Jeffrey Wall says that it would violate Mandel because it would not be facially legitimate, then when asked to clarify, says it differently
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(Wall does not appear to know that the statement has been deleted off the website)
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We'll get more clarity into how the en banc panel is feeling about the case when the plaintiffs argue, but right now they seem quite hostile
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(Quite hostile to the government, I mean.)
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Oddly getting bogged down in whether nationals of 7 countries would be detrimental to nat sec of US under 1182(f)
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Wall definitely trying to push that it's all campaign statements but that's not true and the judges don't seem to be buying it.
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Wall says that when the president signed the EO, read the title "Preventing Terrorist Entry in the US" and said "We all know what the means"
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... that the courts can interpret that as meaning that it was a Muslim ban, because they are obliged to give him the most generous reading
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Judge: "What do you mean by neutral in operation. Obviously this order has a disparate impact on Muslims."
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Judge apologizes for derailing, but then says, "But I literally don't know what you mean."
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I can't tell if this is kind of brutal or if I just haven't listened to an oral argument in a while? Definitely not as brutal as the 9th
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But the 9th was extra brutal because the DOJ lawyer was unprepared
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Has anyone else who's listening along heard a judge ask a question that seems favorably disposed to the government?
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Obvs it will become clearer during the plaintiffs' turn
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Judge: So if the president says every day for a year, "I intend to ban Muslims, they are bad people," and the first day in office he does it
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... we can't take into account his campaign statements? Is that what you're saying?
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Yeesh.
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Plaintiff counsel now beginning.
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Ok we're starting off with standing, which is actually kind of interesting but pales in comparison to the question of the animus and Mandel
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Currently figuring out which of the plaintiffs has standing to challenge which parts of the EO
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Counsel for plaintiffs is a much less skilled oralist, but we're starting off pretty soft and slow.
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If they go as hard against him as they did with Wall, he might have some trouble
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Interestingly in the Hawaii hearing, the judge seemed sympathetic to govt position on standing, but said he was bound by 9th cir on standing
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Because this is 4th Cir en banc, and it's a very diff case (the state is not a plaintiff), the standing issue is dangerous to plaintiffs
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Standing seems to be a really common thread across major nat sec lawsuits, imo that just means law around standing is broken ¯\_(ツ)_/¯
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Judge asks if the order is facially legitimate, counsel stammers a little and says "I don't think so your honor..." he's just not very good
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Maybe just a case of the nerves but sigh
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Wall was so eloquent and confident with an extreeeeeeeemely bad case, and this guy can't find his confidence with a case he won below
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Judges are demanding that he explain what's wrong on the *face* of the order and he just can't convincingly talk around it
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He was almost certainly mooted on this question and what is happening
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Sorry, his performance isn't super relevant to this case, it's just very frustrating to hear this contrast
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