The honorable judges of the United States court of appeals for the Fourth Circuit. Oyez, all persons having any manner or form of business before the honorable United States court of appeals for the Fourth Circuit are admonished to draw nigh and give their attention. God save the United States and this Honorable Court. Chief judge gregory, and may it please the court. Mr. Wall, if i can ask you before you get started to clarify what you view this scope of the preliminary injunction to be. I have two questions. The District Court order enjoins section 2c of the executive order, which suspended entry. During the District Courts discussion of success on the merits, the District Court said that suspension of entry under 1182 did not conflict with section 1152s barring discrimination in the issue of visas, of immigrant visas. Here is the question. Is it your view the District Court injunction enjoins the suspension of entry provision as well as the denial of visas, and does it apply to both immigrant and nonimmigrant visas . Mr. Wall your honor, i think the answer to both of those questions, as i read the order that the District Court separately entered, is yes. Now i think the reasoning of the courts opinion with energy would indicate that this injunction of suspension of entry cant stand. At most, it would justify an injunction that would force us to give immigrant visas. That seems to me the reasoning of the District Courts opinion. But as i read the District Courts order and the end of its opinion it said, im enjoining , 2c and operation across the United States borders and at every point of entry, not confluence, not issuance of visas. But you said section 2c. That is the injunction we have been complied with. That was the basis for the violation of the establishment clause . Mr. Wall yes, that was the basis not based on the statutory violation, as i understand it. Mr. Wall thats right. I mean, i think his statutory analysis would suggest he could not have entered this injunction, but i think he did ultimately enter the injunction under the establishment clause claim. I think that is how we got to suspending entry under 2c. Do you then accept the issuance of the entry . Mr. Wall so here is what i , say. The 1182 f gives the president Broad Authority to suspend the entry of, it says any class of , aliens when he deems it in the National Interest. 1152 separately deals with the issuance of visas. The way that the state department has always read that is to say, when you are suspended for some valid reason under 1182 f, we are going to deny you a visa because it does not make any sense for you to travel here and then to be denied entry at the borders. The reason is not the underlying entry for the 1182 f suspension. It is just the fact you have been validly suspended under 1182 f. So what we would say is no 1152 , is not 1182. 1182 has always been implemented through the denial of visas. Forcing us to grant visas so people could come to the country and then be denied entry, we would say is a fruitless exercise that the state department has never engaged in. But doesnt conflating 1182 and 1052, doesnt it render 1152 superfluous . Mr. Wall i dont think so. 1152 applies across the board in circumstances well beyond suspension where we are just handing out immigrant visas. And what it was designed to do was set aside the nationality limits that had existed before the amendment. All this does is it says i think the d. C. Circuit said this in the narrow context of the president s sweeping power under 1182 f, it says, all right the , president has the power to suspend entry. We know that under 1182f. We are not going to read 1152 in that instance to force the government to give out visas that we know it wont honor when they show up. We are going to say, when you are denied a visa under 1152, it is not to look through to see the reason. It is just you have been validly , suspended from entry under 1182, and that has nothing to do with nationality. Does that reading is is supported by 1201g, or does section 1201g serve a different role . Mr. Wall i think it is supported by 1201g. We pointed this out in our opening brief. What 1201g says is that a visa does not entitle you to enter. It is a travel document that says you can come to the United States, but we can look at the border and see whether we will admit you. A customs official who has a reason to not let you in can deny you entry. I think 1201 supports the view that if the suspension is valid as a statutory matter under 1182f, we should not read 1152 to force the government to give you a visa. But again even if you bought , that distinction, it would justify a very different injunction from this one. It would just be an injunction that says, for the 30 or so of aliens here who are seeking immigrant visas the only thing 1152 applies to we would be forced to give them visas we would not have to honor when they showed up at our borders. We would say that is harsh and fruitless. But at most, that is what the injunction would get you. In real world terms, what does this injunction stop you from doing that you could have done otherwise . If these folks go through the normal process does it net them , participation in the process . Does it mean they get on a plane somewhere and can get off the plane at the customs area . Does it allow them in the country . What is the real net gain for somebody under this injunction . Mr. Wall yes. When you are talking about the six listed countries, so iran, sudan, somalia, libya, yemen, what the injunction does is we what the president wanted to do is say, i want to reassess vetting procedures for those designated countries, which were designated by congress and Previous Administration. I have got all that, but what does it mean . Mr. Wall it says, look, mr. President , you