Good morning. Push the microphone down. Over to the left some. Ok, good morning. And judge gould. Sittingleasure to be here with my colleagues, judge hawkins my rights, another judge of my left. All of us extend the welcome to the distinguished lawyers here to argue their cases. Also, to her serve observers. Number 14, three 5958, is submitted on briefs also the calvert case, number 15 35 465, is submitted on briefs. The first case for oral arguments today is the state of hawaii versus trump. Thats 17 15589. That case is set for 30 minutes per side. Please watch your time and try to sum up when the timer is yellow. Try to stop when it is red. Add, thei will also court is very well aware of the importance of this case. Amicuser parties and parties as well well add extra time if one of you feels you need it. Either of my colleagues have questions, once time is up, we will go forward. Any further internet i will also told the group, after that first cases is argued there will be a recess we will exit the courtroom. After that, we will continue with the other cases. To the state of hawaii versus trump. Solicitor general walt may now proceed. Judge gould, may it please both the constitution and acts of Congress Give the president of the United StatesBroad Authority to prevent aliens abroad from entering this country when he deems it in the nations interest. This global injunction restricting that authority cannot stand for three reasons. The District Court applied the standard,ng legal constitutional challenges to the exclusion of aliens abroad or govern my bendels deferential rational basis test in section two sees temporary clause on sex countries that shelter or sponsor terrorism readily satisfies the test. What is the difference mandell, ifbetween there is a dim bad faith exception, and they limit purpose test . Justice kennedy and alito indicated that whatever the scope of that exception no court has ever defined to find bad faith you are talking about a counselor officer there, justice Kennedy Alito said you have to have an affirmative showing of bad faith. If thats really require for a oneoff discretionary decision by consular officer, you ought to require the strongest, where you areng, talking about the president of the United States in multiple members of his cabinet, whose motives have not been impeded. Whatever the bad faith exception executive branch in multiple members of the cabinet acted pretextual he. We do want to require the strongest showing for that sort of a remarkable holding. I just dont think plaintiffs have put together the kind of record there is a bad faith exception. This court read Justice Kennedys concurrence to be controlling theres a bad faith exception. Obviously didnt find bad faith there. Under this courts case law yes. So i understand your position, onlye men exception applies to individual visa denials . No not at all. Think it applies to the same. As mandell, which is to say, challenges to the exclusion of aliens abroad. Whether those exclusion are in congress or the president , statute, ordinance second of order, mandell has always governed those types of challenges. The difference between these different types of inquiries theres the wires that we have a affirmative showing of bad faith. In this context about to be a high one so it isnt just a wide into subjective motivation. If we could quote that the District Court applied the wrong standard, your governments position as it should be manned up, correct . Correct. Should we send it back to the District Court to apply it command to see of plaintiffs can make out an affirmative case of bad faith . You could send it back, but i we have a record, we know what the statements were. Think this court is is wellplaced as a District Court to look at those statements against determined in the absence of testimony or credibility determinations are those enough to get us bad faith under them it would be the same inquiry that the district has in this court there is no case like this is there . No one has ever attempted to set aside a law that is neutralize face in operation on the basis of largely campaign trail comments made by private citizen running for office. But when i read mandell its dealing with specific applications, standards to a specific visa denial. Thats not what we have here at all. Validity test to just a discretionary denial of the account laura. The for the reasons the members of the escape the rehearing stage in the washington case, it wouldnt make much sense to say that a single officer overseas and 90 gets more difference than the president the united its in making a formal National Security determination the executive orders of run order. We are not dealing with a oneoff. It is a policy, does music and murders do. Itll deal of oneoff denials and i dont know that its a broad policy. Congress in the previous executive designated countries as those that sponsor or shelter terrorist. How many nationals to out of those countries . A large number. Whatever the number that cant stash but cant obtain waivers, we dont know yet. We havent been able to implement the order. Remade bynt is, this the Previous Administration stash it took individuals with connections to this countrys out of the visa waiver program. As a matter of policy im not sure if that is enough. Im going to put it brief pause while i work at the vetting procedures for those nations. Subject to an individualized labor process. It is a difference in degree, but i dont think it is a difference in kind from with the Previous Administration did. Can we step back a little bit . You start by challenging the standing. Is that still a core argument . We have made the arguments in our briefs. The easiest way to boil it down is we argued extensively in the District Court about whether they had article three injury and prudential standing. If you look at the case, this court said correctly the denial of entry is generally not reviewable because those aliens dont have any constitutional right. U. S. Citizens can attempt to argue that those Constitutional Rights the problem is a light doesnt have any rights to claim hawaii doesnt have any rights to claim the establishment of the duke e process clause the due process clause. He is raising his own due process clause right. If you think he has article free injury, he can raise his claim. The problem is it fails on the merit because he doesnt have a particular liberty interest. How can he evaluate his claim in light of our holding . Grexit doesnt take any issue with the general rule that where you are claiming alleged discrimination on some basis like religion, only the victims or punitive targets of discrimination have standing the challenges. This order aimed at aliens abroad the doctor doesnt have an establishment clause right to raise. His argument is that go ahead. His argument is this is a man against members of an inherent islamic faith. And this policy in the same way individual residents of San Francisco county will disparaged about this resolution, saying that the cardinal of that diocese was acting in a terrible way by refusing to refer a doctor these the same couples. What is the difference . Two key differences. That was explicitly religious speech. This is not. And in operation doesnt establish on the basis of religion. And that explicitly religious message was directed at the committee of which the plaintiffs were a member. This deal operates with respect aliens abroad. They say it sends a message to all