[inaudible] [inaudible] it please the court. At the injection strongly signals the proclamation is fundamentally different than the prior executive order. The proclamation reflects a multi agent worldwide review engagement and recommendation process. Its subsequent findings are that eat [inaudible] that werent tailored three restrictions in order to encourage those countries to improve their practices to protect this nation until they do so. In light of the fact the standards for stay in standards for literary induction are seriously the same with you tell me what you think the Supreme Court actions on monday in issuing this day which you solved, why do you think or how will that play on the ultimate resolution of pulmonary junction in front of us. Your honor, i think the primary element of this day as plaintiffs themselves have urged the spring court in urging the stay is that we have to show likelihood of merits. We know in a minimum they have a likelihood of success on the merits i would submit that in these circumstances where we know what the Supreme Court and how they struck the equitable balance last time the fact that they get into the complete stay in the circumstances. Strongly signals they think its more than just a mere likelihood of success but theres a pretty good indication that the fact that they stay the injection across the board they start the preliminary induction as well . I think its a strong signal. You can never differ too much from what the Supreme Court means an estate when they dont give reasoning but i think thats a pretty strong signal, your honor. Think is because of the critical procedural and substantive differences between the proclamation and the prior order. In light of those differences the proclamation falls within the broad statutory and constitutional authority. Indeed the District Court actually agreed with us that the proclamation but as the executive order the print Supreme Court at least early on they had that state to. Im sorry, your honor . As to executive order two they left out almost all of that standard, as well. The stated in part with respect to the individuals who did have a bona fide which we do agree with we make that to mean we have a likelihood of success. As aisen can you pull your microphone or talk louder, one or the other. Thank you. This court agreed with us that the executive that the proclamation satisfies the requirements of 1182f and id like to begin there. You mentioned the critical differences between the proclamation now an executive order to. Could you delineate for me what you think are the most important critical differences. Yes, your honor. Its a procedural component and substantive component. On the procedural side the critical difference is that this would involve a multi Agency Process where under the executive order the president instructed these agencies to determine what if any they thought was missing from the information provided by. I didnt read the if any into what the president directed to be done and he directed that that certain countries be found to be banned. I dont think thats right. If you look at section 2a not that certain countries but that which countries should be banned. If you look at section two a of the executive order in the exact language its whether there is information that Foreign Governments are not provided and it didnt say there is information. And it didnt say if any, either, correct . If any was lost on whether, your honor specs when the proclamation directs that the secretaries provided a list of countries that would not comply with requirements of the population is not an edict in your mind that there has to be an affirmative list that following review there may be some or many or none to appear on the list. Thats right, your honor. I think that is true three with. The first is as i said section 28 identified whether there was information that was missing and it section to eat when asked for the list says appropriate categories of nationals from countries that are providing the requested information so there were no countries that were not providing the requested information by definition and even if there are countries that are not providing robust information and expressly says appropriate categories and we know the agencies to get seriously because for example, iraq was found to be not 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 this is not some sort of preordained vision and we know that the agencies have expressed discretion under the eo to make a recommendation to the president of which countries include and the exercise that discretion and they didnt just omit for example iraq and turned to the substantive part of the differences between these executive order. Its a very tailored restriction and they omitted sudan in iraq from the earlier decisions even with the countries that they covered they had exemption for nonimmigrant visas for several of the countries and in reading the proclamation. As i understood it one of the primary bases in imposing the ban on the seven countries and differentiated by classes does the hope and expectation is a change in processes for these nations in improving their information during practices and im still having trouble seeing how this bargaining chip coercion is at all necessary length of the finding that the entry of the whole class of nationals at 150 million plus would be detrimental to the United States. Can you me with that . It is a traditional exercise of the use of 1182 asked to determine whether a Foreign Government is engaged in harmful practices it can be deemed detrimental to the National Interest to allow their Countries National that it is precisely for example what president carter did with the iranian hostage crisis. That issue wasnt educated there that is, your honor, bless this course is to say that both president carters [inaudible] for their reading hostage crisis and present reagans for all cuban immigrants during a diplomatic deal with cuba were also unlawful. But those were all decorations proclamations of a different order. This is a wholesale man of 150 million plus nationals based on the hope and expectation that this will incentivizes nations to operate. The connection there 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 it is little and connected to the iranian hostage crisis but the point of the order was because the iranian government is engaged in harmful practices we are going to impose restrictions on the entry of their nationals and so too with do we already have restrictions on entry contract if you dont have the sufficient information necessary you dont get a visa so what why this additional prophylactic measure . We have many systems but those made by the agency here is that Foreign Governments are not providing sufficient information to allow that betting to occur. Investigates the conclusion is the entrance the national disaster. That is one possible response but it is not the only response and nothing in the 1182 asks or in the closet imposes a narrow tailoring of these restrictive alternatives and its entirely permissible. Even in the fact that it be exceptions for entry that congress cheerfully calculated throughout. I think that is right, your honor. As courts have repeatedly recognized 1182s is a recognition that the president can impose additional sections over and above and they are limited and can this be done indefinitely as the president has done here . The statute says for for such a. And i struggled to find a dictionary definition that said a suspension is for an indefinite period of time. Can you explain for us how the indefinite man complies with the language of the statute not what has been done by other president s but how does it meet the statutory grant of authority . The first point is that the statutes as such. As he may deem necessary. In this circumstance when the problem that has arisen is the countries arent giving us sufficient information is entirely permissible to say that. The last at least potentially until they correct the deficit but the order doesnt even go that far. With the order actually says under section four is that every 180 days the president will in the agencies will revisit. But theres no sunset provision. Theres no sunset provisions. But it is in place essentially forever unless he says otherwise is that correct . No, its on place until the country approve their practices or able to keep the size of change but let me ask you another post. Lets say to the study contains information which is likely to be true that most terrorists are people who commit terrorist acts are meant. For the president then ban all men under the express authority granted by 1182 asked and he could he ban all men until evidence showed further that men are not the ordinary and customary perpetrators for terrorist activity. I dont think so, your honor. Why not smart. Because i dont think using gender as a if you cant use gender then there is a question of violating section 1152 is that we are driving next to expect no, what i was driving at is under mandel under the restrictions of [inaudible] have to be for a patiently [inaudible] its 90 of terrorist acts are committed by men arent really protecting this country we just keep out the men. In general, under constitutional law you cant use for been in trade as a proxy for you to target the actual product they are worried about. And nationality is not a proxy target it is not a classification for the federal government with respect to immigration law. It is rife with [inaudible conversations] 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 never wouldve use the language of insurance visas because of clear under the ina that the issuance of immigrant visa does not entitle anyone to enter the country. You always still have to be admissible and if congress intended to implicitly repeal the President Authority under 1182 asked to allow the entry to suspend the entry they would never have used the language in the immigrant visas. I ask your question mark in your view can the president use 1182 asked to promote or further any foreignpolicy justice that he might think is acceptable. This one is arguably related in the sense of the report talks about the leading deficiencies but if he wasnt happy with the nation for some unrelated reason regarding foreignpolicy executive that he would then say i plan these seven or eight nationals from this country in an effort to promote my foreignpolicy. I think the statutory language is whether its in the National Interest and i think hes trying