It is one hour and 15 minutes. All rise. The ninth circuit is now in session. Please be seated. Good morning. Good morning. It is a pleasure to be sitting here with my colleague, judge hawkins on my right. Extend a welcome to the distinguished lawyers here today to argue their cases. And also to our observers. Number 14 isch is submitted on briefs. Also, the calvert case, number is submitted on briefs. The first case for oral argument today is the state of hawaii trump. That case is set for 30 minutes per side. Time and tryyour to sum up when the timer is yellow and stop when it is red. The court isdd very well aware of the importance of this case to all the parties involved. Time, if onextra of the fields you need to present your argument. Certainly, if my colleagues have questions once time is up, we will go forward. Group,also tell the after that first case is argued, there will be a recess for about 20 minutes to permit all those in the courtroom who would like to leave, to exit. , after that 20 minute recess, we will continue with these other cases. To the state of hawaii versus trump. You may now proceed. May please the court, both the constitution and acts of congress and the president of the United States brought authority to permit aliens abroad from entering this country when he deems it in the nations interest. This global injunction restricting that authority cannot and for three reasons. First they applied the wrong legal standard. Constitution challenges of twons abroad section tempora repository six countries to shelter or sponsor terrorism readily satisfies that test. What is the difference, practically . Think it is just this no court has ever applied it, not the Supreme Court or this court. You have to have an affirmative showing of that faith. If that is what you require for a discretionary decision, you really ought to require the strongest showing when you are talking about the president of the United States and multiple members of his cabinet, whose motives have not been impugned. Say that the commanderinchief, head of the executive branch and multiple members of the cabinet acted just dofor early i not think plaintiffs have put together the kind of record. Court there is an exception. They obviously did not find. Under this case law, the exception is there. I understand your position is that the exception only applies to individual . I do not think so. It applies to the full scope of mandel. Areher those exclusions congress, the president , statute or executive order, mandel has mandated those challenges. Requires it is not just a wideranging inquiry into subjective motivation. They wereonclude that under the wrong standard, you say it should be mandel. Shouldnt we send it back to the District Court to apply mandel and see if they can make out an affirmative case . But i could send it back, think the plaintiffs have not sought any additional discovery here. We have a record. We know with the statements were. I think this court is as well pleased as District Court to determine an absence of are those enough to get as bad Faith Christian record i think it would be the same inquiry at the District Court as this court. There is no case like this, is there . No. In part, because no one has ever attempted to set aside a long neutral in face. I read mandel, it is clearly dealing with specific application, standards to a specific visa denials. That is not what we have here at all. It is applied equally to a statute. It could have applied it to a broad policy determinations. I do not think the Supreme Court or any code court of appeal has tried to limit the mandel test. I think for the reasons some members of this court it would not make much more sense to say that a single officer the received a denying visa gets more deference than the president of the United States and making a National Security determination. Order isecutive extremely broad order. Theyre not dealing with an individual determination. We do not know yet is we have not been able to implement the order. This administration, to be sure, said as a matter of policy. I do not know if i am getting reliable information by the governments of these nations. Subject to a pretty robust, individualized process. I do not think it is a difference in kind from what the Previous Administration did. Thanks can we step back a little bit . You start off by challenging the standing. Still a core argument for you . s. We made the arguments in our brief but i think the easiest way is to be what boy let down. Inargued extensively District Court about whether if they had both article three and and thatl standing, cardenas case. I think that is the road map. It said, look, the denial of aliens abroad is not subject to review because they do not have any Constitutional Rights. U. S. Citizens can attempt to argue that their own Constitutional Rights have been impinged by the denial to entry but hawaii does not have any rights to claim under the due process clause. He is not raising his own right. Shment cross if you think you have article three injury, he can at least raise due process but the problem is it fails on merit because he does not have a protected liberty interest with respect to his motherinlaw. Cries he is raising his own due process clause right. If you think he is articlefree injury he could raise that but the problem is it fails on merit because he does not have but [crosstalk] it does not take issue with the general rule that when you are applying alleged only the victims are punitive it is aimed at aliens abroad with no Constitutional Rights. He doesnt have an establishment clause to raise and i dont think the catholic case is any different. His argument is it is a ban against adherents of the islamic faith, correct . That is his argument . No, thats right. And that this broad policy disparages the adherents of that faith in the same way the individual residents of San Francisco county felt disparaged when the board of supervisors