Spicer: "Tonight is about the restraining order, not the merits of the case." / DOJ says the TRO should be treated like a prelim injunction.
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Judge Canby: Are you arguing the merits of the stay or of the appeal itself?
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Flentje: They overlap, but this is about the stay. Cites irreparable harm faced by the gov't if TRO stands. "National security function."
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Friedland: Is this nonreviewable, or do you present evidence?
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Flentje: Those convicted, and "deteriorating conditions" abroad that could lead to terrorism in the US.
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Friedland: Any evidence? / Flentje: Things have been moving fast, but points to determination re: visa waiver program/countries of concern
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Clifton: That's pretty abstract. It's not like there haven't been processes in place to take care who's coming in? Any ev there's real risk?
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Flentje: President decided there's real risk.
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Canby: In naming those countries, Congress laid out processes relating to visa. / Flentje: These proceedings have been moving fast ...
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Friedland: You brought this to us — skipped over dist ct. / Flentje: A number of people from Somalia who have been connected to Al-Shabaab.
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Friedland: Are you arguing that the president's decision in that regard are unreviewable. / Flentje: Yes, although there are const. limits.
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Flentje points to Mandel/Din. / Friedland asks what provisions of Congress are being interpreted here. / Flentje points to 212(f).
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Friedland: What limited review do you say is allowed? / Flentje: Bona fide and legit. / Friedland: There are allegations of bad faith here.
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Flentje: Review should be limited to the four corners of the document. And, even then, only if a party in the US with standing to bring.
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Flentje raises standing issues, but Canby notes air cases. / Flentje: A 3rd party can't challenge visa revocations.
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Clifton jumps in: Yes, they can. Why can't Washington, re: its schools, do so.
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Flentje: Goes to parens patriae, says that Washington can't bring under that theory. / Clifton says wife in Din. Scholars in Mandel.
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Flentje goes back to the "right of the state on behalf of the people." / Clifton says, what about the universities?
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Flentje: What is the constitutional interest of the university? / Clifton: In Din, she was claiming loss of consortium, but it was his visa.
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Friedland: What about Pierce v. Society of Sisters? / Flentje: The university was challenging a state law that affected it students.
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Friedland: Why can't we reach the merits here? / Flentje: A state entity can't assert these kind of rights.
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Flentje adds that the order doesn't discriminate on the basis of religion, and no equal protection problems.
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Canby: Could the president ban Muslims? / Flentje: That's not this. / Judges: Answer. / Flentje: A US citizen w a connection.
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Friedland: What's the purpose of your standing argument? / Flentje repeats standing standards. There are plenty of cases w people affected.
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Flentje: "I'm not sure I'm convincing the court (on standing)," so moving on to arg the TRO is overbroad.
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Friedland: States are claiming EO violates Estab Clause. If so, isn't it facially invalid.
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Flentje: Scope of injunction should be limited to the specific claims advanced by the states.
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Flentje: Refugee provision involves people who have never been here, for example. Court should immediately stay that portion.
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NOW UP: Noah Purcell, Washington solicitor general.
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Purcell: Appealability question. / Clifton: Why should we care? Are you suggesting mandamus is the only route?
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Clifton: Why shouldn't we view this as an injunction? / Purcell: This fairly limited. In SEIU case, for ex, the order was four months.
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