to accomplish foreignpolicy executive and is presumptively going to be not at all related at least in this case related to the improvement of vetting process. Its arguably related to immigration context. I think that is right, your honor. Again, i understand that president carters iranian proclamation was challenged but both of those orders had exactly that feature that because of foreignpolicy disputes the government the president restricted the entry of immigrants from most countries without any suggestion, any suggestion that the individual nationals were subjected to that restriction had anything to do with the foreignpolicy of the government. This is stronger than that because here the concern we have with for government is about their failure to give information about the National Entry we are not researching. The case is much much stronger than the prior historical examples of the use of 1182f. I have a threshold question because i want to make sure i understand the justice argument that you make. Is that meant to include an argument that the plaintiffs the statutory claims under 1152 in the apa or the constitutional claim that they do not have standing in this country . We have made in article threepoint his argument, your honor, but our primary interest arguments are on [inaudible] that in particular on the statutory side statutory claims challenging the restriction exclusion of aliens abroad are not reviewable unless congress has expressly best otherwise in here congress is not done so. The constitutional claims that an alien the us alien abroad has no cost to right. Are you making a righteous claim or standing claim or merging both . It is recognized are fairly related and in this context i think the nature of our righteous objection is also an article three lack of imminent entry in the basic point is that our lesson until an individual alien sound otherwise eligible to enter and is designer waiver they are not affected by the proclamation that is our. Is that your position that the court cannot review this proclamation for validity. No, your honor. What i was saying was that on the constitutional side our argument is. Lets take the test recite. Is it your position that the president can make it any [inaudible] detrimental activity and find that they should be excluded for National Interest and we cannot review that. Is that your position . That is our position. Can you cite me the case where congress has stripped off 1331 jurisdiction . I would point to two cases, your honor. The spring courts decision in [inaudible] in both of those cases recognize that we are talking about a statutory claim the restriction of aliens abroad is entry of aliens abroad is a fundamentally politically informed policy judgment that is not officially reviewable unless congress has provided otherwise in that is clearly the rule when it comes to law officers. Counselor officers reflect the entry of aliens abroad even by misinterpreting the ina that is simply not reviewable unless congress provides otherwise. [inaudible conversations] hasnt congress made it clear when they stood our review ability several times, sole discretion not reviewable and other parts of the statute 1182. I think 1182 1182. I think it has language itself further confirms that it should not be reviewable but. How so . Because the language is raised as if the president finds that it is not in the National Interest by using the phrasing at the president finds it so the president has to find something it means that its reviewable. I dont think so, your honor. So were the findings for. That is the statutory constraint. Just as in webster versus [inaudible] the government officials. [inaudible conversations] its a strong that doesnt mean that. Reviews a constraint. The president takes an open office. I understand that. It doesnt mean the president doesnt have to follow it. Where are the teeth that would say he cant if you say that courts cant another branch of government we cant, who does . To think, your honor. First is the first and primary teeth as the president takes an open office as an independent operation to comply with the constitution and laws. He takes accuracy. The second, i would say, is that congress. No one. I dont think this court should lightly suggest. Im just saying that it started generate 20. Im suggesting that the. To the point number two. The point number two is congress has the ability to review what the president is doing. Were talking statutory claims. The delegate to president and then theyre the ones who decide whether or not did not involve the exclusion of aliens abroad. The discussion of aliens abroad are is a very narrow set of circumstances where sprem accurate recognizes unless congress provides otherwise there will be no review, and up like in which hadda the president has issue i inherit authority when comes to exclusions. The power comes from congressional power, does it not . Thats not correct. Look this exact argument was made. The argument was made that the congress had improperly delegated the authority to the president to exclude aliens, and the Supreme Court said that is not true, that the president has inherent executive authority to restrict the entry of aliens abroad. You are seeing under 11. 52, which clearly in 1965 was a policy we would not discriminate, national discrimination, the president can just say, i dont want to do that . Well forget about that and i can have every country excluded and you said, theres no reviewability of that . Is that correct . If the president were to do that, it would not be reviewablebut, again, the president would have to make a finding that it was detrimental to the National Interests. That is not what we have here. What we have here is the president found that eight countries have specific National Security and Foreign Policy problems and in responsible to the problem he is potentialed an entry restriction, precisely what president carter did for iran, what president reagan did for cuba. No one argued the entry restrictions in one challenged those. Thats right. This is under challenge. That is correct. The fact that no one berted to challenge it strongly signals how weak the claim is. If you look at the legislative i those at that time what you said the major reason it doesnt apply. I the issue as soon as of the visa not the entry and a response to judge keenans question on gender, you said, well, gender doesnt apply because its one of those broader classifications that deals win discrimination, like race. So gender is one you cant use. Why would congress put it in 11. 52 . Sounds like its already colored, gender and race is covered even with the issue shoe of this visa and entry. Why is it in 11. 52 . Yourself, the point i was making to judge keenan ime question is why is it in 11. 52 if what you say to judge keenan, that gender doesnt apply because its one of those classifications they cant do it, an insidious, i like race, you can use nationality. Why have 11. 52 apply to race and gender because you dont need it there. A lot of statutes that president hunt thing why is it in 11. 52. Because congress was passing a statute that bolster what the constitution in part also prohibited. The other important point is 11. 52 is focusing on the issuance of immigrant visa. What they were trying to wipe out he prokeis. Didnt kneed. Already had. Om forgot you gave the answer to judge keenan, already had that. You cant use raise, the president s can do this, he can do it also in this instance as judge prager indicated on this basis, too. Your honor, a lot of statutes prohibit what the constitution prohibits. Im not sure why that would undermine the argue. I was making but are in 11. 52, the legislative history makes clear, what congress was concern about was a specific issue. The National Origin quotas. I want to ask one question. As i understand it, theres been a worldwide review, and that is the primary bay from which you think this is really different. I would she Supreme Court issued a face. In the face of a worldwide review, which is classified, we dont have it, just know its there, procedurally, fine. But then what do we do when were looking at 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, i believe we can take judicial notice of that he tweets the very thing we say the purpose of this at least is cased the plaintiffs say the purpose of this proclamation is. What do we do with this . 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 point. We think that all those statementser legally if irrelevant and heres a critical pound that is different from last time. Tell me what you mean although statements. Im talking about the statements going directly to purpose, and if the purpose if the allegation is that this is an evident to ban muslims from the country, and every statement thats made by the individual who is the president , making it, says that but it is done in a way as to say, we did a worldwide review and now its legal. What i was saying is that the Supreme Court, since we were here last time in the Morales Santana case, made chris cal here to the standard is a rational basis review, and subjective purpose is legally irrelevant. When you engage in rational basis reel rue you do not look to see what was behind the motives of if this not a rational basis review, as you sea the Supreme Court said it, i do we then good back to the reasonable observer . And answer the question in that vein. I understand what you say the Supreme Court said. Tell me what you say on that. So, if you blow past the fact that the Supreme Court said rational basis aclu, measure mcclearly the question is whether the objective observer would determine the primary purpose of the proclamation was religious, and i would submit that when you have a multiAgency Review, where you have got newman dish. Its classified and thats all we know. That theres been one. Which we accept. Theres been one. Not in this record. Right . This report is not in this record. The report is not in the record. We do have in the record statements and we and notwithstanding how you may classify them, we can take notice of statements made evidence allows us to do that and we have that as to direct purpose on the part of the president. Again, your honor, the reasonable objective observe would look at the proclamation, and you dont have the underlying report but have the proclamation and the reasonable observe were not ignore what the proclamation says. Arent you saying she support for the proclamation is in the report . Is the support being rational and not a muslim ban in the report . Its further detailed in the property and also detailed on the face of the proclamation itself. 