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tv   9th Circuit Court of Appeals Hawaii v. Trump  CSPAN  December 7, 2017 6:49pm-8:01pm EST

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circuit court of appeals heard the case of hawaii versus trump. the case focuses on the legality of the third version of the president's travel ban, with this latest version issued last september, placing certain restrictions on nationals from chad, north korea, syria, venezuela and yemen. the fourth circuit court of appeals hears the case tomorrow and will show you that based on the senate schedule. this is an hour and ten minutes. >> all rise. please be seated.
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good morning, i'm judge guold. judge hawkins is on my right and judge paez on my right. the -- welcomes the distinguished panel, the distinguished advocates here to help us understand their views of the law in this important case. and so without more further ado, we can proceed to the government's argument. the case, by the way, is set for 30 minutes for each side. and if either side feels they just absolutely need an extra few minutes, just ask us. >> thank you.
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may it please the court? hashim mooppan for the united states. seven minutes fi rebuttal. the proclamation reflects a multiagency worldwide review, engagement and recommendation process. and the substantive findings are that eight countries have inadequate information sharing practices or other risk factors that undermine the visa vetting system and that warrant tailored entry restrictions in order to encourage those countries to improve their practices and to protect this country until they do so. >> what do you mean by tailored? n >> they're tailored because for certain -- other countries it's only for a subset of the nonimmigrant visas, your honor. >> what does day doored include the idea some could come in and others could not? >> in addition, there is a waiver process.
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but what i was referencing the fact it was tailored, i was primarily referencing the fact that the restrictions are not one size fits all for the countries which reflect it is fact that the president was setting restrictions in a manner that were designed to encourage countries to improve their practices. in light of both these procedural and substantive features, the proclamation falls well within the president's broad statutory and constitutional -- >> is the purpose of -- that you just articulated to encourage or nudge other countries to improve on their practices that the proclamation finds -- questions? does that fall, i mean, is that one of the purposes of 1182-f? does he think it falls within the scope of that statute? >> i think it does, your honor. >> how is that? >> i'll make sefrm points. the language of 1182-if, whether the entry of internationals would be detrimental to the national interest. when certain countries are engaging in practices harmful to the government, it is well within the president's authority
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to determine that allowing the nationals of those countries to enter would be detrimental because it doesn't sanction and deter harmful practices. this is pre sicily what, for example, president carter found, and president reagan found with respect to a diplomatic dispute in cuba. in both those cases, they engaged in harmful practices. what those presidents found was allowing the nationals of those countries to enter, no argument, no suggestion that the nationals themselves presented any harm, allowing those nationals to enter was found detrimental to the national interests because the presidents wanted to put pressure on foreign governments. that's a quintessential exercise of 1182-f. indeed, it's not -- >> go ahead, go ahead. >> it's not just i ran and cuba, it's virtually every application of 1182-f has this critical
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function. if you look at the plaintiff's briefs themselves they emphasize that most of the proclamations have been focused on targeting individuals who engaged in harmful behavior abroad. >> but the proclamation, it does not -- it's your view, or i understand your comment, that nationals from the countries who are covered by the proclamation are not themselves of concern? >> so -- >> they're not -- they don't pose a threat then? the nationals? >> they need not as under your initial question was whether they have to. and under the statute they need not. i think the iranian and cuban examples prove that. now, in this case, it is a stronger case for us than both the iran and cuba examples. not only is there harm from the governmen governments but that harm is related to the threat and risks
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posed by their nationals. if i could finish the point from a moment ago, it's not -- every proclamation ever issued from 1182-f, examples cited in the brief and kansas cussed the c.r.s. -- specific individuals, government officials or private parties had engaged in harmful behavior abroad. no one was suggesting that them coming into the country was in and of itself harmful, that they were going to engage in harmful behavior in the united states. the rationale of those restrictions was having engaged in behavior harmful to the united states abroad, it was deemed detrimental to the united states to allow them to enter. >> do you recognize any limit under 1182 to the president's authority? >> it has to be relevant to -- he has to make a determination that's detrimental to the -- outer bounds to that limit both in terms of the substance of the restrictions, whether it's focusing on foreign policy and
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national security as opposed to other sort of ends or if the means of restriction are inconsistent or contrary to congressional commands in the ina, the proclamation here falls well within the core of 1182-f restrictions, it's focusing on ends national and security and foreign policy based. it has a tradition means to impose additional restrictions in circumstances where those national security and foreign policy concerns are implicated. >> so if you were in my position where we have to sort of interpret this statute, try to understand it, how it fits, how it works, how would you characterize the limits that are imposed on the president? when he invokes his authority under 1182? >> as i said, your honor, i think the two things that i would focus on is potential limits at the outer bounds, we don't think we come anywhere near these. are, are the interests that the
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president's ar liticulating the sort of interests that would be been the national interests or other sort of interests that don't implicate core foreign policy national security concerns that have traditionally been used under the statute and are the restrictions contrary to something about the ina. examples have been given, for example, if the president were to say i just think immigration is a bad idea. i'm not going to have any immigrant visas come in, that would be contrary to the ina scheme. what's happening here is fundamentally different. >> the argument that we've seen throughout these various iterations of the proclamation and of the prior executive orders is that in certain countries there are muslim radicals who we do not want to enter this country, and that exercising the authority under 1182-f is a way of keeping them
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out. >> your honor, the proclamation's findings are different from what you just articulated. the findings of the -- >> that's the argument that we have heard and that's the argument we're going to hear from the plaintiffs. >> well, what i would just submit is what the proclamation says is that after a multiagency review, there are information-sharing deficiencies from these eight countries r other risk factors that undermine the visa vetting system. >> these findings articulated in the current proclamation are the result of the 90 or so day study that we permitted. >> that's precisely -- >> the government to undertake. >> that's precisely right, your honor, if i could lay out what the process was. it will be helpful -- >> i have a question in advance of that. do you as a legal matter, matter of law, do you think 1152-a constrains the president's authority under 1182 at all? >> i don't think so, your honor. >> explain why not.
