Purcell: Maybe those would move to the public interest weighing under the standards.
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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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Purcell: Again, standard should be mandamus std. Because in neither form nor substance nor intent was TRO supposed to be PI.
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Purcell is saying the case should go back to dist ct to allow a full opinion, which could then be appealed.
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Friedland: Would you have more evid at dist ct on standing or merits? / Purcell: Mainly standing, but not sure exactly where we'd end up.
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Purcell raises the statutory claim — noting that would avoid constitutional issue. (1152) / Canby notes that would only address visa issue.
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Purcell: DOJ says he's acting pursuant to congressional authority. We say it's contrary to congressional authority.
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Clifton: There have been presidential orders singling out nations. / Purcell: Those were narrower. / Clifton: Principle, tho, is the same.
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Purcell: There have not been cases. Every one of those examples were far more tailored. / Clifton: But, we do this all the time?!
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Purcell: 1182 has exceptions — but not an above-the-board treatment like in this EO. ... The court can review, should review this order.
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Flentje gets 5 minutes for rebuttal.
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Flentje: Whatever Din says, it doesn't say we can look behind the 4 corners of the order.
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Friedland: Are you relying on Din or not?! / Flentje: We are, but only for the limited review Din suggested.
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Flentje: Cardenas (9th Cir) laid out broad restrictions the president could issue.
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Friedland: What if the order said no Muslims? / Flentje: If that happened, there would be people w standing to challenge under Estab.
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Friedland: Plaintiffs gave evidence that that was the motivation.
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Flentje: We're not saying the case shouldn't proceed. We're just saying statements printed in some papers shouldn't form basis.
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Clifton: Wait, are you saying Trump/Giuliani didn't say those things? / Flentje: No, I'm not. / Clifton: They might not weight a lot, but.
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Flentje: "unwise course" to have the TRO based on what was given. Says there is more evidence they would present at dist ct, can't give it.
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Flentje: Order "goes way beyond" what Washington claimed. / Clifton: That does raise a serious concern on my part.
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Clifton: Any authority for the counsel to the president to have the authority to tell dep'ts what the EO means?
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Flentje: One, the guidance from counsel is the "definitive" interp of the order, and counsel "speaks for" the president.
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Flentje then lays out a more narrow order limited, effectively, to current and former residents of Washington.
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Friedland: "This matter is submitted," says a decision will come as soon as possible.
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COURT IS ADJOURNED.
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FIRST UPDATE: Appeals Court Judges Skeptical Of Justice Department Arguments In Support Of Reinstating Banhttps://www.buzzfeed.com/chrisgeidner/appeals-court-to-consider-whether-trumps-ban-should-stay-on?utm_term=.crYgNmYlqR …
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