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9th Circuit Court Hears Oral Arguments in Travel Ban Case. Aired 6-7p ET

Aired February 7, 2017 - 18:00   ET



PAMELA BROWN, CNN JUSTICE CORRESPONDENT: Following Washington State federal Judge and George W. Bush appointee James Robart's decision to halt the ban nationwide for now.

UNIDENTIFIED MALE: Do you believe that, because of this court order, we have let some dangerous people into the country?

UNIDENTIFIED MALE: It's certainly entirely possible. Again, the whole reason for this pause is to get our arms around the term vetting.

BROWN: At issue tonight, whether to overturn the federal judge's ruling and reinstate the ban, which blocks travel from seven Muslim majority countries for at least 90 days.

The federal government says Judge Robart in Washington overstepped his bounds, writing in its brief -- quote -- "The court's sweeping injunction is vastly overbroad" and arguing the president has wide authority when to comes to matters of immigration, particularly when it comes to national security.

The lawyers also claim the lawyers don't even have the claim to bring the lawsuit, because many of the people affected by the travel ban have never stepped foot on U.S. soil. The states argue the ban breaks up families and hurts businesses and public universities, particularly those who have already come to the U.S. with a valid visa.

They say it's unconstitutional and discriminates based on religion. The case will be heard by a panel of three judges. Judge Richard Clifton, based in Honolulu, is the sole Republican appointee. Judge William Canby Jr., who sits in Phoenix, is a former military attorney. And Judge Michelle Friedland, based in San Francisco, is a former clerk of Supreme Court Justice Sandra Day O'Connor.

ELIZABETH WYDRA, CNN LEGAL ANALYST: The court will not be determining the constitutionality of the travel refugee ban. Instead, it will be a quick emergency motion on whether or not the ban should be blocked while the issue of its constitutionality makes its way through the court.

BROWN: While the legal fate of Trump's travel ban remains unknown, today the man in charge of implementing the ban, Secretary Kelly, took the blame for its rocky start. GEN. JOHN KELLY (RET.), HOMELAND SECURITY SECRETARY: In retrospect, I

should have, this is all on me, by the way, I should have delayed it just a bit so that I could talk to members of Congress, particularly the leadership of the committees like this to prepare them for what was coming.


BROWN: We are told after the hearing, the judges will confer and then make a decision. The court says not to expect a decision today, but likely one day this week. We're told, Wolf, that hearing is now under way.

WOLF BLITZER, CNN ANCHOR: It's going to be critically, critically important. We're going to go to that hearing in a moment.

But I want to quickly go over to our senior White House correspondent, Jeff Zeleny. He has got new information.

Jeff, the president had been talking and tweeting about this. What's the latest?

JEFF ZELENY, CNN SENIOR WASHINGTON CORRESPONDENT: He has been, Wolf, all day long. You can tell the president is, indeed, paying attention to what is going to be coming out of this ruling. I am told the White House counsel Don McGahn and whole his flock of lawyers are watching and paying attention to this ruling.

And they are going to be giving the president updates in real time. Unclear if the president is watching this at the moment. He has some meetings and other things wrapping up. But, Wolf, they are keeping an eye on this. This is affecting his most important executive order, his most important campaign promise and other things going forward here.

It's his first taste of the limits potentially of executive power and authority, Wolf.

BLITZER: Jeff Zeleny at the White House for us. Jeff, thank you very much.

Let's go to the Ninth Circuit Court of Appeals. This panel is now under way.



As you have heard, you will each have 30 minutes, and I will try to help you with your time, because I know you can't see a timer like you would in the courtroom. But if you could also please try to watch the time yourselves, that would be great.

With that, we will hear first from the government.

Mr. August Flentje, please proceed.

AUGUST FLENTJE, DOJ ATTORNEY: May it please the court, I'm August Flentje with the Justice Department here on behalf of the United States.

I would like to reserve five minutes for rebuttal.

The executive order at issue puts a temporary pause on entry for individuals from seven countries that Congress and the last president determined in a similar context pose special risks in terms of terrorist infiltration into our country.

Those determinations were made in 2015 and 2016 based on either a congressional determination or statutory factors, including their foreign terrorist organizations had significant presence in the country or the country served as a safe haven for terrorists.

The order also temporarily halted the refugee program. This judgment was well within the president's power as delegated to him by Congress and it is constitutional, as the court in Boston in (INAUDIBLE) recently held.

Under Section 212-F, Congress has expressly authorized the president to suspend entry of classes of aliens when it is necessary or when otherwise it would be detrimental to the interests of the United States.


That's what the president did here. And the president's determination that a 90-day pause was needed for the seven countries at issue here in order to ensure adequate standards, and that's language from the order, for visa screening, was plainly constitutional.

The district's court order, which contained no assessment of the legality of order, was in error, and we encourage the court to stay. A key factor in the order and its temporary nature was the president's determination that there was a need to review existing practices for screening foreign nationals who apply for visas.

The order...

JUDGE WILLIAM CANBY, NINTH CIRCUIT COURT OF APPEALS: If I can interrupt for a moment, you're asking -- you're asking for a stay of the temporary order of the district court.

No matter which way we rule on your stay, presumably, that appeal of the order remains in place. Is that correct? Or are you -- sometimes, I get the impression from the papers that we're trying to argue the merits of the appeal itself, rather than the merits of the stay.

FLENTJE: Yes, Your Honor. There is some overlap, but, yes, we are at this point just asking for a stay pending review by this court.

Of course, the standards are pretty similar since both would look at the traditional injunction standards.

With respect to those standards, I do want to say, there are two kind of significant irreparable injuries that we are citing in support of our request for a stay. The first irreparable injury has to do with the assessment of risk that the president made in balancing our interest in welcoming people into this country with our interest in making sure our procedures are secure, so that the risk of terrorism is acceptable.

