[inaudible] [inaudible] [inaudible] [inaudible] the proclamation is fundamentally different than the prior executive order. This reflects a multiagency, worldwide review, engagement and recommendation process. And they have inadequate sharing practices or other practices that undermine the visa vetting process more restrictions to encourage them to protect this nation until they do so. In light of the fact that the standards first day and preliminary junction are the same, what do you think the Supreme Court meant on monday and issuing the state . What he think that will plan the ultimate resolution . I think the primary element is plaintiffs have heard the Supreme Court will show the likelihood of the mayor. We know that i would submit that will we know how the Supreme Court had the equitable balance last time, the fact that theyll give us a complete stay signals they think its more more than a mere likelihood. Are they going to stop the primary injunction as well . I think thats a strong signal. You never know exactly what but i think thats a strong signal. I think its because of the critical differences, in light of those difference falls well within the president statutory. To restrict the aliens abroad. Even an executive order to the Supreme Court. As to the executive order two, the Supreme Court left almost all that stand as well. For the individuals rent time we do agree. Can you play microphone to talk louder,. The District Court agreed with us the proclamation satisfies requirements of 1182f. You mentioned critical differences between the proclamation a executive order, can you delineate you think are the most important critical differences . Both a procedural and substantive. The critical differences that this would involve a multiagency process. Under the executive order instructed agencies for the information. Read the if any internet the president directed could be done, he directed that certain countries be found to be band. Look at section to a, which country should be band . Section 2a whether there is information that Foreign Governments are not providing. It didnt say if any either, correct . So when the proclamation directs the secretary provide a list of countries that will not comply with the requirements there has to be an affirmative list following the review there may be some or many, are non two. That list. Thats true for at least three of these. Section two a has identify if there is information missing. Nonetheless does appropriate categories. So there were no countries not providing by definition. Even if there are countries not providing it expressly says appropriate categories. We know they took it seriously. Iraq was found not to be providing you with the baseline at the agencies recommended they decided not to include iraq on the list. We know agencies had discussed discretion under the eo to make recommendations of which country to include. They didnt just omit iraq. On the substance side very tailored restriction. They omitted iraq sudan from the earlier decisions. Even with the decisions they cover they had exemptions for several. And reading the proclamation, one of the primary areas for imposing this plan of the countries differentiated by class of visas. An open expectation there would be an change in processes for the nations and improving information practices. How did this bargaining chip of coercion of necessary link find the entry of a class of naturals would be detrimental to the United States. Can you help me with that . I think its a traditional exercise to determine that when a Foreign Government is engaged in harmful practices that can be deemed detrimental it is precisely president cardin did with respect to the iranian hostage. That was adjudicated there. That is true but unless they were ready to say that his entry to all cuban immigrants were also unlawful. Those are all proclamations of a different order. Theres a hundred 50 million plus to incentivize them to cooperate. That connection to me is missing. Just like president carter restricted all immigrants from iran from entering because the hostage crisis. No one was suggesting every immigrant from iran was a threat to the United States let alone connected to the hostage crisis. Because i think its in harmful practices were going to impose restrictions. The presumption is if you dont have the necessary information to enter you dont get a visa. So i this additional measure . The findings made by the agency is that Foreign Governments are not providing sufficient information. That is one possible response, nothing from the closet is the least restrictive alternative. Even those that have carefully calibrated for out throughout . The courts recognize that its a recognition by congress that they can impose additional restrictions. Of a limited in time . Can this be done indefinitely . I struggle to find a dictionary definition i said a suspended suspension this for an indefinite period of time, can you explain how the indefinite ban that has been imposed complies with the language of the statute. How does it meet the statutory grant of authority . Permit is how he may deem necessary. When the problem that has arisen as a countries are giving sufficient information, you can say that until they correct this but the order doesnt go that far. What is says under section four is everyone hundred 80 days will revisit. Business onset provision commits in place forever unless he says otherwise. Its in place until the countries improve their practices. Let me ask you, lets just say this study contains information which is likely to be true. The most terrorist or those that commit terrorist acts are met. Could the president then ban all men under the express granted . Could he ban the entry of fall man trend men until evidence showed further that matter not the ordinary and customary perpetrators . I dont think so. Why not . I dont think using the gender. If you cant use gender, then theres a question of violating section 1152. Jose