Skip to main content

tv   4th Circuit Court of Appeals Intl Refugee Assistance v. Trump  CSPAN  February 17, 2018 12:54am-3:00am EST

12:54 am
>> the history series, landmark cases begins february 26 and 9:00 p.m. eastern look at supreme court decisions exploring the case is sarah peterson at the university of virginia law professor at the professor of arkansas. wash landmark cases live monday february 26 at 9:00 p.m. eastern. for background order a copy of the companion book. available for $8.95 plus shipping and handling. for additional resource there's a link on our website to the interactive constitution. >> a second federal appeals court has ruled against the president's travel ban.
12:55 am
the case was her last december before the fourth circuit court of appeals in richmond, virginia. in the majority chief judge roger gregory said it concluded the proclamation is unconstitutionally biased against islam. this is two hours. [inaudible] [inaudible] [inaudible] [inaudible]
12:56 am
>> the proclamation is fundamentally different than the prior executive order. the proclamation requests multiagency worldwide review engagement recommendation process and its findings that they have been adequate practices or other risk factors that undermined the visa venting system they weren't restrictions to encourage the companies to improve their practice and protect this nation until they do so. >> in light of the fact that these are essentially the same, would you tell me what you think the supreme court action on monday and issuing the stay which he saw, how's that going to play on the resolution of the injunction in front of us?
12:57 am
>> the primary element is that we have to show likelihood -- we know item minimum they think we have merits. these circumstances we know how they struck the balance last time they granted us a complete stay as strongly signals it's more than a mere likelihood. is a good indication that injunction across the board. >> will they stop that as well. >> i think that's a strong signal. i think it's a strong signal your honor. it's because of the critical procedural differences. in light of those them proclamation falls within the
12:58 am
broad statutory to restrict the aliens abroad. the district court agreed with us. >> even had an executive order to the supreme court is an executive order to the supreme court above the standards as well. >> they stated for the individuals but to not have a bona fide cynic commute. microphone or talk louder. >> the district court agreed with us that the proclamation satisfies requirements of 1182f. i like to begin their. >> you mention the critical differences between the proclamation now an executive
12:59 am
order can you delineate what you think are the most important critical differences? >> the procedural component to it. on the procedural side the critical differences it would involve a multiagency process for the president instructed these agencies to see what was missing. >> i did not read the if any into what the president directed people. he directed that certain countries be found to be banned. >> section today -- which country should be banned. >> in section two a of the order whether there is information that foreign governments are not
1:00 am
providing. it didn't say that there is information. >> it didn't say if any either correct. >> with the proclamation direct will they provide a list that would not comply with the requirements of the proclamation. so there would have to be an affirmative following a review there could be some, many, or non- on that list. . . the first is as i said section 28 identified whether there was information that was missing and it section to eat when asked for the list says appropriate categories of nationals from countries that are providing the requested information so there were no countries that were not providing the requested information by definition and even if there are countries that
1:01 am
are not providing robust information and expressly says appropriate categories and we know the agencies to get seriously because for example, iraq was found to be not providing to not meet the baseline and yet the agencies recommended and the >> to not include that so we know that wasn't a preordainedot conclusion they hideio discretion to make the recommendation to the president for which countries to include to exercise that discretion they didn't just omit iraq that is the differenc difference. on the otherec side they had a very tailored restriction they omitted iraq and sudan even with those countries that they covered for nonimmigrant visas for several of the countries.
1:02 am
>> so to impose the ban on those countries is the hope andou expectation there is a change in the process for these nations to improve information sharing practices. what about the bargain chip coercion is an entry of a whole class of nationals would be detrimental to the united states. help me with that. >> i think it is a traditional exercise to determine that when a foreign government is engaged in harmfulul practices it could be detrimental to the f national interest that precisely what president carter did with respect to the iranian hostage crisis.
1:03 am
>> and also president lincoln for all immigrants that were also unlawful. >> but that is a wholesale ban of 150 million plus with the hope and expectation that they could cooperate. >> just like president carter restricted all immigrantsll from iran from entering with a hostage crisis nobody was suggesting an immigrant was a threat at all let alone connected to the iranian hostage crisis but because the iranian guard government is engaged in harmful practices
1:04 am
why the additional w prophylactic measure? >> but foreign governments are not providing information to allow that to occur. >> if that is the case? >> that is one possible response but it isn't the only response nothing with that narrow taylor of that least restrictive alternative is entirely permissibleel. >> we have exceptions for entry that was calibrated? >> that's right your honor because the courts have repeatedly recognized that is a recognition by congress of those additional restrictions over and above. >> are they limited on time or can they speak indefinitely?
1:05 am
>> the statute says. >> for such. and with that dictionary definition that said a suspension is a definite period of time. so can you explain that indefinite ban imposed complies with the language of the statute? that has been other presidents but how does that meet the statutory grant of authority? >> and for such period as he may deem necessary. and in this circumstance it is entirely permissible to say potentially until they correct that. >> but the order doesn't go that far. >> what it actually says under
1:06 am
section for every 180 days the president they will revisit. >> there is no sunset provision. it is essentially in place unless he says otherwise. >> it is in place until the countries have proven themselves two let me ask another question. let's say that this study contains information that is likely to be true that most terrorists are people who commit terrorist acts are men. could the president ban all men under at express authority of 1182 all men until evidence showed further that men are not the ordinary and customary perpetrators? >> i don't think so because using gender is a proxy.
