It please the court. At the injection strongly signals the proclamation is fundamentally different than the prior executive order. The proclamation reflects a multi agent worldwide review engagement and recommendation process. Its subsequent findings are that eat [inaudible] that werent tailored three restrictions in order to encourage those countries to improve their practices to protect this nation until they do so. In light of the fact the standards for stay in standards for literary induction are seriously the same with you tell me what you think the Supreme Court actions on monday in issuing this day which you solved, why do you think or how will that play on the ultimate resolution of pulmonary junction in front of us. Your honor, i think the primary element of this day as plaintiffs themselves have urged the spring court in urging the stay is that we have to show likelihood of merits. We know in a minimum they have a likelihood of success on the merits i would submit that in these circumstances where we know what the Supreme Court and how they struck the equitable balance last time the fact that they get into the complete stay in the circumstances. Strongly signals they think its more than just a mere likelihood of success but theres a pretty good indication that the fact that they stay the injection across the board they start the preliminary induction as well . I think its a strong signal. You can never differ too much from what the Supreme Court means an estate when they dont give reasoning but i think thats a pretty strong signal, your honor. Think is because of the critical procedural and substantive differences between the proclamation and the prior order. In light of those differences the proclamation falls within the broad statutory and constitutional authority. Indeed the District Court actually agreed with us that the proclamation but as the executive order the print Supreme Court at least early on they had that state to. Im sorry, your honor . As to executive order two they left out almost all of that standard, as well. The stated in part with respect to the individuals who did have a bona fide which we do agree with we make that to mean we have a likelihood of success. As aisen can you pull your microphone or talk louder, one or the other. Thank you. This court agreed with us that the executive that the proclamation satisfies the requirements of 1182f and id like to begin there. You mentioned the critical differences between the proclamation now an executive order to. Could you delineate for me what you think are the most important critical differences. Yes, your honor. Its a procedural component and substantive component. On the procedural side the critical difference is that this would involve a multi Agency Process where under the executive order the president instructed these agencies to determine what if any they thought was missing from the information provided by. I didnt read the if any into what the president directed to be done and he directed that that certain countries be found to be banned. I dont think thats right. If you look at section 2a not that certain countries but that which countries should be banned. If you look at section two a of the executive order in the exact language its whether there is information that Foreign Governments are not provided and it didnt say there is information. And it didnt say if any, either, correct . If any was lost on whether, your honor specs when the proclamation directs that the secretaries provided a list of countries that would not comply with requirements of the population is not an edict in your mind that there has to be an affirmative list that following review there may be some or many or none to appear on the list. Thats right, your honor. I think that is true three with. The first is as i said section 28 identified whether there was information that was missing and it section to eat when asked for the list says appropriate categories of nationals from countries that are providing the requested information so there were no countries that were not providing the requested information by definition and even if there are countries that are not providing robust information and expressly says appropriate categories and we know the agencies to get seriously because for example, iraq was found to be not 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 this is not some sort of preordained vision and we know that the agencies have expressed discretion under the eo to make a recommendation to the president of which countries include and the exercise that discretion and they didnt just omit for example iraq and turned to the substantive part of the differences between these executive order. Its a very tailored restriction and they omitted sudan in iraq from the earlier decisions even with the countries that they covered they had exemption for nonimmigrant visas for several of the countries and in reading the proclamation. As i understood it one of the primary bases in imposing the ban on the seven countries and differentiated by classes does the hope and expectation is a change in processes for these nations in improving their information during practices and im still having trouble seeing how this bargaining chip coercion is at all necessary length of the finding that the entry of the whole class of nationals at 150 million plus would be detrimental to the United States. Can you me with that . It is a traditional exercise of the use of 1182 asked to determine whether a Foreign Government is engaged in harmful practices it can be deemed detrimental to the National Interest to allow their Countries National that it is precisely for example what president carter did with the iranian hostage crisis. That issue wasnt educated there that is, your honor, bless this course is to say that both president carters [inaudible] for their reading hostage crisis and present reagans for all cuban immigrants during a diplomatic deal with cuba were also unlawful. But those were all decorations proclamations of a different order. This is a wholesale man of 150 million plus nationals based on the hope and expectation