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 there, that it would be easier. Your honor, the issue just was that is a was classified. Test classified so its not public. This is also a report that is covered by the president ial communications privilege. It is a recommendation from cabinet secretaries to the president that includes incredibly Sensitive Information, because its classified and also contained important Foreign Policy information, and chew countries engamed with us and which countries improved their practices during the engagement pros. All incredibly Sensitive Information covered by the president ial communications privilege. That said thats what you have to fall back on. Cant get past the classification of it. Were article 3 judges and we have clearances. With the classified stuff but the executive privilege, you have to thats never been litigated. Thats right. Asserted in the District Court. No. Wasnt asserted and that issue has not been resolved. Thats right, your honor. If his court we dont think its necessary and we dont think its appropriate but if the court war to order to us file the report ex parte and under sale, under seal. You would file the privileged material, too . Wouldnt stand stand on the privilege . Thats an unusual position if you believe in the privilege. I said if this court were to order us to do 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 deliberative process of the president , which seems to me would we similar to the president asking us as judges to give hem the deliberative process hip our behind our decisions. I agree we shouldnt have to disclose that. You said you would give it up with if ordered us. Have to litigate the executive privilege issue first. Or we wouldnt have to. What is the answer to that. Would would we have to litigate the executive privilege issue before you would show it to us ex parte and in camera. Your your honor, im not sure we have taken a position. You dont eave a position on that. Whether the court would only order if we were to first assert the executive privilege. If we ordered you, you would give to us us we have clearances like you do, but you have another point and could be a valid point of executive privilege, deliberative privilege. However you describe it. We understand it. But i thought your answer was that if we ordered you to do it, you would give us to us. If you want to back off that, chore entitled to because thats the question, would you before you give it to us, want to insist on litigating the deliberative privilege applicability before you turn it over,es part day and in in camera. I apologize. Do not have a position on that, and if it is relevant to this court, we could submit supplemental filing. Whether we would want to stand on the privilege if could i just follow up on that. You were counsel in District Court, correct . Yes. When this question came up before the strict court you told the court, you think whats in the proclamation supports it under the relevant Legal Standard it should be upheld. If you think what is in he proclamation isnt sufficient to support the relevant Legal Standards, then it should be invalidated. So do you stand by that position or have a new position now . We do think if you dont think the proclamation by itself satisfies it and you dont want to look at the no. No. There were two sentences. And im asking you if you stand by them. And i dont think this requires a long answer. If you think what is in the proclamation supports the relevant Legal Standard, then it should be upheld. If you think what is in the proclamation is not 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 you would put here. It is, we do stand by that. Thats the mandell prim. Insofar as any of these judges on the court thought that was critical to their analysis, is whether the underlying no. You live or die by not having it in. I just have one other question, which i also when the acting solicitor general was here before, he insisted on telling us how temporary his ban was, brief pause, and that is 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 is last time it was temporary because it was in service of the study. Right, but the suggestion was that the study would make it so that you wouldnt have it in the future, but in fact, low and behold, the lo and behold the study said do this in an indeterminant amount of time. Only the countries found to have an indiana quick lined up pretty well. Theres overlap but not a perfect overlap. Sudan is not covered, iraq was not covered under the first order. Iraq was not in the case that was here before. Under the first order. Of the other countries covered, their exemptions for the nonimmigrant visas. Were not denying that many countries are also covered but nor should anyone be surprised by the fact that when youre investigating whether a country has inadequate information sharing practices, countries found to be terrorie have sends or sponsor terrorisms are not go to well, nor should we be surprised, i guess, since the president has continued to make statements, some people regard to be antimuslim, after the issuance of this order. Should we be surprised it might be construed as an antimuslim order. I dont think thats a Fair Construction. Sen that what the president said. I dont think thats a Fair Construction of flow claimation. Im asking that about the president s statements after the order. Im suggesting the president s statements after the order mostly said he wants today be tougher, and whether it is tougher, not tougher we respect to muslim. You look at what countries were covered, they took out muslim creations and created exemptions for muslim countries and added nonmuslim countries and a single Muslim Country ed ad north korea and venezuela. But it doesnt amy hardly to anybody. The other said thats like window dressing. Nonmuslim countries. The president s statements were he wanted it to be tougher and no one can construe that to be tough are with respect to muslims because the proclamation is not tougher with respect to muslims. The other category of the president s statements that judge wynn was asking you about from november 29th, you do agree we can take judicial notice of those, right . Judicial, notice, yes. We dont think its legally relevant. Youre saying you concede we can take judicial notice. Of the fact the statements were made. They want to use the content, the plaintiffs want to use the content of the statements, which would never be admissible in trial. Theyre not official documents. They got speculation, opinion, her zay, triple hearsay and you are conceding we ick take judicial notice of that. I thought that judge harris maybe i misunderstood was referencing the president s tweets and not newspaper articles. Its the departments position that the president s twitter account, those are official statements of the president of the United States. Right. And i assume it is right in response to her statement just then . Yes, he tide. Yes. You concede those are official statements of the president of the United States. Correct . Yes. The department of justice are you conceding the tweets are official statements. Yes. He said yes. Thats gone the governments position in other cases. You have plenty of evidence of that. I. My last one, it is still the departments position, i take it, that its the president who speaks for the executive branch, right . We have a unitarian executive. Theres no constitutional space between the president and dhs and if theres any gap between the purposes and motive between the president and a subordinate executive official, as a court we canned go behind what the president says, right . We good whiff what the president says. Insofar as its legally relevant, yes, yourself. Plaintiffs but these statements before the Supreme Court in opposing the stay, and these statements didnt persuade the Supreme Court from staying the injunction and shouldnt way this court basanite legally relevant under mandell mandell. Leal lie result anywhere mcclearry. Not persuasive under mccreery. Relevant but not no. Just to clarify. We think that statements about the proclamation would be relevant but not per pacesive. The most recent tweets arent even about the proclamation so theyre not even relevant. You think go ahead. Youre suggesting, counsel, that while the president may be showing antimuslim bias in his tweets, that cannot be taken over into the content of the proclamation. Your honor the proclaim make has to be viewed bases on his language and not any manifested antimuslim bias with the tweets. I dont agree with he characterize of the tweet but its not legally relevant under mandell or mccreery. One other question. Can the president violate the immigration and naturalization act . Its kind a global question. Can the president , by terms of his authority under 11. 52f, take action career 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 what would be the limiting prim from your perspective, then . , if the president can ban all immigrants, even though the ina says you cant discriminate against immigrants, if the president could take other action, the seemingly infinite nature, even though the statute says suspend for a period, can the president essentially say, well, im banning all immigrants . I dont want to take any action. Why couldnt the president under your theory violate any particular provision of the ina by making a finding that entry of people pursuant to any other provision of the ina is detrimental to the interests of the United States . The president has to make a finding, as you said, that by would be detrimental to the nationals and the outer banted two thing about the potential outer bands of the National Interest. One substantive and one sort of procedural. One point is it cant be directly career to some other ina provision. If, for example, the pratt said dont like immigration. I therefore think its not contrary to the National Interest. I think that would be in serious tension with providings of the ina but thats not what this proclamation does. Its finds there are certain countries that present National Security and Foreign Policy problems as a result the president will impose additional restrictions. That sort of order is well within the core of 11. 