muslims in america. And the problem they have with that is if you can take government conduct and reframe it as a message directed generally to all people aware of the government conduct, you both overturned cases like valley forge and rivas rated this is at least two bridges be the Catholic League case. It is direct to him, isnt it . The suspension of entry is on the nationalistic countries. How does his motherinlaw fit into this . His motherinlaw is you can apply for a waiver houses that affected his injury or harm . Grexit think his claims are on. If you disagreed with us on that and found that he had standing, then you turn to the merit. He that is not properly before the court. He is raising his own due process claim because no court has extended the right to inlaws. One of the process he wants, this gives it to him and his motherinlaw because there is no doubt while she receives a waiver, let the reason for that would be. It is on the face of the order itself. There is nothing motor nothing more we can tell you. This is a categorical policy. Theres no process we can give them the do anything to inform them with the reason is. I think what they are really raising as a substantive challenge, but they have two problems. They cant make up the cant make up a case on the establishment side. She is not seeking an with 1152,isa, correct . 41183 . And the doctor is not the sponsor, correct . I believe its his wife that is the sponsor. Issue the plaintiff . Isissue the plaintiff . She the plaintiff . No, i believe she is not. 1182 replies to venturing to entry. Nothing was 1182 limits in any way 1182 north could it, it would raise serious constitutions. If it were to disable the president from suspending nationals from a particular country if he got actionable intelligence that someone was attempting to bring a dirty bomb into the country, so really what were down to is the question are we required to issue immigrant visas to 30 of people who are on his word want immigrant visas, even though once they arrive at the borders, we can keep them from entering under 1182 f its a practical effect implementation of the palms were panel cover you want to phrase it precludes relief under 1152. The state department has always implemented inventions under 1182 f by denying visas, because otherwise you would be letting people come to the country with visas as a travel document and once they got here, the borders you would be turning them away. The state department has never read 1182 or 1152 to require harshind of frivolous and exercise. We told the Fourth Circuit the same thing i will say to you. If you agree with them on the most would1152, at be an injunction against the government that would require us to issue immigrant visas to people want to come here, even though once they arrived, we can keep them from entering under 1182 f. We think that system would make sense. Like tom thanks at the airport. Thats right. Thats why the state department has always said when you are denied a visa under 1152, its only because you were validly suspended under 1182 f, its not a nationalitybased a distinction. If you disagree with us on that, it would be the basis for a different injunction. One i think would be practically fruitless and harsh. But that would be the result. Another theres any way you can read 1152 to limit the president s suspension of entry power under 1182 u. S. , so want to make that move, theres no basis for the injunction. You have to read them together. You are dealing with the process. Them isay to reconcile the way the state department has, which is to say 1152 governance the issue of immigrant visas all the time in lots of other contexts. Have 1182 suspension, we not denying you on the basis of nationality, we are denying you because you have been validly suspended. If you thought they conflicted, i would still say 1182 f as a. Ore specific would trump you were talking about the president making a specific finding with respect to these categories of aliens and then suspending their entry. 1152 is more recent. Congress passed that one in 65. They have to get past be presented of implied repeal. Repeal at implied why is that implied repeal . And its pretty clear that when congress was doing was getting rid of the previous nationality quotas on immigrant visas. It wasnt doing anything to limit the president s suspension power. If youwant to point out, really take the argument seriously, i think they are committed to the view that under 11 it is u. S. , even if the president got actionable intelligence tomorrow that a Libyan National were attempting to enter the country with the president didnt know his identity to commit some terrorist attack, they would say the president can suspend entry of a Libyan Nationals, because thats a nationalitybased distinction. It would raise serious constitutional concerns and courts have never been able to not reconcile them. Here, themerits executive order sets out National Security justifications, but how is the aurt to know if in fact it is muslim ban in the guise of National Security justifications . Nub ofink that is the the case, and that is mandel. In mandel, Justice Marshall has a sense that if you will take the briefest peek behind the reason the attorney general has given, you will see that is not really why they denied it. They really denied him because he was a communist and he wanted to come in and give lectures on communism. In the court said we are not would look behind, we are not articulate in any of that evidence, this is rational basis review. Is it a legitimate purpose on its face and is it bona fide, visit their a rational religion to what the governor has done. The government has done. The court has said mandel is a National Basis review. I think the benefit of that standard is the court recognized in mandel is it doesnt call on courts to make these sorts of determinations, the secondguessing of National Security determinations if they are illequipped to do it. What thelipside is plaintiffs want in the washington case. They asked for every year of discovery and up to 30 depositions of white house official to find out exactly what was in the heads and what were the motives of the people framing the ceo, and thats the road that in mandel the Supreme Court clearly said it was not going to go down, subject to the narrow badfaith exception where you got an affirmative showing of bad faith, and here you would need official capacity statements that are unequivocal, postinauguration to show the president and members of his cabinet were acting in bad faith i just dont think they can make that kind of a remarkable showing here. Ask the same question that my friend robert king asked you a week ago, has the president ever disavowed his campaign statements . Has he ever stood up and said i said before i want to ban all members of the islamic faith from entering United States of america, and i was wrong . I consulted with lawyers, im now addressing it simply to security needs. As he ever said anything approaching that . Yes, he has said several things approaching that i think is detailed in various amicus briefs. The best is the Southeastern Legal Foundation brief a la part three walks through the comments and shows that over time, the president clarified that what he was talking about were Islamic Terrorist Groups and the countries that shelter response he and, and over time, his advisers clarify the what he was focused on were groups like isis and al qaeda. The one