adopted this resolution saying that the cardinal of that diocese was terrible and unamerican by refusing to refer adoptees to samesex couples. So what is the difference . There are two key differences. That was religious speech. This is not. On his faith that does not have anything to do with religion and that explicitly religious message was directed at the community of which they were a member. Here, this eeo operates with respect to aliens abroad. It sends a message. I think the problem they have with that in the d circuit is if you can take government conduct directed toward others and reframe it as directed generally to all people, you eviscerate subtle limitation on standing. This is at least two bridges case. The Catholic League he is an imam if i am not mistaking, correct . The suspension of entry is just on the list of countries. Christ how this is motherinlaw think ithow does his motherinlaw into this . I think it shows his harm is speculative. Disagreed with us on this tn standing, then i think you would turn to merit to and say he is attempting to raise in establishment clause on behalf of someone else. He is raising his own due process claim but it fails on merits because no court has extended the process in whatever process he wants. This order more then gives it to him and his motherinlaw because there is no battle about why am she does not receive a waiver what the reason would be. It is on the face of the order its up. There is nothing more we can tell you a net is why below they disavow individual hearings. This is a categorical policy. There is no more process we can give them and they have never said what it would look like for us to give him any more reason. I think what they are really raising is a substantive challenge. That on themake out establishment side and they never learned a due process claim, only procedural due process. She is not seeking and immigrant status, correct . I believe she is no, i guess you are right. She would not fall within the 1152 that relates to 1183 or whatever . Right. Thend the doctor is not sponsor, correct . I believe it is his wife that is the sponsor. Is she a . No, she is not the plaintiff. I take your point. To say a word about the statute, 1182 applies to entry by its term. Nothing in 1152 which deals with immigrant visas eliminates and foray nor could it if instance it were to disable the president first suspending nationals from a country if he got intelligence that someone was attempting to bring, lets dirty bomb into the country. It is down to 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 however you want to phrase it that 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 that kind of frivolous and harsh fruitless and harsh exercise. We told the Fourth Circuit the same thing i will say to you. If you agree with them on the reading of 1152, at most would 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 do not think that system would make a lot of sense. Like tom hanks at the airport. Right . 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. I dont think there is any way you can read 1152 to limit the president s suspension of entry power under 1182f, so want to make that move, theres no basis for the injunction. You have to read them together. You are dealing with the process. Isnt that right . That is right but i think the way to reconcile them is 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. Where you 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 more 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. That is right, but then you would have to get past the presumption of implied repeal. You would have to say that [crosstalk] you read them together. Why is that a repeal . I think it is pretty clear that would congress is doing is getting rid of the previous nationality quotas on immigrant visas. It was not doing anything to limit the president asked suspension power. I just want to point out, if you really take the argument seriously, i think they are committed to the view that under 1182f, 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 reconcile them. On the merits here, the executive order sets out National Security justifications, but how is the court to know if in fact it is a muslim ban in the guise of National Security justifications . Muslim ban in the guise of National Security justifications . Mr. Wall i think that is the nub of 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 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. And the flipside is what the 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 eo, 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. Let me 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. Has 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. 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 or sponsor them, and over time, he and 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. The second one . The first one. What about the statements were his surrogates have said the president is simply carrying out his Campaign Promises on this issue . True, judgeat is hawkins. 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 mattis. 