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= http://www.wawd.uscourts.gov target=_blank>www.wawd.uscourts.gov</a>.<p>To purchase a copy of the transcript, contact court reporter Debbie Zurn, [e-mail], 206-370-8504.<p> Release of Transcript Restriction set for 5/8/2017, (DZ)

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UNITED STATES DISTRICT COURT

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WESTERN DISTRICT OF WASHINGTON AT SEATTLE

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_____________________________________________________________
STATE OF WASHINGTON and
STATE OF MINNESOTA,

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Plaintiffs,

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v.

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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,

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Defendants.

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C17-00141-JLR
SEATTLE, WASHINGTON
February 3, 2017
MOTION FOR
TEMPORARY
RESTRAINING ORDER

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_____________________________________________________________

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VERBATIM REPORT OF PROCEEDINGS
BEFORE THE HONORABLE JAMES L. ROBART
UNITED STATES DISTRICT JUDGE
_____________________________________________________________

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APPEARANCES:

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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

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Jacob Campion
Assistant Attorney General of
Minnesota
445 Minnesota Street, Suite 1100
St. Paul, MN 55101

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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

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Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

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THE CLERK:

Case No. C17-141, State of Washington

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versus Donald J. Trump.

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appearances for the record.

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MR. PURCELL:

Noah Purcell for the State of

Washington, Your Honor.

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MS. MELODY:

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MR. CAMPION:

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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.

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THE COURT:

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MS. BENNETT:

Welcome.
Good afternoon, Your Honor, Michelle

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Bennett from the Department of Justice for the defendants.

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And with me is my colleague, also from the Department of

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Justice, John Tyler.

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THE COURT:

Thank you.

Counsel, welcome.

A couple of housekeeping matters to attend to.

We are

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scheduled to conduct this hearing between 2:30 and 4 o'clock.

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I'm going to have some very brief housekeeping matters at the

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start, of which I've already used eight of my ten allotted

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minutes.

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given, in effect, 30 minutes to each side.

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wishes, they can reserve some of their time for rebuttal.

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They're going first.

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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

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thoughtful and quite helpful, are going to get swallowed by

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questions, because I have questions that are essential to our

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resolution of this case and I need to get those answered.

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be prepared for pretty much an interruption from the start.

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So

And at around 3:45, having followed the direct

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presentations, and rebuttal if the state has time left,

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you're going to hear from the court.

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orally rule from the bench but in very conclusory terms.

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we will get a written order to follow, so that if you want to

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have the Ninth Circuit grade my homework, you'll have

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something that you can get on file there promptly.

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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

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the motion that's before me started off as Docket 3, which

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was exclusively the State of Washington, and is now Docket

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19, which is both the states of Washington and Minnesota.

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We've also had a series of requests to file amicus briefs,

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and I intend to grant those.

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ACLU; Docket 42, the Service Employees Union; Docket 45,

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amicus filed by the Amicus Law Professors.

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Three Amigos.

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the Washington State Labor Council.

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which is the amicus, Americans United For Separation of

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Church and State.

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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

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particular question.

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Mr. Purcell.

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MR. PURCELL:

Thank you, Your Honor.

Good afternoon.

In the weeks since President Trump signed the Executive

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Order at issue here, six federal judges around the country

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have enjoined or stayed parts of it in response to action by

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particular plaintiffs, finding a likelihood of success on the

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merits of the challenges.

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Minnesota are asking you to do the same here today and to

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The states of Washington and

enjoin the parts of the order that we challenge.
The order is illegal and is causing serious immediate

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harms to our states, to our state institutions, and to our

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people, and enjoining the order is overwhelmingly in the

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public interest.

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standard for a temporary restraining order, I won't waste

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your time.

So, you're familiar, of course, with the

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THE COURT:

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MR. PURCELL:

You can dispense with that.
I want to first address the likelihood

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of success on the merits, including the threshold issues that

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the government has raised, including standing, deference to

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national security interests, and the facial versus as-applied

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nature of the challenge.

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THE COURT:

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MR. PURCELL:

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THE COURT:

Well, let me try and derail you here.
Sure.
I'd like to take this in terms of equal

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protection first.