82. I point the court to emphasize in the d. C. Decision and the First Circuit involved this sort of record under the ina the was a visa inadmissibility ground that required the aliens activities went the country be harmful, not just entry. Theyre activities. The president im just trying figure out the outer limits. The president can treat immigrants more harshly than he treats other aliens. Is that correct . Under 11. 82f. I if he had a reason why its detrimental to the National Interests. In the proclamation he says its detrimental to the out because they have more rights when they get here. Is that sufficient. That is exactly what the Supreme Court held in fayl, the issue was if the haitian immigrant that got into to the showers they would have had asylum protection. Fails said that opposite they got, they had to show they had a right to be there isnt that correct . No your honor, the key point is that sale if the immigrants got here they would have had asylum from protection, and to stop them from invoking the protections they set up a blockade and the Supreme Court said that was clearly authorized. To the enactor fee the president is using 11. 82f arguably that they might stop aliens is not a probable im getting to the reasoning of the proclamation. Know the president doesnt have to be logical. I agree with you. Not what i said. And the proclamation can be riddled with lodge cal gnaw. No american we have to be logical. Dont judge us bay that standard. I agree mitchell concern is with regard to images, 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. So if youre from the banned country and just want to be here temporarily, then youre subject to fewer restrictions, and if you are an immigrant from the exact same country, youre banned and youre saying, well, doesnt make any sense but the president can do it. No, not at all what i said. Said the proclamation explains explicitly why theyre drawing that distinction. They drawing that distinction because immigrants have greater protection from removal and if the problem is that theres insufficient information from these countries and theres a risk that our vetting system is not working and people are getting into the country who dont want here, the risk is more harmful. Its a perfectly rational thing to do it and congress was saying in 11. 52, these immigrants are future americans, and were going to give them some protection. Well say you cant discriminate against people based on nationality. Dont you think thats what the legitimate distinction congress was drawing with regard to immigrants as opposed to random alien who wants to come in here for business or wants to go hear a University Speech or something. Shes people are future americans and were not going to tolerate discrimination based on until aity. Isnt that clear expression of congressional intent in 11. 52 . In he issuance of immigrant visas and the legislative history of the action is Crystal Clear that what youre trying to stop is National Origin quotas where the government was discriminating on basically the basis of ethnicity and race to maintain a if i may let me ask you this. Isnt it true that a president is entitled to the greatest area of deferens in National Security and then double down on National Security in international affairs. Correct. I want to see how you think that principle of defer residence works when a president makes statement and people look at the statements and should would go, clearly antimuslim. Some would go, if you read them in context may not be agreement, he is talking what he perceives as some kind of terrorism related in some fashion to some people who are muslim. Socalled recall islamic terrorist. If you can look at his statements and each side can find something they would point to what inference statements in light of the defer residence he is into thed to . Yes in light of the deferens and almost as important in light of the raggate lime looking at the statements. I understand on the neutrality but im asking, pretty clear if people are interested in his statementment on his statements. Some its clear as dripping with discrimination, others go, well, know, if you look its it in context, its always how statements are made that people can look at them differently. But if there is that possibility that people can see them differently in total context, is there any rule on what inference he would be bitele to entitled to under the deference he is due. The more general deference, you should take to the more reasonable, more charitable interpretation of what at the president did rather than the more hostile one but especially in this context where we have a proclamation recommended by agencies who have no such statements, theres no basis to question the integrity of the officials who made these recommendations. We dont know. We havent seen this report where all this stuff came from and we determined in the other opinion that the eeo2 was made in bad faith. And because all the things that have been said. Now you have more added to it with these last weeks and proproclamation, and plus the report which you dont show us. The proclamation laces out the agencies engaged in he process and recommended these eight countries sort unless the court is to prepared to say the president is just supplying the agencies didnt actually say that, and somehow no look at it to see. We cant look at it to see. That is true, your hour burk the court shouldnt lightly suggest the president of the United States is flat lying that i understand your argument. Your position that theres this Agency Review process that kind of breaks in sheen between any any concern that anyone might have with the president and mat happen here. I need you to explain to me how a review process by subordinate executive Branch Officials is anin act that can cure the taint from president ial statements in a unitary exist. The dhs is part 0 of the executive branch and theres no constitutional space. Its not that the president is 0 he over here and dhs otherwise there. Its the same thing, d shhh is subordinate to the president so this review process cant be an intervening independent act. Youre review thing proclamation, the question is what is the primary purpose of the proclamation. Which is signed by the president of the United States. That is true. He has his statements on the record. Official statements of the president of the United States and although i agree, people always see things differently, some of those november 29th november 29th statements even with defer deference, con suing them in the light most favorable to question its tricky to find the National Security rationale in those. You have asked how to why theres the potential what the revs is of the i would say is that if this exact recommendation had been made to a different president , and that president had adopted the recommendations, the notion there would be an violation is theres nothing about either the process or the substance of the preclaim nation that would possibly i think you think were not in mccreery in and establishment clause land, but if we are, that is an entailment of the the same moment of silence statute constitutional in one location, unconstitutional in another. Thats a possibility, but neither mccareerly nor any other case has ever suggested that when multiple agencies engage in a lengthy deliberative process, make recommendations to the president , about National Security and Foreign Policy concerns, when those recommendations are facially neutral about religion, that all of that can be set aside based on earlier statements and statements that dont even per tine what the purpose of the proclamation is. I think just focus on, example, mccreery, mccreery involved a facially religious pratt that even as a third iteration, had great emphasis on the language in the tenth amendment that was religious in naturement the other mob. S put up alongside it didnt really make much sense. He the history bolstered the conclusion there but didnt drive the conclusion there. Whereas here, without the prior history, theres just no argument that this proclamation would violent the establish clause. A much better analogy us mcgo up. In mcgowan you had su closing laws that said that the purpose of the law was to protect the sabbath, to avoid profaning the lord and the Supreme Court held that didnt violate the establishment clause and the primary reason is the exemptions in that statute reveal it didnt any longer have religious purpose. It was more secular in nature. More about leisure than religion and what would submit is in this case the exemptions the proclaim make serve a very similar function. Theres no way you can conclude that thats ausmus him ban but for some reason, they decided to exempt nonimmigrants from most of the muslim countries. That just doesnt make any sense if you think its a muss million ban but makes muslim ban but makes receives under the religiousal given which there are problem with the information shared from the countries and in order to both deal with the risk of that and also just as importantly to encourage these countries to improve their practices, the president adopted tailored restrictions that differed based on countries, based on recalcitrance and willingness to to cooperate. Makes pen sense under the rational and i just want to make sure we are clear when you responded to judge king that the president would have to be flat out 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 he is lying at all. If anything he is one individual who is saying exactly what he means. Notwithstanding judge shed ts characterize it can be rate many ways. He seems to be saying it over and over and he is making it very clear, telling the truth about what he actually feels here. Not that he is lying. And i think that is the question. If the president is telling the truth about what he feels and notwithstanding that you have independent worldwide review, which you seem to characterize they just decided to do it on their own without any impetus whatsoever but well that there if you have and that he is telling the truth and the truth is perceived what he seems to be saying over and over again, how do we look at that in determining i know you want to look at mandell a shell and terms of the rational basis, but in terms of a reasonable observer. Again, your honor, the reason the proclamation, given it is based on the recommendations from the agency and if you take as given he is tell tug truth that the agency did so recommend, that the agencies did engage in this process, they find that eight country have inadequate information sharing practices or other risk factors that undermine visa vetting, that they recommended tailored entry restrictions designed them to encourage them to improve practices and protect the nation. You accept that is true i submit that these statements, certainly the earlier ones and we statement the statements as being true . The statements of the statements are what the statements are. No one is disputing over and over again. Right. Im saying the statements especially the moe recent ones, dont speak to the purpose of this proclamation. What this court is reviewing. The purpose of the proation to deter terrorism . Is that the goal of the proclamation . Look, the enobjective of the proclamation is to keep the nation safe from terrorism and other tech safety threats. The president residents 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 charitably . Well, so, your honor, the first point is that is not about the proclamation at all and is its about deterring forward terrorism i thought you said was the goal of the proclamation. 