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 to 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. Would 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 would say how do you apply 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 operate 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 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. Is a bad faith determination 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. I think what 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 acted in bad faith by adopting 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. And specifically, what i have in mind is 1182, theres a need to find the entry would be detrimental to the United States. And so i have a 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. And i also question on making it 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. On the first question, the Fourth Circuit had a number of questions about this, the president in sections 1 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 nationals for brief period of 90 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. I think under a 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 injunction for 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 not be a sensible result. Unless you say every president is disabled from doing this, i i thinkk it could the state departments reading of the statutes is a former sensible one. No matter what reading your take, unless you say that the president is disabled, every 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 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. This is found on 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. Im 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 thatd said, the standard governments 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 en masse amicus 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 States, 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. Im familiar with them. I read them. But isnt it 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, he read the title of the executive order, he read the title of the executive order, he looked up at the camera 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. What would an 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 statements continue even last month, the president said its a lot easier for muslims to immigrate than Christian Refugees from the middle east, he is going to be helping the christians bigleague. This is a repeated pattern, two months ago to this day when the District Court struck down the injunction in this case, scr 84, the president said quote moments ago, i learned 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. Postelection statements, does that mean that the president is forever barred 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. The second thing we could do is 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 president s dont run into establishment clause problems, the reason for that is this is a very limited in a really 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. There are four problems with their statutory argument. One is what you were just referring to, 1152, this is nationalitybased discrimination. Theres 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 cant do is violate the statute 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. Shall receive any preference or priority or be discriminated against in the issuance of immigrant visas because of the persons nationality, thats pretty clear. My friend on 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 obviously an emergency exception. 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. Because they are different 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 brief says this and it 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 motherinlaw is seeking an immigrant visa. Congress that 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. I agree with you the text doesnt, but as judge friendly found and the government conceded in olsen, it 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. No, i wouldnt say necessarily the purpose, i think that the statute Immigration Law has always as the Supreme Court said, you always have to look to relevant factors and understand what does congress deem relevant and what not . When you ask yourself that question, nationality is now no longer such a factor. If this is a transformational statute in 1965 past contemporaneous with the Voting Rights act, and so thats why. So again, that is on the 1152. It does ultimately ultimately test thethe 10factor government laid down and the government itself has said to the Supreme Court that when you have a more specific statute that can chose over the controls over the authority. In case after case, they have said the statute looks like a. M. Unbounded delegation of authority but we have to read up narrowly. If i could interject a question on the statutory issues. If we were to conclude hypothetically that the establishment clause claim can support the District Court injunction, could we still injunction on statutory ground . Absolutely. Or whole in part ground . And could you touch on the basis of your clients standing on the refugee provisions . Would help mehat out. Absolutely. If you accepted our larger argument about the statute, judge gold, about 1182, that it would affirm the District Court injunction as a whole. It is true that 1152, the way to uphold the injunction as a whole would require reading the statute to encompass nonimmigrant visas as well as judge hawkins was illustrating. Reading. Ur but there is obviously going to be a question about that. With respect to the standing of refugees, we think the plaintiffs have standing. In washington versus trump, they found washington had standing even on the refugee claims before the court and are we have identified three refugees that have come in this year. In 2017. They said in the District Court proceedings below hawaii has an interest in making sure that its Refugee Program the dollar spent are able to be used on all refugees, which is what the executive order would force, those dollars would be wasted. With respect to the largest mosque imam in hawaii, i think there would be standing for all those reasons. Does he have standing on 1152 . He does. If we assume that only applies to immigrant visas, does he have standing . He does, she is seeking a green card in the d. C. Circuit case by judge sentelle allow family members to bring a lawsuit. It has standing. Let me ask a question. The government makes the argument that if you look at the statements surrounding first of all few exclude this hypothetical 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 