Good morning, it is a pleasure to be sitting here with my. Olleagues welcome toxtended this to the distinguished to argue their cases and to our observers. Numberly case, which is 3598 is submitted on briefs. 15395 46. Se, number the first case for oil argument for oral argument is the state of hawaii versus trump. To 1715589. Minutese is set for 30 per side on the oral argument. Please watch your time and try to sum up when the timer is yellow and stop when it is red. The courts add that aware of the importance of this case. We will add extra time if one of the fields you need it need to present your argument. Certainly if either of my colleagues have questions, once the time is up we will go forward. I will also tell the group that after the first cases it is ued there will be a recess we like to exit the courtroom. Thereafter the 20 minute recess we will continue with the other cases. Will now turn to the right versus trump. Will now turn to the right versus trump. Cannot stand for three reasons. The District Court provided a legal standard, constitutional challenges to the exclusion of aliens abroad, differential basis tests and section to see temporary pause on six countries that shelter or sponsor terrorism readily satisfies those test. Ifwhat is the difference there is a bad faith exception . I think Justice Kennedy and Justice Alito whatever the scope of that. Talking about a consular officer there. Justice kennedy says you have a showing of that faith. If that is what you require for a oneoff discretionary decision, you really ought to require the strongest and clearest affirmative charming affirmative showing where you are talking about multiple members of his cabinet where motives have not be imputed. To say that the commanderinchief ahead of the executive branch and multiple members of the cabinet active pretextually required the strongest showing. I dont think plaintiffs put together the kind of record there is a bad faith exception . The court read Justice Kennedys concurrence and said there is a bad faith exception. Under this courts case law the exception is there. The van exception only applies to individual visa denials . So at all. I think it applies to the full scope as mandel. Which is to say the challenges to exclusions of aliens abroad, whether they are the statute or executive order. Governedas always those kinds of challenges. The differences they require at least some affirmative showing of bad faith. Isnt just a wideranging inquiry to subjective motivation. If we conclude the District Court applied the wrong standard, the governments position is this should be mandel. Should we send it back to the mandelt court to apply and see if they can make an affirmative case . But i can send it back think plaintiffs havent saw any additional discovery here. We know the statements were as a matter of fact. Court was well placed the District Court in the absence of the testimony not knowing which one below. Are those enough to get us bad faith under den . I think it would be the same query in the District Court as this court read there is no case like this, is there . In part because no one has ever attempted to satisfy the law that is neutral in operation on the basis of operation on the basis of campaign trail contribution. Dealing with ay specific application of standards to a specific visa denial. That is not what we have here at all. Applied to a statute i dont think the Supreme Court or the court of appeals tried to limit the mandel test. Itembers of the court saydnt make much sense to a single consular overseas denying visa gets more deference than the president of the United States in making a formal National Security determination. The executive order is an extremely broad order. We are not dealing with an individual oneoff. It is a policy and thats what executive orders do. I dont know if it is an extremely broad policy. Congress and executive designated these countries as those that sell those that shall sponsor terrorism. Whatever the number of nationals who try to travel to the country cant otherwise obtain waivers, we dont know yet because we havent been able to implement the order. Distinctions were made by congress and the Previous Administration who took individuals out of the visa Waiver Program. As a matter of policy im not sure if that is enough. Brief pause put it while i work at the vetting procedures for those nations. Subject to an individualized labor process. It is a difference in degree, but i dont think it is a difference in kind from with the Previous Administration did. Can we step back a little bit . You start by challenging the standing. Is that still a core argument . We have made the arguments in our briefs. Downasiest way to boil it is extensively in the District Court about whether they had article three injury and prudential standing. Case, this at the court said correctly the denial generally not reviewable because those aliens dont have any constitutional right. U. S. Citizens can attempt to argue that those Constitutional Rights doesntlem is a light have any rights to claim the establishment of the duke process clause the due process clause. He is raising his own due process clause right. If you think he has article free injury, he can raise his claim. The problem is it fails on the merit because he doesnt have a particular liberty interest. Have can here evaluate his claim in light of our holding how can he evaluate his claim in light of our holding . Grexit doesnt take any issue with the general rule that where you are claiming alleged discrimination on some basis like religion, only the victims or punitive targets of discrimination have standing the challenges. This order aimed at aliens abroad the doctor doesnt have an establishment clause right to raise. His argument is that go ahead. His argument is this is a man of an inherent islamic faith. In the same way individual residents of San Francisco county will disparaged about this resolution, saying that the cardinal of that diocese was acting in a terrible way by refusing to refer a doctor these the same couples. What is the difference . Two key differences. That was explicitly religious speech. This is not. And in operation doesnt establish on the basis of religion. And that explicitly religious message was directed at the committee of which the plaintiffs were a member. This deal operates with respect aliens