1:07 am
>> if you can't use gender then there is a question of violating section 1152 is that what you are driving at? >> no. the restrictions have to be for a legitimate reason and engaging in gender discrimination. >> but 99% of terrorist x are committed by men that if we just keep out the men. >> in general you can't use that as a proxy you have to targetn the actual conduct you are worried about the nationality is not a qualification for the federal government with immigration law. >> do you agree there is the 1152 discrimination based on gender and nationality? >> only in the context of the immigrantnlon visa. that language is critical if congress wanted to restrict
1:08 am
the ability of the president to keep aliens mentoring the country they would use the language in the issuance of the immigrant visa it is clear under the ina it does not entitlehe anyone to enter the country you always still have to be admissible so if congress intended to implicitly repeal the authority to allow the entry or suspend that they never would haveav used that language of immigrant visa this is clear from the legislative history. >> in your view can the president use this 1182 to two to promote or further any foreign policy objective he may think acceptable that is arguably related but if he wasn't happy regarding that foreign policy objective to
1:09 am
then say i ban the seven or eight nationals from this countryff. >> i think the statutory language is if it is in the national interest so to accomplish foreign policy objectives. >> it isn't at all related in this case to the vetting process. >> i think that's right. i understand with the proclamation even with president reagan those were challenged but both orders had exactly that feature that because of foreign policy disputes with the government the president restricted the entryry without any suggestion, any suggestion that individuals that were subjected to that had anything to do with the foreign policy. this case is stronger than thatatrn because here they have
1:10 am
the failure to provide information of the very nationals they are now restricting so that cases much stronger. >> counsel i have a threshold question. i want to be sure that i understand the argument that you make. is that meant to include the plaintiffs for those statutory claims under 1152? or the constitutional claim that they don't have standing? a >> we made in article three argument but the primary judicial ability argument ist, focused in particular on the statutory side the statutory claims with the aliens abroad but congress has expressly
1:11 am
said otherwise but on the constitutional claims they have no constitutional rights. >> are you making a standing claim? >> the supreme court has recognized in this context artists -- also an article three the basic point that unless and until the individual alien is found eligible to enter and denied a waiver they are not affected bybyth the proclamation. >> is that your position in the courts cannot review this proclamation? >> no. your honor what i was saying is on a c constitutional side. >> what about the statutory side. >> is your position the president has that detrimental
1:12 am
activity to say we cannot review that? is that your position. >> it is our position. >> where congress has stripped off their jurisdiction? >> pointing to two cases the supreme court decision and the d.c. circuit decision both of those recognize that talking about a statutory claim the restriction oftr aliens abroad is a fundamental and foreign policy doctorate not reviewable unless congress is provided otherwise and that is the rule clearly officers restrict the aliens abroad though that is simply not reviewable. >> that congress made it clear
1:13 am
even with 1182 several times that sole discretion with other parts of the statute. >> so i think 1182 has language itself because it is phrased in the national interest but by using that phrasing. >> if it has to find something then it is reviewable? >> i don't think so your honor. >> those statutory constraints webster with the government official. >> so who are the findings for? >> is it a substantive constraint? >> how is it a constraint
1:14 am
spent the president takes an oath of office. >> who reviews that constraint? >> that doesn't mean the president doesn't have to follow that. >> where do they say that he can't? you say the courts can't that third branch of government, who does? >> two things. the first and primary pieces of president takes the oath of p office to comply with the constitution. second. >> on january 20 he has the power because of the oval offic office? >> at all think the courtrt should suggest to makes a you say that's when it started? >> i'm not suggesting your honor. point number two is that congress has the ability to review what the president is doing talking about statutory claims. >> if congress is concerned the presidents violating they
1:15 am
can authorize review. congress has not authorized review in the supreme court has said repeatedly. >> what about the case talk about congress can delegate authority and then decide that they could do that? >> so to delegate that to the president and then they decide? t >> chavez did not exclude aliens abroad that is a very narrow set of circumstances unless congress provides otherwise there is no review and part of that is there isn't a delegation issue because the president hadue inherent authority with respect to aliens abroad. >> but that power comes exclusively from congressional
1:16 am
power. >> that is where the exact argument was t made that congress improperly delegated authority to exclude aliens in the supreme court said thatsi is not true that he had inherent executive authority to restrict aliens abroad. >> you say under 1152 clearly it was a policy we would not discriminate the president can just say i don't want to do that? and then i can have every country excluded is that correc correct? >> if the president were to do that it would not be reviewable but he would have to make a finding it was detrimental to the nationallat interest that's not what we have here but eight countries have specific national foreign
1:17 am
policycy problems and in response that is precisely what president carter did for iran and what president reagan did from cuba. nobody even argued those violated. >> nobody challenge those. >> that is correct but the fact that nobody even bothered to challenge it shows how weak the claim is. so if you look at the legislation. >> but that doesn't apply that is not the issuance of the visa and in response to the judges? gender you said that doesn't apply because that is a broader classification much like race. so gender is one that you can't use then why does congress put that in 1152?
1:18 am
alreadynd race are covered even with the issuance so why is it in 1152? >> your honor, the point i was making. >> my question is why is it in 1152 if two if what you say that gender doesn't apply is aho classification they can't do it? but you can use nationality so why does that apply to race and gender? to make there are a lot of statutes. >> why 1152? >> congress passes the statute to bolster what it prohibited. >> but it is focusing on the issuance of immigrant visas what they were trying to do an
1:19 am
legislative history makes this clear they were trying to wipe out the pre-existing. >> you didn't need that they already had it. gender you can't use race or you can. even as the judges indicated residents can do it on this basis. >> there are a lot of statutes what the constitution prohibits i don't know why that undermines the argument i was making but under 1152 congress was concerned about the specific issue of the national origins quota is. >> as i understand it the review is the primary basis of which you make this why the supreme court so in a review which is classified, we don't
1:20 am
have that we just know it is therehe procedurally, but then what do we do looking at an objective reasonable observer with multiple instances in which this president hasn't indicated that he tweets that is indicated of the proclamation. so do we just ignore reality and look at the legality to determine how to settle the cas case? if that is the purpose and began already allows that, does that make a difference? >> i have several points to that, first we do think although statements are legally irrelevant and here is a critical point different from last time.
1:21 am
>> what do you mean although statements? i'm talking about directly to the purpose and if the allegation is this is to ban muslims from the country that every statement made by an individual says that but it is done in a way that it is legal. >> and what i was saying is the supreme w court since we were here last time made crystal clear that the mandel is a national basis review standard so the subject and purpose isis legally irrelevant so to engage in a rational basis you cannot look to see what is behind the motives. >> then do we go back and answer the question?
