Transcripts For CSPAN3 4th Circuit Court Of Appeals Intl Refugee Assistance V. Trump 20171213

Six of which are muslim majority countries. The court issued an order allowing the ban to take full effect pending appeals before the third and fourth and ninth circuit courts of appeals. This is two hours. The United States Fourth Circuit court of appeals. All those having business draw night a nigh and give their attention. God save the United States and this Honorable Court. May it please the court. As the injunction strongly signals, the proclamation is fundamentally different than the prior executive order. The proclamation reflects a multiagency worldwide review engagement and recommendation process and its substantive findings are eight countries have inadequate information share practices or other risk factors that undermine the visa vetting system and warranted and free restrictions to protect this nation until they do so. In light of the fact that the standards for stay and standards for preliminary injunction are essentially the same, would you tell me what you think the Supreme Courts action on monday in issuing the stay, which you saw, why do you think thats going hows that going to play on the ultimate resolution of the preliminary injunction in front of us . Well, your honor, i think the primary element of the stay, we have to show likelihood of the merits. We know the Supreme Court thinks we have likelihood of success on the merits. We know how they struck the equitable balance last time. The fact they gave us a complete stay in these circumstances pretty strongly signals they think its more than likelihood. A pretty good indication they stayed the injunction across the board. Theyre going to stop the preliminary injunction as well . I think that is a strong signal. You can never infer too much what the Supreme Court thinks is a stay but i think its pretty strong and the procedural and substantive differences between the proclamation and the prior order. In light of those differences the proclamation falls well within the president s broad statutory and Constitutional Authority to restrict the entry of aliens abroad. The District Court actually agreed to us. Even as to executive order the Supreme Court at least early on, let a lot of that stand, too. Im sorry, your honor. I said as to executive order, too, the Supreme Court let almost all of that stand as well. They stated in part for individuals who didnt have a bona fide, which we do agree means the likelihood of excess as to the second executive order. Can you pull the microphone just a little or talk a little louder . The District Court actually agreed with us the proclamation satisfies the order. Id like to begin there. You mentioned the critical differences between the proclamation now and executive order 2. Could you delineate for me what you think are the most important critical differences . Yes, urn. A procedural component and substantive component. On the procedural side the critical difference this involved a multiagency process where under the executive order the president instructed these agencies to determine what information, if any, they thought was missing from the information provided i didnt read the if any into what the president directed be done. He directed certain countries be found to be banned. I dont think thats right your honor, look at section 2a of the executive order. Not that certain countries but which countries should be banned. Look at section 2a of the executive order the exact language whether there is information the Foreign Governments are not providing, didnt say whether there is information it didnt say, if any . If any was my gloss on whether. When the proclamations direct that the secretary provides a list of countries that would not comply with the requirement of the proclamation thats not an edict in your mind there has to be an affirmative list following review there may be many or none that appear on that list . Thats true, your honor. Section 2a asks to identify whether there was information missing and section 2e, when it asks for the list says appropriate categories of countries not providing the requested information. If there were no countries not providing the information that would be zero and if there are countries not providing the requested information it expressly says appropriate categories. We know the agencies took that seriously because iraq was found to not be providing, not meet the baseline an yet the agencies recommended and the president decided not to include iraq on the list. We know this was not a preordained conclusion and know the agencies had express tactical discretion under the eo to make recommendation to the president which countries to include and exercised that discretion and didnt mean just iraq and turn to the substantive part of the differences of the executive order. On the substantive side, they omitted iraq and sudan from the earlier decisions. Even from the countries they covered they have exemptions for nonvisas from several of the countries. Reading the proclamations as i understand it, one of the bases for imposing the ban on the seven countries differentiated by class of visas is the hope and expectation there will be a change in processes of these nations in improving their information sharing practices. Im still having trouble seeing how that kind of bargaining trip or coercion is at all the necessary link to the respect of finding that a whole class of nationals, 150 million plus would be detrimental to the United States. Can you help me with that . Sure, your honor. I think it is a traditional exercise to determine that when a Foreign Government is engaged in those practices it can be deemed not to enter. It is what president carter did to the iranian hostage crisis. That issue wasnt aadjudicated there, right . Thats right. But unless you say president carter and reagan were also unlawful those are all declaration, proclamations of a different order, wholesale ban of 150 million plus nationals based on the hope and expectation this will incentivize these nations to cooperate. 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 every immigrant from iran was a threat at all to the United States let alone connected to the iranian hostage crisis. The point of the order was because the iranian government is engaged in harmful practices we will impose restrictions on the entry of their nationals. Dont we already have restrictions on entry . The presumption is if you dont have the sufficient necessary information to enter you dont get a visa. Why this additional prophylactic measure . We have vetting systems but the findings made by the agencies here is that Foreign Governments are not providing sufficient information to allow that vetting to occur. If thats the case and the conclusion is the national doesnt enter, right . That is one possible response but it is not the only response. Nothing in 1182 or the clause imposes the narrow tailoring and least restrictive alternative. It is entirely permissible. Even in the face of the statute that otherwise delineates exceptions for entries congress carefully calibrated throughout . I think thats right, your honor, as the courts repeatedly recognized, 1182f is by congress that the president can impose additional restrictions above those. Are they limited at all in time . Can this be done indefinitely as the president has done . Suspended for such period. I struggle to find a dictionary definition that says a suspension is for an indefinite period of time. Can you explain for us how the indefinite ban thats been imposed here complies with the language of the statute . Not whats been done by other president s, how does it meet the statutory grant of authority . Sure, your honor. The first point the statute says for such period i believe, as he may deem necessary. In this circumstance, when the problem that has arisen is the countries arent giving us sufficient information it is entirely permissible to say the period will last potentially until they correct their informational deficit. But the order doesnt even go that far. What the order actually says under section 4 is every 180 days the president and the agencies will revisit. Theres no sunset provision. Theres no sunset provision. Its in place essentially forever until he says otherwise, isnt that correct . No. Its in place until the countries improve their practices for until he decides to change gears. Let me ask you another question. Lets say this study contains information that is likely to be true that most terrorists, people that commit terrorist acts are men. Could the president then ban all men under the express authority granted by 1182f . Could he ban the entry of all men until evidence showed further that men are not the ordinary and customary perpetuatprerp traitors of activity . I dont think so. If you cant use gepder thde there is a question of violating section 1182. Is that what youre driving at . No. It has to be for facially legitimate reasons. Gender discrimination if 99 of terrorist acts are committed by men, arent we really protecting the country if we keep out the men . In general, you cant use forbidden traits as proxy and have to for bid the conduct youre worried about. The nationality is not a proxy target . The nationality is not for the federal government to you do agree section 1152 bans discrimination based on gender and nationality . Only in the context of issuance of immigrant visas, your honor. That language is critical. If congress wanted to restrict the ability of the president to keep aliens from entering the country they would have never used the language in the issuance of immigrant visas, it is clear the issuance of immigrant visas does not entitle anyone to enter the country. You always still have to be admissible. If congress intended to implicitly repeal the authority to allow and suspend the entry they would never have used the language in the issue of immigrant visas. This is clear in the history. In your view, can the president use 1182f to promote or further any Foreign Policy objective he might think acceptable . This one arguably is related in the sense the court talks about vetting deficiencies with respect to these nations. If hes unhappy with a nation for related reason regarding Foreign Policy objective and say i ban these seven or eight nationals in this country in an effort to promote my Foreign Policy objective. The statutory language is whether its in the National Interest. If hes trying to accomplish Foreign Policy objectives, thats presumptively not at all related, at least in this case, related to improvement of vetting processes, arguably related to some immigration related context . I think thats right, your honor. I understand as in carters iranian proclamation or president reagans was challenged, both those orders have exactly that feature because of Foreign Policy disputes with the government the president restricted travel from those countries without any suggestion the individual nationals subject to that restriction had anything to do with the Foreign Policy dispute with the government. This case is stronger than that because here the concern we have with Foreign Governments is failure to provide information about the nationalities were now restricting. The case is much stronger than the prior historical example of use of 1182f. Counsel, i have a threshold question. I want to understand the argument you make. Is that meant to include an argument the plaintiffs, whether for the statutory claims under 1152 in the apa or the constitutional claim, that they do not have standing in this . So we have made an article 3 rightness argument, your honor. But our primary judicial ability arguments is that on the statutory side claims challenging exclusion of aliens abroad are not reviewable unless congress expressly provides otherwise and here congress has not done so and on the constitutional claims an alien abroad has no constitutional rights. Are you making a rightness claim or standing claim or does it merge into both . Rightness and standing as the Supreme Court has recognized are fairly related. In this context i think the nature of our rightness is article 3 lack of imminent injury objection. The basic point unless and until an individual alien is found otherwise eligible to enter, seeks and is denied a waiver they are not actually affected by the proclamation. Is your position