Oral Arguments: State of Washington v Trump - 9th Circuit Appeal - Part 2

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Mr. Purcell yes please the court in washington state Solicitor General know or sell on behalf of the state of washington at minnesota urs it has always been the judicial branches role to say what the wall is to serve as a check on abuses executive branch that traditional has never been more important in recent memory than it is today but the president is asking this court to abdicate that role here to reinstate the executive order without meaningful judicial review and throw this country back into chaos the court should decline that invitation deception I'd like to first discuss why the court should reject defendant's motion on jurisdictional grounds and then explain why even if the court does consider the motion the court should reject on the marriage so starting with the ability defendants have pursued the wrong remedy by seeking a stay in this court rather than mandamus of course the defendants filed a notice of appeal to emotion for state and why should we care giving reason district court suppose the district court issued an order requiring all this public schools in the state of Washington to be closed because I'm concerned about a flu epidemic and did in the form of 0 and 0 would only last less than 14 days are you suggesting mandamus is the only form of release available for an answer why you should care if you don't mind before because i do think it makes it because you're basically saying we shouldn't look at it it's hard to me to envision an order this sweeping that shouldn't be subject to some kind of appellate oversight not may not get it tomorrow that by its terms we have now received the proposed schedule and the district court is entered.
In order so we know already that this tiara was going to stay in place for more than 14 days contemplated by rule 65 so why shouldn't we view this is an injunction.
Well first of all in the cases where this Court has treated hero as an injunction that that timeline of the order with vast longer in the seiu case that the defendant decided to order lasted for months here the water will be fully support especially called the order a temporary restraining order very quick at the party second for a degree in the briefing schedule and everything will be complete within 14 days into the order it could've been completed faster appeal and forced forced to spend so much time on this and the judge i'm showing today as you want but i suggest that this might not be the topic that's most important to say the only point I'd make is that does allow review is just an extremely strict standard and the important point also is that if the court treats this has been appealed were and that's what the ultimate appeal of this of this of the ultimate ruling will be of the court properly treat this as the Indians decision and send it back to the district court the district court will have the opportunity to enter a more full preliminary injunction when the district court understands that if that's what it's doing is its intent and that will be what the Cardinals interview as opposed to reviewing what the court clearly intended to be a temporary restraining order this judge can be in your view if we left this order in place would there can be a preliminary injunction hearing in the district.
Absolutely absolutely that the parties have agreed to a briefing schedule the the preliminary injunction motion will be fully briefed by a week from Friday I'm confident that his robot will schedule will rule here and we'll quickly after that I'd also point out with a 14-day limit is for export a temporary restraining order spice text at this one no problem with well all the time with treating this as a temporary restraining order is that it is if it defendants are right that any time the court enters a temporary restraining order after hearing and interesting briefing.
Its treated as an injunction that that's a terrible rule to create for this your court because it it it discourages them from hearing the other side for entering a temporary restraining order but the guards I do i do something once there's I don't want to spend all your time on this and and of course at the if it gets it is treated at the motion for stay i hope we obviously still believe that the court should reject that motion and in the most simple basis for that of course would be the lack of Arab alarm i heard your honors again pressing at council for a statement what your form is and so no clear factual claims or a venturi claims of what that irreparable harm would be from a state and in fact it was the executive order itself that caused irreparable harm to our state's to Washington Minnesota and our resident and many other states and people as described in many countries that have been filed so so of course we believe that that the federal government has shown no our people harm from reinstating the status quo prior to the order in the heart of the state of Washington from the executive order well we detail the number of replicas harms your honor we had students and faculty in our state universities were stranded overseas we have families that were separated we had we had a long time residents who cannot travel overseas to visit their families without knowing that they would be able to come back we have lost tax revenue we had don't agree with your parents.
A tree is eerie then in balancing the harms and thinking about the standards for a stay or 40 ro are we limited to looking at the proprietary interest of the state itself or can we look beyond that even if we reject the parents Patriot here you need the parents paid right theory to expand this the harm that we can consider.