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 terrorist, whatever you think about that, doesnt suggest any sort of general bias against muslimsment doesnt suggest 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 eight countries or other risk factors that undermine visa vetting, and to deal with that problem, particular aspect of the broader terrorism problem, they are imposing entry restricts to encourage those countries to improve their practices and protect the nation until they do so. All right. Thank you, your honor. Thank you, counsel. Good morning, your moore, may it please the court the protectation repeats for 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 of let me ask this question. The same one i asked to start the other argument. I want you to the me in light of the Supreme Courts actions to grant the stay on i think it was monday and stay the criteria for stay and preliminary injunctions are essentially the same, would you oppose the Supreme Courts action but i want you to look at the action and tell me what impact you think that is likely to have on the final resolution of the validity of the preliminary injunction we have in front of us . Judge shedd i dont think this court can take any substance from the Supreme Court stay order. This court was i didnt say substance. Said, im schooling you north this court but youre saying we you cant take anything from that . Any indication at all. I dont think the court can because the Supreme Court was very careful not to say a word about the merits or the equity. I have a question at judge shedd did. Seems to he granted the stay at all the court had to fine there was a likelihood of success on the merits. I dont think thats. Is that wrong. No state laws. Dont say that. I dont think thats right, judge motz, because as we saw with the Supreme Courts previous stay, that one did detail they were issuing that order based on the view of the equities presented on the record. Did say that. So i dont think we can assume as mr. Mooppan sunninged the Supreme Court was saying something about the merits. In the normal case that is an important fact. Justice is but the Supreme Court previously did not address the merit in ruling on the stay, and i think all this court can do is to decide the case on the record and on the law as it finds it. Thats what he Supreme Court i guess the question the Supreme Court followed the traditional process here and just omitted the factor about substantial likelihood of success on the maintainers . We cant tell why the Supreme Court issued the state. It didnt stay as it did last time courts just dont skip that stage. Your honor, the Supreme Court didnt rule on the merits last time, and in considering the stay of the eo2, and i just rule on the merits with regard to a stay or a preliminary injunction. Judge abe, agee, the court can judge this cass as it finds it. The Supreme Court did tell us and the nine inch circuit to act as quickly as possible, which suggests that theyre interested in whatever we come up with. Thats right, judge motz and i maintain to go that is right and i was maintain to go back to the reasons why. It might be they are interested in us getting done with it and getting something in front of them so they can rule. The Supreme Court will do what it wishes and it should have the benefit of this courts ruling and opinions and what the ninth circuit does. We shouldnt take anything from the fact of this day. I dont think you can. The second reasons new proclamation we could read between the lines and think you are to be asking us to send it back to have the Supreme Court rule on the merits and come back up because it didnt have the merits. The District Court did reach merits on the likelihood with a pulmonary injunction, didnt consolidate under whatever it is with the merits of the case or make a full record of all that stuff. I think there was litigating issues of privilege or things like that. There is more than adequate record to support that. You can reach statutory issues on which we didnt prevail and there is inadequate record to do that. The Supreme Court did direct this court and the ninth circuit to reach a decision. That is what the court should do, respectfully. The second reason you began by saying this proclamation continues to practice a band proxy by nationality. This is different than it is on the face of it, the proclamation began not just with muslim majority nations but all 200 plus nations and winnowed its way down to these similar results with respect to these prior executive orders. Why doesnt that make a difference in the sense that it did not begin as a proxy by nationality bands . The government conceded just now we should not be surprised we ended up with 5 of the six countries that were banned once again being banned under the proclamation. That is because even though the president directed this worldwide review of each country, what he did in section 2 e of the eo 2 was to say give me the list of your countries and in the design of the study he ordained the necessity of a list, he was not going to be satisfied of the department came back and said cant find any . Yes and we know that not just from the case of the proclamation itself which is replete with references to coming up with a list of countries but because the president said so in official statements continuously hummocky example is on march 15th, the day the eo 2 was enjoined by two District Court the president and two important, the first thing he said is, muslims assimilating in the United States, i want to go back to the original and i will go all the way and that statement is one he has repeated throughout the summer and fall and even before the results of the study came out, the president said i am sticking with my original plan to use nationalities. This goes way back to what he said before the election and was confirmed by his advisers, dont want to talk about muslims, i will talk about territories. The relation to the statute, if i recall your predecessor in the earlier case suggested if it were any other president , eo 2 would be fine, it would satisfy the statute. Is that your position . What we said is if you didnt have the record of statements it would be a different case. But we as judge keenan noted last time there is reason to doubt this is legitimate on its face and crossreferences to eo 2 and its internal logic which has in common with the 02. The proclamation says, first of all, we have a problem with the information. As a result 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 let in a lot of them. The 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 do think judge keenans view of eo 2 still holds with the proclamation and offers a study. The fact that the government has taken great pains to investigate what exactly are the threats that are posed that can be illogical, flawed, a product that perhaps you wouldnt be proud of but in terms of its cohesiveness the president can do it if he makes the required findings as long as it doesnt violate the i in a or as long as it doesnt violate the constitution. Arent we now since he has looked into the substance and reached his conclusions, limited to determining why this violates the ina or the constitution . It does violate the ina and the constitution for similar structural reasons. Going back to judge harriss point. Are you limited to looking at just that . We are not limited because for the same reason 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 in being underinclusive, not having a 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 the National Official noted. That goes to judgment rather than authority. Where is there a violation . That would help us, house is a violation of the ina. On the establishment clause the proclamation suffers from the same fatal flaws eo 2 did. We get past the mandel hurdle the court will continue to imply 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 that the proclamation on its face is not bona fide and there is also evidence in the proclamation itself just limited to its four corners that because of the internal illogic, the under inclusiveness, being overinclusive, living in a great number of nonimmigrants even though the whole premise of this is the nation has a problem make the entry of anyone from that country a threat, all those things show that on the four corners this is not legitimate. Putting that aside it is clear on the record that the president has continued to make statements of hostility toward muslims, and tellingly, in response to something the government said in its presentation, the november 29th statement the president made, these antimuslim 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 the security and safety of the American People were the issue the president was raising with those tweets and the president had been talking about these Security Issues for years now from the campaign trail to the white house and the president has addressed the issues illustrated by the tweets with a travel order he issued earlier this year and the companion proclamation. The same principles you described in your brief and elsewhere, the same record, but the proclamation only covered syria. Any difference . It would still be a problem because the president and mike pence even before the election targeted sharia in the same way and made the same connections between nationality and how is that different from what president reagan and president carter did . The structure of the proclamation. It violates congresss judgment in the 1965 act that we arent going to act on stereotype, we arent going to go to a