WALL: This case is nothing like Korematsu. Says that if the case were Korematsu the government would NOT be defending it now
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Katyal says that as the district court found, it wasn't just campaign statements. Notes the "We all know what that means" moment
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KATYAL: We're not trying to get into the president's head.
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LMFAO KATYAL JUST READ ALOUD A QUOTE ABOUT THE "MUCH-OVERTURNED NINTH CIRCUIT" IN THE NINTH CIRCUIT
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i'm screaming
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he inserted a very small "sorry" right after the quote
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That quote ends with Trump saying that they should go back to the first order.
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Katyal says that if they take away all of Trump's statements, they wouldn't even get the order in the first place—no president has done this
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The McCreary case says that they have to take the context into account.
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KATYAL: This is a very unusual circumstance in which you have all of these statements.
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Katyal says that the govt's interpretation of 1182 would allow the executive to take a "magic eraser" to the US Code on immigration
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Seems like this panel is just more quiet than the previous 9th Cir panel and the 4th Cir en banc.
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(Makes sense in the latter, because en banc is so many judges)
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Katyal is getting through very long sentences without interpretation
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GOULD: If we find that the Establishment clause claim can't support the district court's injunction, can we uphold on the statutory claims?
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KATYAL: Absolutely.
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That would be interesting.
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Based on questioning, Paez fucking hates Donald Trump, Gould wants to split the baby, and Hawkins only hates Donald Trump a little bit
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HAWKINS: Why shouldn't we be deferential to the office of the president on such issues?
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KATYAL: The test is an objective observer, not what the president thinks. ... we're not trying to get into his head.
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It would be a big upset if the 9th came back striking down the injunction, but this entire line of cases has been high drama from day 1
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Katyal starts listing off amici who are appalled by the EO creating a disfavored category of people, "even the Cato Institute!"
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Even. The. Cato. Institute.
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HAWKINS: Have you read the brief in Flores? KATYAL: [grins] I've been busy. Laughter in court
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KATYAL: We're not saying the president doesn't have emergency powers... of course he does.
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Says the EO is not designed for emergencies—it's about visas—and that it's telling. And there's only been two exemptions under the EO so far
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Hawkins asks if the EO created a "legislative gerrymander" that looked at where visa-holders had recently been, would that pass muster
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Katyal says yes.
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He says that what's wrong with the EO is that it blocks a Syrian passport-holder who's lived his whole life in Switzerland.
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KATYAL: Obviously we don't think Mandel doesn't apply because of Washington v. Trump, but if for some reason you wanted to get into it
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but if for some reason indeed, neal katyal
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