postinauguration statement theyve got, and we all know what that means, i would encourage the court to go back and look at the ceremony in which the president signed that executive order. One . E second that the first one. What about the statements were his surrogates have said the president is simply carrying out his Campaign Promises on this issue . Access true. During the campaign he clarified what he was talking about were territories and countries that congress and the Previous Administration had determined were dangerous. And what he wanted to do was increase the vetting procedures, and thats what he said three minutes before he signed the first order standing there next to the newly sworn in secretary matus. It sounds like you argue that our approach to the statements should be an abuse of discretion review. If you could read the statements, good or bad, we should defer to the good. The value of the mandel standard that you dont look. That courts dont turn engaging in this. But if you do, for the reasons we said, we think as a matter of law, you shouldnt. If the court were taking them all into account, not just postinauguration official capacity statements, but the campaign trail stuff, we would still say look, the president clarified over time and in the face of ambiguity about that, but respect for court and a branch and the presumption of regularity would require not reading them as the District Court here it in the way most hostile and least favorable to the president. We did receive a number of briefs in this case, a number of amicus briefs and judge hawkins question reminds me of something that caught my eye in one of the briefs, the korematsu center. With the core executive order pass muster under your test today . Why not . Facially legitimate is all you say. I want to be very clear about this, this case is not korematsu, and it were, i wouldnt be standing here and the United States would not be defending it. When counsel said below at page 116 of the simple little excerpt of record, we will concede that in order like this might well be constitutional in other contexts , where you didnt have statements like this that they were attributing impermissible motive. I think you know right then you are not anywhere approaching korematsu. I cannot imagine that any court applysay how you facially legitimate standard to executive order like that . There was no reference to japanese in that executive order and look what happened . Im not familiar with all the ins and outs of that executive order and i cant imagine the courts would say it survived the mandel standard. But i think counsel here has endlessly recognized below that of some other president had done this without these statements, this executive order would almost certainly be constitutional and than what they are left with are the statements and they are saying all right, look great on its face, if neutral. It does not write on the basis of religion, but we think the president made clear over time why he was really doing it, and you should look behind it. I think thats a very different situation from korematsu and all that they pointed to a single case either under mandel or even others is a we have a law that doesnt distinguish or expressively explicitly religious, but we are still going to set aside based on what we leave to of the subjective motivations of the president or the advisors who adopted and crafted the policy. Thats a really remarkable holding. Determinationt under jen the same thing as a purpose determination under lemon . I think its a little different in the sense that judge hawkins, its one sentence of dicta in the Justice Kennedy concurrence, so i dont want to read too much into it. No court has ever applied it to actually find bad faith. What he has in mind there is pretext. He cites the portion of mandel with the Court Reserves the questionable of what would happen if the executive forward no justification all. He has in mind is when the Council Roster gives you no reason or gives you a reason that is obviously untrue on its face, a pretext sort of finding, i think this different from purpose. To say that the president and three members of his cabinet adoptingbad faith by an order and saying on the face of the order that it is for National Security purposes when its not, i think to go down that road you would need the strongest and clearest showing of bad faith. General wall, i would appreciate hearing a little more on the governments view on the statutory side of the case. Specifically, what i have in 1182, theres a need to find the entry would be detrimental to the United States. Question whether there is an adequate finding of detriment tally to justify keeping everybody from a particular company out of the country, from a particular country out of the country. Making it question on a National Origin ban, because that seems to conflict with the 1985 statute, although that was limited to immigrant visas. If you could touch on those issues, i would appreciate it. Question, thet Fourth Circuit had a number of questions about this, the president in sections one d and e and f of the order makes clear that what he is concerned about are two things. One, the ties between terrorist groups and the six countries that were listed by congress in the Previous Administration, and the concern that the governments of those countries and the deteriorating conditions in cases like iran and syria may mean are not getting reliable information. What the president found was he said look, i find it would be detrimental to let in their od of 90s for brief peri days while i ascertain whether the vetting procedures we have in place are adequate. He wasnt saying i find it would be detrimental because they are all dangerous or they all are potential terrorists, he was saying in the face of uncertainty about whether we are getting good information from their governments, so we can screen them out in the visa process, im going to put temporary hold subject to the visa waiver. Mandel rational basis review, but frankly under any legal standard, i think the president s detriment tally determination would easily survive. The second half the question gets back to what hawkins and i were talking about, 1182 is entry, 1152 a is issuance of immigrant visas. The state department has always reconciled those by saying that when the president suspends a group, even if in part on the basis of nationality, that the reason for the denial under 1152 is not the nationality, is that you are subject to about suspension. The state department has in practice always reconciled them so we are getting travel documents to people who would arrive in that we would keep them from entering. If the Court Disagrees with us on that, i think it most it would be the basis for an the 30 of aliens subject of this order who want immigrant visas, we would be required to give them visas even though when they arrived, we wouldnt have to allow them to enter the country because of the 1182 f suspension very i think is the district judge of the maryland case recognized, that would be a sensible result. I think the state departments reading of the statutes is a former sensible one. Matter what reading your take, unless you say that the everyent is disabled, president , permanently, for making any nationalitybased distinctions under 1182 at, reagan with the cubans or carter with the iranians, unless you take that road, i dont think theres any way to read the statutes that could provide the