[inaudible] [inaudible] [inaudible] [inaudible] the proclamation is fundamentally different than the prior executive order. This reflects a multiagency, worldwide review, engagement and recommendation process. And they have inadequate sharing practices or other practices that undermine the visa vetting process more restrictions to encourage them to protect this nation until they do so. In light of the fact that the standards first day and preliminary junction are the same, what do you think the Supreme Court meant on monday and issuing the state . What he think that will plan the ultimate resolution . I think the primary element is plaintiffs have heard the Supreme Court will show the likelihood of the mayor. We know that i would submit that will we know how the Supreme Court had the equitable balance last time, the fact that theyll give us a complete stay signals they think its more more than a mere likelihood. Are they going to stop the primary injunction as well . I think thats a strong signal. You never know exactly what but i think thats a strong signal. I think its because of the critical differences, in light of those difference falls well within the president statutory. To restrict the aliens abroad. Even an executive order to the Supreme Court. As to the executive order two, the Supreme Court left almost all that stand as well. For the individuals rent time we do agree. Can you play microphone to talk louder,. The District Court agreed with us the proclamation satisfies requirements of 1182f. You mentioned critical differences between the proclamation a executive order, can you delineate you think are the most important critical differences . Both a procedural and substantive. The critical differences that this would involve a multiagency process. Under the executive order instructed agencies for the information. Read the if any internet the president directed could be done, he directed that certain countries be found to be band. Look at section to a, which country should be band . Section 2a whether there is information that Foreign Governments are not providing. It didnt say if any either, correct . So when the proclamation directs the secretary provide a list of countries that will not comply with the requirements there has to be an affirmative list following the review there may be some or many, are non two. That list. Thats true for at least three of these. Section two a has identify if there is information missing. Nonetheless does appropriate categories. So there were no countries not providing by definition. Even if there are countries not providing it expressly says appropriate categories. We know they took it seriously. Iraq was found not to be providing you with the baseline at the agencies recommended they decided not to include iraq on the list. We know agencies had discussed discretion under the eo to make recommendations of which country to include. They didnt just omit iraq. On the substance side very tailored restriction. They omitted iraq sudan from the earlier decisions. Even with the decisions they cover they had exemptions for several. And reading the proclamation, one of the primary areas for imposing this plan of the countries differentiated by class of visas. An open expectation there would be an change in processes for the nations and improving information practices. How did this bargaining chip of coercion of necessary link find the entry of a class of naturals would be detrimental to the United States. Can you help me with that . I think its a traditional exercise to determine that when a Foreign Government is engaged in harmful practices that can be deemed detrimental it is precisely president cardin did with respect to the iranian hostage. That was adjudicated there. That is true but unless they were ready to say that his entry to all cuban immigrants were also unlawful. Those are all proclamations of a different order. Theres a hundred 50 million plus to incentivize them to cooperate. That connection to me is missing. Just like president carter restricted all immigrants from iran from entering because the hostage crisis. No one was suggesting every immigrant from iran was a threat to the United States let alone connected to the hostage crisis. Because i think its in harmful practices were going to impose restrictions. The presumption is if you dont have the necessary information to enter you dont get a visa. So i this additional measure . The findings made by the agency is that Foreign Governments are not providing sufficient information. That is one possible response, nothing from the closet is the least restrictive alternative. Even those that have carefully calibrated for out throughout . The courts recognize that its a recognition by congress that they can impose additional restrictions. Of a limited in time . Can this be done indefinitely . I struggle to find a dictionary definition i said a suspended suspension this for an indefinite period of time, can you explain how the indefinite ban that has been imposed complies with the language of the statute. How does it meet the statutory grant of authority . Permit is how he may deem necessary. When the problem that has arisen as a countries are giving sufficient information, you can say that until they correct this but the order doesnt go that far. What is says under section four is everyone hundred 80 days will revisit. Business onset provision commits in place forever unless he says otherwise. Its in place until the countries improve their practices. Let me ask you, lets just say this study contains information which is likely to be true. The most terrorist or those that commit terrorist acts are met. Could the president then ban all men under the express granted . Could he ban the entry of fall man trend men until evidence showed further that matter not the ordinary and customary perpetrators . I dont think so. Why not . I dont think using the gender. If you cant use gender, then theres a question of violating section 1152. Jose lanterman tell this restrictions have to be for every legitimate reason. Was a legitimate with 99 terrorist acts committed by men, arent we protecting this country if we just keep out the men. In general he cant use for ben treats as a proxy,. And nationality is not a proxy target . It is not a classification to reese direct. But you do agree that it does ban discrimination based on gender and nationality. Only in the context of the issuance that language is critical. If congress wanted to restrict the ability of the president to keep aliens from entering the country the wind of use that language. Its clear under the ina issue does not entitle anyone to enter the country. Your start to be admissible. If congress intended to repeal that to suspend the entry they wouldve never use the language. This is clear from the legislative history. Interview, can the president use 1182f to promote for further policy objective he might think acceptable . Were talking about the deficiencies but if you is unhappy for an unrelated reason to do then say, he ban the seven or eight nationals from this country in an effort to promote my foreignpolicy . I think the language is whether its in the National Interest. If its not at all related to the improvement of vetting processes. I think thats right. I understand that neither president carters or president reagans proclamation was challenged, but both orders have that feature. Because of foreignpolicy disputes the president respect restricted immigrants without any suggestion that the individual nationals were subjected had anything to do with the government. This case is stronger because here the concern is about the failure to provide the information about the nationals were restricting. The case is stronger now. I have a threshold question. I want to understand the adjuster below the argument that you make. Is that meant to include an argument the plaintiffs under the statutory claims under 1152 the constitutional claim, that they did not have standing . Z are you making a standing claim . Supreme court has recognized the rights that are fairly late in this context i think the nature of our rights are in article iii and the biggest point is that unless and until an individual alien is found otherwise eligible to enter seeks and is the night away for they are not under the proclamation. Is it your position that the courts cannot review this proclamation . Know your honor. What i was saying was on the constitutional side. On the statutory side, lets take that first. Is your position that the president could make any finding at the detrimental activity and find that they should be excluded of National Interest and we could not review that . Statutory. Thats your position. The case where congress has stripped out 1331 jurisdictions . I would point to two cases is your honor. First the Supreme Courts decision in shaughnessy in the d. C. Circuit position. Both of those cases recognize when you are talking about a statutory claim the restriction of aliens abroad is a fundamentally political and foreignpolicy judgment that is not reviewable Must Congress has provided otherwise and that is clearly the rule when it comes to con consular law officers. Even by misinterpreting that is simply not reviewable unless congress provides otherwise. Has in congress made it clear in 1182 when they stripped the review ability several times soul distortion not reviewable. I mean in other parts of the statute 72. Correct . I think 1182. 