I don't think the parents Patriots here is essentially are you two independent grounds for standing one the proprietary arms that were suffering and one in the pantry is proprietary series for standing any implications for what we can consider when considering the factors for a pron for a day or it's just a way to get standing and then we think is there anything in the public interest that affects the public interest.
I think we're really just go to standing your honor because I think maybe we can consider the harms the other arms in the balancing of activities and the public interest factor of the test by suppose the post in the in the standing test but certainly those arms without becoming irrelevant so so and again the it's now at this point it's really the federal government is asking the court to upset the status quo we you know things have fully are returning to normal to to the situation before the chaos of the executive order and and it's it's the federal government asking the court to bend that that status quo again and I think counsel for the government I repeatedly tried to limit the nature are playing from our brief and I think that that misrepresents our claims to some extent in a way that's important because the point we're making in the brief there about longtime residents is that this case is is different from mandel and then in an important way in that the federal actions here effect at effect longtime residents who have been here now that's not all affected also affect at people were trying to visit that affect those people trying to visit their families.
It's the Establishment Clause violation sex affects everyone in a sense insensitive it well as recorded knows the case files by clear that establishment clause violations on their own show reparable injury and we firstly that claim is.
Strong so just on the marriage the state has shown a strong likelihood of success the federal government certainly the state's sorry has shown a strong likelihood of success in the federal government certainly hasn't met its burden on review of showing likelihood of overcoming the judge can be as far as the Establishment Clause claim those the government takes the position i think that devoted any of your Establishment Clause claim you're confined to the four corners of the instrument what you're coming on there you know I think the key fall shows with that strong i think i think it was just pointed out what are just freedom i'm sorry baby both carried tens exactly opposite this Court's decision in Virginia's that's exactly the opposite that if there's if the planets makes possible allegations at sufficiently supported of that face the court can look behind the motives and in those cases just be clear those are cases where the the cat if the case had to do with excluding aliens who had never been here and had no right to be here so anything that course to take a more a harder look at the real motive in a case where there are significant impact on people who do live here who've been here for many years have who are longtime residents and who clearly have entitled themselves the constitutional rights of due process equal protection unlike and kerri-anne delaware really was at you know there's also the rights being farmed other people overseas it was there is there that people here who are asserting well and overhear anything that the assertion that the court took up the claim only because in the cases Carey versus in this den was a US citizen of the number of people affected by the executive order you have any information as to what proportion would fit within the category of Washington residents or.
Novel to read people diseases and I suspect it's a small fraction did you pay for that your honor first of all we are at the pleading stage we have not had an opportunity we filed a complaint and motion for temporary restraining order and kill for standing purposes all the possible allegations that our complaint or treated as treat now we have alleged that there are thousands of people in Washington thousands more in Minnesota who are originally from these countries who are not yet citizens here we know the way they were was originally interpreted using your honor at descendants originally interpreted the order and said that it covered lawful permanent resident that we know there are roughly half a million lawful permanent residents from these seven countries in the united states now they changed their mind about five times about whether it applies to those people in the in the in the time since the order issued and now this is that it doesn't but at the time the state filed its complaint they had not yet made your position clear about that and and i would say that that argument is not moved yet because under the voluntary cessation standard until they change the order to make that crystal clear that that that click it they can't just say well now we say it doesn't apply to them so don't worry about it and that's half a million people are in the United States who at overnight it at least according to government initially lost their right to travel to come in and out of the country to visit their relatives and and several people with Dyson shouldn't limit the order the temporary restraining order reach to those people he is that a strong case for like the LCR why should i why should the temporary restraining or reach beyond that seemed to be the government's principal argument that it was over broad why isn't it overrun three key reasons our first of all living in order that way would not address all the harms the order is calling.
