has invited the Deputy Attorney general to meet behind closed doors with all u. S. Senators and broef them on the enormity of whats going on. E we saw last week there were so many questions from so many senators from both sides of the political aisle about how this went down. And what his role was in it. I think hopefully they will get their questions answered and get insight into that ourselves as a result of this briefing. But even though its a closed door meeting, we could be sure it will be a circus on capitol hill. The president suggested he could nominate as early as this week even before he leaves on friday for this overseas trip. Hes very fond, this is a holdover of his apprenticeship days that e he wants to make a big deal about us seeing him vet all the candidates. Very good chance he will go outside of the eight we have heard about just as you suggest. You also heard the democratic leader say unless theres a special prosecutor named to investigate, to take over this investigation, they are going to try to hold up whoever is nominated to be the fbi direc r director. They are going to try to do that. Whether or not they will be successful is not likely considering the numbers. They need 51 senators. Republicans have that. Whether or not republicans will hold that same volume want iing the special prosecutor, we have had a few say so, but not in any sizable number yet. Were waiting for sean spicer to come to the briefing now. Hes under e enormous pressure right now. Especially given all the stories out there that his days as the press secretary could be numbered. We have seen these numbers before about his perhaps termination. Youre right. He has had a rough couple days. He was gone part of last week, but that one day he was there, it didnt go well for him. So we have said this many times before. These press secretaries talk to an audience of one ask thats President Trump. Fortunately, the briefing era is still going on even the though president suggested maybe its time to just offer reporters some written answers on paper. We should be grateful for that. The Communications Staff as often is the case gets blamed for what is more a substantiative problem. The problems that this administration is facing is not because they are not getting the message out. Ill be back at 5 00 p. M. Eastern in the situation room. In the meantime, the news will continue right after a quick break. If you have medicare parts a and b and want more coverage, guess what . You could apply for a Medicare Supplement Insurance Plan whenever you want. No enrollment window. No waiting to apply. 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On top of that, the tallout from the firing of fbi director james comey is getting more intense. Were getting word on thursday now the Deputy Attorney general is going to hold a briefing for all senators about the. s decision to remove comey. Many wondering whether the