[inaudible conversations] may it please the Court Injunction can strongly signaled it is fundamentally different than executive order that proclamation of a multi Agency Worldwide review engagement and recommendation process had substantive fighting ratings with other risk factors to undermine the vetting system for those restrictions to encourage those countries to protect it until they do so. In light of the fact the standards are essentially the same, could you tell me what you think the Supreme Courts action on monday it is issuing this resolves . How does that play of the ultimate resolution . , your honor their primary element of us day as the of clintons of play dissever urged there is of a likelihood we got the minimum we do have a likelihood of success. But in the circumstances of a strike that equitable balance the fact they give the sec completes day pretty strongly signals that it is more than just a mere likelihood of success that is just a good indication that is the injunction across the board. I think it is a strong signal but i do think its a pretty strong signal , your honor because of the differences between the proclamation that in light of those differences and falls well within the statutory and Constitutional Authority and that this court agreed with us simic as the executive order to the Supreme Court. But as to the executive order the Supreme Court what almost all of that stand as well. In part with respect to those that did not have the of bonafide corridor but. Please move your record from our talk louder. The District Court agreed with us that the proclamation satisfies the requirements and have a like to begin there. But the critical differences between the of proclamation now an executive order could you delineate the most important critical differences . On the procedural side the critical difference is that this could involve a multi Agency Process linder the executive order it determines what if any went missing. If any . What they should they be done . That they were found to be manned. If you look at section to say that is what i believe whether there is for information. But it didnt say if any either. So they do not comply with the proclamation for them to be affirmative following that review that could be many or none. Thats right, your honor so section 2a asks whether there was a solution that was less missing but then 2e says appropriate categories so there were no countries not providing this information by definition in even if there are countries it expressly says appropriate categories in reno that they took that seriously for example, it did not meet a the baseline yet the agency recommended not to include iraq, the list so wasnt a preordained conclusion and the agency had expressed that to make their recommendation to the president which countries to include and they exercise that discretion they didnt just omit iraq to the substantive part but they took a very tailored restriction they omitted in sudan from the earlier decision they had exemptions for several of the countrys. Reading that proclamation and imposing the ban to be differentiated by classs there is the hope and expectation that change a process to improve the information sharing practices. With the necessary length with a whole class of nationals can you help me with that . It is a traditional exercise to determine when a Foreign Government is engaged in practices it is detrimental to the interest it is precisely what president carter did. That issue was not adjudicated. That is true but the less theyre prepared to say with the hostage crisis in to be in a diplomatic dispute with cuba is also of lawful. Also about wholesale demand of those nationals with that expectation this could incentivize them. Just like president carter restricted all immigrants from iraq from entering because of the hostage crisis over u. S. Suggesting every immigrant was a threat to the United States or to the hostage crisis but the point was because the government is engaged in harmful pod practices we will impose restrictions on internationals. If you dont have the necessary information to enter why this measure . Those made from the agencies here not providing sufficient information. That is one possible response nothing from 1182 it is entirely permissible. Even those that allow exemptions to congress . Thats right because as the courts have repeatedly recognized a recognition by congress the president can impose additional restrictions over and above. Are they limited on time can be done indefinitely . The statute says. For such a period. I struggled to find a dictionary definition that says a suspension is for the indefinite period of time. So can you explain for us how that indefinite ban that has been imposed complies with the language of the statute how does it mean that grant of authority . So the first point is this such a period as he deems necessary and in this circumstance when the problem that has arisen is information it is permissible to say potentially and told they correct themselves but it doesnt even go that far because what it actually says is that every 180 days they will visit. There is no sunset provision. Essentially it is in place forever. Correct . No. Not until the of countries improve their practices. Lets 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 they and all men under that express authority and banned the entry of all men and tell evidence shows further that bin and not the ordinary and customary perpetrators . I dont think so. Why not. Using gender is not satisfying. Then our view isolate section a levin 82. I was driving the restrictions for a legitimate reason for. But why is it legitimate with 99 percent of terrorist acts committed by men are we protecting the country to keep out the men . You cannot use that as of a proxy you have to target. Nationality is the other prosecutorial target . Not for the federal government. But do you agree that day as discrimination based on gender and nationality . Only with the issue