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>> so i will. so the key is 1152 bans nationality discrimination in the issuance of immigrant visas. the first step to the analysis is to recall, ina makes crystal clear, having an immigrant visa does not entitle you to entry into the country. it is always the case when you have an immigrant vee ca you still have to be found admissible. it would be strange if congress passed a statute saying no discrimination with respect to issuance of immigrant visas if what they actually wanted to do was restrict the president's ability to make determinations about who is admissible into the country under 1182-f, if you look at the legislative history of the statute it confirms this. the legislative history makes clear, as plaintiffs themselves emphasize the point of 1152 was to wipe out the national origins quotas for immigrant visas, quotas based on having ethnic and racial balancing in the country. it makes crystal clear that the
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point was not to affect the eligibility criteria to enter the country, not to relax -- >> not talking about eligibility. the question is, can the president, under the authority of 1182, push aside the restriction on the issuance of immigrant visas that congress later enacted in 1152? >> well, but i think you are actually talking about restricting the eligibility criteria. 1182-f just like 1182-a, those are statutory provisions that determine who can enter the country, who is admissible to enter under 1182-a and under 1182-f, whether the president can suspend their entry. there's no suggestion in the legislative history that the decision to restrict immigrant visas was meant to restrict the president's authority to determine who can enter the country. >> back to the tom hanks example of being stateless inside the
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airport terminal? >> no, your honor, what i would submit is that precisely because 1152 is about immigrant visa issuance it was not meant to suggest that you have to grant a visa to someone who's not el vibl to enter in the first place. it's not the tom hanks scenario. >> that's precisely the point, i think, that's how the administration intends to enforce its authority under this proclamation. and to, by some people's lights, work around 1152 is by saying we're not going to allow them to be issued and you're not going to be allowed to enter. >> my point is, your honor -- >> am i right about that? >> you are right that -- >> that's the vehicle the administration has chosen to enforce its authority under the proclamation in 1182. correct? >> it's not just this administration. this is the traditional practice that if someone is not admissible they don't get immigrant visas. >> we're not talking about the fast administration or a future one, we're talking about this
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administration and the authority of the president of the united states under these two apparently warring sections of the immigration act. and your predecessors who have argued in front of us have told us that the administration intends to use the bar entry authority to prevent the issuance of immigrant visas, which based on these countries, based on their nationality. >> that's right, your honor, but again, if congress -- >> and you think that's okay? >> we do think that's okay. i have two points, your honor. the first point is that we do think that's okay and the reason we think it's okay is what i suggested earlier. when congress said that there would be no nationality discrimination with respect to issuance of immigrant visas, it didn't intend to restikt the ability of the president to make admissibility determinations on the front end and it didn't intend to suggest that if you're not eligible to enter the country at all you nevertheless have to get an immigrant visa. >> the administration intends to tell counselor officers and
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officials in the affected countries that they're not to even issue an immigrant visa because they're not going to be allowed to enter in any event? >> that's correct, your honor, and that's pre skiesly how president carter's iranian proclamation was enforced. he said no iranian immigrants could come into the country during the iranian hostage crisis. they didn't get visas and all fly here and have to return home. the visas just didn't issue. so too with the reagan cuban proclamation, immigration suspended from cuba and that included the visas. the simple fact is, again, the error in their position is they assume immigrant visas entitle you to enter into the country. that is not true wholly apart from 1182-f, it is a basically principle that a visa does not entitle you to entry into the country under 1201-g. >> we understand your point. >> okay, your honor.
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>> counsel, if i could ask you a question that goes to the argument you made in your briefing. that this is a non -- as i understood, when the president makes a decision under 1182-f, that's a decision by the political branches and the court has no authority to review it. am i right? >> that's correct, your honor, we -- >> so i'll give you my hypothetical. >> can i just clarify one thing before? that point is with respect to statutory claims. with respect to constitutional claims the analysis is slightly different. >> okay. that's fine. so now here's my hypothetical for you, and i realize that i'm going to say it in an extreme case, but sometimes hypotheticals help us to understand the limits of our principle. let's say the president sat down with his cabinet and they
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discussed things and decided the world's a very dangerous place these days. in fact, it's so dangerous that the president decided he's going to exclude entry from any person, from any place in the world, if they're not american citizens, under authority of 1182-f, and they make some detrimentality finding that it would be dangerous to u.s. residents if there were such entry. so would that be ges tissuable? >> i don't think so, your honor, first of all, something like that i don't think there would possibly be a constitutional argument. let's focus on the statutory piece for a second. on the statutory piece the supreme court has made clear repeatedly that the decision of the political branches to allow
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aliens to enter the country is a political decision that courts cannot review unless congress is expressly authorized otherwise. and there simply is no express authorization here. they haven't pointed to any express authorization. they've pointed to the apa and equity. we know that neither the apa nor equity can override the principle of -- nothing about the apa and nothing about equity somehow says that chancellor officer decisions, are somehow immune from review but that the president of the united states is subject to review. it gets things completely backwards. >> so my follow-up question to this, okay, it sounds to me like you're saying that article 3 branch, the courts are ruled out entirely if the president makes a detrimentality finding under 1182-f.