The president struck that balance. And the district court's order has upset that balance. This is a traditional national security judgment that is assigned to the political branches and the president and the court's order immediately altered that.

FRIEDLAND: Have you offered any evidence to support this need that you're describing for the executive order, or are you really arguing that we can't even ask about whether there's evidence, because this decision is not reviewable?


The order, itself, includes findings. Those findings recognize the crucial role that screening presents in the visa process. They recognize that numerous foreign-born individuals have been convicted or implicated in crimes since September 11.

It recognizes that deteriorating conditions in certain countries create further problems. So, the order created a pause, so that the screening the screening process could immediately be reviewed to ensure it's adequate.

FRIEDLAND: Has the government pointed to any evidence connecting these countries with terrorism?

FLENTJE: These proceedings have been moving very fast. I -- and the strongest point on that is that, in 2015 and 2016, both Congress and the administration made determinations that these seven countries posed the greatest risk of terrorism, and in doing so restricted visa waiver to people who had even traveled to those countries over the last five or six years.

The executive order relies on that determination. And that is I think the strongest type of reliance, where the president is relying on Congress' determination that these are countries of concern and Congress' procedures to identify countries of concern based on significant terrorist activity in the countries.


I understand the concept of that, but it's pretty abstract. And it's not like there haven't been processes in place to take some care with people coming from those countries. Indeed, those are the determinations in the statute and by the prior administration you're pointing to. Is there any reason for us to think that there's a real risk or that

circumstances have changed such that there would be a real risk if existing procedures weren't allowed to stay in place while the administration, the new administration, conducts its review?


FLENTJE: Well, the president determined that there was a real risk. That's why the president determined that the best course was a temporary -- it's a short halt in entry for 90 days while these procedures are looked at. And that's understandable.

The president comes into office with an obligation to protect the national security of our country. The president understands and explains in the order that these visa screening procedures are crucial. And the president understands that Congress identified these seven countries, as well as in 2016, the president...

CANBY: This is Judge Canby.

Of course, in naming those seven countries, what Congress did was to provide that people coming from those countries had to get visas. In other words, they couldn't just come into the country without a visa. And that permitted, of course, the usual investigations before you give somebody a visa.

And in the transcript of the hearing in the district court, the district court asks the representative of the Department of Justice -- you're in the Department of Justice -- how many federal offenses have we had being committed by people who came in with visas from these countries?

And the ultimate -- the answer was, there haven't been any.

FLENTJE: Yes, Your Honor.

These proceedings have been moving quite fast and we're doing the best we can. I can...


FRIEDLAND: You're saying that the proceedings are moving fast, but you appealed to us before you continued in the district court to develop the record. So why should we be hearing this now, if it sounds like you're trying to say you're going to present other evidence later?

FLENTJE: Well, I was just about to at least mention a few examples.

There have been a number of people from Somalia connected to Al- Shabaab who have been convicted in the United States.

FRIEDLAND: Is that in the record? Can you point us to what -- where in the record you're referring?

FLENTJE: It is not in the record. There has also been other examples. But, again, you're correct.

These are not in the record. The reason we sought immediate relief and a stay is because of the court's -- the district court's decision overrides the president's national security judgment about the level of risk. And we have been talking about the level of risk that is acceptable.

As soon as we're having that discussion, it should be acknowledged that it's -- the president is the official that is charged with making those judgments. I would also like to talk briefly...


FRIEDLAND: Are you arguing then the president's decision in that regard is unreviewable?

FLENTJE: The -- yes. The -- what we -- there are obviously constitutional limitations, but we're discussing the risk assessment.

FRIEDLAND: What are the constitutional limitations that the government acknowledges?

FLENTJE: Well, I would more say the plaintiff has asserted various constitutional limitations. And I think the case that is most on point as far as constitutional interests is -- are Mandel, and Din.

And in those cases, where you have a U.S. citizen raising a claim, the court looks only at the U.S. citizen's constitutional claim and, even then, looks at whether the decision is facially legitimate and bona fide.

The executive order here meets that standard easily. It relies on...

FRIEDLAND: In both of those cases, though, the specific statutes by Congress that set forth specific criteria that were then applied factually were at issue.

The president is not applying any specific criteria from Congress here, is he?

FLENTJE: Yes. The president is.

The president is applying section 212-F, which authorizes the president to suspend entry of classes of aliens if their entry would be -- quote -- "detrimental to the interest of the United States."

It now -- the Supreme Court recognized that Congress and the president share the act -- exclusion of aliens is a fundamental act of sovereignty that the Congress and the president -- they're within the powers of Congress and the president.


So, our point would be that there's limited review, and the executive order -- and most limited review in the executive order easily passes that test. And that would only be true if there's a... (CROSSTALK)

FRIEDLAND: What kind of limited review do you acknowledge is appropriate?

FLENTJE: Again, we're not acknowledging any review on the facts of this case because of a lot of standing and other problems with the state bringing the claim.

What we acknowledge is that Mandel conducted a limited review to see that the decision was bona fide and legitimate.

FRIEDLAND: Haven't there been allegations here of bad faith? And doesn't Mandel and Din, the concurrence in Din, envision that that's something that we would need to look at?

FLENTJE: When reviewing executive order of the president under Section 212-F, the review should be confined to the four corners of the document to determine if the document -- if the decision, itself, and the executive order's findings have any -- raise -- have any issues with respect to the standard.