lanterman tell this restrictions have to be for every legitimate reason. Was a legitimate with 99 terrorist acts committed by men, arent we protecting this country if we just keep out the men. In general he cant use for ben treats as a proxy,. And nationality is not a proxy target . It is not a classification to reese direct. But you do agree that it does ban discrimination based on gender and nationality. Only in the context of the issuance that language is critical. If congress wanted to restrict the ability of the president to keep aliens from entering the country the wind of use that language. Its clear under the ina issue does not entitle anyone to enter the country. Your start to be admissible. If congress intended to repeal that to suspend the entry they wouldve never use the language. This is clear from the legislative history. Interview, can the president use 1182f to promote for further policy objective he might think acceptable . Were talking about the deficiencies but if you is unhappy for an unrelated reason to do then say, he ban the seven or eight nationals from this country in an effort to promote my foreignpolicy . I think the language is whether its in the National Interest. If its not at all related to the improvement of vetting processes. I think thats right. I understand that neither president carters or president reagans proclamation was challenged, but both orders have that feature. Because of foreignpolicy disputes the president respect restricted immigrants without any suggestion that the individual nationals were subjected had anything to do with the government. This case is stronger because here the concern is about the failure to provide the information about the nationals were restricting. The case is stronger now. I have a threshold question. I want to understand the adjuster below the argument that you make. Is that meant to include an argument the plaintiffs under the statutory claims under 1152 the constitutional claim, that they did not have standing . Z are you making a standing claim . Supreme court has recognized the rights that are fairly late in this context i think the nature of our rights are in article iii and the biggest point is that unless and until an individual alien is found otherwise eligible to enter seeks and is the night away for they are not under the proclamation. Is it your position that the courts cannot review this proclamation . Know your honor. What i was saying was on the constitutional side. On the statutory side, lets take that first. Is your position that the president could make any finding at the detrimental activity and find that they should be excluded of National Interest and we could not review that . Statutory. Thats your position. The case where congress has stripped out 1331 jurisdictions . I would point to two cases is your honor. First the Supreme Courts decision in shaughnessy in the d. C. Circuit position. Both of those cases recognize when you are talking about a statutory claim the restriction of aliens abroad is a fundamentally political and foreignpolicy judgment that is not reviewable Must Congress has provided otherwise and that is clearly the rule when it comes to con consular law officers. Even by misinterpreting that is simply not reviewable unless congress provides otherwise. Has in congress made it clear in 1182 when they stripped the review ability several times soul distortion not reviewable. I mean in other parts of the statute 72. Correct . I think 1182. 1182. Hymn i think 1182 has the language itself that further confirms it. How so . If the president finds that its not in the National Interest by using the phrasing. It has to find something that means its reviewable, is that . I dont think so your honor. Who are the findings for . Thats the statutory constraint just as in webster verses dover. My question is who are the findings for . If its a substandard of constraint. How is it a constraint times constraint and the reviews that restraint times were straight . The president takes an oath of office. I understand that. Who has used that restrain . It does times doesnt mean the president doesnt have to follow it. But we are of the teeth that would say he cant . You say the courts cant. And the third branch cant. Who does . Two things your honor. The first primary is that the president takes an oath of office and has an independent obligation to comply with the constitution one that he takes seriously in the second. That means on january 20 00 p. M. To power because he took the oath of office. I dont think the court would suggest. I am not saying suggests. Go to point number two. Point number two is that congress has the ability. Remember we are talking about a statutory claim. If congress is concerned that the present is violating the statute congress can authorize a review. Congress has not to write it in the Supreme Court has said. Do we have the power in the shaw case to talk about congress cant delegate authority and then decide its going to be the one to be arbitrary to that . You are saying they can do that . They are the ones who decide . Shauna did not exclude aliens abroad exclusion of aliens abroad are a very narrow set of circumstances where the Supreme Court offers a Must Congress provides otherwise there will be no review in part of the reason for that your honor unlike in shauna if theres not an out delegation issued the president has inherent executive authority with respect to the exclusion of aliens abroad. The power comes exclusively from congressional power does it not . That is not correct your honor. If you look at shauna the argument was made the congress had improperly delegated authority to the president to exclude aliens in the Supreme Court said that is not true that the president has inherent executive authority to restrict the entry of aliens abroad. So you are saying under 1152 clearly in 1965 it was a policy that we would not discriminate with national dumbest demonstration. The president s that i dont want