1182. Hymn i think 1182 has the language itself that further confirms it. How so . If the president finds that its not in the National Interest by using the phrasing. It has to find something that means its reviewable, is that . I dont think so your honor. Who are the findings for . Thats the statutory constraint just as in webster verses dover. My question is who are the findings for . If its a substandard of constraint. How is it a constraint times constraint and the reviews that restraint times were straight . The president takes an oath of office. I understand that. Who has used that restrain . It does times doesnt mean the president doesnt have to follow it. But we are of the teeth that would say he cant . You say the courts cant. And the third branch cant. Who does . Two things your honor. The first primary is that the president takes an oath of office and has an independent obligation to comply with the constitution one that he takes seriously in the second. That means on january 20 00 p. M. To power because he took the oath of office. I dont think the court would suggest. I am not saying suggests. Go to point number two. Point number two is that congress has the ability. Remember we are talking about a statutory claim. If congress is concerned that the present is violating the statute congress can authorize a review. Congress has not to write it in the Supreme Court has said. Do we have the power in the shaw case to talk about congress cant delegate authority and then decide its going to be the one to be arbitrary to that . You are saying they can do that . They are the ones who decide . Shauna did not exclude aliens abroad exclusion of aliens abroad are a very narrow set of circumstances where the Supreme Court offers a Must Congress provides otherwise there will be no review in part of the reason for that your honor unlike in shauna if theres not an out delegation issued the president has inherent executive authority with respect to the exclusion of aliens abroad. The power comes exclusively from congressional power does it not . That is not correct your honor. If you look at shauna the argument was made the congress had improperly delegated authority to the president to exclude aliens in the Supreme Court said that is not true that the president has inherent executive authority to restrict the entry of aliens abroad. So you are saying under 1152 clearly in 1965 it was a policy that we would not discriminate with national dumbest demonstration. The president s that i dont want to do that. We are going to forget about that and i can have every country excluded and you said theres no review is that correct . If the president were to do that he would not be reviewable but again the president would have to make a finding that it was detrimental to the National Interest. That is not what we have here. We have here is the president has found that the country is a specific National Security and foreignpolicy problem and in response of those problems is precisely what president carter did frypan imprecise and let president reagan did for cuba. No one even argues that those restrictions violated the law. No one challenged either of those. That is correct your honor but the fact that they wouldnt bother to challenge his signals how weak the claim is. If those statues ban immigrant visas. I thought you said the major reason was the issuance of a visa and in response to judge keenans question on gender you said while gender doesnt apply because its one of those broader classifications that deal with discrimination much like race. Tender is one that you cant use. Why would congress put it in 1152 . It sounds like get started covered. Gender and race are to be covered even with the issuance of visas so why is it in 1152 . Your honor that times the point i was making to judge keenan. My question is why is it in 1152 if what you say to judge keenan the agenda doesnt apply because its one of those classifications that they just cant do it because its one of those video classifications like race but you can use nationality because its not for my question is why have 1152 on race and gender but you dont need it . There are a lot of statutes. Why is it in 1152 . Congress has a statute that bolsters what the constitution is potentially in part prohibiting that the other important point is 1152 focuses on the issuance of visas and what they were trying to do in legislative history makes it quite clear they were trying to wipe out the preexisting national. You didnt need it. You are the habit. You are to have that because you cant use race. President s can do this. There are a lot of statutes that prohibit the constitutional arguments im not sure why that would undermine the argument that under 1152 if the legislative history makes it clear what congress is concerned about in the specific times specific issue was the National Origins quota. Let me ask one question and make sure i get this question now. As i understand it there has been a worldwide review and that is the primary basis upon which you think this is really different. In the face of a worldwide review which is classified we dont have that. We simply do it procedurally, fine but then what do we do when we are looking as an objective reasonable observer and we have multiple instances in which this president has indicated before the election and during the election and just a week or so ago i believe we can take judicial note notice of that in the news he tweak what he says is indicated the purpose of what this proclamation is. I mean 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 that is the purpose of the legality allows it does that make a difference . I have several points your honor. The first is we do think that all those statements are legally relevant under mandela and heres a critical point. Tell me what you mean all those statements. Im talking about the statements that go directly to purpose and if the allegation is that this is an effort to ban muslims from this country every statement thats made by the individual and the president making it goes to say that but its done in a way as to say we did a worldwide review. What i was saying your honors the Supreme Court since we were here last time and the santana case made Crystal Clear that the mandel standard is a rational basis standard and under rational basis review subject purpose is legally irrelevant. You do not look to see what was behind the motives. Its not on National Races review as you say the Supreme Court has said it is. Then can we go back to Reasonable Service and answer the question. I understand what you said what the Supreme Court has said. If you go past the fact that the Supreme Court said rational basis under mccleary the question is whether the objective observer would determine the primary purpose was religious and i would submit that when you have a multiagency review where youve got numerous numerous. Is classified and thats all we know. There has been one. The report you are talking about is not in this record. Reports on the record. We do have in the record statements and notwithstanding how you may press that we can take notice of statements that are made that allows us to do that. We have that is direct purpose. Again your honor their regional reasonable object of observer would look at the proclamation we dont have the underlying report that we did of the proclamation and we dont ignore what it says. Are you saying that the court for the proclamation is in the report . Is the report for the proclamation rational and not a muslim ban in the report . It further details, the report further details on the base. Courts can look at classified information in a secure manner. Wouldnt it be much easier if you would just have put your support in the record classified so that we could see at . Dont count on it. That would be easy. Your honor the fact that it is classified is certainly public. Its also report that is covered by privilege. Its a recommendation from cabinet secretaries to the president that includes incredibly Sensitive Information not just because his classified but its important foreignpolicy including information such as which country engage with those in which country improved during the process. This is all incredibly Sensitive Information all covered by the communication privilege. Thats what you have to fall back on. You cant get past the classification of article iii judges. We have clearances but the classified stuff but the executive privilege thats never been litigated. What i was going to say is. It was asserted in the District Court. Was asserted in that issue is not resolved. We dont think its necessary and we dont think its appropriate but at this if this court were to order us to file the report export today and under seal you would see that the report strongly supports. You would file the privilege material to . You would stand on the privilege . Its an unusual position if you believe in the privilege. If the court were to order us to. Well i understand that we are an equal branch of the president and whether we are going to get into the deliberative process of an executive which seems to me would be similar to the president asking us as judges to give him the deliberate process behind their decisions. Your honor certainly agree that we should disclose this. If you ordered us to do so. We would have to litigate the executive privilege for story wouldnt have to . What is your times your answer to that . Would we have to litigate executive privilege issue before you would show it to us export today . Your honor i apologize, im not sure. You dont have a position on that . On whether the court