It is one hour and 15 minutes. All rise. The ninth circuit is now in session. Please be seated. Good morning. Good morning. It is a pleasure to be sitting here with my colleague, judge hawkins on my right. Extend a welcome to the distinguished lawyers here today to argue their cases. And also to our observers. Number 14 isch is submitted on briefs. Also, the calvert case, number is submitted on briefs. The first case for oral argument today is the state of hawaii trump. That case is set for 30 minutes per side. Time and tryyour to sum up when the timer is yellow and stop when it is red. The court isdd very well aware of the importance of this case to all the parties involved. Time, if onextra of the fields you need to present your argument. Certainly, if my colleagues have questions once time is up, we will go forward. Group,also tell the after that first case is argued, there will be a recess for about 20 minutes to permit all those in the courtroom who would like to leave, to exit. , after that 20 minute recess, we will continue with these other cases. To the state of hawaii versus trump. You may now proceed. May please the court, both the constitution and acts of congress and the president of the United States brought authority to permit aliens abroad from entering this country when he deems it in the nations interest. This global injunction restricting that authority cannot and for three reasons. First they applied the wrong legal standard. Constitution challenges of twons abroad section tempora repository six countries to shelter or sponsor terrorism readily satisfies that test. What is the difference, practically . Think it is just this no court has ever applied it, not the Supreme Court or this court. You have to have an affirmative showing of that faith. If that is what you require for a discretionary decision, you really ought to require the strongest showing when you are talking about the president of the United States and multiple members of his cabinet, whose motives have not been impugned. Say that the commanderinchief, head of the executive branch and multiple members of the cabinet acted just dofor early i not think plaintiffs have put together the kind of record. Court there is an exception. They obviously did not find. Under this case law, the exception is there. I understand your position is that the exception only applies to individual . I do not think so. It applies to the full scope of mandel. Areher those exclusions congress, the president , statute or executive order, mandel has mandated those challenges. Requires it is not just a wideranging inquiry into subjective motivation. They wereonclude that under the wrong standard, you say it should be mandel. Shouldnt we send it back to the District Court to apply mandel and see if they can make out an affirmative case . But i could send it back, think the plaintiffs have not sought any additional discovery here. We have a record. We know with the statements were. I think this court is as well pleased as District Court to determine an absence of are those enough to get as bad Faith Christian record i think it would be the same inquiry at the District Court as this court. There is no case like this, is there . No. In part, because no one has ever attempted to set aside a long neutral in face. I read mandel, it is clearly dealing with specific application, standards to a specific visa denials. That is not what we have here at all. It is applied equally to a statute. It could have applied it to a broad policy determinations. I do not think the Supreme Court or any code court of appeal has tried to limit the mandel test. I think for the reasons some members of this court it would not make much more sense to say that a single officer the received a denying visa gets more deference than the president of the United States and making a National Security determination. Order isecutive extremely broad order. Theyre not dealing with an individual determination. We do not know yet is we have not been able to implement the order. This administration, to be sure, said as a matter of policy. I do not know if i am getting reliable information by the governments of these nations. Subject to a pretty robust, individualized process. I do not think it is a difference in kind from what the Previous Administration did. Thanks can we step back a little bit . You start off by challenging the standing. Still a core argument for you . s. We made the arguments in our brief but i think the easiest way is to be what boy let down. Inargued extensively District Court about whether if they had both article three and and thatl standing, cardenas case. I think that is the road map. It said, look, the denial of aliens abroad is not subject to review because they do not have any Constitutional Rights. U. S. Citizens can attempt to argue that their own Constitutional Rights have been impinged by the denial to entry but hawaii does not have any rights to claim under the due process clause. He is not raising his own right. Shment cross if you think you have article three injury, he can at least raise due process but the problem is it fails on merit because he does not have a protected liberty interest with respect to his motherinlaw. Cries he is raising his own due process clause right. If you think he is articlefree injury he could raise that but the problem is it fails on merit because he does not have but [crosstalk] it does not take issue with the general rule that when you are applying alleged only the victims are punitive it is aimed at aliens abroad with no Constitutional Rights. He doesnt have an establishment clause to raise and i dont think the catholic case is any different. His argument is it is a ban against adherents of the islamic faith, correct . That is his argument . No, thats right. And that this broad policy disparages the adherents of that faith in the same way the individual residents of San Francisco county felt disparaged when the board of supervisors adopted this resolution saying that the cardinal of that diocese was