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tv   4th Circuit Court of Appeals Intl Refugee Assistance v. Trump  CSPAN  December 11, 2017 1:03pm-3:06pm EST

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certain restrictions on nationals from eight countries, chad, iran, libya, north korea, syria, somalia, venzalia and yemen. the supreme court issued an order allowing the ban to take full effect. this is about two hours. hours. [inaudible] [inaudible] [inaudible] [inaudible]
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may it please the court. as the supreme court strongly signals the proclamation is fundamentally different than the prior executive order. the proclamation reflects a multi agency world wide review, engagement and recommendation process and substantive findings are the countries have inadequate information sharing practices or other risk factors that undermine the vetting system and warrant taylored entry systems to encourage to improve practices and protect the nation until they do so. >> in light of the fact that the standards for stay and preliminary injunction are essentially the same, would you tell me what you think the supreme court's action on monday in issuing the stay which you
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solved, how is that going to play on the ultimate resolution of the junction in front of us? >> your honor, i think the primary element of a stay as plaintiffs have urged the supreme court in opposing the stay is that we had to show a likelihood of the merits. we know the supreme court thinks we have a likelihood of success on the merits. we know how they struck the balance last time the fact that they granted a complete stay in these circumstances pretty strongly signals that they think it is more than just a mere likelihood of success. i think there is indication that the fact they stayed the injunction. >> they are going to stop the preliminary injunction, as well? >> i think that is a strong signal. you can never infer too much when they don't give reasoning but i think that is a pretty strong signal, your honor. i think it is because of critical differences between
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proclamation and prior order. in light of those differences the proclamation falls well within the president's statutory and constitutional authority to restrict entry of aliens abroad. the court agreed that the -- >> at least early on they -- the supreme court let almost all of that stand, as well. >> they stated in part with respect -- >> bona fide. >> for the individuals who did have a bona fide which we agree we found at least a likelihood of success. as i was saying -- >> can you pull your microphone or talk a little louder. thank you. >> the district court actually agreed with us that the proclamation satisfies the requirements of 1182-f. i would like to begin there --
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>> you mentioned that the critical differences between the proclamation now and executive order, what can you delineate what you think are the most important critical differences? >> yes, your honor. the procedural component and substantive. on the procedural side the critical difference is that this writ involved a multi agency process where under the executive order the president instructed the agencies to determine what information if any they thought was missing from the information provided -- >> i didn't read the if any into what the president directed be done. he directed that certain countries be found to be banned. >> i don't think that is right. if you look at section 2-a. >> not that certain countries but which countries should be banned. >> if you look at section 2-a of
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the executive order the exact language i believe is whether there is information that foreign governments are not providing. it doesn't say that there is information that is not providing. >> it didn't say if any, either. >> if any was my gloss on whether. >> when the proclamation directs that the secretary provide a list of countries that would not comply with the requirements of the proclamation, that's not an edict in your mind that there has to be an affirmative list just that following the review there may be some, many or none who appear on that list. >> that's right. i think that is true for at least three. the first is section 2-a asked to identify whether there was information that was missing. section 2-e appropriate categories from nationals that aren't providing requested
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information. there were no countries providing requested information by definition it would be zero. if there are countries that are not providing requested information it expressly says appropriate and we know the agencies took that seriously because iraq was found to not be providing, not meet the baseline and yet agencies recommended and the president decided not to include iraq on the list. we know this was not a pre-ordained conclusion. we know the agencies had expressed discretion under the eo to make a recommendation to the president of which countries to include and they exercised that discretion. they didn't just omit iraq and this turns to the substantive part to differences. on the substantive side it is a very tailored restriction. they omitted iraq. they omitted from the earlier decisions even with the countries that they covered they
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have exemptions for nonimmigrant visas for several countries. >> in reading proclamation as i understood it one of the primary basis or justifications for imposing the ban on the seven countries differentiated by class of visas is the hope and expectation that there will be a change in processes for these nations in improving their information sharing practices. i'm still having trouble seeing how that kind of bargaining chip is at all the necessary link, perspective finding that the entry of the whole class of nationals, 150 million plus would be detrimental to the united states. can you help me with that? >> sure, your honor. >> i think it is a traditional exercise of the use of 1182-f to determine when a foreign government is engaged it can be deemed detrimental to allow the
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countries nationals. it is precisely what president carter did with respect to the iranian hostage crisis. >> that issue wasn't adjudicated. >> unless this court is prepared to say [ inaudible ] based on hope and expectation that they incentivise the nations to cooperate. the connection there to me is missing. >> just like president carter restricted all immigrants from iran from entering because of the hostage crisis, no one was suggesting that every immigrant from iran was a threat at all to the united states let alone connected to the iranian hostage crisis. the point of the order is because the government is
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engaged in those practices -- >> don't we have restrictions on entry. if you don't have the sufficient necessary information to enter you don't get a visa. why this addition prophylactic measure? >> we have vetting systems. the findings made here is that foreign governments are not providing sufficient information to allow the vetting to occur. >> if that is the case and the conclusion is no enter. >> nothing in 1182-f imposes the narrow least restrictive alternative. >> even in the face of a statute that otherwise delineates exceptions for entry that congress carefully calibrated throughout? >> i think that is right, your honor because as courts have
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repeatedly recognized 1182-f is recognition that the president can impose additional restrictions. >> are they limited at all in time? can this be done indefinitely as the president has done here? >> the statute says -- >> suspended for such period and i have struggled to find a dictionary definition that said a suspension is for an indefinite period of time. can you explain for us how the indefinite ban imposed here complies with the language of the statute? not with what has been done by other presidents but how does it meet the statutory grant of authority? >> the first point is that the statute says for such period i believe as he may deem necessary. in this circumstance with the problem that is risen is the countries aren't giving us sufficient information it is entirely permissible to say that the period will last potentially until they correct their
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informational deficit. the order doesn't even go that far because what the order actually says under section 4 is that every 180 days the president and agency will revisit. >> there is no sunset provision. it is in place essentially forever unless he says otherwise. >> it is in place until the countries improve their practices or until he decides to change -- >> let me ask you another question. let's say that this study contains information which is likely to be true that most terrorists are people who commit terrorist acts are men. could the president then ban all men under the express authority granted by 1182-f. could he ban the entry of all men until evidence showed further that men are not the ordinary and customary perpetrators of terrorist activity? >> i don't think so, your honor?
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>> why not? >> i don't think using gender as a proxy will satisfy -- >> if you can't use gender then there is a question of violating section 1152. is that what you are driving at? >> i was driving at that under mandel the restrictions have to be for facially legitimate reason. >> why isn't it facially legitimate if 99% of terrorist acts are committed by men aren't we really protecting this country if we just keep out the m men? >> you have to target the -- nationality is not a proxy target? >> nationality is not an inviddious classification. immigration law is rife -- >> you agree section 1152 bans discrimination based on gender and nationality?
