Are admonished to dry. The court is now sitting. God save the United States and this Honorable Court. Chief judge gregory, naplease the court. Mr. Wall, if i can ask you before you get started to clarify what you view the scope of the preliminary injunction to be. I have two questions. The District Court order enjoys section 2c of the executive order with suspended entry. During the District Courts discussion of success on the merits, the District Court said that suspension of entry suspension of entry under 1182 did not conflict with section 1152bar discrimination and immigration visas. Heres the question. Is it your view that the District Courts injunction enjoins the suspension of entry provision as well as the denial of visas, and does it apply to both immigrant and nonimmigrant visas . Your honor, i think the answer to both of those questions, as i read the order that the District Court separately entered is yes. Now, i think the reasoning of the courts opinion would indicate that this injunction against suspension of entry cant stand. At most it would justify an injunction that would force us to give immigrant visas, not nonimmigrant visas, and it wouldnt get you anything attentry. That seems to me the reasoning of the District Courts opinion but as i receipt the order and the end of this opinion it says im enjoying 2c everywhere it operates in the United States and across the United States borders and at every point of entry, not confluence, not the issuance of visas, it said section 2c. Thats the way weve taken it and the injunction weve been complying with. That was based on a vie laflgts establishment clause, right . Yes. That was the basis for not based on the statutory violations, i understand it. Thats right. I mean, i think his statutory analysis would suggest that he could not have entered this injunction, but by think he did ultimately enter the injunction just on the establishment clause claim, and i think thats how he got to suspending entry under 2c. Do you view him the issuance andentry in. Judge, heres what would i say. The 11828f gives the president Broad Authority to suspend the entry of any class of aliens when he dream it in the national interest. The way that the state department has always read that is to say when you are suspended for some valid reason under 1142f well deny you a visa because it doesnt make any sense to travel here and be denied entry at the bothereders and the reason is not the underlying reason for the suspension. Its that youve been validly suspended under 1152f. 11452 is not a limit on 11828. Its always been limited to did the nile of visas and forcing us to grant visas just so people can come to the country and be denied entry we would say it a fruitless exercise that the state department has never engaged in. Ittant doesnt conflating 11828 and 1152, doesnt it render 115 it superfluous . I dont think so. 1112 applies across board nor circumstances well beyond suspension where were just anding out immigrant visas, and what it was designed to do is set aside the nationality limits that had xiflted before the amendment. All this does it says, and i think the d. C. Circuit said this, in the narrow context of the president s sweeping power under 11828f it says, all right, the president has the power to suspend entry. We know that under 1112f. We wont read 1152 in that instance to force the government to give out visas that we know they wont have to honor when they show up. Were going to say when youre denied a visa under 1152 its not to look through and see what the reason was. Its just youve been validly suspended under 1182 and thats got nothing to do with nationality. Is tharp reading supported by section 1201g or section 1201g have sort of a different role . No, i think it is supported by 1201g and we pointed that out in our opening brief because what it says a visa doesnt allow you to enter. Its a travel document that says you can come to the United States and we can look at the border to see whether well admit you and a customs official who has a reason not to let you in can deny entry. 1201 supports the view if the suspension is valid as a statutory matter under 11828f we shouldnt read 1152 to force the government to give you a visa, but, again, if you brought that distinction, it would justify a very different one from this one. It would just be an injunction that says for the 30 or so aliens here seeking immigrant visas, only thing 1152 applies to by terms, we would be forced to give them visas when they showed up at our borders. We would say its harsh and fruitless. In real world terms what does this injunction stop you from doing that you could have donor wise . If these folks now just go through normal process, does it net them participation in the process, and does it mean they can get on a plane is and off the customs area . Does it allow them in the country . Whats the real net gain for someone under this injunction . Yes. So when youre talking about the six lists countries, so iran, sudan, somalia, libya, yemen, what what the injunction does is we what the president wanted to do was say i want to reassess vet willing procedures for those designated countries which were designated by congress and the Previous Administration. I got all in a. Netherworld what does it mean . Netherworld is says look, mr. President , you cant treat nationals from those countries any differently if they show up at a conflict and eligible to get a visa you have to give them one. You cant say im going to suspend your entry unless you qualify for a waiver. What does that vita entitle them to do. To come on a plane and come to the United States and when they arrive in the United States, unless there is some specific reason like a National Security threat that the customs official detects, they are admitted to the United States. Thats the effect. With all respect to this assessment of vetting procedures, its been more than 90 days since the first order was implemented. Has the government made any efforts or any efforts to engage in that vetting process . Weve not been able to, judge diaz, not because of the result of the injunction. Why, because youre adding briefs . No, judge. Because the judge only enjoined 2c but the district judge in the hawaii case enjoined all of section 2 and all of section 6 and section 2a is the section that directs the department to conduct a review of the vetting proceed use with respect to these countries. We went back to the hawaii judge and said, look, you cant possibly have meant to enjoin internal government procedures to look at vetting for these six nations an in the face of that motion the district judge said, yes, im standing by my injunction on section 2c. Weve complied by in a injunction and put our pens down and havent done any washington so the 990day period in our view hasnt been able to run at all what about the 90day period in the First Executive order. Thats an excellent question. When the first order came out, the state department and Homeland Security did begin to assess the vetting procedures for these designated countries. They didnt finish that review, but they did some washington. So you wont need the whole 90 days in any event, right . The problem is as soon as the second order came out, there was an injunction before it even took effect so they put their pencils down. Exactly how much time they need to finish i dont know but the point is since march 16th we have complied with the hawaii injunction and weve done nothing to review the vetting procedures for this thats after the First Executive order, before the second one went into effect is by 50 days, so 50 days of the 90day period ran, is that correct . Thats right, judge king, and we did you said you were not doing it because you believe youre forbidden by the order to do it. We went back to the judge in hawaii and said surely you only meant to suspend the entry of nationals under 1c of the listed countries and refugees under six 6. Surely you couldnt have meant to suspend or to enjoin the operation of other provisions that were not the subject of the briefing and internal to the government and the District Court in the face of that denied our motion and we have weve taken the injunction by its terms, deeply disagree with it but have scrupulously complied with it. Let me go back to the visas to make me understand it. If 2c were in effect, an application was made by a person from one of these countries, how would that be handled . How would the request for a visa be handled . If youre a Somali National and you came to a consulate and were you seeking a visa, what the consular officer would do, as with anyone else, he would say do you satisfy the other criteria to get a visa because theres lots of other grounds than 11828a that can render you inadmissible, ties to terrorists and all the rest. If you qualify for all of those, what they would then say is, okay, are you eligible for a waiver . If you have a close Family Member in the United States or youve done work there or youre going to study there, then you can get a waiver. Under the Current System were not doing it individualized on sort of a waiver basis. Youre treated like everyone else. You have satisfy the criteria and you get the visa even forecast youre from one of these countries and i think thats sort of a crucial point. The congress and the Previous Administration designated these countries, it wont Susan Macdonald by this administration on the basis National Security threats and what the department when he came into office said, look, i know the Previous Administration was satisfied that that was enough for these particular countries, but would i like an opportunity to reassure myself that were doing enough with respect to those countries. Youre saying the Previous Administration did what with respect to those six countries . It took dual nationals and travelers to those countries so individuals with connections to those countries, it took them out of the Visa Waiver Program so it said unlike nationals from other countries, were not going this those countries in their entirety. Dual nationals and even just visitors to, individuals with only those six countries. Well, yes, seven countries including iraq, but those seven countries, yes, and it said, look, for those, were taking them out of the Visa Waiver Program and well make them get visas and this administration said, okay, thats well and good, but we are not sure that the procedures by which were giving them visas are reliable enough because were not sure the governments are giving us good enough information. We want a 990day them visas ar enough. We want a 90day pause subject to the individualized waiver process while we check the procedures and make sure its enough. At bottom thats a policy judgment for the administration to make, and a number of the arguments the plaintiffs are making are in essence tackling that policy judgment. They deeply disagree with it, and i understand that, but its a difference of degree not kind from what the previous seems to me they are not attacking the policy judgment or the merits of the policies so much as they are questioning whether that really is the policy behind this order, isnt that right . And those are two different things. We, of course, customarily defer to the executives assessment of National Security, but thats different, isnt it, for whats really going on here . It is, but i think its important to understand the Legal Standard the District Court should have applied and im assuming, by the way, you found the one individual plaintiff has article 3 injury and has standing, but assuming you disagree and go to the merits, what we would say is under mandel, the question is legitimate and bona fide and that is rational basis for review and the question youd ask under rational basis review was, was it irrational for the president to decide i want a 90day pause to look at these procedures and as long as the arguments are framed in that context, was that an irrational judgment, no reasonable Government Official in the executive branch could have made this judgment, we have no objection to them, but most are framing under a far more stringent standard. How did bona fide get collapsed into rational basis . Seems to me the mandel formulation talks about what is the facial rational and also is it bona fide. And those are two different things. They are. I think there would be an interesting debate to have about what the bona fide means, except for what mandel said and what it did, because after it said was there any evidence in mandel, a public statement, official statement on the record that called into question the purported rationale for the decision in. Judge harris, two quick things on that, the court said courts will not look behind as long as its facially legitimate and bona fide. Bears conduct, but yes, there was. Justice marshall in descent says if the court would take, quote, just the briefest peek, he said, youll all see that the attorney general didnt deny mandel a visa because he had failed to comply with a visa on a previous visit. He denied it because he was a communist and he wanted to come to the country and talk about communism and marxism. The court said no. When the executive puts forward a reason that is on its face legitimate and that bears a relationship to what it did, were not going to go down the road of inquiring subjective motivations. Thats why supports the legitimacy of this on its face. So the order lays out the conditions in these six nations. The original order did not, but the president went back and in redrafting the order in response to courts concerns, went back through the six listed countries nation by nation in section one and said, heres why i think based on deteriorating conditions in these countries and their governments unwillingness to provide us with reliable information, im going to put a temporary pause while i take a look at our procedures for just these six countries. That evidence in the order on its face bears a rational relationship to what the president did. And if you treat it as rational basis review, which is what this court said the mandel standard is, rational basis review, other circuits agreed with that, the 2nd circuit agreed with that. Under rational basis, i dont think any question that in any other