that this will incentivizes nations to operate. The connection there is missing. Just like president carter restricted all immigrants from iran from entering because of the hostage crisis no one was suggesting that every immigrant from iran was a threat at all to it is little and connected to the iranian hostage crisis but the point of the order was because the iranian government is engaged in harmful practices we are going to impose restrictions on the entry of their nationals and so too with do we already have restrictions on entry contract if you dont have the sufficient information necessary you dont get a visa so what why this additional prophylactic measure . We have many systems but those made by the agency here is that Foreign Governments are not providing sufficient information to allow that betting to occur. Investigates the conclusion is the entrance the national disaster. That is one possible response but it is not the only response and nothing in the 1182 asks or in the closet imposes a narrow tailoring of these restrictive alternatives and its entirely permissible. Even in the fact that it be exceptions for entry that congress cheerfully calculated throughout. I think that is right, your honor. As courts have repeatedly recognized 1182s is a recognition that the president can impose additional sections over and above and they are limited and can this be done indefinitely as the president has done here . The statute says for for such a. And i struggled to find a dictionary definition that said a suspension is for an indefinite period of time. Can you explain for us how the indefinite man complies with the language of the statute not what has been done by other president s but how does it meet the statutory grant of authority . The first point is that the statutes as such. As he may deem necessary. In this circumstance when the problem that has arisen is the countries arent giving us sufficient information is entirely permissible to say that. The last at least potentially until they correct the deficit but the order doesnt even go that far. With the order actually says under section four is that every 180 days the president will in the agencies will revisit. But theres no sunset provision. Theres no sunset provisions. But it is in place essentially forever unless he says otherwise is that correct . No, its on place until the country approve their practices or able to keep the size of change but let me ask you another post. Lets say to the study contains information which is likely to be true that most terrorists are people who commit terrorist acts are meant. For the president then ban all men under the express authority granted by 1182 asked and he could he ban all men until evidence showed further that men are not the ordinary and customary perpetrators for terrorist activity. I dont think so, your honor. Why not smart. Because i dont think using gender as a if you cant use gender then there is a question of violating section 1152 is that we are driving next to expect no, what i was driving at is under mandel under the restrictions of [inaudible] have to be for a patiently [inaudible] its 90 of terrorist acts are committed by men arent really protecting this country we just keep out the men. In general, under constitutional law you cant use for been in trade as a proxy for you to target the actual product they are worried about. And nationality is not a proxy target it is not a classification for the federal government with respect to immigration law. It is rife with [inaudible conversations] 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 never wouldve use the language of insurance visas because of clear under the ina that the issuance of immigrant visa does not entitle anyone to enter the country. You always still have to be admissible and if congress intended to implicitly repeal the President Authority under 1182 asked to allow the entry to suspend the entry they would never have used the language in the immigrant visas. I ask your question mark in your view can the president use 1182 asked to promote or further any foreignpolicy justice that he might think is acceptable. This one is arguably related in the sense of the report talks about the leading deficiencies but if he wasnt happy with the nation for some unrelated reason regarding foreignpolicy executive that he would then say i plan these seven or eight nationals from this country in an effort to promote my foreignpolicy. I think the statutory language is whether its in the National Interest and i think hes trying to accomplish foreignpolicy executive and is presumptively going to be not at all related at least in this case related to the improvement of vetting process. Its arguably related to immigration context. I think that is right, your honor. Again, i understand that president carters iranian proclamation was challenged but both of those orders had exactly that feature that because of foreignpolicy disputes the government the president restricted the entry of immigrants from most countries without any suggestion, any suggestion that the individual nationals were subjected to that restriction had anything to do with the foreignpolicy of the government. This is stronger than that because here the concern we have with for government is about their failure to give information about the National Entry we are not researching. The case is much much stronger than the prior historical examples of the use of 1182f. I have a threshold question because i want to make sure i understand the justice argument that you make. Is that meant to include an argument that the plaintiffs the statutory claims under 1152 in the apa or the constitutional claim that they do not have standing in this country . We have made in article threepoint his argument, your honor, but our primary interest arguments are on [inaudible] that in particular on the statutory side statutory claims challenging the restriction exclusion of aliens abroad are not reviewable unless congress has expressly best otherwise in here congress is not done so. The constitutional claims that an alien the us alien abroad has no cost to right. Are