Good morning. Push the microphone down. Over to the left some. Ok, good morning. And judge gould. Sittingleasure to be here with my colleagues, judge hawkins my rights, another judge of my left. All of us extend the welcome to the distinguished lawyers here to argue their cases. Also, to her serve observers. Number 14, three 5958, is submitted on briefs also the calvert case, number 15 35 465, is submitted on briefs. The first case for oral arguments today is the state of hawaii versus trump. Thats 17 15589. That case is set for 30 minutes per side. Please watch your time and try to sum up when the timer is yellow. Try to stop when it is red. Add, thei will also court is very well aware of the importance of this case. Amicuser parties and parties as well well add extra time if one of you feels you need it. Either of my colleagues have questions, once time is up, we will go forward. Any further internet i will also told the group, after that first cases is argued there will be a recess we will exit the courtroom. After that, we will continue with the other cases. To the state of hawaii versus trump. Solicitor general walt may now proceed. Judge gould, may it please both the constitution and acts of Congress Give the president of the United StatesBroad Authority to prevent aliens abroad from entering this country when he deems it in the nations interest. This global injunction restricting that authority cannot stand for three reasons. The District Court applied the standard,ng legal constitutional challenges to the exclusion of aliens abroad or govern my bendels deferential rational basis test in section two sees temporary clause on sex countries that shelter or sponsor terrorism readily satisfies the test. What is the difference mandell, ifbetween there is a dim bad faith exception, and they limit purpose test . Justice kennedy and alito indicated that whatever the scope of that exception no court has ever defined to find bad faith you are talking about a counselor officer there, justice Kennedy Alito said you have to have an affirmative showing of bad faith. If thats really require for a oneoff discretionary decision by consular officer, you ought to require the strongest, where you areng, talking about the president of the United States in multiple members of his cabinet, whose motives have not been impeded. Whatever the bad faith exception executive branch in multiple members of the cabinet acted pretextual he. We do want to require the strongest showing for that sort of a remarkable holding. I just dont think plaintiffs have put together the kind of record there is a bad faith exception. This court read Justice Kennedys concurrence to be controlling theres a bad faith exception. Obviously didnt find bad faith there. Under this courts case law yes. So i understand your position, onlye men exception applies to individual visa denials . No not at all. Think it applies to the same. As mandell, which is to say, challenges to the exclusion of aliens abroad. Whether those exclusion are in congress or the president , statute, ordinance second of order, mandell has always governed those types of challenges. The difference between these different types of inquiries theres the wires that we have a affirmative showing of bad faith. In this context about to be a high one so it isnt just a wide into subjective motivation. If we could quote that the District Court applied the wrong standard, your governments position as it should be manned up, correct . Correct. Should we send it back to the District Court to apply it command to see of plaintiffs can make out an affirmative case of bad faith . You could send it back, but i we have a record, we know what the statements were. Think this court is is wellplaced as a District Court to look at those statements against determined in the absence of testimony or credibility determinations are those enough to get us bad faith under them it would be the same inquiry that the district has in this court there is no case like this is there . No one has ever attempted to set aside a law that is neutralize face in operation on the basis of largely campaign trail comments made by private citizen running for office. But when i read mandell its dealing with specific applications, standards to a specific visa denial. Thats not what we have here at all. Validity test to just a discretionary denial of the account laura. The for the reasons the members of the escape the rehearing stage in the washington case, it wouldnt make much sense to say that a single officer overseas and 90 gets more difference than the president the united its in making a formal National Security determination the executive orders of run order. We are not dealing with a oneoff. It is a policy, does music and murders do. Itll deal of oneoff denials and i dont know that its a broad policy. Congress in the previous executive designated countries as those that sponsor or shelter terrorist. How many nationals to out of those countries . A large number. Whatever the number that cant stash but cant obtain waivers, we dont know yet. We havent been able to implement the order. Remade bynt is, this the Previous Administration stash it took individuals with connections to this countrys out of the visa waiver program. As a matter of policy im not sure if that is enough. Im going to put it brief pause while i work at the vetting procedures for those nations. Subject to an individualized labor process. It is a difference in degree, but i dont think it is a difference in kind from with the Previous Administration did. Can we step back a little bit . You start by challenging the standing. Is that still a core argument . We have made the arguments in our briefs. The easiest way to boil it down is we argued extensively in the District Court about whether they had article three injury and prudential standing. If you look at the case, this court said correctly the