Cspan2. This will be on the only. We expected to get underway in just a moment. Were about to get started. This is just a friendly reminder that all the council cocounsel consider counsel desk. [inaudible conversations] [inaudible conversations] United States court of appeals, all persons before the united stat states [inaudible] may it please the court. The injunction strongly signals confirmation is fundamentally different than the prior executive order. The proclamation respects a multiagency, worldwide review engagement and recommendation process and findings of eight countries have inadequate information sharing practices or other risk factors that undermine the visa vetting system and that warrant tailored entry restrictions to improve their practices and protect this nation until they do so. In light of the fact that the standards for stay and standard for preliminary injunction are essentially the same, would you tell me what you think the Supreme Court action on monday in issuing the stay, which you saw, what do you think thats going to how is that going to play on the ultimate resolution of the preliminary injunction in front of us . Well, your honor, i think the primary element of the stay as plaintiffs themselves have urged the Supreme Court in opposing stay is that we have to show a likelihood on the merits. We know at a minimum the Supreme Court thinks we have a likelihood of success on the merits and i would submit in these circumstances where we know what the Supreme Court, how they struck the equitable balan balance last time. The fact that they stayed the injunction going to stop the preliminary injunction as well . I think thats a strong signal, you know, you can never infer too much from what the Supreme Court means in a stay when they dont give reasoning, but i think thats a pretty strong signal, your honor, and i think its because of the critical procedural and substantive differences between the proclamation and the prior order, in light of those differences, the proclamation falls well within the president s broad statutory and Constitutional Authority to restrict the entry of aliens abroad. Indeed shall the District Court actually agreed with us even as to executive order to the Supreme Court at least early on let a lot of that stand, too. Im sorry, your honor . As to the executive order, the Supreme Court let almost all of that stand as well. They stated in part. Bona fide. For the kids who did bona fide which we agree that likelihood of success with the second executive order. Can you pull your microphone or talk a little louder, one or the other . Thank you. The District Court actually agreed with us that the executive that the proclamation satisfies the requirements of 1182f and id like to begin there. You mentioned that the critical differences between the proclamation now and executive order , too, what could you delineate for me what you think are the most important critical differences . Yes, theres a procedural component to it and a substantive component to it. On the procedure side this is a multiagency process under the executive order the president instructed these agencies to determine what institution if any they thought was missing from the information provided i did read the if any into what the president directed be done. I thought he directed that that certain countries be found to be banned. I dont think thats right, your honor. If you look at section 2a. Not that certain countries, but that which countries should be banned. If you look at section 2a of the executive order the exact language, whether there is information that Foreign Governments are not providing. It didnt say that there is information thats not providing. And it didnt say if any either, correct . If any was my weather. Your honor. When the proclamation directs that the secretary provide a list of countries that would not comply with the requirements of the proclamation, thats not an edict, in your mind, that there has to be an affirmative list, just that following there may be some, many, or none here on this list. Thats right, your honor and i think its true for three reasons. First, section 2a identifies whether there is information missing and 2e, when it asks for a list, appropriate categories of nationals from countries that arent providing the requested information. So, there were no countries that were not providing the requested information by definition, that would be zero. And even if there are countries that are not providing the requested information, it expressly says appropriate categories. And we know that the agencies took that seriously because, for example, iraq was found to not be providing, to not meet the baseline and yet the agencies recommended and the president decided not to include iraq on the list. So we know that this is not some sort of pre ordained conclusion. We know that the agencies had expressed expression under the eo, to make a recommendation to the president which is countries to include. They didnt just omit iraq and turns to the substantive part of the differences between the border. On the substantive side, its a very tailored restriction. They omitted iraq, omitted sudan from the earlier decisions, even with the countries that they covered, they have exemptions for nonimmigrant visas for several. Countries. In reading the proclamation as ive understood it, one of the primary justifications for imposing the ban on these seven countries differentiated by class of visas is the hope and expectation that there will be a change in processes for these nations in improving their information sharing practices. Im still having trouble seeing how that kind of a bargaining chip or coercion is at all the necessary link with respect to a finding that the entry of the whole class of nationals, 150 million plus, would be detrimental to the United States. Can you help me with that . Sure, your honor. So, i think its a traditional exercise of the use of 1180 when a Foreign Government is engaged in harmful practices it can be deemed detrimental to the National Interest to allow the countrys nationals to enter. What president carter did with the iranian hostage crisis. That wasnt adjudicated. Unless the court is to say that the president carter for the iranian crisis and president reagan for all cuban immigrants were also unlawful. Those are all declaration, proclamations of a different order. This is a wholesale ban of 150 million plus nationals bases on the hope and expectation that this will incentivize the nations to cooperate. The connection there to me is missing. Just like president carter restricted all immigrants from iran from entering because of the hostage crisis, no one was suggesting that every immigrant from iran was a threat at all to the United States, let alone connected to the iranian hostage crisis. The point is because iranian government was engaged in practices re we restricted dont we already have restrictions . If you dont have the necessary items to enter, you dont get a visa. Why this additional measure . Because we have vetting systems, but the findings made by the agencies here is that Foreign Governments are not providing stuff information to allow that vetting to occur if thats the case the conclusion is the entrant, a national doesnt enter, right . That is one possible response, but its not the only response and nothing in 1182 asks and nothing in the clause i mposes a narrowing restriction even in the face of the statute that otherwise delineates exceptions that congress carefully calibrated throughout . I think thats right. Because repeatedly 1182f is recognition by congress the president can order restrictions over and above. Could this be limited in time or over and suspended for such period and ive struggled to find additionry definition that says a suspension for an indefinite period of time. Can you explain for us how the indefinite ban thats been imposed here complies with the language of the statute, not whats been done by other president s, but how this would meet the statutory grant of authority . Sure, your honor. The first point, the statute says for such period as he may deem necessary. And in this circumstance, when the problem that has risen is the countries arent giving sufficient information, its entirely permissible to say that the period will last at least potentially until they correct their informational deficit, but the order doesnt even go that far because what the order actually says, under section 4, is that every 180 days, the president will and the agents will revisit. But theres no sunset provision. Theres no sunset provision. Its in place essentially forever unless he says otherwi otherwise, isnt that correct . No, its in place until the countries improve their practices or until he decides to change. Let me ask you another question. Lets just say that this study contains information which is likely to be true, that most terrorists are people who commit terrorist acts, are men. Could the president then ban all men under the express authority granted by 1182f, could he ban the entry of all men until evidence showed further that men are not the ordinary and customary perpetrators of terrorist activities . I dont think so, your honor. Why not . I dont think that using gender as a proxy would satisfy mandels requirement youre using if you cant use gender then theres a question of violating section 1152, is that what youre driving at . No, what i was driving at under mandel, the pre restrictions have to why isnt legitimate, if 99 of conducted by men arent we keeping out men you cant use forbidden trades as a proxy, you have to target the actual conduct youre worried about. Nationality is not a proxy target. Nationality is not an invidious the law rice you would agree that section 1152 bans discrimination based on gender and nationality. Only in the context of the issuance of immigrant visas, your honor, that language is critical. If congress wanted to restrict the ability of the president to keep aliens from entering the country they would have never used language in the issuance of immigrant visas. Because its clear under the ina, because the issue of an immigrant visa does not entitle anyone to enter the country. You have to be admissible. If congress intended to implicitly repeal under 1182f to allow the entry to suspend the entry, they never would have used the language in immigrant visa and this is clear in the history. In your view can the president use 1182f to promote or further any Foreign Policy objectives that he might think acceptable . This one i guess arguably is relate in the sense of the report is vetting sufficiencies with these nations, but if he was unhappy with a nation for unrelated reason regarding a Foreign Policy objective could he then say i ban these seven or eight nationals from this country in an effort to promote my Foreign Policy objective . So, i think the statutory evidence is in the interest. And its its not at all related to the, at least in this case, related to the improvement of vetting processes. Are these arguably related to immigrationrelated contexts . I think thats right, your honor. I understand that president carters iranian proclamation or president reagans cuban proclamation were challenged, but both of those orders have exactly that feature that because of Foreign Policy disputes with the government, the president restricted the entry of immigrants from those countries without any suggestion, any suggestion that the individual nationals subject today that restrictions had anything to do with the Foreign Policy dispute with the government. This case is stronger than that because here the concern we have with the Foreign Governments is failure to supply the information on the immigrants. And its stronger than the use of 1182f. Counsel, i have a threshold question, the argument that you make. Is that meant to include an argument that the plaintiffs, weather for the statutory claims under 1152 and the apa, for the constitutional claim, that they do not have standing in this . So we have made an article 3 right in this argument, your honor, but our primary arguments are focused on nonrevealability. On the statutory side, statutory claims challenging the exclusion of aliens abroad are not reviewable and this congress expressly provides otherwise, and here congress