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>> only in the context of issuance of immigrant visas. and that language is critical. they would never use language in the issuance. it is clear that the issuance of immigrant visa does not entitle anyone to enter the country. you always still have to be admissible and so if congress intended to implicitly repeal the president's authority under 1182-f to sususpend the entry they would have never used the issue. this is clear from the legislative history. >> can i ask you a question? in your view can the president use 1182-f to promote or further any foreign policy objectives that he might think acceptable? this one i guess arguably is related in the sense of the report talks about the vetting
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deficienci deficiencies. if he was unhappy with a nation for some unrelated reason regarding foreign policy objective could he say i ban the seven or eight nationals from this country in an effort to promote my foreign policy objective? >> i think the statutory language whether in the national interest. i think if he is trying to accomplish foreign policy objectives that is prumpively -- >> not at all related to the -- at least in this case related to improvement of vetting process? >> i think it is right. i understand neither was challenged but both of those orders have exactly that feature that because of foreign policy disputes with the government the president restricted the entry of immigrants from those countries without any suggestion that the individual nationals
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who were subjected to that restriction had anything to do with the foreign policy dispute with the government. this case is stronger than that because here the concern we have with the foreign governments is about their failure to provide this information about the very nationals whose entry we are restricting. the case is much stronger than the prior historical examples of the use of 1182-f. >> i have sort of a threshold question. i want to be sure i understand the argument that you make. is that meant to include an argument that the plaintiffs whether for the statutory claims under 1152 or constitutional claim that they do not have standing in this? >> so we have made an article 3 argument but primary arguments are focussed on nonreviewability in particular that on the
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statutory side statutory claims challenging exclusion of aliens abroad are not reviewable unless congress expressed otherwise. on constitutional claims that an alien abroad has no constitutional rights. >> are you making a rightness claim or standing claim? >> so rightness and standing as the supreme court recognized are fairly related. in this context i think the nature of our rightness objection is lack of imminent injury. the basic point is that unless and until an individual alien is found otherwise eligible to enter they are not effected by the proclamation. that is our -- >> is it your position that the courts cannot review this proclamation for validity? >> no, your honor. what i was saying is on the
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constitutional side our argument -- >> or the statutory side. is it your position that the president can make any finding as to detrimental activity and find that they should be excluded for national interest and we could not review that? is that your position? >> that is our position. >> can you cite to the case where congress has stripped off 1331 jurisdiction? >> i point the court to two cases. first the supreme court's decision and the dc circuit's decision. both of those cases recognize that 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 unless congress provided otherwise. that is clearly the rule when it comes to consular officers. if they restrict the entry of aliens abroad even by misinterpreting that is simply
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not reviewable unless congress provides otherwise. >> that should be of no concern. hasn't congress made it clear when they stripped reviewability? several times sole discretion, not reviewable. in other parts of the statute. but not in f, correct? >> so i think 1182-f's language itself further confirms that it shouldn't be reviewable. >> how so? >> because the language is phrased as if the president finds that it is not in the national interest. by using the phrasing as the president finds it. >> has to find something that means it is reviewable. >> i don't think so. >> who are the findings for? >> that's the statutory constraint on what the president has to do just as in webster. the government officials who are
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the findings for? >> it is a substantive constraint on the president. >> how is that a constraint and who reviews the restraint? >> the president takes an oath of office. it is not reviewable. >> where are the teeth that would say he can't? the third branch of government, we can't. who does? >> the first and primary teeth is that the president takes an oath of office and has independent obligation to comply with the constitution and the laws. the second that i would say is that congress -- >> on january 20 he had the power because he took the oath of office. >> i don't think this court should lightly suggest. >> you said oval office january 20 it started. >> i'm suggesting. >> go to point number two. >> point number two is that congress has the ability to
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review what the president is doing. we are talking about statutory claims. if congress is concerned that the president is violating statutes congress can authorize review. congress has not authorized review. >> don't we have a problem to talk about congress can't delegate authority and then decide it's going to be the ones that -- are you saying they can do that. >> delegate it to the president and they decide whether or not -- >> so did not involve the exclusion of aliens abroad. the exclusions of aliens abroad is a very narrow set of circumstances where the supreme court recognized unless congress provides otherwise there will be no review. part of the reason for that is there is not a delegation issue because president has inherent executive authority with respect
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to exclusion of aliens abroad. >> the power comes exclusively from congressional power. >> that is not correct. if you look at this exact argument was made. the argument was made that the congress improperly delegated authority of the president to exclude aliens and the supreme court said that is not true, that the president has inherent executive authority to restrict the entry of aliens abroad. >> so you are saying under 1152 which clearly in 1965 it was the policy that we would not discriminate the president can just say i don't want to do that? we are going to forget about that and we will -- i can have every country excluded. you said no reviewability of that? is that correct? >> if the president were to do that it would not be reviewable. again, the president would have to make a finding that it was detrimental to the national
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interest. that is not what we have here. what we have here is that the president found eight countries have specific national security and foreign policy problems and in response to those problems he is imposing entry restriction. it is what president carter did for iran and what president reagan did for cuba. no one even argued that the entry restrictions violated. >> no one challenged those. this is under challenge. >> that is correct. the fact that no one bothered to challenge it strongly signals how weak the claim is. those statutes, the issuance of immigrant visas. if you look at the legislative history. >> the major reason was it doesn't apply because issuance of visas and not the entry and the response to judge keenan's question on gender you said well gender doesn't apply because it's one of those broader classifications that deals with
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discrimination much like race. gender is one that you can't use. why would congress put it in 1152? sounds like it is already covered. gender and race would already be covered even with the issuance of visas and entry. why is it 1152? >> the point i was making -- >> why is it in 1152 if what you say to judge keenan that gender doesn't apply because it is one of those classifications that they just can't do it because it's one of those inviddious classifications like race but you can use nationality because it's not. my question is why have 1152 apply to race and gender because you don't need it there? >> there are a lot of statutes that prohibit things -- >> why is it in 1152? >> because congress is passing a statute that bolstered what the constitution potentially in part also prohibited.
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i think the other important point is 1152 is focussing on issuance of immigrant visas and what they were trying to do is they were trying to wipe out preexisting national -- >> you already had it. if the president can do this he can do it in this instance on this basis, too. >> there are a lot of statutes that prohibit what the constitution prohibits. i'm not sure why that would undermine the argument i was making. under 1152 it makes it clear while congress was concerned about was a specific issue. >> let me ask you one question. i want to make sure i get this question. as i understand it there has been a world wide review and that is the primary basis upon which you think this is really
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different. in the face of the world wide review which is classified we don't have it we simply notice that procedurally. 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, during the election and just a week ago i believe we can take notice of this in the news, he tweets the very thing that we say the purpose of this or at least indicated the plaintiffs say the purpose of this proclamation is? i'm trying to -- in other words, do we just ignore reality and look at illegality to determine how to handle this case. if the reality is that is the purpose but the legality allows it, does that make a difference? >> so i have several points.
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so the first is we do think that all of those statements are legally irrelevant and here is a critical point that is different. >> tell me what you mean all those statements? i'm talking about statements that go directly to purpose and if the allegation is that this is an effort to ban muslims from this country and every statement made by the individual who is the president making it to say that but it is done in a way as to say we did a world wide review and now it is legal. >> what i was saying, your honor, is that the supreme court since we were here last time in the case made crystal clear that the standard is a rational basis review standard. and under rational basis review subjective purpose is legally irreleva irrelevant. when you engage in rational basis review you do not look to see what was behind the motives.
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answer the question. i understand what you say the supreme court has said. tell me what you say on that. >> if you blow past the fact that the supreme court -- the question is whether objective observer would determine that the primary purpose of the proclamation was religious and i would submit that when you have a multi agency review where you have numerous -- >> classified and that is all we know that there has been one, there has been one. >> not just record. that report you are talking about is not in this record. >> the report is not in the record. >> we do have in the record the statements and not withstanding how you may classify them we can take notice of statements that are made, evidence allows us to do that. we do have that as to direct
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purpose on the part of the president. >> the reasonable objective observer would like at the proclamation and what the proclamation says don't have the underlying report but you have the proclamation and reasonable observer would not ignore what the proclamation says. >> aren't you saying support for the proclamation is in the report? is the support for the proclamation being rational and not a muslim ban in the report? >> it is further detailed in the report and on the face of the proclamation itself. >> courts can look at classified information in a secure manner. wouldn't this be much easier if you would just have put your support in the record, all be it classified, so that we could see it? >> don't count on it that it would be easier. >> your honor, the issue wasn't just that it was classified,
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though. the fact that it is classified is part of the reason it is not public. this is also a report covered by the presidential communication privilege. it is a recommendation from cabinet secretaries to the president that includes sensitive information not just because it is classified, it contains important foreign policy related information including information such as which countries engage with us and which countries improve practices. this is all sensitive information covered by the presidential communications privilege. that said -- >> that's what you have to fall back on you can't get past classification of it we are article 3 judges and we have clearances with the classified stuff. the executive privilege that is litigated. >> what i was going to say is -- >> in the district court. wasn't asserted and that issue hasn't been resolved. >> so we don't think it is necessary and we don't think it is appropriate.
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if this court were to order us to file the report under seal we would of course do so and you would see that the report strongly supports. >> you would file the privileged material, too? you wouldn't stand on the privilege? that's an unusual position if you believe in the privilege. >> i said if this court were to order us to do so. >> i understand. we're of equal branch to the president and he can determine privilege and question is 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 deliberative process behind our decisions. >> your honor, i certainly agree that we shouldn't have to disclose this. >> you said you would give it up if we asked you to do.
