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tv   9th Circuit Court of Appeals Hawaii v. Trump  CSPAN  December 7, 2017 4:05am-5:19am EST

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♪ it is not too late to enter. our deadline is january 18, 2018. where asking students to choose a provision of the constitution and create a video illustrating why it is important. our competition is open to all middle school and high school students, grades six through 12. prizes will be rewarded. the grand prize of $5,000 will go to the student or team with the best overall entry. for more information, go to our website. the ninth circuit court of appeals is considering a challenge to trump's travel ban.
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he is oral arguments in that case. it is just over an hour. >> all rise. please be seated. >> good morning. i am judge gould. judge g ould. judge paez on my left.
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panel welcomesed the advocates here to help us understand their views. without further a do, we can proceed. the case is set for 30 minutes on each side. theyther side feels absolutely need an extra few minutes, just ask. i would like to reserve seven minutes for rebuttal. >> the proclamation reflects a multi-agency worldwide review engagement process. the findings are that eight countries have inadequate information sharing practices or other factors that undermine the system.
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in order to encourage those countries to improve their practices. because, forored certain countries, the restrictions are for both immigrant and nonimmigrant visas. it is tailored so some can come and and some cannot? >> what i was referencing is the fact that the restrictions are not one size fits all for the countries which, reflects that the president was setting for these countries to improve their practices. purpose to encourage
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other countries to improve on their practices? purposes?e of the does it fall within the scope? language, the question is whether the entry of nationals would be detrimental to national interest. when certain countries are engaging in practices that are harmful, it is well within our authority to determine what would be detrimental to the national interest because it not deter those practices. this is precisely why president found in both cases were that harm was from the foreign governments themselves.
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they found that allowing toionals of that country enter was found detrimental to the national interest because the president wanted to put pressure on foreign government. iran and cuba. it is virtually every application. if you look at the briefs themselves, most of the proclamation has been focused on targeting individuals that engaged in harmful behavior abroad. , i understandon nationals fromat the country are not themselves of concern.
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they don't pose a threat than? >> i think the iranian and cuban examples prove that. this case is stronger than both iranian and cuban examples. it is related to the threat posed by their nationals. iran and cuba, it is virtually every proclamation. if you look at the examples that they cite, most of those proclamations are based on finding that specific individual engaged in harmful behavior abroad. doll was suggesting that coming into the country was in in of
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itself was harmful. the rationale of those deemedtions was detrimental to the national interest. do youonald m. gould: recognize any limits to the president's authority? we do not dispute that there may be outer bouncer that limit both in terms of substance of those restrictions, whether it is focusing on security or if the means are inconsistent or contrary to congressional demands. the proclamation falls well within the core of 1182. it is focusing on national security and has the means. it imposes additional restrictions in circumstances where those national security
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and for policy concerns are indicated. judge ronald m. gould: we have to interpret the statute and try to understand it. how would you characterize the limits that are imposed on the president? >> the two things i would focus on are the potential limits of the outer bounce. -- bounds. are they other sort of interest that do not implicate the core foreign-policy concerns that have traditionally been used under the statute? example, if the president were to say, i think immigration is a bad idea. contrary to the
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surviving scheme. the argument that we have seen throughout these various is that in certain countries there are muslim radicals. judge ronald m. gould: muslim radicals who we do not want in this country. exercising this is a way of keeping them out. >> your honor, the proclamations findings are different from what you just articulated. what the proclamation says is that after a multi-agency review there are information sharing deficiencies from these eight countries that undermine the visa betting system.
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wege ronald m. gould: permitted it? >> if i could lay out the process. do think 1152-a constraints the president's authority? >> i do not think so. judge hawkins: yourself. step, step -- first it's to make it clear that having an immigrant visa does not entitle you access to the country. it would be very strange if congress passed a statute saying, the issue with immigrant
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visas is the statute if they actually wanted to do is restrict the president's ability in decide who is admissible - this country. the point of 1152 was to wipe out the national origins quota's. have racial ethnic ethnick bouncing -- and balancing incorporated. judge hawkins: the question is, can the president under the aside theof 1182 push restriction on the issues of immigrant visas that congress later enacted? you actually are
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talking about restricting the eligibility criteria. revisions.tatutory there are just no explanations that the writ -- decision to restrict immigrant visas was presidentive the power to determine who enters the country. suggest is that precisely because it is about immigrant visa issuance, it was not matter -- meant to suggest that they would present a visa to someone who is not eligible in the first place. judge hawkins: that is precisely the point. that is how the administration tends to enforce its authority under this proclamation.
