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tv   4th Circuit Court of Appeals Intl Refugee Assistance v. Trump  CSPAN  December 9, 2017 12:45am-2:50am EST

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start park. >> they said the battles of saratoga were the most important ever fought in the entire world in the last 1000 years because they resulted in the general surrender. it's the first time ever that a british army surrendered. >> the c-span cities tour, working with our cable partners as we explore america. the first circuit court of appeals is considering a challenge to the travel ban which restricts travel to citizens of a country's. they heard oral argument. this is two hours.
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[inaudible] [inaudible] [inaudible] [inaudible] >> the proclamation is fundamentally different than the prior executive order. this reflects a multiagency, worldwide review, engagement and recommendation process.
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and they have inadequate sharing practices or other practices that undermine the visa vetting process more restrictions to encourage them to protect this nation until they do so. >> in light of the fact that the standards first day and preliminary junction are the same, what do you think the supreme court meant on monday and issuing the state? what he think that will plan the ultimate resolution? >> i think the primary element is plaintiffs have heard the supreme court will show the likelihood of the mayor. we know that i would submit that
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will we know how the supreme court had the equitable balance last time, the fact that they'll give us a complete stay signals they think it's more more than a mere likelihood. >> are they going to stop the primary injunction as well? >> i think that's a strong signal. you never know exactly what but i think that's a strong signal. i think it's because of the critical differences, in light of those difference falls well within the president statutory. to restrict the aliens abroad. >> even an executive order to the supreme court. >> as to the executive order
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two, the supreme court left almost all that stand as well. >> for the individuals rent time we do agree. >> can you play microphone to talk louder,. >> the district court agreed with us the proclamation satisfies requirements of 1182f. >> you mentioned critical differences between the proclamation a executive order, can you delineate you think are the most important critical differences? >> both a procedural and substantive. the critical differences that this would involve a multiagency
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process. under the executive order instructed agencies for the information. >> read the if any internet the president directed could be done, he directed that certain countries be found to be band. >> look at section to a, which country should be band? >> section 2a whether there is information that foreign governments are not providing. >> it didn't say if any either, correct? >> so when the proclamation directs the secretary provide a list of countries that will not
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comply with the requirements there has to be an affirmative list following the review there may be some or many, are non- two. that list. >> that's true for at least three of these. section two a has identify if there is information missing. nonetheless does appropriate categories. so there were no countries not providing by definition. even if there are countries not providing it expressly says appropriate categories. we know they took it seriously. iraq was found not to be providing you with the baseline at the agencies recommended they
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decided not to include iraq on the list. we know agencies had discussed discretion under the eo to make recommendations of which country to include. they didn't just omit iraq. on the substance side very tailored restriction. they omitted iraq sudan from the earlier decisions. even with the decisions they cover they had exemptions for several. >> and reading the proclamation, one of the primary areas for imposing this plan of the countries differentiated by class of visas. an open expectation there would be an change in processes for
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the nations and improving information practices. how did this bargaining chip of coercion of necessary link find the entry of a class of naturals would be detrimental to the united states. can you help me with that? >> i think it's a traditional exercise to determine that when a foreign government is engaged in harmful practices that can be deemed detrimental it is precisely president cardin did with respect to the iranian hostage. >> that was adjudicated there. >> that is true but unless they were ready to say that his entry to all cuban immigrants were also unlawful.
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>> those are all proclamations of a different order. there's a hundred 50 million plus to incentivize them to cooperate. that connection to me is missing. >> just like president carter restricted all immigrants from iran from entering because the hostage crisis. no one was suggesting every immigrant from iran was a threat to the united states let alone connected to the hostage crisis. because i think it's in harmful practices were going to impose restrictions. >> the presumption is if you don't have the necessary information to enter you don't get a visa. so i this additional measure? >> the findings made by the agency is that foreign governments are not providing
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sufficient information. >> that is one possible response, nothing from the closet is the least restrictive alternative. >> even those that have carefully calibrated for out throughout? >> the courts recognize that it's a recognition by congress that they can impose additional restrictions. >> of a limited in time? can this be done indefinitely? >> i struggle to find a dictionary definition i said a suspended suspension this for an
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indefinite period of time, can you explain how the indefinite ban that has been imposed complies with the language of the statute. how does it meet the statutory grant of authority? >> permit is how he may deem necessary. when the problem that has arisen as a countries are giving sufficient information, you can say that until they correct this but the order doesn't go that far. what is says under section four is everyone hundred 80 days will revisit. >> business onset provision commits in place forever unless he says otherwise. >> it's in place until the countries improve their
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practices. >> let me ask you, let's just say this study contains information which is likely to be true. the most terrorist or those that commit terrorist acts are met. could the president then ban all men under the express granted? could he ban the entry of fall man trend men until evidence showed further that matter not the ordinary and customary perpetrators? >> i don't think so. >> why not? >> i don't think using the gender. >> if you can't use gender, then there's a question of violating section 1152. >> josé lanterman tell this restrictions have to be for every legitimate reason.