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>> not completely ruled out, your honor. >> not as to a statutory. >> for statutory claims. >> as to a statutory claim, if the courts thought there was no merit to the detrimentality. but we're ruled out of that now. my follow-up question is, let's assume that the president made a mistake in interpreting 1182-f, and that the president's position is really contrary to what congress intended, to what article 1 congress intended. is that still non-jestitiablt. >> that's nonreviewable. an individual chancellor officer is as capable as misinterpreting the ina, to misreading it, to misapplying it and it is black letter law and they don't dispute that is not reviewable.
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i would point your honor to -- >> i understand your argument. i just wanted to make sure i understood your position. so the courts would be totally ruled out of that case, even if the president was misinterpreting the statute. so now my further follow-up is if we're ruled out under article 3, i take it the supreme court's ruled out too, because article 3 applies to the whole judiciary. >> that's true, your honor, again, remember, we're talking about statutory claims here. all we're saying when we say it's ruled out is unless congress provides otherwise. congress created the statutory claim. congress could have but has not provided a judicial remedy. if you're talking about constitutional claims on the other hand the rule is different. we agree that for constitutional claims if a u.s. citizen can show a violation of his own constitutional rights, review is available. but so on your hypothetical, i think it's important to
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emphasize that we're talking about statutory claims. and if congress created the statute, but congress chooses not to provide a judicial remedy, that should be no concern of the courts. it is congress's statute to begin with, and if congress hasn't provided a remedy that's up to congress to do. there is no concern for that, and no one has thought that's a problem when it comes to individual chancellor officers. individual chancellor officers can misinterpret the ina and they're not subject to judicial review. i would point this court to the romero decision from the eastern district of virginia. it's cited in the dc circuit's opinion. it makes exactly this point. even statutory violations are not subject to review under the doctrine of chancellor nonreviewability. cites a case holding including a case from the fifth circuit. there's no explanation they can provide for why an individual chancellor officer can misinterpret the ina but not be subject to review, but that the president of the united states is subject to judicial review turns everything on its head
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because the apa and equity don't provide greater relief against the president than the chancellor officers, exactly the opposite. the president's not subject to the apa at all and he's not supposed to be subject to injunctive relief either. >> what about his subordinate officers? >> so subordinate -- >> that is -- there are cases that recognize in this kind of circumstance that where, correct, you may not have a claim directly against the president, but the secretary of state, the secretary of homeland security and all the underlying officials who are implementing the president's policy, why aren't they subject to an action? >> so subordinate officials -- >> and our cases talk about -- not so much equitable, but as a nonstatutory cause of action where the policies that are being implemented are contrary to the statute. >> right. so in general it is certainly true that subordinate executive
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branch officers are both subject to the apa and sometimes to policies of action. but critically what is not true is that they are subject to such review for the exclusion of aliens abroad. that is precisely the doctrine of chancellor nonreviewability. they're not going to be able to stand up and cite a single case that says when chancellor officer excludes an alien abroad in violation of statute you could sue them under the apa, under equity or under anything else. that's because there is a background principle that has existed for this entire country's history that that type of decision is -- >> the focus of their lawsuit is against the proclamation. >> i understand that. >> the broad scheme that they've -- that's adopted through the proclamation. >> that's true, your honor, but the doctrine of chancellor nonreviewability is not based on some sort of bureaucratic discretion. if you read the cases they're not saying the reason we're not going to engage in you zishl review this is an interstitial decision. the rationale of the decision, of all these decisions is that
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the decision to exclude aliens abroad is a fundamentally political decision of foreign policy that is committed to the political branches unless congress provides otherwise. i would commend your honor to the dc circuit's decision. if you read the rationale in that case. i think the answer is unambiguously yes. >> let me go back to 1182. i had one other question with respect to 1182-f, if you go to the text of the statute. when the president acts under 1182-f, it should be for a definite period of time. it appears the proclamation is for an indefinite period of time. >> so i think that's not right for at least a couple reasons, your honor. >> well, if you go to the statute it talks about what would be detrimental to the interests of the united states he may by proclamation for such period as he shall deem
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necessary suspend. that, to me, suggests that there's some limitation within the statute itself as to the duration and to the circumstances under which the president is to act. >> i'll say a couple things about that, your honor, first of all, the statute says for such period, doesn't specify what the outer bound of that period is. >> i understand that. >> second, this proclamation is far less indefinite than other proclamations in the past, rainian hostage crisis proclamation and cuban diplomatic dispute proclamation, those indefinitely suspended entry without any fixed firm end date. for example in the cuban proclamation that diplomatic dispute had been going on for 15 months by the time president reagan imposed the entry restrictions. no reason to assume that would be finished any sooner than this one. this proclamation actually does have provisions in section 4 for continuously considering the