would order us if we were to exert executive privilege . If you ordered us to. We have clearances just like you do. Everyone of us but you have another point and it would be a valid point from executive privilege deliberative privilege however you describe it. We understand that but i thought your answer was if you ordered us to do it you would give it to us but if you want to back off of that, thats the question. Before you give it to us or insist on litigating the deliberative privilege applicability before you turned over export today. Your honor i apologize i do not have a position on that and if its relevant to this court we can submit a supplemental filing. Whether we would want to stand on privilege. Tonight just to followup on up on that you were counseled the District Court, correct . Yes. When this question came up before the District Court you told the court you think what is in the proclamation supported under the relevant Legal Standards that should be upheld. If you think what is in the proclamation isnt sufficient to support the relevant Legal Standard than it should be invalidated. Do you stand by that position or do you have a new position now . We do think if you dont think the proclamation by itself satisfies that any dont want to look at. No, no there were two sentences and im asking you to stand by them . I dont think this requires a long answer. Do you think whats in was in the proclamation supports the relevant Legal Standard and that it should be upheld . If you think whats in the proclamation isnt sufficient to support the relevant Legal Standards that it should be invalidated. That was the case you put to the District Court in i assume that was the case. We do stand by that. Thats the mandel principle. Insofar as any of the judges on this court thought it was critical to their analysis in the underlying report. You told us you live or die by not having it and i just have one other question. When the acting solicitor general was here before he persisted in telling us how temporary this band was. It was a brief pause 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. Seems to me to be pretty significant. Reason for the differences last time it was temporary because it was in service of the study. Right but the suggestion was the study was going to make it so that you wouldnt have it in the future. Lo and behold the study says we should do it in an indeterminate amount of time. Critically only for the countries that were found to have inadequate information. So there is overlap. Sudan is not covered in iraq isnt covered under the firstorder. Iraq was not in the case. Iraq under the firstorder and other countries covered their exemptions for the nonimmigrant visas that is certainly true. We are not denying that many of the other countries are covered nor should anyone be surprised when youre investigating whether countries have found to be state sponsors of terror are likely not going to turn out to do very well in the study. Norwood we be surprised to guess the president has continued to make statements some people regard to be antimuslim after the issuance of this order should we be surprised that might be construed as an antimuslim order. Down think thats a Fair Construction of the proclamation. Im asking you about the present statement. What im suggesting earners the present statement has said he wants it to be tougher and whether it is tougher is certainly not tougher with respect to muslims. If you look at what countries are covered they took out muslim countries and created exemptions from muslim countries and added nonmuslim countries in the single majority muslim country. You have north korea and venezuela but it doesnt apply to anybody. That is kind of like window dressing. Your honor the president of stated he want to be tougher and nobody can reasonably construe that to be tougher with respect to muslims that the proclamation simply is not tougher with respect to muslims. To the other category of the statements from november 29 and you do agree we take judiciary notice of those, right . Judicial notice . Dont think its legally relevant. Did you say you are conceding with traditional notice . The fact that the statements were made. They want to use the content. The content of those statements which would never be admissible in trial. They are not official documents. They have speculation and opinion hearsay, triple hearsay and you are conceding that we can take judicial notice of that . Your honor i thought judge harrison maybe a misunderstood was referencing the president s tweets. Its the departments position that the president s twitter account those are official statements by the president of the United States. Is you can see that those artists official statements of the president of the United States, correct . The tweets are official statements . We have plenty of evidence of that. Followup. My last one is still the departments position i take it that its the president who speaks for the executive branch. Theres no constitutional date between the president dhs. If theres any dissonance or gap between the present and the subordinate executive official asked the court we cant go we go with what the president says. As far as its legally relevant but the court puts these before the Supreme Court and it didnts dissuade the Supreme Court or it shouldnt dissuade this court. They are simply not legally relevant. Is illegally relevant under mcqueary . We dont think they are persuasive under mcqueary. Relevant but not persuasive . No actually your honor just to clarify we think that statements about the proclamation would be relevant but not persuasive. The most recent tweets arent even about proclamation so we dont think they would even be relevant. You are suggesting counsel says while the president may be showing antimuslim violence in his tweets that cannot he taken over content of the proclamation click the proclamation is to be used and not any antimuslim bias evidenced by the tweet. I dont agree with the characteristic of the tweets but regardless we dont think its relevant of either mundel or mccleary. Can oppress and violate the naturalization act . Can the president by terms of his authority under 1182 take action contrary to the any other provision of the eye and a . Know its certainly possible the president could engage in conduct that would violate some provision. What would be the limiting principle from your perspective then . If the president can ban all immigrants even though the i am a says you cant discriminate against them and that the president could take other actions. Even though the statute says can the president essentially say i am banning all immigrants . I want to take any action. Why couldnt the president s in your theory violate any particular provision in the ina by making a finding that entry pursuant to any other [inaudible] the president has to make a finding that entry would be detrimental. So i would say two things about what the potential out of bounds are in the National Interest. One substandard than one sort of procedural. One point is they cant be directly contrary to some other provision. If for example the president s that i dont like immigration and died there for think its contrary to National Interest i would think that would be in contention with the ina but principally that is not what this proclamation does. With this proclamation does is find that there are certain countries that present National Security and foreignpolicy problems and as a result of that it will impose additional restrictions. If that sort of order is well within the core of the lebanese to as important besides the d. C. Courts decision involved exactly this story of order were under the ina viewers in the disability ground to acquire it the aliens activities within the country be harmful. Not just their entry but their activities. The present can treat immigrants more partially than he treats other aliens . Is that correct under 1182 . If he is a reason that is detrimental to the National Interest interest. You can approximate this is detrimental to the United States especially because they have more rights when they get here. That decision sufficient . Not only is a sufficient but thats what the Supreme Court held in sale. In sale if immigrants have done to the shores they would have silo productions. They essentially said once they got there they had to show i. D. No your honor. The key point in response to your question is that sales, they would have would have had asylum protections and precisely in order to prevent them from invoking their protections the present set up a blockade on 1182 in the Supreme Court said that would clearly a price of the mere fact that the president is using 1182 in a way that would arguably stop aliens from invoking rice that they might otherwise have is not improbable. Getting to the reasoning of the proclamation i know the president illogical and its radical with logical flaws. No more than we have to be logical. My concern is with regard to immigrants the president has not said anything in the proclamation as to why immigrants should be treated differently than other aliens coming from the same country. If you are from a band country need just want to be here temporarily then you are subject to fewer restrictions and if you are an immigrant from the exact same country you are banned and you are saying it doesnt make sense of the of the president can do it . Its not at all what i said. What i said is the proclamation explains explicitly why they are joined that