abroad. It sends a message to all muslims in america. And the problem they have with that is if you can take government conduct and reframe it as a message directed generally to all people aware of the government conduct, you both overturned cases like valley forge and rivas rated least two bridges be the Catholic League case. It is direct to him, isnt it . The suspension of entry is on the nationalistic countries. How does his motherinlaw fit into this . His motherinlaw is you can apply for a waiver. Houses that affected his injury or harm . Are on. Hink his claims if you disagreed with us on that and found that he had standing, then you turn to the merit. That is not properly before the court. He is raising his own due because no court has extended the right to inlaws. One of the process he wants, this gives it to him and his motherinlaw because there is no doubt while she receives a waiver, let the reason for that would be. It is on the face of the order itself. Re is nothing motor nothing more we can tell you. Is a categorical policy. Theres no process we can give them the do anything to inform them with the reason is. I think what they are really raising as a substantive challenge, but they have two problems. They cant make up the cant make up a case on the establishment side. She is not seeking an immigrant visa, correct . I believe she is seeking i guess it is a nonimmigrant visa. Within 1152nt fall that relates to 1153. And the doctor is not the sponsor. I believe it is his wife that is the sponsor. She was not a plaintiff. I take your point. Just to say what about the 11 82 replies to entry by its terms. Nothing in 11 52, which deals the issuances with of immigrant visas. It would raise serious constitutional problems if it were to disable the president from suspending nationals from a particular country if she got actionable intelligence really what were down to is a question, already required are we required to issue immigrant visas that even though once they arrive at a port as we can keep them from entering under 1182 f. It is a practical effect implementation of however you want to phrase it, sort of precludes a relief under. The state department has always implemented suspensions under 11 82 f. Under 1182f. Once they got here, you would be turning them away. Has neverdepartment russell told the Fourth Circuit the same thing. It cant be the current injection. Even though once they arrived in keep them from entering under 182 f. I think thats right. Thats when the state department has always said when you are denied a visa under 11th the two. It is only because you are validly suspended under 1182f. If you disagreed with us on that , it would be the basis for a different injunction. Be present harsh. I dont think theres anyway you theread 1152 to limit suspension of entry power under 1182f. Once you make that move there is no basis for the injunction. You are dealing with a process. The way to reconcile them is the way the state department say 1152h is to governs the issuance of immigrant visas all the time. Suspension,ve 1182 if you thought they conflicted out say 1182f has a what yourec talking about is a specific finding of these categories of aliens. Of Congress Passed that in 65 then you have to get past the presumption of replied why is that a replied appeal . Whatthink it is clear congress was doing was getting rid of the nationality quotas. Out if youoint really take their argument seriously they are committed to f, even that under 1182 as the president got actionable intelligence, lets say it would be a national attempting to enter the country they say the president cant suspend of time. Short period i think that would raise serious constitutional concerns, so courts have never read the statutes to conflict in that way. They have always reconciled them. If i could interject a question on the merits here. The executive order sets out National Security justifications. How is a court to know if in muslim ban in the guise of National Security justification you cope justification . That is the nub of the case and that is mandel. Mandel, Justice Marshall and defense said if you take even the briefest peek behind the reason the attorney general has given, you will see it is not really why they denied them. Aey denied him because he was communist and he wanted to come in and give lectures on communism. The court said were not going to look behind, this is National Basis review. Does it very National Relationship to what the government has done . The benefit of that standard as the court recognized it as it doesnt call on courts to make these sorts of determination on the guessing of National Security determinations. Theyve asked for a year of discovery and to 30 depositions to find out exactly what was the motives of the people framing the ceo. That of the road they said they clearly were not going to go down. Bad faith the narrow exception, where you have an affirmative showing of bad faith. Need the official capacity statements that were unequivocal to show that the president and members of cabinet were acting in bad faith, and i dont think they can make that kind of remarkable showing. Same questionthe my friend asked you a week ago. At the president ever disavowed his campaign statements . I want to banid all members of the islamic faith for entering the United States of america . I am noticing it a simple security needs. Has he ever said anything approaching that . He has had several things approaching that. The best when is the Southeastern Legal Foundation brief and part three work part three walks through the comments. The present clarify that what he was talking about where Islamic Terrorist Groups and the country that shelter or sponsor them and over time he and his advisers clarified what he was focused on our groups like isis and al qaeda. The person on duration statement, i encourage the court to go back and look at the ceremony. The various statements the president said he is carrying up his campaign products on this issue. He clarified what he was talking about our territories and countries that congress and the Previous Administration had determined were dangerous. What he wanted to do is increase the vetting procedures. Thats what he said three minutes the fire three minutes beside the order. If you can read the statements good or bad, we shall defer to the good. The value of the mandel