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>> was a legitimate with 99% terrorist acts committed by men, aren't we protecting this country if we just keep out the men. >> in general he can't use for ben treats as a proxy,. >> and nationality is not a proxy target? >> it is not a classification to reese direct. >> but you do agree that it does ban discrimination based on gender and nationality. >> only in the context of the issuance -- that language is critical. if congress wanted to restrict the ability of the president to keep aliens from entering the country the wind of use that language. it's clear under the ina issue does not entitle anyone to enter the country. your start to be admissible.
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if congress intended to repeal that to suspend the entry they would've never use the language. this is clear from the legislative history. >> interview, can the president use 1182f to promote for further policy objective he might think acceptable? were talking about the deficiencies but if you is unhappy for an unrelated reason to do then say, he ban the seven or eight nationals from this country in an effort to promote my foreign-policy? >> i think the language is whether it's in the national interest.
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>> if it's not at all related to the improvement of vetting processes. >> i think that's right. i understand that neither president carter's or president reagan's proclamation was challenged, but both orders have that feature. because of foreign-policy disputes the president respect restricted immigrants without any suggestion that the individual nationals were subjected had anything to do with the government. this case is stronger because here the concern is about the failure to provide the information about the nationals were restricting. the case is stronger now.
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>> i have a threshold question. i want to understand the adjuster below the argument that you make. is that meant to include an argument the plaintiffs under the statutory claims under 1152 the constitutional claim, that they did not have standing? . . . . z are you making a standing claim? >> supreme court has recognized
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the rights that are fairly late in this context i think the nature of our rights are in article iii and the biggest point is that unless and until an individual alien is found otherwise eligible to enter seeks and is the night away for they are not under the proclamation. >> is it your position that the courts cannot review this proclamation? >> know your honor. what i was saying was on the constitutional side. >> on the statutory side, let's take that first. is your position that the president could make any finding at the detrimental activity and find that they should be excluded of national interest and we could not review that? >> statutory. >> that's your position. the case where congress has stripped out 1331 jurisdictions?
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>> i would point to two cases is your honor. first the supreme court's decision in shaughnessy in the d.c. circuit position. both of those cases recognize when you are talking about a statutory claim the restriction of aliens abroad is a fundamentally political and foreign-policy judgment that is not reviewable must congress has provided otherwise and that is clearly the rule when it comes to con -- consular law officers. even by misinterpreting that is simply not reviewable unless congress provides otherwise. >> has in congress made it clear in 1182 when they stripped the review ability several times soul distortion not reviewable. i mean in other parts of the statute 72. correct? >> i think 1182.
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>> 1182. hymn i think 1182 has the language itself that further confirms it. >> how so? >> if the president finds that it's not in the national interest by using the phrasing. >> it has to find something that means it's reviewable, is that? >> i don't think so your honor. >> who are the findings for? >> that's the statutory constraint just as in webster verses dover. >> my question is who are the findings for? >> if it's a substandard of constraint. >> how is it a constraint times constraint and the reviews that restraint times were straight? the president takes an oath of office. >> i understand that. who has used that restrain? >> it does times doesn't mean the president doesn't have to follow it. >> but we are of the teeth that would say he can't? you say the courts can't.
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and the third branch can't. who does? >> two things your honor. the first primary is that the president takes an oath of office and has an independent obligation to comply with the constitution one that he takes seriously in the second. >> that means on january 20:00 p.m. to power because he took the oath of office. >> i don't think the court would suggest. >> i am not saying suggests. go to point number two. >> point number two is that congress has the ability. remember we are talking about a statutory claim. if congress is concerned that the present is violating the statute congress can authorize a review. congress has not to write it in the supreme court has said. >> do we have the power in the shaw case to talk about congress can't delegate authority and
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then decide it's going to be the one to be arbitrary to that? you are saying they can do that? they are the ones who decide? >> shauna did not exclude aliens abroad exclusion of aliens abroad are a very narrow set of circumstances where the supreme court offers a must congress provides otherwise there will be no review in part of the reason for that your honor unlike in shauna if there's not an out delegation issued the president has inherent executive authority with respect to the exclusion of aliens abroad. >> the power comes exclusively from congressional power does it not? >> that is not correct your honor. if you look at shauna the argument was made the congress had improperly delegated authority to the president to exclude aliens in the supreme court said that is not true that the president has inherent executive authority to restrict the entry of aliens abroad.