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length of the suspension. every 180 days it will be revisited. those proclamations didn't even have that. so there's just simply no way to say that this proclamation violates 1182-f without saying all of those ones did too. >> there's no definite time period on it. >> this proclamation like the others that have preceded it do not have the fixed time. >> the other question i had, how does 1182-f fit into the all the other provisions of 1182, that is congress has set forth a whole host of provisions dealing to entry and nonadmission, and recently they added the provisions regarding terrorists and whatnot. this seems -- the proclamation seems to disregard everything that congress has laid out. >> i don't think that's right, your honor. >> why not? >> because what 1182-f does is provide the president with additional authority over and above 1182-f to make findings of detriment to the national interests. i would point your honor to the
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dc circuit's decision in abarask and ienday. in those cases, both those circuits held there was a ground for see have a inadmissibility that the courts both held that the courts held if the alien's activity in the country was harmful, not mere entry. nevertheless both of those courts said the president, however, under 1182-f could say that mere entry alone was detrimental to the nsational interests. you had express limitation on admissibility ground. both circuits said the president, nevertheless, had been authorized to impose additional restrictions. i would also point your honor to the supreme court's decision in sail. in sail there was a provision of the ina that provided illegal aliens with various protections in exclusion procedures, but that statute only applied territorially. what the president did was he
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established a blockade outside of the territorial waters precisely to avoid triggering that statute. and the court said i believe eight to one that was clearly within his authority to use 1182-f to avoid triggering the restrictions in the ina. >> quick question before you sit down and -- until your rebuttal time. this is the one that prohibits discrimination, nationality, has a clause except as otherwise provided, and it lists specific subsections of the ina. it does not list 1182-f, what do you make of that? >> what i make of that if you look at the exceptions listed there, specifically, those were all added to the ina at the same time as 1152 was. however, no one, including them, say that is the exclusive list of exceptions to 1152 because,
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for example, section 1253-d of the ina expressly authorizes denying both immigrant visas and nonimmigrant visas based on nationality in certain circumstances. >> it's curious, isn't it, that if congress did intend that the 1182-f could override anything else in the ina, that they would leave that off the list of 1152? it's kind of curious, isn't it? >> i don't think it's anymore curious,down, than the fact they didn't specifically list other preexisting provisions of the ina that authorize nationality discrimination, including, as i said, the provision i just cited, 1253-d, that is about immigrant visas, specifically authorizing -- nevertheless still not listed a as an exception in 1152. i would think that 1152 -- >> i haven't heard that since
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law cool. >> does not impliedly repeal 1182-f, one last point on 1152, your honor, i would like to reserve the remainder of my time. on their reading the suggestion would be that even in cases of countries where we were on the brink of war, or unidentified threats from foreign nationals, we couldn't suspend entry and suspend the immigrant visas. their only response to that is to say, well, that's okay, that would be a compelling interest and therefore there's an exception to 1152. that's not in the statute. the statute doesn't say discrimination unless you have a good reason to engage in discrimination. when federal statutes create exemptions to discrimination provisions they say so expressly. thank you, your honor. >> thank you, counsel. by the way, for counsel's purposes, planning rebuttal argument, i'm just going to sort of arbitrarily add five minutes to your rebuttal time. and i'll give the same extra
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time. >> thank you, your honor. >> to the appellees if they want to. >> all right, thank you, judge gould. may it please the court? mitchell reich for the plaintiffs. neal katyal will discuss the merits. 150 million foreign nationals, most of them muslims and reshape the immigration laws congress designed. every time the government's been before this court it's made arguments -- >> this is a little bit different, isn't it? the prior to versions of the executive orders were based a bit on speculation. we've now had a 90-day period in which the government and its agencies, the homeland security, the department of state, et cetera have gone through and in part, based on information provided by the past administration, have determined that there are certain countries in the world that you can't tell if person "a" is really person
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"a." what's wrong with that? >> my will get into the merits more. i think this court laid out clearly in its prior opinion, the government had not identified any respect in which the existing case by case vetting process is failing that the burden is on the -- is on the alien to show they're admissible. if they can't produce documents sufficient to do so, then they can be denied entry. >> even if the documents themselves are in firm? his forly infirm? >> for each of the country bans the government -- >> you would trust kim jong-un to sigh this person is really this person, you've got to take him in? >> for each of these countries the government is allowing these people in. the government hasn't made the contention and nowhere the government has argued it's incapable of the existing process of denying harmful aliens. that finding isn't in the order. they say the documents are insufficient when they don't
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show one. my colleague will get into the merits more. >> what do you propose -- if this is in your colleague's bit, tell me? what do you propose as a remedy? >> we think the record for the preliminary injunction is all you need to find this order unlawful. we've made allegations. there's no disputed questions of fact. this order does not meet what you called the essential preconditions for 1182-f, does not contain a finding that supports the exclusion and does not under a century of interpretation describe a way that these aliens would be detrimental to the interests of the united states. i do want to address -- my opponent's -- sorry, your honor. >> i want you to address it because i want you to address what mr. mooppan was just saying, as i understand his argument, well, there may well be 1331 general jurisdiction. there isn't a vehicle with which to get at the statutory claims.