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MR. PURCELL:

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THE COURT:

Okay.
And, in particular, how does the equal

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protection claim apply to all of the order, which is the

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120-day-part found in paragraph or Section 5A.

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ban discriminate in any way, or violate equal protection,

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when it's an across-the-board ban?

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MR. PURCELL:

How does this

You're talking about as to refugees?

So, our claim about refugees is primarily that it is

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religiously motivated discrimination, and that the order is,

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in large part, motivated by religious animus.

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doesn't require us to show that everyone harmed by the order

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is of a particular faith, it just requires us to show that

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part of the motivation for issuing the order was religious

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discrimination.

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THE COURT:

So that

Then I'm going to try to put words in

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your mouth.

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making an equal protection challenge to the refugee ban?

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Are you telling me, then, that you are not

MR. PURCELL:

I would say, Your Honor, that we have a

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-- I would say the focus there is on the religious

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discrimination aspect.

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THE COURT:

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MR. PURCELL:

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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

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on equal protection, then.

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MR. PURCELL:

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THE COURT:

Okay.
Do refugees or visa holders that have

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never physically entered the country have equal protection

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rights under the constitution?

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MR. PURCELL:

Your Honor, that is not the focus of

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our claim.

I think the answer is probably no.

But they do

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have rights to some constitutional protections.

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certainly their friends and family who are here -- and we're

And

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just talking about refugees now, not aliens, for example, who

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might have been sponsored by a university or something like

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that to come here.

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THE COURT:

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MR. PURCELL:

Right.
Our claim is that -- our claim is

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primarily focused on the people who are here or have been

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here and left, their families, their employers and the

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institutions here.

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THE COURT:

All right.

Has any court ever set aside

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an immigration law or regulation on equal protection grounds

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based on rational review?

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centerpiece, but you've pled it and so you're going to get

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questioned about it.

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MR. PURCELL:

I understand it's not the

We did plead it, and that's just fine,

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Your Honor.

I was planning to start this morning with due

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process -- or this afternoon -- but equal protection is just

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fine.
I am not aware of an immigration order being set aside on

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equal protection grounds.

On the other hand, I'm not aware

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of any Executive Order quite like this one, that there's so

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much evidence, before there's even been any discovery, that

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it was motivated by animus, religiously targeted, and just

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utterly divorced from the stated purposes of the order.

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I'm happy to talk about that more in terms of -- the

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government is asking for an extraordinary level of deference

And

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here, essentially saying that you can't really look at what

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were the real motives for the order; you can't test its

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legality.

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factually.

And we just think that's wrong, legally and

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And if you'll spare me for just a minute, indulge me for

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just a minute and let me -- there's three -- there's a legal

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point and a factual point.

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review executive action that has to do with national security

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for constitutional violations.

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Hamdi, Hamdan, Boumediene, the Supreme Court routinely

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reviews -- you know, those were cases involving enemy

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combatants being held offshore.

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largely involves people who have been here, long-time

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residents who still live here and have lost rights.

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we're asking the court to review that claim.

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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

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brief, based on a case called Kleindienst and Kerry v. Din,

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that you can't sort of look behind the stated purposes of the

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order.

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legitimate and bona fide reason for excluding an alien, the

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court will not look behind that reason.

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They say that if the President gives a facially

But there's two fundamental problems with that argument,

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Your Honor.

First of all, those cases dealt with the

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President's power to exclude aliens who were not here, had

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not been here, and had no right to come back.

That is not

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this case, where we have a case involving people who have

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been here, have rights to remain here and rights to return.

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And in Justice Kennedy and Alito's concurring opinion in

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that Kerry v. Din case, which is a controlling opinion, they

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held that they would look behind stated motives, even for

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exclusion of someone who had never been here, if the

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plaintiff plausibly alleged with sufficient particularity an

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affirmative showing of bad faith.

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Din opinion.

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the Cardenas opinion, 826 F.3d, 1164.

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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.

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MR. PURCELL:

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THE COURT:

Okay.
Do you not see some distinction between

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election campaign statements and then subsequently an

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election and then an Executive Order which is issued with

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comment at the time the Executive Order is issued?

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to me that it's a bit of a reach to say:

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clearly anti-Muslim or anti-Islam, based on what he said in

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New Hampshire in June.