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>> so you are saying under 1152 clearly in 1965 it was a policy that we would not discriminate with national dumbest -- demonstration. the president's that i don't want to do that. we are going to forget about that and i can have every country excluded and you said there's no review is that correct? >> if the president were to do that he would not be reviewable but again the president would have to make a finding that it was detrimental to the national interest. that is not what we have here. we have here is the president has found that the country is a specific national security and foreign-policy problem and in response of those problems is precisely what president carter did frypan imprecise and let president reagan did for cuba. no one even argues that those restrictions violated the law. >> no one challenged either of
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those. >> that is correct your honor but the fact that they wouldn't bother to challenge his signals how weak the claim is. if those statues ban immigrant visas. >> i thought you said the major reason was the issuance of a visa and in response to judge keenan's question on gender you said while gender doesn't apply because it's one of those broader classifications that deal with discrimination much like race. tender is one that you can't use. why would congress put it in 1152? it sounds like get started covered. gender and race are to be covered even with the issuance of visas so why is it in 1152? >> your honor that times the point i was making to judge keenan. >> my question is why is it in 1152 if what you say to judge
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keenan the agenda doesn't apply because it's one of those classifications that they just can't do it because it's one of those video classifications like race but you can use nationality because it's not for my question is why have 1152 on race and gender but you don't need it? >> there are a lot of statutes. >> why is it in 1152? >> congress has a statute that bolsters what the constitution is potentially in part prohibiting that the other important point is 1152 focuses on the issuance of visas and what they were trying to do in legislative history makes it quite clear they were trying to wipe out the pre-existing national. >> you didn't need it. you are the habit. you are to have that because you can't use race. presidents can do this.
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>> there are a lot of statutes that prohibit the constitutional arguments i'm not sure why that would undermine the argument that under 1152 if the legislative history makes it clear what congress is concerned about in the specific times specific issue was the national origins quota. >> let me ask one question and make sure i get this question now. as i understand it there has been a worldwide review and that is the primary basis upon which you think this is really different. in the face of a worldwide review which is classified we don't have that. we simply do it procedurally, fine but then what do we do when we are looking as an objective reasonable observer and we have multiple instances in which this president has indicated before the election and during the election and just a week or so ago i believe we can take
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judicial note notice of that in the news he tweak what he says is indicated the purpose of what this proclamation is. i mean i'm trying to, in other words do we just ignore reality and look at the legality to determine how to handle this case? if the reality is that is the purpose of the legality allows it does that make a difference? >> i have several points your honor. the first is we do think that all those statements are legally relevant under mandela and here's a critical point. >> tell me what you mean all those statements. i'm talking about the statements that go directly to purpose and if the allegation is that this is an effort to ban muslims from this country every statement that's made by the individual
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and the president making it goes to say that but it's done in a way as to say we did a worldwide review. >> what i was saying your honors the supreme court since we were here last time and the santana case made crystal clear that the mandel standard is a rational basis standard and under rational basis review subject purpose is legally irrelevant. you do not look to see what was behind the motives. >> it's not on national races review as you say the supreme court has said it is. then can we go back to reasonable service and answer the question. i understand what you said what the supreme court has said. >> if you go past the fact that the supreme court said rational basis under mccleary the question is whether the objective observer would determine the primary purpose
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was religious and i would submit that when you have a multiagency review where you've got numerous numerous. >> is classified and that's all we know. there has been one. >> the report you are talking about is not in this record. >> reports on the record. >> we do have in the record statements and notwithstanding how you may press that we can take notice of statements that are made that allows us to do that. we have that is direct purpose. >> again your honor their regional -- reasonable object of observer would look at the proclamation we don't have the underlying report that we did of the proclamation and we don't ignore what it says. >> are you saying that the court for the proclamation is in the report? is the report for the proclamation rational and not a
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muslim ban in the report? >> it further details, the report further details on the base. >> courts can look at classified information in a secure manner. wouldn't it be much easier if you would just have put your support in the record classified so that we could see at? >> don't count on it. that would be easy. >> your honor the fact that it is classified is certainly public. it's also report that is covered by privilege. it's a recommendation from cabinet secretaries to the president that includes incredibly sensitive information not just because his classified but it's important foreign-policy including information such as which country engage with those in which country improved during
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the process. this is all incredibly sensitive information all covered by the communication privilege. >> that's what you have to fall back on. you can't get past the classification of article iii judges. we have clearances but the classified stuff but the executive privilege that's never been litigated. >> what i was going to say is. >> it was asserted in the district court. >> was asserted in that issue is not resolved. >> we don't think it's necessary and we don't think it's appropriate but at this if this court were to order us to file the report export today and under seal you would see that the report strongly supports. >> you would file the privilege material to? you would stand on the privilege? >> it's an unusual position if you believe in the privilege. >> if the court were to order us to. >> well i understand that we are an equal branch of the president
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and whether we are going to get into the deliberative process of an executive which seems to me would be similar to the president asking us as judges to give him the deliberate process behind their decisions. >> your honor certainly agree that we should disclose this. if you ordered us to do so. >> we would have to litigate the executive privilege for story wouldn't have to? what is your times your answer to that? would we have to litigate executive privilege issue before you would show it to us export today? >> your honor i apologize, i'm not sure. >> you don't have a position on that? >> on whether the court would order us if we were to exert executive privilege? >> if you ordered us to. we have clearances just like you do.
