Transcripts For CSPAN Fourth Circuit Hears Oral Argument On Travel Ban 20170509

All persons having any manner or form of business before the Honorable United States Court of appeals for the Fourth Circuit nighadmonished to draw an and give their attention. God save the United States and this Honorable Court. Chief judge gregory, and may it please the court. If i can ask you before you get started to clarify what you view this scope of the luminary injunction to be. I have two questions. The District Court order and of the section 2c executive order, which suspended entry. During the District Court system 10 District Courts discussion of success on the merits, the District Court said underuspension of entry 1182 did not conflict with section 1152s barring discrimination in the issue of visas, of immigrant visas. Here is the question. Is it your view the District Court injunction enjoins the provision as entry well as the denial of visas, and does it apply to both immigrant and nonimmigrant visas . Honor, i think the answer to both of those questions, as i read the order that the District Court separately entered, is yes. I think the reasoning of the courts opinion would indicate that this injunction of suspension of entry cant stand. At most, it would justify an injunction that would force it force us to give immigrant visas. That seems to me the reasoning of the District Courts opinion. As i read the District Courts order, it said, im enjoining 2c and operation across the United States borders and at every point of entry, not consequence, not issuance of these others. Issuance of visas. That is the injunction we have been complied with. That was the basis for the establishment clause . Mr. Wall yes, that was the basis not based on the statutory violation, as i understand it. Mr. Wall thats right. The statutory violation would suggest he could not have entered this injunction, but he did ultimately enter the injunction under the establishment clause claim. I think that is how we got to suspending entry under 2c. Do you accept the issuance of the entry . Mr. Wall here is what i said. I say. The 1182 f gives the president Broad Authority to suspend the entry of any class of aliens when he deems it in the National Interest. 1152 separately deals with the issuance of visas. The way the state department has always read that is to say, when you are suspended for some valid reason under 1182 f, we will deny you a visa because it does not make any sense for you to travel here and then to be denied entry at the borders. The reason is not the underlying entry for the 1182 suspension. It is just the fact you have been validly suspended under 1182f. We would say is not limit on 1152 1182. 1182 has always been implemented through the denial of visas. Socing us to grant visas people can come to the country and be denied entry, we would say is a fruitless exercise that the state department has never engaged in. 1182 and 1052, doesnt it render 1152 superfluous . Mr. Wall i dont think so. 1152 applies across the board in circumstances well beyond suspension. Where we are just handing out immigrant visas. What it was designed to do was set aside the nationality limit that had existed before the amendment. All this does is it says i think the d. C. Circuit said this in the narrow context of the president s sweeping power under 1182 f, the president has the power to suspend entry. We know that under 1182f. We are not going to read 1152 in that instance, to force the government to give out visas that we know it wont have to honor when they show up. We are going to say, when you are denied a visa under 1152, it is not to look through to see the reason, you have been validly suspended from entry under 1182, nothing to do with nationality. Is ishat reading supported by 1201g, or does it serve a different role . Mr. Wall i think it is supported by 1201g. We pointed this out in our opening brief. Says is that a visa does not entitle you to enter. It is a travel document that says you can come to the United States, but we can look at the border and see whether we will admit you. A customs official can deny you entry. I think 1201 supports the view that if the suspension is valid as a statutory matter under 1182 f, we should not read 1152 to force the government to give you a visa. Even if you bought that distinction, it would justify a very different injunction from this one. It would just be an injunction that says, for the 30 or so of aliens who are here seeking immigrant visas the only thing 1152 applies to we would be forced to give them visas we would not have to honor when they showed up at our borders. We would say that is harsh and fruitless. In real world terms, what does this injunction stop you from doing that you could have done otherwise, if these folks go through the normal process . Does it net them participation in the process . Does it mean they get on a plane somewhere and can get off the plane at the customs area . Does it allow them in the country . What is the real net gain for somebody under this injunction . Mr. Wall yes. When you are talking about the six countries iran, sudan, somalia, libya, yemen, with the what to the injunction does is, what the president wanted to do is say, i want to reassess vetting procedures for those designated countries, which redesignated by the congress and Previous Administration. I have got all that, but what does it mean . Mr. Wall it says you cannot treat those nationals any differently. You have to give them the visa just like france or germany. What you cant do is say, im going to suspend your entry unless you qualify for a waiver. When they get the visa, what does it entitle them to do . Mr. Wall get on a plane and come to the United States, and when they arrive, unless there is some specific reason, like a National Security threat that the customs official detects, they are admitted to the United States. This reassessment of vetting procedures and has been more than 90 days since the first order was implemented. Has the government made any effort to engage in that vetting procedure . Mr. Wall we have not been able to, but not because of the result of the injunction no, judge. Because the judge only enjoined 2c, but the district judge in hawaii and joined all of section two and section six, and section directs apartments to conduct a vetting procedure with respect to these countries. We went back to the hawaii judge and said, you cant possibly have meant to enjoin internal governmental procedures to look at vetting for the six nations, and in the face of that motion , the district judge said yes, i am standing by my injunction. We have complied by that injunction. We have put our pants down. We have we have put our pens down. The 90 day has not been able to run it all. What about the 90 day period in the First Executive order . Mr. Wall excellent question. When the first order came out, the state department of Homeland Security did begin to assess the vetting procedures for these designated countries. They did not finish that review, but did some work on it. You are not going to need the whole 90 days. Mr. Wall the problem is, as soon as the second order came out, there was an injunction, so an injunction before it even took effect, so they put their pencils down. How much time they need to finish, i dont know. Since march 16, we have complied with the hawaii injunction and have done nothing to review the vetting procedures. That is 50 days after the First Executive order, before the second went into effect. That is about 50 days of the 90 day period. Is that correct . Mr. Wall that is right. We did some work you say you are not doing it because you believe you are for bid and by the order to do it . Mr. Wall we went back to the judge in hawaii and said, shortly you only meant to suspend the entry of nationals the olympic countries and refugees in section six. Surely you could not have meant to enjoin the operation of other provisions not the subject of the briefing and are internal to the government, and the District Court denied our motion. We have taken the injunction by its terms, deeply disagree with it, but we have scrupulously complied with it. Let me ask you a question going back to the visas. Were in effect and application were made for a visa by someone from one of these countries, how would the request be handled . Mr. Wall if you were a Somali National and came to a consulate and were seeking a visa, the consular officer would, as with anyone else, look and see if you satisfy the other criteria to get a visa. There are a lot of other grounds in 1182a that can render you inadmissible. Criminal record, ties to terrorist organizations, and the rest. If you satisfy all of those, if operated, the consular officer would say, are you eligible for a waiver . The baseline is you are suspended, but if you have a close Family Member in the United States, have worked there, or going to study their, you can get a waiver. On the current system, we are not doing it individualized on a waiver basis. You are treated like everyone else. If you satisfy the criteria, you get a visa, even if you are from one of these countries. That is a crucial point. The congress and Previous Administration designated these countries not done by this administration on the basis of National Security threats. What the president did when he came into office was say, i know the Previous Administration was satisfied that that was enough for these particular countries, but i would like an opportunity to reassure myself we are doing enough with respect to those countries. You are saying the administration did what with respect to those six countries . Mr. Wall it took a nationals and travelers to those countries , individuals with connections, it took them out of the Visa Waiver Program. It said, unlike nationals from other countries those countries in their entirety . Mr. Wall dual nationals and even just visitors only those six countries . Mr. Wall seven countries including iraq. Those seven countries, yes, and it said for those, we are taking them out of the Visa Waiver Program and making them get visas. This administration said, that is well and good, but we are not sure that the procedures by which we are giving them visas are reliable enough, because we are not sure those governments are getting is good enough information. We want a 90day pause while we checked the procedures and make sure it is enough. At bottom, that is a policy judgment for the administration to make, and a number of the arguments the plaintiff this a number of arguments the plaintiffs are making are in essence tackling that policy judgment. They deeply disagree with it, i understand that. It is a difference of degree, not kind. It seems to me they are not attacking the merits of the policy as much as they are questioning whether this really is the policy behind his order. Those are two different things. We of course customarily differ defer to the executive assessment of National Security, but that is different, isnt it . Whether that is really what is going on here. Mr. Wall it is, but it is important to understand the Legal Standard the District Court should have applied. Im sure you found the one individual plaintiff left has article three injury and has standing to raise a claim, but assuming you disagree with the standing, you go to the merits. What we would say is the question is bona fide. Discord court and others have said that is basically rational basis review. The question you would ask under rational basis review was, wasnt irrational for the president to decide, i want a 90 day pause to take look at these procedures . As long as arguments are framed in that context, was this an irrational judgment . No reasonable Government Official could have made this judgment. We have no objection to them. But most of them, they are framing under