For the Record with Greta, transcript 2/7/2017

Guests:
Ari Melber, John McCain, Michelle Friedland, Noah Purcell, Richard Clifton, William Camby
Transcript:

Show: FOR THE RECORD

Date: February 7, 2017

Guest: Ari Melber, John McCain, Michelle Friedland, Noah Purcell, Richard Clifton, William Camby

GRETA VAN SUSTEREN, FOR THE RECORD HOST: This hearing, live streaming on

the website for the United States court of appeals for the ninth circuit.

The hearing is being conducted by phone with one judge in California,

another in Arizona, and the third judge in Hawaii, and the justice

department is arguing first. They want to argue the hold on the Trump ban

imposed by a trial court judge in the state of Washington is wrong and

should be lifted right now. We`ll be tracking all development in this

hearing as they happen. Meanwhile, what does President Trump say? He sound

confident, but should he be?

 

(BEGIN VIDEO CLIP)

 

UNINDENTIFIED FEMALE: Mr. President, how far are you willing to take your

travel ban fight?

 

DONALD TRUMP, PRESIDENT OF THE UNITED STATES OF AMERICA: We`re going to

take it through the system. It`s very important. It`s very important for

the country, regardless of me, or whoever succeeds at a later date. We have

to have security in our country. But we`ll see what happens. We have a big

court case. We`re well represented, and we`ll see what happens.

 

UNINDENTIFIED FEMALE: Is it a Supreme Court thing?

 

TRUMP: We`ll see. (INAUDIBLE) It`s common sense. You know, some things are

law and I`m all (INAUDIBLE). Some things are common sense. This is common

sense.

 

(END VIDEO CLIP)

 

VAN SUSTEREN: Ari Melber is MSNBC chief legal correspondent. Ari, I mean,

this is fascinating, we`ve got three judges, three different states, they

could have gather in short order in one spot and there are going to make

this motion, but we get to listen to this as this goes down.

 

ARI MELBER, MSNBC CHIEF LEGAL CORRESPINDENT: We get to listen. I`m here

onset as you know with my headphones, and we`re going to bring you any

highlights as soon as they come in. What`s important as you laid out there,

Greta, is this is the big game in town. There are over 20 lawsuits

nationwide challenging the ban. But these judges you see on the screen

here, they`re going to make the decision possibility this hour or later.

They can decide when they want, whether to keep the ban in place while

these trials go forward, or to basically lift it. So they`re going to

decide to block it or lift it. The underlying decision here doesn`t tell

you, of course, what`s going to happen in the end. We`ve just heard the

president talk about whether or not it goes to the Supreme Court. But if

they decide that the ban should be in action during the trial, that would

be going back to the airports and making this law of the land again. So

what they decide could have major consequences.

 

VAN SUSTEREN: And, of course, a note to the viewers who are watching, we

are monitoring this. Ari, we`ve got the earphones, we`ll bring you in a

minute, anything happens and of course as something goes on the court we`ll

not miss it. We`re covering on the site. Ari, The fact this is not about

the actual constitutionality of the ban which is whether to lift temporary

hold on it. There`s one sort of hint though, whoever wins on this, the

court is saying is that`s likely to be the winner on whether it`s

constitutional or not because that`s the standard.

 

MELBER: That`s right. So you have, of course, these multiple inputs, these

different elements what`s called a balancing test, and they look at who is

harmed, they look at the equity, but as you say, Greta, a big part at what

they look at the – really the dominant factor is who they believe is

likely to succeed on the merits. That is to say do they think that

President Trump lawyers represented by the justice department are likely to

win, and that this ban ultimately will be upheld as legal and

constitutional, or do they think these challengers in this case the state

of Washington which argues that its economy and its citizen are being hurt

by this policy, and that this policy is illegal, are they more likely to

win. So there`s a lot of tea leaves that get red, like any prediction out

there, whether you`re trying to predict the Super Bowl, or predict the

presidential election, I think everyone at home understand that even well

informed predictions can be wrong, which means even if these judges do

predict who`s going to win because that is part of the action, that`s part

of the policy that they`re basically doing. They`re weighing that. That

doesn`t tell you whether they`re right or not. A federal judge who are

serious will be the first to tell you that when they issue a TRO, a

temporary restraining order, when they issue a stay they still are always

open-minded to the full facts at trial.

 

VAN SUSTEREN: Well, the other thing to is not whether or not the judges

likes this whole law, is whether or not the law is on the side of either

particular party. All right, we`ve got ears on the hearings. We`ll be

talking to Ari Melber again. But today, homeland security secretary John

Kelly defended the travel ban to a house committee.

 

(BEGIN VIDEO CLIP)

 

JOHN KELLY, SECRETARY OF HOMELAND SECURITY: The president`s recent

executive order to temporary suspend entry for foreign national from seven

countries we believe is lawful and constitutional, and review order by the

president is necessary and appropriate. In retrospect, I should have –

this is all on me, by the way, I should have delayed it just a bit so that

I could talk to members of congress, particularly the leadership of

committee like this to prepare them for what was coming.

 

(END VIDEO CLIP)

 

VAN SUSTEREN: With me Senator John McCain, Republican from Arizona,

chairman of the armed services committee. Nice to see you, sir.

 

JOHN MCCAIN, U.S. SENATOR: Thank you, Greta, it`s nice to be back with you.

 

VAN SUSTEREN: And the secretary, good general falling on the sword for sort

of the roll out.

 

MCCAIN: Well, I think the good secretary also alluded to the fact that the

roll out was disastrous. You know, you wonder what would have happened if

there had been notification to the leaders of congress, the usual vetting

by the agencies that are involved, rather than this kind of out of the blue

explosion that took everybody by surprise.

 

VAN SUSTEREN: Why do you think that was done that way? Why do you think

that congress was not consulted?

