State of Washington, et al., v. Trump., et al

Filing 54

NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion for TRO held on 2/3/2017 before Judge James L. Robart.<p>Parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.<p>Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Information regarding the policy can be found on the court's website at <a href= target=_blank></a>.<p>To purchase a copy of the transcript, contact court reporter Debbie Zurn,, 206-370-8504.<p> Release of Transcript Restriction set for 5/8/2017, (DZ)

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1 1 UNITED STATES DISTRICT COURT 2 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 3 4 5 _____________________________________________________________ STATE OF WASHINGTON and STATE OF MINNESOTA, 6 Plaintiffs, 7 v. 8 DONALD TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; JOHN F. KELLY, in his official capacity as Secretary of the Department of Homeland Security; TOM SHANNON, in his official capacity as Acting Secretary of State; and the UNITED STATES OF AMERICA, 9 10 11 12 13 14 15 Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) C17-00141-JLR SEATTLE, WASHINGTON February 3, 2017 MOTION FOR TEMPORARY RESTRAINING ORDER 16 _____________________________________________________________ 17 VERBATIM REPORT OF PROCEEDINGS BEFORE THE HONORABLE JAMES L. ROBART UNITED STATES DISTRICT JUDGE _____________________________________________________________ 18 19 20 21 APPEARANCES: 22 23 24 25 For the Plaintiffs: Noah Purcell Colleen Melody Assistant Attorneys General Office of the Attorney General 800 Fifth Avenue, Suite 2000 Seattle, WA 98104 Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 2 1 Jacob Campion Assistant Attorney General of Minnesota 445 Minnesota Street, Suite 1100 St. Paul, MN 55101 2 3 4 5 6 7 8 For the Defendants: Michelle Bennett John Tyler Trial Attorneys U.S. Department of Justice Civil Division Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 3 1 THE CLERK: Case No. C17-141, State of Washington 2 versus Donald J. Trump. 3 appearances for the record. 4 5 MR. PURCELL: Noah Purcell for the State of Washington, Your Honor. 6 MS. MELODY: 7 MR. CAMPION: 8 Counsel, please make your I'm Colleen Melody, also for the state. I'm Jacob Campion, I'm an Assistant Attorney General for the State of Minnesota. 9 THE COURT: 10 MS. BENNETT: Welcome. Good afternoon, Your Honor, Michelle 11 Bennett from the Department of Justice for the defendants. 12 And with me is my colleague, also from the Department of 13 Justice, John Tyler. 14 15 THE COURT: Thank you. Counsel, welcome. A couple of housekeeping matters to attend to. We are 16 scheduled to conduct this hearing between 2:30 and 4 o'clock. 17 I'm going to have some very brief housekeeping matters at the 18 start, of which I've already used eight of my ten allotted 19 minutes. 20 given, in effect, 30 minutes to each side. 21 wishes, they can reserve some of their time for rebuttal. 22 They're going first. 23 The state will go next. I will tell you that I've If the state The federal government is going second. Your prepared remarks, which I'm sure are all very 24 thoughtful and quite helpful, are going to get swallowed by 25 questions, because I have questions that are essential to our Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 4 1 resolution of this case and I need to get those answered. 2 be prepared for pretty much an interruption from the start. 3 So And at around 3:45, having followed the direct 4 presentations, and rebuttal if the state has time left, 5 you're going to hear from the court. 6 orally rule from the bench but in very conclusory terms. 7 we will get a written order to follow, so that if you want to 8 have the Ninth Circuit grade my homework, you'll have 9 something that you can get on file there promptly. 10 11 12 It's my intention to So, that will be the order of the day. And And I'm going to hear from the state first, please. Mr. Purcell, why don't we do one other item. Technically 13 the motion that's before me started off as Docket 3, which 14 was exclusively the State of Washington, and is now Docket 15 19, which is both the states of Washington and Minnesota. 16 We've also had a series of requests to file amicus briefs, 17 and I intend to grant those. 18 ACLU; Docket 42, the Service Employees Union; Docket 45, 19 amicus filed by the Amicus Law Professors. 20 Three Amigos. 21 the Washington State Labor Council. 22 which is the amicus, Americans United For Separation of 23 Church and State. 24 25 So I'm granting Docket 26, the Sounds like the Let's see, Docket 46, I may have mentioned, is And, finally, Docket 48, Those motions are granted. Please note that it's not a motion for intervention, it's simply authorization to file the amicus brief in this Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 5 1 particular question. 2 Mr. Purcell. 3 4 MR. PURCELL: Thank you, Your Honor. Good afternoon. In the weeks since President Trump signed the Executive 5 Order at issue here, six federal judges around the country 6 have enjoined or stayed parts of it in response to action by 7 particular plaintiffs, finding a likelihood of success on the 8 merits of the challenges. 9 Minnesota are asking you to do the same here today and to 10 11 The states of Washington and enjoin the parts of the order that we challenge. The order is illegal and is causing serious immediate 12 harms to our states, to our state institutions, and to our 13 people, and enjoining the order is overwhelmingly in the 14 public interest. 15 standard for a temporary restraining order, I won't waste 16 your time. So, you're familiar, of course, with the 17 THE COURT: 18 MR. PURCELL: You can dispense with that. I want to first address the likelihood 19 of success on the merits, including the threshold issues that 20 the government has raised, including standing, deference to 21 national security interests, and the facial versus as-applied 22 nature of the challenge. 23 THE COURT: 24 MR. PURCELL: 25 THE COURT: Well, let me try and derail you here. Sure. I'd like to take this in terms of equal Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 6 1 protection first. 2 MR. PURCELL: 3 THE COURT: Okay. And, in particular, how does the equal 4 protection claim apply to all of the order, which is the 5 120-day-part found in paragraph or Section 5A. 6 ban discriminate in any way, or violate equal protection, 7 when it's an across-the-board ban? 8 9 MR. PURCELL: How does this You're talking about as to refugees? So, our claim about refugees is primarily that it is 10 religiously motivated discrimination, and that the order is, 11 in large part, motivated by religious animus. 12 doesn't require us to show that everyone harmed by the order 13 is of a particular faith, it just requires us to show that 14 part of the motivation for issuing the order was religious 15 discrimination. 16 THE COURT: So that Then I'm going to try to put words in 17 your mouth. 18 making an equal protection challenge to the refugee ban? 19 Are you telling me, then, that you are not MR. PURCELL: I would say, Your Honor, that we have a 20 -- I would say the focus there is on the religious 21 discrimination aspect. 22 THE COURT: 23 MR. PURCELL: 24 25 We're going to get there next. Okay. Would you like me to address that further? THE COURT: No. Let's move on to my second question Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 7 1 on equal protection, then. 2 MR. PURCELL: 3 THE COURT: Okay. Do refugees or visa holders that have 4 never physically entered the country have equal protection 5 rights under the constitution? 6 MR. PURCELL: Your Honor, that is not the focus of 7 our claim. I think the answer is probably no. But they do 8 have rights to some constitutional protections. 9 certainly their friends and family who are here -- and we're And 10 just talking about refugees now, not aliens, for example, who 11 might have been sponsored by a university or something like 12 that to come here. 13 THE COURT: 14 MR. PURCELL: Right. Our claim is that -- our claim is 15 primarily focused on the people who are here or have been 16 here and left, their families, their employers and the 17 institutions here. 18 THE COURT: All right. Has any court ever set aside 19 an immigration law or regulation on equal protection grounds 20 based on rational review? 21 centerpiece, but you've pled it and so you're going to get 22 questioned about it. 23 MR. PURCELL: I understand it's not the We did plead it, and that's just fine, 24 Your Honor. I was planning to start this morning with due 25 process -- or this afternoon -- but equal protection is just Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 8 1 2 fine. I am not aware of an immigration order being set aside on 3 equal protection grounds. On the other hand, I'm not aware 4 of any Executive Order quite like this one, that there's so 5 much evidence, before there's even been any discovery, that 6 it was motivated by animus, religiously targeted, and just 7 utterly divorced from the stated purposes of the order. 