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we had clearances just like you do. everyone of us. but you have another point and it could be a valid point of executive privilege however you described it. we understand it. i thought your answer was if we ordered you to do it you would give it to us. if you want to back off that because that is the question would you before you give it to us want to insist on litigating the liberative privilege
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applicability before you turn it over? >> your honor, i do not have a position on that. if it is relevant to this court we can submit supplemental filing. >> if i can just follow up on that. you were counsel on district court, correct? >> yes. >> when this question came up before the district court you told the court if you think what is in the proclamation supports it under the relevant legal standards then it should be upheld. if you think what is in the proclamation isn't sufficient to support the relevant legal standards then it should be invalidated. do you stand by that position or do you have a new position now? >> we think if you don't think it satisfies it and you don't want to look at the -- >> there were two sentences. i don't think this requires a
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long answer. if you think what is in the proclamation supports the standards then it should be upheld. if you think what is in the proclamation isn't sufficient to support relevant legal standards then it should be invalidated. that was the case put to the district court sp i assume that is what you put here. >> we do stand by that m. inso far as these judges thought that was critical to their analysis. >> you told us that you live or die by not having it in. i have one other question which i also -- when the acting solicitor general was here before he persisted in telling us how temporary this ban was, a brief pause. that is the difference between the order that we have now and the order that existed then. and it's one that you haven't
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spoken to which seems to me to be pretty significant. >> the reason for the difference is last time it was temporary because it was in service of the study. >> but the suggestion was the study was going to make it so that you wouldn't have it in the future. but, in fact, low and behold the study said we should do this in indetermineinant amount of time. >> only for the countries found to have an inadequate information sharing practice. >> so there is overlap but not a perfect overlap. iraq wasn't covered as it was before under the first order. >> iraq under the first order. of the other countries covered there are exemptions for nonimmigrant visas. we are not denying that many countries are also covered nor should anyone be surprised by the fact that when you are investigating whether countries have inadequate information
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sharing practices countries found to be state sponsors of terror or terrorist safe havens are likely not going to turn out to do very well in investigation of whether they share information we need. >> nor should we be surprised i guess since the president has continued to make statements some people regard. should we be surprised that it might be construed as antimuslim order? >> i don't think that is a fair construction of the proclamation. >> i'm asking you about the president's statements after the order. >> what i'm suggesting is that the president's statements after the order mostly said wants it to be tougher. whether it is tougher it is most certainly not tougher with respect to muslims. if you look at what countries are covered they took out muslim countries. they created exemptions for muslim countries and added
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nonmuslim countries in a single majority muslim country. >> north korea and venezuela. the other side says that is kind of like window dressing. >> the point is that -- the president's statements that he wanted to be tougher. no one can construe that to be tougher with respect to muslims because the proclamation simply is not tougher with respect to muslims. >> but the other category of the president's statements, the ones that judge was asking you about. you agree we can -- >> judicial notice we don't think it is legally relevant. >> did you say you are conceding with taking judicial notice? >> of the fact that the statements were made -- >> they want to use the content. the plaintiffs want to use content oo those statements
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which would never be admissible in trial. they got speculation, opinion, hear say, triple hear say and you are conceding that we can take judicial notice of that? >> i thought that judge harris was referencing the president's tweets. >> it is the department's position that the president's twitter account, those are official statements of the president of the united states. and i assume it is still -- >> did you say in response to her statement just then? you can see that those are official statements of the president of the united states, correct? >> yeah. and the department of justice. >> are you saying tweets are official statements? >> you have plenty of evidence of that. >> just my last one. it is still the department's position that it is the president who speaks for the executive branch, right? you have a unitary executive no
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constitutional space between the president and dhs. if there is gap between the purposes and the motives between the president and subordinate executive official as a court we can't go behind what the president says. we go with what the president says. plaintiffs put the statements before the supreme court in opposing the stay. these statements didn't dissway supreme court and they are simply not legally relevant. they are not legally relevant under mandel because the rational basis review. >> just to clarify, we don't think that -- we think that statement about the proclamation would be relevant but not persuasive.
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most recent tweets aren't about the proclamation so we don't think they would be relevant. >> so you are suggesting that while the president may be showing anti-muslim bias in his tweets that cannot be taken over into the content of the proclamation? >> your honor -- >> the proclamation has to be viewed based on its language and not any manifested anti-muslim bias as evidence by the tweets? >> i don't agree with the characterization of the tweets. regardless of the characterization of the tweets don't think it is legally relevant under either. >> let me ask you one other question back to the statute. can the president violate the immigration and naturalization act? kind of a global question. can the president by terms of his authority under 1182-f take action contrary to any other provision of the ina?
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>> it is certainly possible that the president could engage in conduct that would violate some provision of the i.n.a. >> what would be the limiting principle on your perspective then? if the president can ban all immigrants even though the i.n.a. says you can't discriminate against it immigrants, if the president can take other actions seemingly infinite nature even though the statute says suspend for a period, can the president essentially say, well, i'm banning all immigrants? i don't want to take any action. why couldn't the president under your theory violate any particular provision of the i.n.a. by making a finding that pursuant to any other provision is detrimental to the interest in the united states. >> the president has to make a
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finding that entry would be detrimental to national interest and outer bounds. i would say two things about what the potential outer bounds are of the interest. one point is it can't be directly contrary to some other i.n.a. provision. if the president said i don't like immigration i therefore think it is contrary to national interest i think that would be in serious tension with the provisions of i.n.a. authorizing immigrant visas. critically that is not what this proclamation does. what this proclamation does is find that there are certain countries that present national security and foreign policy problems and as a result the president will impose additional restrictions. that sort of order is well within the core of 1182. to emphasize in the d.c. circuit's position involved exactly this sort of order where
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under the i.n.a. there was a visa inadmissibility ground that required that the alien's activities within the country be harmful. not just entry, their activities. >> the president, then can treat immigrants more harshly than he treats other aliens. is that correct under 1182-f? >> if he has a reason why it is detrimental to the national interest. >> he says it is detrimental to the united states because they have more rights when they come here. >> not only is that sufficient but that is what the supreme court held in sale. the issue was if the immigrant had gotten to the shores they would have had asylum protections. >> it essentially said that once they got there they had to show they had a right to be here. isn't that correct? >> no, your honor.
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i think the key point responsive to your question is that if the immigrants had gotten here they would have had asylum protections. precisely in order to prevent them from invoking those protections the president set up a blockade. the supreme court said that was clearly authorized so the mere fact that the president is using 1182-f in a way that would stop aliens from invoking rights they might otherwise have is not a problem. >> just getting to the reasoning of the proclamation. i know the president doesn't have to be logical. i agree with you. he doesn't. and the proclamation can be riddled with logical flaws. >> no more than we have to be logical. >> don't judge us by that standa standard. >> my concern is with regard to immigrants, the president has not said anything in the proclamation as to why immigrants should be treated
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differently than other aliens coming from the same country. so if you just want to be here temporarily then your subject to fewer restrictions and if you're an immigrant from the exact same country you're banned. and you're saying it doesn't make any sense that the president can do it? >> not at all what i said. i said the proclamation explains explicitly why they are drawing that distinction because immigrants do have greater protections for removal so if the problem is that there is insufficient information from the countries and there is a risk and people are getting into the country who we don't want here that risk is more harmful if we can't remove them on the back end. that is a perfectly rational thing to do and it is -- >> congress saying these immigrants are future americans
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and we are going to give them some protection saying you can't discriminate against people based on nationality. don't you think that was a legitimate distinction congress was drawing with regard to immigrants as opposed to the random alien who wants to come in here for business or wants to go hear a university speech. these people are future americans and we are not going to tolerate discrimination based on nationality. >> in the issuance of immigrant visas and the legislative history is crystal clear that what they were trying to stop were natural origin quotas where government was discriminating on ethnicity and race to maintain ethnic balance. >> let me ask you this. isn't it true that a president is entitled to the greatest area of deference in national security and double down on national security in international affairs.
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is that correct? >> that is absolutely right. >> i want to see how you think that principle of deference works when a president makes statements, people look at those statements and some would go clearly he is anti-muslim. some would go no he is talking about what he perceives as some kind of terrorism related in some fashion to some people who are muslim. if you can look at his statements and each side can find something they would point to, what inference can you get on what his statements are in light of the deferance he is entitled to? >> yes, your honor, in light of deference he is entitled to and almost more important in light of rationality. >> i am looking at the statements. i understand on the facial
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rational. i'm asking on his statements, some goes it is dripping with discrimination. others go if you look at it in oth others say if you look at it in context, statements can be made can be looked at differently. if it's possible that people can see them differently in the total context, is there any rule on what inference he would be entitled to under this tremendous deference in this area? >> both given the difference that he's due in this particular area as well as the more general difference that coordinate branches are due, i think you should take the more permissible, more reasonable, more charitable interpretation than the most hostile one. we have a c-- we have -- >> we haven't seen them.