1:22 am
you say but what tell me what you say on that. >> go past the fact so the question is whether that objective observer would determine that primary purpose was religious. i will submit that with the multi agency review. it is all classified. that is all wen know. >> this report is not in the record. and notwithstanding we can take notice of statements made if evidence allows us to do that as a direct purpose. >> a reasonable objective observer says you do have the
1:23 am
proclamation and they would not exist -- ignore that. >> so you say the support for the proclamation is in the report? is that rational and not a muslim band in the report? further detailed and also the proclamation. >> looking at classified information in a secure manner , is it much easier if you would put your support in the record although classified so we could see it? >> don't count on it. >> it isn't just that it was classified it is also a report covered by the presidential communicationnd privilege a
1:24 am
recommendation from cabinet secretaries to the president with incredibly sensitive information not just classified but also foreign policy information such as which countries help us so this is incredibly sensitive information covered by federal communications privilege. >> you cannot get past that classification so we have clearance with classified by the executive privilege that hasn't been litigated. >> correct your honor. >> is that asserted? >> no. so we don't think it is necessary or appropriate but if the court were to order us to file the report x partake we would do so then you would
1:25 am
file the privilege material and stand on privilege? >> that is a niche -- an unusual position. >> i understand. but we are an equal branch of the president to determine the privilege so will we get into thef delivered is process of the executive that would be similar to the president. >> but you said you would give that up? if we ordered you. p litigate that issue first. what is your answer if we have to litigate executive privilege issue before you show it to us export a -- x
1:26 am
partake. >> i apologize i'me not sure i have taken a position. >> if the court were to order us with executive privilege. >> we have a clearance just like you do, everyone of us but you have another point ofr executive privilege. but i thought youro answer was you would give it to us but now you back off because that is the question? so before you give it to us or insist on litigating thator deliberative privilege before you turn it over? >> your honor i apologize i do not have a position on that. if it is relevant to the court
1:27 am
we can submit a supplemental filing. >> if i could just follow up on that as a council in the district court? when this question came up before the district court, you said if you think what is in the proclamation supports the legal standard then it should be upheld. if you think what is in the proclamation is not sufficient to support the relevant legal tl standard that it should be invalidated. do you stand by that position or do you have a new position? >> we do think that if you don't think by itself satisfies that. >> no no. two sentences.ui do you stand by them?ta if you think what is in the proclamation of legal standard then it should be upheld if you think what is in the proclamation is not sufficient
1:28 am
then it should be invalidated. that was the case to the district court i assume that is what you put here. >> that is what we do and we stand by that in so far any judge thought was critical to their analysis. >> but you have told us live or die and also one other question when the acting solicitor general was here before he insisted on telling us how temporary the band was as a brief cause and that is the difference between the border that we have now and that existed then. and one you have not spoken to make the reason for the difference last time it was
1:29 am
temporary. >> with the suggestion was the study would make itav so you don't have it in the future but in fact the study said do this in the iny determine it amount of time. >> critically only for those countries found to have the inadequate action. >> there is an overlap sudan is not covered or iraq under the first order. >> all the other countries cover there are exemptions now we are not denying all the countries are covered nor should anybody be surprisedth that leather those that state sponsors of terror will not turn out very well with the
1:30 am
information that we need some people were regarding so should we be prized? >> it all think that is a fair construction of the proclamation. >> and what i am suggesting is that president statement said he wants it to be tougher. whether it is tougher certainly not with respect so if you look at what countries are covered and those that are only 52. >> korea and venezuela so that
1:31 am
is like window dressing. >> the president stated he wanted it to be tougher. with respect to muslims because that proclamation isn't it just isn't. >> so those other statements from november 29? that you do seek additional notice? >> we don't think it is legally relevant. >> you said it wouldn't take judicial notice? >> of the fact that statements were made they want to use the content to those statements which would never be admissible in trial, they are not official documents speculation, hearsay and you are conceding we can take
1:32 am
judicial notice? >> i thought that judge harrison was referencing the president street long -- tweets. >> it is the position those twitter accounts are official statements of the president of the united states. >> so you can see those are official statements of the president. >> so here is my last one and it is the position the president speaks for the executive branch? we have a unitary executive is no space if there is a gap between the purposes and
1:33 am
the motive between the president and subordinate so as a court we cannot go behind what the president says we go with what the president at. >> so to put the statements before the supreme court they did not persuade them and they should not dissuade the court because they are simply not the guilty relevant under mandel which is the rational basis review. we don't the just to clarify we don't think that most recent tweets are not even relevant. >> all the president may be
1:34 am
showing anti- muslim bias but that cannot be taken over into the content. >> that proclamation has too be viewed and not manifested then to be irrelevant other -- under either. >> going back to the statute but can they violate the naturalization act? it is a local question by terms of his authority 1182 with any other provision? >> know. it is president to engage in conduct to violate some provision. >> what is the limiting
1:35 am
principle? if the presidentnt can van all immigrants even though we can't discriminate so does the president i don't want to take any action. it is hard. but the president under your theory does he violate any particular provision of the ina to make a finding that pursuant to any other tradition. >> the president to make a finding that is detrimental. so i would say two things one
1:36 am
is substantive and procedural. 1.20 should be detrimental to the provision so therefore i think it is national interest in and to authorize those immigrant visa. but that is not what this proclamation does. it finds that there are certain countries that present national security and foreign policy problems. that sort and then the d.c. circuit decision exactly and there was one that required the activities within the
1:37 am
country be harmful. >> i am just trying to establish that the president can't eat more. >> asking why that is detrimental? >> you said in the united states like right when they gett here. what about 1182? >> that is exactly what it held with the supreme court and failed because of the haitian immigrant had got to the shores they could file protection. >> but it says essentially once i got there they had to show? >> no. the response is that if the if immigrants have going here and
1:38 am
then precisely to invoke sound projection was clearly authorized in a way that woulden stop or what they might or otherwise have is not their problem. >> but d the. >> no more than we have to be logical left mac. >> i i agree. >> why immigrants are treated differently than other aliens coming from the same country?