So for example it would not remedy the order violation of the Establishment Clause which harms everyone in our state as well as our state's themselves by at the ring one religious group or another it also not fully ready to order violation of equal protection clause because the order relies on this mandatory animus to denied some of our residents were here the ability to receive visits from their friends and family while allowing others to receive those visits and so on to it wouldn't address all the harms of the second point is that are are you us as in the US citizens who are here who are related to these folks overseas do have rights and it would not address their rights at all to limit that way and then and then finally Your Honor I just say that defendants have not explained how they would work we implement their order that they're now proposing which they didn't really propose in any way before the approach would require some sort of system for quickly approving travel in reentry by thousands of people from the affected countries who live here we study here who work here in our businesses and we often have to travel for work or to visit family and they just cannot credibly describe how they would be able to do that even if it were able to all of our homes in evaluating your Establishment Clause claim should we have cloud Larson or lemon we are we think we prevail under either test that we think this case is closer to Larson because in Larson what you had with a facially neutral law it did not mention any religious denomination by name but it did focus on religious groups and the result of it was to distinguish between them in a way that favorite some and not others and that's exactly what we have here we have an order that on its face doesn't mention any denomination but that is it.
We have a ledge and there is strong evidence already to support is intended to favor at some religious groups over others and and that is that is exactly the situation Martian I know the other side is saying if it doesn't mention a particular denomination on the piece of the document the Martian doesn't apply but that's that's not what portion itself says larceny in martial law did not mention the denomination but again we also think that we prevail under the Lemon test which is explained in some detail in our district court briefing we do not unfortunately space really to explain that argument as well in the briefing to this court if we were to agree with you about Larson is very reason to consider your equal protection claim or those two claims essentially result.
Then I think if you if you agree with us about working there would not be any need to reach are equal protection claim i think that's fair.
Let me ask about the oldest religious discrimination claim to reach both the Equal Protection and establishment clause flames and i'm not entirely persuaded by the argument if only because the seven countries and compass only 8i think a relatively small percentage of Muslims do you have any system information as to what percentage or what proportion of the adherence to Islam worldwide are our citizens or residents of those countries by my quick penciling suggested something less than fifteen percent i have not done that master honor but to be clear if it is all those countries are countries that have been previously tagged as subjects of concern about terrorism granted it's because of grabs radical Islam sex so there might be a religious motivation behind the terrorism but I have trouble understanding why we're supposed to infer religious animus when in fact the vast majority of Muslims would not be affected as residents of those nations and where the concern for terrorism with those connected with radical Islamic sex is not hard to deny you are the key for from this Court and the Supreme Court is very clear that to prove religious discrimination we do not need to prove that this order has only moments or that it happens every month we just need to prove that it was motivated in part by a desire to harm our homes and we have alleged that you for that desire is in fact the vast majority of Muslims are unaffected we are in part you can for influencing intent evidence hang in there are statements that we've quoted in our complaint at that are that was shocking evidence of intent to discriminate against Muslims given that we haven't even had.
Any discovery yet to find out what else might have been said in private I mean that the public statement from the president and his top advisors reflecting that intent are strong evidence that certainly at this meeting stage at to allow us to go forward on that claim and again you know we know type of discrimination claim requires you to show that that every single person of that category was harmed by the action of you just have to show that the action was motivated in part by a desire to that group and the situation where the proportion affected were less than fifteen percent your i'm sorry i haven't thought of as i said i had not done that mouth before you for the argument i have not thought about the keys in that in those terms because you're part of it.
I mean he denies it in fact there is concern about people coming from those countries separate and apart from what their religion might be because as Congress and the previous administration have concluded those countries are concerned from a terrorist respective Congress Congress had determined that those and the any executive has determined that those countries as if I think it was you who put it should not you know get a waiver from a visa requirement that is eminently different from a complete ban on travel this country that decision by the previous administration about Congress was religiously motivated no no you're not interesting at all would be possible to identify these countries as a source of concern and possibly as the subject to special treatment without having religious motivation or discriminatory intent behind it.