 

MCCAIN: I don`t know, except that it seems that the M.O. of this White

House is on a shake-down crew. And there is a certain lack of appreciate as

far as I can tell, that there`s certain thing you have to do, notify

people, talk about the fact that you`re proposing – there`s just a

standard kind of procedures that they all bypassed. And, by the way, the

innocent bystander were people with green cards, who had valid green cards

who were either sent back or held, some of the case of one Iraqi in – was

in handcuffed, an Iraqi interpreter that saved the lives of our American

service members. And so, I think a lot of it had to do with the roll out,

and I think it was avoidable. Because all of us want strong vetting, all of

us want to make sure no one can get into this country that can commit an

act of terror.

 

VAN SUSTEREN: Have you spoken at all to the president since he was

inaugurated?

 

MCCAIN: Twice.

 

VAN SUSTEREN: And did this come up at all in the discussion?

 

MCCAIN: No, no. One was called to congratulate him and the other was

discussion on secretary of defense. And one of the people that I also

strongly agreed with was the appointment of General Mattis to be the

secretary of defense. I`m a great admirer of General Mattis, and I am of

General Kelly`s too, and General Flynn.

 

VAN SUSTEREN: Do you think that the White House thinks that congress is

irrelevant, or do you think it`s that they`re just sort of trying to meet

campaign promises, or they don`t care, or they`re learning, what`s your

thought?

 

MCCAIN: All of the above.

 

VAN SUSTEREN: All of the above.

 

(LAUGHTER)

 

MCCAIN: I really think that this is a new administration. We`ve got to

remember, it`s only been two weeks. It seems like two years. But it`s only

been two weeks. They`re in really adjustment mode. And I must say in their

behalf, this is the slowest nominating process of cabinet members since

Abraham Lincoln.

 

VAN SUSTEREN: Is it the White House fault or is it Capitol Hill?

 

MCCAIN: It`s Capitol Hill.

 

VAN SUSTEREN: Capitol Hill.

 

MCCAIN: It`s Capitol Hill. We`re – Democrats now, and I don`t know why

they`re doing it. Let us go through procedural votes like reading of the

journal and all X amount of time that is allowed between votes. And I don`t

see the point, but it is the slowest process. And this president, any

president deserves better than what we are getting from the Democrats.

Greta, I did not see the congress of the United States and this country

polarized as it is today. That`s not good.

 

VAN SUSTEREN: All right, let me talk about Vladimir Putin. President

Trump`s comment about the – for the short term, the moral equivalency of

what Putin does and what the U.S. does.

 

MCCAIN: I was deeply disturbed to hear the president say that. Say that we

are killers too. This is an individual who is an old KGB – that has murder

people in the street, in the shadow of the Kremlin they murder Boris

Yeltsin. The ethnic cleansing, basically slaughter in Chechnya. Look, he`s

an old KGB colonel that wants to restore the Russian empire. And to equate

him with the United States of America, yes, we made mistakes, of course,

and very serious mistakes, but to put Vladimir Putin on the same world

plain as the United States of America is, well, it`s a betrayal of

everything that we stand to for. You know the guy that used to inspire me

and inspires me to this day was a guy name Ronald Reagan. You know Ronald

Reagan used to say, look, we`re a great nation. We`re a shining city on a

hill. Our best days are ahead of us. He lifted up America after a very

serious recession. That`s the message that Americans want to hear in my

view.

 

VAN SUSTEREN: So what`s the thought? Was it just sort of flip bad

statement, caught off guard, or do you they think he believes it, why did

he say it?

 

MCCAIN: I don`t know. I don`t know whether he was caught off guard or

whether he means it or not. But I think he has to understand that anything

that the president says reverberates around this globe. And so, I was

recently in – as you know, Latvia, Estonia, Lithuania, Georgia, and

Ukraine. They`re very frightened. They`re very worried about some kind of

deal with Vladimir Putin that would give him the influence again over these

countries that were – he believes were part of the Soviet empire, the

Russian empire.

 

VAN SUSTEREN: All right. This is your party. He`s a Republican. Can you

just call him up and have a little talk with him on how he does – I mean,

would he consider that?

 

MCCAIN: Well, I talked to the people around him. I talk to vice president

who is very solid guy. I talked to General Mattis. I talk to secretary of

state Tillerson, who I think has a good understanding of Vladimir Putin.

But no, I haven`t talk to the president directly.

 

VAN SUSTEREN: Are you concerned or worried because when you say this feels

more like – you know, we said it`s only been two weeks and it seems much

longer, are you really alarmed at this start?

 

MCCAIN: Well, I`m disturbed about some, but on the other hand there`re some

things that he has done right, selection of cabinet members, commitment to

build up our military, which on the last eight years of some over the

previous president has been disseminated. And I mean disseminated, badly

harmed. And so there are some things that he is doing right. But I think my

job is to do what I`ve always done, when I disagree with President Reagan,

I disagree. When I saw the surge was failing I told George W. Bush to fire

the secretary of defense. I told President Clinton that he ought to fire

the guy who was running things in Afghanistan.

 

VAN SUSTEREN: Should Trump fire anybody tonight?

 

MCCAIN: I`m not sure that he should fire anybody because we`re not at that

stage. But I do believe that he needs to stand up for the greatest

experience on Earth and that is the United States of America. It`s not an

accident. We`ve had small wars, but unprecedented 70 years of peace since

we establish a new world order following World War II. That`s what we have

to preserve. Otherwise.

 

VAN SUSTEREN: Do you think Trump can do that?

 

MCCAIN: Well, I believe he can. And I believe if he listens to the right

people. See, one of the problems is I`m not exactly sure who he listens to

as far as making these decisions is concerned. And if he listens to people

that I`ve just talked about, I think we`re going to be in pretty good

shape. But there`s no doubt that this roll out was very badly handled.

 

VAN SUSTEREN: Senator, nice to see you, sir.

 

MCCAIN: Thank you.

 

VAN SUSTEREN: And the arguments are now underway in the travel ban hearing,

the justice department now presenting its case. Let`s listen for a moment.

 

(BEGIN VIDEO CLIP)

 

UNINDENTIFIED MALE: Al Shabaab, who have been convicted in the United

States.

 

UNINDENTIFIED FEMALE: Is that in the record? Can you point at to where the

record that you`re referring?