far more stringent standard. How did bona fide get collapsed into rational basis . It seems to me that the mandel formulation talks about what is the facial rational, and also what is bona fide. Those are two different things. Mr. Wall they are, and i think it would be an interesting debate to have about what bona fide means, except for what mandel said and what it did. After it said was there any evidence in mandel, Public Statement on the record, that called into question the purported rationale for the decision . Mr. Wall two quick things on that. One, the court after it said facially legitimate and bona fide, they said they would not look after it as long as it was facially legitimate and bona fide. They meant it would have to bear relationship to the conduct. But yes, there was. Justice marshall said if the court would take just the briefest peak, you all see that the attorney general did not mae ad failed to comply on previous visit, he denied it because he was a communist and he wanted to come to this country and talk about communism and marxism. Judge marshall said the evidence was there, and the court said no. When the executive puts together a reason that is on its face legitimate and bears a relationship to what it did, we are not going to go down the road of inquiring into subjective motivation. That supports the legitimacy of this on its face. Mr. Wall the order lays out the conditions in these six nations. The original order did not, but the president went back and in redrafting the order in response to court concerns, went through the listed countries nation by section one, and said, here is why i think, that based on deteriorating conditions in these countries and their governments unwillingness or inability to provide us with reliable information, i am going to put a temporary pause while i look at our procedures for just the six countries. I think that evidence in the order, on its face, there is a rational relationship to what the president did. If you treat it as rational basis for review, which is what this court in johnson said the mandel standard is, rational basis review, and other courts have agreed under rational basis, i dont think there is any question that in any other context, if we had a law that set out factual findings like this, we would say that survives rational basis. Going back to judge kings question that there were 50 days that elapsed in the 90 day period. So the government had 50 days to do their vetting, presumably to add more to the record. Was any vetting done in the 50 days . Thewall judge thacker, first part is right, but i want to disagree with the second. We did do some work. Those departments were required to produce a report for the president. Im sorry . Within 30 days. They were supposed to give a report to the president. Mr. Wall thats right. But part of the reason the 90day period exists is to free up resources to do the review. Instead, what we have been doing since january 27 is litigating this order. We do not have that report yet, so i cant say to the court what the state departments and Homeland Security departments final the District Court in the enjoinedcuit only sections two and six, so you still have sections 4, 5, 8, and nine directing the application of iragi nationals for entries should be subjected to thorough review, uniform baseline for screening and vetting, all those things are in order now. You have a uniform baseline for vetting and screening. Expedited completion and implementation of biometric entry and exit tracking systems . Mr. Wall iraq is no longer part of 2c. There has been work done on iraq , and this is the most important thing you just cited iraq how does that show you are furthering the terms of this order . You said you could not further two and six because they are enjoined, but im talking 4, 5, 8, 9. Mr. Wall i only meant to say the other sections have not been enjoined and we are moving forward. The most relevant section is section five, which is we can look at our vetting procedures for all nations across the board, and we have been doing that. My understanding is that there has been substantial progress in state and Homeland Security. They have not released anything, but have done a lot of work on. What they have not done is anything specific to the listed countries, because we have read ourselves to be barred by the hawaiian junction to doing that. There is work going on on the biometric screening, raising the standards across the board, but what we are talking about are just the standards for the six countries, and that we have not been doing any work on since march 16. Let me look at the standing for just a second. I know the government takes the position that none of the plaintiffs that the District Court accorded standing to have standing, but do you differentiate for standing purposes between those seeking an immigrant visa as opposed to a nonimmigrant visa . Mr. Wall we dont think it makes any difference. Our standing analysis would go like this. Down to section 2c, they put forward for bama plaintiffs who said, we have a relative overseas whose entry would be delayed by section 2c. Three plaintiffs have dropped out. One because her sister is waiting for years anyway, and they concede all four are for immigrant visas . Mr. Wall i dont know off hand. I will know for you on rebuttal whether they are immigrant or nonimmigrant. I believe they are all immigrant visas, and the other two have received visas now. We would say their claims are moot. I think we are down to one plaintiff who still has a doe 1,e overseas, john who wants his wife to come in. We have disputed whether he has article three injury because it is speculative and she is almost certain to get a waiver if in fact she is married to him but even if you disagree, our basic would be the court has point been clear again and again that where you are alleging government conduct that discriminates on whatever basis, religion or something else, it has got to be the punitive victim who brings that claim. This runs to the aliens abroad, so john doe does not have 1 standing to raise in effect an establishment clause claim on behalf of his wife, and i think plaintiffs implicitly recognize that, and that is why they try to reframe the injury as a message of condemnation that flows out to the community. For the reasons we given our brief, if you accepted that move under establishment clause standings, i think valley forge would be wrongly decided and you would basically eviscerate standing limitations. Lets get back to the facial legitimacy issue. In executive order number two, the president specifically said is stated that executive order number one did not provide a basis for discriminating for or against members of any particular religion. If we find that is incorrect on its face, that it did, what does that do to the facial legitimacy of executive order number two , if it in fact is relying on a statement that is incorrect . Mr. Wall i think, first, the president said that in the context of the provision of religious minorities that was removed. He said that was religious minorities across the board. Christians in some nations, muslims in myanmar. Executive order number two states that number one did not provide a basis for discriminating against or for any particular religion. If we find thats incorrect, does that not undermine or does it undermine the facial legitimacy of executive order number two . Based on something that is incorrect. Mr. Wall i dont think so. However far the taint the reruns , i think even if you thought it affected the first order, the president went back, and in response to concerns cortez raised concerns he disagreed with, but nevertheless revised the order, took out a number of categories of aliens alleged to have due process rights, took out the provision of religious minorities, took out the indefinite suspension of syrian refugees. Responded to all the concerns that courts had raised, and now we are right back here. The question is, can we just infer that whatever we thought of the firstorder was true of the second, and i think the answer is no. Although the firstorder was fine why did the second order say that . You see what im saying . The fact the second order affirmatively states there was no discriminatory intent with the firstorder, where does that leave us as far is the intent in the second order . Mr. Wall with respect, i think any president faced with the judicial decisions that the president had here would have said the same thing. He said, i put in a provision that was supposed to protect religious minorities. I did not mean that to operate on the any particular religion. I meant it equally for muslims, and christians in other nations. Some courts disagreed and came to the statement you are talking about, and said, i never intended that to discriminate on the basis of any particular religion. They are 99 muslim. I think the president said something about being christian on a tv program. Mr. Wall the provision that the second order is talking about was just one that gave preference in admitting refugees to religious minorities, and the not mean said, i did that to operate only for any particular religion, but because courts were concerned, i took it out. I think in the face of some of these decisions that showed real hostility to the president , i think it would have been a remarkable thing for him not to come back and say, i did not mean that things the courts are attributing to me, but to prove it, i took out the order they the parts of the order they found problematic. What statements are relevant here . The statements he made during the campaign, before the order, after the ninth circuit . Where do we look at the president s statement to determine what he is saying . Mr. Wall i can give you a number of different answers, but let me start with the most basic under the right Legal Standard one. , which is mandel, what the Supreme Court said is, courts will not look behind once we know it is facially legitimate and bona fide a rational. There is then there are all these concurrences that there is affirmative duty to look if there is bad faith. In determining bad faith, dont we get to consider what was actually said here and said very explicitly. Even after the second order, there was sort of a wink and nod , you know what i mean, even though it was changed. Does that make a difference . Mr. Wall let me say a couple of quick things. Mandel says courts will not look behind to extrinsic material the District Court said mandel did not apply to the limiting case. Mr. Wall it did set aside mandel, even know this court and the Supreme Court have consistently applied in the establishment case, you have to look at the purpose. That is the first part of the lemon test, he said. If you are looking at purpose, that opens up looking behind it and seeing what the real purpose was, and that takes you back to what has been said. He went all the way back to november of 2015 and brought it up to the present, to the time he signed off on the executive order. Whenyou said, everybody he said, Everybody Knows what i mean here. Mr. Wall yes, if the Court Disagrees with us and says, we think the body of domestic nttablishment clause precede even constitutional claims by , u. S. Citizens, gets exported to the border where the president is excluding aliens in what can only be a youngstown one case. Everything under article two and congress can give him under 1182 f. Cases think all those equally travel to the border, and it is not mandel, which is what has always govern constitutional challenges to the denial of entry to aliens abroad, then yes, youre looking at that is the use of discretion here, claiming it is a legal error to apply lemon instead of mandel . Is that what mr. Wall yes, we think there were a handful of legal errors, but that is certainly one. That is