that the courts cannot review this proclamation for its validity . No, your honor. What i was saying on the constitutional side our argument is on the statutory side, lets take that first. Is your position that the president could make any finding as to detrimental activity and find they should be excluded for National Interest and we could not review that . Thats statutory. Is that your position . That is our position, your honor. Can you tie tite the Case Congress has stripped out the jurisdiction . I would point out versus shaughnessy and d. C. Decision of bruno. Both of those cases recognize youre talking about a statutory claim the restriction of aliens abroad, entry of aliens abroad is a fundamentally Foreign Policy judgment not judicially reviewable unless congress has provided otherwise. That is clearly the rule when it comes to councilor officers. If they restrict the alien is a broad that is simply not reviewable unless hasnt congress made it clear in 1182f, when they stripped our reviewability . Several times, sole discretion, not reviewable, and other parts of the statute, 1182, but not in f, correct . I think 1182f 1182. I think 1182fs language itself further confirms it how so . It is phrased if the president finds it is not in National Interest, by using the phrasing as the president finds it. If he has to find something that means its reviewable, isnt it . I dont think so, your honor. Who are the findings for . Thats the statutory constraint what the president has to do, just as in webster versus doe for example. Thats not what im asking. My question is who are the findings for . It is a substantive constraint on the president. That doesnt mean mou is it a constraint and who reviews the constraint . The president takes an oath of office. I understand that. Who reviews that restraint . It is not traditional and doesnt mean the president doesnt have to follow it. Who . Where are the teeth that would say he cant. You say the courts cant. The third branch of government, we cant. Who does . Two things, your honor. The first is the teeth the first and primary teeth is that the president takes an oath of office and has an independent obligation to comply with the constitution and laws, one he takes seriously. The second i would say that means on january 20th he had the power because he took the oath of office. I dont think this court should lightly suggest lightly suggest, you said oath of office is january 20th it started. Im suggesting, your honor. Point number two. Point number two congress has the ability to review what the president is doing. Remember, were talking about statutory claims. How does congress do that . If congress is concerned the president is violating its statutes congress can authorize review. Congress has not authorized review. The Supreme Court has said repeatedly dont we have a problem with the charter case they talk about congress cant delegate authority and then decide its going to be the arbitrator. Are you saying they could do that . Delegate to it the president and then theyre the ones who decide whether or not chavitt did not apply to the exclusion of alien is a broad. Its a very narrow set of circumstances unless congress provides otherwise there will be no review. Part of the reason for that, unlike in chada, there is not a delegation issue because the president has inherent executive authority with the respect to exclusion of aliens abroad. It comes exclusively from congressional power, does it not . That is not correct. This exact argument was made that the congress had improperly delegated authority to the president to exclude aliens. The superiorireme court said th not true and the president has the executive Order Authority to restrict aliens abroad. Youre saying under 1152 clearly in 1965 there was a policy we would not discriminate, National Discrimination the president can just say, i dont want to do that. Were going to forget about that and we will i can have every country excluded. You said theres no reviewability of that, is that correct . If the president were to do that it would not be reviewable but again the president would have to make a finding that it was detrimental to the National Interests. That is not what we have here. What we have here the president has found eight countries have specific National Security and Foreign Policy problems, in response to those problems hes imposed an entry restriction, precisely what president carter did for iran and precisely what president reagan did for cuba. No one even argued those restrictions. No one challenged either of those. This is under challenge. Thats correct, your honor, the fact no one even battered to challenge shows how weak the claim is. Its the restriction of immigrant visas. I thought thats what you said the major reason was it doesnt apply because the issuance of the visas, not the entry and the response to judge cannons question on gender you said gender doesnt apply because its one of those broader classifications that deals with discrimination much like race. Gender is one that you cant use. Why would congress put it in 1152 . Sounds like to me its already covered, gender and race would already be covered even with the issuance of visas and entry. Why is it in 1152 . Your honor, the point i was making to judge my question, why is it in 1152 if what you say to judge keenan, gender doesnt apply because its one of those classification this is a cant do it. One of the classifications like race. You cant use nationality. My question is why doesnt 1152 apply to race and gender because you dont need it there. There are a lot of statutes also why is it in 1152 . Because congress was passing a statute that bolstered what the constitution potentially in part also prohibited. The other important point is 1152 is focusing on issuance of immigrant visas what they were trying to do and i think the legislative history makes this quite clear they were trying to wipe out the preexisting you didnt need it. From the answer you gave to judge keenan you already had it. You cant use race. Otherwise you can. If the president s can do this he can do this also in this instance as the judge indicated, on this basis, too. Your honor, there are a lot of statutes that prohibits what the constitution already prohibits. Im not sure why that would undermine the argument i was making. Under 1152, what congress was concerned about a specific issue, National Origins quotas . Let me ask a question, i know others want to ask questions. As i understood it, theres been a worldwide review and that is t this is the primary difference you think this is different. In the face of a worldwide review, which is classified, we dont have it, we know its there procedurally, fine. But then what do we do when were looking as an objective reasonable observer and we have multiple instances in which this president has indicated before the election, during the election and just a week or so ago i believe we can take judicial notice of that in the news he tweets the very thing we say the purpose of this or indicated the plaintiff is saying the purpose of this 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 that is the purpose, but the legality allows it, does that make a difference . I have several points for that, your honor. The first is we do think that all those statements are legally irrelevant under mandel. Heres a critical point different than when we were here last time. Tell me what you mean by all those statements. Im talking about statements that go directly to purpose. If the allegation is this is an effort to if the allegation is that this is an effort to ban muslims from this country and every statement made by the individual who is the president making it to say that but it is done in a way as to say we did a world wide review and now it is legal. What i was saying, your honor, is that the Supreme Court since we were here last time in the case made Crystal Clear that the standard is a rational basis review standard. And under rational basis review subjective purpose is legally irrelevant. When you engage in rational basis review you do not look to see what was behind the motives. Answer the question. I understand what you say the Supreme Court has said. Tell me what you say on that. If you blow past the fact that the Supreme Court the question is whether objective observer would determine that the primary purpose of the proclamation was religious and i would submit that when you have a multi Agency Review where you have numerous classified and that is all we know that there has been one, there has been one. Not just record. That report you are talking about is not in this record. The report is not in the record. We do have in the record the statements and not withstanding how you may classify them we can take notice of statements that are made, evidence allows us to do that. We do have that as to direct purpose on the part of the president. The reasonable objective observer would like at the proclamation and what the proclamation says dont have the underlying report but you have the proclamation and reasonable observer would not ignore what the proclamation says. Arent you saying support for the proclamation is in the report . Is the support for the proclamation being rational and not a muslim ban in the report . It is further detailed in the report and 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, all be it classified, so that we could see it . Dont count on it that it would be easier. Your honor, the issue wasnt just that it was classified, though. The fact that it is classified is part of the reason it is not public. This is also a report covered by the president ial communication privilege. It is a recommendation from cabinet secretaries to the president that includes Sensitive Information not just because it is classified, it contains important Foreign Policy related information including information such as which countries engage with us and which countries improve practices. This is all Sensitive Information covered by the president ial communications privilege. That said thats what you have to fall back on you cant get past classification of it we are article 3 judges and we have clearances with the classified stuff. The executive privilege that is litigated. What i was going to say is in the District Court. Wasnt asserted and that issue hasnt been resolved. So we dont think it is necessary and we dont think it is appropriate. If this court were to order us to file the report under seal we would of course do so and you would see that the report strongly supports. You would file the privileged material, too . You wouldnt 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 so. I understand. Were of equal branch to the president and he can determine privilege and question is 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 deliberative process behind our decisions. Your honor, i certainly agree that we shouldnt have to disclose this. You said you would give it up if we asked you to do. We had clearances just like you do. Everyone of us. But you have another point and it could be a valid point of executive privilege however you described it. We understand it. I thought your answer was if we ordered you to do it you would give it to us. If you want to back off that because that is the question would you before you give it to us want to insist on litigating the liberative privilege applicability before you turn it over . Your honor, i do not have a position on that. If it is relevant to this court we can submit supplemental filing. If i can just follow up on that. You were counsel on District Court, correct . Yes. When this question came up before the District Court you told the court if you think what is in the proclamation supports it under the relevant legal standards then it should be upheld. If you think what is in the proclamation isnt sufficient to support the relevant legal standards then it should be invalidated. Do you stand by that position or do you have a new position now . We think if you dont think it satisfies it and you dont want to look at the there were two sentences. I dont think this requires a long answer. If you think what is in the proclamation supports the standards then it should be upheld. If you think what is in the proclamation isnt sufficient to support relevant legal standards then it should be invalidated. That was the case put to the District Court sp i assume that is what you put here. We do stand by that. Inso far as these judges thought that was critical to their analysis. You told us that you live or die by not having it in. I have one other question which i also when the acting solicitor general was here before he persisted in telling us how temporary this ban was, a brief pause. 