is one way to read it, theres one way to read it saying its good, another thats bad. Why should we be deferential to the office of president of the United States on such issues . Thats the milliondollar question. I do think theres any precedent in this quarter any other that says when you are thinking about what a reasonable observer would view as an establishment clause problem, that you defer to a government official. Disposed to have an objective observer know the president things. We are not impugning whats in his head, we are just saying objectively, this is how a reasonable viewer would see it. If you view to the other way and give deference, youd beginning the president s the ability to bootstrap all sorts of things and say, well, you can have all sorts of discriminatory policies and then say, you would have to defer to me. I dont think its discriminatory by the way he hasnt quite said. I think youre in a dangerous situation and our founders were particularly concerned about the idea of immigration restrictions being used to establish a religion. Thats what happened in colonial virginia. A think its the best way to think about it is what the Supreme Court says. Think about what an check of observer of it would view this pointed to this. Their amicus brief after amicus brief. Of not aware of any case like this in which so many different amicus briefs from cost the country represented a wide swath of life has said this is an establishment clause violation, that the synnex a disfavored religion, islam. That includes 17 states including iowa, north carolina, over 30 cities and counties including seattle, los angeles, new york city, San Francisco, south bend, these leaders and groups from across the spectrum including the National National council of churches represented 40 million christians opposable digits, the Unitarian Association with 1000 different congregations, the alliance of baptists and sikhs, the antidefamation league, professional associations like the sei you and the American Federation of teachers representing 5. 2 million workers even the cato institute, they are all coming before you saying, this is unprecedented. We have not seen anything like this in our lifetimes in which a president is establishing a disfavored religion. Thats with real consequences, this is not just the president saying something without action. This is the president s action as well. You have argued in the past to give deference to the immigration matters, havent you . Sure. And the United States against texas, you wrote in amicus brief in which eu said the particular demands of the immigration system require the executive to wield broad discretion, the executive must prioritize enforcement resources in a way the next immigration system function effectively, while balancing a range of foreign policy, National Security, economic and humanitarian concerns. Thats your language. Absolutely, we dont disagree with any part of that. Rather what we are saying is that the president has to implement congresses will, but it cant be an unbounded delegation. If you read the governments brief, you might think, the president can have such a sweeping delegation that he could even named classes of people or nationalities and so on. When you go back and look at what the cases, they try to pass this off as a majority opinion by then judge ginsburg, Ruth Bader Ginsburg they are citing the dissent by judge bork not the majority opinion. They dont tell you that but 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, it still has to be viewed within an overall context of the immigration scheme. Just feel it the way they do would allow the president to take a magic eraser to the entire code. Obviously, the brief in the texas case is not about establishment clause but you also wrote a brief in in which you said u. S. Policy towards aliens is vitally and interwoven with the conduct of foreign relations. A power that is likewise anyed in the branches and rule of constitutional law that would inhibit the flexibility of the political branches of government to respond to changing world conditions should be adopted only with the greatest caution. When i was in the government, i try to get the Supreme Court to bite. They didnt. I think even still, we are not here saying that there no the president doesnt have emergency, National Security powers, of course he does. The question is, when you have a circumstance like this, when the evidence that they have pointed to was before the congress of the United States that they said, we dont need this dragnet ban. Instead we can do something more limited that i think is particularly telling. So obviously, its an emergency situation then its a different matter but thats not the world we are in. The government points to this executive order to do three things. He pointed to people from iraq who committed crimes but a rack iraq is now exempt from the executive order. And someone from somalia who came here offers a refugee when used two years old and committed crimes when he grew up at the executive order exempts them suppose the president had adopted this new order. And identified areas of active combat. Whether its isis, boko haram, al qaeda, the taliban, and narrowed it down to just those areas, would that pass this . I think so. It would depend on the context but it very much would. Thats exactly what congress didnt do this doesnt. This is what the District Court 61, where people have come and visited. Waiver program doesnt work like where youre born. It worked somewhat passport hold its based on what you have recently been. If you are a swiss citizen and have gone to sedan your covered by the 2015 banned because thats precisely for the reason you are saying judge hawkins, which is, in 2015 congress determined security threats in sudan. But what this does is says, if you are a syrian born in switzerland, spend your whole life in switzerland, then you want to come to the night states, no. You