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everyone of us but you have another point and it would be a valid point from executive privilege deliberative privilege however you describe it. we understand that but i thought your answer was if you ordered us to do it you would give it to us but if you want to back off of that, that's the question. before you give it to us or insist on litigating the deliberative privilege applicability before you turned over export today. >> your honor i apologize i do not have a position on that and if it's relevant to this court we can submit a supplemental filing. whether we would want to stand on privilege. tonight just to follow-up on up on that you were counseled the district court, correct? >> yes. >> when this question came up before the district court you told the court you think what is
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in the proclamation supported under the relevant legal standards that should be upheld. if you think what is in the proclamation isn't sufficient to support the relevant legal standard than it should be invalidated. do you stand by that position or do you have a new position now? >> we do think if you don't think the proclamation by itself satisfies that any don't want to look at. >> no, no there were two sentences and i'm asking you to stand by them? i don't think this requires a long answer. do you think what's in was in the proclamation supports the relevant legal standard and that it should be upheld? if you think what's in the proclamation isn't sufficient to support the relevant legal standards that it should be invalidated. that was the case you put to the district court in i assume that was the case. >> we do stand by that. >> that's the mandel principle. >> insofar as any of the judges on this court thought it was
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critical to their analysis in the underlying report. >> you told us you live or die by not having it and i just have one other question. when the acting solicitor general was here before he persisted in telling us how temporary this band was. it was a brief pause and that's the difference between the order that we have now and the order that existed then and it's one that you haven't spoken to. seems to me to be pretty significant. >> reason for the differences last time it was temporary because it was in service of the study. >> right but the suggestion was the study was going to make it so that you wouldn't have it in the future. lo and behold the study says we should do it in an indeterminate amount of time. >> critically only for the countries that were found to
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have inadequate information. so there is overlap. sudan is not covered in iraq isn't covered under the first-order. >> iraq was not in the case. >> iraq under the first-order and other countries covered their exemptions for the non-immigrant visas that is certainly true. we are not denying that many of the other countries are covered nor should anyone be surprised when you're investigating whether countries have found to be state sponsors of terror are likely not going to turn out to do very well in the study. >> norwood we be surprised to guess the president has continued to make statements some people regard to be anti-muslim after the issuance of this order should we be surprised that might be
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construed as an anti-muslim order. >> down think that's a fair construction of the proclamation. >> i'm asking you about the present statement. >> what i'm suggesting earners the present statement has said he wants it to be tougher and whether it is tougher is certainly not tougher with respect to muslims. if you look at what countries are covered they took out muslim countries and created exemptions from muslim countries and added non-muslim countries in the single majority muslim country. >> you have north korea and venezuela but it doesn't apply to anybody. that is kind of like window dressing. >> your honor the president of stated he want to be tougher and nobody can reasonably construe that to be tougher with respect to muslims that the proclamation
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simply is not tougher with respect to muslims. >> to the other category of the statements from november 29 and you do agree we take judiciary notice of those, right? >> judicial notice? >> don't think it's legally relevant. >> did you say you are conceding with traditional notice? >> the fact that the statements were made. they want to use the content. the content of those statements which would never be admissible in trial. they are not official documents. they have speculation and opinion hearsay, triple hearsay and you are conceding that we can take judicial notice of that? >> your honor i thought judge harrison maybe a misunderstood was referencing the president's tweet's. >> it's the department's position that the president's twitter account those are
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official statements by the president of the united states. is -- you can see that those artists official statements of the president of the united states, correct? >> the tweets are official statements? >> we have plenty of evidence of that. >> follow-up. >> my last one is still the department's position i take it that it's the president who speaks for the executive branch. there's no constitutional date between the president dhs. if there's any dissonance or gap between the present and the subordinate executive official asked the court we can't go -- we go with what the president says. >> as far as it's legally relevant but the court puts these before the supreme court