context if we had a law that set out factual findings like this, wed say that survives rational basis. Going back to judge kings question that there were 40 and judge motz, there were 50 days elapsed in the 90day period already, so the government had 50 days to do their vetting, presumably to add more to the record. Has any was any vetting done in those 50 days . Judge thacker, i think the first part is right, but i want to disagree with the second, which is we did do some work. Those departments were required to produce a report to the president. That was what the sorry . Within 30 days they were supposed to give a brief to the president. Thats right, but part of the reason, judge king, that the 90day period exists is to free up resources in those departments so they can do the review, and instead what weve been doing since january 27th is just litigating this order. We do not have that report yet, so i cant say to the court what the state departments and Homeland Security departments final the District Court in the 9th circuit only enjoins sections 2 and 6, so you still have sections. All those things are in order now, youve got this uniform baseline for vetting and screening. Youve expedited completion and implementation of biometric entry exit tracking system . My understanding, judge motz, is iraq is no longer apart of 2c, obviously. There has been work done in iraq. This is the most important thing under section just decided iraq is not how does that show us that youre furthering the terms of this order . You said you couldnt further 2 and 6 because they are enjoined. Im talking about 4, 5, 8, and 9. I meant to say the other sections have not been enjoined. The most relevant section is section 5, saying we can look at all nations across the board and we have been doing that. My understanding is there has been substantial progress in state and Homeland Security. They havent released anything yet, but theyve done a lot of work on it. What they have not done in doing that is anything specific to the listed countries because we have read ourselves to be barred from doing that. So there is work going on in the biometric screening and raising the standards across the board, but what were talking about here are just the standards for these six countries and that we have not been doing work on since march 16th. Let me take you back to standing for just a second. The government takes a position that none of the plaintiffs that the District Court appointed standing to have sustained, but do you differentiate for standing purposes for those seeking an immigrant visa as opposed to a nonimmigrant visa . We dont think it makes any difference. Our standing is this, were down to section 2c, they put forward four plaintiffs in the District Court who said we have a relative overseas whose entry will be delayed by 2c. Three of the plaintiffs have now dropped out. One because her sister is waiting for years anyway and they concede, i think, they havent argued all four for immigrant visas . I dont know off hand. Ill know for you on rebuttal whether they are immigrant or not immigrant. I believe they are all immigrant visas. And the other two have received visas now and we would say their claims are moved. I think were really now down to one plaintiff who still has a relative overseas, john doe one. Weve disputed whether he has article 3 injury because its speculative and shes almost certain to get a waiver if, in fact, shes married to him, but i think our basic point would be the courts been clear again and again that where you are alleging government conduct that discriminates on whatever basis, religion or something else, its got to be the punitive victim that brings that claim and here this runs to the aliens abroad and so john doe one doesnt have standing to raise in effect an establishment cause claim on behalf of his wife and plaintiffs implicitly recognize that and try to reframe the injury as a message of condemnation that just flows out to the community and for the reasons we give in our brief if you accepted that move under establishment clause standing, i think valley forge would be wrongly decided and i think you would basically eviscerate standing eliminations. Mr. Wall, lets get back to the facial legitimacy issue. In executive order number two, the president specifically stated that executive number order one did not provide a basis for discriminating for or against members of any particular religion. If we find that that is incorrect on its face, that it did, what does that do to the facial legitimacy of executive order number two if it, in fact, is relying on a statement that is incorrect . Well, i think first the president said that in the context of the provision about religious minorities that was removed and he said, look, that was religious minorities across the board, christians in some nations, muslims in myanmar. But the order, number two, affirmatively states number one did not provide a basis for discriminating against or for any particular religion. And if we find thats incorrect, does that not undermine, or does it undermine, the facial legitimacy of executive order number two . Based on something thats incorrect . I dont think so. I mean, look, however far their theory runs, i think even if you thought it affected the first order, right, the president went back and in response to concerns that courts had raised, concerns with which he disagreed but nevertheless revised the order, took out a number of categories of aliens who were alleged to have due process rights, took out the provision on religious minorities, took out the indefinite suspension of syrian refugees. I mean responded to all the concerns that courts had raised and now were right back here and the question is, well, can we just infer whatever we thought of the first order was true of the second, and i think the answer is no. Although the first order was fine why did the second order say that . You see what im saying . The fact that the second order affirmatively states that there was no discriminatory intent with the first order, where does that leave us as far as the intent in the second order . With respect, judge keenan, i think that was i think any president faced with the judicial decisions that the president had here would have said exactly the same thing. He said, look, i put in a provision that was supposed to protect religious minorities. I didnt mean that to operate on the basis of any particular religion. I meant it equally for muslims and christians. Some courts disagreed and he came at the statement youre talking about and he said i never intended that to discriminate on the basis of any particular religion there were nine muslims, had to be a religion other than muslim. Not with respect i think the president said something about it being christian on a tv program. Judge keenan, the provision the second orders talking about there was just one that gave preference in admitting refugees to religious minorities, and the president said i didnt mean that to operate only for any particular religion, but because courts were concerned, i took it out. I think judge keenan in the face of some of these decisions that showed real hostility to the president , i think it would have been a remarkable thing for him not to come back and say i did not mean the things that courts have been attributing to me, but just to prove it, i took out the parts of the order that they found problematic. Statements are relevant here, the statements he made on the campaign, the statements of the orders, statement after the 9th circuit. Where is it that we look at the president s statement and determine what he is saying . Judge wynn, give you a number of different answers, but let me start with i think the most basic one. Under the right Legal Standard, which is mandel, what the Supreme Court said is courts will not look behind once we know its facially legitimate and bona fide or rational. But theres then and theres then he adds in there is this affirmative duty to sort of look if theres bad faith and determine in bad faith, dont we get to consider what was actually said here and said very explicitly, even after the second order . There was sort of a wink and nod. Well, you know what i mean, even though it was changed. Does it make a difference . Judge wynn, let me just say a couple quick things, all right . Mandel says courts will not look behind to intrinsic material. The District Court said its a lemon case. Thats right. The District Court did set aside mandel, even though this court and the Supreme Court have consistently applied clause case, you got to look at the purpose, thats the first part of the lemon test, he said, youre looking at the purpose. If you look at purpose, he said that opens up. Looking behind it. Seeing what the real purpose was. That takes you back to whats been said. Whats been said. He went all the way back to november of 2015 and brought it up to the president. The time he signed off on the executive order. When he said Everybody Knows what i mean here. Judge king, yes. If the Court Disagrees with us and says, look, we think the body of domestic establishment clause precedent that the courts have developed in dealing with the constitutional claims by u. S. Citizens gets exported to the border where the president is excluding aliens in what is only can only be a youngstown one case. Everything he has under article 2 and Everything Congress can give him. If you think all those cases like mccreery equally travel to the border and its not mandel, which is always what has governed constitutional challenges of aliens abroad, then yes, youre looking at purpose are you getting that up at a use of discretion here claiming its a legal error to apply lemon instead of mandel . Is that what your honor, yes. We think that were a handful of legal errors, but thats certainly one of them. Thats the primary one youre focused on . Mandel case instead of the lemon case. Thats right. Mandel case declined this case. Thats right, thats right, but i want to take judge wynns question on its own terms. If you disagree that mandel is the standard also give me an equally assessment of what Justice Kennedy meant when he spoke in the plurality and he said absent of an affirmative showing of bad faith. That seems to be something of expansion beyond simply saying just give us a reason. Now i think theres two you put two questions on the table, judge wynn. The heart of the case. What does this bad faith exception do under mandel if thats where we are, and what does a purpose inquiry look like under all the domestic cases, and i want to take on intern. On the bad faith exception, courts never applied it to be sure, Justice Kennedy and alito indicated it was there, but look at what they said, they said it requires an affirmative showing of bad faith. If thats true for a single oneoff decision, we should require only the strongest, clearest showing of bad faith in order to impugn a formal National Security determination of the president in and after consultation with multiple cabinet officials. Thats a remarkable thing, and the bar ought to be very high, and what were talking about here are reaching back to a handful of campaign statements where i think, in fairness in the southeastern Legal Campaign statements, all this stuff was reaffirmed after the election. We have stuff after the election. Let me be more specific than judge kings question. After the signing shortly after the executive order 2 was signed, sean spicer said the principles remain the same, trumps statement, concurrent with that time, you know my plans. Spicer, President Trump yesterday continued to deliver on campaign promises. Is there anything other than willful blindness to prevent us from getting behind those statements . Yes, judge floyd, respect for the head of the coordinate branch and presumption the folks act legally. I think the Southeastern Legal Foundation part three of its brief does a great job of walking through constitution, not just respectful of the person, the constitution, is it not . No question, chief justice gregory, but he made clear in the months leading up to the election and after the inauguration that what he was talking about was the threat from terrorist groups that operate in particular countries that have been designated as state sponsors of terror or designated as countries of concern because they are safe havens for terrorists. He made clear he was not talking about muslims all over the world and thats why this is not a muslim ban. Text doesnt have to do with the religion, operation doesnt have anything to do with religion. Only thing weve got, we know despite its text and operation what was in the president s head and i think theres different ways to read those statements and respect for a coordinate branch and presumption of regularity, i think, require reading them in a way that is not most hostile to the president , but would render this action lawful. Sorry, i was going to go back to one of judge keenans questions. Maybe i shouldnt. But you had said in responding a few minutes ago that you didnt see anything wrong with the executive First Executive order. And i just wonder, given all your arguments, what would be wrong with a ban on muslims, in your view . Judge motz, i think that would run straight into mandels constitutional limit about facial legitimacy. I think its hard to imagine that a president who said that and an order that achieved that on its face or in operation wouldnt run afoul of mandel, but here we have an order that on its face and operation does not actually do anything on the basis of religion. Council, can i ask you to elaborate on the first thing you said . Sorry, it would run into mandel because even if the president made a determination muslims couldnt be safely admitted into the country, the courts could look behind that and say thats okay . I think it raises a question of using religion as a proxy in that way would be a facially legitimate reason. Not what you said in response to my question. Sorry, i meant to say the same thing, which is if a president , unlike this, came in and had an executive order that actually did ban muslims and he said im doing it for National Security purposes, i think that would be its hard to imagine that courts would say, the Supreme