of the immigrant visa and that is critical of congress wanted to restrict the ability to keep aliens from entering the country with the immigrant visa it is clear under the eye and ina it does not entitle anyone that it has to be admissible of congress intended to have that president the authority they never would have used the language it is clear from the legislative history. In your view can the president promote or further any Foreign Policy . Or talking about the deficiencies with respect of the nation regarding back Foreign Policy objective with the seven or eight nationals from this country to promote National Policy . The statutory language is a fitted in the National LanguageNational Interest presumptively that is not all related to the vetting process. I think thats right. I a understand what the president carter or president reagans was challenged but both orders have exactly that beecher that because of Foreign Policy disputes with the government the present restricted the entrance of immigrants without any suggestion that the individual nationals had anything to do with the Foreign Policy of the government probe this case is stronger than that because here certainly with the Foreign Governments the failure of providing information from what were now restricting so the basis is much stronger in the prior historical examples. I have a threshold question because i want to be sure i understand the argument that you make. Is that meant to include whether for a the statutory claims or the constitutional claims that they do not have standing . We have made a argument , your honor but it is based on non review ability in particular on the statutory side those claims challenge the restriction at the exclusion of the aliens abroad and here congress has not done so and the alien abroad has no constitutional rights. Is this of standing claim . So that is barely related and in this context it is also article iii with the basic point unless and until the individual alien is found otherwise eligible then they are not affected. Is it your position the courts cannot review . On the constitutional side is it your position that they should be committed . But where congress has stripped out the jurisdiction . To case is. First the Supreme Court decision in the d. C. Court decision both of those recognized talking about the statutory claim the restriction of aliens abroad is a fundamentally political form policy judgment traditionally not reviewable unless congress provided otherwise and that is clearly the rule of counselor officers restrict that entry even by misinterpreting the eye and a it is not reviewable unless Congress Writes otherwise. Congress made it clear with 1182 to strip that several times with the other parts of the statute. Judge millett 82 1182 should be reviewable. Because the language is phrased if the president finds that it is not by using that phrasing. But they have to find something that means the review . Who were the findings for . That is the statutory constraint just like in webster. But who were the findings for . If it is a substantive constraint . Who would use the constraint . The president takes the oath of office. Who uses that. Is not traditionally reviewable that doesnt mean he doesnt have to follow that. The where are those who say he cannot . If you say the courts cannot the third branch of government cannot, who does . The first is the president takes the oath of office with the independeindepende nt obligation to comply second. On january 20th the have the power because the head of the office . The court should not lightly suggest. Series that started january 20th . Number two. But congress has the ability to review some remember were talking statutory. If congress is concerned the president is violating the statute they can authorize a review and they have not authorized to review. The Supreme Court has said repeatedly. What about the charter case that congress cannot delegate authority are you saying they could do that . Then they decide whether or not . Chavez did not exclude the of aliens abroad it was a narrow set of circumstances because there rubino review part of the reason for that because there is inherent executive authority with aliens abroad but that comes exclusively. This exact argument was made that congress properly delegated the authority to the president excluding aliens in the Supreme Court said that is not true he has inherent executive authority to restrict the entry of aliens abroad. So you say under 1152 in 1965 it was a policy of not discrimination nationally. But to say like have every country excluded and you sit there is no review . Give the president could do that it is not reviewable but he would make a finding was detrimental to the National Interest that is not what we have here we found that countries that have specific Foreign Policy problems in response he has the entry restrictions exactly what carter did from my rand and reagan did to cuba nobody even argued. Nobody challenged those. Outright. Correct for the fact that nobody even bothered since a strong signal how weak the claim is in the budget issue is the immigrant visa. They say it doesnt apply the issuance of the beasts that not the entrance but in response to the question on gender you said gender does not apply because it is a broader classification dealing with discrimination like race so gender is one that you cannot use why would congress put in and though 1152 . This sounds like it is a recovered covered even with the issuance so why go 1152 . , your honor. The point i was making. Why isnt in 1152 if what you said gender does not apply because it is a classification because they can do it . But you can use nationality so what is that a play to race and gender but then you dont need it. There are a law of statutes that prohibit. But why the 1152 . Congress passed the statute potentially was prohibited by the other important. 