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and it didn't's dissuade the supreme court or it shouldn't dissuade this court. they are simply not legally relevant. >> is illegally relevant under mcqueary? >> we don't think they are persuasive under mcqueary. >> relevant but not persuasive? >> no actually your honor just to clarify we think that statements about the proclamation would be relevant but not persuasive. the most recent tweets aren't even about proclamation so we don't think they would even be relevant. >> you are suggesting counsel says while the president may be showing anti-muslim violence in his tweets that cannot he taken over content of the proclamation click the proclamation is to be used and not any anti-muslim
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bias evidenced by the tweet. >> i don't agree with the characteristic of the tweets but regardless we don't think it's relevant of either mundel or mccleary. >> can oppress and violate the naturalization act? can the president by terms of his authority under 1182 take action contrary to the any other provision of the eye and a? >> know it's certainly possible the president could engage in conduct that would violate some provision. >> what would be the limiting principle from your perspective then? if the president can ban all immigrants even though the i am a says you can't discriminate against them and that the president could take other actions. even though the statute says --
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can the president essentially say i am banning all immigrants? i want to take any action. why couldn't the presidents in your theory violate any particular provision in the ina by making a finding that entry pursuant to any other -- [inaudible] >> the president has to make a finding that entry would be detrimental. so i would say two things about what the potential out of bounds are in the national interest. one substandard than one sort of procedural. one point is they can't be directly contrary to some other provision. if for example the president's that i don't like immigration and died there for think its contrary to national interest i would think that would be in
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contention with the ina but principally that is not what this proclamation does. with this proclamation does is find that there are certain countries that present national security and foreign-policy problems and as a result of that it will impose additional restrictions. if that sort of order is well within the core of the lebanese to as important besides the d.c. court's decision involved exactly this story of order were under the ina viewers in the disability ground to acquire it the aliens activities within the country be harmful. not just their entry but their activities. >> the present can treat immigrants more partially than he treats other aliens? is that correct under 1182?
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>> if he is a reason that is detrimental to the national interest interest. you can approximate this is detrimental to the united states especially because they have more rights when they get here. that decision sufficient? >> not only is a sufficient but that's what the supreme court held in sale. in sale if immigrants have done to the shores they would have silo productions. >> they essentially said once they got there they had to show i.d.. >> no your honor. the key point in response to your question is that sales, they would have would have had asylum protections and precisely in order to prevent them from invoking their protections the present set up a blockade on 1182 in the supreme court said that would clearly a price of the mere fact that the president is using 1182 in a way that would arguably stop aliens from
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invoking rice that they might otherwise have is not improbable. >> getting to the reasoning of the proclamation i know the president -- illogical and its radical with logical flaws. >> no more than we have to be logical. >> my concern is with regard to immigrants the president has not said anything in the proclamation as to why immigrants should be treated differently than other aliens coming from the same country. if you are from a band country need just want to be here temporarily then you are subject to fewer restrictions and if you are an immigrant from the exact same country you are banned and you are saying it doesn't make sense of the of the president
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can do it? >> it's not at all what i said. what i said is the proclamation explains explicitly why they are joined that distinction. they are joined that distinction because immigrants have protections from removal so if the problem is that there's insufficient information from this country and there's a risk that our vetting system is not working and people are getting into the country who we don't want here that list is more harmful if we can't remove them. that's a perfectly rational thing to do. >> congress is saying an 1182 these immigrants are coming to america and we are going to give them some protection. you can't discriminate people based on nationality. don't you think that's a legitimate distinction congresses drawing with regards immigrants as opposed to the rendered in -- random aliens who want to commend for business? we are not going to tolerate it
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on nationality. >> in the issuance of immigrant visas and the legislative history is crystal clear that what they were trying to stop a national origin quota where the government was -- basically on ethnicity and race maintaining an ethnic balance. >> let me ask you this. is that true that the president is entitled to the greatest area deference to national security and double down on national security and international affairs? is that correct? >> that's absolutely correct. >> then i want to see how you think when the president makes statements and people look at that and some would go clearly he's anti-muslim and some would say context. he's talking about what he perceived as some kind of terrorism related in some fashion to some people who are muslim. so-called radical islamic