What you are about cases like a query from the US Supreme Court made it very clear that in testing establishment cause claims an action that could have been perfectly legitimate done with proper intent is not legitimate and is unconstitutional if done with a desire to favor one religion over another McCreery make that very clear is it literally says the exact same action could be acceptable have done for some reasons and not acceptable if done for others and here we have alleged very positively with great detail at this was done to fear one religious group over another and and so we should be a logical for on that claim even though yes we're not denying that these countries could have theoretically and in fact were previously chosen for some lesser level at this stage you've got to demonstrate a likelihood of success so so what is this that should lead us to conclude that you've got a likelihood of success is being able to prove the religious animus you allege for starters that the president called for a complete ban on the entry of Muslims and then and that ban no we're not saying that this is a complete ban on Muslims entering the country obviously they realized that this is this is what his advisor said on television was that he would ask for a way to implement a narrower thing that would be legal and but but the point is that that was clearly a motivating what we have alleged and again yes it is we do have sure like to have success but at this stage the case was clear are possible allegations are taken as true for assessing that like you have success and Lady Anne cannot possibly be true.
We're supposed to take your word for it the fact that you make an allegation of the complaint and that equals likelihood of success you don't really mean that do you know what i mean is that be we can assess do i have to believe everything you allege and say well that must be right that's not the standard things actually supported these allegations with exhibits we have supported many of our relations with a given country but we have and I do think that that's important we have presented an enormous amount of evidence especially considering again that we are the time between our filing our complaint was filed a week ago Monday together with temporary restraining order motion together with the Declaration so so unlike cases at the one we had extraordinary little opportunity to actually.
Other and prevent evidence the government for exactly the same thing don't tell us you need more time because the government brought the state motion don't tell us you need more time you're the one that taught the temporary restraining order either you have presented the record to get out I mean that's don't tell us maybe you'll gather it later if if you can't demonstrate likely to success with what you've got the record so far and maybe you can i'm not saying you can't but so far I haven't heard a lot of reference to the evidence and a lot more references allegations and I don't think allegations cut it at this stage yes emotion before his emotion first day who has the burden of showing likelihood at this point it is the federal defendants you have to show that they are likely to succeed on appeal we had the burden that the district court is showing a likelihood of success on the merits but the state standard is very clear that it's the party seeking to stay that have to show a likelihood of success on appeal and again we believe it would be more appropriate to treat the demons action where they would have to show a clear and indisputable right to relieve and in part we think that because if you don't then it's the district courts temporary restraining order that the that the federal government is going to maintain is the is the order to be appealed from ultimately and that's just not proper given that it in either form or substance or intent was that meant to be a preliminary injunction order it was meant to be a temporary restraining order the district court was very clear about that and the district courts have an opportunity to consider the preliminary injunction briefing an issue appointment order that could then be reviewed the evidence that is necessary that i mean i think most of your claims are going to get de novo review anyway so I don't know if we really need to wait for the district court to do more unless more evidence is going to be presented point is not well we we will we do intend to file from additional declarations in evidence in the district court if you're not opportunity but I think it's also important point out just for fairness the second fairness to the district court itself the district court should have opportunity to to enter anything that it actually thanks to either from an infection order at so that it to assess the events to have more time to issue an order that that framed as an intended as a preliminary injunction order that this court could review and it is i guess i just asked if you if you decide not to do that if you decide to treat this as that as a fungal infection going and st motion and I'd ask you to issue an opinion that treats it like a preliminary injunction ruling and that gives it the sort of consideration that you would want that reviewed with because the other side that the federal government has already made very clear that they intend to seek immediate review if this Court denies the stay and yes of course you know if you would be it would be unfair to this court and the district court to have the federal government try to take to the US Supreme Court at you in order that was explicitly framed a temporary restraining order and that the judge understandably that issued