 

UNINDENTIFIED MALE: It is not in the record. There has also been other

example. But, again, you`re correct. These are not in the record. And the

reason we sought immediate release and a stay is because of the court`s –

the district court`s decision overrides the president`s national security

judgment about the level of risk. And we`ve been talking about the level of

risk that is acceptable. As soon as we`re having that discussion it should

be acknowledged that the president is the official that is charged with

making those judgments. I`d also like to.

 

UNINDENTIFIED FEMALE:  So are you arguing them? That the president decision

in that regard is unreviewable?

 

UNINDENTIFIED MALE: Yes, what we`re – there are, obviously, constitutional

limitations, but we`re discussing the risk assessment.

 

UNINDENTIFIED FEMALE: What are the constitutional limitations that the

government acknowledges?

 

UNINDENTIFIED MALE: I would – mostly, the plaintiff has asserted various

constitutional limitations. And I think the case that is most on point as

far as constitutional interest is Mandel and Din. And in those cases where

you have a U.S. citizen raising a claim, the court looks only at the U.S.

citizen constitutional claim. And even then, looks at whether the decision

is facially legitimate and bonafide. The executive order here meets that

standard easily. It relies on.

 

UNINDENTIFIED FEMALE: In both of those cases though, the specific statutes

like congress that set fort specific criteria that apply factually were

issues. The president is not applying any specific criteria from congress

here, is he?

 

UNINDENTIFIED MALE: Yes, the president is. The president is applying

section 212-F which authorizes the president to suspend entry of classes of

aliens if their entry would be, quote, detrimental to the interest of the

United States. It now – the Supreme Court recognized that congress and the

president share the exclusion of aliens as a fundamental act of sovereignty

that the congress and the president – within the power of congress and the

president. So our point would be that there`s limited review and the

executive order – and most limited review of the executive order easily

passes that test. And that would only be true if there`s.

 

UNINDENTIFIED FEMALE: What kind of limited review that you acknowledge is

appropriate?

 

UNINDENTIFIED MALE: Again, we`re not acknowledging any review on the fact

of this case because a lot of standing and other problem with state

bringing the claim. What we acknowledge is that Mandel conducted a limited

review to see that the decision was bonafide and legitimate.

 

UNINDENTIFIED FEMALE: Haven`t there been allegation here of bad faith. And

doesn`t Mandel and Din envision that that`s something that we need to look

at?

 

UNINDENTIFIED MALE: When reviewing executive order of the president

undersection 212-F, the review should be confine to the four corners of the

document. Determine if the document – if the decision itself and the

executive order findings have any issues with respect to the standard. And

again, I sort of thought ahead of our position. This would be – if there

is a party in the U.S. withstanding to raise constitutional – their own

constitutional claims.  And there are problems at each step of that

analysis. The state of Washington doesn`t have these kinds of

constitutional interests. There are – the state of Washington can`t bring

a parens patriae suit on behalf of its citizen in this context. And.

 

UNINDENTIFIED MALE: Let interrupt you for a second there. There are some

talks in this Supreme Court case that – for instance, a state may have an

interest in clean air. And when it serves to protect its air, it`s

necessarily acting for its citizens. The state itself can`t smell air, it

can`t see air, it has to be acting on behalf of its citizen when it brings

a case like that. Yet, there seem to be authority for state to bring that

kind of a claim.

 

UNINDENTIFIED MALE: Well, the problem in the immigration context, and

actually more generally is a third party can`t challenge visa denials or

revocations. The claims that the state is bringing.

 

UNINDENTIFIED MALE: Sure they can. Look, the whole point of the Dem case

was that Dem himself, or rather Dem`s husband couldn`t challenge but she

could. And three justices of the court were prepared to throw it out at the

first step, but the other six justices were not. They took up the claim.

Why is it the state of Washington in a comparable position, say is the

proprietor of the state universities having the same kind of interest that

the scholar and plaintiffs did in Mandel.

 

UNINDENTIFIED MALE: Well, the problem is because the state is asserting a

parens patriae theory where.

 

UNINDENTIFIED FEMALE: They`re also asserting their own interests as

proprietors of the university and otherwise, tax revenues.

 

UNINDENTIFIED MALE: Yes. Let me finish with the first theory and I`ll get

to that. The parens patriae theory assumes you`re asserting the right on

behalf of the beneficiary. But there`s well establish law that in the

immigration context the sort of third party interest in the case O`Bannon

describes this is not something that can be asserted.

 

UNINDENTIFIED MALE: I suggest – Dan asserts exactly that. I mean, interior

Dan the plaintiff, Dan was the wife of the person who was excluded. So the

person who was excluded may not have any rights that he could assert

directly, but his wife was allowed to.

 

UNINDENTIFIED MALE: And the state – I mean, the state doesn`t have the

sort of constitutional rights that the wife in Den had. The wife in Den.

 

UNINDENTIFIED MALE: Why isn`t the state`s right the same as the scholar in

Mandel? And Mandel was a foreigner. He may not have rights, but the court

took the case up because the people who argued they want to be able to hear

him, the various universities to which he`s been invited. Well, University

of Washington, Washington State invites people. Why doesn`t the state of

Washington have the same standing that the scholars did in Mandel?

 

UNINDENTIFIED MALE: The – again, you have to look – sort of the right of

the state. I guess I was discussing the right of the state on behalf of the

people that it wants to – it is brining suit on behalf of – sort of

collapsing the inquiry.

 

UNINDENTIFIED MALE: I understand – you`re moving away or I`m dragging you

away from the parens patriae theory. Just speaking for myself, I agree with

you on that. The state can`t do that. But the state is also a sort of

proprietary interest in particular as the owner and operators of the

universities. And it seems to me they lineup very much the way the

plaintiffs in Mandel did.

 

UNINDENTIFIED MALE: Well, on that point our claim is that it doesn`t have a

judicially cognizable or legally protected interest in third party

immigration benefits.