denial of entry is generally not reviewable because those aliens dont have any constitutional right. U. S. Citizens can attempt to argue that those Constitutional Rights the problem is a light doesnt have any rights to claim hawaii doesnt have any rights to claim the establishment of the duke e process clause the due process clause. He is raising his own due process clause right. If you think he has article free injury, he can raise his claim. The problem is it fails on the merit because he doesnt have a particular liberty interest. How can he evaluate his claim in light of our holding . Grexit doesnt take any issue with the general rule that where you are claiming alleged discrimination on some basis like religion, only the victims or punitive targets of discrimination have standing the challenges. This order aimed at aliens abroad the doctor doesnt have an establishment clause right to raise. His argument is that go ahead. His argument is this is a man against members of an inherent islamic faith. And this policy in the same way individual residents of San Francisco county will disparaged about this resolution, saying that the cardinal of that diocese was acting in a terrible way by refusing to refer a doctor these the same couples. What is the difference . Two key differences. That was explicitly religious speech. This is not. And in operation doesnt establish on the basis of religion. And that explicitly religious message was directed at the committee of which the plaintiffs were a member. This deal operates with respect aliens abroad. They say it sends a message to all muslims in america. And the problem they have with that is if you can take government conduct and reframe it as a message directed generally to all people aware of the government conduct, you both overturned cases like valley forge and rivas rated this is at least two bridges be the Catholic League case. It is direct to him, isnt it . The suspension of entry is on the nationalistic countries. How does his motherinlaw fit into this . His motherinlaw is you can apply for a waiver houses that affected his injury or harm . Grexit think his claims are on. If you disagreed with us on that and found that he had standing, then you turn to the merit. He that is not properly before the court. He is raising his own due process claim because no court has extended the right to inlaws. One of the process he wants, this gives it to him and his motherinlaw because there is no doubt while she receives a waiver, let the reason for that would be. It is on the face of the order itself. There is nothing motor nothing more we can tell you. This is a categorical policy. Theres no process we can give them the do anything to inform them with the reason is. I think what they are really raising as a substantive challenge, but they have two problems. They cant make up the cant make up a case on the establishment side. She is not seeking an with 1152,isa, correct . 41183 . And the doctor is not the sponsor, correct . I believe its his wife that is the sponsor. Issue the plaintiff . Isissue the plaintiff . She the plaintiff . No, i believe she is not. 1182 replies to venturing to entry. Nothing was 1182 limits in any way 1182 north could it, it would raise serious constitutions. If it were to disable the president from suspending nationals from a particular country if he got actionable intelligence that someone was attempting to bring a dirty bomb into the country, so really what were down to is the question are we required to issue immigrant visas to 30 of people who are on his word want immigrant visas, even though once they arrive at the borders, we can keep them from entering under 1182 f its a practical effect implementation of the palms were panel cover you want to phrase it precludes relief under 1152. The state department has always implemented inventions under 1182 f by denying visas, because otherwise you would be letting people come to the country with visas as a travel document and once they got here, the borders you would be turning them away. The state department has never read 1182 or 1152 to require harshind of frivolous and exercise. We told the Fourth Circuit the same thing i will say to you. If you agree with them on the most would1152, at be an injunction against the government that would require us to issue immigrant visas to people want to come here, even though once they arrived, we can keep them from entering under 1182 f. We think that system would make sense. Like tom thanks at the airport. Thats right. Thats why the state department has always said when you are denied a visa under 1152, its only because you were validly suspended under 1182 f, its not a nationalitybased a distinction. If you disagree with us on that, it would be the basis for a different injunction. One i think would be practically fruitless and harsh. But that would be the result. Another theres any way you can read 1152 to limit the president s suspension of entry power under 1182 u. S. , so want to make that move, theres no basis for the injunction. You have to read them together. You are dealing with the process. Them isay to reconcile the way the state department has, which is to say 1152 governance the issue of immigrant visas all the time in lots of other contexts. Have 1182 suspension, we not denying you on the basis of nationality, we are denying you because you have been validly suspended. If you thought they conflicted, i would still say 1182 f as a. Ore specific would trump you were talking about the president making a specific finding with respect to these categories of aliens and then suspending their entry. 