Cspan2. This will be on the only. We expected to get underway in just a moment. Were about to get started. This is just a friendly reminder that all the council cocounsel consider counsel desk. [inaudible conversations] [inaudible conversations] United States court of appeals, all persons before the united stat states [inaudible] may it please the court. The injunction strongly signals confirmation is fundamentally different than the prior executive order. The proclamation respects a multiagency, worldwide review engagement and recommendation process and findings of eight countries have inadequate information sharing practices or other risk factors that undermine the visa vetting system and that warrant tailored entry restrictions to improve their practices and protect this nation until they do so. In light of the fact that the standards for stay and standard for preliminary injunction are essentially the same, would you tell me what you think the Supreme Court action on monday in issuing the stay, which you saw, what do you think thats going to how is that going to play on the ultimate resolution of the preliminary injunction in front of us . Well, your honor, i think the primary element of the stay as plaintiffs themselves have urged the Supreme Court in opposing stay is that we have to show a likelihood on the merits. We know at a minimum the Supreme Court thinks we have a likelihood of success on the merits and i would submit in these circumstances where we know what the Supreme Court, how they struck the equitable balan balance last time. The fact that they stayed the injunction going to stop the preliminary injunction as well . I think thats a strong signal, you know, you can never infer too much from what the Supreme Court means in a stay when they dont give reasoning, but i think thats a pretty strong signal, your honor, and i think its because of the critical procedural and substantive differences between the proclamation and the prior order, in light of those differences, the proclamation falls well within the president s broad statutory and Constitutional Authority to restrict the entry of aliens abroad. Indeed shall the District Court actually agreed with us even as to executive order to the Supreme Court at least early on let a lot of that stand, too. Im sorry, your honor . As to the executive order, the Supreme Court let almost all of that stand as well. They stated in part. Bona fide. For the kids who did bona fide which we agree that likelihood of success with the second executive order. Can you pull your microphone or talk a little louder, one or the other . Thank you. The District Court actually agreed with us that the executive that the proclamation satisfies the requirements of 1182f and id like to begin there. You mentioned that the critical differences between the proclamation now and executive order , too, what could you delineate for me what you think are the most important critical differences . Yes, theres a procedural component to it and a substantive component to it. On the procedure side this is a multiagency process under the executive order the president instructed these agencies to determine what institution if any they thought was missing from the information provided i did read the if any into what the president directed be done. I thought he directed that that certain countries be found to be banned. I dont think thats right, your honor. If you look at section 2a. Not that certain countries, but that which countries should be banned. If you look at section 2a of the executive order the exact language, whether there is information that Foreign Governments are not providing. It didnt say that there is information thats not providing. And it didnt say if any either, correct . If any was my weather. Your honor. When the proclamation directs that the secretary provide a list of countries that would not comply with the requirements of the proclamation, thats not an edict, in your mind, that there has to be an affirmative list, just that following there may be some, many, or none here on this list. Thats right, your honor and i think its true for three reasons. First, section 2a identifies whether there is information missing and 2e, when it asks for a list, appropriate categories of nationals from countries that arent providing the requested information. So, there were no countries that were not providing the requested information by definition, that would be zero. And even if there are countries that are not providing the requested information, it expressly says appropriate categories. And we know that the agencies took that seriously because, for example, iraq was found to not be providing, to not meet the baseline and yet the agencies recommended and the president decided not to include iraq on the list. So we know that this is not some sort of pre ordained conclusion. We know that the agencies had expressed expression under the eo, to make a recommendation to the president which is countries to include. They didnt just omit iraq and turns to the substantive part of the differences between the border. On the substantive side, its a very tailored restriction. They omitted iraq, omitted sudan from the earlier decisions, even with the countries that they covered, they have exemptions for nonimmigrant visas for several. Countries. In reading the proclamation as ive understood it, one of the primary justifications for imposing the ban on these seven countries differentiated by class of visas is the hope and expectation that there will be a change in processes for these nations in improving their information sharing practices. Im still having trouble seeing how that kind of a bargaining chip or coercion is at all the necessary link with respect to a finding that the entry of the whole class of nationals, 150 million plus, would be detrimental to the United States. Can you help me with that . Sure, your honor. So, i think its a traditional exercise of the use of 1180 when a Foreign