 

UNINDENTIFIED MALE: That`s exactly the case that was raised in carry versus

Dem. And the majority of the court didn`t say that. That was an immigration

case. Mandel was an immigration case, both involving visa denials. And yet.

 

(CROSSTALK)

 

 

UNINDENTIFIED MALE: Sure. They have to talk about what the constitutional

interest of the state entity is. And it`s well established that there`s no

due process.

 

(CROSSTALK)

 

UNINDENTIFIED MALE: Why is it limited to the state entry? I mean, in Den,

she wasn`t asserting her own right, she was asserting her husband`s rights.

In Mandel.

 

UNINDENTIFIED MALE: She was asserting her.

 

UNINDENTIFIED MALE: Sorry. Sorry, your honor.

 

UNINDENTIFIED MALE: It was her right as the wife, claiming the laws of

consortium and so forth. But the visa denial was to her husband. In this

case, the state of Washington is claiming that it`s going to hurt the

university if it`s not able to have these people come to the university.

That`s sounds very much like the same kind of right that was asserted in

Mandel.

 

UNINDENTIFIED MALE: Well, hurting the university isn`t enough now that

we`ve turn on to the actual challenge. The state has to have a

constitutional interest because in Den it was the constitutional interest

of the U.S. citizen spouse that the court was looking at.

 

UNINDENTIFIED FEMALE: What was the constitutional interest in Pierce versus

Society of Sisters where the school was allowed to assert the rights of the

students and their families?

 

UNINDENTIFIED MALE: That was a case where – if I remember correctly, the

university was acting on behalf of – excuse me, challenging a state law

where – that affected its students. In there, you would have

constitutional interest for the students at the school. Here aliens would

not. I do want to turn to a.

 

UNINDENTIFIED FEMALE: Isn`t that the merits question for why can`t we reach

the merit question through the third party standing asserted by the

universities and the states here, and the university is part of the state?

 

UNINDENTIFIED MALE: Well, I think it all gets tied up together a little bit

because of the well-established authority that a state entity can`t assert

these kinds of rights. And even on the merits, I get – I would like to

point out that executive order relied on congressional and administrative

determination of years ago of 2015 and 2016. So it`s not an order that

discriminates on the basis of religion and there would not be about equal

protection – go ahead.

 

UNINDENTIFIED MALE: No, it`s all right. Could the president simply say in

the order we`re not going to let any Muslims in?

 

UNINDENTIFIED MALE: That`s not what the order does here.

 

UNINDENTIFIED MALE: I know.

 

UNINDENTIFIED MALE: The order relies on – I`m sorry your honor.

 

UNINDENTIFIED MALE: Could he do that?

 

UNINDENTIFIED MALE: That`s not what the order does.

 

UNINDENTIFIED MALE: Would anybody be able to challenge that?

 

UNINDENTIFIED MALE: That`s not what the order does here. I do want to get

to one key point.

 

UNINDENTIFIED MALE: Well, we would like to get to answer to the question.

Because it speaks back to the standing issue, if the order said Muslims

could not be admitted, would anybody have standing to challenge that?

 

UNINDENTIFIED MALE: I think Mandel and Den give a root to make a

constitutional challenge if there were such an order. It would be by U.S.

citizen with a connection to someone seeking entry. This is a far cry from

that situation. I`m not sure.

 

UNINDENTIFIED FEMALE: Is there a purpose in standing doctor, I mean,

standing is supposed to insure adversity. Is there any purpose for your

argument that we shouldn`t recognize this lawsuit by the states, and we

shouldn`t instead wait for an individual to bring the same claims? What`s

the purpose of that?

 

UNINDENTIFIED MALE: Well, there needs to be concrete legally protected

interest that`s judicially cognizable. I mean, across the country there are

many lawsuits where there`s clearly is standing. There are people impacted

by this order, and there are cases across the country where we don`t have

these types of standing argument. But in this case there`s a lot of law

that says states can`t step into the shoes of their citizen in this

context. We have the sort of proprietary interest are very diffused, and if

we credit them there would be almost no limitation on standing. I think in

that context it doesn`t make sense to extend standing jurist prudence to

cover this kind of situation. But I`m not sure convincing the court, so I

want to make one really key point with regards to the injunction, and that

it is over broad and should be immediately stayed to the extend is over

broad even if the court thinks some application of the order are

problematic. The state had admitted the people abroad without U.S. – prior

U.S. context do not have rights that can be asserted by them and we agree.

In a district court, the state said our claim is primarily focused on the

people who are here or have been here and left. And on appeal the state

went further explaining, quote, this case by contrast the case is on entry,

involves longtime residents who are here and have constitutional rights,

and quote. That is the nature of the state claim. The injunction goes far

beyond that.

 

UNINDENTIFIED FEMALE: The state is claiming that the executive order

violates the establishment clause. If that`s true, and it can`t meet the

standard the establishment clause would impose, then wouldn`t it be invalid

on its face?

 

UNINDENTIFIED MALE: Your honor, the state have said that their case, quote,

involves longtime residents who are here and have constitutional rights,

and quote. That is from their briefs at page ten.

 

(CROSSTALK)

 

UNINDENTIFIED FEMALE: If some of those are from their establishment clause

rights, then can`t an establishment clause claim be made by one individual

and invalidate the whole thing. I`m not sure why that`s responsive.

 

UNINDENTIFIED MALE: The scope of the injunction whether it`s nationwide or

anything else should be limited to the scope of what the state itself said.

It is kind of representing to its various theories of standing. Issuing a

broader injunction violates the principal that an injunction should only be

extensive as it`s necessary to fully remedy the claims of the party.

 

UNINDENTIFIED MALE: Don`t any of the declaration indicate that the state

universities invite foreign scholars to come to the state, make

presentations, come for a time, go back, and that they want to continue

doing that which means there would be future invitations to scholar who do

yet have a connection with this country.

 

UNINDENTIFIED MALE: I believe there`s some declaration along those lines.

But I am describing the actual statement of the extent of their suit that

they made in the brief to this court. And to extent, that is the relief

they seek. This court should immediately stay the relief that extends

broader, and that is the people who have never been to the United States.