1:39 am
if you are from a band country you just want temporarily then you are subject to fewer restrictions and as an immigrant from the exact, you are band and you say that doesn't make sense? >> not at all. the proclamation explains explicitly why on that distinction because in that is more harmful if not removing them on the backend it is rational but as opposed to
1:40 am
those coming here for business or something. they are future americans we willn not tolerate this. isn't that a we are position? >> with immigrant visas in the legislative history that is when the government was discriminating on ethnicity and race. >> let me ask you that is it true the president is entitled to the greatest area of deference of national security then to doublel down with national affairs. >> how do you think that principle of deference works when he makes statements they
1:41 am
look and say anti- muslim so he is entitled to number two in the facial but then to put people interested in the statements it is clear without
1:42 am
discrimination. look at it in context people can look at them differently but is that a possibility to see in total context is there any rule on what and with that more charitable information what the president did rather than to be more hostile. but we have a proclamation recommendedh by agencies who have such -- no such statements. >> we don't know we haven't seen this report and previously we determined and that other opinion now you
1:43 am
have added the proclamation. >> but it>> lays out the agencies engaged in the process to recommend these eight t countries, unless the agencies did not say that. >> that we cannot look at it to see. >> that is true but to suggest the president is right that eight agencies recommended. >> i understand your argument with your's position of the review process or concerns that anybody may have but i
1:44 am
need you to explain the review process is independent to cure the taint from and it is part of the executive branch and there is no space not that the president is over here or dhs is over there but they are subordinate to the president i don't see how this review process is independent. >> because you are reviewing the proclamation but the question is looking at that analysis is what is the primary purpose of the proclamation? >> signed by the president and he has his statements officially on the record. although i agree people see the differently like november
1:45 am
29. even with different -- deferenc deference. >> but that exact recommendation and president the notion says nothing about the process or the substance. >> if we were that is just the entailment of the purpose of the establishment t clause it is constitutional in one location or another. >> that is a possibility but
1:46 am
no other case has ever suggested multiple agencies engage in a process to make recommendations about national security and foreign policy when they are neutral with religion to be set aside on those that don'the even pertain to the purpose of the proclamation if you just focus on mccreary that has a religious practice that had great emphasis on the language that was religious in nature and the other monuments put up alongside that did not. make much sense. that did not drive the conclusionhi whereas now there is no argument this proclamation violates the establishment clause so a much
1:47 am
better analysis was to that day the purpose was to protect in the supreme court nevertheless heldt that violated the establishment clause in the primary reason is the exemption in that statute it no longer had a religious preference that it was more secular in nature and in this case that exemption and proclamation serve a similar function. no way can you conclude it is a muslim band but for some reason to accept non- immigrants from those countries that just doesn't make sense. but it makes perfect sense underli the rationale that they actually did that that there are problems with the information sharing from these countries and to deal with the risk of abbott also to encourage these countries to
1:48 am
improve their practices through tailoredd restrictions with their willingness to cooperate and makes perfect sense otherwise. >> just to make sure we are clear 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 from my perspective i don't think he is lying at all. he is saying exactly what he means notwithstanding that characterization but he says it over and over and makes it very clear he is in control what he feels not that he is lying and i think that is the question if the president is telling the truth about what he feels with independent
1:49 am
worldwide review they seem to characterize they did that onus their own without any impetus whatsoever but we believe that there but if he is telling the truth that is perceived to be that then how do we look at that to determine that in a shell with rational basis but in terms of a reasonable observer? >> again the reason the proclamation given it is based on the recommendation of the agencies telling the truth that they did engage in the process and find eight countries have an adequate information sharing practices or risk factors that because of those they recommended those that encourage them to protect the nation until they
1:50 am
do so so to accept all of that is true then i submit the statement. >> the statements nobody is disputing that. but i am saying those statements don't speak to the purpose of this proclamation. >> is the purpose to deter terrorism? is that the goal of the proclamationf? >> the end objective is to keep it from terrorism. >> and the presidents you have conceded our official statements of the president of the united states and they could be subject too charitable interpretation. there was a tweet before the proclamation was done over a statement that shooting
1:51 am
muslims dipped in pigs blood should be used to defer future terrorism. how am i supposed to take that charitably? for the first point that is not about the proclamation at all. >> it is deterring future terrorism which i thought is the proclamation. >> that is the end goal but that deals with a specific problem within adequate information sharing what the president said how to deal with aner actual terrorist. that doesn't suggest any short of general bias against muslims or that they will ban all muslims because of a fear and the proclamation is opposite to say there is inadequate information sharing or other risk factors. and the people without problem
1:52 am
andhe then they they will protect them until they do so. [inaudible conversations] >> good morning iran or may it please the court the proclamation repeats for needle laws first in response to judge harris's question question the president directed the subordinate agencies to stick with the
1:53 am
original architecture. and that is used as the proxy forig religion so by design what the president asked that was to stick with his plan is that the criminality. >> so tell me of the supreme court's actions to grant the stay on monday? because you will pose supreme court's action but look at me o of. >> judge i don't think this court so that could --dash i didn't say substance but i said but you cannot take
1:54 am
anything. >> i don't think that is right justaw because because of the supreme court previous day that did detail they were issuing the order based on those equities. >> i don't think we can assume that the supreme court in this instance was saying something about the merits but to the contrary. >> the supreme court previously did address the
1:55 am
merits and ruling on the stay and i think all this court can do is decide a case on the record as it finds it. >> so. >> and that substantial likelihood of success onn merits? >> you cannot tell why it issued the stay. >> maybe at that stay proceeding or preliminary injunction can skip that stage. >> they did not rule on the merits last time in considering the stay. >> all i can say is that it was to write but the supreme
1:56 am
court will do what it wishes to have a of said court of opinion. >> we shouldn't take anything from the fact of the supreme courtt. >> i don't thank you can but the secondhe reason of the new proclamation. >> you could read between the lines that you are sending it back to have the district court rule on the merits. >> well judge the they did