Court would say thats a facially legitimate reason. Who would have standing of that kind of a claim . I think United States citizens could raise mandeltype claims saying that the right to marry and protective liberty interest under the due process clause, First Amendment right to receive information, but i think its notable thats not the claim theyve raised here. Its just an establishment clause claim. And its an establishment clause claim based on government conduct, not religious speech, and the courts been clear again and again that where you have conduct, its the targets of the conduct, not third parties. Your position, i think it is, we just look at the face of the executive order in this case, and you look at the face of it and see if theres anything in the face that cause to question a religious ban on muslims, is that correct . I think its a little more than that. I think its on its face, but its also could a reasonable government actor have linked up this purpose of National Security and in terms of if there is a National Security issue thats linked in, then it would just be the question of facially what it does. And you think that is because thats out of respect for the coordinate branch of government . I think under mandel, because keep in mind whats on the other side, in the washington case they wanted years worth of discovery and up to 30 depositions of executive Branch Officials to inquire into what everyone put this executive order together actually meant by it and facing that in mandel, the court said were not going to look behind Justice Marshall. Its rational basis review. I do understand that, but i just want to be sure i understand your answer to my question. If you have if the president issued a what was called a ban against muslims from these six countries, with every National Security with exactly the same otherwise in the order, you believe that would be constitutional . Just to make sure i understand, judge motz, its an order that blocks only muslims from these listed countries and not all nationals. All nationals, because hes worried about muslims. So in text and operation, it does not operate on the basis of religion, but the president makes more unequivocal statements than what we have here. In the way he characterizes an otherwise neutral law. I think under mandel, no, you wouldnt blook behind it, but you dont need to agree with me about that, because i think the fall back argument which, i think, is pretty powerful, is that even if you thought that those statements ought to be ginn some weight, we had constitutionally significant events here. The president was elected, he took an oath, he formed a government, he consulted with his administration. That doesnt give him the right to violate the establishment clause. I dont think so, judge motz, but it should color the way we reach back and look at previous statements before he was an elected official, before he faced the demands of government, before he consulted with an administration and took an oath that allowed him to occupy the Nations Highest Office and even if you disagreed with all of that and thought the governments wrong about all those legal arguments, i ought to just see what they think they say, i still think the statements are ambiguous and out of respect and the presumption of regularity, i think what youd say is, we dont give the president the least charitable interpretation of what he said, give it the most reasonable interpretation in order to render the executive order lawful so that it shouldnt drift in and out of constitutionality based on what we think is in the head of the president who issued it. Has the president ever repudiated the campaign statements that he made on a muslim ban . Judge king, he has. Some of the briefs walked through this. He said, look, over time ive made clear he changed it from religion to nationality. He explained he wasnt going to call it religion anymore. He was going to call it nationality and mayor giuliani advised him to do it that way. He did do that. Going to territories. Hes never repudiated what he said about the muslim ban. Still on his website, the District Court here found that its on his website, Campaign Website, today. Or as of the day he wrote the opinion. Judge king, it is an archived press statement from 16 months ago, before we got into a campaign and we had a primary election, took an oath and formed the government, but the point i think judge motz was getting at this you dont challenge any of the findings of fact the District Court made. He said it. They are not findings of fact. When this court looks at what a lower court found facts, thats what District Courts do. Were not disputing the statements occurred as a matter of fact, although the president clarified he was talking about territories and terrorism, not religion, but our point is just when youre doing rational basis review or even if youre doing mccreery and all the rest, the purpose prong of lemon or rational basis review, these are not factual questions. Courts have always treated them. Clear air, on a ledge, there are any facts in the District Courts opinion that he found that are erroneous. I looked for that. The only facts, judge king, are the statements and we dont dispute as a matter of fact that the statements occurred. But thats always been treated as a question of law. When we look at legislative history or anything else to divine purpose, we dont treat it as a factual question subject to clear review. Its a legal question this court reviews. Mr. Wall, im sorry please. Didnt mean to interrupt you. Mr. Wall, im concerned about the absence of any linkage in executive order number two to the nationals of these countries. In other words, executive order number two talks about, oh, these countries are the governments are not well operating, problems are occurring in their own evaluation processes. What does the executive order say about the nationals about these countries that make them detrimental to the United States that they are allowed to go to normal channels . Its got a couple of examples for an iraqi national, Somali National, refugees. This is the key response to what youre saying is, i think the plaintiffs have reframed the question. Talking about 82 Million People, arent you . Doesnt it seems to me there has to be some linkage to show theres a detrimental interest to the United States posed by 82 Million People. There has to be something about those peoples nationality that renders them suspect or renders them dangerous. I dont see anything in the text of e. O. 2 that does that. Can you point us to anywhere that says because these people come from this country, they are detrimental to the interest of the United States . So, with all respect, two things, judge keenan. One, i think it misframes the question a little bit. The president wasnt suspending the entry of these nationals because he believes they are all terrorists. What he was saying was the Previous Administration in congress designated these countries and their nationals took them out of the Visa Waiver Program because of their links to the terrorist organizations. Im not sure. 11824. Would be detrimental. Didnt say may be detrimental. Would be detrimental to the United States. So what in the text. Im looking for it. What in the text of executive order number two supports the conclusion that these aliens from needs countries, these 82 Million People would be detrimental to the interest of the United States . I think whats in there, its mostly in section one is the president said, look, the Previous Administration took nationals, dual nationals, out of the Visa Waiver Program. He walked through and he said their conditions in these countries have continued to deteriorate, as have some of their relationships with the United States, as in the cases of iran and syria. I, therefore, am going to suspend it just to look at the vetting procedures and gave examples from the nationals from listed countries that had been terror threats, turned out before the court and i think what the president was saying was not i know that all these people are coming in are dangerous, what he was saying was, i want an opportunity, as the previous president had, to ensure myself that the procedures we had in place are actually enough and we shouldnt be doing more. And in the meantime, because im not certain example from iraq and iraq is not now included in the second ban . Well, one was an iraqi national, one was a Somali National. Again, i dont think what the president was saying was i know them all to be dangerous. He was saying im not certain. I just want to put a brief pause, allow individualized waivers if the state department and Homeland Security tell me that theres no threat to the nation when someones coming in. Im not certain that the statutory language, if the president is saying im not certain, the statutory language says he has to find that it would these nationals would be detrimental to the interest of the United States. And it sound to me like youre saying the president is saying, gee, they may be detrimental. Do you meet the requirement of the statute that the president has to find that they would be detrimental. Absolutely, judge keenan. Im not aware of any courts second guessing the president s National Interests under 1182f, but here what he said is, i find it would be detrimental to let in people from countries we know to be dangerous that have deteriorated over time until i have had a chance working with my cabinet officials to assess the vetting procedures for those countries. He said it would be detrimental in the face of that uncertainty. That is a reasonable finding, one that an executive branch official could draw. I think theres no question it could survive rational basis review and thats why plaintiffs have really tried to leverage the precedent and say this is a lemon case, this is a mccreery case, lets talk about subjective motivations, but judge wynn, to finally work back to your question, even in that context, what mccreery says is we care about official objectives, official acts. What is it that the government actors did that shows what this conduct is supposed to be . And if theres anything that campaign statements or a 16month course before this executive order was actually put down on paper dont show, its the official objective for government conduct. And thats why i think even let me ask you about that. Have we ever known a time in history where you had such very definitive specific statements before and then afterwards, within seven days, a policy or regulation or executive orders entered in which effectively the effect of it is there . And even if its later revised, it seems as though the effect is there of the very thing that specifically you say you would do. Have we ever had that kind of a situation in history . I mean, judge wynn, there are a handful of cases we point to in our brief. Have we had that happen in history, that weve had anybody take that position, where his very point of muslims, absolutely not people we want in this country, and then enact an executive order within seven days thats declared by courts to be unconstitutional, then you revise it, but the effect even the statements, as judge king pointed out earlier, well, you know what this means, or this is effectively the same thing, you know, what is the press secretary or whom ever. Have we had that in history . Even president reagan and bush and others, theyve been more specific. Never the National Policy specific individuals from the country. It was a Government Official who did certain things in cases like that. Have we had that . Judge wynn, candidates talk about things on the campaign trail all the time, and, no, we havent had a lot of litigation, because the right Legal Standards here dont allow for inquiries in the subjective motivations. Were already in uncharted territory. In the sense the District Court accepted here what i think is unprecedented, which is it set aside a law that is neutral on its face and operations because it performed the kind of psychoanalysis that mccreery forecloses. You put your finger on the best statement, and ill give it to you, we all know what this means, but even there the president and his advisers for months have been talking about isis and al qaeda, Islamic Terrorist Groups that pose a threat to the nation. When he looked at the title of the order, pregnanting us from foreign terrorist entry and said we all know what this means, the reasonable reading is not the one the plaintiffs can do. Its the president was talking about countries and groups that may intend to do us harm. And certainly in the face of ambiguity over what the commander in chief and head of the executive branch meant by an offhand sixword statement, this court ought to, i think, take that statement not at its least reasonable, not at its least permissible, but in a way that it was in accord with what the president and his advisers had been talking about for months, which was terrorism. Mr. Wall . Mr. Wall . Over here. I dont think the District Court suggested, as you seem to imply, that he completely ignored National Security concerns. As i understand, the District Courts rationale was he wasnt going to second guess National Security concerns, but he found those were secondary to the real purpose of the objective of the president. You may disagree with respect to the application of a lemon test, but if we find that test applies, whats wrong with that analysis . I think there are a couple of areas of law that got you there. First, where youve got a law thats neutral on its face and in operation, you cant reach back the campaign statements by people in their capacities as a private counsel, can i ask what do you mean by neutral in operation . Clearly the law has a disparate usually when we talk about on its face and in operation we mean on its face its neutral but in operation it has a disparate impact on a group targeted. How is this neutral in its operation with respect to muslims . Sorry, i said that a couple times, i literally dont know what you mean. Let me see if i can cover both. The law operates to suspend without regard to religion. Its not neutral in impact on muslims. It has a disparate impact on muslims, this order. Sorry, thats never been when the Supreme Court