Flentje points to Mandel/Din. / Friedland asks what provisions of Congress are being interpreted here. / Flentje points to 212(f).
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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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Purcell: If ct treats this as appealable order, then this is what will be appealed. If it goes back, then we'd get a more full PI decision.
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Purcell: Going toward the merits, I'd first focus on the lack of irreparable harm. The EO itself caused the irreparable harm.
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Clifton: What's the harm to the state of Washington? / Purcell: Stranded overseas, unable to visit families, tax revenue.
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Friedland: If we reject parens patriae, can we consider broad harms or only proprietary harms?
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Purcell: Maybe those would move to the public interest weighing under the standards.
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Purcell: Establish Clause violations themselves show irreparable injury. In sum, fed gov't hasn't made its showing to stay TRO.
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Canby: What about DOJ's four corners argument? / Purcell: No. See Din / Cardenas.
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Clifton: How many affected are people w Washington residency, etc. / Purcell: At pleading stage, we allege thousands. Notes LPR inclusion...
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... initially, and they've changed position. Until they change the order — they can't just say it doesn't apply.
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Clifton: Why shouldn't we limit the TRO to those clearly? / Purcell: Doesn't solve Estab or EP harms.
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Purcell: Also doesn't address people here affected due to having people abroad. Gov't hasn't addressed how it would implement.
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Friedland: Should Larson or Lemon apply? / Purcell: Larson.
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Friedland: If we agree about Larson, is your EP claim redundant? / Purcell: Basically.
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Clifton: What percentage of Muslims worldwide are from those seven countries? I see about 15%. / Purcell: To prove religious disc ...
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... we just have to show desire to harm. / Clifton: How? / Purcell: Intent. The public statements from president and advisers.
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Purcell: You just have to show desire. / Clifton: But, it's such a low percentage? They've determined those countries are of concern.
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Clifton: Do you consider that religious discrim? / Purcell: No, not at all. / Clifton: Then, how is this a violation?
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Purcell: Exact action can be constitutional at times and not at others. / Clifton: Is this that ban? / Purcell: No, it doesn't have to be.
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Clifton: You can allege anything! I don't have to believe it. / Friedland: You've submitted exhibits, haven't you? / Purcell: Yes.
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Clifton: You can't say you need more time, you brought the TRO. I don't think allegations cut it at this stage.
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Canby: Who has burden here? / Purcell: DOJ, b/c they're seeking a stay.
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