8 I'm happy to talk about that more in terms of -- the 9 government is asking for an extraordinary level of deference And 10 here, essentially saying that you can't really look at what 11 were the real motives for the order; you can't test its 12 legality. 13 factually. And we just think that's wrong, legally and 14 And if you'll spare me for just a minute, indulge me for 15 just a minute and let me -- there's three -- there's a legal 16 point and a factual point. 17 review executive action that has to do with national security 18 for constitutional violations. 19 Hamdi, Hamdan, Boumediene, the Supreme Court routinely 20 reviews -- you know, those were cases involving enemy 21 combatants being held offshore. 22 largely involves people who have been here, long-time 23 residents who still live here and have lost rights. 24 we're asking the court to review that claim. 25 The legal point is courts often If you look at cases like Here we have a case that And They also suggest, Your Honor, at page 21 to 22 of their Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 9 1 brief, based on a case called Kleindienst and Kerry v. Din, 2 that you can't sort of look behind the stated purposes of the 3 order. 4 legitimate and bona fide reason for excluding an alien, the 5 court will not look behind that reason. 6 They say that if the President gives a facially But there's two fundamental problems with that argument, 7 Your Honor. First of all, those cases dealt with the 8 President's power to exclude aliens who were not here, had 9 not been here, and had no right to come back. That is not 10 this case, where we have a case involving people who have 11 been here, have rights to remain here and rights to return. 12 And in Justice Kennedy and Alito's concurring opinion in 13 that Kerry v. Din case, which is a controlling opinion, they 14 held that they would look behind stated motives, even for 15 exclusion of someone who had never been here, if the 16 plaintiff plausibly alleged with sufficient particularity an 17 affirmative showing of bad faith. 18 Din opinion. 19 the Cardenas opinion, 826 F.3d, 1164. 20 21 And that's at 2141 of the And the Ninth Circuit endorsed that standard in THE COURT: Well, let me stop because we'll keep in this area. 22 MR. PURCELL: 23 THE COURT: Okay. Do you not see some distinction between 24 election campaign statements and then subsequently an 25 election and then an Executive Order which is issued with Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 10 1 comment at the time the Executive Order is issued? 2 to me that it's a bit of a reach to say: 3 clearly anti-Muslim or anti-Islam, based on what he said in 4 New Hampshire in June. 5 MR. PURCELL: It seems The President is Well, Your Honor, it might go to the 6 weight to give the evidence, I suppose. 7 it's sort of off the table, especially given that we're only 8 a week into -- well, two weeks now, I suppose, but the order 9 was issued a week after the campaign -- well, after the 10 But I don't think President took office. 11 THE COURT: 12 Inauguration. MR. PURCELL: After the inauguration, I'm sorry. So 13 it's not as though those are completely irrelevant. 14 moreover -- and, again, this is before any discovery -- we 15 have the President's advisor saying on national television 16 that, you know, the President asked him to come up with a 17 Muslim ban -- this was after the election -- asked him to 18 come up with a Muslim ban in a way that would make it legal. 19 And that that's what they did. 20 21 THE COURT: Does the Executive Order mention the word "Islamic" or "Muslim?" 22 MR. PURCELL: And Let's stay on religious grounds. No, it does not, Your Honor. It does 23 not. But when we're arguing about religiously motivated 24 targeting, again, the burden is not to prove that it affects 25 every single person of the Islamic faith. The burden is to Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 11 1 prove that a desire to discriminate based on religion was one 2 motivating factor in the adoption of the order. 3 And, again, we're at the pleading stage, four days after 4 having filed our complaint, no discovery, and there's already 5 an overwhelming amount of evidence to suggest that that's the 6 case, that it was, at least in part, motivated by religion. 7 Going back briefly just to the national security. Part of 8 the evidence of that, Your Honor, is that the tie to the 9 stated purpose of national security is so tenuous here. I 10 mean, the President apparently had not decided whether the 11 order applied to lawful permanent residents before it was 12 issued. 13 permanent residents from these seven listed countries in the 14 United States. 15 our safety or they're not. 16 about that five times since Friday. 17 said that it did apply to them, and many of those people were 18 excluded from returning to the country. 19 of Homeland Security reiterated that it applied to them. 20 Then the Secretary said that it didn't. 21 all in our complaint, by the way -- and then the White House 22 spokesperson said it did not. 23 counsel has now issued authoritative guidance, whatever that 24 means, that although there could have been reasonable 25 confusion about what the order meant, it wasn't meant to And there's 500,000, roughly 500,000 lawful Either those people are an enormous threat to And they've changed their mind You know, first they Then the Department And then -- this is And then the White House Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 12 1 2 cover those people. So the point is, if they were an enormous security risk, 3 you would think that they would have made up their mind about 4 that before issuing the order. 5 And the second point, Your Honor -- 6 THE COURT: 7 MR. PURCELL: 8 THE COURT: 9 Well, before we leave that one. Yeah. What do you say to the argument that the seven countries that were designated -- and I'll quote the 10 language -- have been designated as, "Countries the 11 government of which has repeatedly provided support for acts 12 of international terrorism under 8 U.S.C. 1187." 13 that provide a rational basis for the Executive Order? 14 MR. PURCELL: Wouldn't Your Honor, that would provide a cover, 15 in our view, for -- that was maybe one motivating factor. 16 But when you look at the standard of proving a religious 17 discrimination claim, again, you can't just accept at face 18 value the stated purposes. 19 there's even been any discovery, there's so much evidence 20 that it was not targeted at the concerns stated. 21 order applies to infants, it applies to senior citizens, it 22 applies to students and faculty at our state universities who 23 have never been accused of any wrongdoing. 24 25 Especially where again, before I mean, the The main point I guess I'm getting at here is that the idea that you just can't review, can't review the real Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 13 1 reasons for this order, or even ask whether there are real 2 reasons beyond what is stated, is just not supported by the 3 case law. 4 government is saying you cannot look behind the stated 5 reasons, and we're saying that you can. 6 support that argument that they're making. 7 8 9 So we're asking you to -- the main point is, the THE COURT: The case law doesn't Would you agree with me that it is only Section 5 that mentions religion? MR. PURCELL: It's only Section 5 that mentions 10 religion. We would say it's not only Section 5 that is, in 11 part, motivated by religion. 12 THE COURT: And the part of that is this resumption 13 of the refugee program after, I think it's 90 days for that 14 provision. 15 minority religion in a country." 16 clause cause of action then extend beyond Section 5? 17 Then it says, minority -- "Practicers of a MR. PURCELL: Does your establishment I think our establishment clause claim 18 is focused on that section. But I think that both three and 19 five are motivated in part, our allegation is, by preferring 20 one religious view over another. 21 cited in our brief makes clear that you don't need to have a 22 distinction between named religions on the face of the order 23 for it to be an establishment clause violation. 24 it didn't name any religions. 25 different religious groups would qualify for a tax exemption. The Larson case that's In that case It just set standards for how Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 14 1 And the court said that, combined with the effects on the 2 religious groups, was enough. 3 4 Your Honor, I want to spend some time on our due process claim. 5 THE COURT: 6 MR. PURCELL: 7 THE COURT: 8 MR. PURCELL: 9 10 11 Okay. Excellent. Trust me. Okay. And also standing. But if I could turn to the due process claim. THE COURT: Well, before you go there, let's finish establishment. 