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over to the left okay good morning I'm.judge Gould and it's a pleasure to be.sending you with my colleagues judge.Hawkins on my right and judge has on my.left all of us all of us extend a.welcome to the distinguished lawyers.here today to argue their cases and also.to our observers the Seeley case which.is number 14 three five nine five eight.is submitted on briefs also the Calvert.case number 15 3 5 4 6 5 is submitted on.briefs so the first case for oral.argument today is state of Hawaii versus.Trump which is 17 155 eight nine that.case is set for 30 minutes per side and.four on the oil argument so please watch.your time and try to sum up when the.timer is yellow and try to stop when.it's red however I will also add that.the court is very well aware of the.importance of this case to all the.parties in all the amicus parties as.well and we will add extra time if one.of you feels you need to present your.argument and certainly if either of my.colleagues have questions once the time.is up we'll go forward with any further.argument on that but after I'll also.tell the group after that first case is.is argued there will be a recess for.about 20 minutes to permit all of those.in the courtroom who would like to leave.to exit the courtroom.thereafter after that 20-minute recess.we'll continue with the other cases so.we now turn to state of Hawaii versus.Trump and Solicitor General wall may now.proceed.judge Gould and may it please the court.both the Constitution and acts of.Congress give the President of the.United States broad authority to prevent.aliens abroad from entering this country.when he deems it in the nation's.interest this global injunction.restricting that authority cannot stand.for three reasons first the district.court applied the wrong legal standard.constitutional challenges to the.exclusion of aliens abroad are governed.by Mandel's deferential rational basis.test and section 2 sees temporary pause.on six countries that shelter or sponsor.terrorism readily satisfies that test.what's the difference.practically between Mandel if there is a.den bad faith exception and the lemon.purpose test I think it's it's that.Justice Kennedy and Justice Alito.indicated inden that whatever the scope.of that exception and no court has ever.applied it to find bad faith not the.Supreme Court or this court but you're.talking about a consular officer there.Justice Kennedy and Alito said look.you've got to have an affirmative.showing of bad faith and I think if.that's what you require for a one-off.discretionary decision by a consular.officer you really ought to require the.strongest clearest affirmative showing.where you're talking about the President.of the United States and multiple.members of his cabinet whose motives I.take it have not been in pude whatever.the bad faith exception is to say that.the commander in chief the head of the.executive branch and multiple members of.the cabinet acted pretextual II I think.you want to require the strongest.showing for that sort of a remarkable.holding and I just don't think.plaintiffs have put together the kind of.record agree that under our case.cárdenas that there is a bad faith.exception I do this this court read.Justice Kennedy's concurrence and then.to be controlling it said there's a bad.faith exception obviously didn't find.bad faith dinner but I under this.court's case law yes that exception is.there so I understand your position it's.that the then exception only applies to.individual visa denials no I don't think.so at all I think denne applies to the.same full scope as Mandel which is to.say to challenge us to these.of aliens abroad whether those.exclusions are the Congress or the.president whether their statute or an.executive order Mandel has always.governed those kinds of challenges and I.think the difference between den and a.McCreary Lukumi type inquiry is that den.requires at least some affirmative.showing of bad faith I think here in.this context it ought to be a really.high one so it isn't just a sort of.wide-ranging de novo inquiry into.subjective motivation if we conclude.that the district court applied the.wrong standard you're the government's.position is it should be Mandel correct.that's right shouldn't we send it back.to the district court to apply Mandel.and to see if plaintiffs can make out an.affirmative case of bad faith I mean you.could send it back.judge Hawkins but I have to say that I.think plaintiffs haven't sought any.additional discovery here may we have a.record we know what the statements were.as a matter of fact and I think this.Court is as well-placed as the district.court to look at those statements to.determine in the absence of testimony or.credibility determinations any of that.none of what which one on below do are.those enough to get us bad faith under.under then I think it would be the same.inquiry and the district court has in.this Court is there any que there there.is no case like this is there I well no.judge pies I think in part because no.one has ever attempted to set aside a.law that is neutral on its face and.neutral and operation on the basis of.largely campaign trail comments made by.a private citizen running for office.when I read Mandela it's it's clearly.dealing with a specific application of.standards to a specific visa denial and.that's not what we have here at all no.but of course judge pie as the Supreme.Court in fiallo applied it equally to a.statute that's correct.courts of appeals like the Second.Circuit have applied it to broad policy.determinations by the executive I don't.think the supreme court or really any of.the courts of appeals has ever tried to.limit the Mandel test to just a.discretionary denial of a visa by a.consular officer and I think for the.reason some members of this court gave.at the rehearing stage in the Washington.case it really wouldn't make more sense.to say that a single consular officer.oversea.in denying a visa gets more deference.than the President of the United States.in making a formal national security.determination in an executive in the.context of this case that this the.executive order is an extremely broad.order we're not dealing with an.individual one-off determination by a.consular office well it is a policy and.of course they're spies that's what.executive orders do they don't deal with.one-off denials but I I don't know that.it's an extremely broad policy I mean.Congress and the previous executive.designated these countries as as those.that sponsor or shelter terrorism they.took individual how many nationals does.it apply to in the out of those.countries a large number well I mean I.whatever the number of nationals who try.to travel to the country and can't.otherwise obtain waivers we don't know.yet obviously because we haven't been.able to implement the the order but my.point is just the distinctions were made.by Congress and the previous.administration who took individuals with.connections of these countries out of.the visa waiver program this.administration to be sure said as a.matter of policy I'm not sure that's.enough I don't know if I'm getting.reliable information from the.governments of these six countries so.I'm going to put a brief pause on entry.while I look at the vetting procedures.for those nations subject to a pretty.robust individualized waiver process.that's a policy judgment to be sure and.it's a difference in degree but I don't.think it's a difference in kind from.what the previous administration did.look can we go step back I'll look just.a little bit it does your brief you you.start off with by challenging the.standing dr. L shrunken Hawaii right it.what is that is that still core is that.it still core argument for you in this.case yes I mean I we've made the.arguments in our briefs but I think the.easiest way to think about it if I were.going to boil it down judge pie is.you're a standing at the district court.level correct no we did we argued both.in the district we argued extensively in.the district court about whether they.had both article three injury and.Prudential standing judge hawkins but if.you look at the Cardenas case judge pie.is I really think that's the the road.map this court said correctly look the.denial of entry to aliens abroad is.generally not reviewable because those.aliens don't have any.any constitutional rights u.s. citizens.can attempt to argue that their own.constitutional rights have been.infringed by the denial of entry.the problem here is Hawaii doesn't have.any rights to claim one of the.established laws of the Due Process.Clause.so really down to doctor el-sheikh he's.not raising his own Establishment Clause.right he is raising his own due process.clause right so if you think he's got.article 3 injury he can at least raise.his due process claim the problem with.that claim is it fails on the merits.because he doesn't have a protected.liberty interest with respect to his.mother and we evaluate his claim in.light of our holding in Catholic League.i-i-i i don't think i catholic league.doesn't suggest that it doesn't take any.issue with the general rule that where.you're claiming alleged discrimination.on some basis like religion only the.victims or putative targets of that.discrimination have standing to.challenge it here this order is aimed at.aliens abroad who themselves have no.constitutional rights.dr. el sheikh doesn't have an.Establishment Clause right to raise and.I don't think the Catholic League case.indicates any differently his argument.is that go ahead.his argument is that in reality this is.a ban against members of the adherence.of the Islamic faith correct that's his.argument no that's that way and that.this broad policy disparages adherence.to that faith in the same way that the.individual residents of San Francisco.County felt disparaged when the Board of.Supervisors adopted this resolution.saying that the Cardinal of that diocese.was acting in a terrible and an American.Way by refusing to refer adoptees to.same-sex couples so what's the.difference so I think you had two key.differences one that was explicitly.religious speech this is not the order.on its face doesn't have anything to do.with religion and an operation doesn't.distinguish on the basis of religion