Government is engaged in harmful practices it can be deemed detrimental to the National Interest to allow the countrys nationals to enter. What president carter did with the iranian hostage crisis. That wasnt adjudicated. Unless the court is to say that the president carter for the iranian crisis and president reagan for all cuban immigrants were also unlawful. Those are all declaration, proclamations of a different order. This is a wholesale ban of 150 million plus nationals bases on the hope and expectation that this will incentivize the nations to cooperate. The connection there to me is missing. Just like president carter restricted all immigrants from iran from entering because of the hostage crisis, no one was suggesting that every immigrant from iran was a threat at all to the United States, let alone connected to the iranian hostage crisis. The point is because iranian government was engaged in practices re we restricted dont we already have restrictions . If you dont have the necessary items to enter, you dont get a visa. Why this additional measure . Because we have vetting systems, but the findings made by the agencies here is that Foreign Governments are not providing stuff information to allow that vetting to occur if thats the case the conclusion is the entrant, a national doesnt enter, right . That is one possible response, but its not the only response and nothing in 1182 asks and nothing in the clause i mposes a narrowing restriction even in the face of the statute that otherwise delineates exceptions that congress carefully calibrated throughout . I think thats right. Because repeatedly 1182f is recognition by congress the president can order restrictions over and above. Could this be limited in time or over and suspended for such period and ive struggled to find additionry definition that says a suspension for an indefinite period of time. Can you explain for us how the indefinite ban thats been imposed here complies with the language of the statute, not whats been done by other president s, but how this would meet the statutory grant of authority . Sure, your honor. The first point, the statute says for such period as he may deem necessary. And in this circumstance, when the problem that has risen is the countries arent giving sufficient information, its entirely permissible to say that the period will last at least potentially until they correct their informational deficit, but the order doesnt even go that far because what the order actually says, under section 4, is that every 180 days, the president will and the agents will revisit. But theres no sunset provision. Theres no sunset provision. Its in place essentially forever unless he says otherwi otherwise, isnt that correct . No, its in place until the countries improve their practices or until he decides to change. Let me ask you another question. Lets just say that this study contains information which is likely to be true, that most terrorists are people who commit terrorist acts, are men. Could the president then ban all men under the express authority granted by 1182f, could he ban the entry of all men until evidence showed further that men are not the ordinary and customary perpetrators of terrorist activities . I dont think so, your honor. Why not . I dont think that using gender as a proxy would satisfy mandels requirement youre using if you cant use gender then theres a question of violating section 1152, is that what youre driving at . No, what i was driving at under mandel, the pre restrictions have to why isnt legitimate, if 99 of conducted by men arent we keeping out men you cant use forbidden trades as a proxy, you have to target the actual conduct youre worried about. Nationality is not a proxy target. Nationality is not an invidious the law rice you would agree that section 1152 bans discrimination based on gender and nationality. Only in the context of the issuance of immigrant visas, your honor, that language is critical. If congress wanted to restrict the ability of the president to keep aliens from entering the country they would have never used language in the issuance of immigrant visas. Because its clear under the ina, because the issue of an immigrant visa does not entitle anyone to enter the country. You have to be admissible. If congress intended to implicitly repeal under 1182f to allow the entry to suspend the entry, they never would have used the language in immigrant visa and this is clear in the history. In your view can the president use 1182f to promote or further any Foreign Policy objectives that he might think acceptable . This one i guess arguably is relate in the sense of the report is vetting sufficiencies with these nations, but if he was unhappy with a nation for unrelated reason regarding a Foreign Policy objective could he then say i ban these seven or eight nationals from this country in an effort to promote my Foreign Policy objective . So, i think the statutory evidence is in the interest. And its its not at all related to the, at least in this case, related to the improvement of vetting processes. Are these arguably related to immigrationrelated contexts . I think thats right, your honor. I understand that president carters iranian proclamation or president reagans cuban proclamation were challenged, but both of those orders have exactly that feature that because of Foreign Policy disputes with the government, the president restricted the entry of immigrants from those countries without any suggestion, any suggestion that the individual nationals subject today that restrictions had anything to do with the Foreign Policy dispute with the government. This case is stronger than that because here the concern we have with the Foreign Governments is failure to supply the information on the immigrants. And its stronger than the use of 1182f. Counsel, i have a threshold question, the argument that you make. Is that meant to include an argument that the plaintiffs, weather for the statutory claims