12 MR. PURCELL: 13 THE COURT: 14 We're going to get there. Okay. 5(b) isn't implemented for, I think it's 100 days. 15 MR. PURCELL: 16 THE COURT: Um-hum. Why should I take this up at this time, 17 as opposed to, if you're coming back on a motion for 18 preliminary injunction, deal with it when it's somewhat more 19 concrete? 20 MR. PURCELL: Well, Your Honor, we're asking you to 21 temporarily restrain what we thought was a narrow subset of 22 the categories that we thought were motivated by these 23 unconstitutional -- that violated the constitution. 24 want to have further thought about whether -- so we're 25 suggesting that the action itself of banning the refugees, If you Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 15 1 and the Syrian refugees indefinitely, and the selection of 2 the countries, was partially religiously motivated. 3 want to wait to rule on whether 5(b) itself, and that 4 favoritism approach going forward is a constitutional 5 violation, I suppose that would be fine. 6 does not necessarily require immediate injunction. 7 is evidence, I think that provision is evidence, of the 8 religious underpinnings of the order. 9 10 11 THE COURT: All right. If you We're not -- that But that Why don't you move on to due process, since I've used up a fair chunk of your time. MR. PURCELL: So I think the most obvious way in 12 which the order violates the constitution is its violation of 13 the due process clause. 14 everyone in this country, including immigrants. 15 of cases make that clear. 16 THE COURT: The due process clause protects And a number So is it your position that refugees and 17 other aliens who are presently outside the country are 18 covered by due process? 19 MR. PURCELL: Your Honor, the Supreme Court has said 20 that aliens who are not in the country and have never been 21 here, the only process they're entitled to is what Congress 22 provides. 23 our claim. 24 here and have, overnight, lost the right to travel, lost the 25 right to visit their families, lost the right to go perform So we're not -- again, they're not the focus of The focus of our claim is on people who have been Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 16 1 research, lost the right to go speak at conferences around 2 the world. 3 time and happened to be overseas at the time of this order, 4 which came with no warning whatsoever, and suddenly lost the 5 right to return to the United States. 6 And also people who had lived here for a long So there's a series of cases, and we cited some of these 7 in our brief, Your Honor, but I'd like to -- given that 8 there's only been a short time since the government's filing, 9 I direct you to cases like Landon v. Plasencia, 459 U.S. 21. 10 THE COURT: 11 MR. PURCELL: You might want to slow down a little bit. Sorry. Landon, 459 U.S. 21, Rosenberg, 12 374 U.S. 449, that make very clear that people who have lived 13 here legally for some period of time and then leave 14 temporarily, are protected by the due process clause in 15 attempting to return, and cannot have their right to return 16 taken away without some sort of process. 17 And that's effectively what happened here to thousands of 18 people in Washington, including hundreds of students at our 19 state universities, and faculty. 20 no process whatsoever, lost these important rights that they 21 had. 22 23 They just overnight, with Now, the federal government -THE COURT: A case from your list of cases is 24 Katzenbach, which the government cites extensively for the 25 proposition that you've lost that argument. Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 17 1 MR. PURCELL: 2 THE COURT: 3 MR. PURCELL: Right. How do you respond to that? Well, they're wrong, Your Honor, for a 4 number of reasons. 5 that case because we're a state. 6 state as state, as we made clear in our standing brief, our 7 claim is the state as proprietor and the state as parens 8 patriae on behalf of the people of the state. 9 as a proprietor, I think is the obvious way that that 10 11 First of all, so they say we can't cite But our claim is not the So the state argument of theirs is incorrect, Your Honor. We are asserting the due process rights on behalf of the 12 people of the state who are harmed, and on behalf of the 13 state institutions that they attend. 14 University of Washington and Washington State University, as 15 well as our community colleges, are arms of the state. 16 very clear under state law they're arms of the state. 17 on their behalf. 18 denied due process rights pursuant to this order. 19 So, for example, the It's We sue And their students and faculty are being And if you look at cases like Pierce v. Society of 20 Sisters, 268 U.S. 510, and the cases cited in footnote three 21 of our standing brief, it's very clear that schools and 22 universities have standing to bring challenges based on harms 23 to their students. 24 standing to bring a due process claim. 25 So that's the first way in which we have Second, Katzenbach, of course, is before Massachusetts v. Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 18 1 EPA and before the significant change in parens patriae 2 standing that that case announced, as detailed in the amicus 3 brief of the law professors and as explained in 4 Massachusetts v. EPA itself. 5 out of Puerto Rico cited in our briefing, makes it very clear 6 that states can bring parens patriae claims asserting 7 discrimination sort of causes of action. 8 Massachusetts v. EPA makes it very clear that the sort of 9 Katzenbach-Mellon limitations on state standing have been 10 11 12 13 So the Snapp decision, the case And then scaled back, if not eliminated altogether. THE COURT: What's your view of the Fifth Circuit opinion in United States v. Texas? MR. PURCELL: Well, it is a strong basis for standing 14 here as well. 15 Act claim. 16 claim here. 17 temporary restraining order motion. 18 a number of claims actually, in our complaint, that we think 19 we're likely to prevail on, that we just didn't have time or 20 space to brief in the 48 hours and 24 pages of the temporary 21 restraining order motion. 22 That was primarily an Administrative Procedure And we do have an Administrative Procedure Act We didn't have space or time to brief it in our And I should say there's And that's one of them, Your Honor. And that case makes 23 very clear that the harms to the state that we're suffering 24 here are sufficient to generate standing in a proprietary 25 capacity. There the state was arguing, essentially, added Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 19 1 driver's license costs that were sort of unspecified, the 2 exact amount. 3 tax revenue, harms to our state universities in terms of 4 wasted money that was spent sponsoring people to come here 5 and teach and perform research, wasted money that was spent 6 buying tickets for people who will no longer be able to go 7 and speak or research at conferences, a wide range of 8 proprietary harms, Your Honor, that do suffice under U.S. v. 9 Texas to show standing. 10 And here we have claimed, very clearly, lost THE COURT: Let's go to the INA claim, and then leave 11 you some time to actually talk to me. 12 of action under Section 8 U.S.C. 1152 (a)(1)(A)? 13 MR. PURCELL: Do states have a right Your Honor, I'm sorry, I honestly do 14 not have a good answer to that question. I think we can 15 assert -- we should be allowed to assert the rights of our 16 people here as parens patriae who are harmed by 17 discrimination, the nationality discrimination embodied in 18 this order. 19 primarily supplements our other claims by showing that this 20 action, the President's action here, is not endorsed by 21 Congress. 22 It's actually contrary to what Congress has said about how 23 these sorts of decisions are supposed to be made, which 24 further undermines the federal government's argument to 25 deference to the President's decisionmaking in this context. But the INA -- I think I would say our INA claim It's not consistent with congressional directives. Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 20 1 2 THE COURT: All right. You've got ten minutes. I won't ask you any more questions. 3 MR. PURCELL: 4 you ask me questions. 5 Your Honor, I'm perfectly happy to have So I guess, first of all, I want to overall emphasize that 6 we have two distinct bases for standing here in terms of our 7 proprietary interests, the harms to the University of 8 Washington, Washington State University, our other state 9 colleges and universities, and then our parens patriae claim. 10 11 Those are real harms in both senses. The federal government really has offered no meaningful 12 response to our claims of proprietary harm to the 13 universities. 14 insufficient, in some of their pleading, but all the cases 15 they cite predate Massachusetts v. EPA, and they're 16 inconsistent with, for example, the Fifth Circuit's approach 17 in U.S. v. Texas. 