At allowed thousands of travelers from these countries to come back into this country. The visas were honored and they were allowed back in. Now, the white house wants to put the brakes on that process and reinstate the temporary ban. The final part of the courts arguments are still underway. Fascinating. Lets listen. Lets look behind the National Security determination made by the president , where that determination, the four corners of that determination, are explicitly based on the congressional determination that the countries at issue are of concern and does not go beyond that. I thought you were using that as your main authority for the unreview ability. So, you are saying that is distinguishable . Im a little confused whether you are relying on those cases or not. We are definitely relying on them for the limits that courts review these things, these types of issues. I am adding that when you have the document itself, and that is the best evidence of the intent of the president , it relies exclusively on the calls made by congress and the administration in 2016 about the safety concerns presented by the specific countries at issue. That is the end of the inquiry and should be. In fact, the counsel for the other side, reference to the recent decision, and describing the law, the court clearly said that congress could have enacted a blanket prohibition on i think it was describing mandel on communist aliens. That is in here, we have the president making a categorical determination based on the identification of countries of concern. There is nothing strange. That is not the question that was asked earlier about what is the order said, no muslims. You have been analogizing two cases that were about people who were communists who advocated the overthrow of the u. S. Government. Are you saying that to the external evidence here, that is alleged, that the intent here was to ban muslims, is equivalent to that . If there were an executive order that prevented the entry of muslims, there would be people standing to challenge that. And i think that would raise establishment because, First Amendment issues. But that is not the order we have here. This order is limited to the countries defined by congress. On the refugee that was the motivation and plaintiffs had submitted evidence that they suggest shows that was the motivation. So, why shouldnt the case proceed, perhaps to see if that really was the motivation or not . We are not saying the case shouldnt proceed. But it is extraordinary for a court to enjoin the president s National Security determination based on some newspaper articles. And that is what has happened here. That is very troubling, secondguessing of the National Security decision made by the president. The notion that we are going to go back you deny that the statements attributed to then candidate trump and to his political advisors, most recently, mr. Giuliani, you deny those statements were made . The judge, i would note that the judge himself said that he wasnt going to look at campaign statements. That is a different point. I understand the argument they shouldnt be given much wait. But when you say, we are all on the fast track here. Both sides have told us this is moving too fast. Either, those kinds of statements were made or they were not. If they were made but they were made not to be a serious policy principle, i can understand that. But if they were made, it is potential evidence, a basis for an argument. I just want to make sure i know what is on the table. Those are in the record. I think my point is a little narrower. In the expedited procedure of a tro, taking this extraordinary action of halting this order, that the president determined was in the National Security interest of the United States, is an unwise course. It should be stated. If you thought there was a problem, it was too preliminary, if we let this go forward too preliminary injunction hearings, do you have evidence that you would present . I think we would definitely like the opportunity to present evidence back in the district courts. We also think that the scope of this lawsuit really needs to be can you tell us anything about the type of evidence you would present it so we can consider whether for further proceedings are needed . Not yet. But another point is, the scope of the suit and the injunction would really need to be narrowed, as the parties focused in on the actual harms. The harms that washington has cited focus on residents of washington. But the order goes way beyond that, to the areas of the most concern of the president , people who have never been to this country yet and have no connection to washington, no connection to the United States, and no claim of constitutional rights. Either on their own or through washington. If i can ask my colleagues to indulge me for a moment, that does raise a serious concern on my part. The scope of the order, most obviously, having to do with the lawful permanent residence, which the governments position is that they are not included within the scope of the order, i have to say, is there any Legal Authority for the counsel of the president to have power to instruct the other departments or to instruct us as to what the order means . The president cant amend the order but im not sure that the council of the president has that authority. So, why is it we should be looking at this preconceived order and why is it we should, rather than try to narrowly carve out the injunction you are asking for, those are practical problems, i dont know how i would write such an order. Why shouldnt we look to the executive branch, to more clearly define what the order means, rather than have to look through the lens of these interpretations . Like me make two points. One, the guidance from the white House Counsel is the definitive interpretation of the council. In the white House Counsel speaks for the