nationalitybased syria, for example, or iran, both countries, the only two on the list that reviews any cooperation with the United States in terms of intelligencesharing and identity sharing for travel, chockfull of folks from al qaeda. They have been in varying states of serial civil war. Are you saying on this record that a president , any president is not able to make judgments for the protection of the nation and the conduct of Foreign Policy if it is only those countries . Certainly not. Setting aside the statutory claim, on the establishment clause, would be a different record of 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 in your argument. On the same record including the tweets and the constitutional claims, yes. That would still be a problem. How do you explain the fact 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 the countries included in eo one and eo 2 and they are also to some extent carried on into 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 a surrogate for antimuslim animus whereas those same countries have been historically part of administrations identification of problems in the interdiction area for the same reason, lack of information, the fact that there were not good checks, hard to vet and many of these terrorist groups were springing up in those countries and so i dont see the logic where you start with eo one without looking even at the prior history. If you are going to look at the prior history how we treat those countries, nationality, you have to go far and in addition congress identified nations, not individuals and you seem to suggest congress is prohibiting identification by nationality but throughout the ina they do so. That is precisely why we prevail on statutory claims. Congress looked at the very factors the president is asserting as justification for the proclamation and their judgment was the answer to that problem is these countries pose these kinds of information sharing problems dont let them participate in the Visa Waiver Programs, subject their nationals to individualize vetting. The right in the National Interest to exclude nations, whole classes of immigrants under 1182. That is really an exercise of sovereign power which Congress Shares with the president but i dont see how we as a court ought to be asking questions they are asking today. Was the question right . Do they have enough information . Is he protecting National Interest, we screen a country with numerous terrorist groups do we just identify members of the groups who raise their hand and say i am a member . These are judgments of the executive exercising sovereign power. They are not the subject of court review. You seem to want to conduct it seems to me if on its face, logic coherency, there is a selection among countries based on identified data that some countries are subject to the restrictions in some muslim countries are not, indonesia is not on their. It is almost all muslim, isnt it . It is huge in terms of population. The suggestion has a background noise is driving your argument and that background noise is the subjective views the present expressed during the campaign. There are two points i make in response. Though the president has great power in matters of National Security and immigration he is subject to the constraints congress put on him and the constitution puts on him. Get his power from the constitution in the first instance and 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 seems to me all we need to do under mandels look at the face of the proclamation and say whether it is rational and exercised in good faith. And that narrow exception that mandel granted we are then left with the background where we plan Important Role but we play an Important Role domestically, we do not exercise the sovereign power of the United States on other countries at nationals in other countries, that is an executive branch power and congressional and Congress Shared that power and gave it to the president in full scope and now you are saying 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 has been very clear about where the president and Congress Share the power to regulate immigration. Congress writes the law and the president must follow it. In 1182 congress did give the president the power to suspend for period of time the entry of noncitizens but he is subject to the restrictions that are both on the face element of 1182 having to make the finding and still subject to the constitution, the Supreme Court reached considered on the merits a claim of statutory claim about the president s action under 1182. It did not say that is nonreviewable. Contrary to what the government proposed during a document, it just said the president was acting pursuant seems to me it was the opposite of what you were saying. Basically said that is the president s prerogative. We are not going to review that. What sale was about was whether the president was come pouring with statutes passed by congress and the court said section 2403h and the un protocol on refugees along these lines, what is the right you are coming to court exercising. I understand you are relying on the apa. Is there anything else you are relying on to get into court . On the statutory claim we are relying on the apa but we are also relying primarily on a large number of cases including tell me what is the substance, the statute authorizing you to come to court, are you looking for a freestanding constitutional claim. The government doesnt contest the court can review constitutional claim. You need to answer my question. Im answering it. In chamber of commerce versus rice, armstrong and dames and moore the Supreme Court made clear that courts have the authority in equity to and join an executive Branch Agency when there is a claim that is successful that the president or the executive branch is violating the law whether that be statute, as we see in case after case the Circuit Courts i thought armstrong suggested the injunction had to be connected to a cause of action and im trying to figure out, sounds to me like you are trying to find a different action under the First Amendment, freestanding claim that we are being discriminated against under mccreary not mccreary, under jurisprudence and i am not sure there is such a claim. We are not make anything like a claim for damages here. Im asking if it is a freestanding constitutional claim. Im talking about creating an exception because the plaintiff didnt have a way into court, the Supreme Court created that but my question for you is there is no such cause of action that has been created for you and your circumstances. I want to know what you are relying on. This court decided on eo 2. Our decision in eo 2 was vacated so but the reasoning still applies. In case after case the Supreme Court and federal Circuit Court including cases challenging 1182 policies reviewed those statutory claims. It doesnt give you a cause of action to enter court and doesnt create judicial review of 1182. It doesnt need to. 1182 doesnt address somebody violated 1182, sounds to me like 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 with the majority. Lets go to your position, not what the majority did. On the statutory claim under chamber of commerce and gains and more and countless other cases it is clear that there is a claim the president is not following the statute passed by Congress Court can review that decision in equity. It has equitable power to enjoin the president violating statute. As a remedy it doesnt create a cause of action. You dont have cause of action under that. The only place you get cause of action apart from the i in a under the apa which is pretty dicey as you know is some freestanding claim 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 as to what we do . We have subject matter jurisdiction, we have a role in the system. As you know, the 3 branches have their defined roles and we are acting fairly aggressively in a role referred to congress and the president had not to us. There is not a single case among the ones the government cited that actually stands for the principle that our claims were constitutional or statutory, nondigestible. Failure they all reached constitutional and or statutory claims relating to the president s power in exactly the circumstances. They reached the conclusion you dont have these 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 whether you are having too. The fact that they address and doesnt mean you have a cause of action if they are going to tell you dont have 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 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 statutory claim. Your position that there are no findings in the body or the face of this proclamation that satisfy 1182, that whatever findings appear in the body of that document misaligned and are insufficient to satisfy the requirements of statutes. It is those. The president does invoke the 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, your honor. Section 1h. I beg your pardon, one eye, 1h roman i. He says the limitations opposed by this proclamation are in my judgment necessary to prevent the entry of those foreign nationals about whom the United States government lacks sufficient information to assess the risk they pose to the United States. That is just a 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 that is missing from this proclamation. Whether it is a sufficient one. The president basically said that the comprehensive detailed system for admission of noncitizens to the United States was individualized vetting and the Visa Waiver Program for nationals of those countries, is insufficient as to the six countries. The proclamation says i hereby find absent the measure set up in this proclamation the immigrant, nonimmigrant entry into the United States 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, limitations, etc. That is why 1182 are those the magic words you were talking about . The point i am making is it is internally illogical because further detail he gives elsewhere in the proclamation shows he didnt actually apply baseline factors because he included somalia. He didnt make a nationality ban against venezuela but only applied that to government officials even though they failed the baseline and is letting and a lot of people from these countries even though the whole justification is you cant trust anyone in these countries. The proclamation is different from the iran and cuba examples. We believe nationality discrimination is prohibited under 1152 