talked about a religious gerrymander or law that in operation is not permissible, it wasnt talking about in disparate impact terms and it couldnt have been, because actions may fall disparately in a given community. What it was talking about was something that wasnt a religious gerrymander. In other words, it was something that was not meant to harm a particular religion, but it had been disguised on its face with some other rationale. And here no one disputed in its operation every national of the listed countries, whatever their religion, has to go through exactly the same process when they show up at the consulate. If the argument then is that has a disparate impact on muslims, so, too, would have taken nationals out of the Visa Waiver Program, for instance, or designated them as state sponsors of terrorism. Countries of concern. I dont think this court would want to go down the road of saying ask what you meant by neutral operation. I mean not a religious gerrymander by the meaning of lacumi. Thats where the court has been on this. In the domestic context its taking this additional, all right, do we have a religious gerrymander and if we dont, then its okay. What plaintiffs i think want to do is take it an extra step. Well, what we care about is subjective motivations of people that put this in place and even if some president could have done this, this president did it for an impermissible motive and under mandel or mccreery, i dont think you can get there. Thats a bridge too far to do that. Just to mccreery were supposed to look at the purpose, were supposed to be the objective observer and find the purpose. Thats like the motivation, isnt it, the intent, the purpose . Yes, but i think this weaves into the answer i was going to give judge diaz, its still official objective, which you cant look at campaign statements and even if you thought i was wrong about that as a matter of law, generally they shouldnt get much weight because you havent taken the oath of office, havent formed an administration and consulted with them and at least in this case if you disagree about both of those things youd say, look, the statements were ambiguous, the president clarified over time what he was talking about were countries and territories that have known links to groups like isis and al qaeda, and taken in the light most favorable to the executive because of our respect for a coordinate branch and the presumption of regularity, were not going to read those statements to say the president was talking about something impermissible. I think youd have to reject all three arguments to get where plaintiffs want to go. If the statements were less ambiguous, could you consider them . In other words, if the president as a candidate for the office had said every day, my first day in office im going to impose a muslim ban, and then his first day of office he issued a muslim ban, you werent arguing you couldnt consider his statements of intent as a candidate, are you . Not if you were just applying mccreery. Under mandel, now youre like mandel, Justice Marshall saying, look, if you just take a peek under the reason the a. G. Gave, they denied this guy because he was a communist and evidence that shows it and the courts were looking at it, this is rational basis review. Saying the president could say that every day as a candidate for a year, i intend to ban muslims, they are bad people . And then the first day in office he does that. You have to youre saying that none of those statements could be considered, we would only be considering the facial legitimacy of the order itself. Judge keenan, obviously, we think you dont need to get into that here, because it was not a muslim ban. What im trying to get at, do you really mean we cant consider all the statements, or does it depend what laws you put on the statements, how you view them . Im concerned whether this is a subjective analysis on some peoples part or whether it is truly objective . So i think under the Supreme Courts decision in mandel, it says you shouldnt look behind, but if you think its got the bad faith exception that judge wynn and i were talking about, i think the kind of hypothetical youre playing out might rise to the level of that clear, strong, affirmative showing. All right, even though its the president of the United States and even though its National Security, well look behind it, but at a minimum what it illustrates is how far we are from what we ought to require to do such a remarkable thing, to second guess and to essentially say that the president is not you need to be very careful, because youre saying that might rise to bad faith. Youre laying the standard that, you know, bad faith is in the eye of the beholder, and so youre cracking that door. Im just saying, you realize youre doing that, which isnt a justification to look at what he said, and then we just weigh whether or not he meant it or didnt mean it. Judge shedd, what i meant to say is keep in mind, its not just you and i talking about, it was Justice Kennedy brought it up first. Then you and i started talking about it. What i meant to say, judge shedd is, we think the door is shut i thought you just opened it. [ laughter ] im not going to, but if you think justices kennedy and alito cracked open the door and you think that exception is there, courts never applied it and interestingly that concurrence, judge wynn, cites to the part of mandel where mandel reserves the justification. Not entirely clear what justices kennedy and alito were getting at, but if you think its there, then maybe thats the kind of thing, judge keenan and shedd, but no. Im going to close the door. Thank you, mr. Wall. Thank you. Mr. Jadwat . Thank you, your honor, and may it please the court . Counsel, let me ask you, started with opposing counsel. Counsel for the government is respective the four plaintiffs the District Court found standing. Only one remains, john doe number one, to have standing in their view. Do you agree or disagree with that, and if so, whats the basis now for standing or any of the plaintiffs other than number one . Fair, obviously, to be clear, one plaintiff withstanding is enough. However, and john doe one, i think, is the individual plaintiff who has the clearest standing of our individual plaintiffs, because he is here, hes not United States. He is muslim, who is whos not just who is injured by the order, by the message that the order sends, which is a real establishment clause injury. And his injury is particularized in a way that what about the other three, though, where do they stand at . So, john doe threes currently has standing because his wife is overseas. She has a visa, but she would, i think, be banned if she came in. Would or wouldnt . Well, sorry, your honor in light of the governments most recent representation, i think the government agrees that or has represented that she would be let in, so he has standing, but a less a more distant standing, because his he is still injured by the order. But doesnt have the same particularized connection to the ongoing effect of the order that john doe one does, because his wife will be able to come into the country. Who has standing to raise the issue of nonimmigrant visas . Am i understanding correctly that of the four plaintiffs, they all dealt with immigrant visas . Was there anybody whos got a nonimmigrant visa in the mix . I believe that i believe that there are members of mesa, one of the organizational plaintiffs. District court only found four folks had standing. Didnt address anybody else. Of those four, whos your candidate to raise the nonimmigrant visa issue . Yeah, i dont believe any of those individual plaintiffs is applying for a nonimmigrant visa on the part of a loved one. So the District Courts injunction get to nonimmigrant visas, as well as immigrant visas . Yes, your honor, because the establishment clause claim reaches is not specific to any visa type, and theres no theres no differentiation in the provision thats enjoined of the order that says, you know, were going to enjoin immigrant visas in one way and nonimmigrant visas in another. I understand that, but my question goes back to who before the court, this court now, of the folks that raised the District Court to have standing, if none of them have standing to raise the nonimmigrant visa issue, because none of them have that in the mix, whats the authority to address the nonimmigrant visa . The statutory claim with respect to nonimmigrant visas . Either one of them. If you dont have a plaintiff that raises that as an issue, thats not their skin in the game, so to speak, how does the nonimmigrant visa issue get before the court . So, with respect to the establishment clause, the individual plaintiffs in this case and the clients and members of the organizational plaintiffs, they are alleging or actually have put forward evidence that they are injured by the orders suspension of entry. Not only with respect to immigrant visas, not only with respect to nonimmigrant visas, but because it is embodying the message of condemnation to their religion. With exception of the four, the court didnt pass judgment on any of the other plaintiffs, so it would seem like that it would have to go back to the District Court to address the standings of all the other plaintiffs in the first instance. But i dont think theres any well maybe just direct yourself to the establishment clause, because your colleague on the other side has talked to us a good bit about valley forge, and why doesnt that do your establishment clause claim here . Because the plaintiffs in this case are nothing like the plaintiffs in valley forge, your honor. How so . The plaintiffs in valley forge were complaining about a localized event. First of all, valley forge didnt involve a condemnation claim. The plaintiffs in valley forge did not allege any kind of religious injury at all. First amendment religion claim, right . Yes, but they didnt allege that their religious beliefs, their ability to kind of feel like full members of the community, any of those things were injured by the Land Transfer that was at essence in valley forge, and, of course, most significantly, they had no proximity, either physical or in any other way, to the events that they were complaining about. They read about them in the newspaper. Do your clients have two or three of them have gone, right . I guess i thought in response to my colleague you were trying to make the argument that even those people who weve discounted have had some sort of proximity or establishment clause claim and have sufficient proximity to make one. Is that what you were saying . Yes, but lets start with the plaintiff who has the clearest proximity proximity, and maybe we can expand from there. John doe 1 has a very strong particularized connection to the order, because he is not just a muslim, hes not just part of the Political Community thats being affected by this order, but his family relations are being impacted by the order in the most direct way. His ability to be with his Family Member is implicated by the order, and so instead of sufficient fiallo, obviously, wasnt an establishment clause case, your honor. Right, but it dealt specifically with familial relationship. It wasnt i dont think there was an issue about standing in fiallo either, your honor. I think in terms of standing its clear that that john doe 1 is injured by the order, and that injury has the kind of proximity, the particularized connection, to the order thats at hand to take away any of the concerns that the Valley Forge Court had about allowing an abstract clause cases seem to there seems to be some direct exposure to a plaintiff. They saw the Ten Commandments in the courthouse or they got a letter from the school board or Something Like that. There seems to be some objective display directly to the plaintiffs of some tangible event that they see and participate in. This seems to be somewhat far removed from those cases like surry and some of the others, so whats your best case that supports your establishment clause claim here . Well, respectfully, your honor, i think this is more severe and more direct injury than the one in cases like surry, because surry is our case back in judge wilkinsons opinion. Thats right, your honor. It was an establishment clause. It was acknowledged in that case that surry had let me ask you, shift gears, scintillating, but im going to ask this of you. I understand your theory. Well come back to that and mash that out. Im going to give you a hypothetical. If in this hypothetical the president has a clear animus against a religious group and then it becomes clear to everybody, everybody, that that religious group is then involved in an issue thats causing some National Security issue to the u. S. , is may that president act in any way against that group, or is that president with the animus disqualified from acting because of that animus . Oh, so, i think its a twopart answer, your honor. First, if the government was actually acting in a facially i just asked you my question. A president has an animus against a group and then the Group Presents a clear threat, may the president take action notwithstanding his or her animus, or is the president no, your honor, the animus is not permanently disqualifying for any circumstance. What the question so that the president then in that situation could take action if there is a National Security risk. Your honor, i think the president could take action if it would appear to the reasonable objective observer that his purpose was not to forward his animus, to advance his animus, but, in fact, was for a secular his primary purpose . Yes, your honor. Let me ask you a follow up on that then. If a different candidate had won the election and then issued this order, i gather you wouldnt have any problem with that . Well, mccreery teaches us different candidate who did not make the same expressions as President Trump did . Yes, your honor, i think mccreery and other cases teach us the same action could be constitutional in some circumstances and not in others, but i want to emphasize my particular question my particular question is, if some other candidate had won the election and issued this executive order thats before us, i gather you would have no problem with that, is