and.to that explicitly religious message was.directed at the community of which the.plaintiffs were a member here this e.o--- operates with respect to aliens.abroad and so the.plaintiffs try to get around that as.they say oh well it sends a message and.it sends a message to all Muslims in.America and I think the problem they.have with that in the DC Circuit said.this in the Navy chaplain C case is if.you can take government conduct directed.toward others and reframe it as a.message directed generally to all people.aware of the government conduct.you've both overturned and effect cases.like Valley Forge and you've eviscerated.subtle limitations on on standing I mean.this is this is at least two bridges.beyond the Catholic League case well.doctor I'll shake it isn't he he's an.imam if I'm not mistaken of his local.yes he says it's direct to him isn't it.well the suspension of entry is just on.the Nationals of the listed countries.now yes as a you how does his.mother-in-law fit into this his.mother-in-law is a national of one of.the listed countries she can apply for a.waiver I think based on what they've.alleged it's exceedingly likely she'd.get one which I think goes to show how.does that affect his injury or harm I.think it shows that but his harm is.speculative and his claims are unripe.but if you disagreed with us on that and.you found that he had standing then I.think you turned to the merits and what.you'd say is he's attempting to raise an.Establishment Clause claim on behalf of.somebody else that's not properly before.the court he is raising his own due.process claim but it fails on the merits.because no court has extended the due.process right to end laws and whatever.process he wants this order more than.gives it to him and his mother-in-law.because there's no doubt about why if.she doesn't receive a waiver which we.think she's likely to what the reason.for that would be it's on the face of.the order itself there's nothing more.that we could tell you and that's why.below they disavowed any desire for.individualized hearings or the like.because this is a categorical policy.there's no there's no more process we.could give them and they've never said.what it would look like that would do.anything more to inform them about what.the reason for the EO is I think what.they're really raising is a substantive.challenge but again they have two.problems one they can't make out that.case on the Establishment Clause side.and - they never pleaded a substantive.due process claim below they phrased it.only in procedural due process terms.she's not seeking an immigrant visa.correct I believe she is seeking an.no I guess yeah I guess it's a.non-immigrant visa to visit I think.you're right to talk ins she wouldn't.fall within 1152 our that relates to.1183 or whatever that's right I mean and.I think our position and the doctor is.not the sponsor correct I believe it's.his wife that is this sponsor but I'll.Linda she of the plaintiff no she's not.a plaintiff and she so I take your point.judge Hawkins and just to say a word.about the statutes and make clear how we.think they operate 1182 applies to entry.by its terms nothing in 1152 which deals.with the issuance of immigrant visas.limits in any way 1182 nor could it it.would raise serious constitutional.problems if for instance it were to.disabled the president from suspending.Nationals from a particular country if.say he got actionable intelligence that.someone was attempting to bring up let's.say a dirty bomb into the country so.really what we're just down to is the.question are we required to issue.immigrant visas to the 30% of people.affected by this order who want emigrant.visas.even though once they arrive at the.borders we can keep them from entering.under 1182 F the state seen before the.Fourth Circuit that is a practical.effect implementation of the pause or.ban however you want to phrase it sort.of precludes relief under 1152 yes that.what we told the Fourth Circuit was the.State Department has always implemented.suspensions under 1182 F by denying.visas because otherwise you'd be letting.people come to the country at visa is a.travel document and then once they got.here at the borders you'd be turning.them away and the State Department has.never read 1182 or 1152 to require that.kind of fruitless and harsh exercise we.also told the Fourth Circuit the same.thing I'll say to you if you agree with.them on their reading of 1152 it can't.ground the current injunction at most it.would be an injunction against the.government that would require us to.issue immigrant visas to people who.wanted to come here even though once.they arrived we could keep them from.entering under 1182 F we don't think.that system would make a lot of sense.Tom Hanks at the airport right I think.that's right I mean and that's why the.State Department has always said when.you are denied a visa under 11.- its it's only because you are validly.suspended under 1182 F that's the reason.it's not in effect a nationality based.distinction but again if you disagreed.with us on that you it would be the.basis for a different injunction one.that I think would be practically pretty.fruitless and harsh but but but that.would be the be the result I don't think.there's any way that you can read 1152.to limit the president's suspension of.entry power under 1182 F so once you.once you make that move then there's no.basis for the injunction I can't read.them together that is you're dealing.with a process not right I think that's.right but the way to reconcile them I.think judge pious is the way that the.State Department has which is to say.look 1152 governs the issuance of.immigrant visas all the time in lots of.other contexts where you have 1182.suspension we're not denying you on the.basis of your nationality we're just.denying you because you've been validly.suspended but if you thought they.conflicted I'd still say 1182 F as the.more specific would Trump because what.you're talking about is the president.making a specific finding with respect.to these categories of aliens and then.suspending their entry but again I don't.need to is but 1152 is more recent.Congress passed that one in 65 that's.right but then you'd have to get past.the presumption against implied repeals.you'd have to say that Congress when.Congress there's this thing why is that.an implied repeal and it's just you read.them together well because I think.Jenner taught to read you know to.reconcile statutes and dream together.completely but I think it's pretty clear.that what Congress was doing was getting.rid of the previous nationality quotas.on immigrant visas it wasn't doing.anything to limit the president's.suspension power and I just want to.point out by the way I mean if you.really take their argument seriously I.think they're committed to the to the.view that under 1182 F even if the.president got actionable intelligence.tomorrow that lets say a Libyan national.were attempting to enter the country but.the president didn't know his identity.to commit some terrorist act they'd say.well the president can suspend entry of.all Libyan nationals for some short.period of time because that's a.nationality based distinction I think.that would raise serious constitutional.concerns and so courts have never read.this.statutes to conflict in that way they've.always reconciled them so those are.general well if I could interject a.question on the merits here.the executive order sets out national.security justifications but how is a.court to know if in fact it's a a Muslim.ban in the guise of national security.justification judge Gould I think that.really that's the nub of the case and.that's Mandel right in Mandel Justice.Marshall and dissent said look if you'll.take even the briefest peek behind the.reason that the Attorney General has.given you'll see that it's not really.why they denied him they really denied.him because he was a communist.and he wanted to come in and give.lectures on communism and the court said.we're not going to look behind we're not.going to take a look at any of that.evidence that's in justice Marshalls.dissent this is rational basis review is.it a legitimate purpose on its face and.is a bonafide does it Barry rational.relationship to what the government's.done in this court and in a number of.cases has said Mandel's rational basis.review and I think the benefit of that.standard as the Court recognized in.Mandel judge Gould is it doesn't call on.courts to make these sorts of.determinations the second-guessing of.national security determinations that.they're sort of ill-equipped to do and.the flipside of course is what the.plaintiffs won in the Washington case.right they've asked for up to a year of.discovery and up to 30 depositions of.White House officials to find out.exactly what was in the heads and what.were the motives of the people framing.this a oh and that's the road that in.Mandel the Supreme Court clearly said it.was not going to go down subject as.judge bias said to the narrow bad faith.exception inden where you've got an.affirmative showing of bad faith and.here you would need official capacity.statements that were unequivocal right.post inauguration to show that the.president and members of his cabinet.were acting in bad faith and I just.don't think they can make that kind of a.remarkable showing here let me ask the.same question that my friend Robert King.asked you a week ago as the president.ever disavowed.his campaign statements as he ever stood.up and said I said before I wanted to.ban all members of the Islamic faith.from entering the United States of.America I was wrong.I've consulted with lawyers the I'm now.addressing it simply to security needs.as he ever said anything approaching.that yes judge how because he has said.several things approaching that and I.think it's detailed in various and Mekas.briefs the best one is probably the.southeastern legal foundation brief and.part three walks through the comments.and shows that over time the president.clarified that what he was talking about.were Islamic terrorist groups and the.countries that shelter or sponsor them.and over time he and his advisors.clarified that what he was focused on.with groups like Isis and al-qaeda and.really the one post inauguration.statement