And, again, I'm sort of far ahead of our position. This would be if there is a party in the U.S. with standing to raise constitutional -- their own constitutional claims -- and there are problems at each step of that analysis. The state of Washington doesn't have these kind of constitutional interests. There are -- the state of Washington can't bring a parens patriae suit on behalf of its citizens in this context and...


CLIFTON: Let me interrupt you for a second there.

There's some talk in the Supreme Court cases of quasi-sovereign interests. And, for instance, a state might have an interest in clean air. And when it sues to protect its air, it's necessarily acting for its citizens. The state, itself, can't smell air. It can't see air. It has to be acting on behalf of its citizens when it brings a case like that.

Yet there seems to be authority for the state to bring that kind of a claim.

FLENTJE: Well, the problem in the immigration context and actually more generally is a third party can't challenge visa denials or revocations. The claims that the state are...


CLIFTON: Sure, they can. Sure, they can.

Look, the whole point of the Din case was that Din, himself -- or, rather, Din's husband couldn't challenge, but she could. And three justices of the court were prepared to throw it out at the first step, but the other six justices were not. They took up the claim. Why isn't the state of Washington in a comparable position, say, as

the proprietor of the state universities, having the same kind of interest that the scholar plaintiffs did in Mandel?

FLENTJE: Well, the problem is, is because the state's asserting a parens patriae theory, where...


FRIEDLAND: ... the proprietors of the university and otherwise, tax revenues.


Let me finish with the first theory, and then I will get to that.

The parens patriae theory assumes you're asserting the rights on behalf of the beneficiary. But there's well-established law that, in the immigration context, the sort of third-party interest -- and the case O'Bannon (ph) describes this -- is not something that can be asserted. I'd also...

CLIFTON: I suggest Kerry v. Din asserts exactly that.

I mean, in Kerry vs. Din, the plaintiff, Din, was the wife of the person who was excluded. So the person who was excluded may not have had any rights that he could assert directly, but his wife was allowed to.

FLENTJE: Right. And the state doesn't have the sort of constitutional rights that the wife in Din had. The wife in Din was asserting her own...

CLIFTON: Why isn't the state's right the same as the scholars in Mandel? Mandel was a foreigner. He might not have had rights, but the course took the case up, because the people who argued they wanted to be able to hear him, the various universities to which he'd been invited.

Well, University of Washington, Washington State invite people. Why doesn't the state of Washington have the same standing that the scholars did in Mandel?


FLENTJE: The -- again, you have to look at sort of the right of the state.

And I guess I was discussing the right of the state on behalf of the people that it wants -- it's bringing suit on behalf of. It's sort of collapsing the inquiry.

CLIFTON: Well, I understand you're moving away, or I'm dragging you away from the parens patriae theory.

Just speaking for myself, I agree with you on that. The state can't do that. But the state is also asserting a proprietary interest, in particular as the owner and operator of the universities. And it seems to me they line up very much as the way the plaintiffs in Mandel did.

FLENTJE: Well, on that point, our claim is that it doesn't have a judicially cognizable or legally protected interest in third-party immigration benefits.


CLIFTON: But that's exactly the same case that was raised in Kerry vs. Din. And the majority of the court didn't say that. That was an immigration case. Mandel was an immigration case, both involving visa denials.



Then we have to talk about what the constitutional interests of the state entity is. It's well-established that there's no due process...


CLIFTON: Let me stop you there. Why is it limited to -- why is it limited to the stay entry?

In Din, she wasn't asserting her own rights. She was asserting her husband's rights.

FLENTJE: She was asserting her -- sorry. Sorry, Your Honor.


CLIFTON: It was her right as the wife claiming the loss of consortium and so forth, but the visa denial was to her husband. In this case, the state of Washington is claiming that it's going to hurt the university if it's not able to have these people come to the university.

That sounds very much like the same kind of right that was asserted in Mandel.

FLENTJE: Well, hurting the university isn't enough now that we turned on to the actual challenge.

The state has to assert -- the state has to have a constitutional interest, because, in Din, it was the constitutional interest of the U.S. citizen spouse that the court was looking at. And if you get behind...

FRIEDLAND: What was the constitutional interest in Pierce vs. Society of Sisters, where the school was allowed to assert the rights of the students and their families?

FLENTJE: That was a case where, if I remember correctly, the -- the university was acting on behalf of -- of -- excuse me -- challenging a state law where -- that affected its students.

There, you would have constitutional interests for the students at the school. Here, aliens would not. I do want to turn to a very important...


FRIEDLAND: Isn't that the merits question? So, why can't we reach the merits question through the third-party standing asserted by the universities and the states here? The universities are part of the states.

FLENTJE: Well, I think it all gets tied up together a little bit because of the well-established authority that a state entity can't assert these kind of rights.

And even on the merits, we would -- I get -- I would like to point out that the executive order relied on -- on the congressional and administrative determination of years ago of 2015 and 2016.

So it's not -- it's not an order that discriminates in a way on the basis of religion, and there would not be a valid equal protection.


FLENTJE: I do want to -- before I run out of -- oh, go ahead.

CANBY: No, that's all right.

Could the president simply say in the order, we're not going to let any Muslims in?

FLENTJE: That's not what the order does here.

CANBY: Well, I know. I know.

FLENTJE: The order relies on -- sorry, Your Honor.

CANBY: I know. Could he do that? Could he do that?

FLENTJE: That's not what the order does.

CANBY: Would be anybody be able to challenge that?

FLENTJE: That's not what the order does here.

CANBY: I know that.

FLENTJE: I do really feel -- I do want to get to one key point.

CANBY: It's a hypothetical question.

CLIFTON: Well, we'd like to get to an answer to that question, because it speaks back to the standing issue.

If the order said Muslims cannot be admitted, would anybody have standing to challenge that?