standard is that courts starting gauging this. Not just the postinauguration but the campaign trail. In the face of ambiguity about that, both respect for coordinate branch. Court inhe district the most hostile and least favorable to the president. Something that caught my eye would the executive order passed under your test today . Faithfully legitimate, thats all you say. Thiswant to be here about one to clear about this, this case is not about and the United States would not be defended it that be defending it. Beorder like this may constitutional and other contexts where you didnt have other statements like this. I think you know youre not anywhere approaching core. Onsoon i cant imagine any court would say the justification facially legitimate standards to an order like that. There is no reference in that executive order. Familiar with all the ins and outs of that executive order. I cant imagine the courts would say it would survive the mandel standard. I think the council has implicitly recognized below that of some other president had done this without the statements, that this executive order would be constitutional. On its face it is neutral. President made clear over time why he was really doing it and you should look behind it. I think that is a different situation. Or if weder mandel have a lot that isnt a rich isnt irreligious gerrymander. Isnt a religious gerrymander. Will set aside based on the subjective motivations of the president s or advisors. That is a remarkable holding. Determinationh the same thing as a purpose determination . I think it is a little different in the sense that judge hawkins it is one sentence it sentence in the Justice Kennedy concurrence. What he has in mind this pretext. He cites the portion of bend over the court puts forward no justification at all. The consular officer gives you no reason or gives you a untruethat is obviously in a pretext sort of finding. The president or three members of his cabinet acted in bad faith by ducting an order or staying on the face of the order that it is for National Security purposes. Route he would need the strongest and clear showing of bad faith. I want to appreciate hearing a little more on the governments view on the statutory side of the case. And specifically what i have in is there is a need to find the entry that would be detrimental to the United States. I the question whether there is an adequate finding a detriment how ready to justify keeping everybody from a particular any out of the country particular country out of the country. That seems to conflict with the 1985 statute. If you could touch on those issues i would appreciate it. Thehe first question on Fourth Circuit. Death thate dnd and what he is concerned about, really two things. The ties between terrorist groups and the six countries listed by congress in the Previous Administration and the concern of the governance of those countries and the deteriorating conditions like iran and syria means we are not getting reliable information. Iat the president found this said look, it would be detrimental to let in internationals for a brief period of 90 days, while the vetting procedures are actually adequate. He wasnt actually saying that she wasnt saying i would find it to be detrimental because they are all dangerous or potential terrorists, he was saying in the face of so that we can screen the mountain of visa process, im going to put a temporary hold subject to the visa waiver. I think under a mandel basis review, i think the detriment how are the and determination would easily survive. 1180 two is in treat. 1152 is issuance of immigrant visas. Department has always reconcile those by saying when the president suspends a group even in the part of the basis of nationality, the reason for the denial if the government disagrees with but i should be 30 of aliens we would be required to give them visas even though when they arrived we wouldnt have to allow them to enter because of the 1182 suspension. Case recognized but that wouldnt be a sensible result. Think the state departments rating of the statute is the more sensible one. No matter which one you take, a must to say the president is disabled, every president permanently, for making any nationality this distinctions under 1182 s, reagan with cubans, carter with iranians, i dont think you could read the statutes in a way that provides the basis for this here. If i can reserve the remainder of my time. Thank you. Thank you. Counsel question. Thank you judge gold. The government would like to pretend that this Court Decision in washington versus trump never happened but it did in the government cant shut its eyes to it. Theres a simple test. As yourself if you accept arguments you just heard from a have altered washington versus trump . If the answers yes that settles it. Government claims you cant look beyond the face of the order of the washington said you could, reclaim the engine National Security, and when the state doesnt have standing, all of these were things raised and cited by washington versus trump. Did the Washington Panel decide the application of mandel on the merits or say the courts have jurisdiction to review such things . It resolve the question of mandel if i could read to you the language from washington versus trump. This is found in page 1162. The government sites mandel for the proposition quote when the basis of a bona fide reason, the courts will look behind that. The government on this portion of the wave language that applies to standard govern judicial review exercises Immigration Authority. The mandel standard applies to executive Branch Officials the present case by contrast is not about that application of a specifically enumerated congressional politics. You read more of the case than i did. They didnt really decide those questions. They decided that based on due process. Im not saying that they reached the establishment call clause and found a violation come im saying that the person verse mandel, the government became for this court in washington versus trump and said stated that governs this case are facially neutral and bona fide. This court recited that standard back to them and said it doesnt apply. Thats a Square Holding of this court. I would like to start with judge hawkins question about the establishment clause. U. S. My friend esther well, has the president ever disavowed these statements . I thought his answer was surprising, he couldnt point to any disavowal of. He just decided on the truth is, there is no such statement. We give you chapter and verse the things the president has said. The District Court given to as well. Not just 1 starting in december 2015 when he calls this quote total and complete shutdown of muslims entering the United States. Then a month later quote i think islam hates us, we cant allow people coming into this country who have hated the United States. A few months later, my opponent would admit for tens of thousands of refugees from the mideast would try to take over our children and convince them how wonderful islamists. Arehose statements profound. Im familiar with them, weve read them. Its a little bit concerning that they take place during the midst of a highly contentious campaign. Absolutely. You need to look at it from that perspective as well . We wouldnt just be standing here if it was only campaigns ailments. The District Court found that the president rekindled those statements through his actions as president in two different respects. The firstn he issued executive order, he read the title the executive order, looked up at the camera and said, we all know what that means, the scr 148 that is. If it was clear from the title what it meant, he wouldnt of had to say it. Its a reference to something else. Orders, heued both left on his website that very statement about the complete and total shutdown of muslims, a statement that happened to disappear moments before the syrup Fourth Circuit argument last week. So i think the question is, what would an objective observer view the statements as . As the District Court found, and establishment of a disfavored religion of islam. We are not in favor of psychoanalysis or trying to get into the president s head. You dont, your Honor Company to be sigmund freud. He just simply must ask if the Supreme Court has told you what would an objective observer think with the statements one last point, they continue in a must month. This brief file before you says even must month the president said its easier for muslims to immigrate been Christian Refugees from the middle east. And, he will be helping the questions bigleague. This is a repeated pattern of the president. Two months ago to this day come when the District Court struck down the injunction the scr 84, the president said quote, moments ago, i learned that a district judge in hawaii, part the ninth circuit just blocked our executive order. This is a watereddown version of the first one. I think we ought to go back to the first one and go all the way, which is what i wanted although statements, postelection statements, even the one you just read. Does that mean the president is from issuing an executive order along these lines what does he have to do to issue an executive order than in more of you, my pass constitutional lines . Not at all. Theres too passed the president could take to pass constitutional muster. One is the way our founders thought saw article one section eight which is congress they would respect immigration as Justice Alito said, when Congress Passes a statute, its much less likely to discriminate against 535 people versus one which is why the bendel point is problematic. The second thing we can do the president to do some of the remove theings, things the District Court found lead an objective observer to say that this discriminates. One example would be what judge hawkins said about disavowing formally all of this stuff before. But thats not it. He could do a lot of things. I will just out examples, not trying to micromanage the president , but he could say, like president bush did right after september 11, they said terror is not the true faith of islam. Thats not what islam is about. Islam is peace. Instead we get islam hates us. To changedint circumstances from december 2015 when congress debated the exact same evidence that the president relies on in his executive order more than justd denying people entry without a visa, which is what congress required grade you need to do more than that. Because a limited attacks which were first to honor killings. Theres a bunch of Different Things that could be done. Our fundamental point is president s, under the president s dont run into establishment clause problems. Limited, unusual case in which you have public statements by the president if you affirm the District Court theres not a thing that any president has done in our lifetime that would be unconstitutional. One of the judges in the Fourth Circuit asked, suppose it would be another individual that settled these things, what a pass constitutional muster . Thingsou dont sail the you never wind up with an executive order like this which is when the president has done that. But ill take a hypothetical. If that arose, i think it would be different. Context matters. This recording macquarie says, governments can close sought chops on sundays. If they do it because the labor, they want to get workers a rest, thats fine. But if they do it and announce the reason why am doing it is to help churches, thats obviously a problem. Thats why context always matters. Here, the history is overwhelming. Thats why this is so unique. Its not something that will hamstring any president s from anything that is happened in our lifetimes. This is an unusual circumstance in which you have all these different statements. You argued the statutory grounds quite extensively. Could you respond to the governments argument . Absolutely. I think judge pius had it exactly right. Our basic statutory argument let me just set out what the argument is first the president is claiming is we can power to set aside the ina. Your first to quote, an absolute right to ban any group or page three. S on if you read it that way, if you listen to a mr. Wall said, you are giving the president the ability to take a magic eraser to the United States code with respect to immigration and nullify anything because of this 1182 provision. That cant possibly be what the statute is about. There are more problems with their statutory argument. One is what you just referred to , the 1152, that this is nationality basis from a nation. Theres also three other things. It also allows congress to thelly the terrorism bar 10 part test for determining whether someone could the excluded on an individual basis on grounds of terrorism. 