[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 people regard to be antimuslim after the issuance of this order could it be construed otherwise its . I dont think that is fair of the of proclamation. Cry and suggesting the president s statements after the order mosley says he wants it to be tougher for go certainly it isnt with muslims. If you look at what countries are covered by to tell the muslim countries and created exemptions and with a single majority muslim country. North korea and venezuela but it doesnt apply hardly to anybody it is like window dressing. But the president s statement he wanted to be tougher nobody construe that to be tougher with respect to muslims but the proclamation is not tougher with respect to muslims. You do agree we could take judicial notice . We dont think it is legally relevant. But the fact of the statements were made the place is one to use the content of those statements that would never be admissible in trial theyre not official documents it is speculation and hearsay and triple hearsay you are conceding we can take judicial notice of that . I thought maybe i misunderstood was referencing the president s tweets. It is the departments position that those are official statements of the president of the United States . So you can see those are official statements of the president of the United States. You are seen as our official statements . He said yes. We have plenty of evidence of that. Is still the departments position the president speaks for the executive branch . There is no constitutional space in if there is in the gaps between the president insubordinate as of court we cannot go behind the president. Insofar as it is legally relevant but to oppose the us day it did not sway the upper smear the Supreme Courts and from reversing the injunction theyre not legally relevant not under the rational basis review. What about the query . We dont think they are. No. We dont think that this statement about the proclamation theyre not even about that since he said the tweets could not be taken into the content . And not manifested into any bias . I dont agree with that characterization we dont think it is legally relevant can the president violate the act . By terms of his authority to take action contrary to any other provision of the ina . Direct is possible could engage in conduct to violate some provisions. What is your perspective if the president can ban all immigrants or take other actions with the infinite nature can the president say i in banning all immigrants . Why could the president under your theory violate any particular provision of the ina to make a finding that is pursuant to any other provision in the United States . Director of president has to make the finding so i would say two things of those outer bounds. Won the substantive and one is a procedural so it cannot be directly contrary to another ina provision that the president said idol like immigration there for it is contrary to National Interest that would be serious tensions with the immigrant visa but critically that is not what this proclamation does. It finds there are certain countries that present National Security and Foreign Policy problems that need imposed on certain restrictions that is well within the court with the first decision to involve exactly this sort of order where under the ina there was the ground that required the aliens activities within the country be harmful. So the president can treat immigrants more harshly than other aliens . Under 1182 . Asking why it is detrimental but essentially because they have no rights when they get here. That is what the Supreme Court held that the issue was of the haitian immigrant were there they would have asylum protection. But then they had to show the right. No. The response your question they had asylum protections and precisely to keep them from invoking those protections he said up a blockade and that was clearly authorized zero the mere fact he shows 1182 so to stop them invoking their rights is not a problem under 1182. I know he doesnt have to be logical. I agree. That is not what i said. No more than we have to be logical. But my concern is with regard the president has not put anything in the proclamation why immigrants should be treated differently than other aliens coming from the same country. To you just have to be here temporarily to face those fewer restrictions if youre an immigrant from the exact same country you are banned. That is not all what i said i said it explains explicitly why there is that distinction because immigrants do have greater protections for removal so if the problem is insufficient information from these countries with their risk of betting system is now working people are getting in that we dont want that is more plausible economic remove them on the back and it is a perfectly rational thing to do. But with the blood 152 we will give them projections and not discriminate based on nationality. Dont you think that is a list distinction aside from the random alien coming from business with future americans and we will not tolerate that is that a clear expression of congressional intent . In regard to the issuance of the immigrant visa it is Crystal Clear what they were trying to stop was the National Origins with government was discriminating to maintain that ethnic balance. Isnt it true the president is entitled to deference with National Security then doubled down with International Affairs . Absolutely. So how does deference work when a president make statements people say clearly he is antimuslim there may never be an agreement but he talks about what he perceives terrorism saying that some people are muslim. If you look at his statements finding something to point to so can you get any inference why his statements are in light of that difference . Yes your honor, also more importance in