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>> yes, your honor. we think we have a clear cause of action. there's the apa cause of action and then there's the nonstatutory cause of action which i didn't hear my opponent deny exists as a route to review of the president's proclamation, his -- i think ushz pause on the breast taking argument you heard the united states government make in their briefs at page 6. the president -- or any office in the executive branch can, quote, brazenly violate the immigration laws, can ban every alien from the country in clear violation of 1182-f and no court can review that violation. indeed, they say in their brief, plaintiff's only recourse is to the political process. that's not the way the system works. that's not the way the law of reviewability has ever worked. i want to be clear on this point. for individual chancellor officers and for the president there is review of statutory violations. my opponent said we can't cite a single case saying that chancellor officials violation of statutes are unreviewable. let me cite you one from this
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court. 17-f.3d 1108 has this. the suit challenges the authority of the chancellor taking action as opposed to the decision within the consul's diskrigs, the case they rely on, a discretionary decision by a consul the court emphasized this was the decision wholly within his discretion they challenged the suftsy of evidence. we have here a violation of statute. in both revos, i urge you to read the cases, invalidated the visa decision as a result of them. more over this court in washington and in hawaii heard the same arguments you heard my opponent make. and in both cases it held the doctrine of chancellor nonreviewability has never been applied beyond an individual chancellor's decision to grant or deny a visa, does not apply toim grags policies. that was correct. the washington decision remains
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binding. that's true for a number of good reasons. the immigration laws insulate individual chancellor decisions from review. in 1104-a they provide the secretary of state cannot control visa provisions. they state a -- revoke a visa at any time. that discretion is unreviewable. congress chose to make individual visa decisions unreviewable. congress did not choose to make immigration policies unreviewable. in noff and in sail they reviewed the decisions under 1182-f and immediate predecessor. i might add in sail in the face of the government's vigorous argument, the chancellor -- no justice on the court accepted that argument notwithstanding that when chancellor nonreviewability applies its limited. the court cannot skip the question. i think the argument you've heard, not true of individual consuls, not true of the president. and if that was correct that would be quite a staggering blow
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to the separation of powers, the president could essentially usurp the limit of the president's authority with impunity and this court would have no authority to review them. i'd like to touch briefly on finality and zone of interests. the court addressed that in its prior opinion. we have dald declarations by every plaintiff documenting the present harms, every plaintiff is suffering irrespective of the waiver by advisor chew of this order. the record of the university cannot recruit students, multiple speaking events that can't be held, individual plaintiffs are being separated from their families. and the remote discretionary prospect of a waiver would in no way ameliorate those harms or repair the unequal treatments those plaintiffs are suffering. >> do you agree by its terms
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1152-a only applies to immigrant visas visas. >> 1152-a by its terms is limited to immigrant visas. since the enactment of the statute run leer late, the judge decided that was dramatic alteration to the system, congress had taken it off the table. in gene v. nelson, individual immigration officers exercising discretion can't generally discriminate on the basis of nationality. we think there's a broader principle embodied in the immigration laws. >> the answer to my question is yes. >> we agree on the text it's limited to immigration visas. >> thank you. >> thank you. >> thank you, judge gould, may it please the court? it's an honor to be before you again. there are four separate arguments on the merits, each explains why the president's
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unprecedented sweeping is illegal and each is supported by prior decisions of this court involving executive orders 1 and 2. the four arguments are, first, under section 1182, the president has not made findings that support his conclusion that the entry of nationals from these countries would harm the united states. second, 1182 separately requires the harm to be detrimental to the interests of the united states -- >> has to actually use those words? >> he doesn't have to use those words, but i think he does have to do what his predecessors have done and follow the practice. i'll explain that in a moment. it can either be the individuals themselves harmful. spies, or that it's kind of outer bounds emergency situation or something like that. >> so the 46 other executive orders on the subject matter have been issued all contained what you're describing? >> i do think they all meet what i'm describing, yes. here's why, judge hawkins. this was your question that you were starting to ask my colleague right at the
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beginning. you said isn't this executive order different? isn't there now a worldwide review? i think that fails for two reasons. one is this court -- that they have not made the findings that this court called for under 1182, and second the findings they do make are not the ones that are detrimental to the united states. let me walk you through that. before doing that, i'll get the last two arguments out. the 1152 violation. that's the third problem. the nondiscrimination, the fourth is the first amendment and religious discrimination. to answer your question posed to my colleague, here's the problem. here's what you said in your hawaii decision at page 773. quote "although the order explains conditions in the six countries lessen their government's ability to share information, the order specifically avoids making any finding that the current screening processes are inadequate as the law stands an applicant bears the burden of showing the applicant is eligible to receive a visa or other document for reentry.
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the order offers no further review explaining how these individualized adjudications process is flawed such that permitting entry of an entire class of nationals is injurious to the interests of the united states." now that's what you said. it was your clear holding. he then had his vaunted seven agency worldwide review. where did they ever find what you called for, which is that the individualized vetting process isn't working? my colleague on the other side just began his oral argument with i think these words. he said "this executive is, quote, a multiagency worldwide review process, eight countries have inadequate information that undermines the visa vetting systems." there is zero language in this executive order about undermining the visa systems. they have not made the finding. this is quite remarkable. you as the court of appeals said here's what you have to do, mr. president, you have wide discretion under 1182. the state of hawaii is not disagreeing with that.
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you've got to make a finding that the individualized vetting process isn't working. in the teeth of that, what did they come back with? zero. they've talked about bargaining and diplomacy and information restrictions. the burden always on the individual visa applicant to come to the united states. and if you can't show any bad folks are coming here, then there is no 1182 finding. their answer is like to say, well, you know, there's all sorts of information problems there. but the information problems, the identity management problems, the dictator who we're worried about giving false information, as long as the individualized vetting system is working, that's enough. and you have before you, again, just as you did last time, national security experts saying exactly that, that's the excerpts of record at page 55, you know, people like secretarial bright and senator lugar and general hayden saying that. you don't have to get to the
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record or anything like that. you made a clear requirement to the government. when i was in the government if a court, even a district court, or even, you know, some small whatever court said you've got to make this finding and then you had a long interagency process and they didn't make it, boy, that's a dog that really didn't bark. and so, you know, even if you concede everything about, you know, giving wide berth, deferential and so on, they have not made the finding that this court required. that's the first and i think most significant problem when we deal with 1182. >> let me ask, were we too demanding in our prior opinion? >> i don't think so. i think it's something any president should be able to meet. judge paez, the idea that a president is going to be constrained in some way. all you said was make a finding that there's something bad going on, that entry is harmful. i do think it's telling with all of these agencies and all of this review they couldn't do it. and i think, you know, the national security experts tell you one reason why, which is the
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individual vetting system is working. you don't have to get there and have that debate. you made a procedural request, make the finding, they didn't do it. now there's also a substantive part of 1182, and that's what your question to my colleague was getting at, this bargaining chip idea. the bargaining chip, even if conceded the bargaining chip they want extra information and vetting, and, you know, i don't think that's going to qualify, but even if you thought it would, they'd have to first identify, again, that some bad people are coming into the united states. it's kind of like, you know, those coin sorting systems when you go to a bank and it sorts out quarters and dimes and so on. and the government is saying, well, you know, the president is saying, well, there's someone throwing in some buttons to the system, some spurious material, that doesn't matter the input as long as the filter is working. what this court said is it looks like the filter is working. tell us why not, mr. president.