1:57 am
reac reach. >> but thisle was temporary even to consolidate whatever they do with the merits of the case. >> you can reach that statutoryl, issue which we did not. thee and then to direct the court to reach a decision with a patch and so that is what the court should do respectfully. the second y reason. >> but you began by saying that the proclamation continues to practice by nationality? this is different in the sense that the proclamation began not just from the muslim
1:58 am
majority nations that so to go down to the fairly similar results and that is from the national ban. >> the phone -- conceded that we should not be surprised we do with five of the six countries and even though the president directed this worldwide, what he did in some sections to say give me the list of your countries and in the design of the study. >> so he ordained but then the
1:59 am
department comes back and says you can't find anything. >> we know not just from the because the presidents the president had two very important things. first that we have a very big problem with muslims assimilating in the united states. second, i want to go back to the original and go all the way. that statement is what he has repeated throughout the a summer and the fall even before the results of this study came out. long before the study was done the president said i stick with my original plan not to use nationality. this goes way back to what he
2:00 am
said right before the election and was confirmed by his advisors right after it was issued you don't want to talk about muslims then i will talk about territories. . . . . apparently, that would satisfy the statute. is that your position? >> your honor, i think what we said during the last oral argument if you didn't have the record of statements it would be a different case. i agree that is the case. butey as judge keenan noted in her concurring opinion last time on eo2, there is reason to doubt that this is facially legitimate on its face in its cross references to eo2 and ill logic. the proclaimation says we have
2:01 am
problem with the information sharing from these countries. as a result of that there's such 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 letting in a lot of them. >> absent the troubling statemented of the president, admittedly, which continue apace, would your position by different if that were not part of the record? >> your honor, it is a different record but i do think that judge keenan's view of eo2 still hold here with the proclaimation. >> after the study. >> after the study. >> that's my question. >> yes. >> seems to me that the fact that the government has taken great pains to investigate what exactly are the threats that are posed, that it arguably can be illogical, it can be flawed, it
2:02 am
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 require findings, as long as it doesn't violate the ina or doesn't violate the constitution. since he looked into the substance and reached his conclusions, limited to determining why this violates the ina or violates the constitution. >> your honor, it does in fact violate both the ina and constitution for similar structural reasons you pointed out in looking at eo2 and going back to judge harris' opinion -- >> are you limited to looking at just that. >> no, your honor, we're not limited because the same -- for the same reason that this court held that we passed through the mandell hurdle because there's the record shows that the
2:03 am
proclaimation, like oe2, is not bona fide and i think the internal ill logic of the problem make being underinclusive, but not having a nationality ban against venezuela even though it melt the baseline, and then including somalia even thole i failed the baseline, not including countries like belgium or the philippines, that have been widely known as the national security officials have noticed, and as -- >> that goes to judgment rather than authority. >> your honor -- >> there is there a violation -- i think you perhaps help us more. >> sure. >> why there's a violation of the ina. >> ey, your honor, on the establishment clause, the proclaimation suffers from the same fatal flu eeo2 decide. we get past the mandell hurdle because on its face and taken in light of the statements the
2:04 am
president made that he is stick us with his original purpose to use nationality as a proxy for religion, we do not know that this proclaimation on the face is not bona fide. they're also evidence in the proclaimation, just limited to its four corners, that because of the internal ill logic, injure inclusive, overexclusive, liting in a great number of nonimmigrants even though the president is says the whole premise is the nation plaques almost that make the entry of anyone from that country a threat. on the four corners that is not facially legitimate. but putting that eye side it's clear on the record that the practices hat continued to make statements of hostility toward muslims and tellingly, and response to something the government said in its presentation, he said that the november 29th statements the president made this retweeting of anti-muslim videos, is not connected to the proclaimation.
2:05 am
to the contrary, on the white house official web site, you will find the statement of official white house spokesperson who said, that security and public safety for the american people are the issues the president was raising with those tweets, and that he n president has become talking about security issues for year now from the campaign trail to the white house, and the president has addressed these issues -- again the issues el straight bed by tweets with the ralph order he issued earlier and the come pan union proclaimation. >> counsel, let me ask you. assume the same principles you described in your brief and elsewhere. same record. but the proclaimation only covered syria. there is any difference? >> 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
2:06 am
targeted airin the same way, and made the same connections between nationality and the majority religion -- >> different from that pratt reagan and president carter did. >> it's different because is the structure of the proclaimation holds, it violates congress' judgment in the 1965 act, that we aren't going to act on stereotype. we aren't going good to a nationality based quote could system -- >> 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 folk from al qaeda, been at varying states at least in syria's civil war. are you saying on this record that a president, any president, is simply not able to make
2:07 am
judgments for the protection of the nation and the conduct of foreign policy if it's only those countries? >> certainly not, your honor and setting aside the statutory claim? on the establishment clause, certainly would be a different record if the president had not continued to make statements, anti-muslim statement is right up to the time he issued the proclaimation. >> even if it's just syria or syrian and iran, there's no change in your argument. >> on the same record including the tweets and on the constitutional claim, yes, honor your, that would still be a problem. >> how do you explain the fact that congress and the preadministration identified the very statement countries. i think in the visa waiver program, saying that 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
2:08 am
in oe1 and eo2, and they are also to some extent -- to most extent, carried on into the proclaimation in addition to chad and venezuela and north korea. you draw a lot of inference that eo1 identified all muslim countries and, therefore, it was a surrogate for anti-muslim animus, and the same countries have been historically part of the prior administration's identification of problems in the immigration area. simply for the very same reasons, a lack of information, the fact that there weren't good checks, hard to vet, and that many of these terrorist group were springing up in those countries, and so i don't see the logic where you start with eo1 without looking even the
2:09 am