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MR. PURCELL:

It seems

The President is

Well, Your Honor, it might go to the

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weight to give the evidence, I suppose.

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it's sort of off the table, especially given that we're only

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a week into -- well, two weeks now, I suppose, but the order

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was issued a week after the campaign -- well, after the

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But I don't think

President took office.

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THE COURT:

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Inauguration.

MR. PURCELL:

After the inauguration, I'm sorry.

So

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it's not as though those are completely irrelevant.

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moreover -- and, again, this is before any discovery -- we

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have the President's advisor saying on national television

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that, you know, the President asked him to come up with a

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Muslim ban -- this was after the election -- asked him to

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come up with a Muslim ban in a way that would make it legal.

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And that that's what they did.

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THE COURT:

Does the Executive Order mention the word

"Islamic" or "Muslim?"

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MR. PURCELL:

And

Let's stay on religious grounds.
No, it does not, Your Honor.

It does

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not.

But when we're arguing about religiously motivated

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targeting, again, the burden is not to prove that it affects

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every single person of the Islamic faith.

The burden is to

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prove that a desire to discriminate based on religion was one

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motivating factor in the adoption of the order.

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And, again, we're at the pleading stage, four days after

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having filed our complaint, no discovery, and there's already

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an overwhelming amount of evidence to suggest that that's the

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case, that it was, at least in part, motivated by religion.

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Going back briefly just to the national security.

Part of

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the evidence of that, Your Honor, is that the tie to the

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stated purpose of national security is so tenuous here.

I

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mean, the President apparently had not decided whether the

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order applied to lawful permanent residents before it was

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issued.

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permanent residents from these seven listed countries in the

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United States.

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our safety or they're not.

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about that five times since Friday.

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said that it did apply to them, and many of those people were

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excluded from returning to the country.

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of Homeland Security reiterated that it applied to them.

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Then the Secretary said that it didn't.

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all in our complaint, by the way -- and then the White House

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spokesperson said it did not.

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counsel has now issued authoritative guidance, whatever that

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means, that although there could have been reasonable

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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

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cover those people.
So the point is, if they were an enormous security risk,

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you would think that they would have made up their mind about

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that before issuing the order.

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And the second point, Your Honor --

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THE COURT:

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MR. PURCELL:

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THE COURT:

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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

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language -- have been designated as, "Countries the

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government of which has repeatedly provided support for acts

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of international terrorism under 8 U.S.C. 1187."

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that provide a rational basis for the Executive Order?

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MR. PURCELL:

Wouldn't

Your Honor, that would provide a cover,

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in our view, for -- that was maybe one motivating factor.

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But when you look at the standard of proving a religious

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discrimination claim, again, you can't just accept at face

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value the stated purposes.

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there's even been any discovery, there's so much evidence

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that it was not targeted at the concerns stated.

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order applies to infants, it applies to senior citizens, it

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applies to students and faculty at our state universities who

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have never been accused of any wrongdoing.

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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

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reasons for this order, or even ask whether there are real

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reasons beyond what is stated, is just not supported by the

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case law.

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government is saying you cannot look behind the stated

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reasons, and we're saying that you can.

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support that argument that they're making.

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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

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religion.

We would say it's not only Section 5 that is, in

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part, motivated by religion.

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THE COURT:

And the part of that is this resumption

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of the refugee program after, I think it's 90 days for that

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provision.

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minority religion in a country."

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clause cause of action then extend beyond Section 5?

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Then it says, minority -- "Practicers of a

MR. PURCELL:

Does your establishment

I think our establishment clause claim

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is focused on that section.

But I think that both three and

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five are motivated in part, our allegation is, by preferring

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one religious view over another.

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cited in our brief makes clear that you don't need to have a

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distinction between named religions on the face of the order

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for it to be an establishment clause violation.

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it didn't name any religions.

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different religious groups would qualify for a tax exemption.

The Larson case that's

In that case

It just set standards for how

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And the court said that, combined with the effects on the

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religious groups, was enough.

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Your Honor, I want to spend some time on our due process
claim.

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THE COURT:

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MR. PURCELL:

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THE COURT:

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MR. PURCELL:

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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.