at urgently should work to issue a reasoned opinion was that take care of this concern is there a concern beyond that I think that was addressing much of the container i would ask that you do either one or the other I'm gonna do you think it would be better procedurally and work on keeping the specimen to send the case back to the district court to find this a temporary restraining order to allow us to put in the event that we would support the preliminary injunction motion and to allow the district court to issue a preliminary injunction ruling but if you're not going to do that than I do think a reasoned opinion would would do much to address that concern can you tell us whether you're further evidence would be more about standing or more about the merits or both I your I think you would be primarily just slightly more detail about standing at the stand again we haven't we haven't of course the difficulty with a claim that's about intent is that we've made these allegations that we haven't had any discovery yet and and realistically you know will take some time together that sort of evidence beyond public statement and this Court has held in towards the US Supreme Court that when that case has to do with intent you know it it it well here's it's remarkable to have this much evidence of intent without any Discovery i think is probably the best way to characterize it so i think that the court should keep that in mind in assessing likelihood of success we've taken you down to four minutes is there anything you'd like to conclude with we're on the other point that i guess i want to point out that can make that of course that we also have a statutory playing under the immigration and nationality act and that we and we believe that all of our claims are very strong they're likely to succeed on all of them but that is also that it's a claim that that we it's at we feel very likely to succeed on and that would also potentially allow the court to avoid the constitutional issues if you wanted to belong in the statutory pound got a section that starts the statutory ground was helpless only with regard to those seeking immigrant visas Brett.
Yes I think that is largely correct i think that is basically correct that 1152 speaks of visas and and that there cannot be discrimination based on nationality in in issuing visas and invite attention that's not really a way to avoid all your constitutional claims then right because it wouldn't cover everything everyone actually that's really not necessary allow you to avoid all the constitutional issues that I guess I just don't want we've cited that claim that it is we believe it is a very strong claim that the order violates the ia and and in and also i guess i think it's important to it I think that's an important point because it goes to what level of deference is owed to the executive of course the the president is claiming that he's acting pursuant to congressional delegation of authority and our tradition is in fact no he's acting contrary to what Congress has set and even if that's not as to every single member every single person is harmed by the order.
It's an important factor to consider in deciding how much difference to give to the executive on this point there have been presidential orders in the past by prior presidents that treated people based on their nation why does why shouldn't that suggests to us that the the statute should be harmonized in a way other than the one that you're advocating we are all good orders have been our significantly narrower and white here and bring glory to his name though I mean if you single out Cubans because they're from Cuba that's doing by class based on nationality and and I haven't heard any citation or reference to a legal challenge to that or an argument that i think that was President Reagan's that what he did was inappropriate there were others singled out individual countries had been a challenge to that why should we decide that Congress in enacting 1152 and that's the number i've been using meant to amend ER or partially repeal 1182 2.1 as you pointed out there have been cases of all days about these issues so there's not well that may have been to some much narrower paxton st agree that there has been some practice to that effect much narrower than here but but again every one of those examples involved much more narrow tailoring that we have here and also 1180 the same and you treat people based on the nation they come from and and foreign policy or foreign affairs do all the time we meet people from North Korea differently than we treat people from france so I have trouble understanding your interpretation of 1152 as prohibiting what seems to be commonplace in foreign affairs we are 1182 itself includes a number of exceptions that allow for that allow the federal government to detain people inadmissible for security related reasons and other reasons it but but but not to make this sort of across the board without exception policy that applies to infants to school children to grandmother's to people who pose no threat whatsoever to to this country so i guess i just asked the court not to lose sight of that statutory claim especially because i do think it goes it helps that the court can review this order the court should review this order and and should give it the constitutional and statutory screen me that that it deserves if the court has no further questions we would ask that you were first we'd ask that you treat this as a mandamus written and deny it but if you're going to treat as a motion to stay we ask that you deny an issue a reason opinion doing so thank you thank you thank you your honor.