a. Set that aside. Even if you think there are instances in which a nationality based ban is permissible the president has written a 10 page proclamation with detailed subsections completely unlike the few lines the president used to justify iran and president carters instance and for being thorough. Not sure i understand. What he cant do is rewrite laws passed by congress and what the proclamation represents is a rewriting of 11802a, grounds for inadmissibility and all the other sections that provide visa applicants. Congress has said they looked at the factors here and came up with the solution rejected in 2015, the same congress in 2015 looked at the same problems the president is asserting here, they rejected the idea of a country based ban on admission. Stick with individualized vetting, we would go after the people who are not nationals of these countries, and if you are dual national, and we are not going to subject to you. A cultural or bargaining chip incentivized these nations to cooperate. The best answer to that problem is what he did with venezuela. If you have recalcitrant governments or governments doing their best but arent up to snuff you can do two things, you can do a venezuela type been has a lot of precedent, these government officials are recalcitrant, on information sharing and you and family members from coming and. That is not a nationality been injured is permissible under 1182. You can do what congress recommended in the i in a which is to give assistance to countries that are having trouble like somalia. I have to point out preclude the president from manning nationals in a state of war. There is different statutory framework that would apply. I dont read any of this stuff, any of these reasons you are giving, saying the president can exercise legitimate Foreign Policy when he does this cant exercise legitimate policy if he does this, if he streets nationals in the top government but treats the whole country because the country is antagonistic it is not okay. We had making judgments about Foreign Policy which you are personally making for and alter your purpose. I am not making those limitations. I hear you making these arguments. To congresss limitations, duly enacted statutes passed by congress. You are not recognizing that while 1182 a provides criteria for visibility, so does 1182 x. 11802f said the president himself has brought discretion and we will give him discretion to act as our representative for the sovereignty of the nation not as a domestic matter. Subject to the matter he make a finding which is reviewable where did you get that . He is reviewable. We get the right to review the Foreign Policy decision. The government is relying on a number of nonreview ability cases which make clear. Im asking you where are you getting the authority to state 1182 is subject to review by courts . The Supreme Court said so. The Supreme Court did that. It was argued there is no jurisdiction for various reasons and they decided on the merits but not sure there is a decision on that. Would you agree on that . The specific justice ability question but one hopes you ought not to say. And the statutory argument, i guess the complaints you have about it seems to me i agree with my colleagues, doesnt sound like we can say to the president of the United States you are illogical here. You dont follow the procedure here. Is your argument basically a structural argument, Congress Sets out a procedure and it is because you havent complied with that procedure is that what you are saying . I am not understanding it. The first is the president has to 11802f has not made the requisite findings that this is detrimental secondly, what 1182s cant possibly permit is the president to contravene, to rewrite large sections of ina. And 11502a, and the 65ss overall purpose of moving, rejecting the historical practice of the United States to have National Origins which go back to the 1924s, a categorical decision as part of other civil rights comprehensive civil rights. The explanation is accurate, is that the case . Tell us why president reagans proclamation and resident carters would have been valid . They were clearly nationality bands. They were indefinite. What is the difference between those . No one challenged the suspensions. What i am asking you is are they valid . I dont think in a nationality van is valid but you dont have to buy that to accept our 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 statutes, that is not in any of the cases, that is just something the District Court and you have put forward but that is not part of the law. No nationality discrimination. I am trying to explain why you can read the logic of your position is president reagan and president carters proclamations would have to have been invalid under your statutory argument. There is a way to read them in harmony. I do believe 1152 a prohibits nationalities that dont need to agree. If there is an exception to 11502a, it cant be that the president can disagree with congresss judgment about the same problems with the same countries and rewrite. Congress made the judgment where there is nationality, this simply off the table with respect to any action with respect to visa issuance. Just seems like you have to say president reagan and president carter violated the statute when they issued those proclamations. I think they did but you dont have to agree with me in order to agree with our 1152 a argument and the reason is iran and cuba situations if you look at the text of those proclamations were not just a few lines, congress had not considered those specific situations in the presence of these are exigent circumstances deal with the dramatic crisis and we are going to suspend the entry. If the president ended his proclamation at the end of the first paragraph you would be all set, you would agree with . If he said we are going to do a wide review. Because i think the scope also matters. We have one question is the president trying to the National Origins that congress rejected. The admissibility under 1182 and relying on that power and distinguishing among muslim countries, identifying criteria that distinguishes them. The fact that you cant get information to follow procedures or the fact that many of the groups, not suppressing these groups, these particular muslim countries, they are not all muslim but the ones that are included here from every Muslim Country was considered and not included so i dont see the logic that follows, bending them because banning muslim countries which are muslim to other criteria identified in the proclamation. We know because the president said so. He hasnt been other muslim countries in section 4 see of the proclamation. The purpose of eo one and eo 2, to collect data. And builds on prior countries that were suspect, every one of the countries in congressional findings except for iraq, a 90 day Data Collection period. The proclamation is the product of an analysis which does distinguish between countries and does apply criteria in the National Interest. Your suggestion he is just using the magic words and not expressing National Interest is very strange. If it werent for his statements made during the campaign and otherwise it would be fine. A different case, your honor. Another candidate won the president ial election and entered this proclamation. If that candidate made the same statement. Your last hearing conceded it wouldnt be. The point we were making as if you didnt have the record of statements it would be a different case. Still submitted you concede eo 2 was neutral on its face and we would not be here if we didnt have the president ial statements and now youre backing off that and basically saying it would be a different case. Sure, it would be a different case. We pointed out deficiencies in the four corners judge keenan picked up on. We get to review the proclamation to see if she made good judgment . We are not relying on the report. The government has waffled on the report. If they are making it clear they are not relying on the report, the court may not go into it. With regard to something the more Alice Santana case, majority of the Supreme Court described a rational basis for the statute. How does that impact Justice Kennedys concurrence in that case . The court addressed that in the previous opinion but the argument is this. Fiorello didnt involve any allegations that the government was acting without a bona fide reason. There wasnt any allegation of that. More alice was citing to fiorello where there wasnt an issue and it cant be that where you have a record showing the president s action is facially legitimate or bona fide, that you dont simply follow mandel. Mandel is not a rational basis on its face. It asked the court to determine is the president s action legitimate and bona fide . That is what Justice Kennedy did, simply said in that case they didnt get past the mandel hurdle. This court made the correct call reviewing eo 2 another relevant has changed with the proclamation. Ask about the establishment cause. The Supreme Court told us once you establish the establishment cause you havent violated it forevermore. We agree with that. In this instance how does the taint, preelection statements, postelection statements, preeo 2 statements, we dont have so many statements. What is your best argument for why the taint for price statement exists right here or colors this case or maybe you dont make an argument. The taint is not dissipated. We agree under mccreary, once the taint lasts forever, once again what you have is a president sticking with his original plan, those were his words, going back and going all the way. Second on march 15th as soon as he 2 was joined by District Court he said that. He continued to make statements hostile to islam including the august 17th of the apocryphal purging story judge factor mentioned and the three tweets just last week that the president tied to the proclamation in the new band. Finally, the president once again speaks in vague words of National Security. It continued not only not to repudiate his previous statements of hostility toward islam and muslims, he has also doubled down in this case tripled down on those hostile statements, march 15th, the assimilation of muslims in the United States has been very hard. August 17th, on november 29th he tweets three videos that were antimuslim and 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 the statements. If the government is right about justiceability of the scope of president ial power than the president could