they've got that we all know.what that means I'd encourage the court.to go back and look at the the ceremony.in which the President signed that.executive order the second one that the.said well that's the first earthquake.they don't have anything on the second.order but even if you said okay that's.the first one and we'll carry that.through which for various reasons we.said statements were his surrogates have.said the president is simply carrying.out his campaign promises on this issue.but that's true judge Hawkins because.during the campaign he clarified that.what he was talking about were.territories and countries that Congress.and the previous administration had.determined were dangerous and what he.wanted to do was he said increase the.vetting procedures and that's what he.said three minutes before he signed the.first order standing there next to the.newly sworn-in secretary mattis sounds.like you argue that our approach to.these statements should be sort of an.abuse of discretion review if you could.read the statements good or bad we.should defer to the good I think the.value of the Mandel's.standard is that you don't look is that.courts don't start engaging in this but.if you do and and for you know for the.reasons we've said in our briefs we.think is a matter of why you shouldn't.but if the court were taking them all.into account and here I mean not just.the post inauguration official capacity.statements but the campaign trail stuff.we would still say look the president.clarified overtime and in the face of.ambiguity about that both respect for a.coordinate branch and the presumption of.regularity would require not reading.them I think as the district court did.here in the light most hostile and least.favorable to the to the president there.we did you know you're right we did.receive a number of briefs in this case.a number of amicus briefs and judge.Hawkins question and remind me of.something that caught my eye in one of.the briefs which is the Korematsu from.the debris from the Korematsu Center.would the would would the Korematsu.executive order pass muster under your.test today no judge bys why not I want.to be visually legitimate that's all you.say you emphasize facially legitimate I.want to be very clear about this this.case is not Korematsu and if it were I.wouldn't be standing here in the United.States would not be defending it when.counsel said below and this is at page.116 of the Supplemental excerpts of.record.look we'll concede that an order like.this might well be constitutional in.other contexts where that you didn't.have statements like this that they were.attributing you know impermissible.motive I think you know right then.you're not anywhere approaching.Korematsu I think it I cannot imagine.that any court would say that the the.just a fashion look was hired how do you.apply the facially legitimate standard.to an to an executive order like that I.mean there was no reference to Japanese.in it in that executive order and look.what happened I judge bias I'm not.familiar with all the ins and outs of.that executive order I haven't gone back.and looked at it I can't imagine the.courts would say that it survived the.Mandel standard but the point is just I.think counsel here have implicitly.recognized below that if some other.President had done this without the.statements that this executive order.would almost certainly be constitutional.and then what they're left with are the.statements and they're saying all right.look on its face it's neutral it doesn't.operate on the basis of religion but we.think the president made clear over time.why he was really doing it and you.should look behind it I think that's a.very different situation from Korematsu.and I don't think they've pointed to a.single case either under Mandel or even.if you want under McCreary and Lukumi.that would say we have a law that isn't.a religious gerrymander like the.to me it doesn't distinguish it's not.express explicitly religious like.McCreary but we're still going to set it.aside based on what we believe to have.been the subjective motivations of the.President or the advisors who adopted.and crafted the the policy that's a.really remarkable holding judge Baez is.a bad faith determination this under Din.the same thing as a purpose.determination under lemon I think it's a.I think it's a little different in the.sense judge Hawkins that I look it's one.sentence of dicta in the Justice Kennedy.concurrence so I don't want to read too.much into it because no courts ever.applied it to actually find bad faith.but I think what he has in mind there is.pretext he cites the portion of Mandela.where the court reserves the question of.what would happen if the executive put.forward no justification at all so I.think what he has in mind is when the.consular officer either gives you no.reason or gives you a reason that's.obviously untrue on its face a pretext.sort of finding I think that's a little.different from purpose and again to say.that the president and three members of.his cabinet acted in bad faith.pretextual II by adopting an order and.saying on the face of the order that it.is for national security purposes when.it's not I think to go down that road.you would need the strongest and.clearest showing a bad faith Solicitor.General wall I would appreciate hearing.a little more on the government's view.on the statutory side of the case and.specifically what I have in mind is that.there there's in 1182.there's a need to find that entry would.be detrimental to the United States and.so I have a question whether there's an.adequate finding of detriment allottee.to justify keeping everybody from a.particular law company out of the.country from from a particular country.out of the country and then I also have.a question on.making it a national origin ban because.that seems to conflict with thee the.1985 statute although that was limited.to immigrant visas but if you could.touch on those issues I'd appreciate it.sure so judge ruled on the on the first.question and the Fourth Circuit had a.number of questions about this to the.president in sections 1 D and E and F of.the order makes clear that what he's.concerned about he's really two things.one the ties between terrorist groups.and these six countries that were listed.by Congress in the previous.administration and the concern that the.governments of those countries and the.deteriorating conditions in places like.Iran and Syria may mean we're not.getting reliable information and so what.the president found was he said look I.find that it would be detrimental to let.in their nationals for a brief period of.90 days while I ascertain whether the.vetting procedures that we have in place.for these countries are actually.adequate so he wasn't saying I find that.it would be detrimental because they're.all dangerous or they all are potential.terrorists or anything like that he was.saying in the face of uncertainty about.whether we're getting good information.from their governments so that we can.screen them out in the visa process I'm.going to put a temporary hold subject to.the to the visa waiver and I think under.a Mandel rational basis review but.frankly under any legal standard I think.the president's detriment ality.determination there would easily survive.the second half of your question gets.back a little bit to what judge Hawkins.and I were talking about 1182 is entry.1152 a is issuance of immigrant visas.the State Department has always.reconciled those by saying that when the.president suspends a group even if in.part on the basis of nationality that.the reason for the denial under 1152 is.not the nationality it's that you're.subject to a valid suspension so the.State Department has in practice always.reconciled them so that we're not giving.travel documents to people who would.arrive and then we would keep them from.entering but again if the court.disagrees with us on that I think at.most it would be the basis for an.injunction that's.for the 30% of aliens are so subject to.this order who want immigrant visas we'd.be required to give them the visas even.though when they arrived we wouldn't.have to allow them to enter the country.because of the 1182 F suspension I think.as the district judge in the Maryland.case recognized that that wouldn't be a.sensible result I think the State.Department's reading of these statutes.is the far more sensible one but no.matter what reading you take unless you.say that the president is disabled every.president permanently for making any.nationality based distinctions under.1182 F Reagan with the Cubans or Carter.with the Iranians unless you take that.road I don't think there's any way to.read the statutes that could provide the.basis for the injunction we have here.and if I could just reserve the.remainder of my time thank you thank you.gentle Katja thank you judge Gould and.may it please the court the government.would like to pretend that this Court's.decision in Washington versus Trump.never happened but it did and the.government can't shut its eyes to it.there's a simple test ask yourself if.you accept any of the arguments you just.heard would it have altered Washington.versus Trump if the answer is yes that.settles it so when the government claims.that Mandel applies even though.Washington said it didn't when the.government claims you can't look beyond.the face of the order even though.Washington said you could when it claims.the injunction harms national security.even though Washington said it dint and.when it says the state doesn't have.standing all of these were things raised.and decided by Washington versus Trump.if I could did the Washington panel.decide the application of Mandel on the.merits or to simply say that courts have.jurisdiction to review such things it it.resolved the question of whether the.mandelic our family is bound by I do and.if I could read to you the language from.Washington versus Trump this is found.this is found at page 11 62 the.government cites Mandel for the.proposition that quote when the.executive exercises immigration.Authority on the basis of a facially.legitimate and bona fide reason the.courts will not look behind that the.government omits portions of the quoted.language to imply that this standard.governs judicial review of