And section five of the order which is the refugee provision and applies to

people who haven`t been here yet, and don`t have those relations with the

university, and don`t, quote, involved longtime residents who are here and

have constitutional rights. I`m in to my rebuttal time, but I would

strongly encourage the court, even if it has concerns with the government

positions, that it immediately stay the portion of the injunction that

applies outside the boundaries of the U.S. and extends beyond people who

have been – who are in the U.S. or who had been in the U.S. Thank you.

 

MICHELLE FRIEDLAND, JUDGE, COURT OF APPEALS NINTH CIRCUIT: Thank you. Mr.

Purcell?

 

NOAH PURCELL, SOLICITOR GENERAL, WASHINGTON STATE: Yes your honor. May I

please the court? I`m Washington State Solicitor General Noah Purcell on

behalf of the states of Washington and Minnesota. Your honors, it has

always been the judicial branch`s role to say what the law is and to serve

as the check on abuses by the executive branch. That judicial law has never

been more important in recent memory than it is today.

 

But the president is asking this court to advocate that law here to

reinstate the executive order without meaningful due to show (ph) review

and to throw this country back into chaos. The court should decline that

invitation.

 

This afternoon 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 it should reject it on

the merits. So, starting with appeal ability (ph) defendants have pursued

the wrong remedy like to get stay in this court rather than (INAUDIBLE). Of

course – so defendants have filed a Notice of Appeal and then a motion for

 

RICHARD CLIFTON, JUDGE, COURT OF APPEALS NINTH CIRCUIT: This is Judge

Clifton. Why should we care?

 

(CROSSTALK)

 

PURCELL: Well, for twp reasons.

 

CLIFTON: A district court – suppose a district court issue an order

requiring all the public schools in the state of Washington to be closed

because it`s unconcerned about a flu epidemic and did it in the form of a

TRO and said the TRO would only last less than 14 days, are you suggesting

that (INAUDIBLE) is the only form of relief available?

 

PURCELL: We are and personally into why you should care if you don`t mind

before – because I do think it makes it –

 

CLIFTON: You`re basically saying we shouldn`t look at it and it`s hard for

me to envision an order this sweeping that shouldn`t be subject to some

kind of appellate oversight.

 

PURCELL: Your honor, I`m not – I`m not – at all thing, you shouldn`t look

at it. Not at all. I`m just –

 

CLIFTON: You got a TRO that by its terms – we`ve now received the proposed

schedule and the district court has added an order. So we know already that

this TRO is going to stay in place for more than the 14 days contemplated

by rule 65 so why should we view this as an injunction?

 

PURCELL: Well, for some reasons your honor – first of all, in the cases

when this court has treated TRO as an injunction. The timeline of the order

was definitely longer in the (INAUDIBLE) case, the defendant have cited the

order lasted four months. Here, the order will be fully that (INAUDIBLE)

explicitly hold of the order at temporary restraining order, or the very

quick order the party to confer and agree on a briefing schedule and

briefing will be complete within 14 days of the entry of the order, it

could have been completed faster. I think I (INAUDIBLE) appeal and force to

suspend to take so much time on this, and the judge I`m sure –

 

CLIFTON: – times a day as you want but I`d suggest that this might not be

the topic that`s most important.

 

(CROSSTALK)

 

PURCELL: The only point I`d make is that (INAUDIBLE) our view. It`s just an

extreme and strict standard and the important point also is that if the

court treats this as an appeal or order, then that`s what the ultimate

appeal of this – of the ultimate ruling will be of or the court properly

treats this as an (INAUDIBLE) decision and sends 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 that`s what

it`s doing when that`s a contempt and now we let the court to ultimately

review as oppose to reviewing what the court clearly intended to be, a

temporary restraining order. I will –

 

WILLIAM CANBY, JUDGE, COURT OF APPEALS NINTH CIRCUIT: This is Judge Canby.

In your view, if we left this, you know, order place would there then be a

preliminary injunction hearing in the district court?

 

PURCELL: Absolutely your honor. Absolutely. The parties have agreed to a

briefing schedule. The preliminary injunction motions will be fully briefed

by a week from Friday. I`m confident that Judge Robart will schedule –

will rule – will schedule a hearing and rule quickly after that.

 

I`d also point out that the 14-day limit is for ex parte temporary

restraining orders by text. This one – well, part of the problem with

treating this as a temporary restraining order, your honor, that if the

defendants are right, that any time the court enters a temporary

restraining order after a hearing and receiving briefing, it`s treated as

preliminary injunction. That`s a terrible rule to create for district court

because it discourages them from hearing from the other side before

entering a temporary restraining order.

 

But your honors, I do certainly want to move on to the merits. I don`t want

to spend all your time on this. And of course – if this is treated as a

motion for stay, we still believe that the court should reject that motion.

And the most simple basis for that of course would be the lack of

irreparable harm. I heard your honors, again pressing counsel for a

statement left irreparable harm is. And so, no clear factual claims or

evidentiary claims of what that irreparable harm would be from a stay.

 

And in fact, it was the executive order itself that caused irreparable harm

to our state, to Washington and Minnesota and our residents and to many

other states and people as described in the many briefs that have been

filed. So of course, we believe that the federal government has shown no

irreparable harm from reinstating the status quo prior to the executive

order.

 

CANBY: What`s the irreparable harm to the state of Washington?

 

PURCELL: From the executive order, well, we detailed a number of

irreparable harm your honor. We had students and faculty at our state

university who are stranded overseas. We had families that were separated.

We had long time residents who could not travel overseas to their families

without knowing that they would be able to come back. We have lost tax

revenue. We have –

 

FRIEDLAND: If we don`t agree with your parents patriotic (ph) theory then

in his balancing the harms and thinking about the standard for a stay or

for a TRO are we limited to look at the proprietary interest of the state

itself or tell me what`s beyond that even if we reject the parents

patriotic (ph) theory or do you need the parents patriotic (ph) theory to

expand the harms that we can consider?