18 licenses is sufficient to generate standing, there's no 19 reason why the lost revenue of losing visitors who would come 20 here and spend money should be insufficient to generate 21 standing. 22 of the same coin. I know they've claimed that tax harms are If the added cost of issuing driver's More revenue versus less revenue, it's two sides 23 And as to the universities, the federal government claims 24 that these harms are "illusory" because most of the people we 25 allege who will be affected actually won't be. But there's Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 21 1 just no evidence to support that. So they say now -- again, 2 their position has changed five times. 3 ill intent towards counsel. 4 control over this. 5 about what the Executive Order means has changed repeatedly 6 since the order was issued. 7 long-term lawful permanent residents or doesn't apply to 8 them. 9 event, we have hundreds of students and faculty at our And I don't mean any I know they don't have any But the federal government's position And so now they say it protects But that wasn't their initial position. And in any 10 universities who are here on visas who -- again, overnight -- 11 lost the right to travel for any number of purposes or to 12 return to the country. 13 The only other point I'd make, Your Honor, they make much 14 of the idea that this is a facial challenge, we can't show 15 that it's illegal in all applications. 16 Your Honor. 17 -- in analyzing whether something is a facial or as-applied 18 challenge, you look at whether it's a challenge to the 19 entirety of the action or to parts of it. 20 like Hoye v. Oakland, 653 F.3d 835. And that's incorrect, The Ninth Circuit has repeatedly held that when And that's cases 21 Here we're challenging only parts of the Executive Order. 22 It's very clear that this is an as-applied challenge to parts 23 of the order. 24 every application. 25 Your Honor, in oral argument. We don't need to show it's unconstitutional in I apologize for citing so many cases, I don't normally do that. Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 22 1 It's just that, of course, we had no opportunity to file a 2 response in only a short period of time from when they filed. 3 And the last thing I'd say, Your Honor, for now -- and 4 then I'd just like to reserve the remainder of my time -- is 5 that the establishment clause. 6 of the original purposes of it was to protect the states 7 against the federal government choosing a national religion 8 and imposing it on the states. 9 would not have standing to challenge a national government -- The establishment clause, one So the idea that the state 10 well, the President, anyway, expressing a preference is just 11 -- it makes no sense. 12 And, again, you know, I can't cite you to a case where a 13 state sued the federal government over an establishment cause 14 violation, but I also can't cite you to an Executive Order 15 ever before quite like this one or the circumstances that we 16 are facing today. 17 So I'd like to reserve the remainder of my time and just 18 conclude by saying, the question is likelihood of success, 19 irreparable harm, and the balance of equities. 20 shown a strong likelihood of success, as the other courts 21 have ruled. 22 temporarily. We feel we've And we'd ask you to enjoin this order Thank you, Your Honor. 23 THE COURT: 24 MS. BENNETT: 25 THE COURT: Ms. Bennett, are you arguing? Yes, Your Honor. Thank you for coming. I thought your Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 23 1 brief was extremely well done. 2 MS. BENNETT: 3 It was helpful. Thank you, Your Honor. May it please the court. Your Honor, for some of the 4 reasons we mentioned we think we have very good reasons why 5 the state is not likely to prevail on the merits. 6 like to start with standing, which I think distinguishes this 7 case from some of the other cases that have been filed around 8 the country. 9 THE COURT: But I'd Well, let's concentrate on standing. 10 Tell me why you think that the Fifth Circuit is wrong, in 11 what seemed to be fairly marginal circumstances, and they 12 strongly come out, without hesitation or doubt, to find 13 standing? 14 MS. BENNETT: 15 the Fifth Circuit's decision. 16 case would be distinguishable. 17 because we do think it has to be a particularized impact on 18 the state. 19 the state itself had injury. 20 parens patriae capacity. 21 Well, Your Honor, we do disagree with Of course we also think that We disagree with the decision In United States v. Texas, the court found that THE COURT: It wasn't an injury in its And it was basically that the -- Let me stop you. In the State of 22 Washington, and I can't speak to Minnesota, but both the 23 University of Washington and Washington State are considered 24 parts of the state government. 25 direct consequences, damages to them. And they've cited a litany of That's compared to, Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 24 1 what, the $13.40 in Texas for issuing a driver's license? 2 MS. BENNETT: Well, Your Honor, in Texas it was a 3 monetary injury, right? 4 talks about to its universities, in particular, are 5 reputational harm or that students won't come there, that it 6 will undermine their diversity. 7 that define lack of diversity at a university, or something 8 like that, even assuming they could prove that as an injury. 9 THE COURT: Here the injuries that the state They don't cite any cases I don't think that's their argument. 10 think they're talking about direct financial harm in their 11 I declarations. 12 MS. BENNETT: I mean, I don't read them that way, 13 Your Honor. I didn't see any sort of calculations of 14 financial harm like there were in Texas. 15 faculty members that might not be able to teach; although 16 most of those were lawful permanent residents that actually 17 were not affected by the order. 18 possibility of some students that might not be able to 19 travel. 20 the only place that I saw numbers of monetary losses was in 21 their allegations about lost tax revenue. 22 explained in our brief, those are -- lots of courts have 23 recognized that sort of generalized grievances like that are 24 not cognizable injuries, analogizing it to the 25 taxpayer-standing context. They talked about They talked about the Most of it was very speculative. I didn't see -- And as we Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 25 1 THE COURT: If I have a student who is admitted to 2 one of those two universities, who is in a country who is now 3 unable to come to the United States, enroll and pay tuition, 4 is that not a direct financial harm? 5 MS. BENNETT: Your Honor, we don't think it's a 6 direct financial harm to the state. 7 perhaps given the circumstances, and it would depends on the 8 circumstances, could be a harm to the individual. 9 THE COURT: We think it's -- I mean, But the -- No, they're benefitting, they're not 10 paying that outrageous tuition. 11 University of Washington, part of the State of Washington, or 12 Washington State, part of the State of Washington, who are 13 not receiving these dollars from this student who, under the 14 Executive Order, can't get into the United States. 15 MS. BENNETT: You know, it's the Well, Your Honor, I mean, first of all, 16 I'll point out that I'm not sure they make those allegations 17 of a specific student. 18 that injury is too far down the chain of causation. 19 it's an incidental impact. 20 standing in that circumstance, it's hard to imagine a federal 21 law or a federal action that wouldn't in some way down the 22 line have effect on states, which would essentially allow 23 states to sue to challenge any federal law if they could 24 point to a way in which some individual was affected by the 25 law because it applied to them, and then that individual, the But I would also say that we think That And if Your Honor were to find Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 26 1 effect on that individual had some effect on the state. 2 we think that that's too expansive of a definition of 3 standing. 4 THE COURT: And Well, the odd couple of the Fifth Circuit 5 in their opinion in United States v. Texas, that seems to me 6 to, you know, basically follow the lines of what you just 7 said is improper. 8 MS. BENNETT: Well, Your Honor, as I said, we 9 respectfully disagree with the Fifth Circuit's decision and 10 note, of course, as Your Honor knows, that you're not bound 11 by that decision. 12 Plaintiffs haven't cited anything in the Ninth Circuit 13 that relies on that sort of injury. 14 briefs, some of the cases they cited, I believe the one 15 school case that they cite involved a bank that had 16 terminated its loan guarantee program with the school. 17 that was a more direct effect on the school. 18 the government is not regulating in any way the school. 