basis for the injunction we have here, if i can reserve the remainder of my time. Thank you. Thank you. May it please the court, government would like to pretend that this Court Decision in washington versus from never happened, but it did and the government cant shut its eyes to it. Theres a simple test, ask yourself if you accept any of the arguments you just heard, would have altered washington versus from . Versus trump . When the government claims that mandel applies even though washington said it doesnt, when the government claims you cant look beyond the face of the order, even though washington said you could, when it claims the injunction harms National Security, even though washington said it didnt, and went said the state doesnt have standing, all of these were things raised and decided by washington versus trump. To the Washington Panel decide the application of mandel on the merits or to simply say that courts have jurisdiction to review such things . Actually resolve the question of whether the mandel you think our panel is bound by that. Onthis is found visualization tutor 62. The government size mandel the proposition that will when the executive recognizes immigration authority, the courts when outlook behind after the government omits portions of the quoted language to imply that the standard governs judicial review of all executive exercises of immigration authority, in fact the mandel standard applies only to executive Branch Officials deny individual visa. The present case by contrast is not about the application of a specifically enumerated usual policy. You read more into the case than i did. Didnt really decide those questions. They decided that case based on due process. Not saying they reached the establishment clause and found a violation. But for purpose of mandel, the government came before this court in washington versus trump and devastated the governs all of this case is facially neutral and bona fide, this court recited that standard back to them and said it doesnt apply. That is a Square Holding of this court. If i could, id like to start with judge hawkins question about the establishment clause. You asked my friend has the president ever disavowed all of these statements. I thought his answer was surprising, he couldnt would point to any disavowal, he decided en masse animist briefs. There is no such statements. We give you chapter and verse the things the president has said, the District Court gave them to as well. Preand postinauguration, is not just one. December 2015, when he called for a quote total and complete shutdown of muslims entering the united a, then a few months later, quote i think islam hates us, we cant allow people coming to this country who have this hate of the United States. Then a few months later, my opponent would admit tens of thousands of refugees from the middle east would try to take over our children and convince them how wonderful islam is. These statements are profound. Unfamiliar with them, ive read them. It is a little bit concerning that those statements take place during the midst of a highly contentious campaign. Absolutely. Dont you to look at it from that perspective as well . We wouldnt be standing here if it was Just Campaign statements on its own. As the District Court found, the president rekindled the statements through his actions as president in two different respects. First when he issued the First Executive order, you read the title of the executive order, looked up at the camera is dead we all know what that means and said we all know what that means. It was clear from the title what it meant, he would have had the standard. The reference to something else. When you shoot both executive orders, he left on his website that very statement about the complete and total shutdown of muslims, a statement that just happened to disappear moments before the Fourth Circuit argument last week. Only the objective observer view the statements as . The District Court found they would view them as the foundation of a disfavored religion of islam. We are not in favor of psychoanalysis or try to get into the president s head. No need to be Sigmund Freud to affirm the District Court. You must ask as the Supreme Court has told you what would an objective observer think with these sorts of statements. These famous to continue even saidmonth, the president its a lot easier for muslims to immigrate in Christian Refugees from the middle east he is going to be helping the christians bigleague. , twois a repeated pattern months ago to this day when the District Court struck down the injunction in this case, scr 84, the president said quote moments ago, i learned a district judge in hawaii part of the much overturn the ninth circuit just blocked our executive orders, this is a watereddown version of the first one of me tell you something, i think we ought to go back to the first one and go all the way, which is what i wanted to do. Statements, does that mean that the president is from issuing an executive order along these lines . What is he have to do to issue an executive order . I think there to pass the president to take in order to pass constitutional muster. One is the way our founders thought article one section eight, which is congress is in the drivers seat with respect immigration and as Justice Alito said, when Congress Passes a statute, its much less likely to discriminate. Is second thing we could do some of the kinds of things to remove the things the District Court found that an objective observer to say this was discriminated. What judge hawkins said about disavowing formally all this stuff before, but thats not it. You could do a lot of things. Im just going to do a lot of examples. He could say like president bush did right after september 11, the face of terror is not the true face of islam, thats not what islam is about. Islam is peace, instead we get islam hates us, i think islam hates us. I think he could point to changed circumstances from december 2015 when congress debated the exact same evidence that the president relied on in his executive order to say we actually need more than just denying people entry without a visa, which is what congress required. You can eliminate the text which refers to honor killings. There are a bunch of Different Things that could be done at her fundamental point to you is that run intos dont establishment clause problems, the reason for that is this is a a reallyted in unusual case, in which you have these public statements by the president , if you are from the District Court, theres not a saying that any president has done in our lifetime that would be unconstitutional. One of the judges asked supposedly another individual showing the same executive order. If you dont say all these things, you never wind up with an executive order like this, which is why no president is on that. And if the hypothetical arose, think he will be different. Context matters. The Supreme Court of mccreary says governments can close shops on sundays and if they do it because of labor when they want to give workers arrest, thats fine. If they do it and at the same time announced the reason why im doing this is to help churches, that obviously an establishment cause problem. Context matters, it always has in the context of the establishment clause, and here, the history is overwhelming. Thats why this is so unique. Its not something thats going to hamstring any president from anything that happened in our lifetime. This