light of the of rationality am for visibility. I understand the rationale but on the statements it is clear it is dripping with discrimination. But if you look at it in context but if there is that possibility in total context is there any you roll what he would get with this difference in this area . Both given the difference in this particular area also the general difference i think he should take the more permissible, reasonable and charitable position rather than more hostage held but in this context they have a proclamation recommended by agencies with no basis. We have not seen this report and previously determined that that was made in bad faith because of the things that have been said now you have more added to that because of the proclamation and the report but you dont show was. That lays out the agencys engaged recommended these eight countries so if you think the agencies did not say that. We cannot look at that. It is true but the president of the United States justice say that the agency debt recommended of these eight countries. I understand your argument and the position there is a review process that breaks any chain or a concern anybody could have with of president but explain to me how the review process by executivebranch officials is the independent act separate from president ial statements . Vhs is not an independent agency that is a part of the executive branch with the the president is over here they are over there but it is subordinate to the president so i dont see how the review process is this independent act. Here is why it is of the proclamation what is the primary purpose of the proclamation . Signed by the president. Thats true. With to official statements on the record and although i greet people see things differently even with deference in the light most favorable to the president is tricky to find a nationalsecurity rationale. You ask what is the relevance of the agency. This exacta recommendation made to a different president and ignore those talking not about the process or the substance. You think were not in the establishment clause with mccurry . That is the of purpose of the establishment clause the is a possibility nobody has ever suggested in a deliberative process of National Security and Foreign Policy concerns all of that could be set aside based on those earlier statements to what is the purpose of the proclamation so just to focus on the creek that was a religious practice had great emphasis on the of language what else was put up along side of it did not make much sense but a bolster them but didnt cause the solution but here without the prior history there is no argument this would violate the establishment clause so much better argument from a clearly is that the purpose is to avoid profaning of board the Supreme Court never said that violated the clause and the primary reason the exemption in the statue revealed a religious purpose it was more about leisure than religion with those redemptions of the of proclamation there is no way you can conclude this was a muslim bin and other that they accepted non immigrants that just doesnt make any sense but it does make perfect sense of the rationale that there are problems with information sharing with these countries and in order to deal with the risk of that but just as importantly to encourage these countries the president had tailored restrictions they found their willingness to cooperate so what makes no sense under the argument. Digest want to make sure that we are clear weve responded that the president would have to be flat out lying giving the position is he is not lying about what he said. He said what he said i dont think he is flying at all. He is saying exactly what he means notwithstanding that it can be read many ways but he says it over and over and makes it very clear he is telling the truth not that he is lying and i think that is the question. If the president is telling the truth the you have independent worldwide review that they just decided to do it on their own without any impetus what so ever we will leave that there. If he is telling the truth and perceived what he is saying over and over again how to really get that to determine when the you want to look at it in the show but in terms of reasonable observer . Again the proclamation that if he tells the truth the agency did engage in the process and did find they have been adequate information sharing practices that because of those restrictions they have tailored restrictions and are protected until they do so. The end objective is to keep the sanction safe from terrorism. And the president tweets that you have conceded our official statements of the president of the United States. And they could be subject to charitable interpretation. There is a tweak a month before the proclamation with them before the president tweeting misstatement that shooting muslims with bullets dipped in pigs a blog should be used to defer future terrorism. How my to take that charitably . The first point is thats not about the proclamation that at all. Its about deterring future terrorism which i thought you said was the goal of the proclamation. The proclamation is dealing with the said pacific problem, what the president said in that tweet about how to deal with actual terrorist, whatever you think it doesnt subject and a general bias against muslims, it doesnt suggest labetalol muslims because of the fear of the proclamation says the opposite. There is an adequate information sharing or other risk factors that undermine. Had to deal with that problem, a particular aspect of the broader terrorism problem there imposing restrictions to protect this nation until they do so. Thank you. [inaudible] [inaudible] [inaudible] [inaudible] good morning. The proclamation repeats for fatal flaws that didnt he zero two. First a response to judge hirsch this question. The