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we don't know. we haven't seen this report where all this stuff came from. we previously determined in that other opinion that the eeo2 was made in bad faith because of all the things that had been said. now you've got more added to it with these last weeks plus a pro claimation. >> but the proclaimimation rala out -- unless this court is saying that the president is just lying and didn't actually say that and -- >> we can't look at it and see. that is true, your honor. but this court should not lightly suggest that the president of the united states is just flat lying that eight agencies recommend -- that agencies recommended that these
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eight countries -- >> i understand your argument about any concerns you might have about the president and what might happen here. but you need you to explain about a process by subordinate branch officials is an act that can cure the taint from presidential statements from an executive system. dhs is not an independent agency. it's part of the executive branch. there is no constitutional space. it's not that the president is over here and dhs on over there. it's all the same thing. dhs is subordinate to the president so i don't see how this review process, an intervening independent act. >> here's why, your honor. what you're reviewing is the o proclamation. >> which is signed by the p president of the united states. >> that is true, your honor.
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>> and he has his statements, the president of the united states. although i agree some see things differently. some of november 29th statements, even with deference construing them in the light most favorable to the president, it's a little tricky to find the national security rational in those. >> your honor, what i would say is you've asked how to -- why there's a potential -- what the relevance is of the agency. what i would say is if this exact recommendation had been made to a different president and that president had adopted the recommendations, the notion that there would be a violation is -- there's nothing about either the processor the substance of the proclamation that would even possibly give rise -- >> understand you think we're not in mcreary establishment clause land but if we were that is an entailment under the purpose of the establishment clause, the same act, the same
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moment of silence, constitutional in one location, unconstitutional in another. >> that is a possibility. neither mcreary or any other case has ever suggested that when multiple agencies engage in a process and make recommendations to the president about national security and foreign policy concerns, when those recommendations are facially neutral about religion that all of that could be set aside based on earlier statements and statements that don't even pertain to what the purpose of the proclamation is. i think if you just focus on, for example, mcreary, it involved a facially religious practice that even as a third iteration had great emphasis on the language that was religious in nature. the other monuments that were put up alongside it didn't really make much sense. the history bolstered the conclusion there, but it didn't drive the conclusion there whereas here, without the prior
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history, there's just no argument that this proclamation would violate the establishment clause. i think a better analogy is mcgowan. on that day the purpose of the law to protect the sabbath. the supreme court nevertheless held that that didn't violate the establishment clause and the reason it gave -- the prime rar reasons is the exemptions revealed that it didn't any longer have a religious purpose. it was more secular in nature. it was more about leisure than religion. what i would submit is in this case the exemptions in the proclamation serve a very similar function. there is no way you can conclude this was a muslim ban but for some reason they decided to exempt nonimmigrants from muslim countries. that doesn't make any sense you think it's a muslim ban but it makes perfect sense under the rational the proclamation is
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actually given which is that there are problems with the information sharing from these countries and in order to both deal with the risk of that but also just as importantly to encourage these countries to improve their practices, the president adopted tailored restrictions that differed based on countries, based on their recalcitrants and their willing tons cooperate. it makes perfect sense under the rational given. it makes no sense under the argument. >> i just want to make sure that we're clear when you responded to judge king that the president would have to be flat-out lying. i think the position is the president is not lying about what he said. he said what he said. we don't think -- at least from my perspective, i don't think he's lying at all. if anything he's the one individual whose saying exactly what he means. notwithstanding judge shedd's characterization it could be read many ways. he seems to be saying it over and over. he seems to be telling the truth about what he actually feels
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here, not that he's lying. and i think that's the question. if the president is telling the truth about what he feels and notwithstanding that you've got independent worldwide review, which you seem to characterize they just decided to do it on their own without any impetus whatsoever, but we'll leave it there. if he has that and if the truth is what he seems to be saying over and over again, how do we look at that in determining -- i know you want to look in a shell in terms of the rationalal ba b but in terms of a reasonable observance. >> again, your honor, the proclamation, if you take as given that he's telling the truth, that the agencies did so recommend, that the agencies did engage in this process, that they did find that eight countries have inadequate information sharing practices or other risk factors that undermine visa vetting, that because of those restrictions they recommended tailored entry
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restrictions that are designed to encourage them to improve their practices and to protect this nation until they do so. if you accept all of that is true, what i would submit is these statements certainly the earlier ones but also -- >> if we accept these statements as being true. >> the statements of -- the statements are what the statements are. no one is disputing that he said what -- over and over again. >> right. but what i am saying, those statements, especially the more recent ones, don't speak to the purpose of this proclamation. >> and is the purpose of this proclamation to deter terrorism? is that the goal of the proclamation? >> look, the end objective of the proclamation is to keep this nation safe from terrorism and other public safety threats. >> and the president's tweets you've already conceded are official statements of the president of the united states. and that they could be subject to charitable interpretation.
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there was a tweet a month before the proclamation was signed by the president tweeting a statement that shooting muslims with bullets dipped in pig's blood should be used to deter future terrorism. how am i to take that chairablely? >> that is not about the proclamation at all? >> it's about deterring future terrorism which i thought you said was the goal of the proclamation. >> the end goal, but it's dealing with a specific problem which is inadequate information sharing. what the president said in that tweet about how to deal with actual terrorists, whatever you think about that, it doesn't suggest that any sort of general bias against muslims . it doesn't suggest they're going to ban all muslims because of a fear. it says that there is inadequate
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information sharing from these countries and to deal with that problem, a particular aspect of the broader terrorism problem, they are imposing entry restrictions to encourage those countries to improve their practices and to protect this nation until they do so. >> all right. >> thank you, your honor. >> thank you, counsel. >> good morning, your honor. the proclamation repeats four fatal flaws that doomed eo2.
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first in response to judge harris's question, the president directed the subordinate agencies to stick with his original architecture for the ban and that is to use nationality as a proxy for religion. by design what the president asked these agencies to do stuck with his plan of using that rationalal. >> let me ask this question, the same one i asked to start the other argument. i want you to tell me in light of the supreme court's action to grant the stay on i think it was monday, the criteria for stay and preliminary injunctions are preliminary the same, of course you will oppose the action, but i want you to look at that action and tell me what impact you think that is likely to have on the final resolution of the validity of the preliminary injunction that we have from n front of us. >> judge shedd, i don't think this court can take any
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substance from the supreme court stay order. the court was very careful -- >> didn't say substance. i said, and i'm asking you, you're saying that we -- you can't take anything from that, any indication at all? >> i don't think the court can, your honor, because the supreme court was very careful not to say a word about the merits or the equities. >> i have the same question as judge shedd did. it seems to me to have granted the stay at all, the court had to find that there was a likelihood of success on the merits. >> i don't think -- >> is that wrong? no stay law? >> i don't think that's right. >> don't say that. >> i don't think that's right, judge motz. as with the previous stay, that one actually did detail they were issuing that order based on its view of the equity that were presented on the record. >> they did say that. >> i don't think we can assume as mr. mooppan suggested that
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the supreme court was saying something about the merits. >> in the normal case that's -- >> the supreme court previous lie did not address the merits in ruling on a stay related to eo2. i think all this court can do is to decide the case on the record and on the law as it find its. that's what the supreme court's -- >> i guess the -- >> the supreme court followed the traditional process here and just omitted the factor about substantial likelihood of success on the merits? >> judge agee we can't tell why the supreme court issued the stay. >> the normal course of any type of a stay proceeding or preliminary injunction, courts just don't skip that stage. >> your honor, the supreme court didn't rule on the merits last time in considering the stay of the eo2. >>. [inaudible] should rule on the merits with regard to a stay or preliminary junction. >> all i can say is that this
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court can simply judge this case as it find its. that's what the supreme court asked both this court and the ninth circuit. >> the supreme court did tell us and the ninth circuit to act as quickly as possible which suggests they're interested in whatever we come up with. >> that's right, judge motz and i would maintain to go back to the reasons why -- >> or it might be interested they're interested in us getting done and getting something in front of them. >> they could have ruled. the supreme court can do what it wishes. >> they can do what it wishes and it should have the benefit of this court's ruling and opinion or set of opinions and what the ninth circuit does as well. >> your position is we shouldn't take anything from the fact that the supreme court granted the stay? >> i don't think you can, your honor. the second reason that the new proclamation -- >> you could read between the lines and think that you ought to be asking us to send it back to have the district court rule on the merits.
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and come back up and then they'd have the merits? >> well, judge king, the district court did reach the merits at least on the likelihood of the -- >> he dealt with the preliminary injunction, not the permanent injunction. he didn't consolidate with the merits of the case. you didn't make a full record and all that stuff. >> judge, i think there was -- >> he didn't litigate issues of privilege and things like that. >> your honor, there is more than an adequate record to support the order here. you can reach the statutory issues on which we didn't prevail. i think there is an adequate record to do that. the supreme court did direct this court and the ninth circuit to reach a decision with dispatch. and that's what the court should do respectfully. the second reason -- >> before we get to the second reason, you began by saying that this is -- this proclamation continues the practice of a banned proxy by nationality.