has not done so. And on the constitutional claims that an alien abroad has no constitutional rights. Sir, are you making a rightness claim or a standing claim or merged into both . So rightness and standing as the Supreme Court recognized fairly related and in this context, i think the nature of our rightness objection is also in article three, lack of imminent injury objection. The basic point unless and until an individual alien seeks and denied waiver they are not affected by the proclamation is it your position that the courts cannot review this proclamation for validity . No, your honor, what i was saying on the constitutional side, our argument is on the statutory side. Lets take that first. Is it your position that the president could make any finding as detrimental activity and find that they should be excluded for National Interest and we could not review that or statutory . Is that your position . That is our position, your honor. Can you cite to the case where congress has stripped our 1331 jurisdiction . The shaughnessy and the Supreme Court decision in bruno. Both of those cases recognize when youre talking about a statutory claim, the restriction of aliens abroad of entry of aliens abroad is a fundamental political and Foreign Policy judgment not traditionally reviewable unless congress has provided otherwise and thats clearly the rule when it comes to cons lahr officers. If they restrict aliens abroad even by misinterpreting the ina, thats simply not reviewable unless congress provides otherwise. Hasnt congress made it clear even in 1182f when they stripped our reviewability, several times, sole discretion, not reviewable . I mean, in other parts of the statute, 1182, but not in f, correct . I believe so i think 1182f. 1182. I think 1182fs language itself further determines reviewable how so . If the president finds its not in the by using the phrasing as the president finds. If you have to find something, that means its reviewable, isnt it . I dont think so, your honor. Who are the findings for . Thats the statutory constraint on what the president has to do just as in webster versus doe. Thats not what im asking. My question is who are the findings for . It is a substantive complaint on the president and how is it a constraint and who reviews that constraint. The president takes an oath of office. I understand that. Who reviews that restraint . Its not traditionally reviewable. That doesnt mean that the president doesnt have to follow it. Who, where are the teeth that would say he cant . You said the courts cant. The third branch of government, we cant. Who does . Two things, your honor, the first is the teeth the first and primary teeth is that the president takes an oath of office and has an independent obligation to comply with the constitution and laws, that he takes seriously. The second i would say is that congress on january 20th he had the power because he took the oath of office. I dont think this court should lightly suggest slightly suggest, you said oath of office, january 20th is started. Im suggesting. Go to point number two then. The point number two is that congress has the ability to review what the president is doing. Remember, were talking about statutory claims, if congress how does congress do that . If concern is concerned that the president is violating its statutes congress can authorize review. Congress has not authorized review. And the Supreme Court has said repeatedly dont we have a problem on the charter case to talk about charter, it talks about congress cant delegate authority and then decide its going to be the ones to arbiter that. Are you saying they can do that . They delegated to the president and then theyre the ones that decide whether or not. So charter did not exclude aliens abroad. The exclusion of aliens abroad is a narrow set of circumstances where the Supreme Court in noff versus shaughnessy recognizes unless congress provides otherwise there will be no review and part of the reason for that, unlike enchadda, the president has executive authority with respect to the exclusion of aliens abroad. Well, no, the power under ina comes exclusively from congressional power, does it not . It does not, your honor. If you look at shaughnessy, the argument was made that the congress improperly delegated to the president , and the Supreme Court said thats not true that the president has inherent executive authority to restrict the entry of aliens abroad. And i know judge march has a question. Youre saying under 1152 clearly in 1965, it was a policy that we would not discriminate, National Discrimination and the president can just say, i dont want to do that . Were going to forget about that and we will we will i can have every countries excluded and you said theres no review of that, is that correct . If the president were to do that it would not be reviewable, but again, the president would have to make a finding it was detrimental to the National Interest. Thats not what we have here. What we have here is that the president found that eight countries have specific National Security and Foreign Policy problems and in response to those problems, hes imposed an entry thats precisely what president carter did for iran. Its precisely what president reagan did for cuba. No one argued that those entry restrictions those. No one challenged either of those. This is under challenge. Thats correct, your honor. But the fact that no one bothered to challenge it strongly signals how weak the claim is. Those statutes look at immigrant visas. I thought says what you said the major reason why it doesnt apply. The issuance of the visas on entry. And the question about gender, you said gender doesnt apply its a broader classification that deals with invidious discrimination much like race so gender is one that you cant use. So why would congress put it in 1152. It sounds like to me its already covered, gender and race would already be covered even with the issuance of this these visas and level two. Why is it in 1152 if what you say to judge keenan, that gender doesnt apply because its one of those chascations that they just cant do it because its one of those invidious classifications, like race . But you can use nationality because its not. So my question is, then why have 1152 apply to race and gender cause you dont need it there . There are a lot of statutes, your honor, that prohibit things that are also why is it in 1152 . Because congress was passing a statute that bolstered what the constitution at least potentially in part also prohibited, but i think the other important point is 1152 is focusing on the issue of immigrant visas, the ones they were trying to do and i think the legislative history makes it quite clear if they were trying to wipe out the preexisting you didnt need it, you already had it in the answer to judge keenan, you already had that because its already cant use gender and cant use race. Otherwise you can. If the president can do it, then he can do it in the instance as the judge indicated on this basis, too. Your honor, there are a lot of statutes that prohibit what the constitution already prohibits, im not sure why would that undermine the argument i was making. Under 1152 the legislative history was clear that congress was concerned with the National Origins quotas. Let me ask a question, i know others have, too, as i understand it theres been a worldwide review and thats the primary basis upon which you think this is really din and thats why the Supreme Court issued a stay. In the face of a worldwide review, which we which is classified, we dont have it, we simply just know its there procedurally, fine, but then what do we do when were looking as an objective, reasonable observer, and we have multiple instances in which this president has indicated before the election, during the election, and just a week ago, so ago, i believe we can take judicial notice of that in the news, he tweets the very thing that is indicated, the plaintiffs say the purpose of this proclamation is. What do we do with that . Im trying to, in other words, do we just ignore reality and look at the legality to determine how to handle this case . If the reality is if the reality is that is the purpose, but the legality allows it, does that make a difference . Several points to that, your honor. The first is we do think that all those statements are legally irrelevant under mandel, and here is a critical point difference from last time tell me what you mean the statements. Im talking statements directly to purpose. If the purpose if the allegation is that this is in an effort to ban muslims from this countries and every statement thats made by the individual who is the president making it, goes to say that, but it is done in a way as to say, well, we did a worldwide review and now its legal . And what i was saying, your honor, is that the Supreme Court, since we were here last time, in the Morales Santana case made chris cal Crystal Clear is a rational basis review, when you engage in rational basis review you do not look to see whats behind the motives. And this is a rational basis review as you say that the Supreme Court says it is, and do we then go back to answer it in that way. I understand what the Supreme Court has said, tell me. It you go past the Supreme Court saying rational basis applies. Under mcqueary, the primary purpose of the proclamation was religious, and i will submit that when you have a multiAgency Review where youve got numerous and its classified and thats all we know, that theres been one. Okay. Theres been one. Theres record, right . That report youre talking about, its not in this record . The report is not in the recordments, but we have a record of statements and notwithstanding how you may classify them, we can take notice of statements that are made, the evidence allows us to do that and we do have that as to direct purpose on the part of the president. Again, your honor, the reasonable objective observer would look at the proclamation and what the proclamation says, you dont have the underlying report, but you have the proclamation and the reasonable observer would not ignore what the proclamation says. Arent you saying that the support for the proclamation is in the report . Is the support for the proclamation being rational and not a muslim ban in the report . Its further detailed in the report and also detailed on the face of the proclamation itself. I mean, courts can look at classified information in a secure manner. Wouldnt this be much easier if you would just have put your support in the record, albeit classified, so that we could see it . Dont count on it, that it would be easier. Your honor, it wasnt just that it was classified, the fact that its classified is part of the reason its not certainly public. This is also a report covered by the president ial communications privilege. Its a recommendation from cabinet secretaries to the president that includes incredibly Sensitive Information not just because its classified, but also contains important Foreign Policy related information, including information such as which countries engaged with us and which countries improved their practices during the engagement process. This is all incredibly Sensitive Information covered by president ial communications privilege. Now, that said thats what you have to fall back on. You cant get past the classification of it, were article three judges and we have clearances. Thats right. For the classified stuff, but the executive privilege, you have to litigated. Thats right, your honor, what i was going to say. It wasnt asserted in the District Court. No. If it wasnt asserted that issue has not been resolved. This court, we dont think its necessary or appropriate, if this court were to order us to file the part ex parte under seal we would do so and you would see that the you would file the privileged material, too . You wouldnt stand on the privilege . I mean, i thats an unusual position if you believe in the privilege. I said if this court were to order us to do it. Well, i understand, but were of equal branch of the president and he can determine his privilege and the question is, whether were going to get into the dlib deliberative process of an executive. And seems to me would be similar to the president asking us as judges to give him