the primary one . Mr. Wall yes, we think he applied the mandel case instead of the lemon case . Mr. Wall thats right. But i want to take judge w ynns question on its own terms. If you disagree with us that mandel is the standard at least tell us what Justice Kennedy meant when he spoke in the plurality of opinion and said absence of affirmative showing of bad faith, that seems to be expansion beyond simply saying, just give us a reason. Mr. Wall i think you have put two questions on the table at the heart of the case. What does the bad faith exception do under mandel, if that is where we are. And what does the purpose impact look like under the domestic cases . On the bad faith exception, courts never applied it to be sure, Justice Kennedy and Justice Alito indicated it was there, but look what they said, they said it requires an affirmative showing of bad faith. If that is true for a single oneoff decision, we should require only the strongest, clearest showing of bad faith in order to impugn a former National Security determination of the president after consultation after multiple cabinet officials. That is remarkable thing, and the bar ought to be very high. What we are talking about is reaching back to a handful of campaign statements, where i think in fairness all this stuff was reaffirmed after the election. You have stuff after the election. Let me be more specific to judge kings question. Shortly after the executive order two was signed, sean spicer said the principles remain the same. President trumps statement, concurrent with that time, you know my plans. Spicer President Trump yesterday continued to deliver on campaign promises. Is there anything other than willful blindness that would prevent us from getting behind those statements . Mr. Wall yes, respect for the head of a coordinate branch and resumption and presumption that officials acted legally. The brief does a great job it is the constitution, not just respect for the person. The constitution, is it not . Mr. Wall no question, but what the president made clear and granted, he clarified this overtime but he made clear in the months leading up to the election and after the inauguration that what he was talking about was the threat from terrorist groups that operate in particular countries that have been designated state sponsors of terror or designated as countries of concern because they are safe havens for terrorists. He made clear he was not talking about muslims all over the world, and thats why this is not a muslim ban. Its text does not have anything to do with religion, its operation does not have anything to do with religion. The only thing they have got our to reach back and say, we know, despite the text and operation, what was in the president s head. There are different ways to read those statements, and the respect for a coordinate branch and presumption of regularity require reading them in a way that is not most hostile to the president , but would render this action lawful. Sorry, i was going to go back to one of the other questions. In responding to her a few minutes ago, you said you did not see anything wrong with the executive, the First Executive order. I just wonder, given all your arguments, what would be wrong with a ban on muslims, in your view . Mr. Wall i think that would run straight into mandels constitutional limit on facial legitimacy. It is hard to imagine a president who said that and an order that achieved that, on its face or in operation, would not run afoul of mandel, but here we have an order that does not actually do anything on the basis of religion. Can i ask you to elaborate on the first thing you said, im sorry. It would run into mandel because even if the president made a National Security determination that muslims could not safely be admitted to the country, the courts could look behind that and say that is not ok . Mr. Wall no, i think it would raise a serious question about whether using religion as a proxy in that way would be a facially legitimate reason thats not what you said and what you said in response to my question. Mr. Wall i meant to say the same thing, which is that if a president , unlike this had an executive order that actually did ban muslims and he said, im doing it for National Security purposes, i think that would be it is hard to imagine that courts or the Supreme Court would say that is a facially legitimate reason for mandel. Standing for that kind of claim under your theory of standing . Mr. Wall i think United States citizens could raise mandeltype claims saying that the right to marry and a protected liberty interest under the due process clause, or the First Amendment right to receive information, but that is not the claim they have raised here. They have not come in with a due process claim. It is just an establishment clause claim based on government conduct, not religious speech, and the court has been clear again and again that where you have conduct, it is the target of the conduct that have standing to sue. Your position is we just look at the face of the executive order in this case, and you would look at the face of it to see if there is anything in the face which calls into question a religious ban or muslim ban . Mr. Wall i think it is a little more than that. It is rational basis review under mandell, so i think it is on its face, but also, could a reasonable government actor could it have linked up this purpose of National Security if there is a National Security issue that is linkedin, then it would just be the question of facially what it does, and you think that is out of respect for the coordinate branches of government . Mr. Wall i think under mandell. Keep in mind what is under what is on the other side. In the washington case, they s worth ofar discovery and up to 30 depositions to inquire into what everyone who put this executive order together actually meant by it. Facing that in mandel, the court said we are not looking behind that. It is rational basis review. I do understand that, but want to be sure i understand your answer to my question. If the president issued what was called a ban against muslims from these six countries, with every National Security was exactly the same otherwise in the order, you believe that would be constitutional . Mr. Wall to make sure i understand, it is in order that blocks only muslims from these listed countries and not all nationals . No, all nationals because he is worried about muslims. Mr. Wall so in text and operation, it does not operate on the basis of religion, but the president makes more unequivocal statements than what we have here, in the way he characterizes an otherwise neutral law . I think under mandel, no, you would not look behind it, but you dont need to agree with me about that, because i think the fallback argument, which i think is a pretty powerful one, is that even if you thought those statements ought to be given some weight, we had some pretty constitutionally significant events here. The president was elected, he took an oath to uphold the constitution, formed the government that does not give him the right to violate the establishment clause. Mr. Wall i dont think so, but i do think it should color the way we look back and look at previous statements, before he was an elected official, faced the demands of government and before he consulted with the administration and took an oath that allowed him to occupy the nations highest office. Even if you disagree with me on all that and thought, the government is wrong about all those legal arguments, i ought to read the statement straight up and see what i think they say, i still think the statements are ambiguous, and out of respect and the presumption of regularity, i think what you say is, we dont give the president the least charitable interpretation of what he said. We give it the most reasonable interpretation in order to render the executive order lawful so that it should not drift in and out of constitutionality based on what we think was in the head of the president. Has the president ever repudiated the campaign statements he made on the muslim ban . Mr. Wall he has, and some of the briefs walk through this. He said, over time i have made clear he changed it from religion to nationality. He explained he was not going to call it religion anymore. He was going to call it nationality, and mayor giuliani advised him to do it that way. He did do that. Territory. Territory. But he has never repudiated what he said about the muslim ban. It is still on his website. The District Court found it is still on his Campaign Website today, or as of the day they wrote the opinion. Mr. Wall it is an archived press statement from 16 months ago before we got into a campaign and had a primary and election and took an oath and formed the government, but the point you dont challenge any of the findings of fact the District Court made. He said it. Mr. Wall they are not findings of fact. When this court looks at what a lower court and they found facts. That is what District Court to do in permanent injunction cases. Mr. Wall we are not disputing the statements occurred as a matter of fact, though the president clarified over time that he was talking about territories and terrorism, not religion, but our point is when you are doing rational basis review, or even doing mccreary and all the rest, the purpose of rational basis review, these are not factual questions subject to clear error review. Courts have always treated them you dont allege there are any facts in the District Courts opinion that are clearly erroneous. I looked for that. Mr. Wall the only facts are the statements, and we dont dispute the statements occurred, but the legal effects and consequences of those statements, whether other men delora mccreary, that has always been treated as a question of law. When we look at legislative history or anything else, we dont treated as a factual question subject to clear error review, it is illegal question it is a legal question this court reviews. I did not mean to interrupt you. I am concerned about the absence of any linkage in executive order number two to the nationals of these countries. In other words, executive order about thesealks countries, the governments are not well operating, problems are occurring in their own evaluation processes, but what does the executive order two say about the nationals of these countries that make them detrimental to the United States if they are allowed to go through normal channels . Mr. Wall it has got a couple of examples for an Iraqi National and a Somali National and refugees, but this is the key response to which are saying. I think plaintiffs have missed sframed theave mi question. Youre talking about 82 Million People, arent you . It seems to me there has to be some linkage to show that there is a detrimental interest to the United States posed by 82 Million People. There has to be something about those peoples nationality that renders them suspect or renders them dangerous, and i dont see anything in the text of eo2 that does that. Can you point to anything that says, because these people come from this country, they are detrimental to the interest of the United States . Mr. Wall with all respect, two things. One, i think it misframes the question a little bit. The president wasnt suspending the entry of these nationals because he believes they are all terrorists. What he is saying is the Previous Administration and congress designated these countries and took them out of the Visa Waiver Program because of their links to terrorist organizations. Im not sure whether our vetting procedures are sufficient 1182f, if you go back to the language of the statute, says the president has to find that the entry of any class of aliens into the United States would be detrimental. It does not say may be detrimental, would be detrimental