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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...

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. i take the hypothetical. if that hypothetical arose, i think it would be different. that is, context matters. supreme court in mccreery, for example, says governments can close shops on sundays. and if they do it because of labor, they want to give workers a rest, that's fine. if they do it and at the same time announce the reason i'm doing it is to help churches, that's obviously an establishment clause problem. that's why context matters. it always has, in the cont...

Exclude and this is a hypothetical, if you exclude campaign statements and look at the statements around the time of the issuance of the second executive order including you know what this means language that there is one way to read it say tg is bad is one way to read it. why should we be deaf renchal to the office of president of the united states on such issue snz. >> that is the million dollar question. i don't think there is precedent that says that when you are thinking about what a reasonable observer would view as an establishment clause problem that you defer to a government official....