all executive.is.size of immigration Authority in fact.the Mandela standard applies only to.executive branch officials to issue or.deny an individual visa the present case.by contrast is not about that.application of a specifically enumerated.congressional policy that's this case.you read a little bit more in the case.than I did I'm just reading some I do.well like I understand that but they.didn't really decide those questions.they decided that case based on due.process grant they strongly decided any.process I'm not saying that your bat you.know that they reach the establishment.cause in found a violation I am saying.however for purposes of Mandel the.government became for it before this.court in Washington versus Trump and.said the standard that governs all of.this case is facially neutral and bona.fide this court recited that standard.back to back to them and said it doesn't.apply that is a square holding of this.court if I could I'd like to start with.judge Hawkins question about the.Establishment Clause you asked my friend.mr. wall has the president ever.disavowed all of these statements and I.thought his answer was surprising.because he couldn't actually point to.you any disavowal he just cited on Moss.amicus briefs because the truth is there.is no such statement we give you chapter.and verse the things the president has.said the district court gave them to you.as well they're both pre and post.inauguration there's not just one.starting in December 2015 when he called.for a quote total and complete shutdown.of Muslims entering the United States.then a few months later quote I think.Islam hates us we can't allow people.coming into this country who have this.hate of the United States then a few.months later my opponent quote would.admit tens of thousands of refugees from.the Mideast would try to take over our.children and convince them how wonderful.Islam is mr. calamy you know those those.statements are profound I mean III.familiar with them and read them and.everything else but it is a little bit.concerning though that those those.statements take place during the midst.of a highly contentious campaign.absolutely and we wouldn't be so don't.you need to look at it from that.perspective as well well we wouldn't be.standing here if it was just campaign.statements on its own but as the.district court found the president.rekindled those statements through his.actions as president in two different.respects first when he issued the first.executive order he read the title of the.executive order looked up at the camera.and said we all know what that means.that's at ser 148 and and that is you.know if it was clear from the title what.it meant he wouldn't have had to say.it's a reference to something else and.indeed when he issued both executive.orders he he had left on his website.that very statement about the complete.and total shutdown of Muslims a.statement that just happened to.disappear moments before the Fourth.Circuit argument last week so I think.the question is what would an objective.observer view these these statements as.and as the district court found it would.view them as an establishment of a.disfavored religion of Islam we're not.saying that we're not in favor of.psychoanalysis or trying to get into the.president's head you don't your honor.need to be Sigmund Freud in order to.affirm the district court you just.simply must ask as the Supreme Court has.told you what would an objective.observer think with these sorts of.statements and these statements by the.way just one last point do continue even.last month the DOE brief which was filed.before you says even last month the.president said it's a lot easier for.Muslims to immigrate than Christian.refugees to from the middle-east and.quote he's going to be helping the.Christians big league so this is a.repeated pattern of the president indeed.two months ago to this day when the.district court struck down the.injunction in this case this is an SCR.84 the president said quote moments ago.I learned that a district judge in.Hawaii part of the much overturned Ninth.Circuit the SAR Circuit sorry about that.just blocked our executive order this is.a watered down version of the first one.and let me tell you something I think we.ought to go back to the first one and go.all the way which is what I wanted to it.does it does that mean that all those.statements post-election statements when.even the one you just read does that.mean that the president is forever.barred from issuing an executive order.along these lines what does he have to.do to issue an executive order that yeah.in your view it might might pass.Constitution is not at all so I think.there's two paths that the president.could take in order to pass.constitutional muster one is the way.that our founders thought article 1.section 8 which is Congress which is in.the driver's seat with respect to.immigration passes a statute and as.justice.Alito said you know when Congress passes.a statute it's much less likely to.discriminate it's 535 people versus one.which is why his Mandel point is so.problematic that's number one second.thing we could do is he the president.could do all the kinds of thing or some.of the kinds of things remove the things.that the district court found led an.objective observer to say that this.discriminated so one example would be.what judge Hawkins said about disavowing.formally you know all of this stuff.before but that's not it I mean he could.do a lot of things he could do for.example and I'm just going to throw out.some examples I'm not trying to.micromanage say you know like President.Bush did at right after September 11th.quote the face of Terror is not the true.faith of Islam that's not what Islam is.about Islam is peace instead we get.quote Islam hates us I think Islam hates.us I think he could point to change.circumstances from December 2015 when.Congress debated the exact same evidence.that the president relies on in his.executive order and say you know we.actually need more than just denying.people's entry without a visa which is.what Congress required you need to do.more than that you know it could.eliminate the text which refers to honor.killings you know there's a bunch of.different things that could be done and.our fundamental point to you is that.presidents they're you know under re the.president's don't run into Establishment.Clause problems and the reason for that.is that this is a very limited you know.in a really unusual case in which you.have these public statements by the.president indeed if you affirm the.district court there's not a thing that.the any president has done in our.lifetime that would be unconstitutional.before the Fourth Circuit one of the.judges asked well suppose it had been.another press another individual that.issued the same executive order and.hadn't said all these things would it.pass constitutional muster oh so I think.the most important point is if you don't.say all these things you never wind up.with an executive order like this which.is why no president is on that but I.take the hypothetical and if that.hypothetical arose I think it would be.different that is context matters the.Supreme Court and McQueary for example.says look you know governments can close.shops on Sundays and if they do it.because the labor they want to give.workers arrest that's fine but if they.do it in at the same time announced the.reason why I'm doing it is to you know.print is to help churches that's.obviously in.Savion cause problem and so that's why.context matters it always has in the.content in the context of the.Establishment Clause and here the.history is overwhelming and that's why.this is so unique this is not you know.something that is going to hamstring any.president from you know anything that's.happened in our lifetimes this is a very.unusual circumstance in which you have.all of these different statements you've.in your brief and before the district.court you argued the statutory grounds.quite extensively could you respond to.the government's argument absolutely we.don't think that the two statutes need.to be read separately yeah I think judge.pie as you had it exactly right so you.know our basic statutory argument I'll.respond to the government just let me.just set out exactly what the argument.is which is that the president is.claiming a sweeping power essentially to.set aside the I na in fact the president.refers to quote a an absolute right to.ban any group or anybody that's in our.brief at page three and if you read it.that way if you listen to what mr. wall.said you were giving the president the.ability to take a magic eraser to the.entire United States code with respect.to immigration and nullify anything.because of this 1182 provision and that.can't possibly be what that what the.statute is about that is there are four.problems with the statute with with.their statutory argument one is what.you've just referring to judge pie as.about 1152 that this is nationality.based discrimination but there's also.three other things it also flouts.Congress's finely reticulated scheme the.terrorism bar it's a ten part test for.determining whether someone could be.excluded on an individual basis on.grounds of 1082 a it's 1182 a and it's.also some other provisions but so that.that's there in addition you have.Congress's specific judgment on the very.evidence that is in the executive order.from December 2015 and what Congress.said is you know we don't need to have.group dragnet based exclusions we just.need to insist on visas when people come.in with respect to these very countries.and then the last and I think maybe the.most important thing and it sets up your.question about Korematsu is you know the.government has not engaged in mass.dragnet exclusions you know in.the past you know 250 years this is.something new and unusual in which.you're saying this whole class of people.some of which are dangerous we can bar.them all our brief at pages 37 to 42.explains us in detail the government.hasn't had a single answer in their.brief to this and so I think those are.the statutory violations that you said.well can't you read them together and we.think that's you know absolutely the.right way to view this this is not an.implied repeal section 1182 F gives the.president broad