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. But the suggestion was the study was going to make it so that you wouldnt have it in the future. But, in fact, low and behold the study said we should do this in indetermineinant amount of time. Only for the countries found to have an inadequate information sharing practice. So there is overlap but not a perfect overlap. Iraq wasnt covered as it was before under the first order. Iraq under the first order. Of the other countries covered there are exemptions for nonimmigrant visas. We are not denying that many countries are also covered nor should anyone be surprised by the fact that when you are investigating whether countries have inadequate information sharing practices countries found to be state sponsors of terror or terrorist safe havens are likely not going to turn out to do very well in investigation of whether they share information we need. Nor should we be surprised i guess since the president has continued to make statements some people regard. Should we be surprised that it might be construed as antimuslim order . I dont think that is a Fair Construction of the proclamation. Im asking you about the president s statements after the order. What im suggesting is that the president s statements after the order mostly said wants it to be tougher. Whether it is tougher it is most certainly not tougher with respect to muslims. If you look at what countries are covered they took out muslim countries. They created exemptions for muslim countries and added nonmuslim countries in a single majority muslim country. North korea and venezuela. The other side says that is kind of like window dressing. The point is that the president s statements that he wanted to be tougher. No one can construe that to be tougher with respect to muslims because the proclamation simply is not tougher with respect to muslims. But the other category of the president s statements, the ones that judge was asking you about. You agree we can judicial notice we dont think it is legally relevant. Did you say you are conceding with taking judicial notice . Of the fact that the statements were made they want to use the content. The plaintiffs want to use content oo those statements which would never be admissible in trial. They got speculation, opinion, hear say, triple hear say and you are conceding that we can take judicial notice of that . I thought that judge harris was referencing the president s tweets. It is the departments position that the president s twitter account, those are official statements of the president of the United States. And i assume it is still did you say in response to her statement just then . You can see that those are official statements of the president of the United States, correct . Yeah. And the department of justice. Are you saying tweets are official statements . He said yes. And the other situations you have plenty of evidence of that. Will you follow up . Just my last one. It is still the departments position that it is the president who speaks for the executive branch, right . You have a unitary executive no constitutional space between the president and dhs. If there is gap between the purposes and the motives between the president and subordinate executive official as a court we cant go behind what the president says. We go with what the president says. Plaintiffs put the statements before the Supreme Court in opposing the stay. These statements didnt dissway Supreme Court and they are simply not legally relevant. They are not legally relevant under mandel because the rational basis review. Just to clarify, we dont think that we think that statement about the proclamation would be relevant but not persuasive. Most recent tweets arent about the proclamation so we dont think they would be relevant. So you are suggesting 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 proclamation has to be viewed based on its language and not any manifested antimuslim bias as evidence by the tweets . I dont agree with the characterization of the tweets. Regardless of the characterization of the tweets dont think it is legally relevant under either. Let me ask you one other question back to the statute. Can the president violate the immigration and naturalization act . Kind of a global question. Can the president by terms of his authority under 1182f take action contrary to any other provision of the ina . It is certainly possible that the president could engage in conduct that would violate some provision of the i. N. A. What would be the limiting principle on your perspective then . If the president can ban all immigrants even though the i. N. A. Says you cant discriminate against it immigrants, if the president can take other actions 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 i. N. A. By making a finding that pursuant to any other provision is detrimental to the interest in the United States. The president has to make a finding that entry would be detrimental to National Interest and outer bounds. I would say two things about what the potential outer bounds are of the interest. One point is it cant be directly contrary to some other i. N. A. Provision. If the president said i dont like immigration i therefore think it is contrary to National Interest i think that would be in serious tension with the provisions of i. N. A. Authorizing immigrant visas. Critically that is not what this proclamation does. What this proclamation does is find that there are certain countries that present National Security and Foreign Policy problems and as a result the president will impose additional restrictions. That sort of order is well within the core of 1182. To emphasize in the d. C. Circuits position involved exactly this sort of order where under the i. N. A. There was a visa inadmissibility ground that required that the aliens activities within the country be harmful. Not just entry, their activities. The president , then can treat immigrants more harshly than he treats other aliens. Is that correct under 1182f . If he has a reason why it is detrimental to the National Interest. He says it is detrimental to the United States because they have more rights when they come here. Not only is that sufficient but that is what the Supreme Court held in sale. The issue was if the immigrant had gotten to the shores they would have had asylum protections. It essentially said that once they got there they had to show they had a right to be here. Isnt that correct . No, your honor. I think the key point responsive to your question is that if the immigrants had gotten here they would have had asylum protections. Precisely in order to prevent them from invoking those protections the president set up a blockade. The Supreme Court said that was clearly authorized so the mere fact that the president is using 1182f in a way that would stop aliens from invoking rights they might otherwise have is not a problem. Just getting to the reasoning of the proclamation. I know the president doesnt have to be logical. I agree with you. He doesnt. And the proclamation can be riddled with logical flaws. No more than we have to be logical. Dont judge us by that standard. 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. So if you just want to be here temporarily then your subject to fewer restrictions and if youre an immigrant from the exact same country youre banned. And youre saying it doesnt make any sense that the president can do it . Not at all what i said. I said the proclamation explains explicitly why they are drawing that distinction because immigrants do have greater protections for removal so if the problem is that there is insufficient information from the countries and there is a risk and people are getting into the country who we dont want here that risk is more harmful if we cant remove them on the back end. That is a perfectly rational thing to do and it is congress saying these immigrants are future americans and we are going to give them some protection saying you cant discriminate against people based on nationality. Dont you think that was a legitimate distinction congress was drawing with regard to immigrants as opposed to the random alien who wants to come in here for business or wants to go hear a university speech. These people are future americans and we are not going to tolerate discrimination based on nationality. In the issuance of immigrant visas and the legislative history is Crystal Clear that what they were trying to stop were natural origin quotas where government was discriminating on ethnicity and race to maintain ethnic balance. Let me ask you this. Isnt it true that a president is entitled to the greatest area of deference in National Security and double down on National Security in international affairs. Is that correct . That is absolutely right. I want to see how you think that principle of deference works when a president makes statements, people look at those statements and some would go clearly he is antimuslim. Some would go no he is talking about what he perceives as some kind of terrorism related in some fashion to some people who are muslim. If you can look at his statements and each side can find something they would point to, what inference can you get on what his statements are in light of the deferance he is entitled to . Yes, your honor, in light of deference he is entitled to and almost more important in light of rationality. I am looking at the statements. I understand on the facial rational. Im asking on his statements, some goes it is dripping with discrimination. Others go if you look at it in context it is how statements are made people can look at them differently. Is there any rule of what inference he would be entitled to under this area. Both given the difference that hes due in this particular area as well as the more general difference that coordinate branches are due, i think you should take the more permissible, more reasonable, more charitable interpretation than the most hostile one. But especially in in context where there is no we havent seen them. We dont know. We havent seen this report where all this stuff came from. We previously determined in that other opinion that the eeo2 was made in bad faith because of all the things that had been said. Now youve got more added to it with these last weeks plus a proclamation. But the proclamation lays out the agencies that recommend the eight countries so unless this court is saying that the president is just lying and didnt actually say that and we cant look at it and see. That is true, your honor. But this court should not lightly suggest that the president of the United States is just flat lying that eight agencies recommend that agencies recommended that these eight countries i understand your argument about any concerns you might have about the president and what might happen here. But you need you to explain about a process by subordinate Branch Officials is an act that can cure the taint from president ial statements from an executive system. Dhs is not an independent agency. Its part of the executive branch. There is no constitutional space. Its not that the president is over here and dhs on over there. Its all the same thing. Dhs is subordinate to the president so i dont see how this review process, an intervening independent act. Heres why, your honor. What youre reviewing is the proclamation. Which is signed by the president of the United States. That is true, your honor. And he has his statements, the president of the United States. Although i agree some see things differently. Some of november 29th statements, even with deference construing them in the light most favorable to the president , its a little tricky to find the National Security rational in those. Your honor, what i would say is youve asked how to why theres a potential what the relevance is of the agency. What i would say is if this exact recommendation had been made to a different president and that president had adopted the recommendations, the notion that there would be a violation is theres nothing about either the processor the