 

PURCELL: I don`t think the parents patriotic (ph) theory is essential your

honor. We`ve argued two independent grounds for standing on the proprietary

harms that were settling (ph) and on the parent patriotic, so the court is

certainly feud (ph) –

 

FRIEDLAND: Right. So, they would agree with the proprietary theory for

standing. Does that have an implications for what we can then consider when

considering the factors for TRO and for a stay or is just a way to get

standing and then we can consider anything in the public interest – that

affects the public`s interest?

 

PURCELL: I think we primarily just go to standing your honor because I

think the harms – maybe you would then consider the harms or the other

harms in the balancing of acuities (ph) in the public interest factor of

the tests I suppose as opposed in the standing test that certainly those

harms would now become irrelevant. And again, it`s now – at this point,

it`s really the federal government that`s asking the court to accept the

status quo.

 

We`ve, you know, things have slowly gone – are returning to normal to the

situation before the executive order and it`s the federal government that`s

asking the court to upend that status quo again. And your honors – so, I

think it`s fair – counsel for the government repeatedly served a type of

limit to the nature of our claim by quoting from our brief and I think that

that misrepresent our claim to some extent in a way that`s important

because the point we`re making in the brief there about long time residents

is that this case is different from Mandel and Din in an important way. And

that the federal actions here effects long time residents who have been

here.

 

Now, that`s not all it affects. It also affects people who are trying to

visit them. It affects those people trying to visit their families. The

establishment clause violation affects everyone in a sense in terms that

it, well, as the court knows the (INAUDIBLE) clear that establishment

caused violations on their own show irreparable injury. And we of course

believe that that claim is very strong. So, just on the merits, the state

has shown a strong likelihood of success. The federal government, certainly

the state – I`m sorry, have shown a strong likelihood of success and the

federal government certainly hasn`t met its burden on review of showing a

likelihood of overcoming –

 

CANBY: It`s Judge Camby, as far as the establishment clause claim goes, the

government takes the position I think that in weighing the validity of your

establishment clause claim, you`re confined to the four corners of the

instrument. What`s your comment on that?

 

PURCELL: Your honor, I think the case shows that that`s wrong. I think it

was Judge Clifton who pointed out, or Judge Freidman, I`m sorry, or maybe

both, Kerry versus Din neglecting the opposite of this court`s decision and

Cardenas exactly the opposite. But if the plaintiffs` makes plausible

allegations sufficiently supported that phase, the court can look behind

the notice. In those cases, just to be clear, those are cases where the –

the cases had to do with excluding an alien who had never been here and

have no right to be here.

 

So, if anything, the court should take a more harder look at the real

motive in a case where there are significant impacts on people who do live

here, who`ve been here for many years, who are long time residents and it

would clearly – or entitled themselves the constitutional right of due

process and equal protection unlike in Kerry and Mandel where really it

was, you know, that rights are being harmed for other people overseas. It

was people here who are asserting them. And so, if anything –

 

CANBY: So, if with that fact, the assertion – the court took up the claim

only because in the case of Kerry versus Din, Ms. Din was a U.S. citizen.

The number of people affected by the executive order, do you have any

information as to what proportion would fit within the category of

Washington residents or a lawful –

 

PURCELL: (INAUDIBLE)

 

CANBY: People with visas. I suspect it`s a small fraction.

 

PURCELL: I`ll give two points on that your honor. First of all, we are at

the pleading stage. We have not had an opportunity – we filed a complaint

and a motion for temporary restraining order and s for standing purposes,

all the (INAUDIBLE) allegations in our complaint are treated as true.

 

Now, we`ve 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 the order was originally interpreted

– excuse me your honor – defendants originally interpreted the order and

said that it covered lawful permanent residents.

 

We know there are roughly half a million lawful permit residents from these

seven countries in the United States. Now, they`ve changed their mind about

five times about whether it applies to those people in the time to see

order issued – and now they say that it doesn`t.

 

But at the time the state filed its complaint, they had not yet made their

position clear about that and I would say that that argument is not moot

yet because under the long term (ph) cessation (ph) standard until they

change the order to make that crystal clear. They can`t just say well now

we say it doesn`t apply to them, so don`t worry about it. I mean  that`s

half a million people who are in the United States who overnight at least

according to government initially, lost their right to travel, to come in

out of the country to visit their relatives. And several people –

 

CANBY: Why shouldn`t we limit the order – the temporary restraining reach

to those people who have you`ve got a strong case for like the LPR. Why

should the temporary restraining order reach beyond that? That seems to be

the government`s principal argument that it was over broad. Why isn`t it

over broad?

 

PURCELL: For three key reasons your honor. First of all, limiting the order

in that way would not address all the harms the order is causing.

(INAUDIBLE) it would not remedy the order`s violation of the establishment

clause which harms everyone in our state as well as our states themselves

by favoring one religious group over another. It also would not fully

remedy the order`s violation of equal protection clause because the order

relies on discriminatory (INAUDIBLE) to deny some of our residents who are

here the ability to receive visit from their friends and family while

allowing others to receive those visits and so on. It wouldn`t have gotten

all the harm.

 

The second point is that our – in U.S. – as in Din, the U.S. citizens who

are here who are related to these folks overseas do have rights and it will

not address their rights at all to limit it that way, and then finally your

honor, I`d just say that defendant have not explained how they would

workably implement the narrow order that they`re now proposing which they

didn`t really propose in any way before.

 

Their approach would require some sort of system for quickly approving

travel and re-entry by thousands of people from the affected countries who

live here, who study here, who work here in our businesses and go out and

have to travel for work or to visit family. And they just have not probably

described how they would be able to do that even if they were able to

address all of our harms.

 

FRIEDMAN: In evaluating your establishment clause claim, should we apply

Larson or Lemon?

 

PURCELL: Well, your honor, we think we prevailed on your either test but we

think this case is closer to Larson because in Larson, what you have is

basically neutral law. It did not mention any religious denomination by

name but it did focus on religious groups and the result of it was

distinguished between them and then I weighed and favored some and now

orders.