19 government's interactions are with individuals. 20 are, perhaps, down-the-line consequences on the state, 21 although we think many of those, if not all of them, are 22 speculative. 23 THE COURT: As we explained in the So Whereas here The And they Let me move you off of standing, if you 24 would. Given the breadth of authority of the Executive in 25 the area of immigration, do you acknowledge any limitation on Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 27 1 his or her power? 2 3 MS. BENNETT: Your Honor, I don't think Your Honor needs to answer that question to decide on this case. 4 THE COURT: 5 MS. BENNETT: No, but it seemed like a good question. I don't think it would be wise to sort 6 of opine on what the extent of the Executive's power is. 7 Here we have specific circumstances where the President has 8 issued this Executive Order. 9 that Congress gave him in Section 212(f) of the INA that It was pursuant to authority 10 specifically allows him to suspend the entry of certain 11 aliens or class of aliens when he finds that it would be 12 detrimental to the interests of the United States to allow 13 them in. 14 So here we have the President acting pursuant to power 15 that Congress gave him, which means, under the Youngstown 16 Steel seizure cases, he's acting at the apex of his power. 17 And the Executive Order, as Your Honor mentioned, is 18 tied -- the countries that it applies to -- is tied to 19 countries that Congress previously, for two of them, 20 explicitly designated as countries of concern, and that 21 Congress designated authority to the President to -- or, 22 sorry, to federal agencies, to designate other countries. 23 And under the prior administration, the remaining five 24 countries were designated as areas of concern. And so we 25 think in the context of, certainly in the context of this Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 28 1 case, the President is acting well within his -- the 2 authority that Congress has given him. 3 not opine on what he may or may not be able to do beyond 4 that. 5 And Your Honor need Your Honor, with respect to the plaintiffs' argument that 6 the President's authority is somehow limited by Section 7 1152(a)(1)(A) of the INA, as we explained in our briefing, we 8 don't read that as a limitation on the President's expansive 9 power under 212(f). As we noted in our briefs, there have 10 been other presidents that have exercised the power in 212(f) 11 in ways that distinguish between nationalities, as the 12 President has done here. 13 We also mentioned that these distinctions between 14 nationalities were made explicitly by Congress in 8 U.S.C. 15 1187. 16 to here. 17 limitation on the President's power. 18 That's what the President has tied the Executive Order And so we don't understand 1152(a) as imposing a If it did, as we pointed out in our brief, you can imagine 19 a situation where basically that provision would prevent the 20 President from suspending the entry of aliens from countries 21 that the United States has to be at war with. 22 think that's a fair reading of the statute. 23 212(f) applies in situations where the President has made the 24 determination that the entry of certain aliens would be 25 detrimental to the United States, and situations where And we don't So we think that Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 29 1 that -- when that determination has not been made, then the 2 other provision in 1152 applies to prevent these 3 discrimination -- to bar certain types of discrimination in 4 the issuance of immigrant visas. 5 THE COURT: I'd like to move you along to equal 6 protection if we can. 7 MS. BENNETT: 8 THE COURT: 9 10 11 doesn't apply. Sure. You strongly urge that strict scrutiny Can it ever apply in the immigration context, in the government's view? MS. BENNETT: Your Honor, again, I hesitate to opine 12 on whether it can ever apply as opposed to whether it applies 13 under the circumstances of this case. 14 clear that distinctions based on nationality, which is what 15 this Executive Order does, in the immigration context, are 16 completely valid and legitimate and do not violate the 17 Constitution. 18 equal protection violation. 19 The courts have made And so in the context of this case, there's no With respect to the argument of religious discrimination. 20 Again, it's a little bit confusing whether the -- exactly 21 what the state's religious discrimination claim is. 22 understand it to be limited to Section 5 of the Executive 23 Order, which is about refugees. 24 reasons Your Honor mentioned, we think the claim is unripe. 25 But it also -- that provision doesn't discriminate against We And in that context, for Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 30 1 religion. 2 THE COURT: 3 it favors one over another. 4 MS. BENNETT: Well, no. It may not discriminate, but It doesn't, Your Honor. It sets up a 5 system -- it doesn't even set up a system. It says, 120 days 6 from now, once the suspension of the refugee program is back 7 on track, that the executive branch, the Secretary of 8 Homeland Security and Secretary of State, are to make changes 9 to the extent permitted by law to the prioritized refugee 10 claims based on religious-based persecution where the 11 religion is a minority religion in that individual's country 12 of nationality. 13 And, Your Honor, that provision doesn't just apply to the 14 seven countries that are designated in Section 3 of the 15 order. 16 that, while it might be true that the seven countries are 17 majority of Muslims, there are other countries where Islam 18 would not be the majority religion. 19 the minority religion might be Islam. 20 It applies to all countries. THE COURT: So you can imagine And in those contexts But under the establishment cases, I 21 think you're arguing against your own position, aren't you? 22 What you're saying is, in any particular country we're going 23 to reward someone for belonging to a particular faith or 24 practicing a particular faith. 25 MS. BENNETT: Well, Your Honor, I don't think we're Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 31 1 saying that. 2 permitted asylum claims or other types of claims in the 3 immigration context based on religious persecution. 4 government is not doing anything different than what it's 5 already done. 6 essentially accommodating religion, which the government has 7 always done. 8 9 The government has long prioritized or So the It's not about the particular religion, it's But as Your Honor -- as we said before, this is something that the President has directed executive agencies to look 10 into this matter going forward. 11 until 120 days passes, but we think even beyond that, because 12 until it's actually implemented we don't know what it's going 13 to look like, that there's no establishment-cause problem. 14 THE COURT: All right. And so until -- certainly I think I understand your 15 argument. 16 same thing, trying to leave you some time to just talk as 17 opposed to being interrupted. 18 Let's talk about Section 3. I'm going to do the The rationale for Section 3 is invoking 9/11. And my 19 question to you is: Have there been terrorist attacks in the 20 United States by refugees or other immigrants from the seven 21 countries listed, since 9/11? 22 MS. BENNETT: Your Honor, I don't know the specific 23 details of attacks or planned attacks. I think -- I will 24 point out, first of all, that the rationale for the order was 25 not only 9/11, it was to protect the United States from the Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 32 1 potential for terrorism. 2 I will also note that the seven countries that are listed 3 in the Executive Order are the same seven countries that were 4 already subject to other restrictions in obtaining visas that 5 Congress put in place, both by naming countries, Syria and 6 Iraq, and that the prior administration put in place by 7 designating them as places where terrorism is likely to 8 occur, or -- the specific factors are whether the presence in 9 a particular country increases the likelihood that an alien 10 is a credible threat to U.S. security or an area that is a 11 safe haven for terrorists. 12 13 THE COURT: Well, let me walk you back, then. You're from the Department of Justice, if I understand correctly? 14 MS. BENNETT: 15 THE COURT: Yes. So you're aware of law enforcement. How 16 many arrests have there been of foreign nationals for those 17 seven countries since 9/11? 18 MS. BENNETT: 19 information. 20 Your Honor, I don't have that me off the hook. 21 I'm from the civil division if that helps get THE COURT: Let me tell you. The answer to that is 22 none, as best I can tell. So, I mean, you're here arguing on 23 behalf of someone that says: 24 States from these individuals coming from these countries, 25 and there's no support for that. We have to protect the United Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 33 1 MS. BENNETT: Your Honor, I think the point is that 2 because this is a question of foreign affairs, because this 3 is an area where Congress has delegated authority to the 4 President to make these determinations, it's the President 5 that gets to make the determinations. 