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they have not done that. now, there's also a substantive problem as i was saying which is, you know, that 1182 doesn't, i think, permit the kind of, you know, foreign policy harms at large that he's talking about here. you know, the text of the statute is the president has to find that the entry must be detrimental and earlier your predecessors, your earlier decision in june said, for example, government resources or something isn't interest being harmful. similarly here the entry here that he's asserting, this bargaining chip is not, itself, you know, is not itself showing there's any immigrants right now coming or not, or folks on visas that is detrimental to the interests of the united states. so that's why we think 1182, again, we concede that there's a lot of discretion for the president and no president has any trouble meeting the standard in the past. that's what the c.r.s. report says. but this is really a step that's
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very different. and, you know, if you read the government's brief you get the view that, oh, presidents do this all the time. things like that. absolutely not. they've been able to muster, you know, in the 45 or so instances of the president using 1182 over the last 70 years two examples, tops, and neither of them is very good. for exactly the reasons you said in footnote 13 of your predecessor opinion, those are exigency emergency circumstances done to address a diplomatic retaliatory fast moving action, certainly not something like this in which the president has had ten months in office, he's saying this is important for national security, and yet he's never in the teeth of being struck down time and again gone to congress and say, hey, set up this vetting system, improve it, do whatever. that's what presidents did after 9/11 and the 2004 act and other things. nothing like that here. instead he is asserting, and this, judge gould goes to your hypothetical, which i found his response very telling, the idea
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that the president can ban all immigration from around the world and this court would be powerless to review it, i mean, his argument is essentially the president can take an iron wrecking ball to the immigration code that finely articulated system congress has done and put the president in the driver seat. that's certainly some constitution. it is not the constitution of the united states. judge paez as you were saying earlier to my colleague on the other side, 1182 itself, his argument would allow the wrecking ball to line item veto any provision in 1182. congress is thought with a fine-grained ten-part reticklating test about excluding people with terrorism. and it hasn't done this drag net which he has engaged in. >> will ever you shift off this. trying to understand how the statute works or should work, and even acknowledging what we
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said before, if you just stand back and look at it for a moment. to what extent should the court or how deeply should the court dive into trying to criticize or look at the court, at the president's findings? >> so first he's got to make one that's relevant. >> right, right. >> so that, i do think, is, you know, has got to be the eleven -- >> in your view that finding is individual "a" came into the country through the prior system and committed a bad act. >> well, it doesn't even have to be -- >> absent that is it your argument he can't do it? >> he can be even a class of people or something like that. you've got to show there is an entry that, quote, would be detrimental not, you know, some hypothetical or something like that. but, you know, there's a lot of history behind this. our brief goes through it, pages 30 to 39, exactly this history. fdr wanted a broader authority. what congress said is no, we're
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not going to give you that kind of untram elled authority to do what you want. you've got to be -- it's got to be people who are injuryious to the united states themselves, or possibly at the outer bounds, an emergency situation. but this is neither of those, which is why -- what the problem is. >> my other part of the question, follow-up on this is to what extent at all can we look at the president's intent that might be underlying his actions under -- >> i don't think you need to get into anything about the president's intent here, your honor. i think you should ask two questions, two fundamental questions. one, has the president made the finding that's required under 1182? and second, of any sort of threat that the 150 million nationals are a threat. then two, is that threat detrimental to the interests of the united states in the way that the court, i think, would expect it to be, which is, you know, those two categories? that's what all of the
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legislative history is about. if i could, maybe i'll turn to, judge hawkins, your questions about the other argument, 1152, the other argument. congress in 1965, i think that's what this court's predecessor decision in june recognized did something sweeping by banning nationality-based discrimination. my friend says this is what presidents have done all the time. never, ever, ever, ever has a president done this since 1965 when president johnson introduced the act in his state of the union address he said, echoing predecessor, a nation built by immigrants of all lands can ask those who now seek admission what can you do for our krount, we should be asking in what country were you born? effectively that's what this order does. now, judge hawkins, you said, does this extend to everything? the statute says immigrant visas, does it extend to nonimmigrant visas as well. we do think it does. that is, as judge friendly said the year after president johnson
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made the statement, the statute is -- the immigration code is fundamentally altered now. altered in a way that says that, you know, you can't have as a relevant factor nationality anymore. that's what this court's predecessor decision recognized. it didn't squarely reach the question. the last time around immigrant visas was a smaller percentage of the overall visas affected by executive order 2. now it's a much bigger one. and so even if you disagreed with what i'm saying about gene versus nelson and judge friendly, which would take and declare invalid a huge part of the order. it's exactly the reasons you found the last time around, no change whatsoever from executive order 2 to 3 when it comes to nationality-based discrimination. my friend has said in response to your questions, congress has still left in place the 1182 power. somehow that should trump 1152. that's the wrong word. and with respect to that, i
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think that -- i think this court answers that in its last opinion by saying the 1152 is a later in time statute and it is sweeping and it admits of only certain exceptions. one exception is not the president can use 1182 and restore the entire nationality, national origin discrimination system that existed before 1965. that can't possibly be what congress was thinking. rather, as judge paez, you said in the last oral argument, the job of the court is to reconcile two different statutes. here you've got one statute that gives the president admittedly broad powers in 1182. it doesn't extend so far as to say you can discriminate on the basis of nationality, and indeed congress in its text expressly said to the contrary. >> counsel, i have a question for you. assuming, for sake of argument, that we were to accept the government's position that