to the interest of the United States. So what in the text im looking for it what in the text of executive order number two supports the conclusion that these aliens from these countries, these 82 Million People, would be detrimental to the interests of the United States . Mr. Wall i think what is in there, mostly in section one, is the president said, look, the Previous Administration took nationals and people with connections to these countries, dual nationals, out of the Visa Waiver Program. He walked through, and he said the conditions in these countries have continued to deteriorate, as have some of the relationships with the United States, as in the case of iran and syria. I, therefore, am going to suspend it to look at vetting procedures, and he gave some examples. I think what the president was saying was not, i know that all these people coming in are dangerous. He was saying, i want a brief opportunity, as the previous president had, to assure myself that the procedures we have in place are actually enough and we should not be doing more. In the meantime wasnt there an example from iraq, and iraq is not now included in the second ban . Mr. Wall one was an Iraqi National and one was a Somali National. The president was not saying, i know them all to be dangerous, the president was saying, i not am certain, so i want to put a brief pause, allow individualized waivers that the state department of homeland Homeland Security and tell me there is no threat. Im not sure the statutory language is the president saying im not certain. The statutory language says he would have to find that these nationals would be detrimental to the United States, and it sounds to me like you are saying the president is saying, gee, they may be detrimental. Does it meet the requirement of the statute that the president would have find it would be detrimental . Mr. Wall absolutely. I am not aware of any courts ever secondguessing the president s National Interest determination under 1182f, but what he said, as i find it, it would be detrimental to enter in people from countries we know to be dangerous that have deteriorated over time, until i have had a chance working with my cabinet officials to assess the vetting procedures for those countries. He said it would be detrimental in the face of that uncertainty. That is a reasonable finding, one that an executive branch official could draw. I think there is no question it should survive rational basis review, and that is why plaintiffs have really tried to leverage the domestic establishment clause, saying it is a lemon case, a mccreary case, lets talk about subjective motivations. Even in that context, what mccreary says is we care about official objectives, official acts. What is it the government actors did that shows what this conduct is supposed to be . If there is anything in campaign statements over a 16 months before the executive order was put down dont show, it is the official objective for government conduct, and that is why let me ask you about that. Have we ever known a time of history where you had such definitive, specific statements before, then afterwards, within seven days, a policy or regulation or executive order in which effectively, the effect of it is there, and even if it is later revised, it seems as though the effect is there of the very thing that specifically you say you would do. Have we ever had that kind of situation in history . Mr. Wall there are a handful of cases we point to in our brief have we had that happen in history . That we have had anybody who has ,scended to the presidency where he said muslims are not people we want in this country, and then you enact an executive order within seven days that is declared by courts to be unconstitutional, then you revise it, but the effect, even the statements, as judge king pointed out earlier, you know what this means, this is effectively the same thing. Whether it is the press secretary or whoever. Have we had that in history . Even president reagan and president bush have been more specific. Never the National Policy specific individuals from that country. It was a Government Official that did certain things. Have we had that . , candidatesdge wynn talk about things on the campaign trail all the time. And no, we have not had a lot of litigation over them, because the right Legal Standards here dont allow for inquiries into subjective motivation. We are in uncharted territory. Mr. Wall in the sense the District Court accepted here what i think is unprecedented, which is is set aside a law that is neutral on its face and operations because it performs the type of psychoanalysis that mccreary forecloses. I will give this to you, the we all know what this means, but even there, the president and his advisors for months had been talking about isis and al qaeda, Islamic Terrorist Groups that pose a threat to the nation. When he looked at the title of the order, which is protecting us from foreign terrorist entry, he looked at this and said, we all know what this means. The reasonable reading is not the one the press says. It is that the president was talking about countries and groups that may intend to do us harm. And certainly in the face of ambiguity over what the commander in chief and head of the executive branch meant by an offhand six word statement, this court ought to, i think, take that statement, not at its least reasonable, not at its least permissible, but in a way that it was in accord with what the president and advisers had been talking about for months, which was terrorism. Mr. Wall, over here. I dont think the District Court suggested, as you seem to imply, that he completely ignored National Security currents. As i understand, the District Courts rationale was that it was not going to secondguess National Security concerns, but he found those were secondary to the real purpose of the objective of the president. You may disagree with respect to the application of the lemon test, but if we find that test applies, what is wrong with that analysis . Mr. Wall because i think there are a couple of errors of law that got you there. First, when you have got a law that is neutral on its face and in operation, you cant reach back to campaign statements by people in their capacities as a private can i just ask, what do you mean by neutral in operation . The law has a disparate impact on muslims, so in what sense is it neutral in operation . Usually when we talk about on its face and in operation, we mean on face neutral, but in operation, it has a disparate impact on the group that is alleged to be targeted. So how is this neutral in its operation as the muslims . Im sorry, i did not mean to get you off track. I literally dont know what you mean. Mr. Wall let me see if i can cover both. The law operates to suspend the entry of all nationals of the listed countries, without regard to religion. It would have a disparate impact for countries that are majority muslim, but so would every action we undertake under the immigration laws with respect to those countries. It is not neutral in impact on muslims. It has a disparate impact on muslims. Mr. Wall that has never been when the Supreme Court talked about a religious gerrymander or law that in operation is not permissible, it wasnt talking disparate impact terms, and it could not have been, because actions actions may fall disparately on different religions in a given community. What it was talking about was something that was not a religious gerrymander. In other words not something meant to harm a particular religion, but had just been disguised on its face by some other rationale. That in one disputes its operation, every national of the listed countries, whatever their religion, has to go through exactly the same process when they show up at the consulate. , that has a disparate if the argument is, that has a disparate impact on muslims it would have also if you took the nationals of these countries out of the Visa Waiver Program or designate them as state sponsors of terrorism, which kicks in any number of requirements under the statute. I dont think this court would want to go down the road i mean not a religious gerrymander. That is where the court has been on the is. Is it facially legitimate, and in the domestic context, it is taken with an additional do we have a religious gerrymander, and if we dont, it is ok. What plaintiffs i think want to do is take it an extra step and say, what we care about is the subjective motivations of the people who put this into place, and even if some president or some administration could have done this, this president did it for an impermissible motive. What we are saying is, under mandell or mccreary, i dont think you can get there. It is a bridge too far to do that. Under mccreary, we are supposed to look at the purpose. We are supposed to be the objective observer and find the purpose. That is like the motivation, isnt it . Mr. Wall yes, and i think the is weaves into the answer i was going to get to judge diaz. It is still unofficial objective, which means you cant look at campaign statements, and even if you thought it was wrong about that as a matter of law, you ought to say generally they should not get much weight because you have not taken the oath of office, formed an administration or consulted with them. At least on the facts of this case if you disagreed with me about both of those things you would say the statements were ambiguous. The president clarified over time that what he was talking about were countries and territories that have known links to groups like isis and al qaeda and taken in the light most favorable to the executive , because of our respect for the branch and the presumption of regularity, we are not going to read those statements to say the president was talking about something impermissible. I think you have to reject all three arguments to get where plaintiffs want to go. If the statements were less ambiguous, could you consider them . If the president , as a candidate for the office, had said every day, my first day in office, im going to impose a muslim ban, then in his first day of office he issued a muslim ban. You are not arguing you could not consider his statements of intent as a candidate, are you . Mr. Wall not if you are justifying mccreary and mikuni. Under mandell, Justice Marshall saying, if you take just a peek behind the reasoning the ag gave, they denied this guy because he was a communist and there was evidence that said it. The court said, we are not looking at it, this is rational basis review. Are you saying the president could say that every day as a candidate for a year, i intend to ban muslims. They are bad people. Then the first day in office he does that. You are saying that none of those statements could be considered . We would only be considering the facial legitimacy of the order itself . Mr. Wall obviously, we think you dont need to get into any of that here. Is,hat im trying to get at do you really mean we cant consider all the statements, or does it depend on what gloss you put on the statements and how you view them . I am concerned whether this is a subjective analysis on some peoples part, or whether it is truly objective. Mr. Wall i think, under the Supreme Courts decision in mandel that says you shouldnt look behind, but if you think it has the bad faith exemption, i think the kind of hypothetical you are playing out might rise to that level of clear, strong, affirmative showing that you would say, even though it is the president of the United States and National Security, we will look behind it. At a minimum, what the hypothetical illustrates is how far we are from what we ought to require to do such remarkable thing, to secondguess and to essentially say you need to be very careful, because you are saying that might rise to bad faith, but you are laying