president subjected the subordinate agencies to stick with his original architecture. That sees nationality as a proxy for religion. By design, with the president asked the agencies to do stuck with his plan. Let me assist question. What you tell me in light of the Supreme Courts actions to grant the stay and since day is essentially the same, of course you oppose the Supreme Court actions but i want you to look at it tell me what impact you think that is likely to have on the final resolution of the validity of the what we have in front of us . I dont think this court can take any substance from the stay order. It is a substance. And im asking you, youre saying you cant take anything from the, any indication at all . I dont think so. The Supreme Court was very careful not to say word about the merit of the equity. Seems to me to have granted a stand all the court had to find a likelihood of successful merit. I do not think thats right. Just because as we saw with the Supreme Court previous day, that one did detail there issuing the order based on the inequities. I dont think we can assume as suggested that the Supreme Court in this instance was seen something about the merits. In the meye normal case thats important fact. The Supreme Court previously did not address the merit related on it. And i think of this court can do is decide the case on the record and laws that finds it. So the Supreme Court followed the traditional process when they just omitted the factor about substantial likelihood of success on the merits . We cannot toe i had issued a stay. Your honor, the Supreme Court didnt rule vacancies that this court can simply judge this case is appointed. The Supreme Court to tell us that theyre interested in whatever we come up with. It might be that theyre just interested in us getting done with it so they can roll on. But they couldnt rule, the Supreme Court will do what it wishes. Im saying what your position is that we should not take anything on the fact of the Supreme Court granted a stay. I dont think you can. The second reason. You could read between the lines and think you are to be asking us to send it back to have the District Court rule on the merits. And come back up and then have the merits. The District Court did reach the merits. He dealt with a preliminary injection. He did not consolidate under 65 a to with the merits of the case. To make a full record and all that stuff is issues a privilege and things like the. Theres more than an adequate record to support. You can reach the statutory issues in which we didnt prevail. I think theres a record to do that. The Supreme Court did reach a decision to reach with dispatch. Before you get to the second reason, you said this proclamation continues the practice of a proxy by nationality. This is different in the sense that based on the space with the proclamation began with an assessment of a muslim majority nation to these fairly similar result with respect to the prior executive orders. Why doesnt that make it different and begin as a proxy by nationality bad . I think the government conceded just know that we should not be suppressed that we ended up with five of the six countries bands once again banned under the proclamation. Thats because even though the president directed this worldwide review of each count country, what he did in section 2e of the zero two was to say give me the list of your countries. In the design of the study. So he ordained the necessity of a list . He is not can be satisfied if the department came back and said we cant find anything . Thats right. Its coming up with a list of countries. We know because the president said so in an official statement. On march 15, the day the easier to was enjoined by two District Courts, the president said two different things. The first thing is that we have a big problems with muslims assimilated in the United States. The second thing is that i want to go back to the original and im going to go all the way. That statement he repeated throughout the summer and fall. Even before the results of the study came out the president said, im sticking with my original plan. That is to use nationality. This goes back 20 said before the election and was confirmed by his advisors they you do not want to talk about muslims that will talk about territories. What about the relation to the statue . If i recall your predecessor in the earlier case suggested if it were any other president the o2 would be okay apparently i was satisfy the statute is that your position . I think what we said as if you didnt have the record of statements it would be a different stat case. But, we, as judge keenan noted in her concurring opinion last time, theres less reason to doubt that based on the crossreferences of easier to an internal logic which it has in common, the proclamation says we have a problem with the information sharing from these countries. As a result theres a high risk from nationals that we will be a 150 Million People, the vast majority for muslim from six predominantly muslim countries. But the troubling statements from the president would your position be different if that were not part of the record . It is a different record but i think judge keenans view still holds true with the proclamation. Even after the study . It seems to me the fact that the government has taken great pains to investigate what exactly are the threats posed, that it arguably can be illogical, it can be flawed and a product that perhaps you would not be proud of in terms of cohesiveness that the president can do it if he makes the required signings as long as it doesnt violate the ina or the constitution. Since hes licked into the substance a limited to determining why this violates the ini or the constitution . It does violate the ina and constitution for similar reaso reasons. Really catches the . Were not limited