the deliberative process behind our decisions. Your honor, i certainly agree that we shouldnt have to disclose that, but you you would give it up if we asked you to do so. If you ordered to if we ordered, wed have to litigate the executive privilege first or we wouldnt have to, whats the answer to that . Would we have to litigate the executive privilege issue before you would show it to us, ex parte and in camera . Your honor, im not sure weve taken a position yet. You dont have a position yet. On whether the court would order us, if we were to first assert the executive privilege. If wed order if we ordered you to, you would give it to us because we have clearances just like you do, every one of us, but you have another point, and it could be a valid point of executive privilege, deliberative privilege, however you described it, we understand that. I thought your answer was if we ordered you to do that, you would give it to us, but if you want to back off that. Before you had a he give it to us, would you insist on litigating the deliberative process before you turned it over, ex parte and in camera. Your honor, i do not have a position on this, if relative to the court we could submit a supplemental and whether you would want to stand on the privilege if i could stand up on that, you were counsel in District Court. Yes. When this question came up before the District Court, you told the court if you think what is in the proclamation supports it under relevant legal standards then it should be upheld. If you think that whats in the proclamation isnt sufficient to support the relevant legal standards, then it should be involume da invalidated. Do you stand by that position or do you have a new position . We do think that the proclamation by itself satisfies and and you dont want to look at no, no, there were two sentences and im asking you if stand by them. I dont think it requires a long answer. If you think whats in the proclamation supports the relevant legal standards, then it should be upheld. If you think whats in the proclamation isnt sufficient to support the relevant legal standards, then it should be invalidated. That was the case you put to the District Court and i assume that was the case that you would put here. It is and we do stand by that. Thats the mandel principle. We do stand by that. All im suggesting in so far as any of the these judges on this court thought that was what was critical to their analysis is whether the underlying report no, but youve told us you live or die by not having it in and i just have one other question which i also when the acting solicitor general was here before, he persisted in telling us how temporary this ban was, it was a brief cause and thats the difference between the order that we have now and the order that existed then. And its one that you havent spoken to, which seems to me to be pretty significant. The reason for the difference last time it was in temporary, because it was in service of the study. Right, the suggestion was that the study was going to make it so you nt wouldnt have it in the future. Lo and behold the study said we should do this indeterminate amount of times. Critically only for the countries found to have inadequate information sharing. It wound up pretty well theres overlap and theres not perfect overlap, sudan is not covered and iraq wasnt covered as for the first order. Iraq was not on the case that was here before. Iraq under the first order. Of the other countries that are covered, there are exemptions for the nonimmigrant visas. Its certainly true, were not denying many other countries are also covered nor should anyone be surprised if youre investigating whether countries have inadequate information sharing practice it is, countries that are terrorist havens and nor would we be truly surprised i guess since the president has continued to make statements some people record to be antimuslim after the issuance of this order, should we be surprised that it might be construed as an antimuslim order, with the president said i dont think thats fair of the proclamation. Im asking about the president s statements after the order. What im suggesting, your honor, is that the president s statements after the order mostly said he wants it to be tougher and whether it is tougher, its most certainly not tougher with respect to muslims. Again, if you look at what countries were covered, they took out muslim countries, created exemptions for muslim countries, they added nonmuslim countries in a single majority Muslim Country thats only 52 . You added north korea and venezuela, but it doesnt apply hard to anybody. The other side, thats kind of like window dressing. Again, your honor, the point socalled nonmuslim countries. The president s statements were they he wanted it be tougher and no one can reasonably construe that to be tougher with respect to muslims because the proclamation is not tougher with respect to muslims. The president s statements judge wynn was asking about from november 29th. You degree that we can take judicial notice of those, right . Judicial notice, we dont think its legally he will vants. Are you saying that youre conceding that we can take judicial notice yes, he did. Whether or not they want to use the content, the plaintiffs want to use the content of those statements, which would never be admissible in trial, theyre not official documents, theyve got speculation, opinion, hearsay, triple hearsay and youre conceding that we can take judicial notice of that. Your honor, i thought judge harris, maybe i misunderstood, that the judge was referencing the president s tweets not the newspaper articles. The president s tweets are official statements of the president of the United States and i assume as did you say right in response to her statement just then . Yes, he did, he did. You concede that those are official statements of the president of the United States, correct . Why he yes, the are you conceding that tweets are officially statements. Yes. Thats the governments position in other cases, we have plenty of evidence on that. And my last one and its still the departments position i take it, thats the president who speaks for the executive branch. We have a if theres any dissonance and gaps between the purposes and motives between the president and a subordinate executive official, as a court, we cant go behind what the president says, right . We go with what the president says. In so far as its legally relevant, yes, your honor. Plaintiffs put these statements before the Supreme Court in opposing the stay and those statements didnt persuade the Supreme Court from staying this injunction and they shouldnt dissuade this could are the from reversing the injunction because theyre not legally relevant, not under mandel because of the rational would they be legally relevant under mcqueary. We dont think that why not . Relevant, but not persuasive. Your honor, just to clarify, we dont think we think that statement about the practicemation would be relevant, but not persuasive. The most recent tweets arent even about the proclamation so we dont think that they would even be relevant. You think that no, go ahead. So youre suggesting, counsel, while the president may be showing antimuslim bias in his tweets, that cannot be taken over into the content of the proclamation . Your honor tproclamation has to be viewed on its language not as antimuslim bias as evidenced by the tweets. I dont agree with the characterization of the tweets, regardless of the characterization of the tweets, we dont think its relevant under mandel or mcqueary. And jumping back to the statute. Can the president violate the immigration and naturalization act . If a global question. Can the president by terms of his authority under 1182f take action contrary to any other provision of the ina . No, it is certainly possible that the president could engage in conduct that would violate some provision of the ina. Were not okay, what would be the limiting principle from your perspective then . If the president can ban all immigrants, even though the ina says you cant discrimination against immigrants, if the president could take other actions of seemingly infinite nature, even though the stature says suspend for a period. Can the president essentially say, well, im banning all immigrants . I dont want to take any acti action . Why couldnt the president , under your theory, violate any particular provision of the ina by making a finding that entry pursuant to any other provision of the ina is detrimental to the interest of the United States . The president has to make a finding as you said that the entry would be detrimental and the outer bounds so i would say two things about what the potential outer bounds are of the National Interest. One substantive and one sort of procedural. So, one point is that it cant be contrary to some other ina provision. If the president said i dont like immigration. I therefore think its contrary to National Interest. I would think that would be serious intentions with ina authorizing visas. But critically thats not what this proclamation does. What this proclamation does is find that there are certain countries that present National Security and Foreign Policy problems and as a result of that, the president s going to impose additional restrictions and that sort of order is well within the core of 1182. I would point to the court, its very important, to emphasize in the d. C. Decision in the 1st circuits decision in ina involved exactly this sort of order where under ina, there was a visa inadmissibility ground that required that aliens activities in the country be harmful, not just entry, but activity. So the president s stand im trying to figure out the outer limits here. So the president can treat immigrants more harshly than he treats other aliens, is that correctly correct, excuse me under 1182f. If he has had a reason why its detrimental to the National Interest. He said its detrimental to the interests of the United States, because they have more rights when they get here. That decision to come within the scope of 1182f. Not only is that sufficient, thats exactly what the Supreme Court held in sale. In sale, if the haitian immigrant that got him to the shores, they would have asylum protections and in order to and sales essentially said that once they got there, they had to show they had a right to be there, isnt that correct . No, your honor, the key point in sale thats responsive to your question is that sale, if the immigrants had gotten here they would have had asylum protections and precisely to prevent them from invoking their asylum protections, the president set up a blockage. And that hes using 1182f in a way that would arguably stopping aliens invoking rights that they might otherwise have is not a problem to and getting to the reasoning of the proclamation, i know the president doesnt have to be logical, i agree with you. Thats not what i said. And the proclamation can be riddled with logical thoughts no more than we have to be logical. Standards my concern is with regard to immigrants, the president has not set anything in the proclamation as to why immigrants should be treated differently than other aliens of coming from the same country. So youre from the banned countries and you just want to be here temporarily, then youre subject to fewer restrictions and if youre an immigrant from the exact same country, youre banned, and youre saying, well, it doesnt make any sense, but the president can do it . No, thats not at all what i said. I said the proclamation explains explicitly why theyre drawing that distinction. Theyre drawing that distinction because immigrants have greater on removal. If the problem is theres insufficient information from these countries and theres a risk that our vetting system is not, woulding worki working and immigrants are getting here, and congress was saying in 1152 these immigrants are future americans and were going to give them some protections. We are he going to say you cant discriminate against people baseded on nationality. Dont you think that that was a legitimate distinction congress was drawing with regard to immigrants as opposed to the random alien who comes in here and were not going to discriminate based on nationality, isnt that an expression of clear intent