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we are not going to allow them to be issued and we -- you are not going to be a lot to enter. >> you are right. judge hawkins: that is what the administration has chosen to enforce its authority under the proclamation. >> it is the traditional practice that if someone is not admissible they do not get immigrant visas judge gould: predecessors: your who argued in front of us have told us, the administration intends to use the bar entry authority to prevent the issuance of immigrant visas. which, based on their nationality.
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you think that is ok? >> i have two points. the first point is that we do think that is ok. when congress said, there would be no issuance of an event visas, it did not intend to restrict the ability for the president to make those decisions. if you are not eligible to enter the country at all, you nevertheless have to get an immigrant visa. judge hawkins: they are not to even issue an immigrant visa because they are not going to be allowed to enter in any event. >> precisely for example, how president carter's iranian proclamation was enforced. visasid not get immigrant and off-line here -- all fly
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here. same with president reagan with the cuban proclamation. immigration was suspended from cuba and that included the visas. error in their position is that they assume that immigrant visas entitle you to enter the country and that is just not true. it is a basic principle that a visa does not entitle you to entry in the country. judge richard a. paez counsel if i could ask you a question. in other words, as i understand it, when the president makes a decision under the court has no authority to review it?
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>> that is correct. clarify -- may i just clarify. the analysis is slightly different. judge ronald m. gould: here's my apathetic will for you -- hypothetical for you. let's say the president sat down with his cabinet and they and decided the world is a very dangerous place. so dangerous that the president decided that he will exclude entry from any person from any place in the world if they are not american citizens.
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then, they make some finding that that would be dangerous to u.s. residents if there were such injury. -- entry. be judicial? >> let's focus on the statutory piece. the supreme court has made it clear that the decision of the political right to allow aliens to enter the country is a political decision that cannot be reversed unless congress has expressly authorized. they have not pointed to any express authorization but we know that neither the apa nor equity can override it. apa andabout the nothing about equity somehow says that these officers
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decisions are somehow immune from review but that the president from the united states irving. --rom review. you arenald m. gould: saying that it is ruled out the .resident my follow-up question is, let's assume that the president made a mistake in interpreting. the president's position is
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contrary to what congress intended. not no still n-reviewable. counselorvidual officer is just as likely to misinterpreting. idge ronald m. gould: understand the argument. i just wanted to make sure i understand your position. totallyts would be ruled out of that case even if the president was misinterpreting the statue. if we are ruled out under article three, i take it the supreme court is rolled out too
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-- ruled out too. >> that is true but again we are talking about statutory claims. all we are saying when we say it -- is thatt that congress rules of statutory claims. we agree that for con situational claims, review is available. under hypothetical, i think it is important to emphasize that we are talking about statutory claims. if congress chooses not to provide a judicial remedy, that should be no concern of the courts. it is congress's statue to begin with. there is no concern for that and no one has thought that was a problem when it came to individual counselor officers. they are not subject to judicial review.
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is cited in the d.c.'s opinion. even statutory violations are not subject to review. it cites cases including a case from the fifth circuit. if there is no explanation that , it turnsrovide everything on its head. the apa and equity do not provide greater relief. it is exactly the opposite. the president is not subject to the apa at all. judge ronald m. gould: what about his subordinate officers? recognizecases that this kind of circumstance that the claim may not be
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directly against the president but the secretary of state and section a of homeland security -- secretary of homeland security, why are they not subject to an action? where the policies that are being implemented are contrary to the statute. in general, it is certainly true that officers are both subject review.pa and to >> that is precisely the doctrine. they are not going to be able to stand up and cite a single case that says, when an officer excludes an alien abroad, you can soothe them under the apa, under the equity or under
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anything else. that is because of an background principle that that type of decision is against the proclamation. judge ronald m. gould: the broad scheme that is adopted through the proclamation. >> yes but it is not based on bureaucratic discretion. they are not saying that, the reason they are not going to that ain judicial review low-level bureaucrat is deciding. therationale the is that decision to exclude aliens is a fundamental political decision. if you read the rationale of why it shouldask not be imposed on the president, the answer is unambiguously, yes.