substance of the proclamation that would even possibly give rise understand you think were not in mcreary establishment clause land but if we were that is an entailment under the purpose of the establishment clause, the same act, the same moment of silence, constitutional in one location, unconstitutional in another. That is a possibility. Neither mcreary or any other case has ever suggested that when multiple agencies engage in a process and make recommendations to the president about National Security and Foreign Policy concerns, when those recommendations are facially neutral about religion that all of that could be set aside based on earlier statements and statements that dont even pertain to what the purpose of the proclamation is. I think if you just focus on, for example, mcreary, it involved a facially religious practice that even as a third iteration had great emphasis on the language that was religious in nature. The other monuments that were put up alongside it didnt really make much sense. The history bolstered the conclusion there, but it didnt drive the conclusion there whereas here, without the prior history, theres just no argument that this proclamation would violate the establishment clause. I think a better analogy is mcgowan. On that day the purpose of the law to protect the sabbath. The Supreme Court nevertheless held that that didnt violate the establishment clause and the reason it gave the primary reasons is the exemptions revealed that it didnt any longer have a religious purpose. It was more secular in nature. It was more about leisure than religion. What i would submit is in this case the exemptions in the proclamation serve a very similar function. There is no way you can conclude this was a muslim ban but for some reason they decided to exempt nonimmigrants from muslim countries. That doesnt make any sense you think its a muslim ban but it makes perfect sense under the rational the proclamation is actually given which is that there are problems with the information sharing from these countries and in order to both deal with the risk of that but also just as importantly to encourage these countries to improve their practices, the president adopted tailored restrictions that differed based on countries, based on their recalcitrants and their willing ness to cooperate. It makes perfect sense under the rational given. It makes no sense under the argument. I just want to make sure that were clear when you responded to judge king that the president would have to be flatout lying. I think the position is the president is not lying about what he said. He said what he said. We dont think at least from my perspective, i dont think hes lying at all. If anything hes the one individual whose saying exactly what he means. Notwithstanding judge shedds characterization it could be read many ways. He seems to be saying it over and over. He seems to be telling the truth about what he actually feels here, not that hes lying. And i think thats the question. If the president is telling the truth about what he feels and notwithstanding that youve got independent worldwide review, which you seem to characterize they just decided to do it on their own without any impetus whatsoever, but well leave it there. If he has that and if the truth is what he seems to be saying over and over again, how do we look at that in determining i know you want to look in a shell in terms of the rational basis but in terms of a reasonable observance. Again, your honor, the proclamation, if you take as given that hes telling the truth, that the agencies did so recommend, that the agencies did engage in this process, that they did find that eight countries have inadequate information sharing practices or other risk factors that undermine visa vetting, that because of those restrictions they recommended tailored entry restrictions that are designed to encourage them to improve their practices and to protect this nation until they do so. If you accept all of that is true, what i would submit is these statements certainly the earlier ones but also if we accept these statements as being true. The statements of the statements are what the statements are. No one is disputing that he said what over and over again. Right. But what i am saying, those statements, especially the more recent ones, dont speak to the purpose of this proclamation. And is the purpose of this proclamation to deter terrorism . Is that the goal of the proclamation . Look, the end objective of the proclamation is to keep this nation safe from terrorism and other Public Safety threats. And the president s tweets youve already conceded are official statements of the president of the United States. And that they could be subject to charitable interpretation. There was a tweet a month before the proclamation was signed by the president tweeting a statement that shooting muslims with bullets dipped in pigs blood should be used to deter future terrorism. How am i to take that charitably . That is not about the proclamation at all . Its about deterring future terrorism which i thought you said was the goal of the proclamation. The end goal, but its dealing with a specific problem which is inadequate information sharing. What the president said in that tweet about how to deal with actual terrorists, whatever you think about that, it doesnt suggest that any sort of general bias against muslims. It doesnt suggest theyre going to ban all muslims because of a fear. It says that there is inadequate information sharing from these countries and to deal with that problem, a particular aspect of the broader terrorism problem, they are imposing entry restrictions to encourage those countries to improve their practices and to protect this nation until they do so. All right. Thank you, your honor. Thank you, counsel. Good morning, your honor. The proclamation repeats four fatal flaws that doomed eo2. Good morning, your honor. The proclamation repeats four fatal flaws that doomed eo2. First in response to judge harriss 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 using that rationale. Let me ask this question, the same one i asked to start the other argument. I want you to tell me in light of the Supreme Courts action to grant the stay on i think it was monday, the criteria for stay and preliminary injunctions are preliminary the same, of course you will oppose the action, but i want you to look at that action and tell me what impact you think that is likely to have on the final resolution of the validity of the preliminary injunction that we have from n front of us. Judge shedd, i dont think this court can take any substance from the Supreme Court stay order. The court was very careful didnt say substance. I said, and im asking you, youre saying that we you cant take anything from that, any indication at all . I dont think the court can, your honor, because the Supreme Court was very careful not to say a word about the merits or the equities. I have the same question as judge shedd did. It seems to me to have granted the stay at all, the court had to find that there was a likelihood of success on the merits. I dont think is that wrong . No stay law . I dont think thats right. Dont say that. I dont think thats right, judge motz. As with the previous stay, that one actually did detail they were issuing that order based on its view of the equity that were presented on the record. They did say that. I dont think we can assume as mr. Mooppan suggested that the Supreme Court was saying something about the merits. In the normal case thats the Supreme Court previous lie did not address the merits in ruling on a stay related to eo2. I think all this court can do is to decide the case on the record and on the law as it find its. Thats what the Supreme Courts i guess the the Supreme Court followed the traditional process here and just omitted the factor about substantial likelihood of success on the merits . Judge agee we cant tell why the Supreme Court issued the stay. The normal course of any type of a stay proceeding or preliminary injunction, courts just dont skip that stage. Your honor, the Supreme Court didnt rule on the merits last time in considering the stay of the eo2. Should rule on the merits with regard to a stay or preliminary junction. All i can say is that this court can simply judge this case as it find its. Thats what the Supreme Court asked both this court and the ninth circuit. The Supreme Court did tell us and the ninth circuit to act as quickly as possible which suggests theyre interested in whatever we come up with. Thats right, judge motz and i would maintain to go back to the reasons why or it might be interested theyre interested in us getting done and getting something in front of them. They could have ruled. The Supreme Court can do what it wishes. They can do what it wishes and it should have the benefit of this courts ruling and opinion or set of opinions and what the ninth circuit does as well. Your position is we shouldnt take anything from the fact that the Supreme Court granted the stay . I dont think you can, your honor. The second reason that the new proclamation you could read between the lines and think that you ought to be asking us to send it back to have the District Court rule on the merits. And come back up and then theyd have the merits . Well, judge king, the District Court did reach the merits at least on the likelihood of the he dealt with the preliminary injunction, not the permanent injunction. He didnt consolidate with the merits of the case. You didnt make a full record and all that stuff. Judge, i think there was he didnt litigate issues of privilege and things like that. Your honor, there is more than an adequate record to support the order here. You can reach the statutory issues on which we didnt prevail. I think there is an adequate record to do that. The Supreme Court did direct this court and the ninth circuit to reach a decision with dispatch. And thats what the court should do respectfully. The second reason before we get to the second reason, you began by saying that this is this proclamation continues the practice of a banned proxy by nationality. But this is different in the sense that at least on the face of it, the proclamation began with an assessments not just of muslim majority nations, but all 200 plus nations and then sort of twin why doesnt that make a difference in the sense it did not begin as a proxy by nationality ban . Your honor, i think the government actually conceded just now that we should not be surprised that we ended up with five of the six countries that were banned once again banned under the proclamation. Thats because even though the president directed this worldwide review of each country, what he did in section 2 e of the eo2 was to say give me the list of your countries. And your honor, in the design of the study is it your view that he ordained the necessity of a list . He was not going to be satisfied that the department would come back and say you cant find anything . Thats right, your honor. We know that not just from the face of eo2 and the face of the proclamation itself which is replete with references to coming up with a list of countries. We know it because the president said so in official statements continuously. The key example ill give you is that is march 15th, the day it was enjoined by two District Courts the president said we have a very big problem with muslims assimilating here in the United States. The second thing he said is i want to go back to the original and im going to go all the way. And that statement is one that hes repeated throughout the summer and the fall and even before the results of the study came out, long before the study was even done, the president said im sticking with my original plan and that is to use nationality. This goes way back, your honor, to what he said both right before the election and was confirmed by his advisers right after eo1 issued. That you dont want to talk about muslim . Then ill talk about territories. Thats exactly the architecture we still have. The relation to the statute, if i recall, your predecessor in the earlier case suggested that if it were any other president , the eo2 would be fine. Would be okay apparently. It would satisfy the statute s. That your position . Your honor, i think what we said during the last oral argument is that if you didnt have the record of statements, it would be a