because of the same reason this court we passed through the mandel hurdle in the record shows the proclamation make it easier to is not bona fide. The internal logic and being underinclusive to not having a nationality ban against venezuela and including somalia even though failed the baseline not including countries like belgium or the philippines that have been widely known. That goes to judgment rather than authority. But. On the establishment clause the proclamation suffers from the same fatal flaws we get past the mandel hurdle because on its face and taken in light of the statements the president made that he sticking with his original purpose to use nationality as a proxy for religion, we do not know that is not bona fide. Theres also evidence of the proclamation evidence to its four corners the because of the internal logic even the president send the whole premise of this is a nation has a problem that makes anyone from that threat, this is not legitimate. Putting that aside, its clear on the record the record had the president has continued to make negative claims against muslims. He said that november 29 statement is not connected with the proclamation. The white house official website youll find the statement of an official white house stuff spokesperson he said, security and Public Safety for the American People of the issues the president was racing with the streets, and hes been talking about the Security Issues from years, from the campaign trail to the white house. The president has addressed these issues with the travel ordered he issued earlier this year. I assume the same principles you describe in your brief and elsewhere, same record but the proclamation only covered syria, is there any difference . I think it was still be a problem because the president and Vice President had targeted syria in the same way and made the same connections. But how is that any different from what president regular president carter did. Its the structure of the proclamation holds, it violates congresses judgment in the 1965 act that we are not going to act on stereotype. What was syria for example or iran, both countries the only two on the list that refuse any cooperation with United States in terms of intelligence sharing, theyre full of folks from al qaeda, theyve been in various states of the civil war, are you saying a president , any president is simply not able to make judgments for the production protection of the nation . Certainly not, setting aside the statutory claim on the establishment clause would be different record if the president have to continue to make anti muslim statements. So even if its just syria were syria and iran is no change in your argument. On the same record including the tweets yes. How do you explain the fact that congress of the Prior Administration identified the same question countries, i think in the Visa Waiver Program similar problem for the very sames reasons, those very same countries with the ones not included in eo one and eo to come there also carried on into the proclamation in addition to chad of venezuela and north korea, you draw a lot of inference that either one identified all muslim countries and therefore was a surrogate whereas the very same countries have historically been part of the Prior Administrations identification of problems for the same reason, the lack of information, the fact that theres not good checks and its hard to vent and many of these terrorist groups are springing up in the countries. I dont see the logic we start with you zero one without looking at the prior history, you have to go back far. In addition, congress identified nations, not individuals and he suggests that they are prohibiting identifications by nationalities. That is precisely why we prevail on the statutory claim. Congress look at the factors that the president is asserting for the proclamation. The answer to that problem is that if these countries propose information sharing problems to let them participate in the Visa Waiver Program. But it also gives them right to exclude nations. The your honor that is slick thats part of power that Congress Shares with the president but i dont see how we are to be asking the questions rescued today was a right did he have enough information to see really protecting the National Interest if we screen whole country that has numerous groups these are judgments of the executive exercising sovereign power of their not the subject of court review that we want to conduct. And you seem to want to conduct. Seems like there is logic coherency, a selection of on countries based on identified data that some countries are subject to the restrictions and some are not. Thats huge in terms of a population. So the suggestion has a background noise that is driving your argument. That noise is the subjective u use. There two points i want to make in response. The president has great powers he is subject to the constraints that congress has put on him in the constitution puts on him. He sheds 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 seems that all we need to do is look at the face of the proclamation and say whether its rational and if so, the narrow exception that was granted within left with the background with the courts play an important role, we do not exercise the sovereign power of the United States. Thats an executive branch Power Congress shared that power and give it to the president of fullscope. And youre saying we get to ask him why. You can ask and the real reason. The Supreme Court reach the merits of the statutory claim the Supreme Court has been clear about how the president and Congress Share the power to regulate immigration. Congress writes the wall and they must follow. Congress gave them the power to suspend the entry of noncitizens. But he subject to restrictions and he subject to the constitution the Supreme