is a very unusual circumstance in which you have all of these different statements. In your brief before the District Court you argue statutory grounds quite extensively. Could you respond to the governments argument . The two statutes into the read separately . I will respond to the government but let me set out with the argument is, which is the president is claiming a sweeping power to set aside the ina. The president refers to quote the absolute right to ban any group or anybody, in the briefing page three. If you read it that way and listen to what mr. Walsh said, you are giving the president the ability to take a magic eraser to the entire United States code with respect immigration and nullify anything because of the salinity to provision. That cant test this 1182 provision. With are four problems their statutory argument. One is what you were just referring to, 1152, this is nationalitybased discrimination. ,heres also three other things it also flouts congresses finally reticulated scheme, its a 10 part test for determining whether someone could be included on individual basis on 1182 a and also some provisions. In addition, you have Congress Make a specific judgment on the very evidence that is in the executive order from december 2015 what Congress Said is we dont need to have dragnet based exclusions, we just need to insist on visas when people come in with respect to these very countries. The last and most important thing and its as if your question about korematsu is the government has not engaged in mass dragnet exclusions in the past 50 years. This is something new and unusual in which you are saying this whole class of people, some of which are dangerous, we can for them all. Our brief on page 37 to 42 explains this in detail. The government has not a single answer in their brief for this. I think those of the statutory violations that you said cant you read them together, and i think thats absolutely the right way to do this. Its not implied repeal, section 1182 gives the president broad powers, but the one thing it statute is violate the and supplant aloft congress. To do so is to basically transform the statutes into mere suggestions. And nothing more than that. When the Congress Says in clear and unmistakable language that no person shall receive any preference or priority or be discriminated against in the issuance of immigrant visas because of the persons nationality, thats pretty clear. The other side says if you read it that way, there will be a libyan who is what come into the country and so on. I think the d circuit answer that very clearly by saying is exceptionan emergency. But here, theres no emergency precluding congress for acting. If there is a statutory violation, what is the relief . To correct the statutory violation . Putting aside the establishment clause for a moment. Are differenty statutory violations, sections two does fall, as a whole. They are supplanting congresses finegrained terrorism scheme of the dragnet ban and so the whole thing falls. I think you may be asking just about 11 52. And itef says this starts with judge friendlys opinion in 1966 the year of his landmark statute was enacted. Congress didnt just Say Something about immigrant visas. And by the way, did hawkins, the mother will law is seeking motherinlaw is seeking an immigrant visa. In 1965 we are changing fundamentally what our immigration system is about and we are not going to engage in nationalitybased discrimination anymore. That extends even to nonimmigrant visas, the av American Bar Association brief goes through this in painstaking detail as well as the 165 members of congress have come before you have explained exactly why that is so. Indeed the government in the olson case actually didnt even contest that. They said yes, it applies to nonimmigrant visas. I think the transformational statute and indeed, no president has done anything like this since the statute. You think 1152 applies beyond immigrant visas. You the textth doesnt, but as judge friendly found and the government conceded in all, does extend beyond that because of the way in which the statute to relevant factors and said nationality is no longer a relevant factor for purposes of our immigration. What you argue was the purpose of the statute as opposed to its language. Wouldnt say necessarily the purpose, i think that the statute Immigration Law has always as the Supreme Court said, you always have to and to relevant factors understand what does congress deem relevant and what not . Nationality is no longer such a factor. This was a transformational statute in 1965 passed contemporaneously with the Voting Rights act and so thats why. Thats on the 1152 argument but i dont want the court to lose sight of the other bigger argument which is that 1182, which sure looks like its a broad statute, but it does ultimately sue plant the fine grained 10 factor test that congress laid down and the government said itself to the Supreme Court in the marks case when you have a more specific statute that controls over the general grant of authority and indeed, you know, Supreme Court case after Supreme Court case, like others said, look, the statute looks like an unbounded delegation of authority but actually we have to read it more narrowly. Judge hawkins thank you. Interject the question on the statutory issues. If we were to conclude, hypothetically, that the establishment clause claim cant support the District Courts injunction, could we still affirm judge gould affirm the injunction on statutory ground . Mr. Katyal absolutely. Judge gould either in whole or in part and also related to that, could you touch on whether theres standing, the basis of your klines standing on the other refugee provisions . And i think that would help me out. Mr. Katyal absolutely. So if you accepted our larger argument about the statute, judge gould, about 1182, then i think it would affirm the District Courts injunction as a whole. Its true 1152, the nationality base discrimination, the way to uphold the injunction as a whole would require reading the statute to encompass nonimmigrant visas, as judge hawkins was illustrating. Thats our reading. We think the way since the opinion this has been read. There will be other there can be a question about that. Now, with respect to the standing of refugees, both plaintiffs we think have standing. Hawaii has standing because in washington vs. Trump the court found washington had standing, indeed, on the refugee claims, which were before the court. In here weve identified the government appointed to three refugees thats come here in 2017 they said the District Court proceedings below and so hawaii has an interest in making sure that its refugee programs and the dollars it spends are actually being able to be used and a flat ban on all refugees, which that gleck tiff order is, would basically force those dollars to be wasted. With respect to dr. Alsheik, he has standing to the refugees. His mosque has a refugee in it. Hes the imapple of the largest mosque in iman of the largest mosque in hawaii. Judge gould does he have standing on 1152 . Mr. Katyal on 1152, he does. Judge gould is he seeking a visa . Mr. Katyal yeah. The d. C. Circuit case by judge sentell allowed family members to bring a lawsuit and found it had standing. Judge hawkins let me ask you a question. The government makes the argument that if you look at the statements surrounding first of all, if you exclude this is a hypothetical. If you exclude