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but this is different in the sense that at least on the face of it, the pro clamimation began with an assessments not just of muslim majority nations, but all 200 plus nations and then sort of wtwin -- dwi-- why doesn't t make a difference in the sense it did not begin as a proxy by nationality ban? >> your honor, i think the government actually conceded just now that we should not be surprised that we ended up with five of the six countries that were banned once again banned under the proclamation. that's because even though the president directed this worldwide review of each country, what he did in section 2 e of the eo2 was to say give me the list of your countries. and your honor, in the design of
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the study -- >> is it your view that he ordained the necessity of a list? he was not going to be satisfied that the department would come back and say you can't find anything? >> that's right, your honor. we know that not just from the face of eo2 and the face of the proclamation itself which is replete with references to coming up with a list of countries. we know it because the president said so in official statements continuously. the key example i'll give you is that is march 15th, the day it was enjoined by two driistrict courts the president said we have a very big problem with muslims assimilating here in the united states. the second thing he said is i want to go back to the original and i'm going to go all the way. and that statement is one that he's 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
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said i'm sticking with my original plan and that is to use nationality. this goes way back, your honor, to what he said both right before the election and was confirmed by his advisers right after eo1 issued. that you don't want to talk about muslim? then i'll talk about territories. that's exactly the aterchitectu we still have. >> the relation to the statute, if i recall, your predecessor in the earlier case suggested that if it were any other president, the eo2 would be fine. would be okay apparently. it would satisfy the statute s. that your position? >> your honor, i think what we said during the last oral argument is that if you didn't have the record of statements, it would be a different case. i agree that is the case. but your honor, we as judge keenan noted in her concurring opinion last time on eo2, there actually is reason to doubt that
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this is facially legitimate on its face and its cross rr references on eo2 and its ill logic. the proclamation says we have a problem with the information sharing from these countries. as a result of that, there's such a high risk from nationals of those countries that we're going to ban 150 million people the vast majority of whom are muslim from six predominantly muslim countries but we're going to let in a lot of them. >> but absent the statements, admittedly troubling statements of the president, would your position be different if that were not part of the record? >> it is a different record but i do think that judge keenan's view of eo2 still holds on the clo proclamation? >> even after the study? because it seems to me that the fact that the government has taken great pains to investigate
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what exactly are the threats that are posed, that it arguably can be illogical. it can be flawed. it can be a product that perhaps you wouldn't be proud of in terms of its cohesiveness. but the president can do it, can't he, if he makes the required findings as long as it doesn't violate the ina or as long as it doesn't violate the constitution. aren't we now, since he's looked into the substance and reached his conclusions, limited to determining why this violates the ina or violates the constitution? >> yoour honor, it does in fact violate both the ina and the constitution for similar structural reasons you pointed out and going back to judge harris's point -- >> but are you limited to looking at just that?
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>> no, your honor, we're not limited because the same -- for the same reason that this court held that we passed through the mande mandell hurdle because the record shows that the pro proclamation like eo2 is not bo bonified and i think not having a nationality ban against -- and somalia, even though it failed the baseline, not including countries like belgium or the philippines -- >> that goes to judgment rather than authority. where is there a violation? i think you would perhaps help us more if you tell us why this is a violation of ina. >> on the establishment clause
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the proclamation suffers from the same fatal flaws. we get past the mandell hurdle if you continue to apply the mandell test because on its face and taken in light of the statements the president made that he's sticking with his original purpose to use nationality as a proxy for religion, we do not know that this is proclamation is not bonafied. we also know that because of the internal logic being under inclusive, letting in a great number of immigrants, even though the president is saying the whole premise is the snanat has a problem that makes the entry of someone from that country on i threat, on the four corns, this is not facially legitimate. putting that aside, it's clear on the record that the president has continued to make statements of hostility toward muslims and
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tellingly in response to something the government said in its presentation, he said that the november 29th statements the made, the retweeting of these anti-muslim videos is not connected to the proclamation. to the contrary, you would find the statement of an official white house spokes person who said that security and public safety for the american people are the issues the president was raising with those tweets and that the president has been talking about these security issues for years now from the campaign trail to the white house and the president has addressed these issues, again the issues illustrated by the tweets with the travel order he issued earlier this year and the companion p companion proclamation. >> let's use the same principles you've described in your brief and elsewhere, the same record. but the proclamation only covered syria. is there any difference?
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>> your honor, i think that it would still be a problem because the president and vice president pence for that matter even before the election had targeted syria in the same way. and made the same connections between nationality and the majority of -- >> how is that any different from what president reagan and president carter did? >> it's different because if the structure of the pro clclamatio holds, it violates congress's judgment in the 1965 act. that we aren't going to act on stereotype. we weren't go to go to a nationality based quota system. >> we've got syria or iran if you want to expand it to two. both countries, the only two on the list, that refuse any cooperation with the united states in terms of intelligence sharing, identity sharing for travel. they're chock-full of folks from
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al qaeda. they've been in varying states at least the syria civil war. are you saying on this record that a president, any president, is simply not able to make judgments for the protection of the nation and the conduct of foreign policy if it's only those countries? >> certainly not, your honor. setting aside our statutory claim you mean? on the establishment clause certainly it would be a different record if the president hadn't continued to make statements, anti-muslim statements right up to the time he issued the proclamation. >> your position is even if it's just syria or syria and iran, there's no change? >> on the same record including the tweets and on the constitutional claim, yes, that would still be a problem. >> how do you explain the fact that congress and the prior administration identified the very same countries i think it
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was in the visa waiver program saying they were a problem and they were not part of that program and for the very same reasons? those very same countries were the countries that were included in eo1 and eo2. they are also to some extent -- to most extent carried on in the proclamation. you draw a lot of inference that eo1 identified all muslim countries and therefore it was a surrogate for anti-muslim animus where they have been part of the prior administrations identification of problems in the immigration area simply for the same reasons. the lack of information. the fact that there weren't good checks. it was hard to vet. and that many of these terrorist
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groups were springing up in those countries. and so i don't see the logic where you start with eo1 without looking even at the prior history. if you're going to look at the prior history how we treat those countries as nationalities, then you have to go that far. and then in addition, of course, congress identified nations, not individuals, and you seem to suggest that congress is prohibiting identification by nationalities but throughout the ina they do so. >> your honor, judge niemeyer, that's why we prevail on our statutory claims. congress looked at the very factors that the president is asserting here as justifications for the proclamation. their judgment was the answer to that problem is that if these countries propose these kinds of information sharing problems, don't let them participate in the visa waiver program. subject their nationals to the
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individualized vetting. >> but congress also gave the president right in the national interest to exclude nations, whole classes of immigrants under 1182 f. and that is really an exercise of sovereign power which congress shares with the president. but i don't see how we as a court ought to be asking the questions that we're asking today was the judgment's question right, did he have enough information, is he really protecting the national interest. if we screen a whole country who has numerous terrorist groups, do we have to identify members of the groups who raise their hand and say i'm a member? i mean, these are judgments of the executive exercising sovereign power vis-a-vis other countries. they're not the subject of court review as we're seeming to want to conduct. you seem to want to conduct. it seems to me if on its face
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its logic co -- that some muslim countries are subject to the restrictions and some muslim countries are not. indonesia's not on there and it's almost all muslim, isn't it? and it's huge in term was population. the suggestion has a background noise that is driving your argument and that background noise is the subjective views that the president expressed during the campaign. >> your honor, actually, there are two points i'd make in response. in fact, though the president does have great power in matters of national security and immigration, he is subject to the constraints that congress has put on him and that the constitution puts on him. and respectfully -- >> he gets his powers from the constitution in the first instance and he shares those powers with congress. the supreme court has made that
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explicit for 100 years. and they represent that. the idea that we're interfering in the judgment of this proclamation it seems to me all we need to do under mandell is to look at the face of the proclamation and say whether it is rational and exercised in good faith from the face. it says facially. and if so, that narrow exception that mandell granted and dim granted, we're then left with a background where courts, we play an important role, but we play important role domestically. we do not exercise the sovereign power of the united states vis-a-vis other nationals in other countries. that's a presidential executive branch power and congressional. congress gave it, shared that power and gave it to the president in full scope. and now you're saying oh, he doesn't have it, we get to review it, we get to ask him why.