the standard that bad faith is in the eyes of the bow holder, so you are cracking that door. You realize you are doing that, which is then a justification to look at what he said, and we not heigh whether or meant it or did not mean it. Keep in mind, it is not just you and i that is talking about it. It is Justice Kennedy in the corral the opinion who brought it up first. Then you and i talk about it. Mr. Wall what i meant to say is we think the door is shut. I thought you just opened it. [laughter] mr. Wall i am not going to, but if you think justices kennedy and Justice Alito cracked open the door, and you think that exception is there, courts never applied it. Interestingly, that concurrence cites the part of mandel, where mandel reserves the part of the question where there is no justification, so it is not clear to me what Justice Kennedy and alito were getting at by bad faith exception. If you think it is there, maybe it is the kind of thing that would get you home. Im going to close the door. Thank you, mr. Wall. [laughter] mr. Wall thank you. Mr. Jadwat. Mr. Jadwat thank you, your honor, and may it please the court. , theel, let me ask you counsel for the government has represented that of the four plaintiffs the District Court found has standing, only one remains, john doe number one, to have standing in their view. Do degree do you agree or disagree with that, and if so, what is the basis for standing for any of the plaintiffs other than number one . Mr. Jadwat to be clear, one plaintiff was standing is enough. John doe 1 i think is the individual plaintiff who has the clearest standing of the plaintiffs, because he is here. He is in the United States. Not just who is by the order, by ,he message the order sends which is a real establishment clause injury. His injury is particularized in a way what about the other three . Where do they stand there . Mr. Jadwat john doe 3 currently has standing because his wife is overseas. She has a visa, but she would, i think, be banned if she came in. Would or wouldnt . Mr. Jadwat sorry, your honor,. In light of the governments most recent representation, i think the government agrees or has represented that she would be let in. So he has standing, but alas a more distant standing because he is still injured by the order. But doesnt have the same particularized connection to the ongoing effect of the order that john doe 1 does, because his wife will be able to come into the country. Who has standing to raise the issue of nonimmigrant visas . If im understanding correctly, of the four plaintiffs, they all dealt with immigrant visas. Is there anybody who has a nonimmigrant visa in the mix . Mr. Jadwat i believe that there of mesa, one of the organizations the District Court only found four folks had standing. It did not address anybody else. Of those four, who is your candidate to raise the nonimmigrant visa issue . Mr. Jadwat i dont believe any of those individual plaintiffs is applying for a nonimmigrant visa on the part of a loved one. The District Courts did the District Courts injunction get to nonimmigrant get to immigrant visas as well as nonimmigrant visas . Mr. Jadwat yes, the establishment law claim is not specific to any visa type. There is no differentiation in the provision that is enjoined of the order that says, we are going to enjoin immigrant visas in one way and nonimmigrant visas in another. I understand that, but my question goes back to who before the court, this court now, of the folks that raised that the District Court found they had standing, if none of them have standing to raise the nonimmigrant visa issue, because none of them have that in a mix, what is the authority to address the nonimmigrant visa . Mr. Jadwat the statutory claim with respect to nonimmigrant visas . Either one of them. If you dont have a plaintiff who raises that as an issue, that is not their skin in the game, so to speak. How does the nonimmigrant visa issue get before the court . Mr. Jadwat to start with the establishment clause, with respect to the establishment clause, the individual plaintiffs in this case and the clients and members of the organizational claimants, they are alleging or actually have put forward evidence that they are injured by the orders suspension of entry. Not only with respect to immigrant visas and nonimmigrant visas, but because it is embodying the message of condemnation to their religion that is the quintessence of an establishment clause violation. Except for the four, the District Court did not pass judgment on any of the other plaintiffs, so it would seem like that, if we were to determine that of the four, they did not have standing, it would have to go back to the District Court to address the standing of all the other plaintiffs in the first instance. Mr. Jadwat but i dont think there is any well maybe just direct yourself to the establishment clause, because your colleague on the other side has topped to us a good bit about valley forge, and why does that doom your establishment clause here . Mr. Jadwat the plaintiffs are nothing like the plaintiffs in valley forge. The plaintiffs in valley forge were complaining about a localized event. It did not involve a combination claim, and the plaintiffs in valley forge did not let any kind of religious injury at all. They did not allege their religious beliefs, their ability to feel like for memories of the community were injured by the Land Transfer that was at essence in valley forge. Most significantly, they had no proximity, either physical or in any other way, to the events that they were complaining about. Proximity, what proximity do your clients have . Three of them are gone, right . I thought in response to my colleagues that you were trying to make the argument that even those people who we have discounted, who we think have some sort of proximity for establishment clause claim and have sufficient proximity to make one come is that what you are saying . Mr. Jadwat yes, but lets start with the plaintiff who has the clearest proximity. John doe one has a very strong particular connection to the order because he is not just a muslim, not just part of the Political Community that is being affected by this order, but his family relations are being impacted by the order in the most direct way. His ability to be with his Family Member is implicated by the order, and so it obviously wasnt an establishment clause case. But it deals specifically with familial relationship. I mean, that is the essence of what they were bringing. Mr. Jadwat in standing it is clear that john doe one is injured by that order, and that injury has the proximity, the particular rise connection to the order that is at hand to take away any of the concerns that the Valley Forge Court had about allowing there seems to be some direct exposure to a plaintiff, they saw the 10 commandments on the courthouse or got a letter from the school board or Something Like that. There seems to be some objective display directly to the plaintiffs of some tangible event that they see and participate in. This seems to be far removed from those cases like surrey and some of the others, so what is your best case that supports your establishment clause claim here . Mr. Jadwat with respect, your honor, this is a more severe and direct injury than the one in cases like surrey. In our case it was called the 10 commandments case. Judge shedd lets shift gears, we will come back to that. I will give you a hypothetical. In this hypothetical, the president has a clear analyst against a religious group. Then it becomes clear to everybody that this is causing a National Security issue to the u. S. May the president act in any way against that group . Four is the president with that it was disqualified from acting imus . Se of that analys president with that operating onlified that risk because of that animus . No, it is not permanently disqualifying in any circumstance. They could take action if there is a National Security risk . I think the president could take action if it appeared to be reasonable, objective of server observer, that his primary purpose was not to if a different candidate had won the election and then issued this order, i gather you would not have any problems with that. A different candidate who did not make the same expressions as President Trump did . Yes, your honor. That case and others teach us that this same act could be cost additional in some circumstances but not in others. My particular question is if some other candidate had won the election, issued this executive order before us, i gather you would have no problem with that. Is that right . Mr. Jadwat i just want to clarify the hypothetical in one sense. I was saying that the candidate issued the order after consulting with agencies, not over the objections that agencies had that it would not serve a National Security purpose . Judge niemeyer set that aside. We have a order on its face. We can read this order. We have a candidate who won the presidency, some candidate other than President Trump, won the presidency and then chose to issue this particular order with whatever counsel he took, whether it is his personal advisor, the secretary of state, whatever, he issued this executive order, do i understand that in that circumstance, the executive order should be honored . Mr. Jadwat yes, your honor, i think in that case it could be constitutional. However, your honor, i think it is important to understand that this order, even taking all of the purpose out of it, judge niemeyer you basically want to set aside the prescription of mandel. Which says that an order such as this, when on its face is on its face is illegitimate because of campaign statements that were made by the candidate for president . Not at all your honor. It seems to follow from that. Are you agreeing that the order is legitimate on his face . Its face . Is it legitimate on his face in your opinion . I dont think so, your honor, the order is completely unprecedented in our nations history. The first order on anything is invalid . No, your honor. There has never been a multicountry ban ordered by the president. Even in the months after 9 11. Judge niemeyer there is no restriction on nonimmigrant visas from these countries. Didnt the Previous Administration issue orders that restricted immigration from these countries, plus iraq . Mr. Jadwat no, your honor, all they did was require people to apply for visas. What about the nonvisa program . The risk of the people that would be coming from these countries, isnt that why they did it . Mr. Jadwat i think the judgment and the brief of the National Security officials goes into this with some official detail. The judgment was that people who were doing nationals dual nationals of these countries your problem with this order is that it is the first of its kind . No, your honor. What about what the order says . Is that facially illegitimate . If you look at the order, the order says that these countries if you ignore the fact that current National Security officials have determined that it does not serve and National Security purpose why dont you stick to the face of the order. You keep bringing in extraneous you keep bringing in extraneous facts. The question is to you, is the face of this order legitimate . If you look at the face, if you look at the interface organizations, if you consider the same sources that were cited in this order, you would come up with a different list of countries, including nonmuslim countries. What is wrong with the face of this order . You keep going off on tangents. What is wrong with the face of this order . Where does it go wrong . In the language of the order . What i am saying is that there is a logical problem with the order. If you try to apply the logic in the order, you would come up with a policy different than in the six countries