1182 way, also some other provisions. You have congresses specific judgment on the evidence thats in the executive order from december 2015. Congress said, we dont need to just need to we insist on visas when people come in. With respect to these very countries. I think the most important thing which sets up your question, the government has not engaged in mass dragnet exclusions. Unprofessional and unusual, immature saying this whole class of people, some of which are dangerous, we can buy them all. Pages 4742 explains this in detail. Those are statutory violations statue said, can you read them together . Absolutely thats the right way to view this. Revealed that section 1182 it gives the president broad powers we dont disagree with that. But what it cant do is violated statute. To do so is to transform the statutes into mere suggestions. Congress said in clear and unmistakable ways that no person shall receive any preference or priority to be discriminated against on the image an immigrant visa because of their nationality, thats pretty clear. Side friend on the other says, if you read it that way there be a libyan who will come into the country and so on. Just sent on the d c circuit answer that very clearly by saying, theres an emergency of site exception the statue wont read such a thing, but no emergency precluding congress from acting so if there is a statutory violation, what is the relief to correct the statutory violation . We think because theres different violations, sections two does fall as a whole. Theyre supplanting the terrorism scheme with this dragnet band so the whole thing falls. Our point to you this starts with judge friendlys opinion in 1966 the year after this landmark statute was enacted. Congress didnt just say visas. Ng about immigrant by the way, judge hawkins motherinlaw is seeking an immigrant visa, a Record Congress said more than that. Congress said in 1965, we are changing the fundamental of whats our immigration citizen is am is about and we will not engage in nationalitybased dissemination anymore. That extends to nonimmigrant visas. The American Bar Association brief goes through this in painstaking detail, as well as 165 members of congress that have come before you and have explained why that is so. Indeed, the government and the olson case didnt even contest that. They said yes, it applies to nonimmigrant visas. Its a transformational statute. Done anythingas like this since that statute you think this applies beyond immigrant visas . I do. The text doesnt but as judge friendly down and the government conceded, it does extend beyond that because of the way in which relevantte took factors and said nationality is no longer a relevant factor for purposes of our immigration is that what you argue is the purpose of the statute, as opposed to its language . No. I think that the statute is aration law as oh is Supreme Court said in june versus holder, you always have to look to relevant factors and understand what this congress deems relevant and whats not. When you ask yourself that question, nationality is no longer such a fact. This was a transformational statute in 1965 past contemporaneously with the Voting Rights act. Thats why. Again thats on the 1152 argument, but i dont want the court to lose sight of the bigger argument, which is that 1182 which looks like a broad statute, does ultimately supplant the more specific 10 factor test that congress laid down and the government itself to the Supreme Court in a marks case, that when you have a more specific statute that controls over the general a general grant of authority. Indeed, the Supreme Court case after Supreme Court case like which give it or others have said, this statute looks like an unfounded delegation of authority. But actually, we have to read it more narrowly. On the can interject statutory issues. If we were to conclude hypothetically that the establishment clause claim cant support the District Courts injunction, could we still affirm the injunction on statutory grounds . Absolutely. In whole or in part can it also related to that, could you touch on whether there is standing the basis of your standing on the refugee provisions . I think that would help me out. Absolutely. If you accept our larger argument about the statute, judge gould, about 1182, that it would affirm the District Courts injunction as a whole, it is true that 1152, the nationalitybased determination, the way to uphold the injunction as a whole would require reading the statute to encompass nonimmigrant visas as well as judge hawkins was illustrating. So thats our rating, weve think its that this has been read. There will obviously be a question about that. Standing of to the refugees, both plaintiffs have standing. , they had standing standing indian on the refugee claims which were before the courts. The identified government has pointed to three refugees that have come in this year 2017. They said in the District Court proceedings below hawaii has an interest in making sure that its Refugee Program the dollar spent are able to be used in a flat them on all refugees, which is what that executive order is would force those dollars to be wasted. Doctor, het to the too has standing with respect to refugees stash his mosque has a refugee in it. Largest mosque in hawaii. So i do think for all those reasons, there would be standing. Does he have standing on 1152 . He does. Assume that only applies to immigrant visas, does he have standing . He does, she is seeking a d. C. Circuit the case by judge sentelle allow family members to bring a lawsuit. It has standing. Me ask a question. The government makes the look at thet if you statements surrounding first of all few exclude this hypothetical the campaign statements, if you look at the statements around the time of the issuance of the second executive order, including, you know what this means language, that is one way to read it, theres one way to read it saying its good, another thats bad. Why should we be deferential to the office of president of the United States on such issues . Thats the milliondollar question. I do think theres any precedent in this quarter any other that says when you are thinking about what a reasonable observer would view as an establishment clause problem, that you defer to a government official. Disposed to have an objective observer know the president things. We