you making a righteous claim or standing claim or merging both . It is recognized are fairly related and in this context i think the nature of our righteous objection is also an article three lack of imminent entry in the basic point is that our lesson until an individual alien sound otherwise eligible to enter and is designer waiver they are not affected by the proclamation that is our. Is that your position that the court cannot review this proclamation for validity. No, your honor. What i was saying was that on the constitutional side our argument is. Lets take the test recite. Is it your position that the president can make it any [inaudible] detrimental activity and find that they should be excluded for National Interest and we cannot review that. Is that your position . That is our position. Can you cite me the case where congress has stripped off 1331 jurisdiction . I would point to two cases, your honor. The spring courts decision in [inaudible] in both of those cases recognize that we are talking about a statutory claim the restriction of aliens abroad is entry of aliens abroad is a fundamentally politically informed policy judgment that is not officially reviewable unless congress has provided otherwise in that is clearly the rule when it comes to law officers. Counselor officers reflect the entry of aliens abroad even by misinterpreting the ina that is simply not reviewable unless congress provides otherwise. [inaudible conversations] hasnt congress made it clear when they stood our review ability several times, sole discretion not reviewable and other parts of the statute 1182. I think 1182 1182. I think it has language itself further confirms that it should not be reviewable but. How so . Because the language is raised as if the president finds that it is not in the National Interest by using the phrasing at the president finds it so the president has to find something it means that its reviewable. I dont think so, your honor. So were the findings for. That is the statutory constraint. Just as in webster versus [inaudible] the government officials. [inaudible conversations] its a strong that doesnt mean that. Reviews a constraint. The president takes an open office. I understand that. It doesnt mean the president doesnt have to follow it. Where are the teeth that would say he cant if you say that courts cant another branch of government we cant, who does . To think, your honor. First is the first and primary teeth as the president takes an open office as an independent operation to comply with the constitution and laws. He takes accuracy. The second, i would say, is that congress. No one. I dont think this court should lightly suggest. Im just saying that it started generate 20. Im suggesting that the. To the point number two. The point number two is congress has the ability to review what the president is doing. Were talking statutory claims. The delegate to president and then theyre the ones who decide whether or not did not involve the exclusion of aliens abroad. The discussion of aliens abroad are is a very narrow set of circumstances where sprem accurate recognizes unless congress provides otherwise there will be no review, and up like in which hadda the president has issue i inherit authority when comes to exclusions. The power comes from congressional power, does it not . Thats not correct. Look this exact argument was made. The argument was made that the congress had improperly delegated the authority to the president to exclude aliens, and the Supreme Court said that is not true, that the president has inherent executive authority to restrict the entry of aliens abroad. You are seeing under 11. 52, which clearly in 1965 was a policy we would not discriminate, national discrimination, the president can just say, i dont want to do that . Well forget about that and i can have every country excluded and you said, theres no reviewability of that . Is that correct . If the president were to do that, it would not be reviewablebut, again, the president would have to make a finding that it was detrimental to the National Interests. That is not what we have here. What we have here is the president found that eight countries have specific National Security and Foreign Policy problems and in responsible to the problem he is potentialed an entry restriction, precisely what president carter did for iran, what president reagan did for cuba. No one argued the entry restrictions in one challenged those. Thats right. This is under challenge. That is correct. The fact that no one berted to challenge it strongly signals how weak the claim is. If you look at the legislative i those at that time what you said the major reason it doesnt apply. I the issue as soon as of the visa not the entry and a response to judge keenans question on gender, you said, well, gender doesnt apply because its one of those broader classifications that deals win discrimination, like race. So gender is one you cant use. Why would congress put it in 11. 52 . Sounds like its already colored, gender and race is covered even with the issue shoe of this visa and entry. Why is it in 11. 52 . Yourself, the point i was making to judge keenan ime question is why is it in 11. 52 if what you say to judge keenan, that gender doesnt apply because its one of those classifications they cant do it, an insidious, i like race, you can use nationality. Why have 11. 52 apply to race and gender because you dont need it there. A lot of statutes that president hunt thing why is it in 11. 52. Because congress was passing a statute that bolster what the constitution in part also prohibited. The other important point is 11. 52 is focusing on the issuance of immigrant visa. What they were trying to wipe out he prokeis. Didnt kneed. Already had. Om forgot you gave the answer to judge keenan, already had that. You cant use raise, the president s can do this, he can do it also in this instance as judge prager indicated on this basis, too. Your honor, a lot of statutes prohibit what the constitution prohibits. Im not sure why that would undermine the argue. I was making but are in 11. 52, the legislative history makes clear,