that are state sponsors of terrorism, that provide havens for terrorism, that are basically not functioning government and some of these countries, they are high risks, people coming from most countries are determined to be high risks, that is what is stated in the order. Youre saying that that it there is something wrong with that . Mr. Jadwat if you apply that reasoning, this is not the list of countries that you come up with. You argue that you one more countries covered . That is what is something youre saying. Mr. Jadwat no, your honor, if this order will legitimate, if it actually did what it said it was doing, it would do something different. Judge keenan that sounds like you are saying that the factual accuracy of the stated reasons matters. Does the factual accuracy matter and to what degree . Is it factually inaccurate that undermines the legitimacy . Or is it a lesser defect and how do we analyze this . I think it would undermine the legitimacy of the order or does undermine the legitimacy of the order that it is factually inconsistent. You are saying that the president has to be correct in order for it to be facially legitimate . Yes, facially. You are saying that it is illegitimate because it is inconsistent because it doesnt include other countries that also fit into this category . Inthat what i understand this . And that some of the countries it does include are not where do you get the information that other countries i like this . I am talking were trying to stick with the order. The order gives reason for National Security and makes observations about six countries, that seem to pose a high risk of National Security to the United States. Why isnt that a reason to support an order to delay for 90 days the issuance of visas until there can be a consistency check. You said that is irrational and inconsistent . I am saying that the orders do not actually support the conclusions of the order. You cant read in the order to tell you that. You just dont want to answer the question as to whether this order, on its face is legitimate. You say it should include other countries. Y him andou say, you say, factsome of the arent accurate. I dont know where you get that from the face of the order. The question, under mandel is whether it is facially legitimate and bona fide. In the week adopted the mandels the standard, you think we win . There is a reason to extend mandel to this context. There is no rule that would instruct the court to apply mandel. What applies . Is it the mccreary test . I think that would apply. That is what i thought. Jadwat thats right, ever those are domestic cases youre talking about. They didnt deal with the establishment cause. It made clear that the people beyond the borders do not have constitutional rights. They made clear that that is the question of sovereignty. They made clear that we are going to accept the congress and the executives application of orders so long as they are bona fide and reasonable. Whatever the language of mandel is. They were directly facing the First Amendment. They were in cases that involved a question about purpose. They werent cases that involved a structural demand. The court rejected a look to the purpose. Facialfrom the language. I think that if there were any question about that, it is answered in Justice Kennedys concurrence. You think we can read the current executive order and say that the order is so inherently inconsistent and so badly motivated that it was issued by the administration with the advice of secretary of state and Homeland Security and the department of National Security in bad faith . Mr. Jadwat no, i think what this court is to do is to determine whether this was issued in bad faith by looking to the evidence in the case. The evidence in this case is far from the best piece of evidence. You are looking at the evidence of what the president said . Your honor. Yes consider that. Jadwat i dont understand why. That is where you all are, you are like ships in the night. The government said it cant be considered what the president said you say that we have to consider that. Absolutely. If we cannot consider what the president said during the campaign, you lose. No, your honor. Could you tell us why . Earlier i asked you if a different candidate had one, it would have been a legitimate order. You are saying what is making it illegitimate is the statement of President Trump and his intentions. Is that right right . Mr. Jadwat no, your honor. There are the statements of President Trump and the third is other facts that are in the record that are not statements. One example of that would be what i have been faulted for mentioning several times. The fact that intelligence agencies said that this order would not reduce terrorism in the United States. There is the fact that who makes the National Security determination in this case . Mr. Jadwat sorry . Judge shedd who makes the National Security determination in this case . Who makes that determination . Mr. Jadwat i dont think that is the determination that needs to be made. It is the question im asking you. I want you to answer it. I want to be clear is what is the purpose of the order. Judge shedd i did not ask you that. Ultimately, the court has to make all of the determinations that decide the case, your honor. Youre saying that the president of the United States makes a National Security determination . Of course, the president of the United States does make National Security determinations. It was not about who is president and who is not president , it is what happened and this particular case. When you look at mandel and you take it out of the facial part, when you consider that that is a plurality opinion which Justice Kennedy and Justice Alito made it is a showing of bad faith. It goes back to the question, is that bad faith . What we have on this phase, we do have statements of the president on the campaign. We have statements after the campaign. The question is that enough . We can get into the business of whether or not we are spatially there. Just saying it alone and having it alone and having what has already been established, it cannot be sufficient. You can do anything in this country. This is not the first time in history that this has been tried. I think that the implication my followup question is going to be is if the president that makes this decision . Your argument is that he is tainted by animus, his harsh feeling toward muslims . Do you think that hate goes toward the attorney general, the Homeland Security director andy secretary of state . No, your honor. I think if you look at the case. The attorney general and the director of Homeland Security gave a basis for the order. No , your honor. They most certainly did. I think what this case shows the sequence of the First Executive order the way that the second executive order was said to relate to the executive order is that the policy which is at the center of the case the first question that i asked you was, does it continue all the way through . If the attorney general and the director of Homeland Security theecretary say to president that the current immigration policies place the country at a heightened risk of terrorist activity and it is imperative that we have a temporary pause and that is finishing the risk, why doesnt that that override any taint . If the question is what was the purpose of this policy . The policy was decided on while before that letter was ever signed. It was signed at the same day that the second policy was released. It could have been taken into account. You dont think people talk before they send a formal letter . Mr. Jadwat it is not in the record, your honor. Judge shedd you think the implication is supposed to be that the president didnt know that thought before he got the letter . Is that what you would have us believe . No, your honor, i would have you believe that the policy was decided on well before any consultation happened. If we take out of the campaign statements, lets say we disagree with you on that. If we excised his statements that you contend demonstrate animist before taking his oath of office, there is preelection and postelection. Before taking the oath of office. Office, he said when he was signing he said we all know what that means. He has also continued to publish on his website, his statement calling for a total and complete ban on muslims entering the United States. How about his Campaign Website . Not the white house website. He does update it almost daily. Could he have removed it . Of course he could have. Not only has he not removed that statement from the website but he hasnt taken any other action to repudiate. Is it still there today, was it there yesterday . It was there in the last week or two. We are going to look at the taint, at this person who signed the order has. Can we look at his College Speeches . What about his speeches to businessmen 20 years ago . Are we going to look at those too . No, your honor. Were not giving you any of that evidence in this case. Ist we are looking at here statements he made i know that. Perhaps he made it to a Business Club in new york. Those would have been much less probative then the statement he made in the last two years. You are trying to figure out motive and intent and he said he mustve been muslims and the time he says for clarification i am talking about the terrorists and the people from isis and al qaeda. Which one are we going to use . Respectfully, your honor, that is not what he said. What he said is that islam hates us. What he said is that we have a problem with muslims in the United States. He never mentioned muslim extremists or terrorists . Sure. Your honor, what he said was muslims. Tto ban i think i interrupted you when you were answering trying to enter just came in answer judge keenans question. To start from the fact that he has been republishing or publishing this statement call for banning muslims. Makes statements about banning muslims in general. The fact that he made that statement when he signed the order, saying we all know what that means. Respectfully, your honor, we all know what that means what was he referring to when he said that . He read the title of the order and then he said, we all know what that means. What is the title of the order . Protecting the United States from foreign terrorist entry. If it meant that, there would have been no need to say we all know what that means, your honor. Then i think there is the fact get to your best evidence. Whatever it is. [laughter] then there isd the fact that he put his order into place without consulting the agencies that actually have expertise and knowledge in this area. Judge shedd so, he offended the bureaucracy . That is the constitutional crisis that he didnt consult with the bureaucracy . I bet a lot of the bureaucracy is going to resist. A president is not required to talk to bureaucracy. Mr. Jadwat i think the fact that he did it is relevant here. The fact that he did it is relevant to the question of whether his purpose was a stated one. Judge shedd i want to talk to you about Public Interest. The District Court said this. There are heightened Security Risks. They said that it did not want to secondguess the conclusion that National Security interests would be served by the travel ban. With those statements, this district judge was no fan of the order. He made two statements. He dealt with what i asked you about. The statement from the attorney general. When they say that is a problem we need a pause, that would diminish the risk. Should that be done with dealt with . In what is in the Public Interest, whether you deny an although people may have had their rights infringed upon. They would be stressful about it for 90 days versus the high Security Risk . Shouldnt that be considered in the conversation . The winner case is that Public Interest alone can justify denying an injunction. Mr. Jadwat your honor, i need to disagree with your characterization of the injuries suffered by the plaintiffs. I was trying to cap slate that. Encapsulate that. It is an extraordinary injury. 