powers we don't disagree.with that but the one thing it can't do.is do what it is to violate a statute.and it's a plant a law of Congress to do.so is to basically transform this into.the statutes into mere suggestions and.nothing more than that and so you know.when the Congress says in clear and.unmistakable language you know that no.person shall receive any preference or.priority or be discriminated against in.the issuance of an immigrant visa.because of the person's nationality as.pretty clear now my friend on the other.side says well if you read it that way.then there'll be a Libyan who's going to.come into the country and so on but I.think judge Sentell in the DC Circuit.answered that very clearly by saying no.there's obviously an emergency exception.if Congress can't meet or something like.that the statute isn't going to reach.such a thing but here there's no.emergency precluding Congress from.acting as if there is a statutory.violation here what's the relief as to.correct the statutory violation putting.aside the the Establishment Clause for a.moment so we think because there's.different statutory violations the.entire the sections two in the section.two does fall that is as a whole that is.you know there's a planting Congress's.fine grand terrorism scheme with a.dragnet ban and so the whole thing Falls.I think you might be asking just about.1152 and the immigrant visas provision.if we find that our point to you our.brief says this and it starts with judge.Friendly's opinion in 1966 the year.after this landmark statute was enacted.Congress didn't just say something about.immigrant visas and by the way judge.Hawkins the mother-in-law is seeking an.immigrant visa a green card for dr..al-shaikh Congress said more than that.that's what your opponents okay so I.just want to make.or so Congress said in 1965 we are.changing fundamentally what our.immigration system is about and we're.not going to engage in nationality based.discrimination anymore and that extends.even to non-immigrant visas the a B.American Bar Association brief goes.through this in painstaking detail as.well as a hundred and sixty-five members.of Congress that have come before you.and it may explained exactly why that's.so indeed the government in the Olson.case actually didn't even contest that.they said yes it applies to.non-immigrant visas so I think you know.it's a transformational statute and.indeed no president has done anything.like this since that statute was you.think 1152 applies beyond immigrant visa.I do so I agree with you the text.doesn't but as judge friendly found and.indeed is the government conceded in.Olsen it does extend beyond that because.of the way in which this statute took.relevant factors and said nationality is.no longer a relevant factor for purposes.of our immigration you would have us.look to what you argue is the purpose of.the statute as opposed to its language.oh no I'm just I'm saying I wouldn't say.necessarily the purpose I think that the.statute how immigration law has always.as the Supreme Court said in Judah long.versus holder you always have to look to.relevant factors and understand what.does Congress deem relevant and whatnot.and I think that when you ask yourself.that question nationality is now no.longer such a factor that is this was a.transformational statute in 1965 passed.contemporaneously.with the Voting Rights Act and so that's.why so again that's on the 11:52.argument but I don't want the court to.lose sight of the other bigger argument.which is the that 1182 which sure looks.like it's a broad statute but it does.ultimately supplant the more specific.fine-grained ten factor test that.Congress laid down and the government.itself has said in to the Supreme Court.in the Marx case that when you have a.more specific statute that controls over.the general a general grant of authority.and indeed you know Supreme Court case.after Supreme Court case like which.kovitch or Zadvydas or so on have said.look this.statute looks like an unbounded.delegation of authority but actually we.have to read it more narrowly Council if.I could interject the question on on the.statutory issues if we were to conclude.hypothetically that the Establishment.Clause claim can't support the district.courts injunction could we still affirm.the injunction on statutory grounds.absolutely either in whole or in part.and and also related to that could you.touch on whether they're standing the.basis of your client standing on the on.the refugee provisions and I think that.would help me out absolutely so if you.accepted our larger argument about the.statute judge Gould about 1182 that it.would I think to affirm the district.courts injunction as a whole it's true.that 1152 the nationality based.discrimination the way to uphold the.injunction as a whole would require.reading the statute to encompass.non-immigrant visas as well as judge.Hawkins was illustrating and so that is.our reading we think that's the way.since judge Friendly's opinion this has.been read but there's obviously going to.be some you know there can be a question.about that now with respect to the.standing of refugees both plaintiffs we.think have standing Hawaii has standing.because in Washington versus Trump the.court actually found that the state of.Washington had standing indeed even on.the refugee claims which were before the.court and and here we have identified.you know that indeed the government has.pointed to three refugees that have come.in this year in 2017 they said this you.know the district court proceedings.below and so Hawaii has an interest in.making sure that its refugee programs.and the dollars it spent or actually.being able to be used and a flat ban on.all refugees which is what that.executive order is would basically force.those dollars to be wasted and with.respect to dr. el-sheikh e2 has standing.with respect to the refugees his mosque.actually has a refugee in it I mean he's.the Imam of the the largest.skinned Hawaii and so I do think for all.of those reasons there would be standing.we kept standing on 1152 I'm 1152 he.does because I mean if we assume that.that only applies to immigrant visas.does he have standing he does because.she is seeking an immigrant visa a green.card and the Lovaas case the DC Circuit.case by judge Sentell allowed family.members to bring a lawsuit and found it.had standing so it does let me ask you a.question the government makes the.argument that if you look at the.statements surrounding first of all if.you exclude this is a hypothetical if.you exclude the campaign statements if.you look at the statements around the.time of the issuance of the second.executive order including you know what.this means language that there's one way.to read it.seeing it's bad there's one reason way.to read it saying it's good why.shouldn't we be deferential to the.office of president of the United States.on such issues so that's the million.dollar question judge hawkins and i.don't think there's any precedent in.this court or any other that says that.when you're thinking about what a.reasonable observer would view as an.Establishment Clause problem that you.defer to a government official rather.the whole test is objective observer not.what the president thinks we're not.impugning what's in his head we're just.saying objectively this is how a.reasonable viewer would see it if you.viewed it the other way and gave.deference then you'd really be giving.the president the ability to bootstrap.all sorts of things and say well you.know enact all sorts of discriminatory.policies but then say I defer you have.to defer to me I don't think it's.discriminatory which by the way he.hasn't even quite said but you think a.really dangerous situation and indeed.our founders were particularly concerned.about the idea of immigration.restrictions being used to establish a.religion that's actually what happened.in colonial Virginia and so I think the.best way to think about it and this is.what the Supreme Court says is think.about what an objective observer would.view this as and the best evidence to.say what an objective observer would be.this as is I think judge piya's pointed.to this their amicus brief after amicus.brief I'm not aware of any case like.this in which so many.different amicus briefs from across the.country representing such a wide swath.of life have said this is an.Establishment Clause violation that this.in acts a disfavored religion Islam that.includes 17 states including states like.Iowa North Carolina over 30 cities and.counties including Seattle Los Angeles.New York City San Francisco South Bend.faith leaders and groups from across the.spectrum including the National Council.of Churches representing 40 million.Christians Episcopal bishops the.Unitarian Association with a thousand.different congregations the Alliance of.Baptists and Sikhs the anti-defamation.league professional associations like.the SEIU and American Federation of.Teachers representing 5.2 million.workers indeed even the Cato Institute.they're all coming before you and saying.look this is unprecedented we've not.seen anything like this in our lifetimes.in which a president is set is.establishing a disfavored religion and.with real consequences this isn't just.the president saying something without.action this is the president's action as.well you've argued in the past to give.deference to the executive in.immigration matters haven't you sure in.United States against Texas I think you.wrote an amicus brief in which you said.the particular demands of the.immigration system in fact require the.executive to wield broad discretion.executive must prior prioritize.enforcement resources in a way that.makes the immigration system function.effectively while balancing a range of.foreign policy national security.economic and humanitarian concerns.select your languages absolutely and we.don't disagree with any part of that.Judge Hawkins rather what we are saying.is that the president has to implement.you know Congress's will but it can't be.an unbounded delegation indeed I think.if you read the government's brief you.might think oh the president can have.this such a sweeping delegation that he.could even name classes of people or.nationalities and so on and really the.government derives its