I just want to address a couple quick points first in whatever again says about looking consular decision-making does not suggest that we look behind national security determination made by the president.
Determination the four corners that determination are explicitly based on could the congressional determination that the countries that issue are of concern and technical beyond Mandel as your man or for other ability and have your things are just too horrible to have been relying on the cases are not we are definitely relying them on them for the limits that Court review these that these types of issues i'm heading that when you have the document itself the best evidence of the intent of the president relies exclusively on the calls made by Congress and the administration in 2016 about the safety concerns presented by the specific countries that issue is the end of the inquiry and should be in fact I know the council the other side started decided this Court's recent Cardinal decision they're describing the state of the wall the court very clearly said that Congress could have been enacted a blanket prohibition on on on think that it was describing it on communist aliens and that is and here we have the president making a categorical just determinations based on the identification of countries of concern and there's nothing strange request with that earlier about what if they've ordered analogizing who hate that were about people who were communists who advocated overgrow the US government and are you saying that that would be the external Evan hear that sizzle at that you can't hear with the band one its licking its executive order that prevented the entry of most folks that there would be people with standing to challenge that I.
That would raise establishment cause First Amendment issues but that's not the water we have this order is limited to the country's defined by Congressman let me on the refugee that was the motivation is at that submitted evidence that they just shows that was the motivation the yak-42 perhaps the discovery that really was the motivation or not we're not saying occasion proceed but it is extraordinary for report to enjoying the president's national security termination based on some newspaper articles and that's what has happened here that is not that is very troubling guessing of the National Security decision made by the president and the notion that we're going to go back order.
That's not just using I that fact the statement distributed to and candidates from and do this political advisors most recently the spiritual reality tonight those statements are amazed i know not that Judge rodarte itself says it he wasn't going to look at campaign statement I to think we're not with a different boy I understand the argument they shouldn't be given much weight but we had a word for it we should be looking this paper articles with work we're all in the bad right here those guys it's all the looting class those kind of statements were made or they're not out yet they were made but they were made not to be a series five different all I can understand that but they were made it is potential evidence reservations for an Argus I just want to make sure i know what's on the table record but i think my point is a little narrower that in the expedited procedure of a cro taking this extraordinary action of of hoping this order that the President determined within the national security interests of the United States is is.
Unwise course and should be stiff problem that momentary it relaxes the origin for Larry injunction hearing you have any situation exists I think that definitely would like the opportunity to present evidence back in the district court and we we also think that the scope is what's really fascinating about this type of evidence was presented that we can better that whether this do another point is the scope of the suit an injunction would really need to be narrowed the parties focusing on the actual harms the harm that Washington decided to 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 whether either on their own or through Washington my colleague village promote that those grades serious concern on my part and in this scope the order most obviously have you do with the lawful permanent residence which covered position now is there not a sort of go for the order i have to say i think is there any legal authority for counsel to the president to have powers to construct the other departments or to direct us what the core mission president amend the order but i'm not sure that the council brenda has already so so why is that we should be looking at it reconvenes order and why is this we should rather than try to narrowly car about the intention you're acting for practical problems are not right that's course why shouldn't look this is the executive branch to more clearly define what order me rather than have to look resplendent interpretation make two points there one the the guidance from the White House Counsel is specific interpretation of the order and the white house council speaks for the president in this context second in our reply brief at the very end on page 11 we had our kind of suggestion for the kind of order that would actually address the harms identified by Washington and then i'm 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 returns the united states in the future that the core of the army of identified and we're talking about an injunction entered and such a preliminary basis it should be limited to the planes that the state is making and not issued more broadly if there are no further questions I encourage the court to stay the state the injunction or two limited to the presentation of the state of Washington thank you thank you castle for your very helpful argument this matter is submitted.
We appreciate important than this I sensitive leader of this matter and will endeavour to get your decision as to that spot.
Thank you again for here has short noted we are reserved for questions and answers.


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