under 1152 and the apa, for the constitutional claim, that they do not have standing in this . So we have made an article 3 right in this argument, your honor, but our primary arguments are focused on nonrevealability. On the statutory side, statutory claims challenging the exclusion of aliens abroad are not reviewable and this congress expressly provides otherwise, and here congress has not done so. And on the constitutional claims that an alien abroad has no constitutional rights. Sir, are you making a rightness claim or a standing claim or merged into both . So rightness and standing as the Supreme Court recognized fairly related and in this context, i think the nature of our rightness objection is also in article three, lack of imminent injury objection. The basic point unless and until an individual alien seeks and denied waiver they are not affected by the proclamation is it your position that the courts cannot review this proclamation for validity . No, your honor, what i was saying on the constitutional side, our argument is on the statutory side. Lets take that first. Is it your position that the president could make any finding as detrimental activity and find that they should be excluded for National Interest and we could not review that or statutory . Is that your position . That is our position, your honor. Can you cite to the case where congress has stripped our 1331 jurisdiction . The shaughnessy and the Supreme Court decision in bruno. Both of those cases recognize when youre talking about a statutory claim, the restriction of aliens abroad of entry of aliens abroad is a fundamental political and Foreign Policy judgment not traditionally reviewable unless congress has provided otherwise and thats clearly the rule when it comes to cons lahr officers. If they restrict aliens abroad even by misinterpreting the ina, thats simply not reviewable unless congress provides otherwise. Hasnt congress made it clear even in 1182f when they stripped our reviewability, several times, sole discretion, not reviewable . I mean, in other parts of the statute, 1182, but not in f, correct . I believe so i think 1182f. 1182. I think 1182fs language itself further determines reviewable how so . If the president finds its not in the by using the phrasing as the president finds. If you have to find something, that means its reviewable, isnt it . I dont think so, your honor. Who are the findings for . Thats the statutory constraint on what the president has to do just as in webster versus doe. Thats not what im asking. My question is who are the findings for . It is a substantive complaint on the president and how is it a constraint and who reviews that constraint. The president takes an oath of office. I understand that. Who reviews that restraint . Its not traditionally reviewable. That doesnt mean that the president doesnt have to follow it. Who, where are the teeth that would say he cant . You said the courts cant. The third branch of government, we cant. Who does . Two things, your honor, the first is the teeth the first and primary teeth is that the president takes an oath of office and has an independent obligation to comply with the constitution and laws, that he takes seriously. The second i would say is that congress on january 20th he had the power because he took the oath of office. I dont think this court should lightly suggest slightly suggest, you said oath of office, january 20th is started. Im suggesting. Go to point number two then. The point number two is that congress has the ability to review what the president is doing. Remember, were talking about statutory claims, if congress how does congress do that . If concern is concerned that the president is violating its statutes congress can authorize review. Congress has not authorized review. And the Supreme Court has said repeatedly dont we have a problem on the charter case to talk about charter, it talks about congress cant delegate authority and then decide its going to be the ones to arbiter that. Are you saying they can do that . They delegated to the president and then theyre the ones that decide whether or not. So charter did not exclude aliens abroad. The exclusion of aliens abroad is a narrow set of circumstances where the Supreme Court in noff versus shaughnessy recognizes unless congress provides otherwise there will be no review and part of the reason for that, unlike enchadda, the president has executive authority with respect to the exclusion of aliens abroad. Well, no, the power under ina comes exclusively from congressional power, does it not . It does not, your honor. If you look at shaughnessy, the argument was made that the congress improperly delegated to the president , and the Supreme Court said thats not true that the president has inherent executive authority to restrict the entry of aliens abroad. And i know judge march has a question. Youre saying under 1152 clearly in 1965, it was a policy that we would not discriminate, National Discrimination and the president can just say, i dont want to do that . Were going to forget about that and we will we will i can have every countries excluded and you said theres no review of that, is that correct . If the president were to do that it would not be reviewable, but again, the president would have to make a finding it was detrimental to the National Interest. Thats not what we have here. What we have here is that the president found that eight countries have specific National Security and Foreign Policy problems and in response to those problems, hes imposed an entry thats precisely what president carter did for iran. Its precisely what president reagan did for cuba. No one argued that those entry restrictions those. No one challenged either of those. This is under challenge. Thats correct, your honor. But the fact that no one bothered to challenge it strongly signals how weak the claim is. Those statutes look at immigrant visas. I thought says what you said the major reason why it