are not computing whats in his head, we are just saying objectively, this is how a reasonable viewer would see it. If you view to the other way and give deference, youd beginning the president s the ability to bootstrap all sorts of things and say, well, you can have all sorts of discriminatory policies and then say, you would have to defer to me. I dont think its discriminatory by the way he hasnt quite said. A dangerousre in situation and our founders were particularly concerned about the idea of immigration restrictions being used to establish a religion. Thats what happened in colonial virginia. A think its the best way to think about it is what the Supreme Court says. Think about what an check of observer of it would view this i think judge pies pointed to this. Their amicus brief after amicus brief. Of not aware of any case like this in which so many different amicus briefs from cost the country represented a wide swath anlife has said this is establishment clause violation, that the synnex a disfavored religion, islam. Includes 17 states including iowa, north carolina, over 30 cities and counties including seattle, los angeles, new york city, San Francisco, south bend, these leaders and groups from across the spectrum including the National National council of churches represented 40 million christians opposable digits, the Unitarian Association with 1000 different congregations, the alliance of baptists and sikhs, the antidefamation league, professional associations like the sei you and the American Federation of teachers representing 5. 2 the catoorkers even institute, they are all coming before you saying, this is unprecedented. We have not seen anything like this in our lifetimes in which a president is establishing a disfavored religion. Consequences,al this is just the president saying something without action. This is the president s action as well. Give argued in the past to give deference to the executive immigration matters, havent you . Sure. And the United States against texas, you wrote in amicus brief in which eu said the particular demands of the immigration system require the executive to wield broad discretion, the executive must prioritize enforcement resources in a way the next immigration system function effectively, while balancing a range of foreign policy, National Security, economic and humanitarian concerns. Thats your language. Absolutely, we dont disagree with any part of that. Rather what we are saying is that the president has to butement congresses will, it cant be an unbounded delegation. If you read the governments brief, you might think, the president can have such a sweeping delegation that he could even named classes of people or nationalities and so on. The other is at case this a pride brief when you go back and look at what the cases, they try to pass this off as a majority opinion by then judge ginsburg, Ruth Bader Ginsburg they are deciding to dissent by judge bork not the majority opinion. They dont tell you that but the defense says that but the majority has never said that. The law has always been that delegationhere is a of authority, it still has to be viewed within an overall context of the immigration scheme. Do eel it the way they would allow the president to take a magic eraser to the entire code. Obviously, the brief in the texas case is not about establishment clause but you also wrote a brief in in which you said u. S. Policy towards aliens is vitally and interwoven with the conduct of foreign relations. A power that is likewise invested in the political branches any rule of constitutional law that would inhibit the flexibility of the political branches of government to respond to changing world conditions should be adopted only with the greatest caution. When i was in the government, i try to get the Supreme Court to bite. They didnt. Still, we aren not here saying that there no the president doesnt have emergency, National Security powers, of course he does. The question is, when you have a circumstance like this, when the evidence that they have pointed to was before the congress of the United States that they said, we dont need this dragnet band. Instead we can do something more limited that i think is particularly telling. So obviously, its an emergency situation then its a different matter but thats not the world we are in. The government points to this executive order to three things. He pointed to people from iraq who committed crimes but a rack is now exempt from the executive order. And someone from somalia who came here offers a refugee when used two years old and committed crimes when he grew up at the executive order exempts them suppose the president had suppose the president had adopted this new order. And identified areas of active combat. Whether its isis, boko haram, al qaeda, the taliban, and narrowed it down to just those areas, but that pass this . I think so. It would depend on the context but it very much would. Thats exactly what congress didnt to doesnt 15. District courte found the page youre 61 where people have come and visited from his 2000 this is a Waiver Program doesnt work like where youre born. It worked somewhat passport hold its based on what you have recently been. Swiss citizen and have gone to sedan your covered by the 2015 banned because thats precisely for the reason you are saying judge hawkins, which is, in 2015 congress determined security threats in sudan. But what this does is says, if you are a syrian born in switzerland, spend your whole life in switzerland, then you want to come to the night states, no. You cant commit to us by your nationality. Thats not something president s have ever done in our lifetime. Thats quite as specific as judge hawkins is suggestion, but the order refers to conditions in the country that are listed. Why is that not sufficient for this that evidence was before the congress in december 2015. They said the solution is the visa is to require visas, nothing more. I think its detrimental to use judge goulds language, detriment of the interests of the United States. Congress is artie made that determination. The articles the first question the preamble and all in, goubsections of it for the various countries and west conditions in those countries. Arethe conditions described not like what judge hawkins was alluding to. But they do make account why is that not sufficient . The other important