strength from the.Abba Zack case this is at the reply.brief at page 21 when you go back and.look at what that case is because they.try and pass this off as the majority.opinion by.then judge Ginsburg Ruth Bader Ginsburg.they're actually citing from the dissent.by Judge Bork not the majority opinion.they don't tell you that but that and.yes the dissent says that but the.majority has never said that the law has.always been that even when there is a.delegation of authority it still got to.be viewed within an overall context of.the immigration scheme and to view it.the way they do would allow the.president to take a magic eraser to the.entire code and obviously the brief in.that Texas case is not about.Establishment Clause right we understand.what that was about but you also wrote a.brief in Flores Villar I've been busy in.which you said US policy towards aliens.is vitally and intricately interwoven.with the conduct of Foreign Relations a.power that is likewise vested in the.political branches and 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.right when I was in the government I.tried to try to get the Supreme Court to.bite on that they didn't and and and I.think for you know but even still look.we're not here saying that there's no.you know the president doesn't have.emergency powers national security.powers of course he does the question is.when you have a circumstance like this.when the very evidence that they have.pointed to was before the Congress of.the United States and they said you know.we don't need this mass dragnet ban.instead we can do something more limited.require visas that I think is I think.all that that you know that that is.particularly telling you know so.obviously if it's an emergency situation.it's a different matter but that's not.the world.we're in indeed the government points in.its executive order to really only three.things they point to to people from Iraq.who committed crimes but Iraq is now.exempt from the executive order and.someone from Somalia who came here as a.refugee when he was two years old and.committed crimes when he grew up but the.executive order exempts some proposal.exempt suppose the President had adopted.this second order or.order and identified areas of active.combat in these some of these affected.countries or in the those portions.carefully drawing the map like a.legislative gerrymander if you will to.identify areas where there has been.terrorist activity whether it's Isis.Boko Haram al-qaeda the Taliban and.narrowed it down to just those areas.would that pasture I think you're.probably I think it would I mean.obviously depend on the context but I.think it very much would because that's.exactly what Congress did in 2015 it did.do nationality based discrimination this.is what the district court found at page.er 61 you know instead if you isolate.you know where people have come and.visited from as the 2015 we've visa.waiver program works it doesn't work by.where you're born it works but what.passport you hold it works based on you.know where have you recently been so if.you're a Swiss citizen and you've gone.to Sudan you're covered by the 2015 ban.because precisely for the reason you're.saying judge hawkins which is in 2015.Congress determined there might be some.security threats in Sudan but what this.does is it says if you're a Syrian and.you're born in born in Switzerland you.spend your whole life in Switzerland and.then you want to come to the United.States nope flat ban you can't come in.just by dint of your nationality that is.not something presidents have ever done.in our lifetimes not quite as specific.as you're chock ins suggestion but the.order does refer to conditions in the in.the countries that are that are listed.why arnt wasn't that sufficient for.purposes of facial legitimate again that.evidence was before the Congress in.December 2015 and they said the solution.is the visa is to require visas nothing.more than that and and so I don't think.it's detrimental to use judge Gould.slang which detrimental to the interest.of the United States Congress has.already made that determination but even.if you dwell but so the order got you.know the first part of the order the the.preamble and all the the subsections of.the preamble of section 1 it goes.through the various countries and lists.conditions in those countries now was.now the conditions that are described or.not like what judge Hawkins was.alluding to but they they do make an.attempt why isn't that sufficient.attempt was made before Congress in.December - that's it well I think the.other important point is I was saying to.Judge Hawkins is if you really believe.that you wouldn't do it on the basis of.nationality because you do it on the.basis of transit that is someone coming.from one of those countries regardless.of what their nationality is would be.swept up by whatever the possible.presidential action would be that's how.Congress did it but that's the way to.deal with that problem not this if I.could I just want to return to the.colloquy that was that you all were.having with my friend about Mandel and.bad faith because I do see that is quite.important to the resolution of this case.obviously we think Mandel doesn't apply.because of Washington versus Trump but.if for some reason you wanted to get.into it we think that the bad faith.exception or as the band L language.itself caused it bona fide is enough to.rule in our favor and to affirm the.district courts injunction in this case.and the reason for that is that this.court in cárdenas said that if there is.bad faith an affirmative showing of bad.faith then the Mandel standard is met.and the action will be unconstitutional.now my friend if we don't consider the.campaign statements do you still prevail.oh absolutely.once again I think there's bad faith.even past that all you know first of all.I think the president rekindled all of.those campaign statements but even.beyond that all the things that have.happened afterwards including leaving it.up on the website including I want to go.back to the first band including I'm.preferring Christians big-league all.those things you know what he said at.the Christian broadcast network on.January 27th all of those things I think.are sufficient now mister wall says oh.well you should give more deference to.the president than to a consular.official and in general that may be true.but not when it comes to religion indeed.our founders were very worried about the.possibility that one man could establish.a religion and certainly the president.can any individual consular officer is.not going to be able to establish a.disfavored religion such as Islam it's.only something like the president so the.stakes actually are much higher when.you're dealing with the president and so.I don't think that he gets any special.deference returning to judge Hawkins.your question.let me ask you this and I don't mean do.you serve your closing language so you.will give you extra time if you need but.it there were letters issued by both the.Department of Justice and the Department.of Homeland Security I think on the same.day the order was the second order was.signed which more or less gives support.to the order and you know say that there.are national security reasons we need to.do this so - those letters neutralize.your assertions that the that the.national security interests relied on.are pretextual and also or related to.that do they neutralize the bad faith.argument because you're not just saying.bad faith the president you'd have to be.saying it's also bad faith of the.Attorney General also bad faith of the.Secretary of Homeland Security right so.our it's certainly true that those.letters were written on the morning of.saying would will be nice to do an.executive order like this and then the.executive order issues and I think that.those letters don't change the dynamics.at all rather the question is as the.district court found and as all the.amici before you found is is this.executive order viewed from the.standpoint of an objective observer an.establishment of a disfavored religion.Islam and even if there is some national.security motivation on the part of these.cabinet secretaries that doesn't.eliminate the fundamental problem which.is that this executive order was.promulgated by the president and he has.built it in a certain way and that is.the way an objective observer would view.it so it's you know it imagine just ask.yourself if the president said is the.time he was signing the order something.like you know I really hate Muslims or.something like that the fact that.cabinet secretaries may have a national.security justification or something that.was sent to him.I don't think would change the.underlying constitutional problem and so.similarly here we think that those.statements taken together is the.district court found do so if I could.have a quick question on scope if you.don't mind I understand from the Fourth.Circuit argument that that the district.court in Hawaii construed its injunction.to also cover and prohibit the ability.of the government to study the issues.that they're talking about in the.context of the order to find out if.there's more things that could be done.in terms of vetting or procedures or.transit or visa issuance that sort of.thing is there is there any.justification for that portion of the.ordinance does that interpretation so.may I answer and then have about a half.minute to sum up as well we're giving.you extra time thank you thank you so.much so I didn't really quite understand.mr. walz statement to the Fourth Circuit.he said well I take mr. wallet is word.he said that they asked the district.court and he can tell us they asked the.judge in Hawaii yes can we go ahead with.these studies to determine if there are.things that can be done and I take it he.was saying that in reaction to the.judges on the Fourth Circuit and Bank.panel saying why haven't you done this.exactly so let me read to you his words.in the fourth circuit and then to go.through it because it's a little it gets.a little technical this is what he said.quote we went back to the Hawaii judge.and said look you can't possibly have.meant to enjoy an internal governmental.procedures to look at vetting for these.six nations and in the face of that.motion