cannot treat those nationals any differently. You have to give them the visa just as you would a national of france or germany. What you cant do is say, im going to suspend your entry unless you qualify for a waiver. When they get the visa, what does that entitle them to do . Mr. Wall it entitles them to get a plane and come to the United States, and when they arrive, unless there is some specific reason like a National Security threat that the customs official detects, they are admitted to the United States. That is the effect. Mr. Wall, with respect to this vetting procedure this , reassessment of vetting procedure, it has been more than 90 days since the first order was implemented. Has the government made any effort to engage in that vetting procedure . Mr. Wall we have not been able to, but not because of the result of the injunction are you writing briefs . Mr. Wall no, judge. Because the judge only enjoined 2c, but the district judge in the hawaii case joined all of section two and section six, and section 2a directs apartments to the departments to conduct a vetting procedure with respect to these countries. We went back to the hawaii judge and said, look you cant , possibly have meant to enjoin internal governmental procedures to look at vetting for the six nations, and in the face of that motion, the district judge said yes, i am standing by my injunction. All of section 2c. We have complied by that injunction. We have put our pens down. The 90 day has not been able to run it all. What about the 90 day period in the First Executive order . Mr. Wall so, judge, that is an excellent question. When the first order came out, the state department of Homeland Security did begin to assess the vetting procedures for these designated countries. They did not finish that review, but they did some work on it. So you are not going to need the whole 90 days. Mr. Wall the problem is, as soon as the second order came out, there was an injunction before it even took effect, so they put their pencils down. How much time they need to finish, i dont know. But the point is since march 16, we have complied with the hawaii injunction, and we have done nothing to review the vetting procedures. That is 50 days after the First Executive order, before the second went into effect. It was about 50 days. So 50 days of the 90day period. Is that correct . Mr. Wall that is right. We did some work you say you are not doing it because you believe you are for idden by theorb order to do it . Mr. Wall we went back to the judge in hawaii and said, surely you only meant to suspend the entry of nationals under 2c of the olympic countries and refugees in section six. Surely you could not have meant to enjoin the operation of other provisions not the subject of the briefing and are internal to the government, and the District Court in the face of that denied our motion. And we have read, we have taken the injunction by its terms, deeply disagree with it, but we have scrupulously complied with it. Let me ask you a question going back to the visas. Make sure i understand it. If 2c were in effect and application were made for a visa by someone from one of these countries, how would that be handled . How would the request for a visa be handled . Mr. Wall if you were a Somali National and came to a consulate and were seeking a visa, the consular officer would, as with anyone else, look and see if you satisfy the other criteria to get a visa. Because there is lots of other grounds in 1182a that can render you inadmissible. Criminal record, ties to terrorist organizations, and all the rest. If you satisfy all of those, if 2c operated, what the consular officer then would say, are you eligible for a waiver . The baseline is you are suspended, but if you have a close Family Member in the United States, or you have done there, or going to study their, there, you can get a waiver. On the current system, we are not doing it individualized on a waiver basis. You are treated like everyone else. If you satisfy the criteria, you get a visa, even if you are from one of these countries. And i think that is sort of a crucial point. The congress and Previous Administration designated these countries. It wasnt done by this administration. On the basis of National Security threats. What the president did when he came into office was say, i know the Previous Administration was satisfied that that was enough for these particular countries, but i would like an opportunity to reassure myself that we are doing enough with respect to those countries. You are saying the Previous Administration did what with respect to those six countries . Mr. Wall it took dual nationals and travelers to those countries, individuals with connections, it took them out of the Visa Waiver Program. So it said, unlike nationals from other countries, we are not going to allow those countries in their entirety . Mr. Wall dual nationals and even just visitors only those six countries . Mr. Wall just those well, yes seven countries including , iraq. Those seven countries, yes, and it said for those, we are taking them out of the Visa Waiver Program. We are going to make them get visas. This administration said, that is well and good, but we are not sure that the procedures by which we are giving them visas are reliable enough, because we are not sure those governments are giving us good enough information. We want a 90day pause similar to the check make sure it is , enough. At bottom, that is a policy judgment for the administration to make, and a number of the arguments the plaintiffs are making are in essence tackling that policy judgment. They deeply disagree with it, i understand that. It is a difference of degree, not kind from what the previous it seems to me they are not attacking the merits of the policy as much as they are questioning