prior history. if you look at the prior history, how we treat the countries as nationalities, then you have to go that far. the addition, come 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 is precisely why we prevail on our statutory claims. congress looked at the very factors that the president is asserting here as justification for the proclaimation, and their judgment was the answer to the problem is if these countries propose information sharing problems, don't let them participate in the visa waiver program. subject their nationals to the individualize decide. >> congress also gave the president the right in the national into to exclude nation is, whole clatses of immigrants
2:10 am
under 11.82f. >> but your honor -- >> that is really an exercise of sovereign power which congress shares with the president. i don't see how we as a court ought to be asking the questions we're asking today was the judgment's question right, did he have enough information? is he really protecting the national s and? if we screen a whole country which has newman house you'rist groups, do we have to justify 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 and they're not the subject of court review as we're seeming to want to conduct and you seem to want to conduct. seems to me if on its face there's logic co herein -- coherency -- -- based on identified data that some muslim
2:11 am
countries are subject to rieckss and some not -- snowsways not and it's almost all muslim and it's huge in terms of population. the suggestion has a background noise that is driving your argument and that background noise is? subjective views of the president expressed during the campaign. >> but, your honor, there are two potentials i would make in response. in fact, though the president does have great power in matter-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 -- >> powers from the constitution in at the first instance, and he shares those powers with congress can and the supreme court made that explicit for 100 years. and shawn si just represents that. the identity we're interfering in the judgment of this proclaimation, seems to me all
2:12 am
we need to do under mandell is to look at the face of the proclaimation and say whether it is rational and exercised in good faith. from the face. it says facially. >> your honor -- >> -- and if -- so, that narrow exception that mandell granted we're then left with the background where courts we play an important role but we play an important role domestically. we do not exercise the sovereign power of the theout vis-a-vis other countries. that's a presidential executive branch power and congressional, and congress give it, shared that power and gave it to the president in full scope, and now you're saying, he doesn't have it, we get to review it, we get to ask him why? in shawnsy you can't ask the president the real reason. >> in shawnnessy the supreme court reached the merit of the statutory claim wasn't about the
2:13 am
actions of the president. the supreme court has been very clear about exactly howl the president and congress share the power to regulate immigration. congress write thes the law and at the president must follow it, and in 11.82f, congress did give the president a power to suspend for a period of time the entry of noncitizens but he is subject to the restrictions both on the face of 11.82f, having to make the finding as chief judge gregory noted and he is still subject to the constitution, in sale versus haitian centers counsel, the supreme court reached and considered on the merits a claim, a statutory claim about the president's action under 11.82. did not say that is not lee view -- not reviewable and contrary to what the government proposed, sale actually just said that congress -- that at the president was acting purr student the powers -- >> seems to me in sale they did
2:14 am
just the opposite of what you're saying. >> no. >> supreme court said that's the president's prerogative. we're not going to review that. >> actually, your honor, what sale was about was whether the president was comporting the statutes passed by dong and the court said we construe the statute,, and the u.n. protocol on refugees to the -- >> 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 your relying on the apa, and is there anything else that you're relying on to get into court? >> on the statutory claim, your honor? >> any claim. >> relying on the apa and also relying on the large number of cases, including --...
2:15 am
the supreme court make clear that courts have the authority in equity to enjoin an executive branch agency that is acclaimed as a flexible that the president executive branch whether the statute or constitution and we see in case after case that the circuit courts -- >> i thought the injunction that the armstrong suggested the had
2:16 am
to be connected to a case of action. i'm trying to figure out it sounds to me like you are trying to file a bivens type of file action under the first amendment, a freestanding claim that we are being discriminated against under mccreary honored not mccreary but a hundred under the jurisprudence and i'm not sure there is such a claim. >> were not making anything like a bivens claim. for asking. >> were asking whether it's a freestanding constitutional claim. i'm not talking about bivens. they created an exception because they didn't have a way to court and the supreme court created that but my question for you is there is no such cause of action that is been created for you and your circumstances and i wanted to know what you rely on. >> this has court has crossed the bridge in deciding on e oh two. [inaudible conversations] >> the reasoning still applies and the majority's reasoning is correct in case after case the
2:17 am
supreme court in the federal circuit court including in cases challenging 1182f policies has reviewed those statutory claims. >> do you agree that it doesn't give you a cause of action -- it also doesn't create judicial review of 1182? >> it doesn't need to. 1182 dozen address -- >> someone violated 1182 it sounds like you're asserting a cause of action under 1182. >> your honor, the majority of the court was correct when it said that it looks function of the core to decide. >> i disagree with majority so i'm interested in knowing your position is with our line on the majority. was go your position not what the majority did. >> your honor, on the statutory claim under chamber of commerce and countless other cases it is clear that if there is a claim that the president is not following the statutes passed by congress courts can review that
2:18 am
decision in equity. it has equitable power to enjoin the president from violating a statute. >> as a remedy but it doesn't create a cause of action and 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 a pretty dicey is some freestanding claim that what the president did was unconstitutional and therefore i can be in court but that is not the way it works. >> your honor, the government does argue that there is no cause of action for a constitutional. >> present make a difference what we do? we have subject matter jurisdiction and role in the system and as you know, the branches have their defined roles and we are acting fairly aggressively and role that has been conferred for congress and
2:19 am
the president and not to us. >> there's not a single case among the one the government cited that actually stands for the principle that our claims whether constitutional or statutory are nonjusticiable. [inaudible] your honor, they all reached constitutional and/or statutory claim relating to the president's power and exactly these kinds of circumstances. >> they reached the conclusion that you don't have these causes of action. [inaudible conversations] >> i can tell you in this case the supreme court will address it and they'll tell you one way or another whether you have it too. the fact they address it doesn't mean you have a cause of action. if they tell you you don't have a cause of action and in other words, courts do have the right to decide their own jurisdiction but they don't have a right to go beyond it they don't have jurisdiction. >> on the statutory claim the ninth circuit as well has ruled that there is a cause of action under the apa and in equity.
