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Wolf

Court Hearing over Trump's Travel Ban. Aired 1-1:30p ET

Aired May 15, 2017 - 13:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

JEFFREY WALL, ATTORNEY, TRUMP ADMINISTRATION: -- 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 said for the 30 percent of aliens or 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.

UNIDENTIFIED MALE: Thank you. Counsel cut.

NEAL KATYAL, ATTORNEY, STATE OF HAWAII: 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 the national security, even though Washington said it didn't, 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 -- JUDGE RONALD GOULD, NINTH CIRCUIT COURT OF APPEALS: Did the

Washington panel decide the application of Mandel on the merits or to simply say that courts have jurisdiction to review such things?

KATYAL: It resolved the question of whether the Mandel standard --

(CROSSTALK)

PAEZ: But you think our panel is bound by that?

KATYAL: I do and if I could read to you the language from Washington versus Trump. This is found -- this is found on page 1162. 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 beyond that.

The government omits portions of the quoted language to imply that this standard governs judicial review of all executive exercises of immigration authority.

In fact, the Mandel 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, Judge.

JUDGE RICHARD PAEZ, NINTH CIRCUIT COURT OF APPEALS: You read a little bit more into the case than I did.

KATYAL: I'm just reading to you --

PAEZ: Than I do. Well, I understand that but they didn't really decide those questions. They decided that case based on due process grounds.

KATYAL: Oh, they certainly decided on due process. I'm not saying that you're -- you know, that they reached the establishment cause and found a violation.

I am saying, however, for purposes of Mandel, the government became before 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 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 appoint to you any disavowal. He just cited (INAUDIBLE) 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 10s of thousands of refugees from the Mideast who would try to take over our children and convince them how wonderful Islam is.

PAEZ: Mr. Katyal, let me -- you know, those -- they're -- those statements are profound. I mean, I'm familiar with them. I've read them and everything else. It is a little bit concerning, though, that those statements take place during the midst of a highly contentious campaign.

KATYAL: Absolutely and we wouldn't be --

PAEZ: Don't you need to look at it from that perspective as well?

KATYAL: 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, though, 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 SCR 148. And that -- and that is -- you know, if it was clear from the title what it meant, he wouldn't have had to say it. It's a reference to something else.

[13:05:00] And, indeed, when he issued both executive orders, he left on his Web site 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 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 in favor of psycho analysis 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?

So, these statements, by the way, just one last point, do continue, even last month, the DOE (ph) brief which is 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 at SCR 84, the president said, quote, "moments ago, I learned that a district judge in Hawaii, part of the much overturned ninth circuit -- circuit -- sorry about that, just blocked our executive order. This is a water-downed 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 do -- "

PAEZ: Well, wait, does that mean that -- all those statements, post- election statements, the one you -- even the one you just read. Does that mean that the president is forever barred from issuing an executive order along these lines? And what does he have to do to issue an executive order that, in your view, it might pass constitutional muster?

KATYAL: Yes. 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 one section 108 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 535 people versus one which is why his Mandel point is so problematic. That's number one.

Second thing they could do is the president could do all the kinds or thing -- or some of the kinds of things. Remove the things that the district court found led an objective observer to say this discriminates. So, one example would be what Judge Hawkins said about disavowing, formally, you know, all the stuff before.

But that's not it. I mean, he could do a lot of things. He could do, for example, and I don't -- I'm just going to throw out some examples. I'm not trying to micromanage the president.

PAEZ: No, I --

KATYAL: But he could say, you know, like President Bush did 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 changed 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 entry without a visa which is what Congress required.

You need to do more than that. You know, you 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 -- there is -- under our -- the presidents 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 any president has done in our lifetime that would be unconstitutional.

PAEZ: Before the Fourth Circuit, one of the judges asked, well, suppose it had been another individual that issued the same executive order that hadn't said all these things, would it pass constitutional muster?

KATYAL: So, I think the most important is if you don't say all these things, you never wind up with an executive order like this which is why no president has done that. But I take the hypothetical. If that hypothetical arose, I think it would be different. That is context matters.

The Supreme Court in McCreery, for example, says, look, you know, governments can close shops on Sundays. And if they do it because of labor, they want to give workers a rest, that's fine. But if they do it and, at the same time, announce, the reason why I'm doing it is to -- you know, is to help churches. That's, obviously, an establishment clause problem.

And so, that's why context matters. It always has in the -- 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.

PAEZ: You've -- in your brief and before the district court, you argue the statutory grounds quite extensively. Could you respond to the government's argument?

KATYAL: Absolutely. We --

PAEZ: Do you think that the two statutes need to be read separately?

KATYAL: Yes, I think, Judge Paez, you had it exactly right. So, our basic statutory argument. I'll respond to the government but 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 INA.