6 have authority to look behind those determinations. 7 essentially like determinations that are committed to agency 8 discretion. 9 And the court doesn't They're And we do think that -- despite plaintiffs' claim -- that 10 Kleindienst v. Mandel is directly on point. 11 corners of the Executive Order offer a facially legitimate 12 and bona fide reason for it, which they do here, that the 13 court can't look behind that. 14 THE COURT: And if the four Well, counsel, I understand that from 15 your papers, and you very forcefully presented that argument. 16 But I'm also asked to look and determine if the Executive 17 Order is rationally based. 18 implies that to some extent I have to find it grounded in 19 facts as opposed to fiction. 20 MS. BENNETT: And rationally based to me Well, Your Honor, we actually don't 21 think you are supposed to look at whether it's rationally 22 based. 23 legitimate, and that there are some cases that say the court 24 would have to find it wholly irrational. 25 Honor, I would point to the fact that Congress itself has We think that the standard is, again, facially And again, Your Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 34 1 specifically designated two of these countries as areas of 2 concern with respect to terrorism. 3 Administration, the executive branch, designated the 4 remaining five. 5 is, in that regard, saying anything new about these being 6 countries of concern as it regards terrorism. 7 And the Obama And so it's not that this Executive Order THE COURT: Well, let's go back to something you were 8 starting to get around to when I interrupted you. 9 going to argue Katzenbach. 10 11 12 13 14 MS. BENNETT: You were Isn't that just classic dicta? Your Honor, I think to the extent you're talking about that states -THE COURT: I'm talking about the language you quote in your brief. MS. BENNETT: Well, I mean, we also, I think, cited 15 that case for the idea that states don't have parens patriae 16 standing. 17 process rights, we cite other cases in our brief. 18 that it's a well-established -- the Fifth Amendment applies 19 to persons, and cases established that the state is not a 20 person in that regard. 21 process rights to assert. 22 But for the idea that states don't have due THE COURT: I think And so the state doesn't have due Well then how do I reconcile that with 23 Massachusetts v. EPA? 24 MS. BENNETT: 25 was a standing case. Your Honor, Massachusetts v. EPA, which Right? So there the facts were very Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 35 1 specific. There you had two factors that the court found 2 relevant. One, you had an actual injury to the territorial 3 sovereignty of Massachusetts. 4 global warming actually affected the territory of 5 Massachusetts, its coastline, an area that was owned by the 6 state. 7 explicitly given states and other parties a procedural right, 8 when someone petitioned the EPA to look into global warming 9 and the EPA denied that petition, then Congress created a The court talked about how And the second factor was that Congress had 10 procedural mechanism for that person to challenge that 11 decision. 12 So the court said, in an area where the state has an 13 injury-in-fact, it's an injury to its territorial sovereignty 14 and these explicit procedural rights, that there's standing. 15 And neither one of those circumstances are present here. 16 Washington, of course, doesn't allege any injury to its 17 territorial sovereignty. 18 alleged injuries are sort of incidental. 19 20 21 THE COURT: It doesn't -- you know, its other Explain to me what you mean by the term "territorial sovereignty." MS. BENNETT: Injury to its territory. So it's 22 pollution of its rivers, for example, pollution of its 23 coastline, pollution of its land. 24 25 THE COURT: So the federal government can do whatever it wanted to people who live here, and as long as the land is Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 36 1 2 not damaged, there's no harm or there's no cause of action? MS. BENNETT: Well, Your Honor, I mean, I wouldn't 3 make a statement that broad. 4 would make here is that when the federal government regulates 5 individuals, and there are sort of speculative downstream 6 effects that might affect the state in terms of lost revenue 7 and stuff like that, cases have said no, that that's not 8 sufficient. 9 Massachusetts. 10 I think that the statement I That it's not sufficiently direct as it was in THE COURT: All right. Before I run out of all your 11 time also, what limits does 1152(a)(1)(A) place on the 12 Executive? 13 MS. BENNETT: Your Honor, we think -- so, in terms of 14 when, as I was trying to explain before, in terms of when the 15 President has made a determination under Section 212(f) of 16 the INA, that entry of certain aliens should be suspended 17 because it would be detrimental to the United States 18 otherwise, we think that that trumps the 1152(a). 19 THE COURT: Well, let's concentrate on that. You 20 argue this in your brief that the Executive can classify 21 aliens by origin of birth or nationality. 22 a statute that says the classic anti-discrimination language. 23 How do I reconcile those two concepts? 24 25 MS. BENNETT: And then there is Your Honor, so we think that the 1152(a) only applies when the President has not made that Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 37 1 designation. 2 more -- 3 And I will -- to sort of play this out a little THE COURT: Stop there. Tell me what the authority 4 is for that argument. 5 don't give me any authority for it there; you just sort of 6 make the statement that, yes, that's our position. 7 understand where it comes from. 8 9 MS. BENNETT: You make it in your briefing and you Help me I think the first principle would be that the court is supposed to attempt to reconcile competing 10 provisions of a statute. 11 constitutional avoidance point. 12 in an area of his Article II powers in foreign affairs. 13 if the court were to find some sort of conflict between the 14 two, the court might run up against the constitutional 15 question of whether the President had authority to make 16 distinctions based on nationality. 17 18 19 THE COURT: I think there's also, Your Honor, a Here the President is acting And Or that the Executive is running up against the law that Congress has passed. MS. BENNETT: Well, Your Honor, to the extent that 20 you're concerned about that, I would just note that Congress 21 itself, in the INA, makes those very same distinctions based 22 on nationality. 23 relying on here 11 -- 8 U.S.C. 1187, where it says that 24 different rules in terms of applying for visas apply to, and 25 it names two countries, Iraq and Syria, and then allows the In the provision that the President is Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 38 1 2 President to designate others. We think that a reading that says that 1152 applies, no 3 matter what, would trump that provision or would suggest that 4 that provision was invalid. 5 THE COURT: I don't get a lot of chance to do 6 statutory interpretation. 7 a moment. 8 1182(f). 9 10 11 As I understand it, 1152(a) was promulgated after Do you agree with that? MS. BENNETT: THE COURT: MS. BENNETT: 13 THE COURT: 15 Yes, Your Honor. And didn't Congress then have to, by statutory construction, Congress had to be aware of 1182(f)? 12 14 But let's concentrate on that for Yes, Your Honor. That's right. And in that particular provision it makes a number of exceptions, but it does not except to 52. MS. BENNETT: Because we don't think Congress thought 16 it applied. Again, this is a -- the 1152(a) is in a narrower 17 section of the statute that talks about creating a uniform 18 quota system for immigrant visas, for which people are going 19 to be allowed to come into this country. 20 that that's a narrower section of the statute and that the 21 President's broader authority -- again, Your Honor, I 22 hesitate to repeat this, but I think it's a good example. 23 mean, Your Honor, if this provision of 1152 trumped 212(f), 24 then the President would essentially be prohibited from 25 restricting the entry of aliens to a country at which the And we just think Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 I 39 1 United States was at war. 2 Congress could have meant that. 3 THE COURT: 4 And we just don't think that as you can get out of them. 5 You've shaken those bones about as much Why shouldn't the court assume that Congress did not want 6 to except 1182(f) from the operation of 1151? 