distinction. They are joined that distinction because immigrants have protections from removal so if the problem is that theres insufficient information from this country and theres a risk that our vetting system is not working and people are getting into the country who we dont want here that list is more harmful if we cant remove them. Thats a perfectly rational thing to do. Congress is saying an 1182 these immigrants are coming to america and we are going to give them some protection. You cant discriminate people based on nationality. Dont you think thats a legitimate distinction congresses drawing with regards immigrants as opposed to the rendered in random aliens who want to commend for business . We are not going to tolerate it on nationality. In the issuance of immigrant visas and the legislative history is Crystal Clear that what they were trying to stop a National Origin quota where the government was basically on ethnicity and race maintaining an ethnic balance. Let me ask you this. Is that true that the president is entitled to the greatest area deference to National Security and double down on National Security and International Affairs . Is that correct . Thats absolutely correct. Then i want to see how you think when the president makes statements and people look at that and some would go clearly hes antimuslim and some would say context. Hes talking about what he perceived as some kind of terrorism related in some fashion to some people who are muslim. Socalled radical islamic terrorists. You could locate his statements and each side defines something you would point to, what difference and friends, can he get any inference in light of the deference he is entitled to . Yes sir on in light of the deference he is entitled to and all of this is important if not more port in light of the rationality and permissibility. Im just looking at the statements. I understand on the basis of neutrality that its pretty clear on his statements its dripping with discrimination. Others go they look at it in context its how statements are made and people look at it differently but if there is that possibility that people can see it differently and the total context is there any rule on what your friends he would be entitled to under this tremendous deference in this area . Spinney given the deference for these doing this pretty the area as well as the more general deference i think you should take the more permissible more chair boyd interpretation rather than the more hostile one. Especially in this context or we have a proclamation that was recommended by those who have no such statements. Theres no basis on integrity for the individuals that made the statements. We have a statements report were all the stuff came from only previously determined the io two was made in bad faith and because of all the things that have been said. Now you have more added to it. The last tweets plus a proclamation post reports that you dont show us. The proclamation lays out the agency engaged in this process recommended these countries unless this court is prepared to say that the president has lied an agency didnt actually say that. We cant look at it and see. Thats true your honor but the court suggest the president of United States is flat lying that agencies recommend. I understand your argument and your position that there is a need to review the process and that rakes in the sheen for any concerns one might have of the for the president and whats happening here but i need you to explain to me why a review brought process is an independent act that can from president ial statements and executive system. Dhs is not an independent agency. The part of the executive branch and theres no constitutional scene. Its not that the prisoners over here and dhs is over they are printed on c. The process can be an intervening independent act. See the cure is why your honor. The question is whether what is the primary purpose . Get signed by the president. That is true your honor. And he has to statements on the record. And although i agree people always see things differently. Some of those november 29 statements even with deference is a little tricky to find the National Security rationale for that. Your honor what i would say is you have asked why there is the potential. What i would say this exact recommendation had been made to different president of the president had adopted the recommendation there is nothing about either the process or the subject of the proclamation it would possibly. I think you think we are not in an establishment clause land but if we were bet is entailment of the purpose inquiry under the establishment clause. The same moment of silence statute constitutional one location on unconstitutional and other. That is a possibility but either mccleary or any of the cases suggested engaging in a link the deliberative process makes recommendations about National Securitys foreignpolicy concerns when those recommendations are neutral about religion. All of that can be set aside based on earlier statements that dont even pertain to the purpose of the proclamation. If you focus on for example mccleary, mccleary involves a religious practice that even as the third iteration rate emphasis on the language that was religious in nature. The other monuments that were put up didnt really make much sense. The history bolster the conclusion but it didnt drive it. Without the prior history theres just no argument that this proclamation would violate the establishment clause so much better analogy is mcgowan. In mcgowan you have someone who to that basis the purpose of laws to protect the sabbath and the Supreme Court nevertheless held the bat violated the establishment clause and the reason they gave the primary reason that the exemptions in that statute revealed that it didnt any longer have her religious purpose that it was more secular in nature and more about than religion and what i would submit this is the exemption in the proclamation serves a better similar function. Theres no way conclude that this is a muslim ban but for some reason they decided to exempt nonimmigrants from most countries. That simply doesnt make any sense if you say its a muslim ban but it makes perfect sense under the proclamation given which is that there are problems with the information sharing in these countries and in order to deal with the risk of death but also just as importantly to encourage these countries to improve that the president adopted tailored restriction that based on their recalcitrance and their willingness to cooperate. It makes perfect sense under the rational given. I just want to make sure we are clear when he responded to judge king that the president would have to be flat out lying. I think the position is the present is not lying about what you said if he said what he said said. We dont think from my perspective i dont think he is lying at all. An individual who is saying exactly what he means notwithstanding judge shedds characterization. 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 he is lying and i think thats the question. He is the president is telling the truth about what he feels a notwithstanding you have independent worldwide view you seem to characterize that just decided to do it on their own without any impetus whatsoever but we will leave it there. If you have that and if he is telling the truth and the truth is perceived to be what it seems to be saying over and over again how do we look at that and i know you want to look at mandel and shale on a rational basis but in terms of a reasonable observer. Again your honor the proclamation given that its based on the recommendations and is telling the truth that the agency did engaging this process that they did find eight countries have inadequate information sharing or other problems that because of those restrictions they recommended taylor entry restrictions that encourage them to improve their practices and protect the state until they do so. If you accept all of that is true the statements. Do we accept the statements as being true . No one is disputing that. What i am saying is those things the specs of the more recent ones speak to the purpose of this proclamation. And the purpose of this proclamation to deter terrorism . Is that the goal of the proclamation . B the proclamation is to keep americans safe. In the president s tweets you have conceded our official statements of the president of the United States and they could be subject to the charitable interpretation. There was a tweet a month before the proclamation was signed by the president tweeting it statement that shooting muslims with bullets dipped ins blood should be used to deter future terrorism. How am i to take that charitably . Your honor at the first is that its not about the proclamation at all. Its about deterring future terrorism which i thought you said was the goal of the proclamation. Its the end goal of the proclamation but the proclamation is dealing with this specific problem which is inadequate information sharing. What the president said in a tweet about how to deal with actual terrorist whatever you think about that it doesnt suggest any sort of general bias bias. Doesnt suggest they are going to ban all muslims and the proclamation says the exact opposite to the proclamation said there is inadequate information sharing from these countries are other risks that undermine this and to deal with that particular aspect of the broader terrorism problem they encourage those countries to improve the characterization until he do so. Thank