2:20 am
>> let me ask you about statutory claim. is your position that there are there are no findings in the body or on the face of this proclamation that satisfy 1182f for that whatever findings appear in the body of that document simply misaligned or are insufficient to satisfy the requirements of statutory -- which one is it? >> i think it is both, your honor. the president does invoke the magic words that he makes the finding that the entry of these 150 million people were mostly muslims could be detrimental to the interest of the united states but if you look at his actions findings. for example, your honor, in section 1h, i figure parting, one eye, 1h roman i he says
2:21 am
[inaudible]. that is the basis for someone being excluded from the united states under 1182 a. congress has already decided what to do about that and there is one critical finding that is missing from the proclamation and setting aside whether it would be sufficient, the president basically said that the comprehensive and detailed system for admission for noncitizens to the united states was individualized betting and the visa waiver program for nationals of those countries. it is insufficient and as to the six countries -- >> what about the proclamation where they say i hereby find that after the measures set forth in this proclamation the immigrant, nonimmigrant entry
2:22 am
into united states of persons described in section two of this proclamation would be detrimental to the interest of the united states. >> yes, your honor. >> and their entry should be subject to certain restrictions, limitations and exceptions. >> with that satisfy 1182? >> yes, the president invokes the magic words but the point i am making is that internally illogical because the further details he gives elsewhere in the proclamation shows that he didn't actually apply the baseline factors because he included somalia for the past the baseline, he didn't make a nationality ban against venezuela and they only apply that to government officials, certain government officials, even though they built the baseline and he is letting in a lot of people from these countries even though the oldest occasion is you can't trust anyone coming from the countries.
2:23 am
the proclamation is different from the iran and cuba examples and we believe that nationality, discrimination is prohibited under left into a set that aside. even if you think there are some instances in which a nationality ban is permissible the president has written a ten page proclamation with detailed subsection completely unlike the few lines that the president used to justify iran and president carter's instance or cuba and penalize him from being thorough. >> i'm not sure i understand -- >> but what he can't do under 1182f is to rewrite the laws passed by congress and what the proclamation represents is a rewriting of 1182a, the grounds were in admissibility and all the other sections of the ina that provide for individual betting of these outlets. congress has said they have
2:24 am
looked at the very factors that the present looks at here in the came up with a solution which is be rejected in 2015 they considered the same countries -- congress in 2015 looked at the same problems the president is asserting here after the same countries as judge newmar pointed out and they rejected the idea of a country based ban on admission and instead they said we will stick with our individual betting and we will go after the people who not art nationals of these countries but if you traveled in these countries and if you are to national so you are holding a uk passport but also have an iranian passport you go through regular betting and will not subject to your country. >> what about the president's assertion that this is intended to be a cultural or bargaining
2:25 am
chip or incentivize these to operate? >> your honor, the best answer to that problem is what he did with venezuela. if you have recalcitrant governments or governments who are doing our best but are up to snuff you can do two things. you could do a venezuela type man which has a lot of precedent where you say these government officials are recalcitrant and they are not comforting with united states on information sharing siebel bar you and your family members from coming in and that's not a nationality and that is permissible under 1182. you can also do what congress recommended in the ina which is to give a system to the country that are having trouble like somalia and that is the answer. i have to point out the internal logic -- >> this would include them banning nationals from a state
2:26 am
of war. >> i think state of war is different and there's different statutory framework that would apply in that situation. >> why is there a different framework? i don't read any of the stuff and i don't read any of these reasons are giving and you are saying the president can exercise legitimate foreign policy if he does this but he can't exercise legitimate policy if he does this. it treats the nationals just in the top government it is okay but if he treats the whole country because the country is antagonistic it is not. in other words, you're making judgments about foreign policy which you personally are making for some other alternative person. >> respectfully, i'm not making the limitations. congress. >> i hear you make is arguments. >> i point to congress. >> then you're not recognizing that while 1182 a provides criteria for admissibility so does 1182f and they say the president himself has broad
2:27 am
discretion and were going to give him discretion to act as our representative with the sovereignty of the nation, not as a domestic matter. >> subject to the matter he make a finding which is reviewable by the federal court. >> where did you get that? >> we get the right to review the president's foreign policy decision. >> the government is relying on non- repeatability cases spirit no, i'm asking you where you get the authority to state that 1182 subject to review by judicial court. >> the supreme court has said so in [inaudible] among other things. >> the supreme court did but i'm not sure they did that. it was argued there was no jurisdiction for various reasons and they went ahead and decided on the merits but i'm not sure it was a decision on that. would you agree? >> i don't think that addresses
2:28 am
the specific question but when they hope the supreme court. >> then you are not decided that way can i ask you? i'm having trouble understanding your statutory arguments and i guess the complaint you have about it seems to me i agree with my colleague that it doesn't sound like we can really say to the president of the united states you are illogical here and you don't follow the procedure here and is your argument basically a structural argument and that's what you're saying congress set out a procedure and it's because you have not complied with the procedure, mr. president, that is that what you're saying. >> i think there are two main arguments we are making. the first is that the president, as to 1182f has not made the requisite finding that this is detrimental to the united stat
2:29 am
states. secondly, your honor, what 1182f can't possibly permit is the president to contravene and to rewrite large sections of the ina. >> and that is your structural. >> the other statutory argument were making a course is 1152 a and the 65x over purpose of moving and rejecting the path historical practice of the united states to have national origin potus which went back to the 1924 act. that was a categorical decision as part of other civil rights performed. >> we will accept that explanation as accurate tell us why president reagan's proclamation of president carter's would have been valid because they were clearly nationality bands and they were indefinite and what is the difference between those in this one? >> no one challenged those --
2:30 am
>> what i'm asking you is are they valid? >> i don't think any national valley bands are valid but you don't have to buy that in order to accept your statutory argument. your honor, the distinction is that with iran and cuba the presidents were acting in response to circumstances with a bilateral crisis in congress -- >> that's not in any the statutes and not in any of the cases. that is just something that the district court in you have put forward that is not part of the law. >> while the loss is clearly no nationality discrimination so i'm just trying to explain why you can read the iran -- >> it seems like to me the logic of your position is that president reagan and president carter's proclamation would have to be invalid under your statutory --
2:31 am