president and his context. Second, and i will reply brief, at the very end of page 11, we had our suggestion for the kind of order that would actually address the harms identified by washington. I am going to read that. At most, the injunction should be limited to the class of individuals on whom the states claim rest. Previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future. That is the core of the harm they have identified. When we are talking about an injunction entered on such a preliminary basis, it should be limited to the claims that the state is making and not issued more broadly. If there are no further questions, i encourage the court to stay the injunction are too limited to the presentation of the state of washington. Thank you. Thank you, counsel, for your very helpful arguments. This matter is submitted. We appreciate the importance in this time sensitive nature of this matter and we will endeavor to issue our decision as soon as possible. Thank you again for appearing on such short notice. We are adjourned. The court for this session stands adjourned. Martha a lot they are. A lot to chew over. In moments, we will be joined by judge andrew napolitano, who i can assure you has plenty of thoughts on what we have just heard. But first, we have two experienced attorneys who were listening to these arguments live throughout the course of this whole thing as they unfolded. They were furiously taking notes and getting their thoughts down. Gentlemen, welcome, good to have you with us today. Let me start with you. Your thoughts on how the trump attorney in this case handled himself. I thought he started to slow. But what we heard they are, really, at the last 5 minutes of the argument, i thought his points got stronger. The fact that you have the state of washington suing on behalf of their citizens and also, corporations, as compared to the scope of the order that applies to Syrian Refugees that may be trying to escape religious persecution, that have no connection to washington whatsoever. I think they finally made a good point. I think he kind of stumbled on that in the first part of his argument. But i believe he came back and redeemed himself. Martha sticking with that point, michael, the main contention here is that Washington State has suffered irreparable harm as a result of President Trumps executive order against the seven countries and prohibiting people temporarily from coming in who are not citizens to the country. They are saying, our universities and hospitals, institutions, had people couldnt make it back. Therefore, we have suffered irreparable harm. Which seems on the face of it a pretty difficult argument. How do you think that went over tonight . I thought they did a wonderful job under the circumstance. If you follow the politics behind which president appointed which judge, what responses they were, the issues cut down to us, martha, on a measure of standing. Can a court, then, entertain a states interest in protecting its citizens or its green card holders, its dual nationals that are visiting sick relatives abroad, people who are working for amazon or microsoft in Washington State, foreign students that are there, do they have a greater right . We all know im an immigration lawyer i cant go into the American Embassy because the constitution, equal productions, stop our waters. There is an argument that that is proper or not. Here, the states are acting within the confines of america and the president s admirable lawyers, then, argue that we are focused more on trying to create a venting system to make sure that we are not going to be put in harms way. They are citing cases, my father who is an immigration professor retired, those kleindienst, the mandel case, marxists and communists, fundamentally, they were constitutional and statutory arguments made today. The question is, will they hold muster and we are all curious about what will happen with that. Martha lets open this up and bring in judge napolitano and get your thoughts on this. One of the argument that was made at the end is that because the Trump Administration, President Trump himself and others, they mention Rudy Giuliani, because another references, they made reference to a muslim ban along the way, that that sort of supersedes what is actually in the executive order, and a document that they are supposed to be discussing. How does that hold up . Judges get to ask whatever questions they want. But the questions were highly, highly out of place to ascribe to an executive order, statements of the president made when he was a candidate or statement that one of head advisors, Rudy Giuliani, made either when he was a candidate or after he had been elected. What was lost sight of here is that the only thing the court can examine as the four corners of that order. Because the order goes to Foreign Policy and because under our system, the president s primary and Foreign Policy, every benefit of every doubt goes to the president and his wording in the order. For them to ask, on was that he based the conclusions in the order, makes the same mistake that judge did and tries to substitute the judicial mind for the president ial mind, which is an inappropriate thing for judges to do. I wish it that the president s lawyer had hammered harder on that. He did at the very end. But he should have done and the first 30 minutes, as well. Martha in terms of this notion of irreparable harm, and most of these cases, people have been delayed, they have been detained. That is not comfortable. That is unsatisfactory. That is inconvenient. They were brought back in. People have delays for all kinds of reasons, and travel or immigration or getting visas over the course of history. Why would that be considered irreparable harm to these Technology Companies and these institutions . There is no case in which i am aware that can hold that kind of that can characterize