you, counsel. Good morning your honor and may it please the court to the proclamation repeats for fatal flaws that doomed eeo two. First in response to judge harrisons question the president directed the subordinate agencies to stick with his original architecture for the ban and that is nationality as a proxy for religion. By design but the president as these agencies to do stuck with his plan. Let me ask this question at the same one i asked in the other argument that i want you to tell me in light of the Supreme Courts action to grant the state on i think it was monday and the criteria first day in preliminary injunction is essentially the same. I want you to look at that action and tell me what impact do you think that is likely to have on the final resolution of the validity of the preliminary injunction . Judge shedd i dont think this court can take any substance from the Supreme Courts stay order. The court was very careful. I didnt say substance. And im asking you, you are saying we cant take anything from that . Any indication at all . I dont think the court can your honor biggest the Supreme Court was very careful not to say a word about the merits or the equity. It seems to me if you are granted a stay at all the court had defined as a likelihood of on the merits. I dont think thats right. I dont think thats right as a solid Supreme Courts previous day. That one detail they were issuing that order based on its equities presented on the record record. So i dont think we can assume as mr. Mooppan suggested was saying something about the merits. In the normal case that the most important factor. To make your honor does but the Supreme Court previously did not address the merits related to eeo two and they think all the court can do is to decide the case on the record as it finds it. I guess the question follows the traditional process here and they are just omitted the fact about substantial likelihood of success on the merits. Judge me cantelle why the Supreme Court issued the stay. He didnt say as it did last time. In any type of stay per sitting or preliminary injunction and the courts dont just skip that stage. Your honor the court didnt rule on the merits less time in considering stay of eeo two. All i can say is this court can judge this case as it finds. That is what we asked the ninth circuit to do. It suggests they are interested. That is right, back to the reason why. And what it wishes. And this courts ruling. Supreme Court Granted us day. I dont think you can. The second reason the new proclamation you ought to be asking us to have the District Court ruling on the merits to come back up on the merits. It did reduce the preliminary injunction didnt deal with that under 65 or whatever it is. With the merits of the case. Litigations of privilege. There is more than an adequate record. You can reach the statutory issues on which they didnt prevail in there is adequate record and the Supreme Court directed them to reach a decision. That is what the court should do. And continues to practice. And the proclamation began not just the muslim majority nations but 200 plus nations. And why doesnt that make a difference in the sense that it did not begin as a proxy by nationality. Government actually conceded we should not be surprised that we ended up with five of the six countries that were banned were banned under the proclamation. Even though the president directed this worldwide review of each country, what he did in section them to be was to say give me the list of your countries and in the design of the study he ordained the necessity of a list and not going to be satisfied . We know that on the face of the proclamation which is complete with references with a list of countries because the president said so, official statement continuously. The key example is on march 15th, the day it was enjoined by two District Courts the president said two things, the first thing he said was we have a big problem with muslims assimilating here in the United States and the second thing he said, i am going to go all the way and that statement is when he repeated throughout summer and fall and even before the results came out long before the study was done the president said im sticking with my original plan and that is to use nationality. This goes back to what he said right before the election and was confirmed by his advisers right after it was issued that you dont want to talk about muslims, i will talk about territories and that is the argument. The relation to the statute if i recall, your predecessor in the earlier case suggested if it were any other president the eo 2 would be okay, would satisfy the statute. Is that your position . What we said in the last oral argument is if you didnt have the record of statements it would be a different case but your honor, we, as noted in the concurring opinion last time there is reason to doubt this is legitimate on its face in its internal illogic which it has in common with eo 2. The proclamation says, first of all, we have a problem with information sharing from these countries. As a result of that there is such a high risk from nationals of those countries that we are going to ban 150 Million People the vast majority of whom are muslim from 6 predominantly muslim countries but we are going to go it led in a lot of them. The admittedly troubling statements of the president which continue apace, would your position be different if that were not part of the record . It is a different record but i think the view holds with the proclamation and offers a study. Seems to me the fact that the government has taken great pains to investigate what exactly are the threats that are posed, it arguably can be a logical, it can be flawed, it can be a product that you wouldnt be proud of in terms of cohesiveness but the president can do, making the required findings, as long as it doesnt violate i in a or the constitution. Arent we now, since he looked into the substance and reached conclusions limited to determining wife this violates the i in a or violates the constitution. It does violate the ina and the constitution for similar structural reasons you pointed out, going back to judge harriss point. Looking at just that. We are not limited because for the same reason that this court held we passed through the mandel hurdle because the record shows the proclamation is not bona fide and the internal illogic of the proclamation and being underinclusive, not having a national ban against venezuela even though it met the baseline and including somalia even though it failed the baseline, not including countries like belgium or the philippines that have been widely known, as National Security officials have noted. That goes to judgment rather than authority. Where is there a violation . You could help us more. Why this is a violation of the ina. On the establishment clause the proclamation suffers the same fatal flaws. We cut past the mandel hurdle, support for the mandel test because on its face and taken 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 this proclamation is not bona fide. There is also evidence in the proclamation just limited to its four corners that because of the internal illogic being underinclusive, overinclusive, letting a great number of nonimmigrants even though the president is saying the premise of this is some nations have a problem making the entrance of anyone a threat, those things show on the four corners this is not legitimate but putting that aside it is clear on the record that the president has continued to make statements of hostility toward muslims and in response to something the government said in its presentation, he said the november 29th statement, the tweeting of antimuslim videos is not connected to the proclamation. On the white house official website will find the statement of the official white house spokesperson who said security and Public Safety for the American People are the issues the president was raising with those tweets and has been talking about these Security Issues for years from the campaign trail to the white house. The president has addressed these issues illustrated by the sweets with the travel order he issued earlier this year and the companion proclamation. Assuming the same principle you described in your brief, same record, that the proclamation only covered syria. Any different . I think it would still be a problem because the president and Vice President mike pence before the election targeted the area in the same way and made the same connections between nationality and how is that different from what president reagan and president carter did . Because the structure of the proclamation holds, it violates congresss judgment in the 1965 active we arent going to act on stereotype, we arent going to go to a nationalitybased syria for example or iran if you want to expand it to two. Those countries, the only two on the list refuse any cooperation with the United States in terms of intelligence sharing, identity sharing, travel, chock full of folks from al qaeda. They have been in varying states of civil war, are you saying on this record the president , any president is simply not able to make judgments for the protection of the nation and conduct of Foreign Policy . Only those countries . Certainly not. Setting aside our statutory claim, on the establishment clause, would be a different record if the president hadnt continued to make antimuslim statements right up to the time he issued the proclamation. Even if it is just syria or syria and iran, there