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terrorists. you could locate his statements and each side defines something you would point to, what difference -- and friends, can he get any inference in light of the deference he is entitled to? >> yes sir on in light of the deference he is entitled to and all of this is important if not more port in light of the rationality and permissibility. >> i'm just looking at the statements. i understand on the basis of neutrality that it's pretty clear on his statements it's dripping with discrimination. others go they look at it in context it's how statements are made and people look at it differently but if there is that possibility that people can see it differently and the total context is there any rule on what your friends he would be
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entitled to under this tremendous deference in this area? spinney given the deference for these doing this pretty the area as well as the more general deference i think you should take the more permissible more chair boyd interpretation rather than the more hostile one. especially in this context or we have a proclamation that was recommended by those who have no such statements. there's no basis on integrity for the individuals that made the statements. >> we have a statements report were all the stuff came from only previously determined the io two was made in bad faith and because of all the things that have been said. now you have more added to it. the last tweets plus a proclamation post reports that
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you don't show us. >> the proclamation lays out the agency engaged in this process recommended these countries unless this court is prepared to say that the president has lied an agency didn't actually say that. >> we can't look at it and see. >> that's true your honor but the court suggest the president of united states is flat lying that agencies recommend --. >> i understand your argument and your position that there is a need to review the process and that rakes in the sheen for any concerns one might have of the for the president and what's happening here but i need you to explain to me why a review brought -- process is an independent act that can -- from presidential statements and executive system. dhs is not an independent
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agency. the part of the executive branch and there's no constitutional scene. it's not that the prisoners over here and dhs is over they are printed on c. the process can be an intervening independent act. see the cure is why your honor. the question is whether what is the primary purpose? >> get signed by the president. >> that is true your honor. >> and he has to statements on the record. and although i agree people always see things differently. some of those november 29 statements even with deference is a little tricky to find the national security rationale for that. >> your honor what i would say is you have asked why there is the potential.
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what i would say this exact recommendation had been made to different president of the president had adopted the recommendation there is nothing about either the process or the subject of the proclamation it would possibly. >> i think you think we are not in an establishment clause land but if we were bet is entailment of the purpose inquiry under the establishment clause. the same moment of silence statute constitutional one location on unconstitutional and other. >> that is a possibility but either mccleary or any of the cases suggested engaging in a link the deliberative process makes recommendations about national security's foreign-policy concerns when those recommendations are neutral about religion. all of that can be set aside based on earlier statements that
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don't even pertain to the purpose of the proclamation. if you focus on for example mccleary, mccleary involves a religious practice that even as the third iteration rate emphasis on the language that was religious in nature. the other monuments that were put up didn't really make much sense. the history bolster the conclusion but it didn't drive it. without the prior history there's just no argument that this proclamation would violate the establishment clause so much better analogy is mcgowan. in mcgowan you have someone who to that basis the purpose of laws to protect the sabbath and the supreme court nevertheless held the bat violated the establishment clause and the
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reason they gave the primary reason that the exemptions in that statute revealed that it didn't any longer have her religious purpose that it was more secular in nature and more about -- than religion and what i would submit this is the exemption in the proclamation serves a better similar function. there's no way conclude that this is a muslim ban but for some reason they decided to exempt non-immigrants from most countries. that simply doesn't make any sense if you say it's a muslim ban but it makes perfect sense under the proclamation given which is that there are problems with the information sharing in these countries and in order to deal with the risk of death but also just as importantly to encourage these countries to improve -- that the president adopted tailored restriction that based on their recalcitrance and their willingness to cooperate. it makes perfect sense under the rational given.