FLENTJE: I think Mandel and Din give a route to make a constitutional challenge, if there were such an order. It would be by a U.S. citizen with a connection to someone seeking entry.


This is a far cry from that situation. I'd like...

FRIEDLAND: Can you explain...

FLENTJE: I'm not sure I'm...

FRIEDLAND: Is there a purpose in standing doctrine? Standing is supposed to ensure adversity.

Is there any purpose for your argument that we shouldn't recognize this lawsuit by the states and we should instead wait for an individual to bring the same claims? What's the purpose of that?

FLENTJE: Well, there needs to be a concrete legally protected interest that's judicially cognizable.

And the -- I mean, across the country, there are many lawsuits where there clearly is standing. There are people impacted by this order and there are cases across the country where we don't have these type of standing arguments.

But in this case, we have -- there's a lot of law that says states can't step into the shoes of their citizens in this context. We have -- the sort of proprietary interests are very diffuse. And if we credit them, there would be almost no limitations on standing.

I think in that context, it doesn't make sense to extend standing jurisprudence to cover this kind of situation. But I'm not sure I'm convincing the court, so I want to make one really key point with regard to the injunction.

And that it is overbroad and should be immediately stayed, to the extent it is overbroad, even if the court thinks some applications of the order are problematic.

The state has admitted that people abroad without U.S. -- prior U.S. contacts do not have rights that can be asserted by them. And we agree. In the district court, the state said our claim is primarily focused on the people who are here, or who have been here and left. And, on appeal, the states went further explaining -- quote -- "This case, by contrast to cases on entry, involves longtime residents who are here and have constitutional rights" -- end quote.

That is the nature of the state's claim. The injunction goes far beyond that.

FRIEDLAND: The states are claiming that the executive order violates the Establishment Clause. If that's true and it can't meet the standards that the Establishment Clause would impose, then wouldn't it be invalid on its face?

FLENTJE: Your Honor, the state has said that their case -- quote -- "involves longtime residents who are here and have constitutional rights" -- end quote.

That is from their brief at page 10.

FRIEDLAND: But if some of the...


FLENTJE: If that is the scope of...


FRIEDLAND: If some of those rights are Establishment Clause rights, then can't an Establishment Clause claim be made by one individual and invalidate the whole thing? I'm not sure why that's responsive.

FLENTJE: The scope of the injunction, whether it's nationwide or anything else, should be limited to the scope of what the state, itself, says it is kind of representing through its various theories of standing.

Issuing a broader injunction violates the principle that an injunction should only be as extensive as is necessary to fully remedy the claims of the party.


CANBY: This is Judge Canby.

Don't any of the declarations indicate that the state universities invite foreign scholars to come to the state, make presentations, come for a time, go back, and that they want to continue doing that, which means there probably will be future invitations to scholars who do not yet have a connection with this country?

FLENTJE: I believe there are some declarations along those lines, but I am describing the actual statement of the extent of their suit that they made in the brief to this court.

And to the extent that is the relief they seek, this court should immediately stay the relief that extends broader. And that is to people who have never been to the United States. And Section 5 of the order, which is the refugee provision and applies to people who haven't been here yet and don't have those relations with the university and don't -- quote -- "involve longtime residents who are here and have constitutional rights."

I'm into my rebuttal time. But I would strongly encourage the court, even if it has concerns with the government's position, that it immediately stay the portion of the injunction that applies outside the boundaries of the U.S. and extends beyond people who have been in -- who are in the U.S. or who have been in the U.S.

Thank you.

FRIEDLAND: Thank you.

Mr. Purcell?


I'm Washington State Solicitor General Noah Purcell, on behalf of the states of Washington and Minnesota.

Your Honors, it has always been the judicial branch's role to say what the law is and to serve as a check on abuses by the executive branch.

NOAH PURCELL, WASHINGTON STATE SOLICITOR GENERAL: I'm Noah Purcell, Washington state solicitor general, on behalf of the states of Washington and Minnesota.

[18:30:08] Your honors, it has always been the judicial branch's role to say what the law is and to serve as a check on abuses by the executive branch. That judicial rule has never been more important in recent memory than it is today. But the president is asking this court to abdicate that role here, to reinstate the executive order without full judicial review, and to throw this country back into chaos. The court should decline that invitation.

This afternoon I'd like to first discuss why the court should reject defendant's motion on jurisdictional grounds and then explain why, even if the court does consider the motion, the court should reject it on the merits. So starting with appealability, defendants have pursued the wrong remedy by seeking a stay in this court rather than a mandamus. Of course, the defendants have filed a notice of appeal and a motion for state...

JUDGE RICHARD CLIFTON, 9TH CIRCUIT COURT OF APPEALS: This is Judge Clifton. Why should we care? I mean, is it your position...

PURCELL: Two reasons...

CLIFTON: ... a district court -- suppose a district court issued an order requiring all the public schools in the state of Washington to be closed because of some concern about a flu epidemic and did it in the form of a TRO and said the TRO would only last less than 14 days. Are you suggesting mandamus is the only form of relief available?

PURCELL: I first want to answer why you should care, if you don't mind, before -- because I do think it makes a big difference for two reasons.

CLIFTON: You're basically saying we shouldn't look at it. And it's hard for me to envision an order this sweeping that shouldn't be subject to some kind of appellate oversight.

PURCELL: Your honor, I'm not -- I'm not at all saying that you shouldn't look at it. Not at all -- sorry? CLIFTON: You have a TRO that, by its terms, I mean, we've now

received the proposed schedule, and the district court has entered an order, so we know already that this TRO is going to stay in place for more than the 14 days contemplated by Rule 65. So why shouldn't we view this as an injunction?