is no change. The same record including the sweets and the constitutional claims, yes, that would still a problem. How do you explain the fact that congress and the Prior Administration identified the very same countries in the Visa Waiver Program saying they were a problem and were not part of that program and for the same reasons, those very same countries were included in eo one and eo 2 and they are also to some extent, to most extent carried in the proclamation in addition to chad and venezuela and north korea. You draw a lot of inference that eo one identified all muslim countries and therefore it was a surrogate for antimuslim animus whereas those same countries had been historically part of the administration, Prior Administration problems in the immigration area for the same reason, lack of information, the fact there werent good checks, hard to vet and many of these terrorist groups were springing up in those countries. I dont see the logic where you with eo one without looking at the prior history. If you look how we treat those countries as nationality, you have to go that far. In addition, congress identified nations, not individuals and you seem to suggest congress was prohibiting identification by nationality but throughout the ina they do so. That is precisely why we prevail on our statutory claim. Congress looked at the very factors the president asserting and their judgment was the answer to that problem is if these countries pose these information sharing problems, dont let them participate in the Visa Waiver Program, subject their nationals to the individual the president the right in the National Interest to include and exclude nations come all classes of immigrants under 1182. That is an exercise of sovereign power which Congress Shares with the president but i dont see how we as a court ought to be asking the questions we are asking today, did he have enough information, is he really protecting the National Interest, if we screen a whole country with numerous terrorist groups do we have to identify members of the groups who raise their hand and say i am a member, these are judgments of the executive exercising sovereign power and they are not the subject of court review we seem to want to conduct and you seem to want to conduct. Seems to me if on its face, logic coherence, there is a selection among countries based on identified data that some muslim countries are subject to the restrictions and some muslim countries are not, indonesia is not on their end it is huge in terms of population so the suggestion has a background noise is driving your argument and that background noise is the subjective views the president expressed during the campaign. Their two points i would make in response. In fact, though the president does have great power in matters of National Security and immigration subject to the constraints congress put on him in the constitution puts on him. In the first instance shared those, and explicit for 100 years, the idea that we are interfering in judgment of this proclamation, seems to me all we need to do is look at the face of the proclamation and say whether it is exercised in good faith. So that narrow exception mendel granted, we are then left with background, we play an Important Role domestically, we do not the sovereign power of the United States visavis other countries, that is a president ial executive branch power and congressional and Congress Shared that power and gave it to the president in fullscope and now you say he doesnt have it and we get to ask him why. You cant ask the president the real reason. The Supreme Court reached the merits of the statutory claim and it wasnt about the actions of the president. The Supreme Court is clear about how the president and Congress Share the power regulate Immigration Congress writes the law and the president must follow it and 1182 congress did give the president power to suspend for a period of time the entry of noncitizens but subject to the restrictions on the face of 1182 making the finding as chief judge gregory noted and subject to the constitution, the Supreme Court reached and considered on the merits a claim of statutory claim about the president s actions under 1182. It did not say that is nonreviewable and contrary to what the government proposed during its arguments, congress, the president was acting pursuant seems to be the opposite of what you are saying. Basically said that if the president s prerogative and we are not going to review that. What it was about was whether the president was comported with the statutes passed by congress and the court said we construe the statute, ina section 2403h and the un protocol to which the us let me ask you something along these lines a little bit more particular. What is the right your plaintiffs are exercising in coming to court . I understand your reliance on apa. Is there anything else you are relying on to get into court . On the statutory claim we are relying on the apa but also relying primarily a large number of cases including tell me what authorizes you to come to court, are you looking for a freestanding constitutional claim . The government doesnt contest the court can review answer my question. In chamber of commerce versus armstrong, james and more, Supreme Court made clear quartz have the authority and equity to enjoin an executive Branch Agency when there is a claim that the president or the executive branch is violating the law whether that is statute and in case after case armstrong suggested a course of action, trying to figure out it seems to me you are trying to find another action under the first amendment, freestanding claim being discriminated against under mccreary, not mccreary, under the establishment clause jurisprudence and im not sure there is such a claim. We are not make anything like that claim for damages here. Im asking if it is a freestanding constitutional claim. Im talking it was created as an exception because plaintiffs didnt have a way into court and the Supreme Court created that but my question for you there is no such cause of action created for you and your circumstances and i want to know what you are relying on. This court is cross that bridge. We are stuck by it . That is right. It was vacated. The reasoning still applies. The reasoning is correct in case after case the Supreme Court and federal circuit court, including cases challenging 11802f policy has reviewed the statutory claims that doesnt give you a cause of action to enter court and doesnt create judicial review of 1182. It doesnt need to, doesnt address somebody violated 1182, sounds to me like you are asserting cause of action by 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 what your position is without relying on majority. Lets go to your position, not what the majority did. 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 a statute passed by Congress Court can review that decision in equity. It has equitable power to enjoin the president from violating a statute it doesnt create a cause of action, cause of action under the ina and the only place you try to get a cause of action apart from the i in a under apa which is pretty dicey is some freestanding claim that what the president it is unconstitutional therefore i can be in court but that is not the way it works. The government doesnt even argue that there is no cause of action. Does that make a difference in terms of what we do, we have subject matter jurisdiction, a role in this system and as you know, the branches, the three branches have their defined roles and we are acting fairly aggressively in a role that has been conferred to congress and the president and not to us. There is not a single case among the ones government cited that stands for the principle that our claims, constitutional or statutory are nonjusticiable. They all reached constitutional, and or statutory claims relating to the president s power in these circumstances. They reached the conclusion you dont need causes of action. And i can tell you in this case the Supreme Court is going to address it and tell you one way or the other what you have to do but the fact that they address it doesnt mean you have cause of action if they tell you you dont have cause of action. In other words courts do have a right to decide jurisdiction but dont have a right to go beyond it if they dont have jurisdiction. On the statutory claim the ninth circuit as well has ruled that there is cause of action under the apa and equity. Let me ask about the statues, is it your position that there are no findings in the body or on the face of this proclamation that whatever findings appear in the body of that document simply misaligned and are insufficient to satisfy requirements of statute. I think it is both was the president does invoke the magic word that makes the finding, the entry of these 150 Million People that are detrimental to the interests of the United States. If you look at his actual findings. In section 1h, i i, 1h i, and that is in my judgment necessary to prevent the entry of those foreign nationals about whom they lack sufficient information to assess the risk they pose to the United States, that is just basis for someone being excluded under 1182 a. Congress has already decided what to do about that. There is one critical finding that is missing from this proclamation and setting aside whether it would be sufficient the president said the comprehensive detailed system for admission of noncitizens to the United States with individualized vetting and the Visa Waiver