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>> i just want to make sure we are clear when he responded to judge king that the president would have to be flat out lying. i think the position is the present is not lying about what you said if he said what he said said. we don't think from my perspective i don't think he is lying at all. an individual who is saying exactly what he means notwithstanding judge shedd's characterization. he seems to be saying it over and over and he is making it very clear. he seems to be telling the truth about what he actually feels. not that he is lying and i think that's the question. he is the president is telling the truth about what he feels a notwithstanding you have independent worldwide view you seem to characterize that just decided to do it on their own without any impetus whatsoever but we will leave it there. if you have that and if he is telling the truth and the truth is perceived to be what it seems to be saying over and over again how do we look at that and i
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know you want to look at mandel and shale on a rational basis but in terms of a reasonable observer. >> again your honor the proclamation given that it's based on the recommendations and is telling the truth that the agency did engaging this process that they did find eight countries have inadequate information sharing or other problems that because of those restrictions they recommended taylor entry restrictions that encourage them to improve their practices and protect the state until they do so. if you accept all of that is true the statements. >> do we accept the statements as being true? >> no one is disputing that. what i am saying is those things the specs of the more recent
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ones speak to the purpose of this proclamation. >> and the purpose of this proclamation to deter terrorism? is that the goal of the proclamation? b the proclamation is to keep americans safe. >> in the president's tweets you have conceded our official statements of the president of the united states and they could be subject to the charitable interpretation. there was a tweet a month before the proclamation was signed by the president tweeting it statement that shooting muslims with bullets dipped in's blood should be used to deter future terrorism. how am i to take that charitably? >> your honor at the first is that it's not about the proclamation at all. >> it's about deterring future
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terrorism which i thought you said was the goal of the proclamation. >> it's the end goal of the proclamation but the proclamation is dealing with this specific problem which is inadequate information sharing. what the president said in a tweet about how to deal with actual terrorist whatever you think about that it doesn't suggest any sort of general bias bias. doesn't suggest they are going to ban all muslims and the proclamation says the exact opposite to the proclamation said there is inadequate information sharing from these countries are other risks that undermine this and to deal with that particular aspect of the broader terrorism problem they encourage those countries to improve the characterization until he do so. >> thank you, counsel.
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>> good morning your honor and may it please the court to the proclamation repeats for fatal flaws that doomed eeo two. first in response to judge harrison's question the president directed the subordinate agencies to stick with his original architecture for the ban and that is nationality as a proxy for religion. by design but the president as these agencies to do stuck with his plan. >> let me ask this question at the same one i asked in the other argument that i want you
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to tell me in light of the supreme court's action to grant the state on i think it was monday and the criteria first day in preliminary injunction is essentially the same. i want you to look at that action and tell me what impact do you think that is likely to have on the final resolution of the validity of the preliminary injunction? >> judge shedd i don't think this court can take any substance from the supreme court's stay order. the court was very careful. >> i didn't say substance. and i'm asking you, you are saying we can't take anything from that? any indication at all? >> i don't think the court can your honor biggest the supreme court was very careful not to say a word about the merits or the equity. >> it seems to me if you are
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granted a stay at all the court had defined as a likelihood of -- on the merits. >> i don't think that's right. i don't think that's right as a solid supreme court's previous day. that one detail they were issuing that order based on its equities presented on the record record. so i don't think we can assume as mr. mooppan -- suggested was saying something about the merits. >> in the normal case that the most important factor. to make your honor does but the supreme court previously did not address the merits related to eeo two and they think all the court can do is to decide the case on the record as it finds it. >> i guess the question follows the traditional process here and
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they are just omitted the fact about substantial likelihood of success on the merits. >> judge me cantelle why the supreme court issued the stay. he didn't say as it did last time. >> in any type of stay per sitting or preliminary injunction and the courts don't just skip that stage. >> your honor the court didn't rule on the merits less time in considering stay of eeo two. >> all i can say is this court can simply judge this case is a fine sieve and that's what the supreme court asks this court in the 9th circuit to do. >> the court said as the 9th circuit to act as quickly as possible. >> that's right and i would maintain to go back to the reasons why. >> at my b. that they are just interested in us getting done within the getting something in
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front of them so they can rule. >> the supreme court will do what it wishes it should have the benefit of this court's ruling in opinion or set of opinions and with the 9th circuit does. >> your position is we shouldn't take anything from the fact that the supreme court grants a stay. >> i don't think you can your honor. the second reason the new proclamation. >> or you could read between the lines and you ought to be asking us to send it back to the district court rule on the merits. come back up and add the merits. >> judge king the district court did reach the merits --. >> it didn't deal with the permanent injunction. he didn't consolidate with the merits of the case. you didn't make a full record and all that stuff.