90ge shedd for a period of fact iight of the am not saying that you have to agree with any of that. Im asking did the District Court talk about that the way you and i are talking about it . Mr. Jadwat no, your honor. The District Court has a constitutional violation. I want to point out that the violation the injury is severe. It is constitutional. Judge shedd i will give you that. Mr. Jadwat i also want to point out that the government had the opportunity not just in the District Court but also in its application where it said it needed the extraordinary emergency relief of the state planning appeal to put an something. Some piece of evidence. They put an statements in statements from the attorney general. They were outlined just what i said. Outlining just what i said. Is that in the record . That statement signed by the attorney general echoes the order. It doesnt provide any additional facts or evidence that we suggest that Public Interest is being served. Is the president and executive branch not entitled to some difference . We give it to congress, we presume that the secretary cabinet level people are not entitled to any deference on their conclusions . It cant violate the establishment clause. On the question of risk, can we rely on their assertions . I dont read those letters that say there is a severe risk that would come from joining the order. Judge shedd no but it said the underlying current immigration policies placed the country at a heightened risk of terrorist activity. We have great cause that will immediately diminish this. That is what they said in the letter. There is a great risk, a temporary pause. The temporary pause will diminish that. That is what they presented. Are they not entitled to any deference . Mr. Jadwat they are entitled to deference. Judge shedd why would that be considered outside the the Public Interest . Mr. Jadwat think it lies in allowing a constitutional violation to continue. You have to talk about the interest on the other side. You cant just say that i will meet this conclusion. Talk about them seriously. I dont think there is enough on the other side to weigh against the fact that the District Court found a clear violation of the establishment cause. I think the approach to deference that would allow us to sweep aside all of the facts that show the president s badfaith purpose here to target a religion for condemnation, to denigrate bane shedd how does the affect muslims . Muslims, howo ban percentage of muslims are affected by that ban . A significant percentage. Less than 10 worldwide . I dont have the number. Well over 90 i dont have the number. Well over 90 of the people affected are muslim. There are close to 2 billion muslims. What if you take my word for it that people affected by the ban less than 10 of all muslims, you think that is an effective ban on all muslims by the president . He said he wants to ban all muslims. How long does the taint last with respect to this administration . Mr. Jadwat it will have to come up with some kind of test. I think that with respect to this order, the analysis set forth shows that this violent order violates the establishment clause. What happens 60 or 90 days down the road . In this administration and its attempt to protect terrorists. Mr. Jadwat i think that the administration does things all the time, every day to change immigration policy to affect National Security. What about the heightened the vetting in these six countries . They require more information. More support for visas. Will that not be tainted because the president doesnt like muslims . Mr. Jadwat i think the question would be looking at the specific set im giving you hypotheticals. The hypothetical is after the investigation, they step up the vetting practices. The thoroughness of the investigation. Could those investigations challenge that increased scrutiny as violating the establishment clause . It is not a ban. Stick with the hypothetical. Mr. Jadwat yes, your honor. It depends on how the betting would operate vetting would operate. Judge niemeyer it is a lot more scrutiny. Based on the investigation conducted, the question is just as the order appears ok on its face, is the motive behind it, the taint, that causes the problem for you . That would also have to go to implication of the order. We have to spend more money and effort to get into the United States. Establismentthe clause. Your honor. No that is not what they are saying. What if he repudiated them all . Mr. Jadwat i think that would be significant. I dont know whether it would change the result at all. Does that change the result . I think a simple repudiation would not change the result. What if he says he is sorry every day for a year . [laughter] would that do it for you . If he said i repudiate that, you would say too bad . What the establishment clause prohibits is targeting and at arating a religion, minimum. That is what it is. When reasonable people see what he is doing in total as achieving that effect . Youre saying that he doesnt mean it when he says he is sorry . I think it is possible that saying sorry is not enough. That is true in a lot of circumstances. Let me ask you about what the judge action is here. Thissued a ban to impose suspension. There is a twofold purpose here. It is going to help the country. 90 days is not forever. It is going to be a study. We are going to look at it to see if we can get some rules. What is preventing the government from doing that . Even as we go right now . Had he prevents the president how do you prevent the president from conducting a study outside of the 90 days that seem to be consuming us about this 90 day ban. That is just three months. We dont want a country that is going to be safe for 90 days. We want a country that is going to be safe for years and years in the future. There is a whole business of reports and things being done. I dont understand how the president can be prohibited from doing those ongoing things, whether it is to be with travel bans. Even though this is before us, how is that possible . Mr. Jadwat right, your honor, and obviously, there is nothing in the order that would prevent the government from presenting that. They say that they are under a court order not to do any of the studies. I dont completely understand the governments position. I understand the government to be saying that they cant do this with respect to the six countries but with other countries in the world, they can. The president and his team have found these countries to present the highest National Security risk. If there is a worldwide review of all vetting procedures. I dont know how the government arrives at its conclusion. What is before us is 90 days suspension. I mean, i know theres a nationwide ban from hawaii. Maybe there is an effect that can come from this. If we say that there is nothing wrong with that, you can do all of that other stuff. You can give reports. Does hawaii courts really do that . I dont understand that. I think that is ultimately a question that is outside of my you understand that the hawaii order says that you cant do it. Maybe going to jail in hawaii is nice. [laughter] there are other provisions. They have been doing what they are supposed to do. I think the question about the ongoing impact of the white hawaii order will be clarified in the hawaii litigation. Do you have any problem with the government that conducted the studies . No. They can study for all the things they want to do. Even if the hawaii court has a problem with it, you dont have a problem with it in terms of them doing Everything Else in this order. It is the 90 days were talking about . Yes, we have a problem with the ban in section six as well. With respect to the study, we have no problem with the government proceeding with those studies. The government had all of the time under the first order to complete that study that was required in the first order. They didnt do it. The notion those studies came forth with some compelling information, maybe even a bona fide reason, your case would be weaker from your perspective. That would change the analysis if there were facts like that in the record. There is not. If those studies came forward with some information suggesting that this is a good idea to do this, what trump said or have the active, that doesnt matter to you anymore . No, your honor. And i think mccleary makes this clear. Those statements dont disappear in the analysis but they their significance changes. Would you change your significance . If they said we got the study and suggest that this is a good idea, either we can use it or not, we want to make this clear, we dont want to use this anymore . There is no taint, the order is fine . You wouldnt say that. They said that you cant have the exact same action you could have something constitutional under one set setacts that under another of facts would become unconstitutional. I was asking him if he agrees with Justice Souter in this case . I dont think he knows what the additional facts are. Im trying to tell him. This type of approach makes sense from the studies. To bring it back, my understanding is what the studies may or may not say. Judge niemeyer do you know what you have us doing . We are a court of a third branch. You have the judiciary and all of the various judges in this country supervising and assessing how the executive is carrying out his office in the National Security and the siding when taints are faded. Who they are carried on to. Dont we have some respect for the first branch and the Second Branch like mandell said . In the area of immigration . That is the greatest deference we owe to congruess and the president. We are not asking you to superintend every if he says sorry with sincerity, maybe it goes away. If it is without sincerity, were not going to do it . Because of the nature, the nature of any factual increase, it will turn on the back before the court. That is a decision. Judge niemeyer mandell excluded purpose. Looking facially at the order, the order said, in the interest of National Security, based on the fact that the six countries sponsor terrorism, provide havens for terrorism, we dont even have consulate operations in some of the countries. These countries, because of the higher risk, we want 90 days to study the issue. That on his face, establishes religion. Mr. Jadwat respectfully, the approach you are taking weeds out of the problem. It is not consistent with the law. It would be to the point that the government wants to lead you at. The president could say tomorrow i dislike jews, i dont want them in the country. Issue an executive order banning israelis from the United States and say that it is because if you are right about the order in this case, i dont know where it stops because hereafter, if we all of a sudden increase the vetting in some of these countries where we sponsor terrorists, the argument will be the same one. A wife that wants to come to this country and is delayed will say that this was because i muslim, not because of the National Security. We will have the same debate, we will second question the base of the order. I dont know where it ends. We have to function in our three branches and get some respect to each branch. Mr. Jadwat your honor, im not sure where it ands the question is where it starts at all. The president is not allowed to violate the establishment clause by invoking a National Security reason the matter how potential it may appear to be. That is what is happening here. You dont have to address the question. The remedy would be that we have a different take on immigration policies