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1152-a only applies to immigrant visas, and to nothing else, am i correct that the proclamation here would still fall in total because of the lack of a proper detrimentality determination? >> absolutely. there's two totally different statutory violations, 1152, which we think covers everything. but as your hypothetical said, assuming it only covers executive orders. but our other argument about detrimentality in the finding is an 1182 argument. that stands totally separate and it does knock out the entire order just as last time around when you found 1182 it knocked out the entire order. they just have not met what you said at page 773 with respect to 1182. if i could, maybe i'll spend
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some time on the constitutional claims. i think they're important and i think, judge hawkins, maybe to start with, why does this -- why is this religious discrimination? last time around you asked my opponent on the other side, the solicitor general, you said has the president ever disavowed any of these campaign statements? he pointed then to some amicus brief and tried to make that argument. i think the record since that time, since we last met is really quite telling because in the interim we had the fourth circuit on bonk say this executive order 2 was a violation of the first amendment, that it was religious discrimination, that it was effectively a muslim ban. in response to that what was the president's action? was it to do what i think, you know, any government official i would have thought would do, which is to say no, this is not a muslim ban, that's a campaign thing, i'm not doing that, does the president say anything like that? absolutely not, instead -- >> the question you referred to was from the hearing on 1, on
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may 15, when we were all here. >> executive order 2, yes. >> and my other question is that in our opinion on 2, e.o. 2, we pushed aside constitutional considerations, made our decision only on statutory interpretation. why should we change that. >> i don't think you -- >> otherwise your argument is stick with what you've already written. >> i'm not here saying you should reach the constitutional reasons unless you disagreed with us on statutory things. >> did the district court rule on constitutional issues. >> they didn't. if you disagreed with what our statutory arguments are, which would require you to disregard everything you wrote, if you did for some reason, i think you should reach the constitutional arguments here. they are briefed and well developed. the record has only gotten worse since we last met in may. that is to say that the president has not moved away
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from his campaign promises. and indeed has just issued a new executive order. and, you know, you can even look to what was said last week as i think a kind of telling indication of bridging the past to the present and rekindling the past. >> let le take you back to 1182-f for a moment. suppose that just theoretically speaking that we didn't think the finding was sufficient. or we thought the finding was sufficient, i should say. >> oh, okay. >> just looking at it, that gave a reason, and we went too far in our prior opinion, maybe. hypothetically speaking, is there another way in which the president could -- you -- we could rely on 1182? >> as you were saying to my colleague the limited nature of this, that is the 1182 does have the word suspend and period, and absolutely i think this court
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recognized last time around in its may 15th -- post may 15th hearing opinion that the government, the president has to have a rationale that's sufficient to show it's detrimental to the united states. as the policy gets longer in time that rational has to be better. last time around, the solicitor general said this is only a temporary ban. we only need minimal justification. now that this is a ban of indefinite duration they do need to justify it with the stronger finding. that's what the district court here expressly found relying on your opinion below. i don't think that even if you were to find that somehow they make the finding that you called for at page 773, they've met the kind of finding necessary to justify this indefinite ban, i mean, again, no president does anything like this. i mean, their closest examples are so, so far afield and, you know, of course the supreme court has said even if the president had done this in the
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past, it doesn't make it constitutional. but they have -- or legal. >> my question, at what point do we reach a serious separation of powers situation? >> well, i think if -- by their argument you're in the separation of powers problem right away. he wants to gut the role of this court entirely. from our perspective, we understand that 1182 gives the president broad powers. but it does have a procedural and a substantive component to it. they've got to make the findings and the findings have to be sufficient. and under your hypothetical, they've somehow met that they've made the finding, but it still has to be sufficient. as that ban gets indefinite it sure looks like a very hard thing for them to do given the record that they have adduced in this executive order. >> on the issue of indeft nitness, and we could be wrong, my chambers found 43 orders
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under 1182 since it was enacted and only one had a time limitation. >> i'm not here saying the president can't make an indefinite order. i am saying that 1182 contemplates a limited one, the period of limited time, and if there is to be, as this court said last time around, if there is going to be a justify cation under a finding, as the policy gets longer that justification does have to be better. >> the proclamation which requires periodic reviews and reports and adjustment of the policy from your perspective, that's not good enough? >> it's not good enough. first of all it doesn't even require it. the last lines of the order say there's no guarantee to any of it. i don't know that it requires it. i think ultimately the problem is that the finding isn't justified on its own terms. that is, this is not a circumstance in which they said we distrust individualized vetting. indeed, they have all sorts of exceptions for countries, even ones that fail on information sharing or identity management for individualized vetting. this is not, you know a kind of
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coherent document that says we just distrust our own processes or something like that. that's the fundamental problem with it. -- >> to the day since donald trump called for a complete and total shutdown of all muslim immigration to the united states. it will also be another sad anniversary, 76 years since the devastating attack on pearl harbor. pearl harbor led not only to an assault on our nation's security, but also an assault on its most basic commitments. the walls of this very courthouse where biashi was tried bears witness to that tragedy. what the government did then in the name of national security did not make us stronger, it betrayed our values, it betrayed our nation's soul. and rather than defend those values, the court stood by them. twice now this court, reflecting
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the dissents in those cases, not the majority, has made sure not to repeat that mistake and to avoid the nightmare of judge gould's hypothetical of a federal court system that is powerless. this court has twice asserted its vital role as guardians of the law and rejected the president's attempt to flout our constitution, to flout our laws. we ask that this court do so again. >> thank you, counsel. >> your honor, several points, your honor. first and most important is mr. c katyal's absolutely right. the e.o. 2 didn't have a finding that the vetting was inadequate. he's absolutely wrong that the proclamation doesn't have those findings today. let me read through the findings to make clear how wrong he is.