different case. I agree that is the case. But your honor, we as judge keenan noted in her concurring opinion last time on eo2, there actually is reason to doubt that this is facially legitimate on its face and its cross references on eo2 and its ill logic. The proclamation says we have a problem with the information sharing from these countries. As a result of that, theres such a high risk from nationals of those countries that were going to ban 150 Million People the vast majority of whom are muslim from six predominantly muslim countries but were going to let in a lot of them. But absent the statements, admittedly troubling statements of the president , would your position be different if that were not part of the record . It is a different record but i do think that judge keenans view of eo2 still holds on the proclamation . Even after the study . Because it seems to me that the fact that the government has taken great pains to investigate what exactly are the threats that are posed, that it arguably can be illogical. It can be flawed. It can be a product that perhaps you wouldnt be proud of in terms of its cohesiveness. But the president can do it, cant he, if he makes the required findings as long as it doesnt violate the ina or as long as it doesnt violate the constitution. Arent we now, since hes looked into the substance and reached his conclusions, limited to determining why this violates the ina or violates the constitution . Your honor, it does in fact violate both the ina and the constitution for similar structural reasons you pointed out and going back to judge harriss point but are you limited to looking at just that . No, your honor, were not limited because the same for the same reason that this court held that we passed through the mandell hurdle because the record shows that the proclamation like eo2 is not bonified and i think not having a nationality ban against and somalia, even though it failed the baseline, not including countries like belgium or the philippines that goes to judgment rather than authority. Where is there a violation . I think you would perhaps help us more if you tell us why this is a violation of ina. On the establishment clause the proclamation suffers from the same fatal flaws. We get past the mandell hurdle if you continue to apply the mandell test because on its face and taken in light of the statements the president made that hes sticking with his original purpose to use nationality as a proxy for religion, we do not know that this is proclamation is not bonified. We also know that because of the internal logic being under inclusive, letting in a great number of immigrants, even though the president is saying the whole premise is the nation has a problem that makes the entry of someone from that country on i threat, on the four corns, this is not facially legitimate. Putting that aside, its 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, he said that the november 29th statements the made, the retweeting of these antimuslim videos is not connected to the proclamation. To the contrary, you would find the statement of an official white house Spokes Person who said that security and Public Safety for the American People are the issues the president was raising with those tweets and that the president has been talking about these Security Issues for years now from the campaign trail to the white house and the president has addressed these issues, again the issues illustrated by the tweets with the travel order he issued earlier this year and the companion proclamation. Lets use the same principles youve described in your brief and elsewhere, the same record. But the proclamation only covered syria. Is there any difference . Your honor, i think that it would still be a problem because the president and Vice President pence for that matter even before the election had targeted syria in the same way. And made the same connections between nationality and the majority of how is that any different from what president reagan and president carter did . Its different because if the structure of the proclamation holds, it violates congresss judgment in the 1965 act. That we arent going to act on stereotype. We werent go to go to a nationality based quota system. Weve got syria or iran if you want to expand it to two. Both countries, the only two on the list, that refuse any cooperation with the United States in terms of intelligence sharing, identity sharing for travel. Theyre chockfull of folks from al qaeda. Theyve been in varying states at least the syria civil war. Are you saying on this record that a president , any president , is simply not able to make judgments for the protection of the nation and the conduct of Foreign Policy if its only those countries . Certainly not, your honor. Setting aside our statutory claim you mean . On the establishment clause certainly it would be a different record if the president hadnt continued to make statements, antimuslim statements right up to the time he issued the proclamation. Your position is even if its just syria or syria and iran, theres no change . On the same record including the tweets and on the constitutional claim, yes, that would still be a problem. How do you explain the fact that congress and the Prior Administration identified the very same countries i think it was in the Visa Waiver Program saying they were a problem and they were not part of that program and for the very same reasons . Those very same countries were the countries that were included in eo1 and eo2. They are also to some extent to most extent carried on in the proclamation. You draw a lot of inference that eo1 identified all muslim countries and therefore it was a surrogate for antimuslim animus where they have been part of the Prior Administrations identification of problems in the immigration area simply for the same reasons. The lack of information. The fact that there werent good checks. It was hard to vet. And that many of these terrorist groups were springing up in those countries. And so i dont see the logic where you start with eo1 without looking even at the prior history. If youre going to look at the prior history how we treat those countries as nationalities, then you have to go that far. And then in addition, of course, congress identified nations, not individuals, and you seem to suggest that congress is prohibiting identification by nationalities but throughout the ina they do so. Your honor, judge niemeyer, thats why we prevail on our statutory claims. Congress looked at the very factors that the president is asserting here as justifications for the proclamation. Their judgment was the answer to that problem is that if these countries propose these kinds of information sharing problems, dont let them participate in the Visa Waiver Program. Subject their nationals to the individualized vetting. But Congress Also gave the president right in the National Interest to exclude nations, whole classes of immigrants under 1182 f. And 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 the questions that were asking today was the judgments question right, did he have enough information, is he really protecting the National Interest. If we screen a whole country who has numerous terrorist groups, do we have to identify members of the groups who raise their hand and say im a member . I mean, these are judgments of the executive exercising sovereign power visavis other countries. Theyre not the subject of court review as were seeming to want to conduct. You seem to want to conduct. It seems to me if on its face its logic co that some muslim countries are subject to the restrictions and some muslim countries are not. Indonesias not on there and its almost all muslim, isnt it . And its huge in term was population. The suggestion has a background noise that is driving your argument and that background noise is the subjective views that the president expressed during the campaign. Your honor, actually, there are two points id make in response. In fact, though the president does have great power in matters of National Security and immigration, he is subject to the constraints that congress has put on him and that the constitution puts on him. And respectfully he gets his powers from the constitution in the first instance and he shares those powers with congress. The Supreme Court has made that explicit for 100 years. And they represent that. The idea that were interfering in the judgment of this proclamation it seems to me all we need to do under mandell is to look at the face of the proclamation and say whether it is rational and exercised in good faith from the face. It says facially. And if so, that narrow exception that mandell granted and dim granted, were then left with a background where courts, we play an Important Role, but we play Important Role domestically. We do not exercise the sovereign power of the United States visavis other nationals in other countries. Thats a president ial executive branch power and congressional. Congress gave it, shared that power and gave it to the president in full scope. And now youre saying oh, he doesnt have it, we get to review it, we get to ask him why. You remember in shaun see, you cant ask the president the real reason. Actually, the Supreme Court reached the merits of the statutory claim and it wasnt about the action says of the president. The Supreme Court has been very clear about exactly how the president and Congress Share the power to regulate immigration. Congress writes the law and the president must follow it. And in 1182 f congress did give the president a power to suspend for a period of time the entry of noncitizens. But hes subject to the restrictions that are both on the face of 1182f, having to make the finding as chief judge gregory noted and hes still subject to the constitution. In sale versus center counsel, the Supreme Court reached and considered on the merits a claim, a statutory claim about the president s action under 1182. It did not say thats nonreviewable. And contrary to what the government proposed during its argument, sale actually just said that the that congress that the president was acting pursuant to the power in sale he did just the opposite of what youre saying. The court basically said thats the president s prerogative and were not going to review that. Actually, your honor, what sale was about was whether the president was comporting with the statutes passed by congress and the court said we construe the statute, then ina section 243 h and the protocol and refugees to which the u. S. Had signed. Let me ask you something along these lines a little bit more particular. What is the right that your plaintiffs are exercising in coming to court . In other words, i understand youre relying on the apa. Is there anything else that youre relying on to get into court . On the statutory claim, your honor . Any claim. Sure. Were relying on the apa but were also relying primarily on the large number of cases including no. No. Tell me what is the substance . Is there a statute that authorizes you to come to court or are you looking for a freestanding constitutional claim . The government doesnt contest that the court can review the constitutional you need answer my question. Im answering it, your honor. Chamber of commerce versus armstrong and moore, the Supreme Court made clear that courts have the authority in equity to enjoin an executive Branch Agency when there is a claim that is successful that the president or the executive branch is violating the law. Whether that be statute or constitution. We see in case after case that the circuit courts and the i thought the injunction, i thought armstrong suggested the injunction had to be connected to a cause of action. Im trying to figure out it sounds to me like youre trying to file a bivens type of action under the first amendment, a Free Standing claim that were being discriminated against under mcreary under the establishment cause jurisprudence. Im not sure there is such a claim. Your honor, were not making anything like a bivens claim for damages. Im asking whether its a freestanding constitutional claim. Im talking about bivens was created because the plaintiff didnt have a way into court and the Supreme Court created that. My question for you is there is no such cause of action thats been created for you in your circumstances and i want to know what youre relying on. Your honor, this court