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judge gould: if you go to the text of the statute, and connote ant the period should be indefinite period of time. >> i think that is not right for at least a couple number of reasons. judge gould: an indefinite if you go to the statute, it would be detrimental to the united states, he made by proclamation for such period as he shall deem necessary. ist to me suggests there some limitation within the statute itself, a duration to the statutes. >> the statute says, for such period, it does not specify the outer boundary. second, this clock cremation is far less indefinite than proclamations in the past. for example, the iranian hostage
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crisis proclamation. those indefinitely suspended entry without any sort of fixed end date. in the cuban proclamation, that diplomatic dispute has been going on 15 months by the time president reagan imposed entry restrictions. there is no way to say that this violates 118df when the others did not. >> the other question i had we 1182fetting at, how does
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fit into other proclamations of 1182? congress has set a whole host of provisions with entry regarding terrorists and whatnot. the proclamation seems to disregard everything congress has laid out. >> i don't think that is right. >> why not? >> what 1182f does if provide the president with additional authority. i would point to the d.c. circuit judge decision which involved exactly this, and on much starker facts. what both of those circuits held was there was grown for it and admissibility only available if the alien's activity in the country were harmful in a certain way, not the mere entry. nevertheless, both courts said the president under 1182 could
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save mere entry alone was judgmental to the u.s. you have expressed limitation on advisability, and both of those circuits said the president has been authorized to impose additional restrictions. i would point to the supreme court's decision, a provision of ina that provided illegal aliens ina that provided illegal aliens with exclusion procedures. that statute only applies territorial he. the president established a blockade outside the territorial waters precisely to avoid triggering the statute. the court sent 8 to 1 that was clearly within his authority to avoid triggering the restrictions in the ina. >> quick question before we eat into your rebuttal time. 1182blockade outside the territl waters precisely toa prohibits n based on nationality has a clau
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se in it, it lists specific subsections of the ina. list 1182f. what do you make of that? >> if you look at the exceptions listed specifically, those were all added to the ina the same time that 1152 was. themer, no one, including will say that is the exclusive list of exceptions to 1182. 3d exampler, section 1250 explicitly authorizes denying nonimmigrant visas based on nationality in some circumstances. >> it is curious that if congress did intend, 1182f could overwrite anything else in the ina, but they believe that off the list of 1152.
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>> i don't think it is any more curious than they did not specifically list any pre-existing provisions of the ina that authorized nationality discrimination, including provision 12503d. that is about immigrant visas. it authorizes nationality discrimination for immigrant visas, but it is still not listed as an exception in 1152. one last point on 1152, then i would like to reserve the remainder of my time, on their reading, the suggestion would be even in cases where we are on the brink of war, or where there are unidentified threats from foreign nationals, their only response to that is to say, that's ok, because that would be
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a compelling interest, and therefore there is somehow an exception to 1152. the statute does not say discrimination unless you have a good reason to engage in discrimination. when federal statutes create and exemptions, they say so expressly. thank you your honor. purposesunsel's funding rebuttal argument, i will arbitrarily add five minutes to your rebuttal time. and i will give the same extra time to the appellees if they want to. >> thank you. court, i willthe be discussing the judicial ability issues, and my colleague will discuss the merits. over hundred 50 million foreign nationals, most of the muslims, dramatically reshaping the immigration laws congress designed. every time the government has been before this court, its main
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argument has been like the one you heard my opponent make. >> it is a little bit different, isn't it? prior to versions of the executive orders had been on speculation. we now have a 90 day period in which the government and its agencies, the department of homeland security, secretary of state, etc, have going through are certained there countries in the world is so if person a is person a. what is wrong with that? >> i think this court declared in its prior opinion that the court did not identify any respects in which the case-by-case setting process is failing, that the burden is on the alien to show they are and if they can't
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produce documents to do so, they can be denied entry. arend even if the documents historically informed? you would trust kim jong-un to say, this person is really this person, you got to take him in. >> the government is allowing many of these people in on nonimmigrant visas. there is nowhere in the text of the order that the government argued it is incapable of denying entry to on harmful aliens. that finding is not in the order. my colleague will get into it more. i want to get onto the justice ability. as aat do you propose remedy? that we have a trial in district court? >> we think the record for the preliminary injunction is all that you need to find disorder on lawful. -- to find this order unlawful. it does not meet what you call the essential preconditions for 1182.