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from section 1 c of the order, it makes clear that the -- sorry, i lost my -- that the secretary of homeland security was required to which directly contradicts what he said. the restrictions and limitations imposed by this proclamation are, in my judgment, necessary
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to prevent this entry of those foreign nationals about whom the united states government lacks sufficient information. . in fact, he doesn't really argue otherwise, despite having asserted it. what are about people who engage in harm abroad. he did not challenge in this proclamation the provision set of pride -- applied to venezuela. they apply to government officials and their family members. no one is arguing that their
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family members are going to engage in harmful behavior in the united states. the reason that restriction was deter ands to sanction foreign officials the united states. the reason it was imposed is to sanction foreign officials that had had engaged in harmful behavior in the united states. he didn't challenge it because it's simply wrong that the individualbe has to engage in harmful behavior in this country. that has never been what the statute has been about. and they'vele jerry mandered th interpretation because the problemob is there's harms from the foreign governments and the way we are dealing with that problem isrn by imposing entry restrictions to impose a the foreign governments to restrict their problem. >> so where does the proclamation allow for entry of
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certain categories without any restriction? >> that's t exactry the point i was just making. >> explain to me. >> because the point of this proclamation, in significant part, is to encourage foreign governments to change their behavior and that is not a one-size fits all decision. it is an intricate and complicated foreign policy judgment and the president -- >> if you take the statement that you read to us and link it back to concerns about concerns for doing adequate identification of who the applicant might be and for example in chad the proclamation suspends immigrant visa business visa tourist visas business/tourist visas but no restriction on student and other non-immigrant visas. so if they're concerned really about identity, how does that
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all line up? >> the pras the proclamation exchanged, imposed lesser sanctions on those that still cooperate but are inadequate. it's a perfectly rational way to encourage countries to perform. more importantly they have no explanation lat for why those restrictions are the way they are. on their theory it's a muslim ban or something else, why on earth are there exemptions.rs it is tayloring the restrictionr in a way that the president and his advisors determined would be most likely to encourage foreign governments to change their behavior.ug the it third point is he is again and again suggested this is somehow a way of replacing the ina, over hauling the ina.
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yet again there was no response to the d.c. decision, the supreme court's decision in sale. all of which recognized the impose additional restrictions over and above what is in 1182-a. the fourth point, your honor, is on 1152 and nationality te discrimination -- >> sale dealt with -- that was a case of the haitians entering and they were stopped coming to the united states. >> that's right. and -- >> and the plaintiffs, they were arguing that claims for asylum and with holding of removalicide have still applied to those on their way to the united states and supreme court said no, those don't aply until they get to the united states. >> and that's exactly the point, your honor. the president used 1182 f to warrant the haitians from being able to invoke the provisions
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under the ina if they had had got in here. >> i'll have to go back and read the case. but i don't recall -- >> theth entire fight was that e haitians the reached the shores they would have been able to an invoke all sorts of claims for asylum status and precisely to avoid that, precisely to avoid that the president imposed a block aide that prevented them from getting to the shores. >> the other interesting thing about sale is the court had had no difficulty reaching the questions involved in that cases >> that's true but they rejected the claim. >> theyd rejected them on the merits. >> that's true, your honor. >> they reviewed the claims. >> but they didn't say the claims were reviewable and they didn't have to decide -- >> why would they go to the extent they did? they could have said we're not going toto review it. out. >> they found the statutory issues pretty easy. it was 8-1 and i think that's a
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pretty. reasonable explanation. and the fourth point is on 5252 and nationality discrimination. i believe he said never, never has a president engaged to deny immigrant visas. but that is exactly what president carter did for iran and what president regan did for cuba and he again has literally no explanation for that. the last point i'd like to make before i sum up is nonreviewability. theyre sited a couple of cases. to be honest since i don't believe either were sited in the briefs, i'm not familiar with the firstst one. but i am familiar with the second which i believeie was putell verses reno. that didn't involve an order to require an alien to inter the country. they had to rule on the visa application. it didn'tt say the substantive decision would be reviewable. and more generally, their scare
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tactic that this would mean no review and congress's scheme would be over ridden. these are statutory claims. if congress is worried, they can provide remedy and congress simply hasn't done so. >> there would be no remedy unless congress acted. but congress could act.ia >> of course. congress could of course provide a cause of action for the denial of entree to aliens abroad in violation of the ina. the point is they haven't done so andff has never done so and that is why when consler officers restrict aliens abroad, even in violation of statute, there is no review. >> thank you. i'm afraid your time, even with the extra five minutes is more than exceeded. >> thank you, your honor. >> i want to comment really that the advocacy on both sides was
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exceptionally helpful and we really appreciate it.ub accordingly. the y v trump case shall be we'll try to get an opinion out as soon as practical. i think the supreme court has asked us to do that. so we shall comply. okay. thank you. court is adjourned. >> all rise.
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