the campaign statements. If you look at the statements around the time of the issuance of the second executive order, including, you know what this means language, that theres one way to read it. Seeing its bad. Theres one way to read it saying its good. Why shouldnt we be differential to the office of president of the United States on such issues . Mr. Katyal so thats the milliondollar question, judge hawkins. Theres no precedent in this court or any either when you think what is a reasonable observer would view as an establishment clause problem that youd defer to a government official. Rather, the whole test is objective observer, not what the president thinks. Were not impugning whats in his head. Were saying objectively this is how a reasonable viewer would see it. If you jude it the other way and viewed it the other way and gave deference you would give the president to boot strap all things and say, well, enact all discriminatory policies but then say, you have to defer to me, i dont think its discriminatory, which he hasnt quite said. You view a dangerous situation and indeed our founders were particularly concerned about the idea of immigration restrictions being used to establish a religion. Thats actually what happened in colonial virginia. So i think the best way to think about it and this is what the Supreme Court says think about what an objective observer would view this evidence as and i think as judge paez pointed to this, there is amicus brief after amicus brief. I am not aware of so many amicus briefs across the country representing a wide swath of life saying this is an establishment clause violation, that includes 17 states including states like iowa, north carolina. Over 30 cities and counties including seattle, los angeles, new york city, San Francisco, south bend. Faith leaders and groups from across the spectrum including the National Council of churches, representing 40 million christians, episcopal bishops, the Unitarian Association with 1,000 different congregations, the alliance of baptists and sikhs. Professional associations like the sciu and American Federation of teachers, representing 5. 2 workers. Indeed, including the cato institute, they are all coming before you saying, look, this is unprecedented. We have not seen anything like this in our lifetime in which a president is establishing a disfavored religion. And with real consequences. This isnt just the president saying something without action. This is the president s action as well. Judge hawkins youve argued in the past to give deference to the executive in immigration matters, havent you . Mr. Katyal sure. Judge hawkins in United States against texas i think you wrote an amicus brief in which you said the immigration demands in fact requires the executive to wield broad discretion. The gleck tiff must prioritize enforcement resources in a way that makes the immigration system function effectively while balancing a range of foreign policy, National Security, economic and humanitarian concerns. Thats your language . Mr. Katyal absolutely. We dont disagree with any part of that, judge hawkins. Rather, what were saying is that the president has to implement, you know, congress will but cant be an unbounded delegation. Indeed, if you read the governments brief you would think oh, the president can have this delegation that you could name classes of people and the case, page 21. When you go back and look at what that case is, because they try to pass this off as the majority opinion by then judge ginsburg, ruth bader ginsburg. This is not the majority opinion. They dont tell you that. Yes, the defense says that but the majority has never said that. The law has always been that even when there is a delegation of authority, its still got to be viewed within an overall context of the immigration scheme and view it the way they do would allow the president to take a magic eraser of the entire code. That brief in the texas case is not about establishment clause. Judge hawkins you also wrote a brief in florida v. Lara mr. Katyal ive been busy. Judge hawkins you said u. S. Policy toward aileyens are interwoven with the conduct of foreign relations, a power that is likewise vested in the political branches and any rule of constitutional law would inhibit the political branches of government to respond to changing world conditions should the adopted only with the greatest caution. Mr. Katyal when i was in the government i tried to get the Supreme Court to bite on that. They didnt. And i think for but even still, look, were not here saying theres no, you know, the president doesnt have emergency powers, National Security powers. Of course he does. The question is, when you have a circumstance like this, when the very evidence that they pointed to was before the congress of the United States and said, you know, we dont need this mass dragnet ban. Instead, we can do something more limited, require visas. That i think is that is particularly telling, you know. So obviously if its an emergency situation its a different matter. Thats not the world were in. Indeed, the government points in sfleck tiff order to really only three things. They point to two people from iraq who committed crimes but iraq is now exempt from the executive order. And someone from somalia who came here as a refugee when he was 2 years old and committed crimes when he grew up but the executive order exempts somalia. Judge hawkins suppose the president had adopted this second order or a third order and identified areas of active combat in these some of these affected countries or in those portions, carefully drawing a map like a legislative gerrymander, if you will, to identify areas where there has been terrorist activity, whether its isis, boko haram, al qaeda, the taliban, and narrowed it down to just those areas, would that pass your muster . Mr. Katyal i think it would. Obviously it depends on the context. It very much would because thats what congress did in 2015. Did do nationality base discrimination. Thats found e. R. Page 61. You isolate where people have come visited from the 2015 visa waiver works, it works by where have you recently been . If youre a swiss citizen and gone to sudan, youre covered by the 2015 ban because precisely for the reason youre saying, judge hawkins, in 2015 congress determined there might be some security threats in sudan. But what this does, it says if youre a syrian and youre born in switzerland, you spend your whole life in switzerland and then want to come to the United States, nope, flat ban. You cant come in just by dent of your nationality. Thats not something that president s have ever done in our lifetimes. Not quite as specific as judge hawkins suggestion, but the order does refer to conditions in the countries that are listed. Why wasnt that sufficient for purposes of legitimacy . Mr. Katyal that was before the congress in december, 2015, and they said the solution is the visa is to is to require visas. Nothing more than that. So i dont think its detrimental to use judge goulds language that is detrimental to the United States. The first part of the order, the preamble and all the subsections of the preamble, section 1, goes to the various countries and lists conditions in those countries. Now, the conditions that are described are not like what judge hawkins was eluding to. Judge paez they do make an attempt. Why isnt that sufficient . Mr. Katyal made before congress in december, 2015. I think the other important