cant commit to us by your nationality. Thats not something president s have ever done in our lifetime. Thats quite as specific as judge hawkins is suggestion, but the order refers to conditions in the country that are listed. Why is that not sufficient for this that evidence was before the congress in december 2015. They said the solution is the visa is to require visas, nothing more. I think its detrimental to use judge goulds language, detriment of the interests of the United States. Congress is artie made that determination. The articles the first preamble and all this, subsections of it in, go for the various countries and west conditions in those countries. Now the conditions described are not like what judge hawkins was alluding to. But they do make account why is that not sufficient . The other important point is if you really believe that you wouldnt do it on the basis of nationality. You do it on the basis of transit, someone coming from one of those countries regardless of 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. I just want to return to this you all had with my friend about mandel and bad faith. They do see that is quite important to the resolution of this case. We think mandel doesnt apply because of washington versus trump. We think the bad faith exception bona fide is enough to rule in our favor, from the injunction in this case. The reason for that is this court in cardenas says if there is bad faith and affirmative showing in bad faith, the mental standard is bad. And the actions are unconstitutional. We dont consider the campaign statement, do you . Absolutely. Think theres bad faith past that. Think he rekindled her statements, but beyond that, all the things that happened afterwards including leaving on the website, including i want to go back to the first ban, including in the first question all those things, what he said at the Christian Broadcast Network on january 27. They said oh, you should give more deference to the president than a in official. In general it may be true but our founders were very worried about the possibility that one man could establish a religion, certainly any individual who comes their office will not be able to establish a disfavored religion such as islam, its only Something Like states are much higher when youre dealing with the president. So i dont think he gets any special deference for returning let me ask you this. I dont mean to usurp your giveng language so we will you extra time if you need it. But there were letters issued by both the department of justice and homeland security. I think that was in the same day that the second order was signed. Which, more or less gives support to the order. You say that there are National Security reasons we need to do this. Do those letters neutralize your assertions 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, and the president , you would have to be saying its also bad faith of the attorney general, the secretary of homeland security. Right. So its certainly true that those letters were written on the morning of saying, it be nice to do an executive order like this. I think those letters dont change the dynamics at all. Rather the question is, as the District Court found and other people found is this viewed from the standpoint as an objective observer, and establishment of a disfavored religion, islam . Even if there is some National Security motivation on the part of these cabinet secretaries that doesnt eliminate the fundamental problem, which is that this executive order was promulgated by the president. Thats the way an objective observer would feel it. Just ask yourself, if the president said at the time he was signing the order Something Like, i really hate muslims, or Something Like like that, the fact that cabinet secretaries may have a National Security just affect nation, something sense to him, i dont think what change the underlying constitutional problem. So similarly here, we think those statements taken together as the District Court found, do so. Ive a quick question on scope if you dont mind. I understand from the 4th circuit argument, that the District Court in hawaii construed its junction to also cover and prohibit the ability of the government to study the issues that they are talking about in the context of the order to find out that there is more things that could be done in terms of these procedures transit or visa issues, that sort of thing. Is there any justification for that portion of the order . Yes. Been quite understand the i did not quite understand mr. T. Wall fell statement to the Fourth Circuit judge paez i take mr. Wall judge hawkins i take mr. Wall at his word. He said are their studies that we can do and i take it he was saying that to the judges on the Fourth Circuit saying, why havent you done this . Mr. Katyal it gets a little technical. This is why he said. We went back to the white judge and said, look, you could not possibly have meant to look for vetting for the six nations, and in the face of that motion, they. Just generally, can they can have internal consultation and the like . Judge hawkins i think the question is a little broader. The question is, is there any justification for interpreting the District Courts relative injunction to cover what i just described question mark yes or no . Mr. Katyal the answer is yes if it constitutes a worldwide study under section two a of the order. The reason for that, as we pointed out in our opposition to the District Court in their clarification motion on page 13, this is the governments own theory. They say that the study in 2a was linked to the exclusion is a six countries. Exclusion ofhe 2c six countries as an establishment or statutory violation, then the 2a worldwide study has to fall. But, judge hawkins, let me assure you. That does not matter at all. The government can and has been conducting worldwide vetting and increased studies about all these things. Judge hawkins didnt they do