that right . I just want to clarify the hypothetical in one sense, your honor, because are we saying that the candidate or the thenpresident issued the order after consulting with agencies not over the objection that agencies had, but, in fact, it would not serve a National Security purpose . Set that aside. We have an order on its face. We can read this order. We have no statements by a candidate about this order. We have a candidate who won the presidency, some candidate other than President Trump won the presidency, and then chose to issue this particular order with whatever counsel he took, whether it was his personal adviser in the white house, or with the secretary state, Homeland Security, National Security, or whatever. He issued this executive order, do i understand that just in that circumstance the executive order should be honored . Yes, your honor, i think in that case it could be constitutional. However, your honor, i think that its important to understand that this order, even taking all of the purpose out of it, even if it were you basically want to set aside the provision of mandel, which says an order such as this, which on its face is legitimate, becomes illegitimate because of campaign statements that were made by the candidate for president. Not at all, your honor. I think we should well, seems to follow from that. Are you agreeing that the order is legitimate on its face . No, your honor. So why not . Let me start from the just answer our question. Is it legitimate on its face or not in your opinion . I dont think so, your honor, because the order is completely unprecedented in our nations history. Even with a secular purpose, there is no first order on anything is invalid . No, your honor, but you would expect an order that took as drastic as an action as this, theres never been a multicountry ban ordered by a president. Even in the months after 9 11. Previous president issued a restriction on nonimmigrant visas from these countries, plus iraq. Isnt that right . Im sorry, your honor . Didnt the Previous Administration issue orders that restricted immigration from these countries, plus iraq . No, your honor. All the Previous Administration did was require people to apply for visas who would otherwise not be required. Took them out of the nonvisa program, the program because of the risk of the persons who would be coming from these countries. Isnt that why they did it . No, your honor. I think the judgment and the brief of the National Security officials goes into this to some with some detail. The judgment of the Previous Administration was that people who were dual nationals from other countries who had either traveled to or in some cases were dual nationals of these countries your problem with this order facially is its the first of its kind . No, your honor. What about the text of the order . What about what the order says renders it facially illegitimate . Well, i think if you look or is it facially if you look at the order, sticking to the four corners of the order itself, if you look at the reasoning of the order, the order says these are countries who based on again, if you ignore the fact that National Security, current National Security officials have determined that it actually does not serve a National Security purpose. Current answer just on the face. Yes, your honor. Why dont you stick to the face of the order . You keep bringing in extraneous facts. The question to you, is the face of the order legitimate . If you look at the face of the order, your honor, if you look at the process in the order for identifying these countries, if you look at the brief of the interfaith organizations and actually consider the same sources, the same source that cited in this order, you would come up with a different list of countries, including nonmuslim countries. But whats wrong with the face of this order . You keep going off into tangents. Whats wrong on the face of this order . Tell us specifically where it goes wrong in the language of the order. What im saying, your honor, is theres a logical problem with the order in that if you try to apply the logic in the order, you would come up with a conclusion different, a policy different than the order itself. They list six countries that are state sponsors of terrorism that provide havens for terrorism, that are basically not functioning with governments in some of these countries and are high risks, people coming from those countries are determined to be high risks. Thats whats stated in the order, and youre saying that that is something wrong with that . The reasoning of that . What im saying, your honor, if you apply that reasoning, this is not the list of countries that you actually come up with. I thought you didnt want these countries covered. Are you now arguing you want more countries covered . Thats what it sounds like youre saying. No, your honor. Im saying that if this order were legitimate, if it were actually doing what it said it was doing, it would do something different. Right, and that sounds to me, mr. Jadwat, that youre saying the factual accuracy of the stated reasons matters. Does the factual accuracy matter, and to what degree . I mean, if it is factually inaccurate, are you saying that undermines the legitimacy . Or is it an intermediate, a lesser defect, and how do we analyze it . I think it would undermine the legitimacy of the order, or does undermine the legitimacy of the order, your honor, that it is factually inconsistent. Internally youre saying the president has to be correct in order for it to be facially legitimate . I think yes, facially correct. Factually correct . Youre saying its ill lej illegitimate because its inconsistent because it doesnt include other countries some of the countries it where do you get the information there are other countries that should be in this . If you look at the state Department Report cited in the order im talking about the face. Were trying to stick with the order. And the order gives reasons for National Security and makes observations about six countries. That seem to pose a high risk of National Security to the United States. Now, my question is, why isnt that a reason to support an order to delay for 90 days the issuance of visas until there can be an assessment of whether the vettings okay. You say thats irrational and inconsistent . Im saying that your honor, im saying that the sources cited in the order itself do not actually support the conclusions of the order. How do you know that . You cant read the order to tell you that. Im talking about you just dont want to answer the question as to whether this order on its face is legitimate. You come and say it should include other countries, you say, oh, some of the facts arent accurate. I dont know the face of the or from whats cited and i would argue incorporated on the face of the order, your honor. But again, the question under mandell at a minimum is whether its facially legitimate and bona fide. You agree mandell agrees . No, your honor. I think mandell is not the standard that the court needs to apply. Yes, i want to make very clear we went under the mandell standard, your honor. If we adopt the mandell standard you think you agree . Yes, sir. What is the standard lemon . Theres no reason to extend mandell to this context. Theres obviously no rule that would instruct the court to apply mandel. What applies . What what sorry, your honor. Is it the lemon test or the mccareery test . The lemon test is explained by mccreevy i think would apply, your honor. Thats what i thought. Correct. But even the Supreme Court made that application in immigration and foreign policy. I mean, those are domestic cases youre talking about mandel dealt with immigration. But they didnt deal with the establishment clause. I mean, what we have the First Amendment. It said the First Amendment first of all, it made it clear that the people beyond borders do not have constitution a l rights. It made clear thats a question of sovereignty of whos admitted and then were going to accept the congress and the executives application of orders so long as they are bona fide and reasonable, whatever the language of mandel is. But they were directly facing the First Amendment where as you know the accomplishment clause is also lodged. Yes, your honor. But they werent cases that involved a question about purpose. They werent cases that involved a structural command they did involve purpose. The court rejected a look to the purpose. Except from the facial language of the order. And, uryour honor, i think i there were any question of that, its answered in din. In Justice Kennedys concurrence in din. Which is very clear. You think we can rude the current executive order and say that the order is so inherently inconsistent and so badly motivated that it was issued by the administration with the advice of the secretary of state and Homeland Security and department of National Security, in bad faith . No, your honor. I think what this court should do is determine whether the order was issued in bad faith by looking to the evidence in the case. And the evidence in this case is not you know, its far from the best piece of evidence in this case that youre looking at the evidence of what the president said . Thats a big part of it, your honor. The government says we cant consider that. And i dont understand why because so thats where you all are like ships in the night. The government says it cant be considered what the president said during the campaign and what he said after the election and what he said since hes been president and you say we have to consider that. Thats right, your honor, because i think thats the most important issue in the whole case. Absolutely, your honor. Mr. Jadwat . Yes . If we cannot consider what the president said during the campaign, do you lose . No, your honor. Okay. Could you tell us why . Yes, your honor. I just thought you this is surprising because earlier i asked you if a different candidate had won and issued the order you said it would have been a legitimate order. So, what makes it illegitimate are the statements of campaigner trump about his intentions, isnt that what your argument . I think theres no, your honor. And let me explain why. Supportive of the argument, isnt it . Its not . Sorry. Theres at least three categories of evidence to look to here. One is the order itself. Another is the statements of President Trump. And the third is other facts that are in the record that are not statements. And so, one example of that would be what i have been faulted for mentioning several times the fact that the Intelligence Agency in the department of Homeland Security said that this order does not serve a national does not would not reduce terrorism in the United States. Theres the fact which is more recent that this who makes the National Security determination . Who makes the National Security determination in this case . Sorry . Who makes the National Security determination in this case . In other words, the determination that theres a risk that im addressing in the order. Who makes that determination . I actually dont think that thats the determination that needs to be made in this case, your honor. Its a question im asking you. Yes. I want you to answer it. But i want to be clear that the question in this case is what is the purpose of the order. Whether its legitimate or not. I did not ask you that. Yes, your honor. Who makes the security determination in this case . Ultimately the court has to make the determinations that decide the case, your honor. And you have your trouble saying that the president of the United States makes the National Security determinations in the interest of National Security . The president of the United States, of course, makes thats the answer to the question that shedd just asked you. Okay. But you are problem with the question is you can say it who makes the National Security determination. Not whos president or made it i. s what happened in this particular case when you look at mandel and you take it out of the facial part and consider din and thats a plurality opinion of Justice Kennedy and justice aly to made a concurrence and they said absence a showing of bad faith, so then the question then goes back to the question, is there bad faith . Not whos the candidate. Could have been any candidate. Any other candidates done the same thing, we would probably be back here now but we have on the face we have the statements from the president on the campaign, we have statements after the campaign, we have statements after the ninth circuit opinion and the question is, is that enough at this stage . We can get into this business of whether or not its facially there and can he do it, but just seeing it alone and having what has already been established pretty much that it has the affect cannot be sufficient because you could do anything in this country. This is not the first time in history this is tried but first time in this context. Thats right, your honor. And i do think that the implication of my followup question is going to be is it the president that makes the determination . Of National Security issue, interest in this case. Yes, your honor, but your argument is that hes tainted by animus, correct . Im saying that his purpose was a religious purpose. Tainted by his animus, do you think . Yeah. In other words. I mean, his harsh feeling towards muslims. Do you think taint goes to the attorney general, to the Homeland Security director and to the secretary of state . No, your honor, but i think if you look at the history of what happened in this case okay. Then let me say, but doesnt the record in this case indicate that at least expressly the attorney general and the director of Homeland Security gave a basis for the order . No, your honor. They most certainly did. Well, i think what the what this case shows, what the the sequence of the first and second executive order shows, and the way that the second executive order was said to relate to the First Executive order shows, is that the policy, the ban policy, which is at the center of this case the first question i asked you was if theres animus or something, does it continue all the way through. If the attorney general, following up on that, if the attorney general and the