the district judge said yes I.don't think that's quite right that is.they did ask to clarify the injunction.now with respect to the six countries in.studying the six countries but just.generally can they have internal.consultation and the like in in.questions a little broader the exact.question is is there any justification.for interpreting the district courts.injunction to cover what I've just.described yeah so it I think yes answer.yes or no the answer is yes if it comes.to a worldwide study under the auspices.of section 2a of the order and the.reason for that is what was we pointed.out in our opposition at the district.court to their class.replication motion at page 13 this was.the government's own theory they said.that the study in 2a was integrally.linked to the 2c exclusion in the six.countries and so if you see the twos if.you view the 2c exclusion of the six.countries as as an establishment or a.statutory violation then the two a.worldwide study has to fall but Judge.Hawkins let me reassure you that doesn't.matter at all that is the government can.and indeed has been conducting worldwide.vetting and increased studies about all.of these things every executive recently.they do something along those lines.laptops are not just laptops two weeks.ago they announced in the Code of.Federal Regulations an increase in.vetting procedures worldwide so the.injunction doesn't ban studies at all.it only bans a specific study which is a.study designed to carry out what we view.as the Muslim ban in section 2a and so.and so the president has been conducting.those studies as every executive will.get a chance to hear from mr. wallam.okay great if I could just sum up four.seconds or so you know last week my.friend mr. wall closed his argument by.saying that the precedent here will.transcend this case and this travel ban.and I couldn't agree more if you rule.for us.you leave intact the president's powers.including every decision every president.has made in our lifetimes and you.preserve a status quo that has existed.for decades if you rule for him you.defer to the president in a way that.history teaches us is very dangerous you.open the door to so much as justice.Jackson said in the context of the First.Amendment and religious freedom case.quote the First Amendment was designed.to avoid these ends by avoiding these.beginnings this very courthouse which.tried convicted and then later.exonerated Courtney harab yashi 44 years.ago stands as a physical reminder about.what is at stake our Constitution and.laws are better than this our founders.wanted America to be a beacon on our.Coast and that beacon at the end of the.day is not the quality of our sports.teams or the quality of our soil that.beacon ultimately.is the majestic article 3 and the grand.contours of the First Amendment we ask.that the district court's ruling in.joining this unconstitutional and.unamerican executive order be affirmed.Thank You counsel.Solicitor General wall you had reserved.a couple of minutes but we also went.over time on the Appel EES arguments so.we'll give you extra time if you would.like it.thank you judge Gould all I'll try not.to use all of it I have just a few brief.points the first is I don't think.Washington can be taken to resolve the.standard of review in this case I think.it's Mandel and under that pretty close.though well it did it in a section.called reviewability and to the extent.that what Washington said judge Baez was.Mandel can't govern you know broad.policy determinations even plaintiffs.don't try to defend that reasoning.because it's inconsistent with fiallo.and other cases and that's why I don't.think this Court should should over read.it under that standard I'm glad to hear.counsel say look we wouldn't be up here.if it were just the campaign statements.I'm glad to hear him say that because.those are not statements in an official.capacity and they don't tell you what.the official objective of government.conduct is people say things on a.campaign trail then they take an oath to.uphold the Constitution they form an.administration and they consult with.them on the policies they develop and we.shouldn't start down the road of.psychoanalyzing what people meant in the.campaign trail and then he judge by as.an answer your question.he's down to a handful of statements and.the only one that directly concerns this.order is what the president said when he.signed the first one we all know what.that means and what the president said.three minutes before he signed that in.the presence of the newly sworn and.Secretary of Defense was I'm signing.this order because I want to increase.the vetting procedures for radical.Islamic terrorist groups three minutes.later when he signs the order and he.makes this six word offhand comment it's.clear in context and I think it's at.least you know within the presumption of.regularity that we ought to afford to.the head of a coordinate branch what.he's talking about our terrorist groups.not all Muslims everywhere in the world.there just isn't enough in this record.get you to bad faith Thunder den and I.think council wants to discount how.remarkable it would be for the court on.a handful of statements made by the.President on both sides right you could.look at ser 90 where the president says.I want people to come here we love this.country many Muslims do many many.Muslims do and we can go back and forth.on the president's comments over time.and that's just not a judicial inquiry.like what Mandel commands courts to do.and under that inquiry there is not bad.faith here on the statute that you know.for all of the rhetoric judge Hawkins.the language of the statute doesn't get.you where he wants to go 11:52 deals.with the issuance of immigrant visas it.doesn't deal with entry and it doesn't.deal with non-immigrant visas we make.nationality based distinctions in the.non-immigrant visa context every day.that's what the visa waiver program is.Nationals of some countries have to get.a visa Nationals of other countries.don't and Olson doesn't say anything.different at most it gets you an.injunction very different from this one.one that I think would actually be more.harsh to the people that council.purports to defend but none of it gets.you in a limitation on 1182 F which.judge Ginsburg in footnote 2 of our.decision and Abu Raziq said is the.president's sweeping proclamation power.to suspend the entry of any class of.aliens when he deems it in the nation's.interest and I know counsel wants to.second-guess the exercise of that power.here but he's right whatever this Court.says will govern president's exercise of.that authority for years and decades to.come and no court has ever read into.1182 F ever the kind of limitation.whether from 1152 or any other statute.the council wants to find in it the last.thing I'll say is just the over breadth.of this injunction Council didn't.mention the internal review provisions.at all.he barely mentioned section six let me.say a word about this sections 2a and 2b.of the order say that the State.Department and DHS and DNI are to look.at our information sharing agreements.with other countries and determine.whether we have sufficient vetting.procedures in place on the basis of the.information we're getting from those.countries and they're supposed to.produce a report that was tied to the.temporary suspension in a sense the.president said because I'm not sure.I'm going to suspend and that will free.up resources to do the review we went.back to the district court as counsel.knows and said look even if you give.them the suspension of entry which is.all they've briefed and all that's in.their complaint it doesn't get you to.the rest of section two and it doesn't.get you Section six surely we can still.produce the report that is required by.sections 2a and 2b and the district.court in the face of our motion said I.enjoined all of section 2 and all of.section 6.we have scrupulously complied with that.injunction but I want to be clear with.the court even if we're wrong about.standing and even if we're wrong in the.merits the most he ought to be able to.get under decisions from this court like.mine hold is an injunction against to.see for dr. el-sheikh and his.mother-in-law or at most in addition any.students whom Hawaii identifies if you.conclude that Hawaii has standing.he is conflating the nature of his legal.argument with the kind of relief to.which his plaintiffs are entitled if.their claim prevails on the merits and.mine hold in other cases say no matter.what the scope of his legal argument and.what it would suggest about the.propriety of the order at most his.clients get an injunction that redresses.their injuries here that's doctor.el-sheikh and his mother-in-law and.maybe a handful of students and to see.not the rest of section 2 and nothing in.section 6.unlike the Fourth Circuit case he.doesn't have refugee groups he doesn't.have anyone he's seeking refugee.admission section 6 and the refugee cap.shouldn't even be on the table and look.I'll wrap up in the same way yes we did.say to the Fourth Circuit last week that.the precedent set by this case for the.judiciary's role in reviewing the.president's national security and.immigration Authority will long.transcend this debate this order and.this constitutional moment counsel is.right that this country is a beacon but.what makes it a beacon is the rule of.law under the settled legal rules for.justiciability constitutional and.statutory interpretation and injunctive.relief what the president did here fall.squarely within his constitutional and.statutory authority I know they disagree.with this president and many of his.policy judgments but none of that.converts this into a constitutional.crisis and we respectfully submit that.this court shouldn't treat it like one.it ought to leave this debate where it.belongs.in the political arena the United States.respectfully submits that this.injunction should be vacated or at a.minimum substantially narrowed thank you.your honors Thank You Solicitor General.wall and Thank You counsel catch off the.court appreciates the very high quality.of the arguments on both sides the court.will now take a recess for I would say.this case is submitted at this point and.the court will take a recess for 20.minutes.[Music].