[13:10:01] In fact, the president refers to, quote, "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 are 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 the statute is about. That is there are four problems with the stat -- with their statutory argument. One is what you were just referring to, Just Paez, 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 10-part test for determining whether someone could be excluded on an individual basis on grounds of terrorism.

PAEZ: 1182-A?

KATYAL: That's 1182-A and it's also some other provisions. But -- so, that's there.

In addition, you have Congress's specific judgment on the very evidence that is in the executive order from December of 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, 50 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 this in detail. The government has not a single answer in their brief to this.

And so, I think those are the statutory violations. And 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 -- is to violate a statute and to dis-supplant 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, that's pretty clear.

Now, my friend on the other side says, well, if you read it that way, then there will be a Libyan who is going to come into the country and so on. But I think Judge Sentelle in the D.C. 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 read such a thing. But here, there's no emergency precluding Congress from acting in this way.

PAEZ: So, if there is a statutory violation here, what's the relief as to correct the statutory violation, putting aside the establishment clause for a moment?

KATYAL: So, we think because there's different statutory violations, the entire -- the sections two -- section two does fall. That is, as a whole. That is, you know, they're supplanting Congress's fine- grained terrorism scheme with a dragnet ban. And so, the whole thing falls.

I think you might be asking just about 1152 and the immigrant visa's provision. If we find that. Our point to you, and 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 immigrant visa green card for Dr. El Shiek (ph).

Congress said more than that.

UNIDENTIFIED MALE: That's what your opponent said.

KATYAL: OK. So, I just want to make sure.

So, Congress said, in 1965, we are changing fundamentally what our immigration system is about and we are not going to engage in nationality-based discrimination anymore. And that extends even to nonimmigrant visas.

The ABA, American Barr Association, brief goes through this in painstaking detail, as well as 165 members of Congress that have come before you and have made -- 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 nonimmigrant visas.

So, I think, you know, it's a transformational statute. And, indeed, no president has done anything like this since that statute was --

UNIDENTIFIED MALE: So, you think 1152 applies beyond immigrant visas?

KATYAL: I do. So, I agree with you the text doesn't. But, as Judge Friendly found and, indeed, as the government conceded in Olson, it does extend beyond that because of the way in which the statute took relevant factors and said nationality is no longer a relevant factor for purposes of our immigration.

GOULD: And you would have us look to what you argue is the purpose of the statute as opposed to its language?

KATYAL: Oh, no. I'm just -- well, I wouldn't say necessarily the purpose. I think that the statute has -- immigration law has always, as the Supreme Court said in Judulang versus Holder, you always have to look to relevant factors and understand what does Congress deem relevant and whatnot.

[13:15:04] 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 1152 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, 10 factor test that Congress laid down. And the government itself has said in - in - to the Supreme Court in the Marks (ph) 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 Wichcavich (ph) or Zavados (ph) or so on have said, look, this statute looks like an unbounded delegation of authority, but, actually, we have to read it more narrowly. It -

JUDGE RONALD GOULD, 9TH CIRCUIT COURT OF APPEALS: Counsel, if I could interject a question on the statutory issues. If we were to conclude, hypothetically, that the establishment clause claim can't support the district court's injunction, could we still affirm the injunction on statutory ground?

KATYAL: Absolutely.

GOULD: Either in whole or in part? And - and also related to that, could you touch on whether there's standing - the basis of your client's standing on the - on the refugee provisions and I think that would help me out.

KATYAL: Absolutely. So if you accepted our larger argument about the statute, Judge Gould, about 1182, then it would, I think, affirm the district court's injunction as a whole. It's true that 1152, the nationality based discrimination, the way to bear - to uphold the injunction as a whole would require reading the statute to encompass nonimmigrant visas as well, as Judge Hawkins was illustrating. And so that is our reading. We think that's the way since Judge Friendly's (ph) opinion this has been read, but there, obviously, going to be some - you know, there could 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 are before the court, and here we have identified, you know, indeed the government has pointed to three refugees that have come in this year in 2017. They said this, you know, in the district court proceedings below, and so Hawaii has an interest in making sure that its refugee programs and the dollars it spent are 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 Shiek (ph), he, too, has standing with respect to the refugees. His mosque actually has a refugee in it. I mean he's the imam of the largest mosque in Hawaii. And so I do think, for all of those reasons, there would be standing.

We see -

JUDGE MICHAEL HAWKINS, 9TH CIRCUIT COURT OF APPEALS: Does he have standing on 1152?

KATYAL: On 1152, he does, because -

HAWKINS: I mean if we assume that that only applies to immigrant visas, does he have standing?

KATYAL: He does because she is seeking an immigrant visa, a green card. In the Labas (ph) case, the D.C. Circuit case by Judge Centel (ph), allowed family members to bring a lawsuit and found that standing, so it does.