director of Homeland Security, the secretary, they say to the president that the current immigration policies place the country at a heightened risk of terrorist activities and it is imperative that we have a temporary pause and that temporary pause will immediately diminish the risk, why doesnt that then why would that you said they arent tainted. Why wouldnt that override any taint if you think theres a taint in the executive order . Because, your honor, the question is what was the purpose of this policy . The policy was decided on well before that letter was ever signed. That letter was actually signed the same way that the second policy was released. It couldnt have been taken you dont think its not in the record. You dont think people talk before they send the formal letter . Well, but i mean, its not in the record, your honor. Theres no indication and the secretary of state you think the implication i know the District Court made a determination of the same day, the implication the president didnt know the thoughts before he got the letter . Is that what you would have us believe . No, your honor. What i would have you believe is what the facts show which is that the policy was decided on well before that letter was signed, before consultation happened. Its clear what shows that that this is the case . If we take out all the campaign statements, im trying to understand what you have as far as your case if we excise his statements that you contend demonstrate animus prior to his taking the oath of office, what is your best case . Summarize it for us. Sure. Theres actually two lines, your honor. Theres preelection, post election. After before taking the oath of office. Before taking the okay. After he took the oath of office, he said, when he was signing the executive order said, we all know what that means, right . He also has continued to publish on his website his statement calling for total and complete ban on muslims entering the United States. Talking about the Campaign Website . Yes, your honor. On the white house website . No. But it is his website. He does update it almost daily. It does say things from the website . Im sorry, your honor . Could he have removed it . Of course. Of course he could have, your honor. Government seems to suggest i thought but ill be corrected on rebuttal, once it is on there, its on there. Thats all there is to it. No, your honor. Not only has he not removed that statement from the website but, of course, he has not taken any other action to repudiate still there today . I havent checked this morning, your honor. Was it there yesterday . Last time i checked which was in the last week or two. I cant give you the exact date. The principle, we are going to look at the taint that this person who signed the order has and were going to look can we look at his College Speeches . How about his speeches to business men about 20 years ago . Are we going to look at those, too . No, your honor. Were not giving you any of that sort of evidence in this case. What we are looking at is statements specifically about i know. But he made those type of statements as a College Student perhaps. Perhaps he made it to a Business Club in new york. During a speech 20 years ago. Perhaps he ran for office earlier and made similar statements. Are we going to look at all those, too . Your honor, those would be much less probative than the statements he made over the last two years in the course of campaigning what you look for is things that are relative and probative. Thats right, your honor. The ban of muslims figure out motive and intent . I want to ban muslims and next times he says for clarification, im talking about the terrorists and im talking about the people from isis and al qaeda. So which one are we going to use . Well, your honor, respectfully, thats not what he said. He said that islam hates us. We have a problem with the muslims in the United States. What he said did he ever mention extremists or terrorism or al qaeda or isis . Sure. But, your honor, what he said was, im going to ban muslims. Period. And then he said, im going to do it by talking territory and not muslim which is what he did, your honor. Im sorry. I think i interrupted you trying to answer a question about what can we base it on post january 20th, 2017. Whats your best case . Yes, your honor. So to start from the fact, again, that he has been republishing or publishing this statement, this call that the not only calls for banning muslims but that makes statements about muslims in general, the fact that he made that statement when he signed the order saying we all know what that means, and respectfully, your honor can i ask you yes, sir. What was he referring to when he read that. He read the title of the order and then he said and we all know what that means. Whats the title . Protecting the nation from terrorist entry foreign entry into the United States. Thats right. If it had meant that then there would be no need to say we know what that means, your honor. If and then, to and then i think theres the fact evidence for no, your honor. Where do you get your best evidence . Save it, whatever it is. Then theres the fact that he put this order into place without consulting the agencies that actually have expertise and knowledge in this area. So he offended the bureaucracy . Thats the constitutional crisis that he didnt consult with the bureaucracy . I would suspect maybe you dont believe it. I bet a lot of that bureaucracy willing to resist him on everything he wants to do but a president s not required to talk to the bureaucracy before he acts. Do you think . No, your honor. But i think the fact that he did it is relevant here. The fact that he did it is relevant to the question of whether his purpose was the stated one because i want to talk to you for a second about Public Interest. The District Court said this. The District Court said there are heightened Security Risk with the designated countries and it said it did not want to second guess the conclusion that National Security interest would be served by the travel ban. With those statements by the way, this district judge no fan of the order, obviously. He made those two statements and then i didnt see he dealt with what i asked you about. That the statement from the attorney general and the statement from the Homeland Security director when they say theres a problem, it creates a risk, we need a pause and that will diminish the risk. He doesnt deal with that in his order. Shouldnt that be dealt with in what is in the Public Interest, whether you deny an injunction, although several people may be have their rights infringed upon, maybe, and they would have their be stressful about it for 90 days, versus the high Security Risk and taking 90 days to protect it . Shouldnt that be considered in the conversation of wherein lies the Public Interest and the winter case, by the way, suggests that in a case, a Public Interest alone can justify denying an injunction. Your honor, i need to disagree with your characterization. I thought you would. With your characterization of the injury suffered by the plaintiffs. By the way, dont take that too much. I was just trying to encapsulate that. Theres an injury under the assertion and a serious extraordinary injury. Theres no your honor 90 days. A period of 90 days in light of the fact now, im not saying that you have to agree with any of that. Im just asking, did the District Court even talk about that the way you and i are talking about it . No, your honor. I mean, the District Court found a constitutional violation. Talk about Public Interest, though, in the way you and i are talking about it right now. Well, so i first of all want to point out that the violation, the injury to the plaintiffs is severe. It is constitutional. Im giving you that. Ill give you that for this argument, sure. And i want to also point out the government had the opportunity in the stay application in this court where it said it needed the extraordinary emergency relief of a state pending appeal to put in something, some piece of evidence, suggesting that there was they have put in statements from the attorney general who i think you said is not tainted by animus and they put in a statement, same statement from the secretary of Homeland Security outlining just what i said. This is a serious problem. We need a stay. Thats in the record. With respect, your honor isnt that in the record . The statements by this i said isnt that in the record . Yes, your honor. It is not record. But the letter just ek coals whos in the order. It doesnt actually provide any additional facts or evidence that would suggest that the Public Interest is actually being served here. Heres the thing. Is the president , is the administration, the executive branch, not entitled to some deference . As you know, we give it to functionaries, bureaucrats, whatever, you shouunder chevron. We give it to congress. We presume they have acted validly. We presume that. Are the secretary, cabinet level folks in the administration not entitled to any deference on their conclusions . But deference cant be a license to violate the establishment clause. I didnt say it was. On the question of risk can we rely on their assertions . On the question of your honor how severe the risk is. I dont your honor, i dont read those letters saying theres a severe risk that would come from enjoining the order. No. But it said the underlying current immigration policies place the country at a heightened risk of terrorist activities. It is imperative that we have a temporary pause that will immediately diminishment some of thats paraphrasing. But thats what they said in the letter. Theres a great risk. A temporary pause. Great risk of terrorist activity. A temporary pause will diminish that. Thats what they presented. Are they not entitled to any theyre not entitled to any deference . They may be entitled to deference, your honor, yes. I mean, theres a reason to defer to the judgment of officials close to the facts. Wouldnt that be considered on granting or denying the injunction and why shouldnt that have been played out . It wasnt played out at all. I think because, your honor, the Public Interest does not lie in allowing a constitutional violation to consider. But you have to to continue rather. No. Thats fine. I understand thats your view. But you have to talk about the interest on the other side and explore them. You just cant shouldnt say i make this conclusion. The court is supposed to at least on the injunction issue weigh them and talk about them seriously. Your honor, i dont think theres enough on the other side here to weigh against the fact that the District Court found a clear violation of the establishment clause and i think that the approach to deference that would allow us to sweep aside all of the facts that show the president s bad faith purpose here to actually target a religion for condemnation, to denigrate how effectively does the order target muslims . If he wants to ban all muslims, what percent or muslims affected, potentially affected by that ban . Its a significant percentage less than 10 probably . Worldwide. I dont have the number to hand your honor, more than 0 of the people banned by well over 90 of the people banned by this order are muslim. That established that more than muslims are affected by this order. In the world, in the world, number of muslims is close to 2 billion. Maybe a little shy of that. Your honor isnt that what if you take my word for it . The people affected by the ban, potential affected, less than 10 of all muslims. Do you think thats an effective effort by the president to ban all muslims . I think it is exactly what he said he was going to do, your honor. Ban all muslims . He said he was going to ban muslims and operating on territories. When he said he wants to ban muslims, do you think that do you assert he wanted to ban all muslims . I thought youd said that. Thats what he said, your honor. Counsel, how long does the taint last with respect to this administration . I dont think theres a formula, your honor. I think that the question some point if this case gets beyond us, the District Court has to come up with a test, right . No, your honor. I think with respect to this order, the analysis set forth in mccreery shows this order violates the establishment cluz. And then what . What happens 60, 90 days down the road . With respect to the establishment clause violation . With respect to this administration and the attempt to protect terrorism if that is, in fact, their intent. I think if the administration wanted to take some other in fact, the administration does things all the time, every day, to, you know, change immigration policy, to affect National Security in various ways what if they heightened the vetting in these six countries, based on the investigation, and require more information, more support for visas . Will that now be tainted because the president doesnt like muslims . No, your honor. I mean, i think that the question, your honor, would be would the reasonable observer looking at the specific set of im talking about this specific im giving you hypothetical. Stick with the hypothetical. Yes, your honor. The hypothetical is after the investigation, they step up the vetting practices in these six countries. Increase the information required in the investigation thats thoroughness of the investigation. Could those investigations, could the same people now challenge that increased scrutiny as violative of the establishment clause . Right, your honor. Based on the same evidence you have . If its a ban, the yvetting such a high it is not a ban. Its just increased standards. Stick with the hypothetical. Yes, your honor. Well, the and i dont mean to what im saying is it depends on how the vetting would operate in fact and i think scrutiny. It asks a lot more questions from people seeking visas from these six countries. Yeah. Based on the investigation conducted. Right. Now, the question is, just as the order appears okay on its face, it is the motive behind it, the taint, that causes the problem for you. Im that taint, this is following up a little bit on judge diazs question. That taint now would also have to go to the implementation of the order, right . In other words, what they do is they increase the scrutiny and some citizens say, i dont like the increased scrutiny. It takes longer and i have to spend more money and effort to get into the United States. Right. Violation of the establishment cause. No, your honor. Thats not anything like what the plaintiffs here are alleging. What if the president repudiated his statements, campaign and postelection about the muslim ban . What if he repudiated them all . I think that would be significant, your honor. It would be a significant fact. I dont know whether change the results at all . Does it change the result in your mind . If if the president you said repudiated it. Does that change the result . I think a simple repudiation might not no. Would not change the result. What if he says hes sorry every day for a year . [ laughter ] would that do it for you . No, your honor. Had that question earlier about right. Because his repudiation the question, your honor drove him to repudiation and repudiate that, you would say, too bad . Well, heres the issue, your honor. Is that what the establishment clause prohibits is targeting and denigrating a religion. At a minimum. Thats what it prohibits and the question is, would reasonable people see what he was doing in total as achieving that affect . So you said reasonable people said he doesnt mean it when he says hes sorry . Your honor, i think its possible that saying sorry is not enough. Thats true in a lot of circumstances, your honor. Let me ask you something thats not a hypothetical. Let me ask you about what the judge actually did here. He issued a nationwide ban on the section 2c. Not this judge. Imposed a 90day suspension. The rest of it i take it is still in play. Theres an order out there, too. If the apparently two fold. It helps the country. 