point is if you really believe that you wouldnt do it on the basis of nationality. You do it on the basis of transit, someone coming from one of those countries regardless of other nationality is would be swept up by whatever the possible president ial action would be. Thats how congress did it. Thats the way to deal with problem, not this. I just want to return to this you all had with my friend about mandel and bad faith. They do see that is quite important to the resolution of this case. We think mandel doesnt apply because of washington versus trump. Exception bona fide is enough to rule in our favor, from the injunction in this case. The reason for that is this court in cardenas says as bad faith and affirmative showing in bad faith, the mental standard is bad. Actions are unconstitutional. We dont consider the campaign statement, do you . Absolutely. Think theres bad faith past that. Think he rekindled her statements, but beyond that, all the things that happened afterwards including leaving on the website, including i want to go back to the first thin, including in the first question all those things, what he said at the brick Christian Broadcast Network on january 27. They said oh, you should give more deference to the president than a in official. In general it may be true but are found founders were very worried about the possibility that one man could establish a religion, certainly any individual who comes their office will not be able to establish a disfavored religion such as islam, its only Something Like states are much higher when youre dealing with the president. Gets anyt think he special deference for returning let me ask you this. We will give you extra time if you need it. But there were letters issued by both the department of justice and homeland security. I think that was in the same day that the second order was signed. Less gives or support to the order. You dont say that there are National Security reasons we need to do this. Do those letters neutralize your that the National Security interests relied on our pretextual and also, or related to that, do they neutralize the bad faith argument . Youre not just saying, bad faith, and the president , you would have to be saying its also bad faith of the attorney general, the secretary of homeland security. Right. So its certainly true that those letters will the morning of saying, it be nice to do an executive order like this. I think those letters dont change the dynamics at all. Rather the question is, as the District Court found and other viewedfound is this from the standpoint as an objective observer, and establishment of a disfavored religion, islam . Even if there is some National Security motivation on the part of these cabinet secretaries that doesnt eliminate the fundamental problem, which is that this executive order was propagated by the president. Thats the way an objective observer would feel it. Just ask yourself, if the president said at the time he was signing the order Something Like, i really hate muslims, or Something Like like that, the fact that cabinet secretaries may have a National Security just affect nation, something sense to him, i dont think what change the underlying constitutional problem. So similarly here, we think those statements taken together as the District Court found, do so. Ive a quick question on scope if you dont mind. I understand from the four circuit argument, that the District Court in hawaii construed its junction to also cover and prohibit the ability of the government to study the issues that they are talking about in the context of the order to find out that there is more things that could be done in terms of these procedures transit or visa issues, that sort of thing. Is there any justification for that portion of the order . Yes. Been quite understand the statement of the Fourth Circuit. I take his word. He said they asked the District Court and he can tell us they asked the judge in hawaii, can we go ahead with the studies to determine if there are i can be done. I take it that he was saying that in reaction to the judges on the Fourth Circuit and panels saying, why havent you done this . Inlet me read to his words the Fourth Circuit than go through this get technical. We went back to the hawaiian judges and said, you cant possibly a bit enjoying internal governmental procedures to look at investing for these six nations. In the face of that motion, the district judge said yes. I dont think thats right. They did asked to clarify the injunction, not with respect to studying the six countries but generally come i can they have internal consultation and the like my question is, is there for interpreting the District Courts injunction to cover what ive just described . Yes or no. The answer is yes if it comes to a worldwide study under reason for that is as we pointed out in our this was the governments own affair he. They said that the study in two ways would was integrally linked to the to see exclusion in the six countries. So you see the 2 if you view the to see exclusion of the six countries as an establishment or statutory violation, the net to a worldwide study has to fold. And hasovernment can been conducting worldwide betting, increased studies about all these things. Did they do something on those lines recently . They announced in the code of federal regulations two weeks ago an increase in vetting procedures worldwide. So the injunction doesnt ban studies at all. It only bands these specific studies which are carried designed to carry out what we view as muslim been in section two a. Has beendent conducting those studies. We will get a chance to hear. If i could just sum up for 30 seconds. Wall k my friend mr. Closed by saying the president the president will transcend this case and travel ban. Couldnt agree more. You leave intact the president s power including every decision that every president has made in our lifetime and preserve a status quo that has existed for decades. Him, you defer to the president in a way that history teaches us is very dangerous. You open the door to so much. As Justice Jackson says in the ,ontext of the First Amendment the First Amendment was designed to avoid these ends by avoiding these beginnings. This very courthouse which tried, convicted, then later exonerated Courtney Hurley ashi, 44 years ago, says that stash stands as a physical reminder of whats