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it does not contain a finding that supports the exclusion, and does not enter a century of wayrpretation described the these aliens would be detrimental to the united states. address -- >> there is not a vehicle with which to get to the statutory claims. >> we have a clear cause of action. there is the nonstatutory cause of action, which i did not hear my opponent deny exist. pause on thehould argument you heard the u.s. government make. the president or any office in the executive branch can
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violate immigration laws," and no court can review the violation. they say the only recourse is the political process. that is not the way the system works. i want to be very clear on this point. for individual consular officers, and for the president, there is review of statutory violations. my opponent says we cannot cite a single case saying consular revieable.re un "a court has jurisdiction to review an officer's action when the suit -- the case they rely on, the principal authority, which was a discretionary consist -- a challenge to the sufficiency of the evidence. we have a violation of statute.
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urged you to read them. this court heard the same arguments you heard my opponent make, and in both cases it held the doctrine has never been applied beyond an individual consular and decision to gran a visa. it does not apply to immigration policies. the washington decision remains binding. that is true for a number of reasons. the immigration laws insulate consular decisions from review. they provide the secretary of state cannot control individual visa decisions. the immigration laws insulatei's
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argument, -- argument, -- the court cannot skip the question. it is not true of individual consuls. i think this court decisively addressed those issues in its prior opinion. the notion of the waiver process is incorrect. we have detailed what every
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plaintiff is suffering irrespective of the waiver. a university can recruit students. complaints of multiple speaking events that can't be held. individual plaintiffs being separated from their families. the remote discretionary prospect of a waiver would not ameliorate those harms or repair the unequal treatment these plaintiffs are suffering. >> do you agree by its terms, 1152a only applies to immigrant visas? >> 1152 by its terms is limited to immigrantto immigrant visas. since the enactment of the statute, one year later, a judge opinion recognized that is a dramatic alteration to the immigration system that congress nationality off the table in consideration. because nationality is a favorite nationality off the
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characteristic, immigration officers exercising discretion can't discriminate on the basis of nationality. we think there is a greater principle embodied in immigration laws. we agree on the text that is limited to immigrant visas. thank you. thank you, judge, gould. there are four separate arguments on the merits. each explains why the president's sweeping ban is illegal, each supported by this court of executive decisions1 a nd 2. the arguments under section 1182 , the president has not made findings that support his conclusion that the entry of nationals from this country would harm the united states. second, 1182 requires the harm to be detrimental to the interests of the united states. >> does he have to use those
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words? >> i think he has to do what his predecessors have done and follow the practice. it can either be that the individuals themselves are harmed by saboteurs, or that there is an emergency situation. 46 other executive orders on this subject matter have been meeting what you are describing? >> i think they meet what i am describing. this was your question you are starting to ask my colleague at the beginning -- isn't this executive order different? isn't there now a worldwide review? i think that fails for two reasons. they have not made the findings this court called for under 1182. second, the findings they make are not detrimental to the united states. let me walk you through that. the last two arguments are the 1152 violation, and the fourth
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is the first amendment and religious discrimination. to answer your question posed to my colleague, here is the problem. here is what you said in your hawaii decision page 77. "although the order explains ,ecisions in the six country the order avoids any finding that the current screening processes are inadequate. as the law stands, an applicant bears the burden of showing the applicant is eligible to receive a visa. the order offers no further reason explaining how these individualized adjudications process is flawed, such that permitting entry of an entire class of naturals is injurious to the united states." that was your clear holding. he then had his vaunted seven agency worldwide review. find whatthey ever
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you called for, which is that the individualized setting process is not working? -- vetting process is not find what working?ed for, my colleagues began his argument, quoting multi agency wall drawing review process. 8 countries have information that undermines the visa vetting system. there is zero language in this order about undermining the visa systems. they have not made the finding. even as a court of appeals said -- you as a court of appeals said, this is what you need to do mr. president. you have wide discretion under 1182, but you have to make finding that the individualized discretion process is not working. what did they come back with? zero. they have talked about marketing and diplomacy. as you mentioned before, why does that matter? the burden is always on the individual visa applicant to come into the united states. if you can't show any bad folks are coming here, there is no 1182 finding.