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litigating the issues of privilege and all that. >> there's more than an adequate record. he can reached the statutory issues which we didn't prevail and i think there's an adequate record to do that and the supreme court didn't direct this court and the 9th circuit to reach a decision so i think that's what the court should do. respectfully. the second reason. >> the second reason is he began by saying this proclamation continues the practice of habana proxy by nationality but this is different in the sense at least on the face of the proclamation not just of the muslim majority nation but all 200 plus nations that winnowed its way down to the fairly similar result with respect to these other executive orders. why is there no difference in
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the sense that it not begin the proxy by nationality than? >> your honor i think the government conceded just now but we should not be surprised that we ended up with five of the six countries that were banned under e02 once again banned under the proclamation and that's because your honor even though the president directed this worldwide review of each country what he did in section 2e of the e02 is to say give me the list of your countries and your honor if the design of the study --. >> is the necessity of google is not going to be satisfied? >> that's right your honor and we know that not just through the proclamation itself which is complete with references coming up with a list of countries we know it's because the president said so in an official statement
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continuously. the day that the e02 was joined by two district courts the president said two very important things. the first thing he said is we have a very big problem with muslims assimilating in the united states and the second thing he said was i want to go back to the original and i'm going to go all the way. that statement is one that he repeated throughout the summer and the fall and even before the results of the study came out, long before the study was even done the president said i'm sticking with my original plan and that is to use nationality. this goes way back your honor to what he said right before the elections and was confirmed by his advisers right after the issue. you don't want to talk about muslims and i will talk about territory.
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>> if i recall your predecessor in earlier cases if it were any other president the e02 would be fine and would satisfy the statute. is it your position? >> your honor i think what we said during a less oral argument as if he didn't have the record statement it would be a different case. i agree that is the case but your honor we as judge king and noted in their recurring opinion on sub three there is reason to doubt that this is legitimate on its face and it's cross-referenced to e02 and an internal illogic. the proclamation says first of all we have a problem with the information sharing from the country that has resulted that there is such a high-risk for nationals of those countries that we are going to ban 150 million people the vast majority of whom are muslims
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from six perdoma lay muslim countries. >> absent the troubling statements of the president would your position be different if that were not part of the record? >> your honor to different record but i do think judge keenan with e02 still holds with the proclamation. >> it seems to me the fact that the government has taken great pains to investigate what exactly are the threats that are posed that it arguably can be a logical. he can be flawed. it can be a product that perhaps you would be proud of in terms of this cohesiveness but the president can do it, can't he? he makes the required findings
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as long as it doesn't violate the constitution. he looked into the substance and reach his conclusion and are we limited in determining why this violates the ina or violates the constitution. to make your honor in fact violate the ina and the constitution for similar structural reasons that you pointed out in looking at something going back to judge harris's point. >> if you are looking at just that. >> we are not limited to cause for the same reason the court held we passed through the mandel hurdle because the record shows the proclamation like e02 is not codified in the internal logic of the proclamation in being underinclusive by not
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having a national ban against venezuela even though it met the baseline and including somalia even though it failed the baseline of including countries like belgium or the philippines that have been widely known as a national security official. >> that goes to judgment rather than authority. where is there a violation? b y. is a violation of the eye and a? >> your honor in establishment clause the proclamation suffers from the same fatal flaws that e02 did. we get past the mandel hurdle and the court will continue to apply the mandel test because on its face and taken in light of the original purpose that nationalities a proxy for religion we did not know that this proclamation on space is not bona fide. there's also evidence in the
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proclamation just limited to its four corners that because of the internal illogic again the underinclusive and being underinclusive leading in a number of nonimmigrants even though the president is saying the whole presence of it is the nation has some problems that anyone is a threat all of these things show alton of four corners this is not legitimate for putting that aside its clear on the air that the president has continued to make statements of hostility toward muslims and tellingly in response to something the government said in his presentation he said the november 29th statement in the retweeting of these anti-muslim videos is not connected to the pop nation. to the contrary on the white house official web site you will find the statement of an official white house -- white house spokesperson who says security and public safety for
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the american people are the issues the president was racing with those tweets and the president have been talking about the security issues for years now from the campaign trail to the white house and the president has addressed these issues illustrated by the tweets with the travel order he issued earlier this year. >> counsel let me ask you and assume the same principle that you describe, the same record. the proclamation only covers syria. is there any difference? >> your honor i think it would still be a problem because vice president pence even ports the election had targeted syria in the same way and made the same connection between nationality. >> how is that different from what president reagan and president carter did? >> it's different because it's a
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structure of the proclamation as a whole. it violates congress's judgment in the 1965 act that we aren't going to act on stereotype. we are going to go to nationality-based quota. >> syria for example or iran both countries the only two on the list that refused any cooperation with the united states in terms of identity sharing for travel they are chock full of -- they've been in varying states of the civil war. are you saying on this right your that any president is simply not able to make judgments for the protection of the nation and the product of foreign-policy? >> certainly not your answer and setting aside the statutory lamia main? on the establishment clause
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certainly it would be different record of the present head and continued to make statements and the muslim students right up to the time he issued the proclamation.
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