7 Justice Scalia has not been with us for a year, but it seems 8 that what you're running to now is, oh, all I have to do is 9 look at the legislative history and that must have been what 10 11 I mean, they meant. MS. BENNETT: Well, I don't think Your Honor needs to 12 look at the legislative history. 13 text and the structure of the statute, that this broader 14 power authorizing the President to suspend the entry of any 15 aliens, or any class of aliens, supersedes this other 16 provision that otherwise would apply in the absence of that. 17 I think you can look at the I would also note, Your Honor, that we also make 18 additional arguments in our brief about the procedural 19 exemption to 1152(a) and its narrowness as well. 20 think 212(f) trumps that provision. 21 22 23 24 25 THE COURT: All right. But we You've got about six minutes left, so I won't interrupt you either for a bit here. MS. BENNETT: Okay, Your Honor. I'll just make a few more points. largely what I wanted to cover. Thank you. I think I covered But with respect to the Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 40 1 remaining two preliminary injunction factors, I would just 2 say that the state, we don't think they've established 3 standing and injury. 4 disagrees, they haven't shown irreparable harm. 5 process has sort of shown, the Executive Order sets up a 6 case-by-case -- or sets up a system where there can be 7 case-by-case waivers of specific exemptions. 8 9 But certainly even if Your Honor As this And so the idea that a state can come in and sort of sue on behalf of all of its citizens without really sort of 10 playing out specific circumstances where it's been applied 11 unlawfully, we think that's not the proper avenue for a TRO. 12 Again, that certainly, perhaps, some of these individuals 13 could bring their own case and we'd have to look at the facts 14 of those cases. 15 Honor to enjoin this restraining order, or frankly even parts 16 of it, even provisions of it, we think that's a facial 17 challenge and that Your Honor can't do that in light of the 18 fact that it is lawful in some of its applications. 19 But as for this facial challenge, for Your And then we would just point to the balance of the 20 equities, Your Honor, and note again that in this regard the 21 President was acting pursuant to congressional authority, at 22 the height of his power, in the area of national security, 23 foreign affairs and immigration. 24 25 So we'd ask that Your Honor deny the TR0. THE COURT: Thank you. Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 41 1 MS. BENNETT: 2 THE COURT: 3 MR. PURCELL: 4 Thank you. Mr. Purcell, you have about six minutes. Thank you, Your Honor. Just a few points. First, the federal government has 5 argued that the harms to UW and WSU and their students and 6 faculty are abstract. 7 case. 8 stranded overseas, as they've stated in the declarations. 9 They have sponsored visas for people that are wasted because That just couldn't be further from the They have students and faculty who are literally 10 they are not going to be able to come. 11 time and expense to do that. 12 They went to great This harm is much more direct and immediate than what was 13 happening in either Massachusetts v. EPA or Texas v. United 14 States. 15 that was challenged hadn't even taken effect yet. 16 even qualified for if yet. 17 road. 18 injunction. 19 can't get back to their universities. 20 21 In Texas v. United States the immigration program No one had The harm was a ways down the And the court there still granted a preliminary Here there's literally people stuck overseas who THE COURT: But the causes of action belong to them. The state can't be exercising them on their behalf. 22 MR. PURCELL: The universities and their students are 23 harmed by those harms, Your Honor. It's the university that 24 spent the money to bring the people here who can no longer 25 come. It's the university that went to the time and trouble Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 42 1 of sponsoring those scholars to come. 2 immediately. 3 stranded overseas may have their own claim, but that doesn't 4 mean that the state has no claim. 5 that clear, Your Honor. 6 And they're harmed So perhaps, yes, certainly, the people who are Massachusetts v. EPA makes The federal government also talked about a Ninth Circuit 7 case not saying anything remotely like Texas v. United 8 States. 9 our standing brief, where the court found standing based on We cited the City of Sausalito case on page two of 10 aesthetic harms to a local government that were not 11 quantified in any sort of monetary way. 12 You also asked me, Your Honor, if the court had ever 13 blocked part of an immigration order based on the equal 14 protection clause and due process clause, and my co-counsel 15 very helpfully pointed out that, in fact, two courts have 16 blocked parts of this order based on the equal protection 17 clause and due process clause. 18 orders. 19 And I can give you those It's the Darweesh case out of the United States District, 20 Eastern District of New York. 21 January 28th -- sorry, that order was entered on January, 22 yes, 28th. 23 Tootkaboni case, out of the District of Massachusetts, issued 24 on January 29th. 25 That order was entered on And the -- I'm going to butcher this name -- And both of those cases found that the petitioners had a Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 43 1 strong likelihood of success in establishing the violations 2 of the due process and the equal protection clause of the 3 United States Constitution. 4 me, but at least those two have found it on this order. 5 The next thing I'd say, Your Honor, is that the I don't have all the orders with 6 religious-based claims, the federal government is trying to 7 limit those only to the refugee portions of the order. 8 position is broader than that, Your Honor. 9 three and part five were motivated, in part, by desire to Our We're saying part 10 target a particular, unpopular religious group, Muslims, and 11 that that undermines the basis for both of those sections. 12 Your Honor helpfully pointed out that the Katzenbach 13 language is dicta. 14 absolutely right. 15 position about the standard of review here is frightening. 16 mean, they're basically saying that you can't review anything 17 about what the President does or says, as long as he says 18 it's for national security reasons. 19 the law. 20 I'm sorry I didn't say that, but you're And, frankly, the federal government's I And that just can't be And the last thing I'd say, Your Honor, is that we are 21 asking here for nationwide relief. We do have now two states 22 that are part of this case that are obviously some distance 23 apart. 24 all over the world, through various places, and we believe 25 that nationwide relief is appropriate here for the same We also have people trying to come to Washington from Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 44 1 2 reasons that it was in United States v. Texas. So, Your Honor, in sum, the state is grievously harmed 3 here, both in its proprietary capacity and in its parens 4 patriae capacity. 5 briefing, the descriptions of people who have been harmed in 6 the amicus briefs, are heartbreaking. 7 to people who are trying to come here who have never been 8 here. 9 of our claim is the harm to people who have been here, in The declarations that are attached to our And it's not just harm Again, that is not the focus of our claim. The focus 10 many cases for many years, following the law, and you know, 11 traveled overseas without warning that this was going to 12 happen, or could no longer travel, and have lost fundamental 13 rights without any process at all in an order that was 14 motivated largely by religious animus. 15 16 So we're asking you to enter the temporary restraining order that we're seeking here. 17 18 19 THE COURT: Thank you, Your Honor. Thank you, counsel. I think argument was helpful. The following oral opinion will constitute the informal 20 opinion of the court. It is a formal opinion for purposes of 21 ruling on this motion. 22 to do a formal written order. 23 that on file over the weekend, so that by the time the Ninth 24 Circuit opens on Monday you'll be in a position to be able to 25 seek review of it. But as I indicated to you, I intend And hopefully we will have Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 45 1 Before the court is plaintiffs State of Washington and 2 State of Minnesota's emergency motion for a temporary 3 restraining order. 4 to those as TROs. 5 see. 6 For the audience out there, lawyers refer And that's not initials that we like to The court has reviewed the motion, the complaint, the 7 amended complaint, the submissions of the parties, the 8 submissions of the amici, the relevant portions of the 9 record, and most importantly, the applicable law. And I do 10 very much appreciate the fact that counsel have come for oral 11 argument today on a very expedited basis; and have done a 12 nice job of submitting written materials to the court, which 13 are helpful, and also participating in oral argument. 