on 1182. The history that it was Crystal Clear what they were trying to stop was National Origin quotas, discrimination on ethnicity and race and let me ask you this. Isnt it true that a president is entitled to the greatest area of deference in National Security and then doubled down on National Security and international affairs, is that correct . Thats absolute right. Then i want to see how you think that principle of deference works when a president makes statements, people look at those statements and some would go clearly its antimuslim. Some if you read them on context, and there may never be agreement between the two groups, no, hes talking about terrorism relate in some fashion to some people who are muslim, socalled radical islamic terrorists. You can look at his statements and each side would find something they would point to. What inference can you get any inference on what his statements are in light of the deference hes entitled to . Yes, your honor, in light of the deference hes entitled to and i think almost as important if not more important, in light of the rational and and per missability no, im just looking at the statements. I had on the facial neutrality or rational, but im interested in its pretty clear people are interested in his statements. On his statements, its dripping with discrimination, others go, well, no, if you look at it in context, its always how the statements are made so people can look at them differently. If there is that possibility that the people can see them differently in total context, is he is there any rule on what deference he would be entitled to under this tremendous deference in this area . Yes, both given the defrps hes due in this particular area as well as the deference that branches are due. I think you should take the more permissible, charitable interpretation of what the president did instead of the more hostile one. In this case we have a proclamation that was recommended by agencies who have no such statements. Theres no basis to question the integrity of the officials who made the recommendations. We havent seen them. We havent seen the report where this came from and weve previously determined in that other opinion that it was the eo2 was made in bad faith and because of all of this the things that have been said and now youve got more added to it with these last tweets, plus a proclamation, plus the report which you dont show us. But the proclamation lays out that the agencies engaged in this process and recommended these eight countries, so unless this court is to say that the president is just lying and that the agencies didnt actually say that, and somehow no one is look at it and see. We cant look at it and see. Your honor, this court should not lightly suggest that the president of the United States is flat lying, that eight agencies recommended the agencies recommended that i had your argument that theres an Agency Review process that kind of links any chain between any concerns anyone might have about the president and what happened here, but i need you to explain to me how a review process by subordinate executive Branch Officials is an independent act, that can cure the tapt frtapt taint from president ial statements, dhs is not an independent agency, its part of the executive branch and there is no constitutional speak. Its not that the president is over here and dhs is here. Dhs is subordinate to the president. I dont see how the review process can be intervening independent act. The question is whether if you reach the mcqueary stage of analysis, the request he is what is the primary purpose of the proclamation. Which is signed by the president of the United States. Thats true, your honor, but and he has his statements on the record. Officially statements. President of the United States. Although i agree people see things differently. Some of those november 29th statements, even with deference, construing them in the light most favorable to the president , its tricky to see the National Security rational in those. Your honor, given you asked why theres the potential what the relevance of the agency, and would i what i would say is this president had adopted the recommendation theres nothing about either the process or the substance of the proclamation that would even possibly give rise to i understand you think were not in mcqueary and establishment clause land. If we were, thats just entailment of the purpose inkwoo inqui inquiry. It the staut tut constitutional in one and unconstitutional in another. Neither mcqueary or other cases suggest that when multiple agencies are in a deliberative process, make references to the president , and when those are facially neutral about religion, all of that could be set aside based on earlier statements and statements that dont pertain to what the about upper of proclamation is, i think just focus on, for example, mcqueary. Mcqueary involved a facially religious practice that even in the third iteration had great emphasis on the language, religious in nation, the other monuments put up alongside it, didnt make much sense. The history bolstered the conclusion there, but it didnt drive the conclusion there. Whereas here, without the prior history, theres no argument that this would violate the establishment clause so, i think much better analogy than mcqueary is mcgowan. You have thats to that day to protect the sabbath and the Supreme Court nevertheless held that violating the statute clause. The primary reason is that the exemptions in that statute revealed that it didnt any longer have a religious purpose, that it was more secular in nature, there was more about leisure than religion and what i would submit in this case, the exemptions in the proclamation serve a very similar function, there is no way you can conclude that this is a muslim ban, but for some reason they decided to exempt nonimmigrants from most of the muslim countries. That simply just doesnt make any essential if you think its a muslim ban, but perfect sense under the rational of the proclamation is given, there is problem with information sharing from these countries and in order to both deal with the risk of that, but also just as importantly, to encourage these countries to improve their practices, the president s adopted tailored restrictions, that differ based on countries and their recalcitrants and willingness to cooperate. If makes no sense under the par gument that i just want to make sure that were clear when you responded to judge king, that the president would have to be flatout lying. I think the position is the president is not lying about what he said. He said what he said. We dont think at least from my perspective, i dont think hes lying at all. If anything, hes one individual who is saying exactly what he means, notwithstanding judge sheds characterization that it can be read many ways. He seems to be saying it over and over and he is making it very clear, he seems to be telling the truth about what he actually feels, not that hes lying. And i think that thats the question. Is the president is telling the truth about what he feels and notwithstanding that, youve got independent worldwide review, which you seem to characterize they just decided to do it on their own without any impetus whatsoever, but well leave it there. If you have that and hes telling the truth and the truth is perceived to be what hes saying over and over again, how do we look at that in determining i know you want to look at mandel in a shell in terms of rational basis, but in terms of a reasonable observer . Again, your honor, the reason the proclamation, given its recommendations on the agencies and if you take it given that hes telling the truth that the agencies did so recommend, that the agencies did engage in this process, that they did find that eight countries from inadequate information sharing practices or other risk factors that undermine visa vetting, that because of those restrictions they recommended tailored entry restrictions that encourage them to improve their practices and to protect the nation until they do so. If you accept that as true, what i would submit is these statements, certainly the earlier ones you would accept the statements as being rue . The statements are what the statements are. No one is disputing over and over again. , but what im saying is that those statements, especially the recent ones dont speak to the purpose of this proclamation, what this court is reviewing and the purpose of this proclamation to deter terrorism . Is that the goal of the proclamation . Look, the end objective of the proclamation is to keep this nation safe from terrorism and other national publicly and the president s tweets youve already conceded are official statements of the president of the United States and that they could be subject to charitable interpretation. There was a tweet a month before the proclamation was signed by the president tweeting a statement that shooting muslims with bullets dipped in pigs blood should be used to deter future terrorism. How am i to take that charitybly . Your honor, the first point thats not about the proclamation at all. Its about deferring future terrorism which i thought you said was the goal of the proclamation. Is the end goal of the proclamation, but the proclamation is dealing with a specific problem which is inadequate information sharing. What the president said in that tweet about how to deal with actual terrorists, whatever you think about that, it doesnt suggest that hes any sort of general bias against muslims. It doesnt suggest that theyre going to ban all muslims because of a fear, and the proclamation says the exact opposite. The proclamation says theres inadequate information sharing from these eight countries or other risk factors that undermine visa vetting and to deal with that problem, a particular aspect of the broader terrorism problem, they are imposing entry restrictions to those country to improve those practices and protect this nation until they do so. All right. Thank you, counsel. [inaudible conversations] good morning, your honor, and may it please the court, the proclamation repeats four fatal flaws that doomed eo2. First, in response to judge harris question, the president directed the subordinate agencies to stick with his original architecture for the ban and that is to use nationality as a proxy for religion. By design, what the president asked these agencies to do stuck with his plan let me ask this question, the same one i asked to start the other argument. I want you to tell me in light of the Supreme Courts actions to grant the stay on, i think it was monday, and since stay the criteria for stay and preliminary injunctions are essentially the same, of course, you oppose the Supreme Courts action, but i want you to look at the action and tell me what impact do you think that that is likely to have on the final resolution of the validity of the injunction we have before us. Judge, i dont think that they being can anything from the stay in the substance of the Supreme Court i didnt say substance. Im asking you now for this court, youre saying we you cant take anything from that, any indication at all . I dont think the court can, your honor, because the Supreme Court was very careful not to say a word about the merits, or the equity. I have the same question as judge shedd did, it seems to me to have granted the stay at all. The court had to find there was a likelihood of success on the merits. I dont think thats is that wrong, no stay laws dont say that. I dont think thats right, judge, because as we saw with the Supreme Courts previous stay, that one is actually detailed that they were issuing that order based on its view of the equities presented on the record here. They did say that then. I dont think we can assume as suggested, that the Supreme Court in this instance was saying something about the merits. To the contrary in the normal case, thats the most important factor. Your honor, it is, but the Supreme Court previously did not address the merits and ruling on a stay related to eo 2 and i think all of this court can do is to decide the case on the record and on the law as it finds it, thats what the Supreme Court the Supreme Court. I guess the question. Followed the traditional process here and they just omitted the