Program for nationals of those countries. It is insufficient as to these 6 countries. The beginning of the proclamation it says i hereby find absent measures set forth in this proclamation the immigrant nonimmigrant entry into the United States of persons described in section 2 of this proclamation would be detrimental to the interests of the United States and that their entry should be subject to certain restrictions. That is why 1182 those amended words you talked about. The president invokes the magic words but it is internally illogical because the further details he gives elsewhere in proclamation he didnt actually apply baseline factors but included somalia in the baseline. Didnt make the nationality line, certain government officials failing the baseline and letting a lot of people from these countries even though the whole justification adding to these countries, the proclamation is different from the iran and cuba examples government discussed. We believe nationality discrimination is prohibited under 1152, even if there are instances in which the nationality is permissible, the president has written a 10 page proclamation with detailed subsections completely unlike the few lines the president s used to justify iran and president carter or cuba, and even being thorough. And the proclamation, and all the other sections of the ina, and congress has said they looked at the very factors the president looked at here and that came up with the solution which is they rejected in 2015 they considered the same that congress in 2015 looked at the same problems the president is asserting and rejected the idea of a country based ban on admission and said we will stick with individualized vetting, and not nationals of these countries but traveling in these countries, if you are dual national and holding a uk passport and and an iranian passport, you go through regular vetting what about the president s assertion that this is intended to be a cultural or bargaining chip to incentivize these . The best answer to that is what he did with venezuela. If you have recalcitrant governments or governments doing their best are not up to snuff you can do two things, a venezuela type been which has a lot of precedent, these government officials are recalcitrant, not cooperating with the United States on information sharing so i will bar you and your family members, that is not a nationality been and is permissible under 1182 and you can do what congress recommended which is to give assistance to countries that are having trouble like somalia and that is the answer. I have 2 point out even banning nationals in a state of war. There are different statutory frameworks in that situation. I dont read any of these reasons you are giving, saying the president can exercise legitimate Foreign Policy but exercise legitimate Foreign Policy, treating nationals if he is okay, if if you treat the country like it is antagonistic Foreign Policy which they are personally making for ulterior purpose. Im not making those limitations, congress has. Im pointing to congresss limitations, duly enacted statutes that limit 1182 a 11802f. 11802f, the president has broad discretion and we will give discretion for our representative for the sovereignty of the nation, a domestic matter. Subject to the requirement he make a finding which is reviewable by federal courts. It is reviewable. We review the president s Foreign Policy decision. The government is relying on nonreview cases. Where are you getting the authority to state 1182 by judicial courts. Among other cases. It is argued there was no jurisdiction for various reasons, would you agree with that . When the Supreme Court would in this case. The statutory argument, the complaints you have about it i agree with my colleague, the family situations, illogical here. And it is a structural argument, it is a procedure, you complied with that procedure i am not understanding it. 11802f, has not made rick wasnt finding, detrimental secondly, 11802f did not permit the president to contravene large sections of the a and a. 1152 a, the overall purpose of with the historical process of the United States to have National Origin quotas to the 1924 act. The categorical decision, civil rights comprehensive in that case, why president reagans proclamation they are nationality bands, they were indefinite. What is the difference between those and this one. No one challenged those two. Where they valid . I dont think any nationality bands are valid but you dont have to buy it to accept the statutory argument because the distinction is with iran and cuba the president s were acting in response to exigent circumstances with bilateral crisis. That is not in any of the cases, the District Court and you have put forward that is not part of the law. It is clearly no nationality discrimination. To explain why you the logic of your position is president reagan and president carters proclamation this would be in bounds on statutory arguments. There is a reason to do that in harmony. 1152 a and the act prohibits nationalities from nations but you dont need to agree, if there is an exception to 1152 a cant be that the president can disagree with congresss considered judgment with these same countries. 1152, nationality, off the table with respect to any action to visa issuance and seems you have to say president reagan and president carter violated the statute. You dont have to agree with need to agree with our 1152 a argument. The reason, when you look at the text of those proclamations there were not just a few lines. Congress had not considered those situations, the president said these words different circumstances to deal with the dramatic crisis. Of the president and his proclamation at the end of the paragraph it would be all set. He said he is going to i think this also matters, we have the president trying to return to the National Quota system that congress categorically rejected the . Not even addressing visas but the admissibility under 1182, distinguishing muslim countries, identifying criteria that distinguishes them that they cant get information or follow procedures and many of the groups, they are not suppressing these muslim countries, they are not all muslim but the ones that are included here from other muslim countries that are not included. I dont see the logic that necessarily follows, he is now banning them because muslim countries which are muslim as opposed to some other criteria identified on the proclamation. The president has said he was going back to his original plan and going all the way. Even though he hasnt banned other muslim countries in section 4 c of the proclamation and the power to add more countries. The purpose of eo one and eo 2 was set up a system to collect data. He built on prior countries that were suspect, every one of them was in prior congressional findings except for iraq and treated those and it was a 90 day Data Collection period. The proclamation is the product of an analysis which does distinguish between countries and apply criteria in the National Interest. Your suggestion hes using magic words not expressing National Interest is very strange. You said if it wasnt for his statements made during the campaign and otherwise it will be fine. It would be a different case. What another candidate, you wouldnt be here. That is not true. If that candidate maybe same statements the last year you can see you wouldnt be. The point we were making as if you didnt have the record of statements it would be a different case but i still submit you conceded in the last hearing eo 2 was neutral on its base and we would not be here if we didnt have the president ial statements. Now you are backing off that and basically saying it would be a different case, sure it would be a different case, you just wouldnt be here. We point out the differences that judge keenan picked up on in her concurring opinion. The right to review the internal proclamation. We are relying on the report, the government has waffled on whether they are relying on it, they are making it clear they are not relying on it the court may not go into it. With regard to what was alluded to, the fact that in the majority of the Supreme Court, described this as a rational basis, how does that impact Justice Kennedys concurrence . The court addressed that in the previous opinion but the argument is this. Fee although didnt involve any allegations the government was acting without a bona fide reason. There wasnt any allegation of that. That wasnt even an issue. It cant bethat that where you have a record showing the president s action is neither facially legitimate nor bona fide that you dont simply follow mandel. Mandel is not a rational test on its face. The president s action facially legitimate and bona fide. That what Justice Kennedy did. That case didnt get past the mandel hurdle on that question, it didnt change with the proclamation. Does that cause the case in a minute . And tells us once you violate the establishment cause you violate it forevermore. In this instance how does the taint we have these preelection statements and postelection statements, we dont have so many statements, what is your best argument in the prior statement, maybe you dont make an argument. We agree of course under mccreary, the taint doesnt last forever. Sticking with his original plan come of those were his very words, on march 15th, by the District Courts. In the august 17th, the purging story, and the three tweets just last week that the president tied to the proclamation and the new band. The