because this isnt acceptable, is that it . Who would decide what that is . Mr. Jadwat the president would and so would congress. Judge shedd he tried to decided with a 90 day event. He thought that was in the interest of the country. They support him. You say there is more to it. If the president is faced with a National Security risk, he doesnt take any steps to avoid it, then somebody who comes through that light betting or light vetting or whatever want to call it and create a disaster and takes american lives, it is on the president. If he tries and stops this and something happens, some person falls through that and they are from countries that are just total chaos. If something happens, who is responsible for that . Who is responsible for that . The person who does it is responsible for that. Im talking about setting policy. The president is not allowed to set a policy that violates the establishment clause. It is not this court possible for invalidating the attorney general says there is a risk. Im trying to do something about it. Because a taint that we read to get to the motivation we say that cant be done. I started by asking can the president do anything . Just because we pause things for 90 days, who is responsible . It has been more than 90 days. Who is responsible . They with the to the president and he was say that you didnt do what you should have done to take care of us and he would go i tried to. Who is responsible . I think this is a good place to end. If we follow that line of reasoning, would we think differently . Can we follow that reason . What if we dont lock them up and something bad happens . If we follow that, does that fall in every other thing we do . I think we have to defer when the president says what he will do. Is a notion that the president would able to bar that, what would be the rationale for that . Government if the fear he theory, it is a wants you to adopt. Rather than the secondbest argument. The government says that as long as the government would agree if the president says i want to bar jews because i think that judaism is an evil religion lets say. Then he ordered israelis not allowed in the United States, i note that terrorist attacks are taking place in israel and they have infiltrated the state of israel on occasion, that order would be facially legitimate and bona fide. On the government postulating. They weed out the bona fide problem. The face of this order has more than that. One country and one justification. It is not very different. There is one paragraph for each country. Three lines in this order. They say the same thing. There are terrorists in this country. There are problems in this country. That is enough on the government theory. Then fact it was predecessor administration that make that determination. No. They are addressing any National Security concerns. This is not something of this current administrations imagination. I dont think that the determination made by the Previous Administration about these countries they both touch on or address the same list of countries. There are different determinations. The Previous Administration found a risk in these seven countries. As does this administration. At this point, the fact that there is a heightened risk is legitimate. It is bona fide. At least under your standard , because you are saying if somebody else issued this order it would be alright. To come back to the hypothetical i was trying to play out. They could point to some determination made by Previous Administrations that terrorist attacks had happened in israel and that terrorists had infiltrated the country. There is a whole list of countries in that state department report. Many are nonmuslim countries that have some history of terrorism and some concern about them being safe havens. In the governments view they didnt have to do that, all they had to say was im doing this for National Security reasons. I have good National Security reasons, that is it. Notwithstanding and without regard to how clear this was. How clear the effort to denigrate a religion might have been. That was say as far as the present goes, it would establish clause of the meeting. Establish the clause has no meaning. Do you want to start with the hypothetical . I think that if the president came in and had a law that was neutral on its face of operation ended and operate on the basis of religion, i dont think he is right. Ud rg has anhe president and he hadnst jews then ond that publicly, the face of this order, there is also some justification that we are excluding jews from this country. Does that present a violation . If he puts forth a rationale not connected to religion and that was supported by the order that was sufficient to i dont want to press this too far. The qualifier at the end is very important. We can imagine that the president would do things in a official capacity. We can imagine he would say or do things that would bear on the order. Here, we have one six word remark as he signed a statement looking at the title. I think the court doesnt need to press at that line here. Just three very brief things. You say that we cant look whether they say it or not. Surviveso establish a basis review, mandel says you dont look behind except as john on its face, it is legitimate. And you read out bona fide cut means the same thing. No. This court said in a johnson case, looking at a statute that was alleged to a quick reference on the basis of illegitimacy. The court said we look at the facial legitimacy of the executive branchs rationale. Then we look at whether there is a relationship to the conduct. And it survives that, that is mandel. We wont ask if they kept him out because he is a communist. They could have kept mandel out. Before we leave mandel, can i ask one last question on this . There is that other line of cases. The court says, it must be exercised in a way consistent with the constitution. We do have to apply the constitution. If the constitutional doctrine imposes this test, we have one cases and then you have to apply the constitution. Then we have your reading of mandel that says we may not look at purpose. The constitutional role is that we cannot work with this purpose. This is all resolved very elegantly by the bona fide qualification in mandel. When the constitutional rule that we are told to apply by cases like this good news, mandel allows for a purpose inquiry under the bona fide formulation as construed in the controlling concurrence. What is wrong with my elegant solution . [laughter] mandel has always been thought to apply to constitutional challenges, the denial of entry of aliens at the border where no constitutional rights. There are some aliens that have some rights under the statute of the constitution. We no longer think that it is just mandel. It can be something more. We are not saying the constitution doesnt apply. We are saying it applies under mandel. President is operating at the height of his power. It doesnt get anything more. I thought that the through line was it is neither the president nor congress that can do it because of some negative part of the constitution. It is not a youngstown question at all. I dont understand what it means to say that word. No one is arguing about this. It is saying that where the president is acting at the border to protect to protect our nations security, because he is acting at the height of his power, what the constitution requires is lower than what it requires in other contexts. It requires facial legitimacy and a bona fide reason. The court goes on to say that you dont look behind when you inquire into subjective motivation. You look at why the ag kept him out. What it had to mean by that is this rational basis review. When counsel says other president s could have done this, i think he is conceding it survive rational basis review. Reasonable government access could have done this. We are all down to the statements and it is a question of the statement. Even if you disagree with all of our arguments, theyre just not enough here to overcome a formal National Security judgment of the president. The earlier question. The john doe one and three and two are seeking immigrant visas. Only john doe one has a live claim. He does not have article freestanding or credential freestanding. Last individual seeking nonimmigrant visa, was that one of the four the court found standing . Mr. Wall the District Court did not rely on the fourth. As he told the District Court of the hearing, his spouse received the visa so the District Court did not rely on paul harrison. They relied on the three does. One doe, it will be years. I dont think the plaintiff should be relying on her. John doe threes wife has gotten a visa and she can travel. Only john doe one has a live claim. Even if you disagree, the court has the narrow the injunction to the alleged injuries of john doe one. A global injunction resting on one. This court was clear that where you have a plaintiff, no matter the nature or constitutional claim, if you find the claim on the merits, they all give in injunction to address their injuries. We have that with john doe one and his wife. It is not an injury that extends to everyone else in the country and everyone else at the borders. Let me ask you about the numerical sweep. One of the things that is bothering me a little bit i gave you a number earlier. About 200 Million People who are caught in this net when you add up the population of the six countries. We have a few examples of terrorist activity in the executive order, but not attributed to the national, to any of these 200 Million People. Does that affect the legitimacy of the order when it has such an enormous sweep of 200 Million People . Just isolated examples that do not involve these 200 million . Mr. Wall i dont think i was very clear. If you look at section 1d through f of the order, it is focused on the government of these countries. The president says in these pages, the countries governments are not, he says, im not sure they are giving us reliable information so i am not sure if i could screen out nationalists that may want to do was harm. It is not focused on the National Source as it is the governments of these countries in relationship with them and whether we are getting reliable information in order to be able to screen their nationals. If you focus on those sections, that is really the basis for the order. I think it is clearly enough to trigger the president s determination under 1182f. All the left with is their constitutional claim. That is what it all boils down to. I think for all the reasons i have given, they should not prevail on that but even if they did, we would be looking at a narrow injunction tailored to these plaintiffs that has caused irreparable injury. The last thing, if i could say this, the order before this court has been the subject of a heated and passionate political debate, but the precedent set by this case for this courts role in reviewing the president s power at the borders will long transcend this debate and this order and this constitutional moment. In cases like this one, which is such intense feelings on both sides, we would respectfully submit it is all the more important to apply the usual rules and interpretation and injunctive relief. We respectfully cement that that debate should be where it belongs in the political arena and this injunction should be vacated. Thank you. Thank you, mr. Wall. Thank you, counsel. I will ask to adjourn the court for the day. Please rise and remain standing. This Honorable Court stays adjourned until tomorrow morning. The legal challenges to the travel ban continued next week when the ninth Circuit Court of appeals hears oral argument. The court is considering an appeal by ruling by judge in hawaii that block the executive order from being implemented. We have live coverage he