has already crossed that bridge in deciding on eo 2. Our decision in eo 2 is vacated. The reasoning still applies. The majority reasoning is still correct inform case after case the Supreme Court and the federal circuit courts including in cases challenging 1182 f policies has reviewed those statutory claims. You agree 1182 doesnt give you a cause of action to enter court, does it . It also doesnt create judicial review of 1182. It doesnt need to. 1182 doesnt address so you just come into court and say somebody violated 1182 and it sounds to me like youre a its the core function of the court to decide you know i disagreed with the majority so im interested to know your position without relying on the majority. Lets go to your position, not what the majority did. On the statutory claim under chamber of commerce versus reish and dames and more and countless other cases, if there is a claim the president is not following congress, the court can review that decision. It has the power to enjoin the president from violating as a remedy but it doesnt create a cause of action. You dont have a cause of action under the ina. The only place that you try to get a cause of action apart from the ina under the apa which is pretty dicey as you know, is some freestanding claim that what the president did is unconstitutional. Therefore, i can be in court. But thats not the way it works. Your honor, the government doesnt even argue that theres no cause of action for a does that make a difference as to what we do . We have subject matter jurisdiction. We have a role in this system. As you know, the branches the three branches have their defined roles and were acting fairly aggressively in a role thats been conferred to congress and the president and not to us. Your honor, theres not a single case that actually stands for the principle that our claims, whether constitutional or statutory are fiallow and sale, your honor, all reached constitutional and or statutory claims relating to the president s power in exactly these kinds of circumstances. They basically reached the conclusion that you dont have these causes of action. Your honor, they reached the conclusion i can tell you in this case the Supreme Courts going to address it and theyre going to tell you one way or the other whether you have it too. The fact that they address it doesnt mean you have a cause of action if theyre going to tell you dont have a cause of action. Courts do have a right to decide their own jurisdiction, but they dont have a right to go beyond it if they dont have jurisdiction. On the statutory claim the ninth circuit has ruled that there is a cause of action under apa and inequity. Let me ask you about the statutory claim again. Is it your position there are no findings in the body or on the face of this that satisfy 1182 f or that whatever findings appear in the body of that document simply misalign and are insufficient to satisfy the requirements of the statute . Which one is it . I think its both, your honor. The president does invoke the magic words that he makes the finding that the entry of these 150 Million People who are mostly muslim would be detrimental to the interests of the United States. But if you look at his actual findings, for example, your honor, in section 1 h, beg your pardon, 1 i im sorry, the restrictions limitations imposed 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 risks they pose to the United States. Well, that is just a basis for someone being excluded from the someone being excluded from the United States under 1182a. Congress has already decided what to do about that. And so theres one critical finding thats missing from this proclamation and setting aside whether it would be a sufficient one, the president s basically said that the comprehensive and detailed system for admission of noncitizens to the United States with individualized vetting and the Visa Waiver Program for nationals of those countries is insufficient as to the six countries. How about the beginning of the proclamation . It says, i hereby find that absent the measures set forth in this proclamation the immigrant and nonimmigrant entry into the United States of the persons described in section two of this proclamation would be zrimtal to the interests of the United States. Yes, your honor, those were the magic words. And their entry should be subject to certain restrictions, limitations, exceptions. Are those the magic words you were talking about yes. The president invokes the magic words. But the point im making is its internally illogical because the further detail he gives elsewhere in the proclamation shows he didnt actually apply the baseline factors because he included somalia when it passed the baseline. He didnt make a nationality ban against venezuela. He only applied that to certain government officials even though they failed the baseline. And hes letting in a lot of people from these countries even though the whole justification is you cant trust anyone coming from these countries. And your honor, the proclamation is different from the iran and cuba examples the government discussed. We believe that nationality discrimination is prohibited under 1152a. But set that aside. Even if you think there are some instances in which a nationalitybased ban is permissible, the president has written a tenpage proclamation with detailed subsections completely unlike the few lines that the president s used to justify iran in president carters instance or cuba in the youre going to penalize him for being thorough . Im not sure your honor, what he cant do under 1182f is to rewrite the law as passed by congress. And what the proclamation represents is a rewriting of 1182a, the grounds for inadmissibility, and all of the other sections of the ina that provide for individualized vetting of visa applicants. Congress has said as judge nimesar pointed out, they have looked at the very factors the president looked at here and they came up with a solution which is they rejected in 2015 they considered these same countries. When you say they, congress . Yes, your honor. That congress in 2015 looked at the same problems the president is asserting here as to the same countries as judge niemeyer pointed out and they rejected the idea of a country based ban on admission. Instead they said were going to stick with individualized vetting and were going to go after the people who not are nationals of these countries, but if you traveled in these countries, if you are a dual national so youre holding a uk passport but also have an iranian passport, you go through regular vetting. Were not going to subject you to a country ban. What about the president s assertion that this is intended to be sort of a kujll or a bargaining chip to promote or incentivize these nations to cooperate . Your honor, the best answer to that problem is what he did with venezuela. If you have recalcitrant governments or governments who are, you know, doing their best but arent up to snuff, you can do two things. You do a venezuela type ban which has a lot of precedent under the past proclamation where you say these governments are recalcitrant, theyre not cooperating with the United States on information sharing, so im going to bar you and your family members from coming in. Thats not a nationality ban, and i think that is permissible under 1182f. You can also do what congress recommended in the i. N. A. , which is to give assistance to the countries that are having trouble like somalia. And thats the answer. Instead what the and i have to point out the internal your argument would preclude the president from even banning nationals in a state of war. Your honor, i think a state of war is different and there is a different statutory framework that would apply in that situation. To go back why is there a different framework . I dont read any of these reasons youre giving. Youre sort of saying the president can exercise legitimate Foreign Policy if he does this but he cant exercise legitimate policy if he does this. If he treats the nationals just in the top government, its okay. But if he treats the whole country because the countrys antagonistic its not okay. In other words, you are making judgments about Foreign Policy which you personally are making for some other ulterior purpose. Your honor, im not making those limitations. Congress is i hear you making these arguments. Im pointing to congresss limitations. Duly enacted statutes passed by congress that limit but youre not recognizing that while 1182a provides criteria for admissibility. So does 1182 f. And in 1182 f they said the president himself has broad discretion. And were going to give him discretion to act as our representative for the sovereignty of the nation. Not as a domestic matter. Subject to the requirement that he make a finding which is reviewable by the federal courts. Where did you get that . Which is reviewable . Where do we get the right to review the president s Foreign Policy decision . Your honor, the governments relying on a number of consular nonreviewability cases. No. Im asking you where are you getting the authority to state that 1182 is subject to review by judicial by courts . The Supreme Court has said so in sale versus Haitian Centers counsel, among other cases. Well, we read it differently. The Supreme Court did that there. Im not sure it said that. It was argued that there was no jurisdiction for various reasons and they went ahead and decided on the merits but im not sure there was a decision on that. Would you agree with that . Your honor, i dont think sale addresses the specific question but one hopes the Supreme Court then you ought not cite it. Decided a case im having trouble understanding your statutory argument. I guess the complaints you have about it it seems to me i agree with my colleagues, it doesnt sound like we can really say to the president of the United States youre illogical here, you dont follow the procedure here. Do you is your argument really basically a structural argument . Is that what youre saying . Congress set out a procedure and its because you havent complied with that procedure, mr. President , that is that what youre saying . Im not understanding it. There are two main arguments were making. The first is that the president as to 1182 f has not made the requisite finding that this is detrimental to the interest of the United States. Okay. Because of the internal illogic. Secondly, your honor, what 1182 f cant possibly permit is the president to contravene, to rewrite large sections of the i. N. A. That is your structural thats our structural argument on 1182f. The other structural argument were making of course is 1152a and the 65 act, overall purpose of moving rejecting the past historical practice of the United States to have National Origins quotas, which went back to the 1924 act. That was a categorical decision as part of other civil rights comprehensive civil rights. If you accept that explanation as accurate, under your theory of the case, tell us why president reagans proclamation or president carters would have been valid. Because they are clearly nationality bans. They were indefinite. Whats the difference between those and this one . So your honor, first, no one challenged those two suspensions. We understand that. What im asking you is were they valid . I dont think any nationality bans are valid, but you dont have to buy that in order to accept our statutory argument. Because your honor, the distinction is that with iran and cuba the president s were acting in response to exigent circumstances with a bilateral crisis. Congress but thats not in any of the statutes. Thats not in any of the cases. Thats just something that the District Court and you have put forward. But thats not part of the law. Well, the law says very clearly no nationality discrimination so im just trying to explain why you can read the iran well, your case doesnt rise and fall on this but it seems like to me that the logic of your position is that president reagan and president carters proclamations would have to have been invalid under your statutory argument. Theres a way to read them in harmony, your honor. I do believe that 1152a and in general the 65 act prohibits nationality discrimination but you dont need to agree. Because if there is an exception to 1152a, it cant be that the president can disagree with congresss considered judgment about these same