point, as i was saying to judge hawkins, if you really believed that you wouldnt do it on the basis of nationality. You would do it on the basis of transit. Thats someone coming from one of those countries regardless what their nationality is would be swept up by whatever the possible president ial action would be. Thats how congress did it. Thats the way to deal with that problem, not this. If i could i just want to return to the colloquy that you all were having with my friend about mandel and bad faith because i believe its quite important to the resolution of this case. Obviously we think mandel doesnt apply because washington vs. Trump but if for some reason you wanted to get into it, we think the bad faith exception or as the mandel language calls it, bonafide, is enough to rule in our favor and to affirm the District Courts injunction in this case. The reason for that this court in cardenas said if there is bad faith, an affirmative showing of bad faith, then the mandel standard is met. And the action will be unconstitutional. Then my friend judge paez if we dont consider campaign statements do you still prevail . Mr. Katyal yeah. Theres bad faith even past that. First of all, i think the president reskinnedled all those campaign statements. All the things that happened afterwards, including leaving it up on the website, including i want to go back to the first ban, including im preferring christians, big league, all those things, what he said to the christian brought network on january 27, all those things i think are sufficient. Now, mr. Wall says, oh, well you should give more deference to the president than to a counselor or official and in general that may be true but not when it comes to religion. Indeed, our founders were very worried about the possibility that one man could establish a religion. Certainly the president can. Even any individual counselor or office is not going to be religion like is islam. Its higher when youre dealing with someone like the president. I dont think he gives any special deference. Judge gould let me ask you this. And i dont mean do you serve your your closing language so well give you extra time if you need it. But there were letters issued by both the department of justice and the department of homeland security. I think on the same day the order was the second order was signed. Which more or less gives support to the order. And, you know, there are National Security reasons we need to do this. So do those letters neutralize your assertions that the that the National Security interests relied on our pretextual and also or related to that, do they neutralize the bad faith argument . Because youre not just saying bad faith of the president. Youd have to be saying its also bad faith of the attorney general and also bad faith of the secretary of homeland security. Mr. Katyal right. So its certainly true those letters were written on the morning of saying it would be nice to do an executive order like this and then the executive order issues. I think those letters dont change the dynamics at all. Rather, the question is, as the District Court found and all the amicus before you found, is this executive order viewed from the Vice President s as an objective observer to disfavor a religion like islam . And the National Security motivation on the part of these cabinet secretaries, that doesnt eliminate the fundamental problem which is that this executive order was promulgated by the president and he has build it in a serp way and thats the way an objective observer would view it. Imagine just ask yourself if the president said at the time he was signing the order Something Like, you know, i really hate muslims or Something Like that, the fact cabinet secretaries may have a National Security justification or something that was sent to him, i dont think would change the underlying constitutional problem. And so similarly here, we think that those statements taken together as the District Court found do so. If i could judge paez i have a quick question on scope, if you dont mind. Judge hawkins i understand from the Fourth Circuit argument that the District Court in hawaii construed its conjunction to also cover and prohibit the ability of the government to study the issues that theyre talking about in the context of the order to find out if theres more things that could be done in terms of vetting or procedures or transit or visa issuance, that sort of thing. Is there any justification for that portion of the order or that interpretation . Mr. Katyal may i answer and then have about a half minute to sum up . Judge gould we are giving you extra time. Mr. Katyal thank you so much. I really didnt quite understand mr. Walls statement to the Fourth Circuit. He said judge hawkins i take mr. Wall at his word. He said they asked the District Court and he can tell us they asked the judge in hawaii, can we go ahead with these studies to determine if there are things that can be done . And i take it he was saying that in reaction to the judges on the Fourth Circuit and bank panel saying, why havent you done this . Mr. Katyal let me read to you his words in the Fourth Circuit. It gets a little technical. He said, quote, we went back to the hawaii judge and said, look, you cant possibly have meant to join internal governmental procedures to look at vetting for these six nations. In the face of that motion, the District Court judge said yes. I dont think thats quite right. That is they did ask to clarify the injunction, not with respect to the six countries in studying the six countries but just generally can they have internal consultation and the like. Judge hawkins i think your question is a little broader than that. My question is, is there any justification for interpreting the District Courts injunction to cover what i just described . Mr. Katyal i think yes. Judge hawkins answer yes or no. Mr. Katyal the answer is yes if it comes to a worldwide study on the auspices of section 2a of the order. The reason for that as we pointed out in our subpoena significance at the District Court on page 13, this was the governments own theory. They said the study in 2a was linked to the 2c exclusion in the six countries. So if you see the two if you view the 2c exclusion of the six countries as an establishment or statutory violation, then the 2a worldwide study has to fall. But judge hawkins, let me reassure you, that doesnt matter at all. That is the government can and indeed has been conducting worldwide vetting and increased studies about all of these things. Judge paez can they do something along those lines . Mr. Katyal not just laptops. Two weeks ago they announced an increase in vetting procedures worldwide. So the injunction doesnt ban studies at all. It only bans a specific study which is a study designed to carry out what we view as the muslim ban in section 2a. Judge paez so the president has been conducting those studies. As every executive judge hawkins we will get a chance to hear from dr. Wall. Mr. Katyal if i could sum up for 30 seconds. Last week my friend, mr. Wall, closed his argument by saying that the president here will transcend this case and this travel ban and i couldnt agree more. If you rule for us you leave intact the president s powers, including every decision every president has made in our lifetimes and you preserve a status quo that has existed for decades. If you rule for him, you defer to the president in a way that history teaches us is very dangerous. You