at stake. Our constitution and laws are better than this. Our founders wanted america to be a beacon on our coast, at the end of the day that is not the quality of our sports teams or our soil. That ultimately is the majestic article three and grant contours of the First Amendment. We asked that the district thiss ruling unconstitutional and the unamerican executive order be affirmed. Thank you, counsel. Youcitor general law had reserved a couple of minutes. On the went over time appellees argument. We will give you extra time if you would like it. Thank you judge gold. Thank you judge gold. I just have a few breakpoints. Washington can be taken to resolve the standard of review in this case. Hink its mandell pretty close though. That did in a section of called reveal ability to what washington instead meant dell cant govern broad policy determinations. Even plaintiffs dont try to defend their reasoning comments this its inconsistent with other cases. Standard, im glad to hear counsel say, we wouldnt be appear if it was Just Campaign statement. Glad to hear you say that. Those are not statements in an official capacity and dont tell you the official objective of government conduct. People say things on the comp and trail then take an oath to uphold the constitution then consult with them on policies they develop. We shouldnt start down the road of psychoanalyzing what people meant in the campaign trail. , theres your question a handful of statements the only one that directly concerns disorders with the president said when he signed the first one. We all know what that means. But the president said it three minutes before he signed that in the presence of a newly sworn in secretary of defense was, im signing this order because i want to increase in vetting procedures for radical islamist terrorist groups. Three minutes later when he signed the order and makes this six word offense comments, it is and is at least within the presumption of regularity to a 4 ahead of a court of bridge when talking , not our terrorist groups all muslims everywhere in the world. There just isnt enough in this record to you too bad Faith Council wants to discount how remarkable it would be on a handful of statements made by the president of both sides you could look at scr 90, with the president says i want people to come here to love this country many muslims do. Many muslims do. We could go back and forth on his comments over time. Thats not a judicial inquiry like what mandell commence courts to do. Under that there is not anything here. On the statute for all of the rhetoric judge hawkins the language of the statute does not get you where once to go 1152 deals with the issue of immigrant visas. The deal with entry and doesnt deal with other pieces we make nationally based distinctions and nonimmigrant visa in context every day. Thats what the visa Waiver Program is, nationals from some countries have to get a visa, others dont. You an injunction different from this 1, 1 i think would be more harsh to the people that counsel purports to defend, but none of it gets thurlow 2 rotation on 1182, which judge ginsburg has put down for decision its that the president s sweeping reclamation power to suspend the entry of any class of aliens he deemed imminent ors interest. I know council wants to secondguess the exercises of the power here but he is right. Whatever the court says will government president s exercise of that authority for years, decades, to comp. Has ever run into 1182 as ever the kind of limitation, the council wants to find. The last thing a say, the overbreadth of this injunction. Counsel did mention internal review provisions at all. Rarely mentioned section six, didnt say a word about this. Sections two a and two b of the order. State department dhs look at our information and sharing agreements with other countries and to determine whether we have sufficient vetting procedures in place on the basis of the information we are getting from those countries. They are supposed to produce a report. That was time to this temporary suspension of a sense the presence of because im not sure, i will suspend that will free up resources to do the review. We went back to the District Court and said, even if you give them the suspension of entry which is all theyve briefed and all that is in the complaint, it doesnt get you to the rest of section two or section six. Surely with can still produce a report required by sections two a and b. The District Court will set i enjoyed all section two and six. We have complied with that injunction but i want to be clear, even if we are outstanding wrong and outstanding in merits, the most you ought to be about to get under a decision from this court is, an injunction against to see for dr. L sheikh and his motherinlaw, or at most, any students hawaii and in defies if you conclude hawaii has standing. Hes conflating the nature of his legal argument with the relief to which his plaintiffs are entitled if they it prevails on merit. No matter what the scope of the arguments and what would this would suggest about the propriety of the order at most his clients get an injunction. Thats not the rest of section two, nothing in section six. Among the Fourth Circuit case, hed there is doesnt have refugee groups, anyone seeking refugee admission. Section six shouldnt even be on the table. Way. L wrap up in the same we did say to the Fourth Circuit last week that the president precedent set by this case put the judiciarys role in reviewing the president s National Security and Immigration Authority will longterm this debate this order and constitutional moment council is right that this country as a beacon come about what makes it a beacon is the rule of law. Er the settled legal rules for constitutional and statutory interpretation and injunctive relief, with the president is your falls squarely within his constitutional and statutory authority. Theow we disagree with president and his policy judgments, but none of that converts us into a constitutional crisis. We respect and submit to this court should treat them like one. This belongs in the political arena. This injunction should be vacated. Thank you. Thank you. The thank you counsel appreciate the high quality of the arguments on both sides. The court will not take a resource for this case is submitted at this point. The court will take a recess for 20 minutes