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MR. PURCELL:

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THE COURT:

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We're going to get there.

Okay.
5(b) isn't implemented for, I think it's

100 days.

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MR. PURCELL:

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THE COURT:

Um-hum.
Why should I take this up at this time,

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as opposed to, if you're coming back on a motion for

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preliminary injunction, deal with it when it's somewhat more

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concrete?

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MR. PURCELL:

Well, Your Honor, we're asking you to

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temporarily restrain what we thought was a narrow subset of

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the categories that we thought were motivated by these

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unconstitutional -- that violated the constitution.

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want to have further thought about whether -- so we're

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suggesting that the action itself of banning the refugees,

If you

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and the Syrian refugees indefinitely, and the selection of

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the countries, was partially religiously motivated.

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want to wait to rule on whether 5(b) itself, and that

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favoritism approach going forward is a constitutional

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violation, I suppose that would be fine.

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does not necessarily require immediate injunction.

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is evidence, I think that provision is evidence, of the

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religious underpinnings of the order.

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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

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which the order violates the constitution is its violation of

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the due process clause.

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everyone in this country, including immigrants.

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of cases make that clear.

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THE COURT:

The due process clause protects
And a number

So is it your position that refugees and

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other aliens who are presently outside the country are

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covered by due process?

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MR. PURCELL:

Your Honor, the Supreme Court has said

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that aliens who are not in the country and have never been

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here, the only process they're entitled to is what Congress

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provides.

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our claim.

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here and have, overnight, lost the right to travel, lost the

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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

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research, lost the right to go speak at conferences around

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the world.

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time and happened to be overseas at the time of this order,

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which came with no warning whatsoever, and suddenly lost the

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right to return to the United States.

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And also people who had lived here for a long

So there's a series of cases, and we cited some of these

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in our brief, Your Honor, but I'd like to -- given that

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there's only been a short time since the government's filing,

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I direct you to cases like Landon v. Plasencia, 459 U.S. 21.

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THE COURT:

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MR. PURCELL:

You might want to slow down a little bit.
Sorry.

Landon, 459 U.S. 21, Rosenberg,

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374 U.S. 449, that make very clear that people who have lived

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here legally for some period of time and then leave

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temporarily, are protected by the due process clause in

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attempting to return, and cannot have their right to return

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taken away without some sort of process.

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And that's effectively what happened here to thousands of

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people in Washington, including hundreds of students at our

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state universities, and faculty.

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no process whatsoever, lost these important rights that they

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had.

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They just overnight, with

Now, the federal government -THE COURT:

A case from your list of cases is

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Katzenbach, which the government cites extensively for the

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proposition that you've lost that argument.

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MR. PURCELL:

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THE COURT:

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MR. PURCELL:

Right.
How do you respond to that?
Well, they're wrong, Your Honor, for a

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number of reasons.

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that case because we're a state.

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state as state, as we made clear in our standing brief, our

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claim is the state as proprietor and the state as parens

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patriae on behalf of the people of the state.

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as a proprietor, I think is the obvious way that that

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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

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people of the state who are harmed, and on behalf of the

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state institutions that they attend.

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University of Washington and Washington State University, as

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well as our community colleges, are arms of the state.

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very clear under state law they're arms of the state.

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on their behalf.

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denied due process rights pursuant to this order.

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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

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Sisters, 268 U.S. 510, and the cases cited in footnote three

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of our standing brief, it's very clear that schools and

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universities have standing to bring challenges based on harms

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to their students.

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standing to bring a due process claim.

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So that's the first way in which we have

Second, Katzenbach, of course, is before Massachusetts v.

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EPA and before the significant change in parens patriae

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standing that that case announced, as detailed in the amicus

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brief of the law professors and as explained in

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Massachusetts v. EPA itself.

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out of Puerto Rico cited in our briefing, makes it very clear

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that states can bring parens patriae claims asserting

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discrimination sort of causes of action.

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Massachusetts v. EPA makes it very clear that the sort of

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Katzenbach-Mellon limitations on state standing have been

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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

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here as well.

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Act claim.

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claim here.

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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

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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.

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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

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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.

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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

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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,

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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,

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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

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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,

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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

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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

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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.

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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.)

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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