PURCELL: Well, for several reasons, your honor. First of all in the cases where this court has treated a TRO as an injunction, the timeline of the order was vastly longer. In the SCIU case that the defendants have cited, the order lasted four months.

Here the order will be fully -- the district court explicitly called the order a temporary restraining order, ordered a very quick -- ordered the parties to confer and agree on a briefing schedule; and briefing will be complete within 14 days of the entry of the order. It could have been completed faster if the government hadn't filed this appeal and forced us to spend quite so much time on this. And I suggest...

CLIFTON: ... times of day as you want, but I suggest that this might not be the topic that's most important.

PURCELL: Fair enough, your honor. I would just say mandamus -- the only point I'd make is that mandamus does allow review. It's just an extremely strict standard.

And the important point also is that, if the court treats this as an appealable order, then that's what the ultimate appeal of this -- of the ultimate ruling will be of, whereas if the court properly treats this as a mandamus decision and sends it back to the district court, the district court will have the opportunity to enter a more full preliminary injunction when the district court understands that that's what it's doing, when that's its intent. And that will be what the court can ultimately review, as opposed to reviewing what the court clearly intended to be a temporary restraining order.

CANBY: In your view -- this is Judge Canby. In your view, if we left this order in place, would there then be a preliminary injunction hearing in the district court?

PURCELL: Absolutely, your honor. Absolutely. The parties have agreed to a briefing schedule. The preliminary injunction motion will be fully briefed by a week from Friday. I'm confident that Judge Robart will schedule -- will rule -- will schedule a hearing and rule quickly after that.

I'd also point out that the 14-day limit is for ex parte. Temporary restraining orders by its text. This one...

CLIFTON: No, it's not.

PURCELL: Part of the problem with -- well, part of the problem with treating this as a temporary restraining order, your honor, is that, if the defendants are right that any time the court enters a temporary restraining order after a hearing, and receiving briefing, it's treated as a preliminary injunction. That's a terrible rule to create for district courts. Because it discourages them from hearing from the other side before entering a temporary restraining order.

But your honors, I do certainly want to move on to the merits. I don't want to spend all your time on this, and, of course, the -- if this is treated as a motion for stay, we obviously still believe that the court should reject that motion. And in the most simple basis for that, of course, would be the lack of irreparable harm.

I heard your honors, again, pressing counsel for a statement what the irreparable harm is; and still, no clear factual claims or evidentiary claims of what that irreparable harm would be from a stay. And, in fact, it was the executive order, itself, that caused irreparable harm to our states, to Washington and Minnesota and our residents, and to many other states and people, as described in the many amicus briefs that have been filed.

So of course, we believe that the federal government has shown no irreparable harm from reinstating the status quo prior to the executive order.

CLIFTON: What's the irreparable harm to the state of Washington?

PURCELL: From the executive order? Well, we detailed a number of irreparable harms, your honor. We had students and faculty at our state universities who were stranded overseas. We had families that were separated. We had -- we had longtime residents who could not travel overseas to visit their families without knowing that they would be able to come back. We have lost tax revenue. We had...

JUDGE MICHELLE FRIEDLAND, 9TH DISTRICT COURT OF APPEALS: If we don't agree with your parents patriae theory, then in balancing the harms and thinking about the standards for a stay or a TRO, are we limited to looking at the proprietary interests of the state, itself? Or can we look beyond that, even if we reject the parents patriae theory? Or do you need the parents patriae theory to expand the harms that we can consider?

PURCELL: I don't think the parents patriae theory is essential, your honor. We've argued two independent grounds for standing. One, the proprietary harms that we're suffering, and one, the parents patriae. So the courts should certainly excuse...

FRIEDLAND: So say we agree with the proprietary theory for standing. Does that have any implications for what we can then consider when considering the factors for a TRO or for a stay, or is it just a way to get standing and then, we can consider anything in the public interest that affects the public interest?

PURCELL: I think it would primarily just go to standing, your honor, because I think the harms -- maybe you would then consider the harms, the other harms in the balancing of equities and the public interest factor of the task, I suppose, as opposed to in the -- in the standing task. But certainly, those harms would not become irrelevant.

So, and, again, the -- it's now -- at this point it's really the federal government that's asking the court to upset the status quo. We've -- you know, things have slowly gone -- are returning to normal to the situation before the chaos of the executive order. And -- and it's the federal government that's asking the court to upend that -- that status quo again.

And, your honors, I think it's fair -- counsel for the government repeatedly sort of tried to limit the nature of our claim by quoting from our brief; and I think that misrepresents our claims to some extent in a way that's important. Because the point we're making in the brief there about longtime residents is that this case is different from Mandell and Din in an important way, in that the federal actions here affect -- affect longtime residents who have been here. And that's not all it affects; it also affects people who are trying to visit them. It affects people trying to visit their families. It's -- the Establishment Clause violation affects -- affects everyone in a sense. In a sense it -- well, as the court knows, the case law is quite clear that Establishment Clause violations on their own show irreparable injury. And we, of course, believe that that claim is very strong.

So just on the merits, the state has shown a strong likelihood of success. The federal government certainly -- the state, I'm sorry, has shown a strong likelihood of success. The federal government certainly -- the states -- I'm sorry -- have shown a strong likelihood of success, and the federal government certainly hasn't met its burden, on review, of showing a likelihood of overcoming -- of overcoming that...

CANBY: It's Judge Canby. As far as the Establishment Clause claim goes, the government takes a position, I think, that -- that in weighing the validity of your Establishment Clause claim, you're confined to the four corners of the instrument. What's your comment on that?

