Friedland: If we don't agree with the parens patriae theory, are we limited in harms we can consider?
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Purcell says Larson
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But says they also would prevail under Lemon test, and that they did not have space to brief the court on it
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Yes, it's called the Lemon test, and it's very important, don't laugh
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Purcell acknowledges that if they use the Larson test, they don't have to reach the equal protection claim
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"rather shocking evidence of intent to discriminate against Muslims, considering we haven't had discovery yet," says Purcell
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Clifton: Do you deny that there is concern about people coming from those countries... bc those are a concern from a terrorist perspective?
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Clifton is not woke
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Clifton asks for evidence of animus. Purcell: Well for one, the president called for a complete ban on the entry of Muslims.
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Clifton: Is that this ban? Purcell: No— It's just evidence of the motivation
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Clifton: Do I just have to believe you? Purcell flails a little here, Friedland assists with "You've filed exhibits, haven't you?"
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Clifton: Don't tell us you need more time, you're the one who asked for the TRO. ????!?!
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Clifton: I don't think allegations cut it at this stage.
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Canby: Who has the burden of showing likelihood of success? Purcell says defendants have to show, on appeal.
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Huh, Friedland seems to just want to deal with the merits now.
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Purcell says it would make most sense to send the case back, allow TRO to stay in place, and allow court to issue preliminary injunction
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and then to let the case progress from there, otherwise too messy and against how 9th cir usually does things
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Disclosure, I'm an idiot and I don't know this area of law. But that's how I'm reading it toohttps://twitter.com/steve_vladeck/status/829116425759502337 …
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Purcell: Our position is that the president is acting contrary to what Congress has said. An important factor to how much deference to give
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Clifton: Can we treat people based on the nation they come from? We do that all the time. We treat ppl from North Korea different frm France
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Purcell is looking to wrap up, I think, meanwhile a siren is going off in the background. What up, San Francisco
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Purcell wraps up, asks court to deny, and send back.
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Flentje (DOJ) is back on.
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This is his rebuttal time.
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Friedland... really does not like Flentje.
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Friedland: What if the order just said no Muslims, you're analogizing to cases where people were communists and agitating to overthrow govt
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Flentje says that if the order said No Muslims, there wld be people with standing to challenge, and it would "raise First Amendment issues"
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But won't say that it's illegal.
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Flentje says you can't challenge based on "newspaper articles."
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Clifton: Do you deny that these statements by then-candidate Trump were made?
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Clifton: I understand that these statements shouldn't be given much weight, but if they were made, it is potential evidence.
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