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their answer is like to say, there are all sorts of there, but problems the dictator we are worried about giving false information -- as long as the individualized there,vetting system is workint is enough. you have national security experts saying exactly that. recorded,e excerpt people like senator albright and general hayden saying that. i don't think you have to get to the record or anything like that. you made a clear requirement to the government. when i was in the government, if even a district court said, you've got to make this finding, and then you have a long interagency process, and they did not make it, boy, that is a dog that really didn't bark. if you could concede everything about giving wide berth differential, they have not made the finding this court required.
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that is the first and most significant problem dealing with 1182. too demanding in our prior opinion? >> no, i think it is something any president should be able to meet. the idea that a president will be constrained in any way -- all you said was, make a finding something bad is going on. i think it is telling with all of this review, they couldn't do it. the national security experts tell you why, which is that the individual vetting system is working. you made a procedural request, make the finding. they didn't do it. there is a substantive question to 1182, this bargaining chip idea. even if you conceded the bargaining chip, that they want extra information and vetting, and i don't think that will
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qualify -- but even if you thought it would, they would have to qualify bad people are coming into the united states. it is like those coin sorting systems at the bank. the government is saying, the president is saying, someone is throwing buttons into the system. that does not matter the input as long as the filter is working. the court says, looks like the filter is working, tell us why it is not, mr. president. make a finding by the individualized vetting system is not working. there is a substantive problem, which is that 1182 does not permit the kind of foreign policy harms writ large that he is talking about here. the text of the statute is the president has defined that entry must be detrimental. early in june, your decision said government resources or
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something isn't entry being harmful. here, the entry he is a certain, this bargaining chip is not self-showing. is why we think 1182 -- we here,concede there is a lot of discretion for the president. no president has any trouble meeting the standard in the past. that is what the crs report said. this is a step that is very different. if you leave the governments brief, -- read the government's brief, you think they do this all the time. absolutely not. in the 45 instances of the president using 1182, 2 examples tops. neither are exactly good for the reasons you note in your predecessor opinion. those are exigency circumstances
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used to address a retaliatory fast-moving action, certainly not something like this in which the president has had 10 months in office, saying it is important for national security, yet has never gone to congress and say, etc. this vetting system, improve it. that is what presidents did after the 2004 act. not here. george gould, this goes to your hypothetical, the idea that the president can ban all immigration from around the world, and this court would be powerless to review it. his argument is essentially that the president can take an iron wrecking ball to the code and p ut the president in the drivers seat. that is maybe some constitution. it is not the constitution of the united states. itself --, 1182
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forgot about the whole ina -- his argument would allow a line-item veto over any provision in 1182. congress has gone over with a fine-grained test for excluding people for terrorism. it has not done anything like this dragnet that he is engaged in. >> let me just ask -- in trying to stand how the statute works or should work, acknowledging what we said before -- to what hownt should the court -- deeply should the court dive into trying to criticize looking at the president's findings? >> first, he has to make one that is relevant. that has actually got to be the -- >> in your view, that funding is individual a came into the
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country through the prior system and committed a bad act. is that your argument that he can't do it? >> it has to be a class of people. theyrgument has to show would be detrimental, not some hypothetical. there is a lot of history behind this. our brief in pages 30 to 39 goes over this history. fdr wanted a broader authority, and congress said no, we will not give you that untrammeled authority to do what you want. it has to be people that are injurious to the united states injurious to the united states themselves by saboteurs or the like, or out of found in an emergency situation, but this is neither one of those, which is where the problem is. >> to what extent can we look at intent?ident's
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intent? >> i don't think you need to get into anything about the president's intent. i think you should ask two fundamental questions. one, has the president made the funding required under 1182 -- the finding required under 1182? is there any evidence that 150 million nationals are a threat, and is that threat detrimental to the united states in the way the court would expect that t obe, those two categories. that is what the legislative history is about. if i could turn to the other argument about 1152. somethingn 1965 did sweeping by banning nationality-based discrimination. my friend has said this is what presidents have done all the time. never ever has the president on this since 1965. when president johnson
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introduced the act at the student union address, he echoed "a nation built by immigrants of thosends can ask that seek admission, what can you do for our country? we should not be asking, in what country were you born? that is what this injunction does. the statue says immigrant visas extended to not immigrant visas as well. the year after president johnson made the statement, the immigration code is fundamentally altered. it is altered in a way that says you can't have as a relevant factor, nationality anymore. that is what the predecessors recognized. last time around, immigrant visas was a smaller percentage of the overall visas affected by executive order.