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you remember in shaun see, you can't ask the president the real reason. >> actually, the supreme court reached the merits of the statutory claim and it wasn't about the action says of the president. the supreme court has been very clear about exactly how the president and congress share the power to regulate immigration. congress writes the law and the president must follow it. and in 1182 f congress did give the president a power to suspend for a period of time the entry of noncitizens. but he's subject to the restrictions that are both on the face of 1182f, having to make the finding as chief judge gregory noted and he's still subject to the constitution. in sale versus center counsel, the supreme court reached and considered on the merits a claim, a statutory claim about the president's action under 1182. it did not say that's nonreviewable. .
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and contrary to what the government proposed during its argument, sale actually just said that the -- that congress -- that the president was acting pursuant to the power -- >> in sale he did just the opposite of what you're saying. the court basically said that's the president's prerogative and we're not going to review that. >> actually, your honor, what sale was about was whether the president was comporting with the statutes passed by congress and the court said we construe the statute, then ina section 243 h and the protocol and refugees to which the u.s. had signed. >> let me ask you something along these lines a little bit more particular. what is the right that your plaintiffs are exercising in coming to court? in other words, i understand you're relying on the apa. is there anything else that you're relying on to get into court? >> on the statutory claim, your
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honor? >> any claim. >> sure. we're relying on the apa but we're also relying primarily on the large number of cases including -- >> no. no. tell me what is the substance? is there a statute that authorizes you to come to court or are you looking for a freestanding constitutional claim? >> the government doesn't contest that the court can review the constitutional -- >> you need answer my question. >> i'm answering it, your honor n. chamber of commerce versus armstrong and moore, the supreme court made clear that courts have the authority in equity to enjoin an executive branch agency which wh theen there is that is successful that the president or the executive branch is violating the law. whether that be statute or constitution. we see in case after case that the circuit courts and the -- >> i thought the injunction, i
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thought armstrong suggested the injunction had to be connected to a cause of action. i'm trying to figure out -- it sounds to me like you're trying to file a bivens type of action under the first amendment, a free standing claim that we're being dis clacriminated against under mcreary -- under the establishment cause jurisprudence. i'm not sure there is such a claim. >> your honor, we're not making anything like a bivens claim for damages. >> i'm asking whether it's a freestanding constitutional claim. i'm talking about bivens was created because the plaintiff didn't have a way into court and the supreme court created that. my question for you is there is no such cause of action that's been created for you in your circumstances and i want to know what you're relying on. >> your honor, this court has already crossed that bridge in deciding on eo 2.
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>> our decision in eo 2 is vacated. >> the reasoning still applies. the majority reasoning is still correct inform case after case the supreme court and the federal circuit courts including in cases challenging 1182 f policies has reviewed those statutory claims. >> you agree 1182 doesn't give you a cause of action to enter court, does it? it also doesn't create judicial review of 1182. >> it doesn't need to. 1182 doesn't address -- >> so you just come into court and say somebody violated 1182 and it sounds to me like you're aserti aserti a -- >> it's the core function of the court to decide -- >> you know i disagreed with the majority so i'm interested to know your position without relying on the majority. let's go to your position, not what the majority did. >> on the statutory claim under chamber of commerce versus reish
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and dames and more and countless other cases f there , if there m the president is not following congress, the court can review that decision. it has the power to enjoin the president from violating -- >> as a remedy but it doesn't create a cause of action. you don't have a cause of action under the ina. the only place that you try to get a cause of action apart from the ina under the apa which is pretty dicey as you know, is some freestanding claim that what the president did is unconstitutional. therefore, i can be in court. but that's not the way it works. >> your honor, the government doesn't even argue that there's no cause of action for a -- >> does that make a difference as to what we do? we have subject matter jurisdiction. we have a role in this system. as you know, the branches -- the three branches have their defined roles and we're acting
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fairly aggressively in a role that's been conferred to congress and the president and not to us. >> urinyour honor, there's not single case that actually stands for the principle that our claims, whether constitutional or statutory are -- fiallow and sale, your honor, all reached constitutional and/or statutory claims relating to the president's power in exactly these kinds of circumstances. >> they basically reached the conclusion that you don't have these causes of action. >> your honor, they reached the conclusion -- >> i can tell you in this case the supreme court's going to address it and they're going to tell you one way or the other whether you have it too. the fact that they address it doesn't mean you have a cause of action if they're going to tell you don't have a cause of action. courts do have a right to decide their own jurisdiction, but they don't have a right to go beyond it if they don't have
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jurisdiction. >> on the statutory claim the ninth circuit has ruled that there is a cause of action under apa and inequity. >> let me ask you about the statutory claim again stchlt yo. is it your position there are no findings in the body or on the face of this that satisfy 1182 f or that whatever findings appear in the body of that document simply misalign and are insufficient to satisfy the requirements of the statute? which one is it? >> i think it's both, your honor. the president does invoke the magic words that he makes the finding that the entry of these 150 million people who are mostly muslim would be detrimental to the interests of the united states. but if you look at his actual findings, for example, your honor, in section 1 h, beg your
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pardon, 1 i -- i'm sorry, the restrictions limitations imposed by this proclamation are in my judgment necessary to prevent the entry of those foreign nationals about whom the united states government lacks sufficient information to assess the risks they pose to the united states. well, that is just a basis for someone being excluded from the united states under 1182 a. congress has already decided what to do about that. and so there's one critical finding that's missing from this proclamation and setting aside whether it would be a sufficient one, the president's basically said that the comprehensive and detailed system for admission of noncitizens to the united states with individualized vetting and the visa waiver program for nationals of those countries is insufficient as to the six countries. >> how about the beginning of
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the proclamation? it says i here by find absent the measures set forth the immigrant and nonimmigrant entry into the united states of persons described in section two of this proclamation would be detrimental to the interests of the united states. >> yes, your honor, those were the magic words. >> and their entry should be subject to certain restrictions, limitations, exceptions. >> those are the magic words -- >> 11 -- >> are those the magic words you were talking about? >> yes, judge. the point i'm making is that it's internally illogical because the further detail he gives elsewhere in the proclamation shows that he didn't actually apply the baseline factors because he included somalia when it passed the baseline. he didn't make a nationality began against ven swrezuela. he only applied that to certain g government officials even though
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he failed the baseline and he's letting in a lot from the countries even though the whole justification is you can't trust anyone coming from these countries. the proclamation is different from the iran and cuba examples the government discussed. we believe that nationality discrimination is prohibited. but set that aside. even if you think there are some instances in which a nationality based ban is permissible, the president has written a ten page proclamation with detailed subsections completely unlike the few lines that the president's used to justify iran and president carter's instance or cuba in the -- >> reporter: you going to penalize him for being thorough? >> your honor, what he can't do under 1182 f is to rewrite the law as passed by congress. what the proclamation represents is a rewriting of 1182 a, the
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grounds for inadmissibility and all of the other sections of the ina that provide for individualized vetting. congress has said they've looked at the very factors that the president looked at here. they came up with a so colluslu which is they rejected -- in 2015 they considered these same countries. >> when you say they, congress? >> yes, your honor. that congress in 2015 looked at the same problem the the president is asserting here as to the same countries that president niemeyer pointed out and they rejected the idea of a country based ban. instead they said we're going to stick with individualized vetting and go after the people who not are nationals of these countries, but if you traveled in these countries, if you are a dual national so you're holding a uk passport but also have an iranian passport, you you go regular vetting. we're not going to subject you
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to a country. >> what about the president's assertion that this is intended to be sort of a bargaining chip to incentivize the nations to cooperate? >> the best answer to that problem is what he did with venezuela. if you have recalcitrant governments or governments who are, you know, doing their best but aren't up to snuff, you can do two things. you do a venezuela type ban which has a lot of precedent under the past co cproclamation where you say these governments are not cooperating and i'm going to bar skyou and your famy members coming in. i think that is permissible. you can do what congress recommended in the ina which is to give assistance to the countries that are having pro l trouble like somalia. and i have to point out the internal --
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>> your argument would preclude the president from even banning nationals in a state of war. >> your honor, i think a state of war is different and there a different statutory framework that would apply in that situation. to go back -- >> why is there different framework? i don't read any of these reasons you're giving. you're sort of saying the president can exercise -- if he treats the nationals in the top government it's okay but if he treats the whole country it's not okay. in other words, you are making judgments about foreign policy which you are making for some other purpose. >> i'm not making those -- >> i hear you making these arguments. >> i'm pointing to congress's limitations. dually enacted statutes passed by congress that limit -- >> but you're not recognizing that while 1182 a provides criteria for admissibility.