problems, with these same countries, and then rewrite large blocks of the ina. Congress made the considered judgment in 1152a to where their nationality is just simply off the table with respect to any action with respect to visa issuance. It just seems like you have to say that president reagan and president carter violated the statute when they issued those proclamations. Your honor, i think they did. Okay. But again, you dont have to agree with me in order to agree with our 1152a argument. The reason is that the iran and cuba situations, again, if you look at the text of those proclamations, they were just a few lines. Congress had not considered those specific situations. And the president said these are exigent circumstances, i have to deal with diplomatic crisis and im going to suspend the entry of these nationals. So if the president in this case ended his proclamation at the end of the that first paragraph, youd be all set . Youd agree with it . If he just said were going to do a worldwide review of countries . No. It just ends and he said were going to no, your honor, because i think the scope also matters. Weve got 100 one question, your honor, is is the president trying to return to the National Quota National Origins quota system that congress categorically rejected as president johnson said hes not even addressing visas. Hes addressing the admissibility under 1182 and relying on that power and hes distinguishing among muslim countries. He is identifying criteria that distinguishes them. The fact that they cant get information about persons, the fact they dont follow procedures, the fact that many of the groups there, theyre not suppressing these groups. These distinguish these particular muslim countries, not all muslim, but the ones that are included here from other muslim countries which were considered and not included. So i dont see the logic of where it necessarily follows that says he is now banning them because theyre muslim countries which are muslim. As opposed to some other criteria that he identifies in the proclamation. We know that because the president has said so. That he was going back to his original plan and going all the way. And id note that even though he hasnt banned other muslim countries in section 4c of the proclamation of course the whole purpose of eo1 and eo2 was to set up a system to collect data. And he built on prior countries that were suspect in that. As a matter of fact, every one of the countries was included in prior congressional findings except for iraq and he treated those and it was a 90day Data Collection period. The proclamation is the product of an analysis which does distinguish between countries and does apply criteria that are in the National Interest. Your suggestion that hes just using the magic words and is not expressing the National Interest is very strange. I must say. You said if it werent for his statements made during the campaign and otherwise, it would be fine. No. I said it would be a different case, your honor. How about if another candidate won the president ial election and made this declaration, you wouldnt even be here. Thats not true, your honor. If that candidate made these same statements your colleague at the last hearing conceded you wouldnt be here. Your honor, i think the point we were making is if you didnt have the record of statements it would be a different case. We still submit that you conceded eo2 in the last hearing was neutral on its face and we would not be here if he didnt have the president ial statements. And now youre backing off that and basically saying it would be a different case. Well, sure it would be a different case. You just wouldnt be here. Your honor, actually, we pointed out the deficiencies within the four corners of eo2 that judge keenan picked up on in her concurring opinion. So now we get the right to review the internal proclamation to see whether hes made good judgments your honor, were not relying on the report. I think that the government has waffled on whether theyre relying on the report. If theyre making it clear theyre not relying on the report, the court need not go into it. Let me ask the question with regard to something mr. Mooppan alluded to, ms. Wang. He alluded to the fact that the morales and tana case wherein the majority of the Supreme Court described the standard from bialoe versus bell as a rational basis review. How does that impact our prior reading of Justice Kennedys con kur currence in the curry versus dim case . Your honor, i think that the court already addressed that in the previous opinion, but the argument is basically this. Fiallo didnt involve any allegation that the government was acting without a bona fide reason. There wasnt any allegation of bad faith. And Morales Santana was citing to fiallo. Where that wasnt even an issue. And it cant be that where you have a record showing that the president s action is neither facially legitimate nor bona fide that you dont simply follow mandel. Mandel is not a rational basis test on its face. It asks the court to determine is the president s action facially legitimate and bona fide . And thats exactly what Justice Kennedy did in carrie versus dim. He simply said, look, in that case, in carrie, they didnt get past the mandel hurdle. But this court made the correct call on that question in reviewing eo2 and nothing relevant has changed with the proclamation. So can i just ask you about the establishment clause case just for a minute . Its pretty clear from them that the Supreme Court tells us that you once you violate the establishment clause, you violate it forever more. We agree with that. So in this instance how does the taint we have these preelection statements, the post election statements, the preeo2 statements. We dont have so many statements now. Why is taint does the taint, whats your best argument for why the taint from the prior statements still exists here or still colors this case . Or maybe you dont make an argument about that . We certainly are, your honor. The taint has not dissipated. We agree of course that under mccreary the taint doesnt last forever. But here once again what you have is the president sticking with his original plan. Those are his very words. Hes going back and going all the way. Second, your honor, on march 15th, as soon as eo2 was enjoined by the District Courts he said that. He continued to make statements hostile toward islam including the august 17th of the purging story that judge thacker just mentioned. And finally, your honor, the president once again speaks in vague words of National Security but again has 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. Again, on march 15th he said the assimilation of muslims in the United States has been very, very hard. August 17th you have the pershing story. November 29th he retweets three videos that are antimuslim. Your honor, on that record you simply have on the proclamation a litigation position like we saw in mcreary which is not sufficient and the president has doubled down on all of his statements. If the government is right about justiceability and about the scope of president ial power, then the president could promise a ban on muslims throughout his campaign and then declare im carrying out my Campaign Promise by using nationality as a proxy for religion, ban 150 Million People who are almost all muslim let me followup on judge motts question. At least to ask just a focal question. What would be the standard that we would use in this instance where there has been an attempt or at least an act to determine whether or not the government in factor or the president in fact cured this socalled unconstitutional action and establishment clause . Whats the standard . I think the standard is the same through line in all of the establishment clauses, your honor, and the test doesnt change. Thats common to mcreary, larson, and the courts most recent opinion and that is, is the primary purpose here the object the manifest objective to disfavor one religion . Thats the test. And the record on that has not changed. In fact, its been augmented. What about the fact that the government says well, we disagree that these statements suggest an animus. But even if you take that at face value and understanding judge harriss questions, they point to the president s subordinates and say you havent questioned their motives. They conducted this review and on the face of it arrived at this result which but for the statements would, as you concede, be a much more difficult case. Does that change the result . Your honor, actually, we do there is in the record evidence that at least two of the officials, lowerlevel officials involved in the president s study also have made antimuslim statements. We have that in our motion for judicial notice. But your honor, im not our argument is not that every lowerlevel official involved in the president s study acted out of a personal antimuslim hostilit hostility. Its that the president was acting out of a purpose to disfavor islam and he directed his lowerlevel officials to carry out his original purpose in the original way he meant to do it, which is by using nationality as a proxy for religion. I asked this question last time. If hes so intent and i asked about could people look at all of the statements and if people looked at all of his statements and took that he was doing other than being completely antimuslim how would you deal with that. But if your position is hes absolutely antimuslim and everything hes doing, is that result and hes banning 150 Million People, most of whom are muslims, his ban doesnt affect 90 of muslims in the world, does it . Your honor, it doesnt matter. Im asking you. He could add for countries under such enforcement of his proclamation. But what matters, your honors he has banned hes not smart enough to figure out how to ban all muslims . If his purpose is to disfavor islam, hed need not ban every single muslim i know that. But ive heard the number 150 million, but theres over a billion muslims who arent. If you take the face of the order, hes continued to ban these six predominantly muslim countries, taken together, theyre over 95 muslim and affect 150 Million People. And the government makes much of the fact that hes thrown in two nonmuslim countries for good measure, but one of them, venezuelas not a nationality ban, its a very targeted ban. And the other one affects less than 100 people. Let me ask you this. The court below applied im not saying this correct. But it applied kind of a least restrictive analysis and it said that the government hasnt shown that the National Security interest couldnt be addressed without this ban. What alternative as far as addressing this National Security interest would you find acceptable . Your honor, there is the venezuelatype ban for one thing. To address the problem that 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 with in 2015, which is our individualized visa vetting process. But this eo3 has a case by case waiver provision doesnt it . And substitutes the president s criteria for that waiver process for the one instituted by congress. But it does have an individualized basis. You can apply any individual can apply for a waiver under this plan. There is a waiver thats available, your honor but for individuals to seek to use . Which is also inconsistent with the system that congress enacted, judge shedd. How important is it to your statutory argument the fact that this ban is indefinite . Is that a crucial distinction or simply one of discovery . Your honor, i think that is a very important consideration. One is that the government came in on eo2 and said oh, the reason that this ban is okay is because its a temporary 90day pause. The president has repeatedly said since march 15th when e o2 was enjoined, im going to get even tougher and go back to my original plan. But that was when we kept pressing mr. Wall, you havent made any substantive findings, youve just made a conclusion. Your honor so weve got a little bit different situation now. Sure. Its also relevant under 1182f on its very terms as i think your honor noted in talking with the government. But the statute speaks in terms of suspending for a period of time. Is that what im trying to get at is if it were more temporary rather than indefinite would that make a difference in the ultimate outcome of the case in your view . No, your honor. Even if it were