something with laptops mr. Katyal not just laptops. Last week they announced an increase in vetting procedures worldwide. In injunction does not dance studies at up does not ban studies at all. So, the president has been conducting we will have a chance to hear from mr. Wall. Mr. Katyal if i could just have a chance to some up, 30 seconds. Week, mr. Walz said the president will transcend this case and this travel ban. We could not agree more. If you will leave in tax the president s powers, to include every decision every president has made in our lifetime, then you are preserving the status quo that has remained for decades. Differrule for him, you to him in a way that history teaches us is so dangerous. You open the door to so much. Was First Amendment designed to avoid these ends by avoiding these beginnings. Is very courthouse which tried, convicted, and later exonerated 44 years ago stands as a physical reminder of 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. That beacon ultimately is the majestic article three and the grand contours of the First Amendment. We asked the District Courts unamerican ban be affirmed. Thank you. Haveitor general wall, you reserved a couple of minutes. We went over time on the appellees arguments, so we will give you extra time if you would like its. Mr. Wall thank you, judge gould. I will try not to use all of it. I have a few brief points. I dont think washington can be taken to resolve the standard of review in this case against mandell pretty close though. Mr. Wall to the extent of what z,shington said, judge pae even plaintiffs do not try to defend that reasoning because it is inconsistent. That is why i do not think the court should overeat read it. Under that standard, i am glad courtill think the should over read it. Under that standard, i am glad that counsel says that we do not go by the campaign statements. People say things on the campaign trail. They consult on policies they develop and we should not stared down the road of psychoanalyzing start down the road of psychoanalyzing what people meant on the campaign trail. He is down to a handful of statements and the only one that directly concerns this order is what the president said when he signed the first one. We all know what that means. Said in the president the presence of the newly sworn in secretary of defense was, i am signing this order because i want to increase the vetting radical islam and terrorists. He makes a six word offhand comment. It is clear in context and within the presumption of regularity we ought to afford to the head of a branch, terrorist groups, not all muslims. There is not enough to get you to bad faith under didnt and i think council wants to discount power markable it would be for the courts on a handful of statements on both sides you could look at sdr 90 where the president says i want many people to him to this country. Many muslims doe. This is not a judicial inquiry like what mandell commands course to do. Under that inquiry there is not bad faith. The statute, for all of the judge a hawkins, the light which of the statute does not get you where he wants to go. It does not deal with injury. It does not deal with nonimmigrant visas. Distinctions on the everyigrant visa standard day. Nationals of some countries have to get a visa. Nationals from other countries do not. At most to get to an injunction that i think will be more harsh to the people that counsel purports to defend. None gets you in elimination under the president s sweeping proclamation power to suspend class of aliens when he deems it in the nations interest. I know wants to secondguess that power here. But he is right. Whatever is decided will govern authority for decades to come. And no court has ever read into kind of limitations that counsel wants to find there. The last thing i will say is just in the overbreadth of this injunction. Counsel did not mention the purview at all. Sections two a and to b of the order. Dni will look at our information with the other companies other countries and determine if we have sufficient vetting procedures on the basis of information we are getting from those countries. That was tied to the temporary said,sion, the president because im not sure, i will suspend and that will free up resources to do the review. We went back to the District Court, as counsel nose and said, look. Even if you give them the suspension of entry, it does not get you to the rest of section two and it does not get you to section six. The District Court in the face of our motion said i have enjoyed all of section two and section six. I want to be clear with the court. Even if we are wrong and upstanding and wrong on the merits, the most he ought to be for to get is an injunction the doctor and his motherinlaw and hawaiian students if a white has standing. He is concluding the nature of his legal argument. The scope of his legal argument and what it would suggest about the propriety of theirder, it suggests injuries. And hist is the doctor motherinlaw and maybe a handful of students. Nothing like section 2. He does not have refugee groups. Six should not even be on the table. I will wrap up the same way. Yes, we did say in the Fourth Circuit last week the president the judiciary from role will long transcend this debate and this moment. Counsel is right that this country is a deacon, but what makes it a beacon is rule of law. Under the old rules, constitutional statutory interpretation, what the president did here falls squarely within his statutory of 30. I know they disagree with this president , but none of this converts it into a institutional crisis and we respectfully submit this court should not treat it like one. It ought to live this debate where it belongs, in the political arena. This court appreciates the high quality of the arguments on both sides. Take a recess now to consider the points and the court will take a recess for 20 minutes. [raps gavel] all rise. Court is adjourned