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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