to do that. We are going to forget about that and i can have every country excluded and you said theres no review is that correct . If the president were to do that he would not be reviewable but again the president would have to make a finding that it was detrimental to the National Interest. That is not what we have here. We have here is the president has found that the country is a specific National Security and foreignpolicy problem and in response of those problems is precisely what president carter did frypan imprecise and let president reagan did for cuba. No one even argues that those restrictions violated the law. No one challenged either of those. That is correct your honor but the fact that they wouldnt bother to challenge his signals how weak the claim is. If those statues ban immigrant visas. I thought you said the major reason was the issuance of a visa and in response to judge keenans question on gender you said while gender doesnt apply because its one of those broader classifications that deal with discrimination much like race. Tender is one that you cant use. Why would congress put it in 1152 . It sounds like get started covered. Gender and race are to be covered even with the issuance of visas so why is it in 1152 . Your honor that times the point i was making to judge keenan. My question is why is it in 1152 if what you say to judge keenan the agenda doesnt apply because its one of those classifications that they just cant do it because its one of those video classifications like race but you can use nationality because its not for my question is why have 1152 on race and gender but you dont need it . There are a lot of statutes. Why is it in 1152 . Congress has a statute that bolsters what the constitution is potentially in part prohibiting that the other important point is 1152 focuses on the issuance of visas and what they were trying to do in legislative history makes it quite clear they were trying to wipe out the preexisting national. You didnt need it. You are the habit. You are to have that because you cant use race. President s can do this. There are a lot of statutes that prohibit the constitutional arguments im not sure why that would undermine the argument that under 1152 if the legislative history makes it clear what congress is concerned about in the specific times specific issue was the National Origins quota. Let me ask one question and make sure i get this question now. As i understand it there has been a worldwide review and that is the primary basis upon which you think this is really different. In the face of a worldwide review which is classified we dont have that. We simply do it procedurally, fine but then what do we do when we are looking as an objective reasonable observer and we have multiple instances in which this president has indicated before the election and during the election and just a week or so ago i believe we can take judicial note notice of that in the news he tweak what he says is indicated the purpose of what this proclamation is. I mean im trying to, in other words do we just ignore reality and look at the legality to determine how to handle this case . If the reality is that is the purpose of the legality allows it does that make a difference . I have several points your honor. The first is we do think that all those statements are legally relevant under mandela and heres a critical point. Tell me what you mean all those statements. Im talking about the statements that go directly to purpose and if the allegation is that this is an effort to ban muslims from this country every statement thats made by the individual and the president making it goes to say that but its done in a way as to say we did a worldwide review. What i was saying your honors the Supreme Court since we were here last time and the santana case made Crystal Clear that the mandel standard is a rational basis standard and under rational basis review subject purpose is legally irrelevant. You do not look to see what was behind the motives. Its not on National Races review as you say the Supreme Court has said it is. Then can we go back to Reasonable Service and answer the question. I understand what you said what the Supreme Court has said. If you go past the fact that the Supreme Court said rational basis under mccleary the question is whether the objective observer would determine the primary purpose was religious and i would submit that when you have a multiagency review where youve got numerous numerous. Is classified and thats all we know. There has been one. The report you are talking about is not in this record. Reports on the record. We do have in the record statements and notwithstanding how you may press that we can take notice of statements that are made that allows us to do that. We have that is direct purpose. Again your honor their regional reasonable object of observer would look at the proclamation we dont have the underlying report that we did of the proclamation and we dont ignore what it says. Are you saying that the court for the proclamation is in the report . Is the report for the proclamation rational and not a muslim ban in the report . It further details, the report further details on the base. Courts can look at classified information in a secure manner. Wouldnt it be much easier if you would just have put your support in the record classified so that we could see at . Dont count on it. That would be easy. Your honor the fact that it is classified is certainly public. Its also report that is covered by privilege. Its a recommendation from cabinet secretaries to the president that includes incredibly Sensitive Information not just because his classified but its important foreignpolicy including information such as which country engage with those in which country improved during the process. This is all incredibly Sensitive Information all covered by the communication privilege. Thats what you have to fall back on. You cant get past the classification of article iii judges.