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now it is a much bigger one. even if you disagree with what i am saying about judge friendly, this would declare invalidate a huge part of the order. even if you disagree with what i it is exactly the reason that youthere is no change whatsoever from executive order 2 to 3 when it comes to nationality-based discrimination. my friend has said in release -- found last time around. said in response that congress has 1182 power, and somehow that should trump 1152. sorry, that is the wrong word. with respect to that, this court entered in the last opinion by statute,82 is a later and only admits one exception. it is not that the president can restore the entire national origin discrimination system that has existed pre-1965. that can't possibly be what congress was thinking. judge paez, as you said in the
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last oral argument, the jump of the court is to reconcile two different statutes. you have one statute that gives the president broad powers in 1182. it does not extend that you can discriminate on the basis of nationality. congress in its text explicitly said to the contrary. >> counsel, i have a question for you. assuming for the sake of argument that we were to accept position that's 1152a only applies to immigrant visas and to nothing else, am i correct that the proclamation correct that the proclamation here still fall in total because the lack of a proper detrimental of the determination? absolutely.
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there are two totally different statutory violations. there is 1152, which we think covers everything, but it would only take out that part of the order, which is a big part of this executive order. our other argument about detrimentality is an 1182 argument, and that stands totally separate. it knocks out the entire absolu. order, just as last time around when he found 1182. they have not met what you said in page 773 with respect to 1182 . i could, i will spend time on the constitutionali could, i win the constitutional claims. i think they are important. george hawkins, to -- judge hawkins, to start why this is discrimination. you asked the solicitor general, has the president disavowed any of these statements? he pointed to an amicus brief and tried to reject the statement. since we have last met is very
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telling. we have the fourth circuit saying this executive order was a violation of the first amendment, that it was religious discrimination, that it was effectively a muslim ban. what was the president's action? muslimno, this is not a ban, i am not doing that? did the present say anything like that? what you referred to was from the hearing on may 15 when we were all here. 2.ecutive order my the question is in our 2, we pushed aside considerations and made -- why should we change that? otherwise your argument is stick with what you have written.
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>> absolutely. i am not saying you should reach the constitutional issues in the you disagreed. my only point is if you disagreed with what our statutory -- which would require you to disregard everything you wrote back in that may 15 hearing but if you did for some reason then i do think you should reach the constitutional arguments here, they are brief and well developed and the record has gotten worse since we last met in may. the president has not moved away from his campaign promises and has issued a new executive order and look to what was said last week in rekindling the past. >> let me take you back to 1182 for just a moment. suppose theoretically speaking that we did not think the finding was sufficient.