HAWKINS: Let me ask you the question. The government makes the argument that if you look at the statements surrounding - first of all, if you exclude - and 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, saying it's bad. There's one way to read it saying it's good. Why shouldn't we be differential to the office of the president of the United States on such issues?

KATYAL: Yes, 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 an 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 boot strap 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'd - you'd be where - I 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.

[13:20:05] 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 view this as, as I think Judge Paez pointed to this, there are 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 enacts a disfavored religion, Islam. That includes 17 states, including states like Iowa and 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 1,000 different congregations, the Alliance of Baptists and Sheiks (ph), 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 have not seen anything like this in our lifetimes in which a president 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.

HAWKINS: You've argued in the past to give deference to the executive in immigration matters, haven't you?

KATYAL: Sure.

HAWKINS: And the 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. The executive prioritize enforcement resources in a way that makes the immigration system function effectively, while balancing the range of foreign policy, national security, economic and humanitarian concerns."

KATYAL: Sir -

HAWKINS: That's your language, isn't it?

KATYAL: 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' 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 Abozac (ph) case. This is their 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 descent by Judge Bork, not the majority opinion. They don't tell you that. But that in - yes, the descent says that, but the majority has never said that. The law has always been that even when there is a delegation of authority, it's 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 or anything.

HAWKINS: Well, we understand what that was about.

KATYAL: Yes.

HAWKINS: But you also wrote a brief in Flora v. Lar (ph) -

KATYAL: I've been busy.

HAWKINS: In which you said U.S. 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.

KATYAL: Right. When I was in the government, I tried to - tried to get the Supreme Court to bite on that. They didn't. 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 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 two 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 Somalia. So the -

HAWKINS: Suppose the president -

(CROSS TALK)

HAWKINS: Suppose the president had adopted this second order or third order and identified areas of active combat in these - some of these affected countries or in those portions, carefully drawing a map like a legislative gerrymander, if you will -

[13:25:05] KATYAL: Yes.

HAWKINS: To identify areas where there has been terrorist activity, whether it's ISIS, Boko Haram, al Qaeda, the Taliban, and narrowed it down just to those areas -

KATYAL: Yes.

HAWKINS: Would that pass your muster?

KATYAL: I think it probably - I think it would. I mean, obviously, it would depend on the context. But I think it very much would because that's exactly what Congress did in 2015. It didn't do nationality based discrimination. This is what the district court found in page ER 61. You know, instead, if you isolate, you know, where people had come and visited from, as the 2015 visa waiver program works, it doesn't work by where you're born, it works by - or 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 Switzerland, you spend your whole life in Switzerland and then you want to come to the United States, no. Flat ban. You can't come in just by dent (ph) of your nationality. That is not something that presidents have ever done in our lifetime.

PAEZ: It's not quite as specific as Judge Hawkins' suggestion, but the order does refer to conditions in the countries that are listed. Why aren't - why isn't that sufficient for purposes of facial legitimacy?

KATYAL: 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's language detrimental to the interest of the United States. Congress has already made that determination.

But even if you do -

PAEZ: Well, but so the order could - you know, the first part of the order - the order -- first part of the order, the preamble and all the subsections of the preamble, section one, it goes through the various countries and lists conditions in those countries. Now what - now the conditions that are described are not like what Judge Hawkins was alluding to, but they - they do make an attempt. Why isn't that sufficient? I (INAUDIBLE).

KATYAL: Yes, it's an attempt that was made before Congress in December 2015.

PAEZ: That's it? That's -

KATYAL: Well, I think the other important point, as 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 (ph) and bad faith because I do see that as 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 Mandel language itself calls it, bona fide, is enough to rule in our favor and to affirm the district court's injunction in this case. And the reason for that is that this court in Cardenas said that if there is bad faith and affirmative showing of bad faith, then the Mandel standard is met and action will be unconstitutional. Now, my friend on the right -

PAEZ: So if we don't consider the campaign statements, do you still prevail?

KATYAL: Oh, absolutely.

PAEZ: Why?

KATYAL: Because, again, I think there's bad faith even past that. All, you know, first of all, I think the president rekindled all 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 ban, 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.

And Mr. Wall (ph) says, oh, well, you should give more deference to the president than to a counselor or 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. An individual counselor officer is not going to be able to establish a disfavored religion, such as Islam. It's only something like the president's. 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' earlier question.

[13:29:14] GOULD: Absolute (ph) question (ph) Council Katyal, let me ask you this. And I don't mean to usurp your closing language. So when you - we'll give you extra time if you need it. But 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 do those letters neutralize your assertions that the - that the national security interests relied on our pretextual and also or related to that, do they neutralize the bad faith argument?