Court reached and considered on the merit statutory claim about 1182. I contrary to what the government said they just said that the president was acting pursuant to the powers that be. They basically said that the president s prerogative. What it was about was whether the president was looking at the statues passed by congress. They said we construe and the refugees to which the u. S. Along these lines little bit more particular, what is the right of your plaintiffs are exercising and coming to court . I understand you relying on the apa, is there anything else you rely on to get into court . Were relying on the apa and a large number of cases including. What is the substance . Are you looking for freestanding constitutional claim . The government doesnt contest that they can review. Answer my question. And chamber of commerce versus rush, armstrong and jameson more the Supreme Court made clear the courts have the authority inequity to join an executive Branch Agency when theres a claimant that the president or executive branch is violating the law. Whether statute or constitution. We see in cases i thought armstrong suggested it had to be connected to a cause of action. Sounds to me like youre trying to file a bivens type of action under the first amendment. A freestanding clay that were being discriminated against under the establishment clause jurisprudence. Not sure there is a claim. Were not making a bivens claim. Is a freestanding constitutional claim. Because the plaintiffs did not have a way into court there is no such cause of action created for you and i want to know. The court has already across that bridge. First of all our decision on easier to is vacated. But the majority still applies. In case after case the Supreme Court of federal circuit courts challenging 1182f policies have reviewed the statutory claims. It doesnt give you a cause of action. It also doesnt create judicial review. It doesnt need to. So somebody violated 1182. The majority of the court was correct when it said its the core function of the court. I disagreed with the majority. Whether its lets go to your position, not what the majority did. On the statutory claim under chamber of commerce is clear that if theres a claim the president is not following the statutes passed by congress, corker reviewed the decision in equity. Thats as a remedy, doesnt create a cause of action, you dont have a cause of action under the ina. The only place you tried to get a cause of action under the apa which is dicey some freestanding claim that what the president it is unconstitutional, therefore i can be in court. Thats not the way it works. The government doesnt even argue. We have subject matter jurisdiction of a role in the system. As you know, the three branches have their defined rules and were acting fairly aggressively to this rule. Theres not a single case that actually stands for the principle that our claims with her constitutional statutory they all reached constitutional and or statutory claim related to the president s power. They basically reached the conclusion that they you dont have these in this case the Supreme Court will address and i will tell you one way or another. The fact that they address it doesnt mean you have a cause of action. In other words, courts have a right to decide their own jurisdiction but not a right to go beyond it. On the statutory claim the ninth circuit has ruled there is a cause of action under the apa and inequity. Is a your position that there are no findings in the body or on the face of this proclamation that says whatever findings appear in the body of that document simply misaligned, which one is it . I think its both. The president doesnt evoke magic words that the entry of these 150 Million People would be detrimental to the interests of the United States. If you look at his actual findings, for example in section 1h, one i am sorry 1h roman i, he says the restriction limitations imposed are necessary to prevent for nationals by whom we lack information. That is just a basis for some of being excluded from the United States under 1182 a. Congress has already decided what to do, theres one critical finding thats missing from this proclamation. The president basically said, the comprehensive and detailed system for admission of noncitizens to the United States with individual is ready and the Visa Waiver Program is insufficient. The beginning of the proclamation says, i hereby find that absent to action set forth immigrant and nonimmigrant entry of persons described in section two would be detrimental to the interests of the United States. And their entry should be subject to certain limitations. Now. Others the magic words youre talking about . The president invokes the magic words, but the point im making is internally its illogical. The for the detail he gives elsewhere shows he didnt actually apply the baseline factors to see included somalia, he didnt make a nationality ban against venezuela, only to certain government officials even though they feel the baseline. And, hes letting a lot of people from these countries. Even though the justification is you cant trust anyone. The proclamation is different from the iran and cuban examples. We believe nationality discrimination is prohibited. Even if you think there are some instances where nationality based ban is permissible, president has written a ten page proclamation completely unlike the few lines president s used to justify cuba the penalize him for being thorough . What he cannot do under 1182f is to rewrite the laws passed by congress. The proclamation represents is a rewriting of 1182 a and all the other sections that provide for individualized vetting. Congress has said they have looked at the factors the president looked at here and came up with a solution which is they rejected in 2015, congress looked at the same problems the