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so does 1182 f. and in 1182 f they said the president himself has broad discretion. and we're going to give him discretion to act as our representative for the sovereignty of the nation. not as a domestic matter. >> subject to the requirement that he make a finding which is reviewable by the federal courts. >> where did you get that? which is reviewable? where do we get the right to review the president's foreign policy decision? >> your honor, the government's relying on a number of nonreview ability cases. >> no. i'm asking you where are you getting the authority to state that 1182 is subject to review by judicial -- by courts? >> the supreme court has said so in sale, among other cases. >> we read it differently. >> the supreme court is in there. i'm not sure it said that. it was argued that there was no
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jurisdiction for various reasons and they went ahead and decided to the merits but i'm not sure there was a decision on that. would you agree with that? >> i don't think sail addresses that question but one would hope -- >> then you ought not cite it. >> i'm having trouble understanding your statutory argument. i guess the complaints you have about it it seems to me i agree with my colleagues, it doesn't sound we can say to the president of the united states you're illogical here, you don't follow the procedure here. do you -- is your argument really basically a structural argument? is that what you're saying? congress set out a procedure and it's because you haven't complied with that procedure, mr. president, that -- is that what you're saying? i'm not understanding it. >> there are two main arguments we're making. the first is that the president as to 1182 f has not made the
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requisite finding that this is detrimental to the interest of the united states. >> okay. >> secondly, your honor, what 1182 f can't possibly permit is the president to rewrite large sections of the ina. >> that is your structural -- >> that's our structural argument on 1182 f. the other argument we're making is 1152 a and the 65, that's the overall purpose of moving, rejecting the past historical practice of the united states to have national origins quotas which went back to the 1984 act. that was a categorical decision as part of other civil rights -- comprehensive civil rights. >> if you accept that explanation as accurate, under your theory of the case, tell us why president reagan's proclamation or president carter's would have been valid. because they are clearly nationality bans.
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they were indefinite. . what's the difference between those and this one? >> so your honor, first, no one challenged those two suspensions. >> we understand that. what i'm asking you is were they valid? >> i don't think any nationality bans are valid but you don't have to buy that in order to accept our statutory argument. because your honor, the distinction is that with iran and cuba the presidents were acting in response to exigent circumstances with a bilateral crisis. >> but that's not in any of the statutes. that's not in any of the cases. that's just something that the district court and you have put forward. but that's not part of the law. >> well, the law says very clearly no nationality discrimination so i'm just trying to explain why you can read the iran -- >> well, your case doesn't rise and fall on this but it seems like to me that the logic of your position is that president
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reagan and president carter's proclamations would have to have been invalid under your statutory argument. >> there's a way to read them in harm harmony, your honor. i do believe that 1152 a and in general the 65 act prohibits nationality discrimination but you don't need to agree. because if there is an exception to 1152 a, it can't be that the president can disagree with congress's considered judgment about these same problems, with these same countries, and then rewrite large blocks of the ina. >> congress maeds tde the consi judgment where nationality is off the table with respect to any action with respect to visa issuan issuance. it just seems like you have to say that president reagan and president carter violated the statute when they issued those proclamations. >> your honor, i think they did. >> okay. >> again, you don't have to
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agree with me in order to agree with our 1152 a argument. the reason is that the iran and cuba situations, again, if you look at the text of those proclamations, they were just a few lines. congress had not considered those specific situations. and the president said these are exigent circumstances, i have to deal with diplomatic crisis and i'm going to suspend the entry of these nationals. >> so if the president in this case ended his proclamation at the end of the that first paragraph, you'd be all set? you'd agree with it? >> if he just said we're going to do a worldwide review? >> no. it just ends and he said we're going to -- >> no, your honor, because i think the scope also matters. we've got -- one question, your honor, is is the president trying to return to the national quota -- national origin quota systems that congress reject the as president johnson said. >> he's not even addressing
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visas. he's addressing the admissibility under 1182 and relying on that power and he's distinguishing among muslim countries. he is identifying criteria that distinguishes them. the fact that they can't get information about persons, the fact they don't follow procedures, the fact that many of the groups there, they're not suppressing these groups. these distinguish these particular muslim countries, not all muslim, but the ones that are included here from other muslim countries which were considered and not included. so i don't see the logic of where necessarily follows that says he is now banning them because they're muslim countries which are muslim. as opposed to some other criteria that he identifies. >> we know that because the president has said so. that he was going back to his original plan and going all the way. i'd note that even though he
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hasn't beenanned other muslim countries, he -- >> the whole purpose of eo1 and eo2 was to set up a system to collect data and he built on prior countries that were suspect in that. as a matter of fact, every one of the countries was included in prior congressional findings except for iraq and he treated those and it was a 90 day data collection period. the proclamation is the product of an analysis which does distinguish between countries and does apply criteria that are in the national interest. your suggestion that he's just using the magic words and is not expressing the national interest is very strange. i must say. you said if it weren't for his statements made during the campaign and otherwise, it would be fine. >> no. i said it would be a different
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case, your honor. >> how about if another candidate one the presidential election, you wouldn't even be here. >> that's not true, your honor. if that candidate made these sa same statements -- >> your colleague at the last one conceded. >> if we didn't have the statement of records it would be a different case. we still submit -- >> you conceded eo zai2 in the hearing was neutral on its face and we would not be here if he didn't have the presidential statements. now you're backing off that and basically saying it would be a different case. well, sure it would be a different case. you just wouldn't be here. >> actually, we pointed out the deficiencies in the four corners that judge keenan picked up on in her concurring opinion. >> so now we get the right to review the internal proclamation? >> your honor, we're not relying on the report that the
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government has waffled on whether they're relying on the report. if they're making it clear they're not relying on the report, the court need not go into it. >> let me ask the question with regard to something mr. mooppan alluded to. in the morale es wherein the majority of the supreme court -- a rational basis review, how does that impact hour prior reading of justice kennedy's concurrence in the curry versus dim case? >> your honor, i think that the court already addressed that in the previous opinion, but the argument is basically this. fiallo didn't involve any allegation that the government was acting without a reason. there wasn't any allegation of bad faith.
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santana was sighting to fiallo that that wasn't even an issue. it waecan't be where you have a record that -- you that don't simply follow mandell. mandell is not a rational basis test on its face. it asks the court to determine is the president's action facially legitimate and bonified. that's what justice kennedy did. he simply said look, in that case, in carrie, they didn't get past the mandell hurdle. but this court made the correct call on that question in reviewing eo2 and nothing relevant has changed with the proclamation. >> so can i just ask you about the establishment clause case just for a minute? it's pretty clear from them that the supreme court tells us that you -- once you vial tolate the establishment clause, you violate it forever more.