factor about substantial likelihood of success on the merits . Ments we cant tell why the Supreme Court issued the stay. It didnt say as it did last time. Any type of a stay proceeding or preliminary injunctions, courts just dont skip that stage. The courts cant rule on the merits last time considering eo2 in a preliminary injunction. All i can say is that this court can simply judge this case as it finds it. Sclooep the Supreme Court can do what it wishes and it should have the benefit of this courts ruling and set of opinion and what the night circuit does. For me too understand your position, we should take anything from the facts of the Supreme Court. I dont think you can, your honor. The second reason that the new proclamation. While you could read between the lines and think that you are to be asking us to send it back to have the District Court ruled on the merits and come back up and then have the merits. Well, the District Court did reach the merits dash. He dealt with the preliminary injunction. He didnt consolidate under 65. With the merits of the case, he did make a full record and all that stuff. Judge, your honor, there is more than an adequate record to support this order. You can reach the statutory issues on which we didnt prevail, and i think there is an adequate record to do that and the Supreme Court did direct escort and the ninth circuit to reach a decision so i think thats what the court should do respectfully. The second recent before you get to the second reason, you begin by saying this continues the practice of a proxy by nationality been read this is different in the sense that on the space of it, proclamation, all 200 plus nations went down to the similar result with respect to these other prior executive orders. Why doesnt that make a difference in the sense that it not begin as a proxy by nationality bay on. Your honor, i think the government conceded now that we should not be surprised that we ended up with five of the six countries that were beyond our once again been done to the proclamation. Thats because even though the president directed this worldwide review of each country, what he did in section 2e was to say give me the list of your countries and your honor, in the design of the study. Did he for ordained. [inaudible] was he not going to be satisfied if he could come back and say we couldnt find anything. Thats right your honor. We know that from eo two and the proclamation itself which comes up with a list of countries. We know because the president said so continuously. The key example ill give you, on march 15, the day that they were joined by two District Courts, the president said two very important things. The first thing he said is we have a very big problem with muslims assimilating in the United States and the second thing he said is i want to go back to the original and im in a go all the way. That statement is one he has repeated throughout the summer and the fall, and even before the results of the study came out, long before the study was even done, the president said im sticking with my original plan and that is to use nationality. This goes way back to what he said right before the election and was confirmed by his advisors right after eo one issued that you dont want to talk about muslims, then ill talk about territories and thats exactly the architecture we still have. What is the relation regarding the statue. If i recall your predecessor said if it was any other president the eeo to would be fine, it would be okay, it would satisfy the statute. Is that your position . I think what we said during the last oral argument is if you didnt have the record of statements it would be a different case. I agree that is the case, but your honor, as judge keenan noted in her concurring opinion, that actually is reason to doubt that this is legitimate on its face and its crossreferences to eo two and its internal illogic which has in common with the oh two. The proclamation says we have a problem with the information sharing from these countries. As a result of that, there is such a highrisk from nationals of those countries that we will be on 150 Million People, the vast majority of whom are muslim from six predominantly muslim countries, but were going to let in a lot of them. But absence the troubling statement of the president which continue, which are positioned to be different if that were not part of the record. Your honor, it is a different record but i do think judge keenans view of vo2 still holds with the proclamation. And after the study. It seems to me the fact that the government has taken great pains to investigate what exactly are the threats that are posed now and arguably can be illogical, it can be flawed, it can be a product that perhaps you would be proud of in terms of its cohesiveness, but the president can do it if he makes the required findings as long as it doesnt violate the ina or as long as it doesnt violate the constitution. Are we now, since hes looked into the substance and reached his conclusions, are we limited to determining why this violates the ina or violates the constitution. Your honor, it does in fact violate the ina and the constitution for similar structural reasons that you pointed out in looking at eo two and going back to judge harrise harrises. Or are you limited to looking at just that. No, we are not limited because for the same reason this court held that we passed through the mandel hurdle because the record shows that the proclamation like eo two is not bona fide and, the internal illogic of the underinclusive, by not having a nationality against venezuela even though they met the baseline, and then including somalia even though it failed the baseline, not including countries like belgium or the philippines that have been widely known as a National Security as officials have noted. That goes to judgment rather than authority. But your honor,. Where is there a violation . Yes your honor. On the establishment clause, the proclamation suffers from the same fatal flaws but eo to date. We get past the mandel hurdle because on its face and taking in light of the statements the president made that he is sticking with his original purpose to use nationality as a proxy for religion, we do not know but this proclamation is not bona fide. Theres also evidence in the proclamation itself, just limited to its four corners, but because of the internal illogic, being underinclusive, being overinclusive, letting in a great number of non immigrants even though he sang the whole premise is that the nation has some problem that makes the entry of anyone from that country a threat. All of those things show on the four corners, this is not legitimate. Putting that aside, its clear on the record that the president has continued to make statements of hostility toward muslims and in response to something that the government said in its presentation, he said the november 29 statement, the retreating of these anti Muslim Videos is not connected to the proclamation. To the contrary, on the white house official website you will find the statement of an official white house spokesperson who said that security and Public Safety for the American People are the issue the president was raising with those tweets and the president had been talking about the Security Issues for years from the campaign trail to the white house. In the president has addressed these issues. The issues in the stated by the tweet with the travel order he issued earlier this year end the companion proclamation. To let me ask you. I assume the same principles youve described in your briefing and elsewhere, the same record but the proclamation only covers syria. Is there any difference . Your honor, i think it would still be a problem because the president and Vice President pence had targeted syria in the same way and made the same connections between nationality. How is that any different than what president reagan president carter did. Its different because its the structure of the proclamation that holds, it violates Congress Judgment in the 1965 act that we arent going to act on stereotype, we arent going to go to a nationality based quota system. Both countries, syria and iran, the only two on the list that refuse any cooperation with the United States in terms of intelligence sharing, identity sharing for travel, the chucked full of folks from al qaeda, they been in varying states in the syrian civil war, are you saying on this record that any president is simply not able to make judgments for the protection of the nation and the conduct of Foreign Policy, is it only those countries. Certainly not. Setting aside our statutory claim, on the establishment clause, certainly it would be a different record if the president hadnt continued to make statements, anti Muslim Statements right up to the time he issued the proclamation. Your position is even if its just syria or syria and iran, those are only two, theres no changing your argument. On the same record in including the tweets and the constitutional claim, yes i think theyll still be a problem. How do you explain the fact that congress and the Prior Administration identified the very same countries. I think it was in the Visa Waiver Program saying they were a problem and they were not part of that program and for the very same reasons, those very same countries were the countries that were included in eo one and eo two. They are also, to some extent carried on into the proclamatio proclamation, in addition to chat in venezuela north korea. Youd draw a lot of inference that eo one identified all muslim countries and therefore it was a surrogate for anti muslim animus where those same countries have historically been part of the administrations identification of problems in the immigration area for the very same reasons, a lot lack of information, the fact that there were good checks, it was hard to that, and that many of these terrorist groups were springing up in those countries. And so, i dont see the logic we start with eo one without even looking at the prior history. If you dont look at the prior history, how we treat those countries and those nationalities, then you had to go that far. In addition, congress identified nations, not individuals and you seem to suggest that congress is prohibiting identification by nationalities but throughout the ina, they do so. Your honor, that is precisely why we prevail on our statutory claim. Congress looked at the very factors that the president is asserting as justification for the proclamation. The judgment was the answer is that if these countries pose these kinds of information sharing problems, dont let them participate in the Visa Waiver Program. Subject their nationals to the individual it also gave the president to write in a National Interest to exclude classifications of immigrants. That is really an exercise of sovereign power which Congress Shares with president , but i dont see how we, as a court are asking the questions were asking today, was the judgments question right, did he have enough information, do we have to identify members of the groups and say im a member . These are judgment of the executive exercising sovereign power and theyre not the subject of court review as we are seeming to want to conduct and you seem to want to conduct. It seems to me if on its face is logic coherency, and there is, theres a selection among countries based on identified data that some muslim countries are subject to the restrictions and some are not. Indonesia is not on there. Its a most all muslims, and its huge in terms of a population. The suggestion is, it has a background noise that is driving your argument, and that background noise is the subjective views of the president expressed trying to campaign. But your honor, actually there are two points i would make in response, in fact, though the president does have great power in matters of National Security and immigration, he is subject to the constraints that congress has put on him and that the constitution puts on him. He gets his power from the constitution in the first instance and he shares those powers with congress and the Supreme Court has made that explicit for 100 years. The idea that we are interfering in the judgment of this proclamation, it seems to me all we need to do is to look at the face