whether this really is the policy behind this order. Isnt that right . Those are two different things. We of course customarily defer to the executive assessment of National Security, but that is different, isnt it . Whether that is really what is going on here. Mr. Wall it is, but i think it is important to make sure the Legal Standard the District Court should have applied. Im sure you found the one individual plaintiff left has article three injury and has credential standing to raise a claim, but assuming you disagree with the standing, you go to the merits. What we would say is the question is bona fide. This court and others have said that is basically rational basis review. The question you would ask under rational basis review was, was it irrational for the president to decide, i want a 90day pause to take look at these procedures . And as long as arguments are framed in that context, was this an irrational judgment . No reasonable Government Official in the executive branch could have made this judgment. We have no objection to them. But most of them, they are framing under far more stringent standard. How did bona fide get collapsed into rational basis . It seems to me that the mandel formulation talks about what is the ration the facial rational, and also what is bona fide. Those are two different things. Mr. Wall they are, and i think there would be an interesting debate to have about what bona fide means, except for what mandel said and what it did. Because after it said facial was there any evidence in mandel, Public Statement on the record, that called into question the purported rationale for the decision in mandel . Mr. Wall two quick things on that. One, the court after it said facially legitimate and bona fide, they said they would not look behind as long as it was facially legitimate and bona fide. It has to bear relationship to the conduct. It is not subjective motivations. But yes, there was. Justice marshall in dissent said if the court would take just the eak, he said you all , see that the attorney general did not deny mandel a visa because he had failed to comply on a previous visit. He denied it because he was a communist, and he wanted to come to this country and talk about communism and marxism. Judge marshall said the evidence was there if the court would just look at it. And the court said no. When the executive puts together a reason that is on its face legitimate and bears a relationship to what it did, we are not going to go down the road of inquiring into subjective motivation. And that is why that supports the legitimacy of this on its face. Mr. Wall so the order lays out the conditions in these six nations. The original order did not, but the president went back, and in redrafting the order in response to courts concerned went through , the six listed countries nation by nation in section one, and said, here is why i think, that based on deteriorating conditions in these countries and their governments unwillingness or inability to provide us with reliable information, i am going to put a temporary pause while i look at our procedures for just these six countries. And i think that evidence in the order, on its face, bears a rational relationship to what the president did. If you treat it as rational basis for review, which is what this court in johnson said the mandel standard is, rational basis review, and other courts have agreed with it under rational basis, i dont think there is any question that in any other context, if we had a law that set out factual findings like this, we would say that survives rational basis. So going back to judge kings question that there were 40 there were 50 days that elapsed in the 90day period. So the government had 50 days to do their vetting, presumably to add more to the record. Has any, was anybody done in the 50 days . Mr. Wall judge factor, i think the first part is right, but i want to disagree with the second. We did do some work. Those departments were required to produce a report for the president. Im sorry . Within 30 days. They were supposed to give a report to the president. Mr. Wall thats right. But part of the reason, judge king the 90day period exists is , to free up resources to do the review. Instead, what we have been doing since january 27 is just litigating this order. We do not have that report yet, so i cant say to the court what the state departments and Homeland Security departments final the District Court in the ninth circuit only enjoined sections two and six, so you still have sections four, five, eight, and nine directing the application of iragi nationals for entries should be subjected to thorough review, uniform baseline for screening and vetting, all those things are in order now. You have got this uniform baseline for vetting and screening. You have expedited completion and implementation of biometric entry exit tracking systems . Mr. Wall my understanding iraq , is no longer part of 2c. There has been work done on iraq, and there has been this is the most important thing you just cited iraq how does that show you are furthering the terms of this order . You said you could not further two and six because they are enjoyed, but im talking about for, five, eight, nine. Mr. Wall i only meant to say the other sections have not been enjoined and we are moving forward. The most relevant section is section five, which is we can look at our vetting procedures for all nations across the board, and we have been doing that. My understanding is that there has been substantial progress in state and Homeland Security. They have not released anything, yet, but have done a lot of work on. What they have not done is anything specific to the listed countries, because we have read ourselves to be barred by the hawaiian junction to doing that. There is work goi