90 days is not forever. The real purpose has to go to the whole business, theres a study and going to look at it to see if they can get some rules. Whats preventing the government from doing that, even as were going now . Government can do that . How do you prevent the president from conducting a study of all the other stuff that can be done outside of the 90 days . Seems to be consuming us about this 90day ban and just three months. Not a long time. The real issue has to go to something beyond 90 days because we dont want a country thats safe for 90 days. We wanted a country thats safe for years and years in the future. Theres a business of reports being done and i dont understand how the president can be prohibited from doing those ongoing things whether it is to make sure that theres good travel bans or travel things from the other countrys that are working out, eastbound though this is a this specific thing which is before us has been done. Hows that possible . Right, your honor. Obviously, to begin with, theres nothing in judge fongs order to prohibit the counsel to say theyre under a court order not to do the studies or reports that they condemn plait. I dont completely understand the governments position, your honor. I understood the government to be saying with respect to the six countries they cant do studies but respect to other countries in the world they can. And but the six countries section 2 six countries are the ones that the president and his team have found present the highest National Security risk. Your honor, all im saying is that i believe section 2 of the order actually talks about a worldwide review of all vetting procedures across the country so i just really dont understand how the government arrives at its conclusion. Whats before us is 90 days suspension. Yes. I know theres a nationwide ban of hawaii. Maybe an affect of this and remedy but before us is that. And if we say nothing wrong with that, you can still do it at least on our order, all that other stuff. You can give reports. What prevents it . Hawaiian court really do that . I dont understand that. You know, i think that thats ultimately a question thats outside of my purview in this case. You understand that the hawaii order says you cant do it, you understand that much . Yes. The hawaii order maybe going to jail in hawaii is nice. [ laughter . Doesnt enjoin the whole order. Right, your honor. Theres the other provisions that talk about improving of the quarter, theres several provisions of the order that are still and the governments lawyer acknowledged that to me and said they have been indeed doing what theyre supposed to do under those parts of the order. Right. And i think the question of the ongoing impact of the hawaii order on the other studies will be probably clarified in the hawaii litigation but i got this before we leave. Do you have any problem with the government conducting these studies . No, your honor. If they just took away the 90day ban, study i suppose all the things they want to do. Even if the Hawaiian Court has a problem with it, you dont have any problem with it in terms of them doing else in the order but just the 90 days were talking about . We have a problem with the ban in section 6, as well, your honor. But with the stud dis, we dont have a problem with the government proceeding and the government had all of the time under the first order that it had given itself to complete that study done in the first order and they didnt do it, your honor. So the notion that all of this is really those studies came forth with some compelling information or at least maybe even a bona fide reasons, your case would probably be less effective at least from your perspective, dont you think . I think that would change the analysis, your honor, if there were facts like that in the record. Washes out any taint . At some point, your honor, then if those studies came forward with some information suggest this is a good idea to do this, then what trump said or however he acted, that doesnt matter to you anymore . No, your honor. Look and i think mccreery makes this clear, your honor. Theyre significant changes, your honor. If theres significant would it change your position in this case . Would you say, we have got the stud dis and they suggest this is a good idea . And therefore, what the president said in his campaign, whether we can use it or not, we want to make it clear. We dont want to use that anymore. Theres no taint. The order is fine. You wouldnt say that. Justice suitor said something quite like that. He said you could have something unconstitutional under one set of facts and another action and cease being constitutional. I was asking him if he agrees with justice suitor in this case. Well i think he doesnt know what the other additional facts are. I tried to tell him. Came forward with information that said that this is a good idea and makes sense. This type of approach makes sense from these studies. Your honor change your position . To bring it back, my understanding is what the studies may or may not say you know what you have us doing . We are the court of a third branch and you have the judiciary and the judges in the country supervising and assessing how the executives carrying out his office in the National Security and deciding when taints are faded, when taints are carried on, who theyre carried on to, what evidence did the candidate say before, what evidence did the candidate say in college. I mean, dont we have some respect for the first branch and the second branch, like mandel said . Said in the area of immigration that is the greatest deference we owe to congress and the executive. Your honor, of course were not asking you to super intend every decision but sounds like it. In this factual circumstance the taint fades. Maybe it goes away. If he says sorry without sincerity, no, we are not going to because the nature, your honor, of any factual inquiry of purpose which is both what mandel requires, the nature of any factual inquiry into purpose is going to turn on the facts before the court. And that is a decision that mandel excluded purpose. It said you look facially and in this case facially at the order the order says in the interest of National Security, based on the fact that these six countries sponsor terrorism, provide havens for terrorism, we dont know consulate operations in some of the countries, and these countries because of the higher risk, we want 90 days to study the issue. Your honor, respectfully that on the face establishes religion. Respectfully, the approach youre taking reads out the bona fide prong of mandel and discards Justice Kennedys control concurrence in din and it is just not consistent with the law and it would lead to the point that the government wants to leave you at which is that the president could say tomorrow i dislike jews, i dont want them in the country. Im going to issue an executive order banning israelis from the United States. If youre right and say its right because if youre right about the order in this case then i just dont know where it stops because hereafter if we increase the vetting in some of the countries where they sponsor terrorism, the argument is going to be the same one, a wife who wants to come to this country and whos delayed will say, this was because im muslim. Not because of the National Security. And were going to have the same debate. Well second question the face of the order and or the face of the practice. I dont know where it ends. It seems to me we have to function in our three branches and give some respect to each branch. Your honor, i think the question is not so much where it ends but if it starts at all. And if the court will do its constitutional duty of making sure that the establishment clause is real, that the president is not allowed to violate it simply by invoking a National Security reason no matter how thin or protectional it might be on the face of the facts. That is happening here, your honor. You dont have to address the question. The remedy would be that we would have a different take on immigration policies because this isnt acceptable. Is that it . And who would decide what that is . Im sorry. Who would decide what immigration policy . The president would decide on what immigration policy is and congress. Well, the president just tried to decide. He tried to decide it with a 90day ban. He thought that was in the interest of the country. Faced with National Security risk an doesnt take any steps to avoid it and then somebody who comes through that light vetting or whatever you want to call it, comes here and creates a disaster, takes american lives, its on the president. If the president tries and hes stopped this way, and something happens, some person falls through that no longer allowed pause or the vetting from countries where theres just total chaos, and something happened, whos responsible for that . Whos responsible for that . Your honor, the person who does it is responsible for the act. As far as setting policy. The president is not allowed to set a policy that violates the establishment clause. I got that. So its not its not this courts fault for invalidating still falls back on the president although he said theres a risk, the attorney general says theres a risk, im trying to do something about it, because a taint that we would read into it to get to the motivation would say that cant be done, so the president i started by asking, could the president do anything just to pause things for 90 days . If he cant do that, if something happens in that time period, whos responsible . Well, your honor, its obviously been more than 90 days and nothings happened not 90day period or the period until we resolve it. Whens responsible . When the American People say, whos responsible, the first part they look at the president and go, you didnt do what you should have done to take care of us and he would go, i tried to. I tried to. So whos responsible . Your honor, i think this is actually good place to end . Far from. [ laughter ] will we think differently of korumatsu . If you dont lock them all up and something bad happens, then its on the president. If you do, you violate law. If we follow that, does that follow every other thing we do . I think it means that we always have to defer whenever the president says hes doing it for safety reasons. You are not about the hypothetical of jews into this country and some notion that the president would be able to bar that . What would be the rational for that . If the president said on the governments theory as i understand the governments theory, its the theory he wants you to adopt rather than the theory. Its a second best argument. The government says that as long as or the government would agree that as long as if the president said i want to bar jews because i think judaism is an evil religion, lets say, and then he issued an order the next day that said israelis are not allowed into the United States, i note that terrorist attacks have taken place in israel and infiltrated the state of israel on occasion. Full stop. That would be facially legitimate and bona fide. This order would be facially legitimate and bona fide on the governments reading because they read out the prong and facially legitimate could have no actual searching analysis behind it. Well, but the face of the order has much more on than that, right . Justification for the countries set out . This is one country and justification. Not very different. Thats one paragraph for each country. Three lines maybe. In this order. And they say essentially the same thing. There are terrorists in this country. Theres problems in this country. Thats enough on the governments theory. Hopefully, in fact, it was the predecessor administration that made that determination. Isnt that right . No, your honor. The predecessor Administration Made the determination that vetting dual nationals who would otherwise get in without a visa, through the visa process is sufficient to address any National Security concerns about dual nationals. So this is not something of this current administrations imagination. There was some basis to initiate the process to begin with. Your honor, i dont think that the determination made by the Previous Administration about these countries resembles at all the determination made here. Its true they touch on or both address the same list of countries but theyre different determinations and they cant different results but not different reasons. In other words, the Previous