of the proclamation and say whether it is rational and exercised in good faith. Your honor. And so if that narrow exception, we are then left with the background where courts, we play an Important Role domestically. We do not exercise the sovereign power of the United States. Thats a president ial executive branch power and congressional. Congress gave it, shared that power and gave it too the president and fullscope and now youre saying no he doesnt have it, we get to review it and ask them why. You can ask the president the real reason. Actually, the precourt reach the merits of the statutory claim and it wasnt about the actions of the president. The Supreme Court has been very clear about exactly how the president and Congress Share the power to regulate immigration. Congress writes the law and the president must follow it. In 1182f, congress did give the president a power to suspend, for a period of time, the entry of noncitizens, but he is subject to the restrictions that are both on the face of 1182f, having to make the finding and still subject to the constitution and considered on the merits, acclaim, statutory claim about the present action under 1182. It did not say thats nonreviewable. Contrary to what the government proposed during its argument, they just said that congress, that the president was acting pursuant too. [inaudible] its just the opposite of what youre saying. It basically said thats the president s prerogative and were not going to review that. Actually your honor, what it was about was whether the president was importing with the statutes passed by congress and the court said the un protocol to which the u. S. [inaudible] what is the right that they are exercising in coming to court . In other words, i understand you are relying on the apa, is there anything else you relying on to get into court . On the statutory claim. Any claim. Sure. We are relying on the apa but were also relying primarily on the large number of cases including. [inaudible] tell me what the substance that authorizes you to come to court or are you looking for a freestanding constitutional claim. The government doesnt contest that the court can review constitutional claim. You need to answer my question. Im answering it. In chamber of commerce, armstrong and more, the Supreme Court made clear that courts have the authority in equity to enjoin an executive Branch Agency when there is a claim that is successful that the president or the executive branch is violating the law and whether that be statute or constitution, and we see in case after case that the circuit courts. I thought armstrong suggested that it had to be connected to a cause of action and im trying to figure out, it sounds to me like youre trying to file a bivens type of action under the First Amendment, a freestanding claim that would be discriminated against under the jurist prudence clause. Im not sure there is such a claim. Your honor, we are not making anything like a bivens claim. Im asking whether the Free Standing constitutional claim. Im saying it was created as an exception because the plaintiffs didnt have a way into court and the Supreme Court created that, but my question for you is there is no such cause of action thats been created for you in your circumstances and i want to know what youre relying on. This court has already cross that bridge in deciding on io too. Our decision in io to was vacated. But the majority still applies. In case after case, the Supreme Court and the federal circuit court, including in cases, challenging 1182f policies has reviewed those statutory claim. To agree that that doesnt give you a cause of action to enter court, it also doesnt create judicial review of 1182. It doesnt need too. Somebody violated 1182, it sounds to me you are asserting cause of action under 1182. The majority of the court was correct when it said it is the core function of the court to decide. I disagreed with the majority so im interested in knowing your position without relying on majority. Lets go to your position not what the majority debt. Your honor, on the statutory claim, under chamber of commerce and countless other cases, it is clear that if there is a claim that the president is not following the statutes passed by congress, court can review that decision in equity. It has the equitable power to enjoin the president from violating. It has the power as a remedy but not as a cause of action. You dont have a cause of action under the ina. The only place you tried to get a cause of action, apart from the ina, under the apa which is pretty dicey is some freestanding claim that what the president did is unconstitutional therefore i can be in court, but thats not the way it works. The government doesnt even argue that theres no cause of action for our constitution. Does that make a difference as to what we do . We have subject matter jurisdiction, we have a role in the system and as you know, the three branches have their defined roles and we are acting fairly aggressively in a role thats been given to congress and the president and not us. There is not a single case among the ones the government cited that actually stands for the principle that our claims, whether constitutional or statutory. [inaudible] they all reached constitutional and or statutory claims relating to the president s power in exactly these kinds. They reach the conclusion that you dont have these causes of action. Your honor. I can tell you in this case, the Supreme Court is going to address it and they will tell you one way or another but the fact that they address it doesnt mean you have a cause of action if theyre going to tell you you dont have a cause of action. In other words, courts do have a right to decide their own jurisdiction, but they dont have a right to go beyond it if they dont have jurisdiction. And your honor, on the statutory claim, the ninth circuit, as well has ruled there is a cause of action under the apa and in equity. Let me ask about the statutory claim. It is your position there are no findings in the body are on the face of this proclamation that says 1182 out for that whatever findings appear in the body of that document simply misaligned and are insufficient to satisfy the requirements of the statute . Which one is it . Its both. The president does invoke magic words that he makes the finding that the entry of these 150 Million People who are mostly muslims would be detrimental to the interests of the United States, but if you look at his actual findings, for example in section 1h, one i, im sorry, 1h roman i, he said the restrictions limitations imposed by this proclamation are, in my judgment, necessary to prevent the entry of those foreign nationals about whom the u. S. Government lacks sufficient information to assess the risk they pose to the United States. That is just the basis for someone being excluded from the United States under 1182 a. Congress has already decided what to do about that. There is one critical finding thats missing from this proclamation and setting aside whether it would be sufficient , the president has basically said the comprehensive and detailed system for admission of noncitizens to the United States was individualized betting and Visa Waiver Program for nationals of those countries is insufficient. What about the beginning of the proclamation were says i hereby find that absent the measure set forth in this proclamation, the immigrant and nonimmigrant entry described in section two of this proclamation would be detrimental to the interest of the United States. Yes your honor. And that their entry should be subject to certain restrictions limitations and exceptions. Are those the magic words were talking about. Yes chief gray. The president invokes the magic words, but the point im making is that its internally illogical because the further detail he gives elsewhere in the proclamation shows that he didnt actually apply the baseline factors because he included somalia when it passed the baseline, he didnt make a nationality ban against venezuela, he only apply that to certain government officials even though they failed baseline and, he is letting in a lot of people from these countries even though the whole justification is you cant trust anyone coming from these countries. Your honor, the proclamation is different from the iran and cuba examples that the government discussed. We believe nationality discrimination is prohibited under 1152 a but set that aside, even if you think there are some instances in which a nationality based ban is permissible, the president has written a ten page proclamation with detailed subsections, completely unlike the few lines that the president used to justify iranian president carter or cuba and morgan up penalize him for being thorough . Your honor, what you cant do under 1182f is to rewrite the law passed by congress. What the proclamation represents is a rewriting of a 1182 a the grounds for inadmissibility and all the other sections of the ina that provide for individualized betting. Congress has said, they have looked at the very factors of the president and what he looked at here and they came up with a solution, they rejected in 2015, they considered the same countries that congress in 2015 looked at the same problems the president is asserting here and they rejected the idea of a country based ban on admission. Instead they said were gonna stick with our individualized betting marina go after the people who not our national of these countries, but if you traveled in these countries, if you are dual national, holding a uk passport but also have an iranian passport, you go through regular betting. We are not going to subject you too your countrys visa. What about the assertion that this is intended to be sort of a cultural or bargaining chip to promote or incentivize these nations to cooperate. Your honor, the best answer to that problem is what he did with venezuela. If you have governments who are doing their best but arent up to snuff you can do two things. You can do a venezuela type and which has a lot of precedent among the past proclamation where you say look, these government officials are not cooperating with the United States on information sharing so im in a bar you and your family members from coming in. Thats not a nationality ban and i think that is permissible under 1182. You can also do it congress recommended in the ina which is to give us said assistance to the countries having trouble like somalia and thats the answer. Instead, i have to point out the internal logic. That would preclude the president from even banning nationals in a state of war. Your honor, i think a state of war is different and theres different statutory framework that would apply in that situation. Why is there different framework . I dont read any of these reasons you are giving. You are sort of saying the president can exercise legitimate Foreign Policy if he does this but he cant exercise legitimate policy if he does this, if he treats the nationals just in the top government, its okay but if he treats the whole country because the countries antagonistic its not okay. In other words, you are making judgments about form policy which you personally are making for some other ulterior purpose. Respectfully, i am not making those limitations. Congress is. Your honor, im pointing to congress limitations, duly enacted statutes. Player not recognizing that while 1182 a provides criteria for admissibility so does 1182f and 1182f, they said the president himself has broad discretion we will give him discretion to act as our representative for the sovereignty of the nation, not as a domestic matter. Subject to the requirement that he make a finding which is reviewable by the federal court courts. Where did you get that . We get the right to review the federal policy requirement. He is dependent. Im asking you, where are you getting the authority to state that 1182 is subject to review by judicial courts. The Supreme Court has said so among other cases. The Supreme Court did that there, im not sure it said tha that, it was argued that there was no jurisdiction for various reasons and they went ahead and decided on the merits, but im not sure there was a decision on that. Would you agree with that . Your honor, i dont think that addresses the specific question