PURCELL: Your honor, I think the case law shows that that's wrong. I think -- I think it was Judge Clifton who pointed out -- or Judge Friedland, I'm sorry, or maybe both. Kerry versus Din says exactly the opposite. That if there's -- if the plaintiff makes plausible allegations, sufficiently supported of bad faith, the court can look behind the motives.

And in those cases, just to be clear, those are cases where the -- the case had to do with excluding an alien who had never been here and had no right to be here. So if anything, the court should take a more -- a harder look at the real motives in a case where there are significant impacts on people who do live here, who've been here for many years, who are longtime residents and who clearly are entitled, themselves, to constitutional rights of due process and equal protection, unlike in Kerry and Mandell, where really it was, you know -- the rights being harmed were of the people overseas. It was their -- the people here who were asserting them.

[18:40:12] CLIFTON: Well, we have to be very careful about that. The assertion that the court took up the claim only because, in the case of Kerry versus Din, Miss Din was a U.S. citizen.

The number of people affected by the executive order, do you have any information as to what proportion would fit within the category of Washington residents or lawful...

PURCELL: Your honor...

CLIFTON: ... people with visas? I suspect it's a small fraction.

PURCELL: I'd make two points on that, your honor. First of all, we are at the pleading stage. We have not had an opportunity -- we filed a complaint and a motion for temporary restraining order, and so for standing purposes, all the plausible allegations in our complaint are treated as true.

Now, we've alleged that there are thousands of people in Washington, thousands more in Minnesota who are originally from these countries who are not yet citizens here. We know the way the order was originally interpreted -- excuse me, your honor -- defendants originally interpreted the order and said that it covered lawful permanent residents. We know that there are roughly half a million lawful permanent residents from these seven countries in the United States.

Now, they've changed their mind about five times about whether it applies to those people in the -- in the times since the order issued; and now they say that it doesn't. But at the time the state filed its complaint, they had not yet made their position clear about that. And -- and I would say that that argument is not moot yet, because under the voluntary cessation standard, until they change the order to make that crystal clear, that claim -- they can't just say, "Well, now we say it doesn't apply to them, so don't worry about it." I mean, that's half a million people who are in the United States who, overnight, at least according to government initially, lost their right to travel, to come in and out of the country, to visit their relatives. And several people...

CLIFTON: According to your position, why shouldn't we limit the order, the temporary restraining order, reach to those people who you've got a strong case for like the LPRs? Why should -- why should the temporary restraining order reach beyond that? That seemed to be the government's principle argument, that it was overbroad. Why isn't it overbroad?

PURCELL: For three key reasons, your honor. First of all, limiting an order in that way would not address all the harms the order is causing. So, for example, it would not remedy the order's violation of the Establishment Clause, which harms everyone in our states, as well as our states, themselves, by favoring one religious group over another.

It also would not fully remedy the order's violation of the Equal Protection Clause, because the order relies on discriminatory animus to deny some of our residents who are here the ability to receive visits from their friends and family while allowing others to receive those visits, and so on. So it wouldn't address all the harms.

The second point is that our U.S. -- as in Din, the U.S. citizens who are here who are related to these folks overseas do have rights, and it would not address their rights at all to limit it that way. And then finally, your honor, I just say that defendants have not

explained how they would workably implement the narrow order that they're now proposing, which they didn't really propose in any way before. Their approach would require some sort of system for quickly approving travel and re-entry by thousands of people from the affected countries who live here, who study here, who work here in our businesses and who often have to travel for work or to visit family. And they just have not credibly described how they would be able to do that. Even if it were able to address all of our harms.

FRIEDLAND: In evaluating your Establishment Clause claim, should we apply Larson or Lemon?

PURCELL: Well, your honor, we think we prevail under either test, but we think this case is closer to Larson, because in Larson, what you had was a facially neutral law. It did not mention any religious domination by name, but it did focus on religious groups; and the result of it was to distinguish between them in a way that favored some and not others. And that's exactly what we have here.

We have an order that, on its face, doesn't mention any denomination, but that is -- we have alleged, and there's strong evidence already to support, is intended to favor some religious groups over others. And -- and that is -- that is exactly the situation in Larson.

Now I know the other side is saying, if it doesn't mention a particular denomination on the face of the document, then Larson doesn't apply, but that's not what Larson itself says. In Larson, the law did not mention a denomination.

But again, we also think that we prevail under the Lemon test, which is explained in some detail in our district court briefing. We do not, unfortunately, have space to explain that argument, as well, in the briefing to this court.

FRIEDLAND: If we were to agree with you about Larson, is there any reason to consider your equal protection claim, or are those two claims essentially redundant?

PURCELL: I think if you -- if you agreed with us about Larson, there would not be any need to reach our equal protection claim. I think that's fair.

CLIFTON: Let me ask about the -- I'll call this religious discrimination claim, to reach...


CLIFTON: Let me ask about the -- I'll call this religious discrimination claim to reach both the equal protection and establishment clause claims.

And I'm not entirely persuaded by the argument, if only because the seven countries encompass only, I think, a relatively small percentage of Muslims. I mean, do you have any information as to what percentage or what

proportion of the adherents to Islam worldwide are citizens or residents of those countries?

I mean, my quick penciling suggests it's something less than 15 percent.

PURCELL: I have not done that math, Your Honor, but to be clear --


CLIFTON: And given that all those countries are countries that have been previously tagged as subjects of concern about terrorism -- granted it's because of perhaps radical Islam sects, so there might be a religious motivation behind the terrorism.

But I have trouble understanding why we're supposed to infer religious animus when, in fact, the vast majority of Muslims would not be affected as residents of those nations and where the concern for terrorism with those connected with radical Islamic sects is kind of hard to deny.

PURCELL: Your Honor, the case law from this court and the Supreme Court is very clear that, to prove religious discrimination, we do not need to prove that this order harms only Muslims or that it harms every Muslim.