Administration found a risk in these seven countries as does this administration. So, at that point, the fact that theres a heightened risk is legitimate and is bona fide. At least under your standing because youre saying if somebody else issued this order it would be all right. Your honor, i again, i mean, to come back to the hypothetical i was trying to play out, if there were i mean, they could point to probably some determination made by a Previous Administration that, in fact, terrorist attacks had happened in israel and that terrorists had infiltrated the country. Theres a whole list of countries in that state Department Report, again, many of which are nonmuslim countries that have some history of terrorism, some concern about them being safe havens. That you know, but that is all that is, you know, in the governments view, that they didnt have to do that. All they had to say was im doing this for National Security reasons and i have good National Security reasons and thats it. Notwithstanding and without regard to how clear the evidence of animus was, how direct the effort to denigrate a religion might have been. And that really would essentially say that as far as the president goes the establishment clause has no meaning. Thank you, mr. Jadwat. Thank you, your honor. Mr. Wall, you have time reserved. If you want to take it. Mr. Wall, you want to start out with the hypothetical that your opponent spun out . Is he right . No. I think if the president came in and had a law that was neutral on its face in an operation that didnt operation operate on the basis of religion, no, i dont think hes right f. The president came in and operated on the basis of religion, did it explicitly or through a he said that the president s has an animus toward jews and he hes indicated that publicly but apparently on the face of this order that hes spun out theres also some facial justification for excludeing jews from this country. Does that present a violation . If the president puts forward a rational not connected to religion and that national is supported by the order and sufficient to survive mandel, no. If the president doesnt, then it would fail. It doesnt matter what the president says, essentially . Youre saying it only matters what the president does in his official capacity . Well, i dont want to go i dont want to press this too far, judge keenan, because the qualifier at the end is very important. We can imagine that the president would say or do things in an official capacity, not on the campaign trail but taking the oath and come in office and say and do things that would bear on the order. Here we have one sixword remark signing looking at the title. Just three very brief things. Press there because you say as you read mandel, we cant look behind it, whether he says it or she says it as president or not. I think that once youve established that it survives rational basis review, thats right. Mandel says you dont look behind it except as judge wynn said urge us to say that on its face its legitimate. And you read out bona fide it means something, same thing. No. Bona fide is, look, same way rational review works and this court said it in the johnson v. Whitehead case looking at a statute alleged to a Court Preference for visas on the basis of sex and illegitimacy and the court said we look at the executive branch ration l and whether that rational bears a reasonable relationship to the conduct, if it survives that, we dont inquire behind in the subjective manifestations, thats mandel. A reasonable attorney general giving a reason here could have kept mandel out. I promised an answer can i ask a last question about this . Theres another line of cases. I dont think its in the brief but chada is. Where the court says, look, plenary power and consistent with the constitution. All right. So we have to apply the constitution. And if the constitutional norm, the establishment clause, if the constitutional doctrine imposes a purpose test, it seems like now were a little bit across purposes. We have one set of cases to apply the constitution even in the immigration context and then we have your reading of mandel saying we may not look at purpose but the constitutional rule is you cant act with an impermissible purpose. This is by the bona fide qualification in mandel. The rule to apply by cases involves a purpose inquiry, good newses, mandel allows for a purpose inquiry under the bona fide formulation in din. Whats wrong with my elegant solution . Judge harris, it is a requirement of what the constitution requires. Mandel is thought to apply to constitutional questions and aliens with no constitutional rights. In cases that deal with deportation or aliens here with some rights under statutes or the constitution, what the substantive standard is can change and we no longer think its just mandel. It can be something more. Always a question. Were not saying the constitution doesnt apply. We are saying it applies under mandel in that because the president is operating at the height of the powers, youngstown 1 not dividing up the power of president and congress. I thought the through line in youngstown is, look, if neither the president and congress can do it because of the First Amendment, its not a youngstown question at all anymore. I dont understand what it means to say that. No ones arguing about whether this is Congress Versus the president. Why is youngstown involved . No. It is safing where the president is acting at the borders to protect our nations security because hes operating at the height of his power, constitutional and statutory, what the constitution requires is lower than what it requires in other contexts. It requires as mandel says facial legitimacy and a bona fide reason but the court goes on to say but you dont look behind and cant meant you inquirely of subjective motivation. What it has to mean by that is what this court has said. Its rational basis review and when counsel says, look, other president s could have done this, i think hes conceding that it survives rational basis review. And then were all down to the statements and its all a question of the statements and even if you disagree with all of our arguments why as a matter of law you cant consider them, theres not enough here to overcome a judgment of the president. Youre about to answer my earlier question. I was, judge. The three john does or one, three and jane doe two, seeking immigration visas. Paul harrison, the fourth seeking a nonimmigrant k1 visa but only john doe 1 still has a live claim. Obviously, we have said he doesnt have article 3 standing and doesnt have pruntd shl standing under cases like valley forge. Individuals seeking a nonimmigrant visa, was that one of the four the District Court found had standing . Well, the District Court didnt rely on the fourth who was Paul Harrison because as we told the District Court at the hearing, the spouse received the visa and didnt rely on Paul Harrison. Rely and the three does but one doe, it will be years before a sister could come in no matter what happens and i dont take the plaintiffs to be relying on her and she can travel. Only john doe 1 has a live claim and if you disagree, i think the courts got to narrow the injunction to the alleged injuries of john doe 1. You have a global injunction resting on one plaintiff. And this court was clear in the Virginia Human Society for human life case that where you have a plaintiff, no matter what the nature of their constitutional claim, if that if you find that claim is likely to succeed on the merits, they still only get an injunction to address their injuries and here thats john doe 1 and wife. Its not an injury that extends to everybody else in the country and everybody else at the borders. Okay. Mr. Wall, let me ask you about this numerical sweep because thats whats one of the things bothering me a little bit. My math wasnt right earlier when i gave you a number. It really is about 200 Million People who are caught in this net when you add up the population of these 6 countries and we have a few examples cited of terrorist activity in the executive order but not attributed to the nationals, not attributed to any of these 200 Million People. Does that affect the facial legitimacy of the order when it has such an enormous sweep of 200 Million People, and just isolated examples that dont involve these 200 million . No. So i dont think i was very clear on this earlier. So if you look at sections 1d through f, what its focused on is the countries and what the president is these countries governments are not im sure he says, im not sure theyre providing us with reliable information so im not sure i can screen out the nationals who may want to do us harm and thats why i want to put in place the temporary pause. So its not focus and the nationals so much, judge keenan, as it is the governments of these countries and our relationship with them and whether were getting reliable information in order to be able to screen their nationals and i think if you focus on those sections thats really the basis for the order and i think its clearly enough to trigger the president s determination under 1182f and at that point all theyre left is constitutional claim. And theyre really down to the statements and thats what it all boils down to and i think for all the reasons ive given they shouldnt prevail on that but even if they did we would be looking at a narrow injury and thats not what this injunction is. And the last thing, if i could just say this, chief judge gregory, i mean, look. The order before this court has been the subject of heated and pagsal political debate to be sure. But the precedent set by this case for this courts rule and the judiciarys rule of reviewing the president s pow ir at the borders to keep our nation safe will long transcend this debate and this order and this constitutional moment. And in cases like this one that spark such intense feelings on both sides, we would respectfully submit it is all the more important to apply the usual rules of interpretation and injunktive relief. We respectfully submit that debate ought to be left where it belongs in the political arena and this injunction should be vacated. Thank you. Thank you, mr. Wall. Thank you, counsel. Going to ask clerk to adjourn the court for today. Well come back under counsel. Please rise and remain standing. This Honorable Court stands adjourned until tomorrow morning. God save the United States and this Honorable Court. A live look at the u. S. Capitol on this wednesday where the u. S. Senate is in session. Lawmakers today reacting to President Trumps firing of fbi director james comey yesterday. In response to that, Senate Democrats today objected to the twohour rule which requires the full senates unanimous consent for hearings to continue past two hours after the senate comes into session so that meant todays hearings had to end by 11 30 and no afternoon hearings to take place. We dont know at this point if democrats continue to invoke the rule tomorrow and for the rest of the week. We of course continue to follow the situation and bring you any updates as needed. Last week, House Republicans passed a Health Care Bill to replace the Affordable Care act. Senate republicans are expected to create their own version of the bill and today Senate Democrats will look at the possible affects changes to the Affordable Care act could have on patients and on the health care industry. Theyll hear from Health Insurance officials and several people whose families face health challenges. The Senate Democratic policy and Communications Committee holding the meeting and live coverage at 2 30 eastern on companion network cspan. Of course, also follow live coverage online at cspan. Org and listen with the free cspan radio app. Join us tomorrow when the Senate Select Intelligence Committee holds a hearing on worldwide threats. Speakers is pompei, mike rogers and dan coats. Former fbi director james comey was scheduled to testify but, of course, his status with the agency changed yesterday. And were just hearing that abouting fbi director Andrew Mccabe will appear. Live coverage begins thursday at 10 00 a. M. Eastern on cspan. Sunday on q a, the comparisons between president s donald trump and Andrew Jackson. Our guest mark cheatam on his book Andrew Jackson southern. I dont think he represents the positive values that jackson represented. He certainly represented some of the negative values that jackson represented but i think that i would tell President Trump that if he wants to be like Andrew Jackson he has to put nation in front of his own personhood, has to put nation in front of his own family, in front of his own interests because thats what jackson did for most of his presidency. Sunday night at 8 00 eastern on cspans q a. This weekend on American History tv, on cspan3, saturday at 6 00 p. M. Eastern, author and historian cr gibbs on the black women that worked as nurses and spies frgt union army. The wife of ed war banister, one of the leading artists, africanamerican artists, and she became involved on the underground railroad. She was a proud and consistent supporter of the u. S. Colored troops. At 8 00 on lectures in history, university of washington professor Margaret Omara on the 1968 president ial election and events that affected the outcome. Hero after hero is slain. John f. Kennedy. Martin luther king. And now robert f. Kennedy. So, kennedys assassination just like kings assassination, precipitates a broader National Mourning and now it throws the democratic nomination into even more turmoil. Sunday at 2 00 p. M. Eastern, lynne cheney, author of James Madison a life reconsidered discusses madisons personality, health probables and political career. Madison was lucky enough to encounter doctors who told him to exercise. What a modern thing to think. Its often recommended today for people who suffer from epilepsy. This month marks president john f. Kennedys 100th birthday and sunday at 8 00 p. M. , jfks nephew Steven Kennedy smith and historian Douglas Brinkley reflect on the life and career of the 35th president. He was a decorated combat veteran. He did believe in strong military. But he had a much broader conception about what american identity
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