but one hopes the Supreme Court had not decided the case. Im having trouble understanding your statutory argument. I guess, the complaints you have about it, it seems to me, i agree with my colleagues, it doesnt sound like we can really say to the president of the United States your illogical here, you dont follow the procedure here, do you, is your argument really basically a structural argument . Is that what youre saying, has congress set out a procedure and its because you havent complied with that procedure mr. President , is that what youre saying . Im not understanding as you can see. I think there are two main arguments we are making. The first is that the president has 21182f has not made the requisite finding that this is detrimental to the united state states. Secondly, what 1182f cant possibly permit is the president to contravene, to rewrite large sections of the ina. And that is your structural argument. Yes. The other statutory argument we are making is that 1152 a, and the 65, the overall purpose of moving, rejecting the historical practice of the United States to have National Origin photos which went back to the 1924 act. That was a categorical decision as part of other civil rights, comprehensive civil rights. So an explanation thats accurate, tell us why president reagans proclamation of president carters would have been valid because they are clearly nationality bands. They were indefinite. Whats the difference between those in this one . Your honor, first, no one challenged those. Im asking you with a valid. I dont think any nationa nationality bands are valid but you dont have to buy that in order to accept our statutory argument. The distinction is that with iran and cuba the president s were acting in response to circumstances with a bilateral. Thats not in any of the statutes or any of the cases. That is just something that the District Court and you have put forward, but thats not part of the law. The loss is clearly no nationality is subject to discrimination. Im just trying to explain. Your case doesnt rise and fall on this but it seems like to me the logic of your position is that president reagan and president carters proclamations would have to have been invalid under your argument. There is a way to read them in harmony. I actually do believe that 1152 a prohibits nationality discrimination, but you dont need to agree because if there is an exception to 1152 a, it cant be that the president can disagree with congress or considered judgment about the same problems with the same countries and then rewrite. They made the considered judgment in 1152 a to where there is nationality is just simply off the table with respect to any action with respect to visa issuance, it just seems like you have to say that president reagan and president carter violated the statute when they issued those proclamations. Your honor, i think they did, but again, you dont have to agree with me in order to agree with our 1152 a argument. The reason is, the iranian cuba situation, again if you look at the proclamations, those were just a few lines. Congress had not considered those specific situations and the president said these were circumstances they have to deal with this diplomatic crisis and im going to suspend the entry. So of the president in this case ended his proclamation at the end of that first paragraph you would be offset, you would agree with it. If he just said were gonna do a review of countries. No, if it just ends and he says were going too. No your honor because i think the scope also matters spread we have 100, one question, is the president trying to return to the national quota, National Origins quota system that congress categorically rejected as president johnson said. He isnt even addressing visas. He is addressing the admissibility under 1182 and relying on that power and he is distinguishing among muslim countries, he is identifying criteria that distinguishes them. The fact that they cant get information about persons or the fact that they dont follow procedures, the fact that many of the groups there are not suppressing these groups, these distinguished, these particular muslim countries, the ones who are included here from other muslim countries which were considered, and not included. I dont see the logic of where it necessarily follows that says he is now banning them because the muslim countries which are muslim, as opposed to some other criteria that he identifies in the proclamation. We know that because the president has said so, that he was going back to his original plan and going all the way. I note that even though he hasnt banned other muslim countries, he gives himself the power to add more country. The whole purpose of eo one and io two was to set up a system to collect data, and he built on prior countries never suspect, as a matter of fact, every one of those countries was included in prior congressional findings except for iraq and he treated those in it was a 90 day data collection. The practica proclamation is the product of an analysis which does distinguish between countries and does apply criteria that are in the National Interest. Your suggestion that hes just using the magic words and is not expressing the National Interest is very strange. I must say. You said, if it werent for his statements made during the campaign and otherwise, it would be fine. It would be a different case your honor. How about if another candidate won the president ial election and entered this proclamation. You wouldnt even be here. Thats not true. If that candidate made the same statements. Will your colleague considered you wouldnt be here. I think the point that we were making is that if you didnt have the record of statement it would be a different case. You can see the eo two in the last hearing you conceded eo two was neutral on its face and we would not be here if we didnt have the president ial statements. And so, now youre backing off that and basically saying it would be a different case. Shirt would be different case. You just wouldnt be here. Actually pointed out the deficiencies within the four corners of eo to that the judge picked up on her concurring opinion. So now we get the right to review the internal proclamation to see whether hes made good judgment. Were not relying on the report. I think they have waffled on whether theyre relying on the report. Theyre making it clear theyre not relying on the court and the court may not go into it. Let me ask a question with regard to something they alluded to. They alluded to the fact that the majority of the Supreme Court described the standard as a rational basis review. How does that impact our prior reading of Justice Kennedys concurrence. Your honor, i think the court already address that in the previous opinion but the argument is basically that they didnt involve any allegation that the government was acting without a bona fide reason. There wasnt any allegation are bad faith and morale santana was citing where that wasnt even an issue. It cant be that where you have a record showing that the president s action is either neither spatially legitimate nor bona fide that you dont simply follow mandel. Mandel is not a rational basis test on its face. It asks the court to determine, is the action legitimate and bona fide, and thats exactly what judge Justice Kennedy did. He simply said they didnt get past the hurdle. This court made the correct call and nothing relevant has changed with the proclamation. Can i just ask you about the case for a minute . Its pretty clear that the Supreme Court tells us that once you violate the establishment cause you have it violen you havent violated it forever more. So in this instance, how does the taints, we have these preelection statements, we dont have so many statements, and why, how what is your best argument for why the taints from the prior statement still exists here or maybe you dont make an argument. We certainly are, it has not dissipated. We agree of course that under mccreary a taints doesnt last forever, but here, once again you have the president sticking with his original plan, those are his very words. Hes going back and going all the way. Second your honor, on march 15, as soon as they were joined by the District Court he said that. He continued to make statements hostile toward this including the august 17 story that the judge mentioned and the three tweets just last week that the president then tied to the proclamation and the new band and finally your honor, the president once again speaks in vague words of National Security. He continues not only to not repudiate his previous statements of hostility toward islam and muslims, he is also doubled down in this case, tripled down on those hostile statements. Again on march 16 he set up and assimilation of muslims in the United States has been very, very hard. August 17 you have another story, november 29 he retreats three videos that are anti muslim and your honor, on that record, you simply have, on the proclamation, a litigation position like we saw in mccreary which was not sufficient and the president has doubled down on all of the statements. If the government is right about the scope of president ial power, that the president promise a ban on muslims throughout his campaign and carry out the Campaign Promise by using it as a proxy for religion, band 150 Million People for almost all muslim. Let me follow up on the judges question and ask this as a local question. What would be the standard that we would use in this instance where there has been, to determine whether or not the government in fact is cured this socalled unconstitutional action under the establishment clots. I think the standard is the same in all of these management clauses. That is, is the primary purpose here the manifest objective to disfavor one religion . Thats the test . The record on that has not changed, in fact its been augmented. What about the fact that the government says well we disagree that these statements suggest unanimous but even if you think that an understanding the questions that we are dealing with, they point to the subordinates and say what you have in question their motives and they conducted this review and on the face of it arrived at this result which but for the statements would be a much more difficult case. Does that change the result . Actually, we do, there is in the record, evidence that at least two of the officials, lowerlevel officials involved in the present study also have made anti Muslim Statements. We have that in our motion for judicial notice, but your honor, our argument is not that every lower level official involved in the present study acted out of a personal anti muslim hostility. Its that the president was acting out of a purpose to disfavor islam and he directed his lowerlevel officials to carry out his original purpose in the original way he meant to do that which was by using nationality as a proxy to religion. Asked this question last time. If you so intent and i asked people to look at all of these statements that he was doing, other than being completely anti muslim, how would you deal with that. If your position is he absolutely is anti muslim and everything he is doing is that result in his banning 150 Million People, most of them were muslims, that doesnt affect 90 of muslims in the world, does it . That doesnt matter. Im asking you. What he could add more countries, but what matters is that he has banned. He just didnt know, hes not smart enough to figure out how to ban muslim. If his purpose is to disfavor islam, he need not ban every single. I know that but ive heard that number but theres over a billion muslims who arent. If you take the face of the order, he has continued to ban these six predominantly muslim countries taken together over 95 muslim and affected 150 Million People. The government makes much of the fact that he has thrown in other countries for good measure, but one of them, venezuela is not a nationality band, its a very targeted band and the other one affects less than a hundred people. Let me ask you this. The court below applied, im not seeing this correct, but applied to least restrictive analysis and it said that the government hasnt showed that the National Security interest can be addressed without the span. What alternative, as far as