president is asserting here. As for the same countries and they rejected the idea of the country based ban on a mission. They said were gonna stick with end of the lives vetting and go after the people who are not nationals of these countries if you travel to these countries are do a National Holding a u. K. Passport that also has iranian passport, you go through regular vetting. What about the president s assertion this is intended to be a bargaining chip to incentivize these nations to cooperate. Of the best answer is to what he did with venezuela. If you have governments who are doing their best but are not have to snuff you can do a venezuela tight band we say these government officials are not cooperating with the United States soil bar you for coming in, i think that is permissible. You can also do it congress recommended witches to get assistance to the countries who are having trouble, like somalia. So you it even banned the nationals in the state of war . I think the state of war is different. Wise theres a different framework . Your sort of saying the president can exercise legitimate Foreign Policy. This but not if he does this. If he treats the nationals in the top government its okay another words, youre making judgments about Foreign Policy which you are making for an alter your purpose. Im not making those limitations. I hear you making these. Talking about the actions by congress. Will then 1182 a sodas 1182 1182f1182f they said the president has broad discretion i will give him discretion to act as that. Subject to the requirement he make a finding reviewable by the federal courts. We get the right to review the president s Foreign Policy decision. Hes relying on some non review cases. Im asking you where you get the authority to state that it subject. The Supreme Court has said so. What im not sure it said that. It was argued there is no jurisdiction for various reasons they went ahead and decided that im not sure theres a decision on that, which you grew that . I think in hopes. Then you ought not cite it. Having trouble understanding the statutory argument. The complaints you have about it seems that i agree doesnt sound like we can really say to the president , urological here. See argument structural argument . Congress set out a procedure and its because you have not complied with that procedure mr. Theres two main arguments, the first is the president has not made the requisite finding secondly, what 1182f can possibly permit is the president to rewrite large sections of the ina the other statutory argument is 1152 a and the overall purpose of rejecting this historical practice of the United States to have National Origin quotas those a categorical decision as part as other comprehensive civil righ rights. Under your theory of the case, tell us why president reagans proclamation or president carters would have been valid. There clearly nationality bands, they were indefinite. Whats the difference between those in this one . First, no one challenge those. Im ask if they were abou va. I dont think any nationality bands are valid dont have to buy that to accept our argument, with iran in cuba the president s were acting in response to circumstances with a bilateral crisis. Thats not in any of the statues or cases. Stress something the District Court and you have put forward. Thats not part of the law. Im just trying to explain why you can read the iran van. It would have to have been a valid theres a way to read them in harmony. I believe they prohibit nationalities if there is an exception to 1152 a and then rewrite. Its where there nationality simply off the table with respect to any action the visa issuance. You have to say president reglan president carter violated the statue in the issue those proclamations. Your honor, i think they did but you dont have to agree with me to agree with our argument. The reason is, the iran in cuba situation if you look at the text they were just a few lines. Congress had not considered the specific situations the president say they have to deal with this diplomatic crisis. So if the president ended his proclamation you would be all set . You would agree with that . If he just says were going to. I think the scope also matters. One question is, is the president trying to return to the national National Origins quota system the congress categorically rejected . Hes addressing the admissibility under 1182 from his distinguishing among muslim countries. He is identifying criteria that distinguishes them. The fact they cant get informations about people in many of the groups are not suppressing these groups. These particular muslim countries for mother muslim countries which were considered and not included. So i dont know the logic that follows that says hes not banning them because muslim countries are muslim. As opposed to other criteria. We know that because the president says so. I would note that even though he has not banned other muslim countries in section 4c he gives the power ten more countries. The purpose of e01 in a zero to us to set up a system to collect data. And he built on prior countries that were suspect. Every country was included in prior findings except for iraq. It was a 90 day beta collection time. This is an analysis that distinguishes between countries and applies criteria that are in the National Interest. Your suggestion that hes just using the magic words is very strange. He said if it were for his statements made during the campaign and otherwise it would be fine. It would be a different case, your honor. How about if another candidate one you wouldnt even be here. Thats not true. If they made the first. I think the point we were making is we didnt have a record for statement we can see the year two was nature on its. And now youre backing off that. Reported that the deficiencies of the four corners of easier to that judge