We just need to prove that it was motivated in part by a desire to harm Muslims. And we have alleged that --


CLIFTON: -- you infer that desire if, in fact, the vast majority of Muslims are unaffected?

PURCELL: Well, Your Honor, in part, you can infer it from intent evidence. I mean, there are statements that we have quoted in our complaint that are rather shocking evidence of intent to discriminate against Muslims, given that we haven't even had any discovery yet to find out what else might have been said in private.

I mean, that the public statements from the president and his top advisers reflecting that intent are strong evidence, that's certainty at this pleading stage to allow us to go forward on that claim.

And, again, with -- no type of discrimination claim requires you to show that every single person of that category was harmed by the action. You just have to show that the action was motivated, in part, by a desire to harm that group. And that's exactly what we've --

CLIFTON: -- the situation where the proportion affected were less than 15 percent?

PURCELL: Your Honor, I'm sorry; I haven't thought about -- as I said, I have not done that math before the -- before the argument. I have not thought about the case in that -- in those terms because, again --

CLIFTON: Well, let me switch to the other part of it.

I mean, do you deny that, in fact, there is concern about people coming from those countries, separate and apart from what their religion might be, because, as Congress and the previous administration have concluded, those countries are a concern from a terrorist perspective?

PURCELL: Your Honor, Congress had determined that -- and the executive had determined that those countries, as I think it was you who put it, you should not, you know, get a waiver from a visa requirement. That is eminently different from a complete ban on travel to this country --


CLIFTON: Do you assert that that decision by the previous administration or by Congress was religiously motivated?

PURCELL: No, Your Honor. No. We're not asserting that it all.

CLIFTON: It would be possible to identify these countries as a source of concern and possibly as the subject of special treatment without having religious motivation or discriminatory intent behind it.

PURCELL: Well, Your Honor, but cases like McCreary (ph) from the U.S. Supreme Court make very clear that, in assessing establishment clause claims, an action that could have been perfectly legitimate, if done with proper intent, is not legitimate and is unconstitutional if done with a desire to favor one religion over another.

McCreary (ph) makes that very clear. It literally says the exact same action could be acceptable if done for some reasons and not acceptable if done for others.

And here we've alleged, very plausibly, with great detail, that this was done to favor one religious group over another. And so we should be allowed to go forward on that claim, even though, yes, we're not denying that these countries could have, theoretically, and, in fact, were previously chosen for some lesser level...

CLIFTON: It's not just your allegation at this stage. You've got to demonstrate a likelihood of success.

So what is it that should lead us to conclude that you've got a likelihood of success of being able to prove the religious animus you allege?

PURCELL: Well, Your Honor, for starters, that the president called for a complete ban on the entry of Muslims and then -- and then --

CLIFTON: Is this -- is this that ban?

[18:50:00] PURCELL: No, we're not saying that this is a complete ban on Muslims entering the country. Obviously -- I mean, they realize that -- I mean, this is -- this is -- well, what his adviser said on television was that he was asked for a way to implement a narrower thing that would be legal.

And -- but the point is that the -- that was clearly a motivating -- what we allege and, again, yes, it is, we do have to show a likelihood of success. But at this stage, the case law is clear, our plausible allegations are taken as true for assessing that likelihood of success. And --


CLIFTON: Wait. That cannot possibly be true. We are supposed to take your word for it, the fact that you make an allegation of the complaint and that equals likelihood of success?

You don't really mean that, do you?

PURCELL: Well, Your Honor, what I mean is that we have assessed, we have alleged, sorry...


CLIFTON: Do I have to believe everything you allege and say, well, that must be right?

That's not the standard.

FRIEDLAND: You've actually supported these allegations with exhibits, haven't you?

PURCELL: We have supported many of our allegations with exhibits, yes, Judge Friedland. We have. And I do think that's important. We have presented an enormous amount of evidence, especially considering, again, that we -- our -- the time between our filing -- our complaint was filed a week ago Monday, together with the temporary restraining order motion, together with the declarations.

So, unlike cases -- well, and we had extraordinarily little opportunity to actually gather and present evidence in the district court.

CLIFTON: -- faulted the government for exactly the same thing. Don't tell us you need more time because the government brought the stay motion.

Well, don't tell us you need more time. You're the one that sought the temporary restraining order. Either you have the evidence presented in the record or you don't. I mean, that's -- don't tell us maybe you'll gather it later.

If you can't demonstrate a likelihood of success with what you've got in the record so far -- and maybe you can. I'm not saying you can't. But so far I haven't heard a lot of reference to evidence and a lot

more references to allegations. And I don't think allegations cut it at this stage.

PURCELL: Well, Your Honor...


CANBY: The motion before us is a motion for stay.

Who has the burden of showing likelihood of success?

PURCELL: At this point, Your Honor, it is the federal defendants who have to show that they are likely to succeed on appeal. We had the burden at the district court of showing the likelihood of success on the merits.

But the state standard is very clear that it's the party seeking the stay that has to show a likelihood of success on appeal.

And, again, we believe that it would be more appropriate to treat this as a mandamus action, where they would have to show a clear and indisputable right to relief. And, in part, we think that because if you don't, then it's the district court's temporary restraining order, that the federal government is going to maintain, is the -- is the order to be appealed from ultimately.

And that's just not proper, given that in neither form nor substance or intent was that meant to be a preliminary injunction order. It was meant to be a temporary restraining order.

The district court was very clear about that. And the district court should have an opportunity to consider the preliminary injunction briefing and issue a preliminary injunction order that could then be reviewed very soon.


FRIEDLAND: If that were evidence that is necessary, though?