1152 focuses on the visa what they were trying to do that makes this quite clear trying to wipe out. You already had it. From the answer that you gave us you cannot use gender or race. President s candidas on this basis also. There are a law of statutes so i am not sure what that would undermine the argument i in making but under 1152 history makes clear when congress was concerned. Let me ask you one question. As i understand it there has been a world wide review of a number of nations period they this is really different so is showing as they. With a worldwide review to say we dont have it is just procedural. Fine. But then what do we do looking at the objective reasonable observer with multiple instances and just one week ago to take judicial notice he tweets the very thing that is indicated. So do we just ignore reality and local of the legality . If the reality is that is the purpose does that make a difference . Yes. Several points we do those zero statements or legally relevant in here is a critical point from when we were here last time. Im talking about the statements directly to purpose if the delegation is it is an effort to ban muslims and every statement made by an individual says that but it is done in a way now it is legal . Cry was saying is the Supreme Court since we were here last june made Crystal Clear that is a rational review standard and the subjective purpose is legally irrelevant you do not book to see behind what is behind a motive. Then do we go back and answer the question in that vein. What do you say on that . Under root query the question is whether the objective observer would determine the primary purpose was religious and i say when you have a multi agency review. That is all we know. That report does not in this record. But we can take notice of the statements made the allows us to do that as part of the president s. The reasonable objective result of server the proclamations issued of the underlying report will legal observer would not ignore that. Arent you saying if not for the proclamation is in the report and to be rational in the report . It is further detailed in the report and the proclamation itself. Courts cannot look at classified information in a secure manner would it be much easier if you would put that in the record, albeit classified, and so we could see it . Dont count on it. That would be easier. , your honor it isnt just that it was classified this is also a report covered by president ial communication privileged cabinet secretary to the president that has incredibly Sensitive Information with important for policies such as which countries engaged with us this is all incredibly Sensitive Information covered by president ial communications privilege. So that classification as the article three judges we have a clearance except the classified by executive privilege . That has been mitigated. Thats right. If it was not asserted then that was not resolved. If this court, we dont think it is necessary or appropriate if they would file the report experts say we would do so you would see that it strongly supports the maggie wood filed a privileged material . That is the unusual position if you believe in the privilege. Give the court would order a. Guy vander stand but we are in equal branch of the president so the question is whether we get into the deliberative process of the executive which seems to me is similar to the president asking us behind that decision. I agree we have to do disclose this. If you ordered us to do so. What is the answer to that . And to show that to us experts say . I am not sure i dont think we have taken a position on that. Not if the court would withhold the order. If we ordered you to we have clearance just like you do. Everyone of us but you have another point that could be valid of executive privilege but i thought your answer was if we ordered you you would give it to us if you want to back off that is the perfect time because that is the question. The one to insist the deliver live privilege applicability before you turn that over . , your honor i apologize i do not have a position on that. If it is relevant to the court we could submit a supplemental fighting. Do we want to be on that privilege . You were counsel in the District Court so in the question came up you told the court that what you think in the proclamation supports and of those legal standards then it should be of help if you think what is in the proclamation is not sufficient to support the relevant legal standards militia be invalidated so by deposition . We do think the proclamation by itself satisfies that. No, no, no. There were two sentences. Do you stand by them . This doesnt require a long answer if you look at the proclamation should be appalled . If you think it is not sufficient to support the legal rollout within standards should be invalidated that is the case to put to the District Court. Is in the do stand by that. Them and though principal but as judges thought what was critical to their analysis. Be used and that you live or die and ill also have one other question with the acting solicitor general was here before he insisted in telling us how temporary the ban was as it was a brief pause that is the difference between what we have now and the order that existed then that seems to be significant. Last time it was temporary and service of the study. Right to. It would make it so you dont have it in the future but in fact, the study says doing for the intermittent amount of time. Only for those countries to have inadequatinadequat e information sharing. There is overlap but sudan is not covered,. And iraq under the first order also other countries that are covered there are exemptions for the not in the grand pieces we are not denying that. Nor should anybody be surprised by the fact we were investigating whether countries have inadequate information ensuring practices with state sponsors of terror they may not turn on to do very well in the investigation if they are sharing information. Nor should we be surprised i guess if the president continues to make statements some