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This is a hypothetical. if you exclude the campaign statements, if you look at the statements around the issuance of the second executive order, including you know what this means, there's one way to read it, saying it's bad, 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? >> that's the million dollar question, judge hawkins. i don't think there's any precedent that says when you're thinking about what a reasonable observer would view as an establishment clause problem that you defer to a government offic...

Doesn't apply because of washington versus trump. 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 andasm affirm the district court. this court in cardenas said if there is a showing of bad faith, then the mandel standard is met and at sks unconstitutional. >> if you don't consider the campaign statements do you still prevail? >> absolutely. >> why? >> there's bad faith even past that. the president rekindled all those campaign statements. even beyond that, all the things t...

Has said. the district court gave them to you as well, preand 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. 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 tens of thousands of refugees from the mideast who would try to take over our children and convince them how wonderful islam is. >> mr. katyal, those statements are profound. i'm...

Under president obama. some felt he made the executive branch too powerful. the people not too concerned then are concerned now. >> this is a disease, shoes on the other foot disease. there are things that people in washington whom they favor do that they think are fine and when somebody they don't favor does them, it's terrible. think about trump. a perfect example of that. if anybody but trump had fired comey there wouldn't have been an objection. if anybody but trump had issued the second immigration order, it probably would have stood and would not have been stopped by the courts. but peop...

Plaintiffs want in the washington case. they asked for up to a year of discovery and up to 30 depositions to find out exactly what was in the heads and motives of the people framing this and that is the road that in mandel the supreme court clearly said it was not going to go down subject to the nary bad faith exception where you have an affirmative showing of bad faith. here you would need official capacity statements unequivocal post inauguration to show president and members of the cabinet were acting in bad faith. >> let me ask the same question that my friend robert king asked you a week ...