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the finding was sufficient, i should say. just looking at it. maybe we went too far in our prior opinion. just hypothetically speaking. is there another way in which on president, we could rely 1182? >> absolutely. as you were saying to my colleagues asking about the limited nature, 1182 does have absolutely.pend and this court recognized last time around in its may 15 opinion that the government and the president has to have a rationale that is sufficient to show that it is detrimental to the u.s. and the policy -- as the policy gets longer and time that rationale has to be better. around, the solicitor general said this is only a temporary ban, we need minimal justification. a ban of indefinite
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duration and they do need to justify it with the stronger finding. that is what the district court expressly found relying on your opinion below. i do not think that even if you were to find that somehow, they made the finding that you called for an page 773. they met the kind of finding necessary to justify this indefinitely. no president does anything like this. closeste takes -- examples are so far afield and the supreme court has said even if the president had done this in the past, it does not make it constitutional. >> at one point in we reach a serious separations of powers? >> by their argument the separation of -- you are in the separation of powers huawei. he wants to gut the role of this court right away. we understand 1182 gives the president rod powers but it has
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a procedural and substantive component. you have to make the findings and the findings have to be sufficient. your hypothetical -- under your still hasal is -- it to be sufficient. as the ben gets indefinite it looks like a very hard thing for them to do given the record they produced in this executive order. >> we could be wrong but my chambers found 43 orders under 1182 and only one of them had a time limitation. >> absolutely. i'm not saying the president cannot make an indefinite order. 1182 contemplates a limited one of the limited time. if there is going to be a istification under a finding the policy gets longer that justification has to be better. >> the proclamation which requires periodic reviews and reports and adjustment of the
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policy. perspective that is not good enough. >> the last order said there is no guarantee. i do not know if it requires it. ultimately the problem is the finding is not justified on its own terms. this is not a circumstance in which they said we distrust individualized betting. exceptions for countries, even ones that fail --information sharing sharing and management. this is not a coherent document that says we distrust our own process or something like that. is the fundamental problem with that. no other questions to sum up in half a minute or so, tomorrow will have been two years to the day since donald trump called for a complete and -- and total shutdown of all muslim immigration to the u.s.. there will be another set
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anniversary, 76 years since the devastating attack on pearl harbor. was an assault on security and on its most basement -- basic requirement. tragedy witness to that . what the government did then in the name of national security did not make a stronger. it betrayed our values. it betrayed our nation's soul and rather than defend those values, the court stood by them. twice now this court reflecting the dissent in the cases, not the majority has made sure not to repeat that mistake and to avoid the nightmare of judge golds hypothetical of the federal court system that is powerless. this word has twice asserted the title -- the vital role in rejecting the attempt to flout our constitution, to flout our laws. we ask that this court do so again.
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counsel.you, >> several points, your honor. the first and more -- most important. this court said last time that the eo2 did not have a finding. etting was inadequate. he is absolutely wrong thing proclamation does not have those findings today. let me read through the finding to make clear quite have run he is. from section one c of the order homelandclear that security was required to identify whether and if so what additional information will be needed from each foreign country to adjudicate an application from a national of that country for a visa. 1h of theection
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order. it sets forth that the secretary of homeland security was supposed to provide a list to permit the entry of appropriate categories of foreign nationals of countries that have not provided the information requested. and then and critically, if you i of thesection 1h order, here's the president came -- key findings which directly contradicts what he said. everest action and -- imposed by this proclamation are necessary to prevent the entry of those foreign nationals about home the u.s. government lacks the sufficient information to assess the risk they pose to the united states. i do not know how it could happen clear that the proclamation made the finding that this court asked for. you might disagree with the finding that you cannot disagree that the finding was made. arguing is hisly argument that entry has to be
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harmful in and of itself. the individual alien has two impose harm but he did not respond to any of the points i made about why that is wrong. he did not respond to the fact that it was not true in the iranian and cuban proclamation and the other 40 some of arelamations all of whom about people who engage in harm abroad. he did not challenge in this proclamation the provision set of pride -- applied to venezuela. they apply to government officials and their family members. no one is arguing that their family members are going to engage in harmful behavior in the united states. the reason that restriction was deter ands to sanction foreign officials who engaged in harmful behavior towards the united states. he did not challenge it because it is something wrong that under go2f, the individual has to