president once again speaks in vague words National Security, not only to repudiate previous statements toward islam, he has also doubled down or tripled down on hostile statements. On march 15th, assimilation of muslims in the United States has been very hard, august 17th, november 29th, that are antimuslim. On that record we simply have on the proclamation a litigation position like we saw in mccreary which is not sufficient in the president doubled down on all his statements. Of the government is right, about the scope of president ial power, the president could focus on the campaign and declare carrying out campaign promise, 150 Million People let me follow up over the question. What would be the standards where there has been to determine whether or not they have cured the constitutional action under the establishment clause. Same through line and establishment clauses, if the test of the change, larson and the most recent opinion, is the primary purpose the manifest objective to disfavor one religion and the record on that has not changed. It has been augmented. Face value, understanding questions dealing with unitary executive, you havent questioned their motives and conducted this review, the statements in a much more difficult case. That in the record, two of the officials, lowerlevel officials, also made antimuslim statements, your honor, our argument is not every lowerlevel official involved in the president s that he acted out a personal antimuslim hostility, it is the president was acting out of a purpose to disfavor islam and directed lowerlevel officials to carry out the original purpose in the original way he meant to do it by using nationality. If he is so intense, and looking at all the statements, if people looked at all the statements that he was doing something other being antimuslim how would you deal with that . Your position is he is antimuslim and everything he is doing 150 Million People, most of whom are muslims, his band doesnt affect 90 of muslims in the world. That doesnt matter. Im asking you. He could add more countries under section 4 c of his proclamation but what matters he didnt know how to write a, not smart enough to figure out how to ban all muslims . His purpose is to disfavor islam he need not been every single i heard the number 150 million, they are not thinking about it. He continued to these six predominantly muslim countries taken together, 95 muslim and affected 150 Million People in the government makes much of the fact he has thrown two nonmuslim countries for good measure but venezuela is not a nationality band, it is very targeted been, the other one affect less than 100 people. The court below applied, not saying this correct but applied a leash restriction that says the government hasnt shown the National Security interest couldnt be addressed without this band. The alternative as far as addressing this National Security interest would you find acceptable . There is the venezuela type been for one thing to address the problem the president is asserting about governments that are noncooperative and the answer on the National Security front is the one that congress has enacted and stuck within 2015 which is our individualized visa process. The casebycase waiver provision. Substitutes the president s criteria for the waiver process for the instituted by congress. With an individualized basis to apply any individual to apply for waiver under this plan. There is a waiver that is available. For individuals to the System Congress and acted. How important is it for statutorily a crucial distinction. That is an important consideration. One is the government came in and a temporary 90 day pause, the president repeatedly said since march 15th, i am going to get tougher. They havent made any substance but a conclusion. A different situation here. 11802f on its terms you noted talking to the government, the statute speaks in terms of suspecting, in a period of time. What i am trying to get at, would that make a difference, with that make a difference . Even if it were temporary what would prevail on statutory claim and constitutional claim, the fact that it is indefinite and permanent with new countries being added does distinguish the proclamation under 1182, nothing else any president has ever done, looks like this. The reasons and periodic reviews of restrictions, what is that included 4. Those periodic reviews will follow the same formula. It follows the same format, the restrictions are no longer needed for restrictions that are lifted. Because he doesnt apply stated criteria it is a black box. We dont know it should be. The department of state the black box the question is does the study taint . The answer has to be no. They acknowledge that, and the interest of National Security, to identify challenging the safety of the country here. And make the disturbances in the near east. The question is that illogical or irrational or those conditions no longer exist, and the proclamation that with periodic reviews, are still needed. Periodic reviews are part of the president s original message, a proxy for religion and there is nothing on the record that undercuts that original purpose. On march 15th, and the issuance of the proclamation, without a purpose. I want to ask if the government is right that this is nonreviewable, if the government is right that this is the scope of president ial power, in the prescient words of justice jackson, a loaded weapon is telling that the president s campaigning referred to the japanese american internment as a precedent for this van is contrary to laws passed by congress but the establishment clause and the structure of government in the constitution. You have 5 minutes. He gets the whole four points this court and others faulted the government without names the crime record suspension, and before those are made. And this is not like these proclamations before us but no other proclamation had this sort of detailed level of investigation and review and findings. The findings dwarf what president s before us justified what they imposed. In this instance what they are asking for is secondguess the president s policy judgment and nothing in 1182 authorizes that secondguess. And not authorized those second guessing. And their exemptions, no law pursues its purposes at all cost. And in this circumstance makes particular sense trying to encourage Foreign Government to change their behavior that would tailor that based on what a Foreign Government did and emphasized this goes above and beyond, it is recognized above and beyond the 1182 restriction, and if they dont have enough information. The whole problem here, with that information. If it is the circumstance it doesnt make sense to run through the visa program when the defect is undermined. There is a systematic problem engaging in the systematic solution. To influence these countries internal policies, information sharing. Information sharing practices, to encourage them to change their behavior and protect the nation until they do. In north korea, would you say north korea has the greatest amount of exemptions in terms of people affected by this been . There is no objection on both immigrants and nonimmigrants. The greatest influence we want on north korea, they dont let citizens come in . Is that the most restrictions . They are the most recalcitrant countries with information sharing, the greatest restrictions imposed on them. They cooperate with the government and lesser restrictions from the government, and imposed on them. The last point on the statutory provision is judge keating given that the finding makes very little sense to be definite restrictions. They run out the clock on not providing information we need but what we have done is make a periodic review to improve and visited. Subject to renewal. Sunset provision doesnt make sense when theres an actual item and the proclamation judge harkins points out in the ninth circuit, 42 out of 43 dont have that, they are straight definite and totally with the language of the statute, which the president may determine. The second point is on 52, nationalities, the point of the statute makes clear the National Origins quota. It was not to restrict the ability of the president to make determinations about National Security policy in the first place. That is the solution and explanation for why the order wasnt invalidated the iranian order was invalid. Not that there is a made up emergency section in the statute but it is about issuing people who are not eligible to enter the country in the first place and if there was a made up emergency, this proclamation should satisfy a judgment. The brief was 15 months earlier, the agencies recommend to the president there are identified visa acts in information sharing today. In response to that, this is far easier to justify even on their own rationale. Two minutes. My rebuttal time is limited to cross appeal, we are cross appealing, any part of the third version of the band to go into effect violates the first amendment, not singling out, it is a pause but indefinite ban with possibly more muslim countries, and the promise of establishment clause, and that is what the proclamation does and the court should not count that. Asked the clerk to adjourn for the term and they will come down to grief council. The court stands adjourned. Credit cards that have used social media. Also coming up this weekend doctor lydia describes ineffective medical treatments and cures throughout history. World war ii veteran recalls his Bombing Missions over japan from