I mean, I think most of your claims are going to get de novo review anyway. So I don't know if we really need to wait for the district courts to do more unless more evidence is going to be presented.

PURCELL: Our point is not -- well, we do intend to file some additional declarations and evidence in the district court, if given that opportunity. But I think it's also important to point out, just for fairness, for the sake of fairness to the district court itself, the district court should have the opportunity to enter something that it actually thinks is a preliminary injunction order so that -- to assess the evidence, to have more time to issue an order that's framed as and intended as a preliminary injunction order that this court could review.

And it's -- I guess I'd just ask that, if you decide not to do that, if you decide to treat this as a preliminary injunction ruling and a stay motion, then I'd ask you to issue an opinion that treats it like a preliminary injunction ruling and that gives it the sort of consideration that you would want that reviewed with.

Because the other side, the federal government, has already made very clear that they intend to seek immediate review if this court denies the stay.

And if -- of course, you know, it would be -- it would be unfair to this court and to the district court to have the federal government try to take to the U.S. Supreme Court, you know, an order that was explicitly framed as a temporary restraining order and that the judge understandably issued urgently.


FRIEDLAND: If we were to issue a reasoned opinion, would that take care of this concern or is there a concern beyond that?

PURCELL: I think that would address much of the concern, Your Honor. I would ask that you do either one or the other.

I mean, I do think it would be better procedurally and more in keeping with the court's precedent to send the case back to the district court, to find this temporary restraining order, to allow us to put in the evidence that we would to support the preliminary injunction motion and to allow the district court to issue a --


PURCELL: -- preliminary injunction ruling.

But if you're not going to do that, then I do think a reasoned opinion would do much to address that concern.

FRIEDLAND: Can you tell us whether your further evidence would be more about standing or more about the merits or both?

PURCELL: Your Honor, I think it would be primarily just slightly more detail about standing at this point.

Again, we haven't -- we haven't -- of course, the difficulty with a claim that's about intent is that we've made these allegations. We haven't had any discovery yet. And, realistically, you know, it will take some time to gather that sort of evidence beyond public statements.

And this court has held -- and so has the U.S. Supreme Court -- that when a case has to do with intent, you know, it's -- well, it's very -- it's remarkable to have this much evidence of intent without any discovery, I think is probably the best way to characterize it.

So I think that the court should keep that in mind in assessing the likelihood of success.

FRIEDLAND: We've taken you down to four minutes.

Is there anything you'd like to conclude with?

PURCELL: Well, Your Honor, the other point -- I guess there's one other point I would like to make.

Of course, we also have a statutory claim under the Immigration and Nationality Act. And we -- I mean, we believe that all of our claims are very strong, that we're likely to succeed on all of them.

But that is also -- that is a claim that we feel very likely to succeed on. And that would also potentially allow the court to avoid the constitutional issues if it wanted to by relying on the statutory ground.

But 9(a), section -- sorry?

CLIFTON: But the statutory ground would help us only with regard to those seeking immigrant visas, isn't that correct?

PURCELL: Yes, Your Honor. I think that is largely correct. I think that is basically correct, that 1152 speaks of immigrant visas and that there cannot be discrimination based on nationality and -- in issuing those visas and by --


FRIEDLAND: That's not really a way to avoid all your constitutional claims then, right?

Because it wouldn't cover everyone?

PURCELL: I suppose that's fair, Your Honor. It would not necessarily allow you to avoid all the constitutional issues. But I guess I just don't want to lose sight of that claim, that it -- we believe it is a very strong claim that the order violates the INA.

And, also, I guess I think it's important to -- I think that's an important point because it goes to what level of deference is owed to the executive.

Of course, the president is claiming that he's acting pursuant to a congressional delegation of authority.

And our position is, in fact, no; he's acting contrary to what Congress has said. And even if that's not as to every single member -- every single person who's harmed by the order, it's an important factor to consider in deciding how much deference to give to the executive on this point.

CLIFTON: Well, there have been presidential orders in the past by prior presidents that treated people based on their nation.

Why does -- why shouldn't that suggest to us that the statute should be harmonized in a way other than the one that you're advocating?

PURCELL: Well, Your Honor, all those orders have been narrower, significantly narrower, than the ones here and that included -- (CROSSTALK)

CLIFTON: -- though. I mean, if you single out Cubans because they're from Cuba, that's doing it by class based on nationality. And I haven't heard any citation or reference to a legal challenge to that or an argument that -- I think that one was President Reagan's, that what he did wasn't appropriate.

There were others that singled out individual countries; hadn't been a challenge to that.

Why should we decide that Congress, in enacting 1152, since that's the number I've been using, meant to amend or partially repeal 1182?

PURCELL: Well, Your Honor, two points.

Number one, as you pointed out, there have not been cases about those -- about those issues, so there's not -- while that may have been to some -- a much narrower practice than this, there -- I agree that there has been some practice to that effect, much narrower than here.

But, again, every one of those examples involved much more narrow (INAUDIBLE) than we have here.

And, also, 1182 --


CLIFTON: But the problem is the same.

Can you treat people based on the nation they come from?

And foreign policy or foreign affairs do all the time. We treat people from North Korea differently than we treat people from France. So I have trouble understanding your interpretation of 1152 as prohibiting what seems to be commonplace in foreign affairs.

PURCELL: Well, Your Honor, 1182 itself includes a number of exceptions that allow for -- that allow the federal government to deem people inadmissible for security related reasons and other reasons but not to make the sort of across-the-board-without-exception policy that applies to infants, to schoolchildren, to grandmothers, to people who pose no plausible threat whatsoever to this country.

So I guess I just ask the court not to lose sight of that statutory claim, especially because I do think it goes -- it helps drive home that --