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engage in harmful behavior. now gerrymander that because they recognize that if as the proclamation fines, the problem here that there is harm's from the foreign governments and the way we are dealing with that problem is by imposing entry restrictions to encourage the foreign governments to fix the problem. almost all of the arguments fall completely apart. >> why is it the proclamation allows for entry of certain categories without any restriction? >> that is the point i was making. >> explained to me. i do not quite get that. >> the point is to encourage foreign governments to change their behavior and that is not a one-size-fits-all decision. it is an intricate and complicated foreign policy judgment and the president -- >> if you take the statement and link itd to us
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back to the concerns about lack of insufficient processes for doing adequate identification of who the applicant must be indigo over to what they did, in chad, the proclamation suspends immigrant visas, suspends tourist visas, suspends visas but there is no restriction on a student visa, and exchange visitor visa, and other non-immigrant visas. if they are concerned about identity, how does that lineup? >> as the proclamation explained, the proclamation imposed the strictest sanction on the countries that were most recalcitrant and imposed sanctions and countries that cooperated but are still inadequate. they leveled the sanctions, that is a personal -- perfectly rational way to encourage countries. they have no explanation at all
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for why those restrictions are the way they are. their theory that it is a muslim proclamationn, the explains exactly why. it is tailoring the restrictions in a way that the president and his advisers determined were most likely to encourage foreign governments to change their behavior. the third point i would like to make, your honor, he is again in -- and again suggesting this is replacing and overhauling the ina. there is no response to the could -- the supreme court's decision all of which recognize the president under restrictionsose over and above what is in 1182a. he said i believe -- haitianswas a case of
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entering and they were stopped interdicting the boats as they were coming to the united states, is that correct? arguing the claims were recital -- asylum and the removal applied to those who were on the way to the u.s. it does not apply until the get to the u.s. 1182f twosident used prevent the patients. >> i have to go back and read the case. i do not recall. >> that is what the entire fight was, the haitians had reached the shores. they would have been able to invoke all sorts of claims for asylum status and precisely to avoid that. president imposed a blockade
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that prevented them from getting to the shores. >> the court had no difficulty in reaching the questions that are involved in that case. >> that is true, your honor but they rejected the claims. >> they rejected them on the merits. a reviewed the claims. the claims not say were reviewable. >> why would they go to the extent they did, they could have said these are non-reviewable and we will not review it. issuesund the statutory pretty easy, eight to one, that is a reasonable explanation. the fourth one is on 1152 nationality discrimination. he said never ever has any president engaged in nationalities -- nationality discrimination to deny immigrant faces. that is what president carter did for iran and what president reagan did for cuba and he again has literally no explanation for that. the last point i would like to make before i sum up is on
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availability. they cited a couple of cases, since i do not believe either were cited in the briefs, i am not familiar with the first one he cited, i am familiar with the second. it involved an order requiring the alien to enter the country. also had to rule on the visa application. not that the revision would be reviewable. their scare tactic that this would mean that there would be no review and the scheme could be overridden, falls apart when you recognize that these are statutory claims. congress have not -- has not provided a remedy. >> there would be no remedy unless congress enacted. but congress could at. >> of course, congress could provide a course of action for the denial of entry to aliens
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abroad in violation of the ina. congress has not done so and has never done so and that is why when officers restrict the aliens abroad even in violation of the statute, there is no review. >> i am afraid your time even with the extra five minutes is more than exceeded. >> thank you, your honor. -- theto comment advocacy on both sides was exceptionally helpful and we really appreciate it. accordingly, the case shall now be submitted and we will try to get an opinion out as soon as practical. the supreme court has asked us to do that. so we shall comply. thank you. court is adjourned.
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>> all rise. this court [indiscernible] [gavel] >> a c-span history series about the supreme court returns in february. we hear about the stories and
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constitutional drama about 12 cases heard by the high court. landmark cases beginning in february. friday on c-span. at 8:00 eastern, this week's supreme court oral argument in the case of masterpiece cakeshop on whether a baker can refuse to make a wedding cake for a same sex couple based on religious beliefs. >> i'm not here to read about myself or think about myself. i'm here for something so much bigger than me. that is a lesson i have often said publicly and privately there are only two people who work here who were elected to anything. their names are donald trump and michael pence. >> watch friday beginning at
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8:00 p.m. eastern, c-span.org and the c-span radio app. >> yesterday the house spoke about the rules committee. this rules committee meeting is 90 minutes. >> come to order and good afternoon and welcome to anhe

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