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>> we agree with that. >> so in this instance how does the taint -- we have these preelection statements, the post election statements, the pre-eo2 statements. we don't have so many statements now. why is taint -- does the taint, what's your best argument for why the taint from the prior statements still exists here or still colors this case? or maybe you don't make an argument about that? >> we certainly are, your honor. the taint has not dissipated. we agree of course that under mcreary the taint doesn't last forever. but here once again what you have is the president sticking with his original plan. those are his very words. he's going back and going all the way. second, your honor, on march 15th, as soon as eo2 was enjoined by the district courts he said that. he continued to make statements hostile toward islam including the august 17th of the purging
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story that judge thacker just mentioned. and finally, your honor, the president once again speaks in vague words of national security but again has continued not only not to repudiate his previous statements of hostility toward islam and muslims. he has also doubled down, in this case tripled down on those hostile statements. again, on march 15th he said the assimilation of muslims in the united states has been very, very hard. august 17th you have the purging story. november 29th he retweets three videos that are anti-muslim. your honor, on that record you simply have on the proclamation a litigation position like we
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saw in mcreary which is not sufficient and the president has doubled down on all of his statements. if the government is right about justiceability and about the scope of presidential power, then the president could promise a ban on muslims throughout his campaign and then declare i'm carrying out my campaign promise by using nationality as a proxy from religion, ban 150 million that are almost all muslim -- >> let me follow-up on judge motz's question. >> sure. >> what would be the standard that we would use in this instance where there has been an attempt or at least an act to determine whether or not the government in factor the president in fact carried this so called clause? >> i think the standard is the same through line in all of the establishment clauses, your honor, and the test doesn't change. that's common to mcreary, lar
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son, and the court's most recent opinion and that is, is the primary purpose here the object -- the manifest objective to disfavor one religion. that's the test. and the record on that has not changed. in fact, it's been augmented. >> what about the fact that the government says well, we disagree that these statements suggest an animus. even if you take that at face value and understanding judge harris's questions, they point to the subordinates and say you haven't questioned their motives and they conducted this review and on the face of it arrived at this result which but for the statements could be a difficult case. does that change the result? >> there is in the record evidence that at least two of the officials, lower level officials involved in the
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president's study also have made anti-muslim statements. we have that in our motion for judicial notice. our argument is not that every lower level official lower leve involved in the president's study acted out of a personal anti-muslim hostility, it's that the president was acting out of a purpose to disfavor islam and he directed his lower level officials to carry out his original purpose in the original way to do it which is why using nationally lly as a proxy. >> people looked at all the statements and took that he was doing anything other than being completely anti-muslim. but if your position is he's absolutely anti-muslim and everything he's doing is that result and he's banning 150 million people, most of whom are
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muslims, his ban doesn't affect 90% of the muslims of the world. >> your honor, it doesn't matter. >> i'm asking you. >> he could add for countries under his proclamation. but the problem your lohon your- >> he's not smart enough to figure out how to ban all muslims? >> his purpose is to- >> i have heard the number 150 million, but there's over a billion muslims that aren't. >> if you take the face of the order, he's continued to ban these six predominantly muslim countries, taken together, they're over 95% muslim and affect 150 million people. one of them that is not a nationality ban, it's a very targeted ban. and the other one affects less
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than 100 people. >> let me ask you this, the court below applied, i'm not saying it's correct, but applied kind of a least restrictive analysis and it said that the government hasn't shown that the national security interest couldn't be addressed without this ban. what al tuternative as far as addressing this national security interest would you -- >> there's the -- the problem that the president is asserting, about governments that are noncooperative, and the answer on the national security front is the one that congress has enacted and stuck with in 2015 which is our individualized visa vetting process. >> but this, do3 has a case by case waiver provision doesn't
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it? >> and constitutions the president's waiver for that substituted for the one instituted by congress. >> any individual can apply for a waiver under this plan? >> there is a waiver that's available, your honor -- >> for individuals to seek to use? >> which is also inconsistent with the system that congress enacted. >> how important is it to your statutory argument the fact that this ban is indefinite. is that a crucial distinction or simply one of discovery. >> your honor, i think that is a very important consideration. one is that the government came in on eo-2 and said oh, the reason that this ban is okay, is that it's a temporary 90-day pause. the president has repeatedly said, i'm going to get even
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tougher and go back to my original plan. >> but this is when you said he hadn't made any substantive findings, he's just made a conclusion. >> it's also relative under f-182, which i think your honor noted with respect to the government. the statute speaks to suspending for a period of time. >> what i'm trying to get at, is if it were more temporary rather than indefinite, would that make a difference in the ultimate outcome of the case in your view? >> even if it were temporary, i think we would have rail on the statutory claim and on the constitutional claim. but the fact that it is now indefinite and potentially permanent with other countries potentially being added does
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distinguish this from anything under 182. nothing has ever looked like this. >> i thought the reasons for the restrictions and then had periodic reviews of the restrictions, what do you think that's included for? >> your honor, those periodic reviews we have to assume will follow the same format. >> let's assume they follow the same format. but if a review turns up that the ban is no longer needed, the restriction will be lifted. >> because he doesn't state a specific criteria, it's a black box. >> it should be, that's what we have committed to the department of state and the secretary of defense and the president. >> except, your honor, that the government's relying on that
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black box and the question is, does the study cure the taint? the answer has to be no. >> it doesn't taint because they don't acknowledge the taint. they're saying this proclamation is issued in the interest of national security in order to identify persons who can challenge the safety of the country up they came into this country. it's a difficult problem that's been experienced by many countries, with all the disturbances in the near east. so the question is that illogical? and is that irrational? and if those conditions no longer exist, there's no need for the proclamation, you have to assume on the face of the proclamati proclamation, after periodic reviews the restrictions are still needed. >> the reviews are still the president's message, which is to use nationality as a proxy for the religion.
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he has said himself, starting march 15, and continuously through the summer and the issuance of e-03, that's a proclamation that he's sticking with that purpose. and i just want to add that if the government is right that this is nonreviewable, if the government is right that this is the scope of presidential power, then in the precious words of president jackson, this rule would lie about like a loaded weapon. and the president, specifically referred to the japanese-american internment as a precedent for this ban. it's contrary to the establishment clause and it's contrary to the basic structure of government and the constitution. >> thank you, counsel. >> thank you. >> you have five minutes reserve. >> reserve?
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>> he does, he gets five minutes. >> four points, your honor. the first is last time we were here, both judges on this court and other courts faulted the government for not having findings to justify the prior entry suspension and faulted the government for doing an interim entry suspension before the findings were made. and now the government has maid those foundings and counsel is right, this isn't like any other proclamation that's come before it. and that's because the proclamation has never had these -- the findings here dwarf what presidents before have justified the entry restrictions they have imposed. what they are actually asking for is to second guess the president's policy judgment, and nothing in 1182-f authorizes
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that type of second guessing, they say it's illogical, inconsistent, a, it's not true, and b, it's not authorized to engage in that sort of second guessing. their primary point that they keep emphasizing is there are exemptions. all laws recognize that there are competing considerations and in this circumstance it makes particular sense when what you're trying to do is encourage foreign governments to change their behavior would depend on what the foreign government is. they also emphasize that this goes above and beyond the visa vetting program. first of all, 1182-f has always been recognized to go above and beyond the b-82. and they didn't respond to that. and here it makes perfect sense. they say what should happen is that officers should deny these because they don't have enough information. but the whole problem here is
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that we have determined that foreign governments are not giving us that information. it doesn't make sense the run through the visa vetting program, when it's been proven that the visa setting system has been undermined. >> it's a dual purpose, your honor, because there's -- we want to encourage them to change their behavior and protect this nation until they do. >> but the main thing is you want to encourage them to change. as to north korea, wouldn't you say that north korea has the greatest amount of exemptions as far as people affected by this ban? >> there are no exemptions. >> there's a plea ban on both immigrants and nonimmigrants. >> so the greatest influence that we want to have on north korea is that we don't let their
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citizens come in, right? >> your honor -- >> that's the great- >> with respect to the information -- >> i'm just trying to say that because they have the most restrictions, correct. >> they are among the most recalcitrant countries with respect to information sharing so the greatest amount of restrictions were imposed on them. countries like north korea and syria that cooperate least had the greatest restrictions imposed on them. on the statutory statue, on the question on whether it's indefinite, given that there's a finding it's inadequate, it would make little sense to make it an indefinitely restriction. but what we have made it is a periodic review, so if they do
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improve, that can be revisited. >> sun set provision doesn't make sense when there's an dwal identified problem. and we have every 180 days under the proclamation it will be revisited 42 out of 43 past executive orders don't even have that, they're just straight up indefinite. and that's totally consistent with the language of the statue, which is for what period as the president may determine. and on nationality -- on the point of that one thing that history makes clear is the national origins quotas. but it was not to restrict the ability of the president to make determinations about national security problems that made people ineligible to enter in the first place. and that is the explanation why the cuban order isn't invalid. it's not that there's some made up emergency exception in the
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statute. it's about the issuance of immigrant visas. it's not about people who weren't able to enter into the country in the first place. this should satisfy as much as, for example, the cuban proclamation involved a diplomatic dispute from a breach 15 months earlier. there are identified defects in information sharing today and in response to that, the president has acted. this is far easier to justify than the cuban proclamation even on their own rationale. >> thank you, counsel. of. >> yes. you have two minutes. >> thank you, your honor. my rebuttal time is related to our cross appeal. so i will say very briefly, we are cross appealing because we don't want any part of third --
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violates the core requirement, the government not singling out one religion for disfavor, that is heightened because it's no lo longer a pause, but an indefinite ban. the great promise of the establishment clause is that religion will not operate as the instrument of division in this country, that's exactly what the proclamation does and the court should not county county ten na that. >> the court will be in recess. >> the honorable court stands adjourned, god save the united states and this honorable court. a live look now at the u.s. capitol here where both the house and the senate are in for business this week, the house will gavel in this afternoon for legislative work with five bills on the calendar, including one
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dealing with aviation security. the senate is back this afternoon as well for work on a judicial nomination, watch the house on cspan, the senate live on c-span 2. wednesday house and senate conferees will meet to discuss reconciling the two tax reform bills that were passed out of each chamber. we'll have coverage for you on c-span 3, online on and with the free c-span radio app. in 1979, c-span was created as a public service by america's cable television companies and is brought to you today by your cable or satellite provider. up next, president trump speaks at the opening of the mississippi civil rights museum in jackson, mississippi. from saturday, this is just over ten minutes.


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