that kind of inconvenience as irreparable harm. Irreparable harm is harm that cannot be roma need by ordinary means. My child is coming into the country with her parents, she needs a heart transplant operation, the heart they will put into her body is no longer there, she cant have the surgery. That is irreparable. It cannot be addressed by ordinary means. But because the students or academics were delayed, but because their president ial decision on Foreign Policy and national National Security can hardly be characterized as irreparable. Martha one of the other things, i want to bring in our panel to discuss this as well, michael, let me go to you on this. In terms of determining whether or not the list of countries that was first put forth by congress under president obama, the seven countries that were considered to be countries that presented a threat to the United States of america, so, why would it be given such different purview under this president , when that list has existed for some time . Happen to agree and disagree with the judge. Irreparable injury would be stated if the establishment clause was present to have been breached. Whether we argue martha explain that to everyone at home. Speak of the establishment clause is saying that by default, the jewish and Christian Refugees would be given a leg up over muslims, as an exception to the vague order. Article three says any alien from those countries, with the exception of article five or seven, minority or religion. The state is advocating that irreparable harm, per se, would be perceived. In fact, if there was a breach of the establishment clause. On your question, martha, again, president obamas National Security team i Security Team identified to these seven countries hot spots. No father, mother, child, wants to have any one soul admitted by accident because a venting system is done improperly. The real question is, with indonesia, saudi arabia, 16 of the 19 hijackers healed from saudi arabia, it is as if the president targeted to seven countries, said to heck with the 11 Million People in our backyard, then, we will get to everything at a later time. Prohibited by the 1965 immigration amendment to the ac act. You are not allowed to discriminate against national origin. Martha michael, let me go to your take on that, too. I think that what you have here are two conflicting statutes, where one says that you cant discriminate on the basis of nationality. Another that gives the president broad president ial authority, on who can come into the country. I dont think when president obama was limiting refugees from syria that we heard the state of washington making that argument. That is something we are hearing new today. Martha here with a very different viewpoint on the president s executive order, and aclu attorney for more than two decades and is an adjunct professor at columbia law school. We welcome. Your thoughts and what we heard tonight. It was a vigorous argument. I think both lawyers did well. Tough circumstances. I think the judges got it right and pushing back on the u. S. Government and saying, we cant meaningfully review with the president has done. We cant look behind the four corners. I disagree with the judge, his prior statements, that standard law, the president cant get away with discrimination by simply come at the last minute, taking out some words. So, the Supreme Court has made clear that you always have to figure out with the intent is. Beyond the intent, even on the face of the order, talks about minority religions and majority religions, that kind of picking and choosing between religions, whether it is your denomination or not, has always been martha let me jump in. The white house is arguing that the president has the authority to protect the National Security of the country. So, this president used a list that was generated by the prior president , in terms of seven countries they believe proposed threats. There is no mention of banning muslims in the executive order. You can talk about a million different elements of something but then, you put together your document, and you presented. You say, this is our order. Why would anything else the relevant other than the order that has been presented before the court to determine whether or not the president has authority to make it order . For the very reason the Supreme Court has explained, you dont want the government doing Something Like that or taking out words of the final moment if you know the clear intent. It is not just a couple of statements. It was repeated statements over and over. Even after he signed the order saying, the minority christians, the minority religious provision is to benefit christians. One of the point that was made today, it takes time to make your case. I think washington will make its case and the aclu will make its case about that this was ultimately discrimination. All that was at issue here is something fairly narrow. Who is going to suffer more irreparable harm in the interim . It was not this mere inconvenience. It was people being held for a day and a half. It is also refugees stuck overseas who are in real danger, who have been extensively vetted for months, who are ready to come, who helped the u. S. Military, and now, they are stuck. Martha they are not stuck any more. Lee gelernt, thank you very much. Good to have you with you tonight. Joining me now will come as Sarah Huckabee sanders. She is Deputy Assistant to the president and Principal Deputy press secretary. Good to have you here tonight. Your reaction and what was it like inside the white house, no doubt, you were all watching this and listening to every bird that just transpired . What you think . We are still watching this really closely. The bottom line here is that we think at the end of the day, we are going to prevail in this case when its based on the merits. Look, with the president di