And that`s exactly what we have here. We have an order that on its face

doesn`t mention any denomination but that we have alleged and there is

strong evidence already to support is intended to favor some religious

groups over others and that is exactly a situation in Larson. Now, on the

other side of things, if it doesn`t mention a particular denomination on

the face of the document, then Larson doesn`t apply.

 

But that`s not what Larson itself does. In Larson, the law did not mention

a denomination. But again, we also think that we prevail under Lemon case

(ph) which has explained in some detail in our district court briefing, we

do not unfortunately have states who have to explain that argument as well

in the briefing to this court.

 

FRIEDMAN: If we were going to agree with you about Larson, is there any

reason to consider your equal protection claim or those two claims

essentially redundant?

 

PURCELL: I think if you agree with us about Larson there would not be any

need to return (ph) equal protection claim. I think that`s fair.

 

CLIFTON: Let me ask about the – we`ll call this the religious

discriminations claim to reach both the equal protection and establishment

clause claims. And I`m not entirely persuaded by the argument if only

because the seven countries encompass only I think a relatively small

percentage of Muslims. I mean, do you have any information as to what

percentage or what proportion of the adherence to Islam worldwide are

citizens or residents of those countries? My quicl penciling suggest it`s

something less than 15 percent.

 

PURCELL: I have not done that math your honor, but to be clear –

 

CLIFTON: And give that all those countries are countries that have been

previously tagged as subjects of a concern about terrorism, granted it`s

because of perhaps radical Islam sects so there might be a religious

motivation behind the terrorism. But I have trouble understanding why we`re

suppose to infer religious animus when in fact the vast majority of Muslims

would not be affected as residents of those nation and where the concern

for terrorism with those connected with radical Islamic sects is kind of

hard to deny.

 

PURCELL: Your honor, the case filed from this court and the Supreme Court

is very clear that to prove a religious discrimination, we do not need to

prove that this order harms only Muslim or that it harms every Muslim. We

just need to prove that it was motivated in part by a desire to harm

Muslims. And we have alleged that –

 

CLIFTON: But how do you infer (ph) that desire if in fact the vast majority

of Muslims are unaffected?

 

PURCELL: Well your honor, in part you cannot infer it from intent evidence.

I mean there are statements that we`ve quoted in our complaint that are

shocking evidence of intent to discriminate against Muslim given that we

haven`t even had any discovery yet to find out what else might have been

said in private.

 

I mean the public statements from the president and his top advisers

reflecting that intent. A strong evidence at certainly at this pleading

stage to allow us to go forward on that claim. And again, you know, no type

of discriminations claim requires you to show that every single person of

that category was harmed by the action. You just have to show that the

action was motivated in part by desire to harm that group and –

 

CLIFTON: – in situation where the proportion affected were less than 15

percent.

 

PURCELL: Your honor, I`m sorry, I have not thought about – like I said, I

had not done that math before the argument. I have not thought about the

case in those terms because again –

 

CLIFTON: Well let me (INAUDIBLE) to the other part of it, I mean, do you

deny that 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 a

concern from a terrorist perspective.

 

PURCELL: Your honor, Congress had determined that those – and the

executive have determined that those countries and I think it was you who

put it, should not get a waiver from a visa requirement. That is eminently

different from a complete ban on troubles (ph) of this century (ph) –

 

CLIFTON: Do you ascertain that decision by the previous administration of

our congress was religiously motivated?

 

PURCELL: No your honor. No, we are no asserting that at all.

 

CLIFTON: It would be possible to identify these countries as a source of

concern and possibly as the subject of special treatment without having

religious motivation or discriminatory intent behind it.

 

PURCELL: Well your honor, cases like McCreary from the U.S. Supreme Court

make very clear in assessing establishment clause claim, an action that

could have been perfectly legitimate if done with proper intent is not

legitimate and is unconstitutional if done with a desire to favor one

religion over another. McCreary makes that very clear. It literally says

the exact same action could be acceptable if done for some reason and not

acceptable if done for others.

 

And here we have alleged very plausibly with great detail that this was

done to favor one religious group over another and so we should be allowed

to go forward 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 –

 

CLIFTON: It`s not just an allegation at this stage. You`ve got to

demonstrate a likelihood of success. So what is it that should lead us to

conclude that you`ve got a likelihood of success of being able to prove the

religious animus you have alleged?

 

PURCELL: Well your honor for starters that the president calls for complete

ban on the entry of Muslims and then –

 

CLIFTON: And is this that ban?

 

PURCEL: No, we`re not saying that this is a complete ban on Muslims

entering the country. Obviously, I mean, they realize that I mean, this is

– well, what his advisor said on television was that he was asked for a

way to implement a narrow thing that would be legal and – but the point is

that was clearly a motivating – what we have alleged, and again, we do

show likelihood of success, but at this stage, the case are clear. Our

plausible allegations are taken as true for assessing that likelihood of

success and –

 

CLIFTON: Wait. That cannot possibly be true. We are 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?

 

PURCELL: Well your honor, what I mean is that we have assessed – that we

have alleged –

 

CLIFTON: We can allege anything. Do I have to believe everything you allege

and say, well, that must be right? That`s not standard.

 

FRIEDMAN: You`ve actually supported these allegation about the exhibits,

haven`t you?

 

PURCELL: We have supported in any of our allegations with exhibits. Yes,

Judge Friedman, we have. And I do think that`s important we have presented

an enormous amount of evidence especially considering again that we – our

time between our filing – our complaint was filed a week ago Monday

together with the temporary restraining order motion together with the

declaration. So unlike cases – we had extraordinary little opportunity to

actually gather and present evidence in the district court.

 

CLIFTON: And (INAUDIBLE) the government for exactly the same thing. Don`t

tell us you need more time because the government brought the stay motion.

Don`t tell us you need more time. You`re the one that sought the temporary

restraining order. Either you have it presented in the record or you don`t.

I mean that`s – don`t tell us maybe you`ll gather it later.

 

If you can`t demonstrate a likelihood of success of what you got in 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 evidence and lot more reference is to

allegations and I don`t think allegations cut it at this stage.