14 I'm going to digress for a moment and remind people who 15 see this opinion and wonder what's going on. 16 the work of this court is a recognition that it is only one 17 of three branches, three equal branches of our government. 18 The role assigned to the court is not to create policy, and 19 it's not to judge the wisdom of any particular policy 20 promoted by the other two branches. 21 legislative and executive branches and the citizens who 22 ultimately, by exercising their rights to vote, exercise 23 democratic control over those branches. 24 25 Fundamental to That is the work of the The work of the judiciary is limited to ensuring that the actions taken by those two branches comport with our laws, Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 46 1 2 and most importantly, our constitution. There is a very narrow question before the court today 3 that is asked to be considered and that is whether it is 4 appropriate to enter a TRO against certain actions taken by 5 the Executive that are enumerated in this specific lawsuit. 6 Although that question is narrow, the court is mindful of the 7 considerable impact that its order may have on the parties 8 before it, the executive branch of our government, and the 9 country's citizens and residents. 10 I will not repeat the procedural background of this case. 11 It will be in the written order. 12 the motion was filed and that the federal defendants opposed 13 the state's motion. 14 I would instead note that Any question regarding lawsuits in federal court starts 15 with the issue of: Does the court have jurisdiction over the 16 federal defendants and the subject matter of the lawsuit? 17 terms of notice to the federal defendants, that was certainly 18 accomplished, and indeed, the federal defendants have 19 appeared and argued before the court and defended their 20 position in this action. 21 on the constitution and federal law, I find that I do have 22 subject matter jurisdiction. In And since this is an attack based 23 The standard for issuing a restraining order in this 24 circuit is the same as for issuing a preliminary injunction. 25 A temporary restraining order is, as the government has Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 47 1 noted, an extraordinary remedy that may only be awarded upon 2 a clear showing that the plaintiff is entitled to such 3 relief. 4 to the lawyers. 5 A citation to the Winter case, which is well known The legal standard for preliminary injunctive relief, and 6 hence for a temporary restraining order, is that the 7 plaintiff must be likely to succeed on the merits, that it 8 will suffer irreparable harm in the absence of preliminary 9 relief, that the balance of equities tips in their favor, and 10 11 finally, that the injunction is in the public interest. The Ninth Circuit has an alternative test which it's used 12 from time to time and is well known to the parties and will 13 be in the written order. 14 It is an interesting question in regards to the standing 15 of the states to bring this action. 16 that all counsel would agree on is that the standing law is a 17 little murky. 18 standing in regards to this matter, and therefore they are 19 properly here. 20 finding that, which have to do with direct, immediate harm 21 going to the states, as institutions, in addition to harm to 22 their citizens, which they are not able to represent as 23 directly. 24 25 I'm sure the one item I find, however, that the state does have And I probed with both counsel my reasons for Therefore, turning to the merits. The court finds that for purposes of the entry of the temporary restraining order, Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 48 1 that the state has met its burden of demonstrating that it 2 faces immediate and irreparable injury as a result of the 3 signing and implementation of the Executive Order. 4 I find that the state has satisfied the test that it is 5 likely to succeed on the merits of the claim, which would 6 entitle them to relief. 7 favor the states. 8 restraining order is in the public interest. 9 I find that the balance of equities And lastly, I find that a temporary If I were to apply the Ninth Circuit's alternative test, I 10 would find that the states have established a question, a 11 serious question going to the merits, and the balance of 12 equities tips sharply in their favor. 13 the court should and will grant the temporary restraining 14 order. 15 As such, I find that The scope of that order is as follows: Federal defendants 16 and all their respective officers, agents, servants, 17 employees, attorneys, and persons acting in concert or 18 participation with them are hereby enjoined and restrained 19 from: 20 (A) Enforcing Section 3(c) of the Executive Order; 21 (B) Enjoined and restrained from enforcing section 5(a) 22 23 of the Executive Order; (C) Enjoined and restrained from enforcing Section 5(b) 24 of the Executive Order, or proceeding with any action that 25 prioritizes the refugee claims of certain religious Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 49 1 minorities; 2 (D) 3 4 Enjoined and restrained from enforcing Section 5(c) of the Executive Order, and lastly; (E) Enjoined and restrained from enforcing Section 5(e) 5 of the Executive Order, to the extent Section 5(e) purports 6 to prioritize refugee claims of certain religious minorities. 7 This TRO is granted on a nationwide basis and prohibits 8 enforcement of Sections 3(c), 5(a), 5(b), 5(c) and 5(e) of 9 the Executive Order at all United States borders and ports of 10 11 entry pending further orders from this court. I considered the question of the government's request that 12 the order should be limited to Minnesota and Washington, but 13 I find that such partial implementation of the Executive 14 Order would undermine the constitutional imperative of a 15 uniform rule of naturalization and Congress's instruction 16 that immigration laws of the United States should be enforced 17 vigorously and uniformly. 18 United States, 809 F.3d, 134, 155, 5th Circuit 2015. 19 That's language is from Texas v. I find that no security bond is required under the Federal 20 Rules of Civil Procedure 65(c), and I direct that the parties 21 confer and get back to the court promptly -- today wouldn't 22 be too late, but by next week -- regarding a date for the 23 preliminary injunction hearing, the time for the motion for 24 the preliminary injunction, the time for the federal 25 defendants to file their opposition and for the states to Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 50 1 2 file their reply. Once we know that, we'll promptly schedule a hearing on 3 the motion for preliminary injunction after we are in receipt 4 of the parties' briefing. 5 The court concludes that the circumstances that brought it 6 here today are such that we must intervene to fulfill the 7 judiciary's constitutional role in our tri-part government. 8 Therefore, the court concludes that entry of the 9 above-described TRO is necessary and the state's motion is 10 11 hereby granted. Counsel, anything further at this time? 12 MR. PURCELL: 13 THE COURT: 14 MS. BENNETT: Mr. Purcell? No, Your Honor. Ms. Bennett? One more thing, Your Honor, as a 15 procedural matter the government would move Your Honor to 16 stay the TRO, for the same purposes that we opposed the TRO, 17 pending a decision of the ASG of whether to appeal, whether 18 to file an appeal. 19 THE COURT: 20 MS. BENNETT: I'm sorry, pending a decision by the... I'm sorry, the Acting Solicitor 21 General; I'm sorry, Your Honor, we use lots of acronyms. 22 the Acting Solicitor General. 23 24 25 THE COURT: I understand the motion and I am going to deny it. MS. BENNETT: By Thank you, Your Honor. Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 51 1 THE COURT: I will do everything I can to get you 2 prompt appellate review, which I think is the appropriate 3 case to take. 4 MS. BENNETT: 5 THE COURT: 6 7 Thank you, Your Honor. We will be in recess. Thank you, counsel. (The proceedings recessed.) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101 52 C E R T I F I C A T E I, Debbie K. Zurn, RMR, CRR, Court Reporter for the United States District Court in the Western District of Washington at Seattle, do hereby certify that I was present in court during the foregoing matter and reported said proceedings stenographically. I further certify that thereafter, I have caused said stenographic notes to be transcribed under my direction and that the foregoing pages are a true and accurate transcription to the best of my ability. /s/ Debbie Zurn DEBBIE ZURN OFFICIAL COURT REPORTER Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

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