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Acknowledgment Of Hearing Notice Court Of Appeals 9th Circuit FAQs

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How will President Trump’s appointments to the 9th Circuit Court of Appeals affect the U.S.?

If you are referring to “conservative presence” as judges who actually follow the Constitution, then the affect will be that there are fewer courts making laws instead of ruling on them.

Should the 9th circuit Court of appeals in the US be split because of liberal bias?

No, it should be dissolved, not for its liberal bias, but for substituting liberal policy preferences for rendering justice. I.e. making rulings based on “social justice” rather than actual justice.

What happens now that the Federal 9th Circuit Court of Appeals has ruled not to reinstate Trump's immigration ban?

Trump has already threatened to fight it in court. The better option would be for them to do the actual hard work of revisiting our current vetting process, find where it’s weak, and then rewrite the travel ban in a way that takes into account peoples’ rights to due process, to freedom of movement allowed by our laws, and that regards current visa holders and others who have a legal right to be here that have already been vetted.

Why did the Federal 9th Circuit Court of Appeals decide not to reinstate Trump's immigration ban? What was the reasoning?

The decision was poorly thought out and contains a multitude of errors. So much so that another member of the court, one not on the three judge panel, has requested sua sponte rehearing of the case en banc. The judges on this would be those currently listed as active in the 9th Circuit and must decide on this matter in writing by the 16th of Feb. This will, if the 9th acts like it usually does, be turned down (Note: 66% of their cases are later overturned.). However, their briefs will become part of a Supreme Court case and some on the court would prefer not to be embarrassed by siding with th Continue Reading

What will happen next after the 9th US Circuit Court of Appeals ruled for the right to carry guns in public in Young v. Hawaii?

Hawaii will appeal to an en banc hearing of the entire 9th Circuit. They will reverse the decision just like they did in Peruta v. San Diego a year or two ago and it will add even more pressure for the case to go to the Supreme Court

How much weight would a court ruling from one circuit court of appeals (say the 9th Circuit) have in another (say the 6th Circuit)?

the rulings apply to the area of that circuit’s jurisprudence, so a 9th circuit ruling would have a lot of weight in California while a 6th circuit ruling would have a lot of weight in Kentucky.

Were you surprised to hear that the 9th U.S. Circuit Court of Appeals temporarily lifted an order suspending the Migrant Protection Protocols (MPP) on Friday?

Oh, my didn’t see that coming coming, Lawana Gray, which begs the question, Is this a case of giving up a pawn for something much bigger in return? I’m not for or against Trump, but I hope he hasn’t been out maneuvered in a legal sense that he isn’t fully aware of just yet. A comprehensive immigration bill is looooong overdue…way past time for the D’s & R’s to put/pull a measure together that both protects the US, while also welcoming legitimate asylum seekers as well. One extreme or the other is not the right answer to this rather complex issue.

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