 

CANBY: I think the motion before us is a motion for stay, who here has the

burden of showing a likelihood of success?

 

PURCELL: At this point your honor, it is the federal defendants who have to

show they are likely to succeed on appeal. We had the burden at the

district court of showing a likelihood of success on the merits but the

state standard is very clear that it`s the party seeking the stay that have

to show a likelihood of success on appeal. And again, we believe that it

would be more appropriate to treat this as a (INAUDIBLE) actually.

 

They would have to show a clear and undisputable right to at least and in

part we think that because if you don`t, then it`s the district court`s

temporary restraining order that the federal government is going to

maintain, is the order to be appealed from ultimately. And that`s just not

proper given that in other form or substance or intent, was that meant to

be a preliminary injunction order. We have been to the temporary

restraining order in the district court was very clear about that. And the

district court have an opportunity to consider the preliminary injunction

briefing in the issue of preliminary injunction order that could then be

reviewed.

 

FRIEDMAN: Is there more evidence that is necessary though? I mean I think

most of your claims are going to get the (INAUDIBLE) review anyway so, I

don`t if we really need to wait for the district court to do more unless

more evidence is going to be presented?

 

PURCEL: Our point is not, well, we do intend to file for additional

declaration and evidence in the district court if given that opportunity.

But I think it`s also important to point out just for fairness, the sake of

fairness to the district court itself. The district court should have the

opportunity to enter something that it actually thinks in the preliminary

injunction order so that to assess the events to have more time to issue an

order that`s framed as and intended as a preliminary injunction order that

this court could review.

 

I guess I`ll just ask if you cannot do that, if you decide to treat this as

a preliminary injunction ruling and a stay motion, then 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 intent to seek immediate review if this court denies

the stay and of course, you know, it would be unfair to this court and to

the district court to have the federal government try to take to the U.S.

Supreme Court, you know, an order that was supposedly (ph) framed as a

temporary restraining order and that the judge understandably issued

virtually –

 

FRIEDMAN: If we were to issue a reasoned opinion, would that take care of

this concern or is there a concern beyond that?

 

PURCELL: I think that would address much of the concern your honor. I would

ask that you do either one or the other. I mean I do think it would be

better procedurally and more in keeping with the court`s precedent to turn

the case back to the district court to find this temporary restraining

order to allow us to put in the evidence that we would to 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, then I do

think a reasoned opinion would do much to address that concern.

 

FRIEDMAN: Can you tell us whether your further evidence would be more about

the ending or more about the merits or both?

 

PURCELL: Your honor, I think it would be primarily slightly more detailed

about standing at this point. Again, we haven`t – of course the difficulty

with a claim is about intent – is that we`ve made this allegations, we

haven`t had any discovery yet and realistically, you know, we will take

some time to gather that for evidence beyond public statements. And this

court has held and so has the U.S. Supreme Court that when a case has to do

with intent, you know, it`s very – it`s remarkable to have this much

evidence of intent without any discovery. I think this probably is the best

way to characterize it. So I think that the court should keep that in mind

in assessing likelihood of success.

 

FRIEDMAN: We`ve taken you down to four minutes, is there anything you`d

like to conclude with?

 

PURCELL: Well your honor, the other point – I guess there`s one other

point I would like to make. First, that we also have a statutory claim

under Immigration Nationality Act. And, I mean we believe that all of our

claims are very strong that we`re likely to just (INAUDIBLE) on all of

them, but that is a claim that we feel very likely to succeed on and that

would also potentially allow the court to avoid the constitutional issues

if they wanted to by relying on the statutory ground.

 

CLIFTON: But the statutory ground would help us only with regard to those

seeking immigrant visa, is that correct?

 

PURCELL: Yes your honor. I think that is largely correct. I think that is

basically correct, that 1152 speaks of immigrant visa and there cannot be

discrimination based on nationality in issuing those visas and by detention

(ph) –

 

(CROSSTALK)

 

FRIEDMAN: That`s not really a way to avoid all you constitutional claims

and rights because it wouldn`t cover everyone.

 

PURCELL: I throw (ph) that to your honor. It would not necessarily allow

you to avoid all the constitutional issues. I guess I just don`t want to

loose sight of that claims. We believe it as a very strong claim that the

order violates the INA and also, I guess I think it`s important to – I

think that`s an important point because it goes to what level of deference

is owed (ph) to the executive.

 

Of course the president is claiming that he`s acting pursuant to a

congressional delegation of authority. And our position is in fact, no,

he`s acting contrary to what congress has said. And even if that`s not

every single member – every single person is harmed by the order, it`s an

important factor to consider in deciding how much deference to give to the

executive on this point.

 

CANBY: Well there have been presidential orders in the past by prior

presidents that treated people based on their nation. Why shouldn`t that

suggest to us that the statute should be harmonized in a way other than

that one that you`re advocating?

 

PURCELL: Well your honor, all of those orders have been narrower. It`s

initially narrower than the one here –

 

CANBY: Practically (ph) the same though. I mean if you single out Cubans

because they`re from Cuba that`s doing via class based on nationality and I

haven`t heard any citation or reference to a legal challenge to that or an

argument that – I think that one was President Reagan`s that what he did

wasn`t appropriate. There were others that singled out individual countries

– haven`t been a challenge to that. Why should we decide that congress in

enacting 1152 since that`s the number I`ve been using, met to amended or

partially repeal 1182?

 

PURCELL: Well your honor, two points. Number one, as you pointed out there

have not been cases about those – about those issues so there`s not, well

that may have been – a much narrow practice than this. I agree that here

has been some practice to that effect, much narrower than here, but again,

every one of those examples involved much more narrow tailoring (ph) than

we have here. And also 1182 –

 

CANBY: But the problem is the same. Can you treat people based on the

nation they come from and foreign policy or foreign affairs do all the

time. We treat 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 common place in foreign affairs.

 

PURCELL: Well your honor, 1182 itself includes a number of exceptions that

allow the federal government to deem people inadmissible for security rated

reasons and other reasons, but not to make it sort of across the board –

 

 

 

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