promise a ban on muslims throughout his campaign, then declare i am carrying out my Campaign Promise by using nationality as a proxy for religion, been 150 Million People who are almost all muslim. Let me follow up and ask a question. Was would be the standard in this instance, that determines whether the government in fact, unconstitutional action under the establishment clause. I think the standard is the same through the establishment clauses and if the text doesnt change, larson supports the most recent opinion and that is is the primary purpose here the manifest objective to disfavor one religion . That is the test. And the record on that has not changed. It has been augmented. What about the fact the government says we disagree that these statements suggest an animus but even if you take that at face value understanding questions we are dealing with unitary executive they point to the president of subordinates and havent questioned their motives and they conducted this review and arrived at this result and a much more difficult case. Does that change the result . There is in the record evidence at least two of the officials, lowerlevel officials involved in the president s study also have antimuslim statements. We have that in our motion for judicial notice. Our argument is not that every lowerlevel official involved in the president s study acted out of a personal antimuslim hostility but the president was acting out of a purpose to disfavor islam and directed his lowerlevel officials to carry out his original purpose in the original way by using nationality as a proxy for religion. If he is so intense, looking at all the statements, he was doing other than being completely antimuslim how would you deal with that . He absolutely is antimuslim and everything he is doing, resolve and banning 150 Million People most of whom are muslims, has been doesnt affect 90 of muslims in the world. Im asking you. He could add more countries in the proclamation, what matters is he has speech is not smart enough to figure out how to ban all muslims . Of his purpose is to disfavor islam he would need not been every single i heard the number 150 million but 1 billion muslims are not if you take the face of the order, he continued to ban six predominantly muslim countries taken together, 95 muslim. And the government makes much of the fact that he has thrown in nonmuslim countries for good measure but when there is not a nationality ban is a targeted been, the other one affect less than 100 people. The court below applied, not saying it is correct but applied a less restrictive analysis, and it said the government hasnt shown the National Security interests couldnt be addressed at this been. And addressing the security interests that is acceptable. There is a venezuela type band 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 2018, our individualized visa vetting process. But this has a casebycase waiver provision. And substitutes the president s criteria for that waiver process. The individualized basis. To a waiver for that plan. There is a waiver available, but the establishment cause. To seek to use which is inconsistent. How important is it to the statutory argument that the stance is indefinite. At is a very important consideration. A couple of different ways. One is the government came in and said the reason this ban is okay is it is a temporary 90 day policy. The president repeatedly said since march 15th i am going to get tougher and go back to my original plan. Substantive findings make a conclusion. And a different situation now. 1182 on its term, in talking with the government, the statute speaks in terms of suspending for a period of time. The ultimate outcome of the case in your view. Even if it were temporary we still prevail on statutory claim and the constitutional claim, it does show the fact that it is potentially permanent. This proclamation, from every prior proclamation under 1182. Nothing else, does this. The reasons for the restrictions, periodic reviews of the restrictions. What is that included for . Those periodic reviews we have to assume will follow the same format. Dont you a review turns up that restrictions are no longer needed and will be lifted . It is possible but the president s criteria because he doesnt apply his stated criteria consistently, he we dont know the department of state and secretary of defense and the president. The government is relying on that black box. The question is, does the study cure the taint . They are saying these proclamation this are 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. It is a difficult problem, is that irrational . Those conditions no longer exist, there is no need for the proclamation. You have to assume on the face of the proclamation, those periodic reviews, that restrictions are still needed. Periodic reviews are part of the president s method to use nationality as a proxy for religion. There is nothing on the record that undercuts that original purpose. He has said himself starting march 15th and continuously through the summer and the issuance of eo 3 the proclamation that he is sticking with that purpose. Is the government right that this is nonreviewable, president ial power. In the present words of justice jackson, this ruling would lie about like a loaded weapon telling that the president while campaigning explicitly referred to the japanese american internment as a precedent for this ban. That is contrary to the laws passed by congress and the establishment clause and contrary to the basic structure of government in the constitution. Thank you, counsel. You have five minutes reserved. He gets this four points. First is that party here, and other courts, for not having findings to justify the prior entry suspension faulted the government for doing interim entry suspension before those findings remain. The government banned those findings. Counsel is right, the proclamation is not like any proclamation that ever have come before but that is because no other hostile nation is that this sort of detailed level of investigation and review and findings, the findings here dwarf what president s before have done to justify their entry restrictions in the District Court recognized correctly in this instance what they are asking for is secondguess the president s policy judgment and nothing in 11802f authorizes that sort of second guessing. It is illogical and inconsistent, not true and it is not authorized to engage in that second guessing. The primary point they keep emphasizing is exemptions. No lob pursue that this is at all cost. All laws recognize they are competing in this circumstance in this particular sense, trying to encourage Foreign Governments to change their behavior and taylor that based on what the Foreign Government is and also emphasized this goes above and beyond the visa vetting program. 11802s has always been recognized to go above and beyond the 1182 restriction, what the dc circuit recognized and they didnt respond to that and here it makes perfect sense. They say what should happen is officers should deny visas if they dont have enough information. The whole problem is we determined Foreign Governments are not giving us enough information. That doesnt make sense to run through the visa vetting program when the program is being undermined. There is a systematic problem engaging a systematic solution. The internal policies about information sharing. It is a dualpurpose and information sharing practices, and to protect this nation until they do. The main thing to encourage them to change and would you say north korea has the greatest exemptions in terms of people affected by this ban. On immigrants and nonimmigrants. The greatest influence we would want to have on north korea. With respect the most restrictions. Those are the most recalcitrant countries with respect to information sharing, the greatest restrictions imposed on them. And lesser restrictions were imposed on them. Countries like north korea and syria have the greatest restrictions imposed on that. On the statutory section, the question given the finding is it would make little sense to have that restriction. Foreign government doesnt get to run out the clock on not providing the information we need but what we have done is made it a periodic review. If they do improve that to be revisited. The provision subject to renewal. The sunset provision doesnt make sense when theres an actual identified problem and everyone hundred 80 days under the proclamation you will be revisiting it. In the ninth circuit, 42 of 43 executive orders dont even have that, just straight up indefinite and that is consistent with the language of the statute for some period the president may determine. The second point is on 1152, nationality. The point of that statute, legislative history makes clear the National Origins quota was not to restrict the ability of the president to determine National Security policy that makes people in eligible. That is the solution and the explanation for why the cuban order wasnt invalid and the iranian order wasnt invalid. And it is not that there is a madeup emergency in the statute but the statute is about issuance of immigrant visas, not people who arent eligible to enter the country in the first place but even if we thought there was a madeup emergency exception this proclamation should satisfy just as much the cuban proclamation. The cuban proclamation involves diplomatic dispute that was 15 months early. The agencies recommend to the president that there are identified visa actions today and in response to that this is far easier to justify than the cuban proclamation even on their own rationale. You have two minutes. My rebuttal time is limited to cross appeal, we are cross appealing because permitting any part of this third version of the ban to go into effect violates the First Amendment core requirement the government not single out one religion for disfavor. The problem is heightened because it is no longer a pause but an indefinite ban with possibly even more muslim countries to be added. This court pointed out the promise of the assessment clause is religion will not operate as instrument of division in our country. That is exactly what the proclamation does and the court should not countenance that. Thank you. We will ask the clerk to adjourn the court for the term. Please rise. The Honorable Court is adjourned. On the future of technology in war. Brian curtis on the 1942 rose bowl that was made in North Carolina instead of california. Dan stillman talks about the