1152 is more recent. Congress passed that one in 65. They have to get past be presented of implied repeal. Repeal at implied why is that implied repeal . And its pretty clear that when congress was doing was getting rid of the previous nationality quotas on immigrant visas. It wasnt doing anything to limit the president s suspension power. If youwant to point out, really take the argument seriously, i think they are committed to the view that under 11 it is u. S. , even if the president got actionable intelligence tomorrow that a Libyan National were attempting to enter the country with the president didnt know his identity to commit some terrorist attack, they would say the president can suspend entry of a Libyan Nationals, because thats a nationalitybased distinction. It would raise serious constitutional concerns and courts have never been able to not reconcile them. Here, themerits executive order sets out National Security justifications, but how is the aurt to know if in fact it is muslim ban in the guise of National Security justifications . Nub ofink that is the the case, and that is mandel. In mandel, Justice Marshall has a sense that if you will take the briefest peek behind the reason the attorney general has given, you will see that is not really why they denied it. They really denied him because he was a communist and he wanted to come in and give lectures on communism. In the court said we are not would look behind, we are not articulate in any of that evidence, this is rational basis review. Is it a legitimate purpose on its face and is it bona fide, visit their a rational religion to what the governor has done. The government has done. The court has said mandel is a National Basis review. I think the benefit of that standard is the court recognized in mandel is it doesnt call on courts to make these sorts of determinations, the secondguessing of National Security determinations if they are illequipped to do it. What thelipside is plaintiffs want in the washington case. They asked for every year of discovery and up to 30 depositions of white house official to find out exactly what was in the heads and what were the motives of the people framing the ceo, and thats the road that in mandel the Supreme Court clearly said it was not going to go down, subject to the narrow badfaith exception where you got an affirmative showing of bad faith, and here you would need official capacity statements that are unequivocal, postinauguration to show the president and members of his cabinet were acting in bad faith i just dont think they can make that kind of a remarkable showing here. Ask the same question that my friend robert king asked you a week ago, has the president ever disavowed his campaign statements . Has he ever stood up and said i said before i want to ban all members of the islamic faith from entering United States of america, and i was wrong . I consulted with lawyers, im now addressing it simply to security needs. As he ever said anything approaching that . Yes, he has said several things approaching that i think is detailed in various amicus briefs. The best is the Southeastern Legal Foundation brief a la 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 response he and, and over time, his advisers clarify the what he was focused on were groups like isis and al qaeda. The one postinauguration statement theyve got, and we all know what that means, i would encourage the court to go back and look at the ceremony in which the president signed that executive order. One . E second that the first one. What about the statements were his surrogates have said the president is simply carrying out his Campaign Promises on this issue . Access true. During the campaign he clarified 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 increase the vetting procedures, and thats what he said three minutes before he signed the first order standing there next to the newly sworn in secretary matus. It sounds like you argue that our approach to the statements should be an abuse of discretion review. If you could read the statements, good or bad, we should defer to the good. The value of the mandel standard that you dont look. That courts dont turn engaging in this. But if you do, for the reasons we said, we think as a matter of law, you shouldnt. If the court were taking them all into account, not just postinauguration official capacity statements, but the campaign trail stuff, we would still say look, the president clarified over time and in the face of ambiguity about that, but respect for court and a branch and the presumption of regularity would require not reading them as the District Court here it in the way most hostile and least favorable to the president. We did receive a number of briefs in this case, a number of amicus briefs and judge hawkins question reminds me of something that caught my eye in one of the briefs, the korematsu center. With the core executive order pass muster under your test today . Why not . Facially legitimate is all you say. I want to be very clear about this, this case is not korematsu, and it were, i wouldnt be standing here and the United States would not be defending it. When counsel said below at page 116 of the simple little excerpt of record, we will concede that in order like this might well be constitutional in other contexts , where you didnt have statements like this that they were attributing impermissible motive. I think you know right then you are not anywhere approaching korematsu. I cannot imagine that any court applysay how you facially legitimate standard to executive order like that . There was no reference to japanese in that executive order and look what happened . Im not familiar with all the ins and outs of that executive order and i cant imagine the courts would say it survived the mandel standard. But i think counsel here has endlessly recognized below that of some other president had done this without these statements, this executive order would almost certainly be constitutional and than what they are left with are the statements and they are saying all right, look great on its face, if neutral. It does not write on the basis of religion, but we think the pr