addressing this National Security interest would you find acceptable . Your honor, there is the venezuela band to address the problem that th the president is asserting about governments that are not cooperative, and the answer on the National Security front is the one that congress has enacted in 2015 which is our individualized visa vetting process. But the seal three has a casebycase waiver provision. And substitutes the president s criteria for that waiver process for the one instituted by congress. But it does have an individual basis. You can apply any, any individual can apply for a waiver. There is a waiver thats available. For individuals to use. Which is also inconsistent with the system that congress enacted. How important is it too your statutory argument that this is indefinite . Is that a crucial distinction or simply one. [inaudible] your honor i think its important consideration in a couple of ways. The president , the government came in on eo two and said the reason that the span is okay is because its a temporary 90 day pause. The president repeatedly said, since march 15 when eo two was enjoined, im in a get even tougher and go back to my original plan. That was when we kept saying you havent made any substantive findings, youve just made a conclusion. With got a little bit different situation now. Sure. Its also relevant under 1182 in the very terms that your honor noted in talking with the government that the statute in terms of suspending a period of time. What im trying to get at, is where these temporary rather than indefinit indefinite, with that make it different in your view . No, even if it were temporar temporary, i think we still prevail on our statutory claim but it does show, the fact that it is now indefinite and potentially permanent with new countries potentially being added, it does distinguish this proclamation from every prior proclamation under 1182. Nothing else any president has done looks like this. I thought the reasons for the restrictions, and then had periodic reviews of the restrictions, what do you think that included for . Your honor, those periodic reviews we have to assume will follow the same format as the original. I understand, but dont you think it would if a review turns up that the restrictions are no longer needed the implications are that the implications will be lifted . Its possible your honor, but the president s criteria, because he doesnt apply his stated criteria consistently, we actually, its a black box. We dont know. It should be. Thats what we have committed to the department of state and the secretary of defense and the president. Except your honor that the government is relying on that black box and at the question, if the question is does the study cure the taint, the answer has to be no because they dont acknowledge it. They are saying these proclamations issued in the interest of National Security in order to identify persons who can challenge the safety of the country, if they came into this country, and its a difficult problem thats been experienced by many countries with all the disturbances in the near east. So the question is, is that illogical . Is that irrational, and if those conditions no longer exist, theres no need for the proclamation. You have to assume on the face the proclamation that with those periodic reviews the purpose is to see if the restrictions are still needed. Your honor the periodic reviews are still part of the president s original message which was to use nationality as a proxy for religion. There is nothing on the record that undercuts that original purpose spread he has set himself, starting march 15, and continuously through the summer and the issuance of eo three that he is sticking with that purpose. Finally your honor, i just want to ask that if the government is right that this is non reviewable then in the words of justice jackson, this ruling would lie about like a loaded weapon, and it is telling that the president , while camping campaigning sets a precedent for the span. Four points your honor. The first is the last time we were here judges on this court and other court faulted the government for not having findings to justify the prior suspension for doing an interim suspension before those findings have been made. Now the government has made those findings but theyre right its not like any other proclamation the findings here dwarf with the president s before have done. As the District Court recognize recognizes, what they are asking for is to secondguess the president s policy judgment and nothing authorizes that sort of secondguessing. They say its illogical and inconsistent. Thats not true and be its not authorized to engaged in that sort of secondguessing. Their primary point that they keep emphasizing is that there are exemptions. No law pursues its purposes at all cost. All laws recognize there are competing considerations, and in this circumstance it makes particular sense when what youre trying to do is encourag encourage. Governments to change the behavior that you tailor that based on what the Foreign Government is. He also oversaw the that this goes above and beyond the visa vetting program. First of all, 1182 has always been recognized to go above and beyond the 1182. They didnt respond to that. Here, it makes perfect sense. They say what should happen is officers should deny that they dont have enough information but the whole point, the whole problem is that weve determined Foreign Governments are giving enough information. If thats, it doesnt make sense to run through the program when the defect is being undermined. There is a systematic solution. The main purpose is to influence the countrys internal policies about information sharing. We both want to encourage them to change their behavior and to protect this nation until they do. Absolutely. But you want to encourage them to change. Would you say north korea has the greatest amount of exemptions in terms of people affected by this. Theres no exemptions to sold the greatest influence that we want to have is that we dont let their citizens come in . With respect the greatest amount of it restrictions were imposed on them. Countries that cooperated more, less restrictions were placed on them. Those that cooperate least have the greatest restrictions placed on them for the last point that i want to make is on the question of whether the finding is inactiv in adequacy, it would make little sense to have an indefinite restriction. dont even have that. Thats totally consistent with the language of the statute which is for such time as the president may determine. The second point i would like to make is on 1152, National Discrimination. History makes clear to wipe out the National Origins quota but it was not to restrict the ability of the president to make determinations about National Security problems that make people and eligible to enter in the first place. That is the solution an explanation for why the cuban order was invalid and why the iranian order was invalid. Its not there some madeup emergency in the statute. Its that the statute is not issued the immigrant visas, not about people who are not eligible to enter into first place. Even if you thought there was madeup emergency exception, this should satisfy just as much as the cuban proclamation. The cuban proclamation from a diplomatic dispute from a a prt that was 15 months earlier. The agencies have recommended that are identified facts and information sharing today and in response to that the president has acted. This is far easier to justify than the cuban proclamation even on their own rationale. Thank you, counsel. Yes . You have two minute. Thank you youre onto. My rebuttal is limited to our cross appeal so i will be very brief, we are cross appealing because permitting any part of this third version of the band to go into affect is, violates the First Amendment core requirement the government not about one religion for disfavor. The problem is heightened because its no longer a pause but an man with possibly even more muslim countries to be added. This court point of the great promise of the estancia clause is religion will not operate as the instrument of division in our country, thats exactly what the proclamation does and the court should not countenance that. Thank you, your honor. Thank you. We will ask the clerk to adjourn the court. Please rise. The Honorable Court stands adjourn. Landmark cases, cspan history series about the Supreme Court returns in february. Join us as we of the human stories and constitutional drama behind 12 frequently cited cases heard by the high court. Landmark cases live on cspan beginning in february. We have more like programming this afternoon with House Freedom caucus chair mark meadows. The North Carolina republican will be delivering remarks at a conservative Womens Network forum in washington, d. C. Live coverage at noon eastern on cspan2. Also today Outgoing NationalCounterterrorism Center director Nicholas Rasmussen discusses his tenure and growing terror threats at an event hosted by the Carnegie Endowment for international peace. Watch live coverage at 1 30 p. M. Eastern on cspan2. Join us tonight when with prest trump will hold a rally in pensacola florida. He spent to talk about republican tax from efforts. Cspan2 will have live coverage from the Pensacola Bay Center starting at 8 p. M. Eastern, also online at cspan. Org and you can listen with the free cspan radio app. Sunday at 7 p. M. Eastern on booktv on cspan2 former Senior Advisor to secretary of state Rex Tillerson discusses his book Digital World war. Content is king. Distribution is queen, and she wears the pants of the family. And if you think about that, the way i like to think about isis and others is that were in a content war. Bent at a farm msnbc news anchor Greta Van Susteren with her book. In social media everybody can get together and everybody can join together and do incredible things. There are stories about what others have done with social media, and social media, its not really new. All thats new is sort of these delivery platforms. Think about it. Smoke signals, that through social media. Everybody can see the smoke signals. The party line, the telephone line, that social media. Everybody en bloc and get on the phone. Whats a different as everything is amplified in terms of how far you reach and, of course, the speed of the communication. For the full schedule go to booktv. Org. This weekend on American History tv on cspan3, saturday at 7 p. M. Eastern, Yale University historian Joanne Freeman on alexander hamilton. When washington became president in 1789 he made hamilton the first secretary of the treasury and in that post hamilton structured a National Financial system and pushed to strengthen and empower the national government, watching a really fierce political battle against those who wanted a far left powerful national government. Obviously Thomas Jefferson and James Madison were his foremost political opponents. Sunday at 4 p. M. Eastern on reel america the 1980s United States film unwelcome affection about inappropriate behavior in the workplace. You are new here on the step, right . Its like this manual on the staff, i make a lot of decisions. I am the one that accept evaluation reports. I signed threeday passes and leads come and just a word of advice if you want to get along on the step it will be beneficial to you to be a little bit nicer to me. And that eight on the presidency, historian Daniel Fowler on president Andrew Jacksons efforts to challenge and cripple the bank of United States during the 1830s. No president before had said anything like this. Other president s had warned americans against entangling foreign alliances. The headboard americans against sectionalism and excessive partisanship at home. Jackson warned them against control of their own government by come in his words the rich and powerful. American history tv, all we can have your weekend only on cspan3. And now California Attorney general discusses some of the lawsuits his state has filed challenging Trump Administration efforts in areas including immigration and the martin. He talked about Supreme Court case that concerning the constitutionality of a California Law requiring guidance and counseling clinics to inform patients about state abortion