terrible and unamerican by refusing to refer adoptees to samesex couples. So what is the difference . There are two key differences. That was religious speech. This is not. On his faith that does not have anything to do with religion and that explicitly religious message was directed at the community of which they were a member. Here, this eeo operates with respect to aliens abroad. It sends a message. I think the problem they have with that in the d circuit is if you can take government conduct directed toward others and reframe it as directed generally to all people, you eviscerate subtle limitation on standing. This is at least two bridges case. The Catholic League he is an imam if i am not mistaking, correct . The suspension of entry is just on the list of countries. Christ how this is motherinlaw think ithow does his motherinlaw into this . I think it shows his harm is speculative. Disagreed with us on this tn standing, then i think you would turn to merit to and say he is attempting to raise in establishment clause on behalf of someone else. He is raising his own due process claim but it fails on merits because no court has extended the process in whatever process he wants. This order more then gives it to him and his motherinlaw because there is no battle about why am she does not receive a waiver what the reason would be. It is on the face of the order its up. There is nothing more we can tell you a net is why below they disavow individual hearings. This is a categorical policy. There is no more process we can give them and they have never said what it would look like for us to give him any more reason. I think what they are really raising is a substantive challenge. That on themake out establishment side and they never learned a due process claim, only procedural due process. She is not seeking and immigrant status, correct . I believe she is no, i guess you are right. She would not fall within the 1152 that relates to 1183 or whatever . Right. Thend the doctor is not sponsor, correct . I believe it is his wife that is the sponsor. Is she a . No, she is not the plaintiff. I take your point. To say a word about the statute, 1182 applies to entry by its term. Nothing in 1152 which deals with immigrant visas eliminates and foray nor could it if instance it were to disable the president first suspending nationals from a country if he got intelligence that someone was attempting to bring, lets dirty bomb into the country. It is down to 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 however you want to phrase it that 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 that kind of frivolous and harsh fruitless and harsh exercise. We told the Fourth Circuit the same thing i will say to you. If you agree with them on the reading of 1152, at most would 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 do not think that system would make a lot of sense. Like tom hanks at the airport. Right . 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. I dont think there is any way you can read 1152 to limit the president s suspension of entry power under 1182f, so want to make that move, theres no basis for the injunction. You have to read them together. You are dealing with the process. Isnt that right . That is right but i think the way to reconcile them is 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. Where you 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 more 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. That is right, but then you would have to get past the presumption of implied repeal. You would have to say that [crosstalk] you read them together. Why is that a repeal . I think it is pretty clear that would congress is doing is getting rid of the previous nationality quotas on immigrant visas. It was not doing anything to limit the president asked suspension power. I just want to point out, if you really take the argument seriously, i think they are committed to the view that under 1182f, 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 reconcile them. On the merits here, the executive order sets out National Security justifications, but how is the court to know if in fact it is a muslim ban in the guise of National Security justifications . Muslim ban in the guise of National Security justifications . Mr. Wall i think that is the nub of 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 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. And the flipside is what the 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 eo, 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. Let me 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. Has 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. Part three walks through the comments and shows that over time, the president clarified that what he was talking about were Islamic Terrorist Groups and the countries that shelter or sponsor them, and over time, he and his 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. The second one . The first one. What about the statements were his surrogates have said the president is simply carrying out his Campaign Promises on this issue . True, judgeat is hawkins. 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 mattis. 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 to 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. Would 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 would say how do you apply 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 operate on the basis of religion, but we think the president made clear over time why he was really doing it, and you should look behind it. I think thats a very different situation from korematsu and all that they pointed to a single case either under mandel or even others is a we have a law that doesnt distinguish or explicitly religious, but we are still going to set aside based on what we leave to of the subjective motivations of the president or the advisors who adopted and crafted the policy. Thats a really remarkable holding. Is a bad faith determination the s