temporary i think we still prevail on the statutory claim and the constitutional claim of course. But it does show, the fact that it is now indefinite and potentially permanent with other countries potentially being added, does distinguish this proclamation from every other prior proclamation under 1182. Nothing else any president has ever done looks like this. I thought this had the reasons for the restrictions and then had periodic reviews of the restrictions. What do you think thats included for . Your honor, those periodic reviews we have to assume will follow the same format as the original i understand. Lets assume it follows the same format. But dont you think if a review turns up that the restrictions are no longer needed the implication is that the restriction will be lifted . Well, its possible, your honor. But the president s criteria because he doesnt apply his stated criteria consistently, we actually its a black box. We dont know what the all Foreign Policys a black box. And it should be. Thats what we have committed to the department of state and the secretary of defense and the president. Except, your honor, that the governments relying on that black box and if the question is, does the study cure the taint . The answer has to be no. It doesnt taint because they dont acknowledge the taint. Theyre saying this proclamation is 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. Its a difficult problem thats been experienced by many countries, with all the disturbances in the near east. And so the question is is that illogical . And is that irrational . And if those conditions no longer exist, theres no need for the proclamation, you have to assume on the face of the proclamation that with those periodic reviews the purpose is to see if the restrictions are still needed. But your honor, those periodic reviews are still part of the president s original method, which was to use nationality as a proxy for religion. And theres 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 eo3, the proclamation, that hes sticking with that purpose. Finally, your honor, i just want to add that if the government is right that this is nonreviewable, if the government is right that this is the scope of president ial power, then in the prescient words of Justice Jackson this ruling would lie about like a loaded weapon. And its telling that the president while campaigning explicitly referred to the japaneseamerican internment as a precedent for this ban. Thats contrary to the laws passed by congress. Its contrary to the establishment clause and its contrary to the basic structure of government and the constitution. Thank you, counsel. Thank you. Mr. Mooppan, you have five minutes reserved. Reserved . He does. He gets his five four points, your honor. The first is last time we were here, both judges on this court and other courts faulted the government for not having findings to justify the prior entry suspension and faulted the government for doing an interim entry suspension before those findings were made. Well, now the government has made those findings. Counsel is right. This proclamation is not like the 1182f findings that came before it. And thats because the proclamation has never had this detailed level. The findings here dwarf what president s before have done to justify entry restrictions theyve impose. And as the District Court recognized in this instance, what they are asking for is to secondguess the president s policy judgment. And nothing in 1182f authorizes that sort of secondguessing. They for example say its illogical and its inconsistent. A, its not true. And b, its not authorized to engage in that sort of secondguessing. Their primary point that they keep emphasizing is there are exemptions. Well, no law pursues its purposes at all costs. All laws recognize that there are competing considerations and in this circumstance it makes particular sense when what youre trying to do is encourage Foreign Governments to change their behavior that you would tailor that based on what the Foreign Government is. They also emphasize that this goes above and beyond the visa vetting program. Well, in this first of all, 1182f has always been recognized to go above and beyond the 1182 restrictions. Thats what the d. C. Circuit recognized in aberas. Thats what the 11th circuit recognized in ayanbe and they didnt respond to that. And here it makes perfect sense. They say what should happen is consular officers should deny visas if they dont have enough information. But the whole point, the whole problem here is weve determined that Foreign Governments arent giving us enough information. If thats the circumstance it doesnt make sense to run through the visa vetting program when the defect is that the visa vetting program is being undermined. Theres a systematic problem and therefore the president engaged in a systematic solution. The main purpose is to influence these countries internal policies. Correct . About information sharing . Its a dual purpose, your honor. Because there is inadequate informationsharing practices we both want to encourage them to change their behavior and to protect this nation until they do. Absolutely. Right. But the main thing su want to encourage them to change. As to north korea, wouldnt you say that north korea has the greatest amount of exemptions as far as people affected by this ban . There are no exemptions. Its a complete ban on both immigrants and nonimmigrants. North korea is among the most recalcitrant so the greatest influence that we want to have on north korea is that we dont let their citizens come in, right . Your honor thats the great im asking. With respect to the information im just trying to say that because they have the most restrictions, correct . Yes. They are among the most recalcitrant countries with respect to information sharing. The greatest amounts of restrictions were imposed on them. Countries that cooperated more with the government, lesser restrictions were imposed on them. But countries like north korea and syria that cooperate least had the greatest restrictions imposed on them. And the last point id like to make on the statutory section is on the question of whether its indefinite, judge keenan. Given that the finding is theres an inadequacy it would make very little sense to have it be a definite restriction. Foreign governments dont get to run out the clock on not providing us the information we need. But what we have done is made it a periodic review such that if they do improve that can be revisited. The sunset provision is subject to renewal. A sunset provision doesnt make sense when theres an actual identified problem. And we have every 180 days under the proclamation it will be revisited. As i believe judge hawkins pointed out in the 9th circuit, 42 out of 43 passed executive orders dont even have that. They are just straight up indefinite. And thats totally consistent with the language of the statute, which is for such period as the president may determine. The second point id like to make is on 1152 and nationality discrimination. The point of that statute as legislative history makes clear was to wipe out the National Origins quotas. But it was not to restrict the ability of the president to make determinations about National Security problems that make people ineligible to enter in the first place. And that is the solution, and that is the explanation for why the cuban order wasnt invalid and why the iranian order isnt invalid. It was quite certainly the nationality issue. Its not that theres some made up emergency exception in the statute. Its about the issuance of immigrant visas. Its not about people who werent able to enter into the country in the first place. This should satisfy as much as, for example, the cuban proclamation. The cuban proclamation involved a diplomatic dispute from a breach that was 15 months earlier. Here the agencies have recommended to the president that there are identified defects in information sharing today and in response to that the president has acted. This is far easier to justify than the cuban proclamation even on their own rationale. Thank you, counsel. Yes. You have two minutes. Thank you, your honor. My rebuttal time is limited to our cross appeal. So ill just say very briefly that we are crossappealing because permitting any part of this third version of the ban to go into effect violates the first amendments core requirement that the government not single out one religion for disfavor. That problem is heightened because its no longer a pause but an indefinite ban with possibly even more muslim countries to be added. In lund this court pointed out that the great promise of the establishment clause is that religion will not operate as the instrument of division in our country. Thats exactly what the proclamation does and the court should not countenance that. Thank you, your honor. Thank you. Well ask the clerk to adjourn the court for the term, and they will come down. Please rise. The Honorable Court has been adjourned. God save the United States and this Honorable Court. Cspans washington journal, live every day with news and policy issues that impact you. Coming up wednesday morning, roll calls neil slinuski on the future of the senate after the Alabama Senate election. Then District Of Columbia dell gal Eleanor Holmes norton talks about Sexual Harassment on capitol hill as well as the call by the Democratic Womens Working Group for an investigation into President Trump. And Virginia Republican congressman scott taylor gives his view on tax reform, Government Spending deadlines, and the future of daca. Be sure to watch cspans washington journal, live at 7 00 eastern wednesday morning. Join the discussion. Deputy attorney general Ron Rosenstein testifies wednesday on the Justice Department investigation of russias interference in the 2016 u. S. President ial election. Were live with the House Judiciary Committee starting at 10 00 a. M. Eastern here on cspan 3. Wednesday President Trump speaks on the tax reform package thats working its way through congress. Live coverage at 3 00 p. M. Eastern on cspan. Org and the free cspan radio app. The cspan bus is traveling across the country on our 50 capitals tour. We recently stopped in tallahassee, florida asking folks whats the most important issue in their state. And the most important issue to my state is funding. A lot of times we talk about the lack of resources and the lack of the quality of education at hbcus. However, it all starts at the source. The board of governors, everything. The amount of money they give us. Its important we rally. But it also has to do with the amount of students who are attending our institutions. So i think its very important for us to start at home where were telling students come to hbcus, come to famu, and it starts from there and then we can rally from our funding. Thats my primary issue. The most important issue to me in the state of florida is education. Because if we dont give our kids the skills they need to get a great job in the future i dont know what our society holds. One of the most important issues in florida is the Educational Opportunity access. As a first generation student and a lowincome student i pride myself on the importance of being able to afford the opportunity for students to be able to participate in Educational Opportunities across america. I understand that funding is not always resourceful and funding is not always available but there needs to be an ongoing push and an ongoing discussion for those considered the underserved. My issue or my concern is the quality of life, not the quantity but the quality of l e life. In my humble opinion i believe that the developers are overdeveloping nice communities that make it they dont make it where its as pleasant as it could be. Voices from the states, on cspan. The white house has asked congress to approve 44 billion in additional Disaster Relief for areas impacted by hurricanes harvey, irma, and maria. Fema administrator brock long testified on the most recent Disaster Relief funding request. He appeared before the House Appropriations Homeland Security subcommittee and gave an update on the Recovery Efforts in texas, florida, puerto rico, and the virgin islands. This hearing is an hour and 40 minutes. Well, well call this hearing to order. Today we are welcoming the administrator of the federal Emergency Management agency