open the door to so much. As Justice Jackson said in the context of the First Amendment in the religious freedom case, quote, the First Amendment was designed to avoid these ends by avoiding these beginnings. This very courthouse, which ried, convicted and then later exonerated one 44 years ago stands as a physical reminder what is at stake. Our constitution and laws are better than this. Our founders wanted america to be a beacon on our coast and that beacon at the end of the day is not the quality of our sports teams or the quality of our soil. That beacon ultimately is the majestic article 3 and the grand contours of the First Amendment. We ask that the District Courts ruling in joining this unconstitutional and unamerican executive order be affirmed. Judge gould thank you, counsel. Solicitor general wall, you had reserved a couple of minutes. We also went over time on the appealees argument so well give you extra time if you would like it. Mr. Wall thank you, judge gould. I have a few brief points. I dont think washington can taken to resolve the standard of review in this case. I think its mandel. And under that judge paez pretty close though. Mr. Wall to the extent what washington said, judge paez, was mandel cant govern broad policy determinations. Even plaintiffs dont try to defend that reasoning because its inconsistent with other cases and thats why i dont think this court should overread it. Under that standard im glad to hear counsel say, look, we wouldnt be here if it were just the campaign statements because those are not statements in an official capacity and wont tell you what the official standard of conduct is. People say things on the campaign trail, they form an administration and consult with them on the policies they develop and we shouldnt start down the road of psychoanalyze whag people meant in the campaign trail. Judge paez, in answering to your question, hes down to handful of statements and the only thing concerned about this order is what the president said when he signed the first one. What the president said three minutes before he signed that in the presence of a newly sworn secretary of defense was, i am signing this order because i want to increase the vetting procedures for radical islamic terrorist deprupes. Three minutes later when he signs the order and he makes the sixword offhand comment, its clear in context and i think its at least, you know, within the presumption of regularity we ought to afford to a cabinet of branch, what hes talking about are terrorist groups, not all muslims everywhere in the world. There isnt enough in this record to get you to bad faith. I think counsel wants to discount how remarkable it would be for on a handful of statements made by the president on both sides, right . You could look at ser90 when he says i want people to come here that love this country. Many muslims do. We can go back and forth on the president s comments over time. And thats just not a judicial inquiry like what mandel commands courts to do. Under that inquiry theres not bad faith here. On the statute for all of the rhetoric, judge hawkins, the language of the statute doesnt get you to where he wants you to go. 1152 deals with the issuance of immigrant visas. It doesnt deal with entry and nonimmigrant visas. We make nationality distinctions every day. Thats what the visa waiver is. Nationals of some countries have to get a visa. Nationals of other countries dont. Olson doesnt say anything different. At most it gets you an injunction different than this one, one that would be more harsh that counsel purports to defend. It doesnt give you a limitation on 1182f, which judge ginsburg said is the president s sweeping proclamation power to suspend the entry of any class of a liens which he deems is in the nations best interest. I know counsel wants to second guess that power here. Hes right, whatever this court says will dictate this for decades to come. No court has ever read into 1182f ever the kind of limitation, whether from 1152 or other statute that counsel wants to find in it. The last thing ill say is the overbreath of this injunction. Counsel didnt mention the internal review provisions at all. He barely mentioned a word of section 6. Sections 2a and b of the world states that the state department and dhhs need to look at our information sharing of countries and determine whether we have sufficient vetting procedures in place on the basis of the information we are getting from those countries and they are supposed to produce a support. That was tied to the temporary suspension in a sense the president said because im not sure, i am going to sprnd and that will free up resources to do the review. We went back to the District Court, as counsel knows, and said, look, even if you give them the sprecks he of entry which suspension of entry which is what they briefed in their complaint it doesnt get to you to the rest of section 2 and to section 6. We should produce a report and the District Court in the face of our motion said i inskwloined all of section 2 and section 6. We have scrup lussly complied with that injunction. Even if we are wrong about standing and even if we are wrong on the martins, the most he ought to be merits, the most he ought to get is the injunction against 2c against dr. Alsheik and his motherinlaw and any students whom hawaii identifies if you conclude that hawaii has standing. Hes conflathe the nature of his legal argument with the kind of relief to which his plaintiffs are entitled if their claim prevailed on the merit andminute says no matter the scope of his legal argument and no matter what it suggests at the propriety of the order, at least it redresses their injuries. Here its the doctor and his motherinlaw and maybe a handful of students and 247b c. Not the rest of section 2 and nothing in section 6. He doesnt have refugee groups, anybody seeking refugee admission. Section 6 and the refugee side shouldnt be on the same table. Ill wrap up saying, yes, we did say to the Fourth Circuit last week that the precedence set by this case for the judiciarys role in reviewing the president s National Security and immigration will long transcend this debate, this order and this constitutional moment. Counsel is right that this country is a beacon but what makes it a beacon is the rule of law. Under the settled legal rules for constitutional and statutory interpretation and injunctive relief, what the president did here falls squarely within his constitutional and statutory authority. I know they disagree with this president and many of his policy judgments but none of that converses converts this into a constitutional crisis and we respectfully submit this court shupet treat it like one. It should leave the debate where it belongs, in the political arena. The United States respectfully submits this injunction should be vacated or at a minimum be substantially narrowed. Judge gould thank you, solicitor general wall. And thank you, counsel katyal. The court appreciates the very high quality of the arguments on both sides. The court will now take a recess for i will say this case is submitted at this point. And the court will take a recess for 20 minutes. [captions Copyright National cable satellite corp. 2017] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] well show the entire oral argument from the ninth Circuit Court of appeals again tonight on cspan at 8 00 p. M. Eastern. You can watch it in its entirety at cspan. Org. And some news