keenan picked up on the concurring opinion supposed to see whether they make a judgment. [inaudible][inaudible] [inaudible] so that statements are hostile toward islam including august 17 story that judge ackerman. In the three tweets last week that the president tied to the new band. Finally, the president once again speaks in vague words for National Security. I continued not only to repudiate the previous stateme statement, he is also double down to triple down on the hostile statement. On march 15 there is assimilation of muslims in the United States was hard. November 29 he retreats three videos that are anti muslim. And your honor, on that record you have an approximate litigation that is on the query which is not sufficient. If the government is writing about justice ability the scope of president ial power, then he could promise a ban on muslims throughout his campaign and then declare that hes carrying out the Campaign Promise blazing nationality as a proxy for religion. Let me follow up on a question, what would be the standard that they would use in this instance to determine whether or not the government has in fact cured this unconstitutional action. I think the standard is the same through all of these and this is common through larson and others, is the primary purpose the manifest objective to favor religion, thats a test. And now this has been augmented. What about the fact that the government says well we disagree these systems are unanimous and even if you take this says face value, they point to present subordinates and say you have a question their motives and you conducted this review. And on the face of this as you can see will be a more difficult case, with that be correct . Which was by using nationality. I asked this question last time he is so intent with all of the statements that he was doing other than complete the entire muslim how would you deal with that . Absolutely is the result with 150 Million People most of them are muslims his ban does not affect 90 percent of the muslims in the world . That doesnt matter. He could under more add more countries but he has been and. But your honor a the purpose is to disfavor he need not ban every single one. I heard the number 150 million but theres over 1 billion. If your honor if you take the face of the order continues to ban the six predominant countries taken together over 95 percent muslim that is a hundred and 60 Million People so he threw into non muslim countries for good measure one is the nationality it is very targeted and the other affects less than 100 people. Let me ask the court applied the analysis and said the government has not shown the National Security interest could not be addressed without debate and. Without the ban so what type of alternative in National Security interest is acceptable . There is the venezuela type to address the problem is asserting of governments that are Non Cooperative and the answer on the National Security front is what congress has enacted and stuck with in 2015 the individual lives. But this is a case by case labor provisions. And the president s criteria for that waiver process. But it is the individualized basis . Any individual can apply for a waiver . There is a waiver available your honor. It is also inconsistent with what congress enacted. How important is it your document at that point . Is that a crucial distinction . It is a very important consideration in a couple of different ways the way it came in to say the reason that the yen is okay the president was repeatedly set to get even tougher. And to see dont have any substantive finding. So that is a different situation. It is also relevant under 1182 that the statute in terms of suspending for a period of time. Temporary rather than in definite does that make ted difference of the outcome of the case . Know your honor. We still prevail on the statutory claim. But it does show that now it is indefinite with new countries being added it. It does distinguish this proclamation from every prior proclamation. Nothing else any president has ever done looks like this. The reasons for the restrictions then with the periodic reviews, what is that included four . With periodic reviews we have to follow the same format. We assume that but it dont you think if the review turns up those restrictions are no longer needed with the implications would be lifted . It is possible but the president s criteria because it does not apply consistently, we dont know. It is a white box and it should be we are committed to the department of state and of president. Except the government is relying on that box so does that steady . The answer has to be no. But they say the proclamation is issued in the interest of National Security and order to identify persons who can challenge the safety of the country. It is a difficult problem as experienced by many countries with the disturbances in the middle east. Kenneth those conditions no longer exist to assume on the face of the proclamation with the periodic reviews is still part of the original message as a proxy for religion there is nothing on the record that is the original purpose starting march 15 and continuously through the summer sticking without purpose. And i want to add if the government is right that this is the scope of president ial power in the persian words of Justice Jackson that it would be a loaded weapon. That is the precedent for the ban. And it is contrary to the establishment clause and the basic structure. You have five minutes reserved. Reserve . [laughter] the first is the fault of the government not having findings in the interim but now the government has made those findings it is not like those that had never come before him. If we ever had this sort of detailed level of investigation the findings here talk about those entry restrictions and the District Court recognized. Now we