>> there's a way to them in harmony, your honor. i actually do believe that 1122 a and in general the 55 act prohibits national registration but you don't need to agree because if there is an exception to 1152 a it can be that the president can disagree with congress considerable judgment about the same problems the same countries and then rewrite -- >> congress made the considered judgment where there's nationality this is simply off the table with respect to any action with respect to visa issuance and it just seems like you have to say the president reagan and president carter violated the statute when the issue those proclamations. >> your honor, i think they did but again you don't have to agree with me in order to agree with our 1152 a argument and the reason is that the iran and cuba
2:32 am
situation, again, if you look at the text of the speculations they weren't just a few lines. congress had not considered those specific situations in the president said these are exigent circumstances and they have to deal with diplomatic crisis and i'm going to suspend the entry. >> so with the president in this case and it is speculation at the end of that first paragraph you be all set and unigroup that? >> if peter said we will do a worldwide review -- >> no, no, if he said we will -- >> know because i think it matters. we have one question your honor is is the president trying to return to the national quota, national origin quota system that congress categorically rejected as president johnson -- >> he's addressing the admissibility under 1182 and relying on that power and he's distinguishing among muslim
2:33 am
countries. he's identifying criteria that distinguishes them in the fact that they can't get information about person and they don't follow procedures in the fact they many of the groups they are not suppressing these groups and these distinguished and these particular muslim countries and they are not all muslim but the ones that are included here from which were considered and not included. i don't see the logic of where necessarily how that follows and he says that he is now banning them because muslim countries which are muslim as opposed to some other criteria that he identifies in the proclamation. >> we know because the president has said so that he was going back to his original plan and going away. even though he hasn't banned other muslim countries in section he gives himself the power to add more countries. >> the whole purpose of eo one and e02 was to set up a system
2:34 am
to collect data and he built on prior countries that were suspect and as a matter of fact, one of the countries was included in prior congressional findings except for iraq and he recruited those and it was a 90 day data collection. the proclamation is the product of an analysis which does distinguish between countries and does apply criteria that are in the national interest and your suggest your suggestion that he is using the magic words and is not expressing the national interest is very strange. i must say you said it weren't for his statements made during the campaign and otherwise it would be fine.
2:35 am
>> it would be a different case, your honor. >> how about another candidate won the presidential election and entered the spock which. you wouldn't even be here. >> that is not true, your honor. that candidate made the same statement -- >> your [inaudible] the point we were making as if you didn't have the record a statement it would be a different case but i still submit that. >> you can see the eo to was neutral on its face and that we would not be here if we do not have the presidential statements and so now you're backing off that in basically saying there would be a different case will sure it would be a different case. you would be. >> your honor, we pointed out the deficiencies within the four corners of e02 that picked up on the concurring opinion. >> so now we have the right to review the internal proclamatio-
2:36 am
>> were not relined in the port. i think the government has waffled on whether they are relying on the report and they have now they're making it clear they are not relying on the report and the court may not going to. >> let me ask the question with regard to something [inaudible] eluded to is that the paralysis where the majority of the supreme court described from [inaudible] is in a rational basis review and how does that impact our prior read of justice concurrence? >> i think the court already address that in the previous opinion but the argument is basically [inaudible] didn't involve any allegation that the government was acting without a bona fide reason and there wasn't any allegation of bad faith and paralysis in santana was fighting to [inaudible] where there wasn't even an issue and it can't be that where you have a record showing that the presidents action are either facially legitimate nor bona
2:37 am
fide that you don't simply follow me and i'll. mandel is not a rational basis test on his face. is it racially legitimate and bona fide and that's exactly what justice kennedy did and carry versus [inaudible]. he simply said in that case in they didn't get past the mandel hurdle. they made the correct call on the question interviewing e02 and nothing has changed the proclamation. >> can i just ask you about the establishment clause case for a minute? it is pretty clear from them the supreme court tells us that once you violate the is because you haven't violated it forever more. >> we absolutely agree that. >> so in this instance how does this change? we have these reelection
2:38 am
statements in the postelection statements and the pre- e02 statements and all those are pretty e02 and we don't have the statements and why is -- what is your best argument for why the change from the prior statement still exist here or still colors this case or maybe you don't make an argument. >> we certainly are but the taint is not dissipated. we agree, course, that under macquarie once the taint doesn't last forever but once again, here you have the president sticking with his original plan and those are very words is going back and going all the way and second on march 15 as soon as eo two was joined by the district court he said that and we continue to make statements hostile including the august 17 of the apocryphal purging story that there was the 3 feet just last week that the president then tied to the proclamation
2:39 am
and the new band. finally, your honor, president once again speaks in big words of national security but he is continued not only to not only repudiate his previous statements of hostility toward islam and muslims but he is also double down and in this case triple down on this hostile statements. again, on march 15 he set up a simulation on the united states and august 17th have the [inaudible] story and on november 29 he retreats three videos that are anti- muslim and your honor, on the record you simply have on the proclamation a litigation physician like we saw in macquarie which is not sufficient and the president has double down on all the statements. if the government is right about
2:40 am
the scope of presidential power than the president could promise a ban on muslims throughout his campaign and then declare i'm carried out my camping promise by using nationality as a proximally for religion and 150 million people are almost all -- >> let me follow up on the question -- what would be the standard that we would use in this instance where there's been intent or whether or not the government in fact was the so-called unconstitutional action -- >> i think the standard is through line in all the establishment clauses in that the text doesn't change in that [inaudible] that is is the primary purpose here the
2:41 am
manifest objective to disfavor one religion and that's the test. the record on that has not changed and the fact it's been augmented. >> what about the fact that the government says we disagree that the statements suggest an animus but even if you take that face value and understand questions for dealing with the unitarian executive they point to presidents subordinates and say you haven't questioned emerald and they conducted this review and this was was result but for the statements you could be much more to go case. does that change the results. >> your honor, we do there is in the record of it at least two of the officials, lower-level officials, involved in the present study also made anti- muslim statements. we have that inner judicial notice and but your honor our
2:42 am
argument is not that every lower-level official involved in the present study acted out of a personal anti- muslim hostility. it's that the president is 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 he meant to do it which is by using nationality as a proxy. >> i asked this question last time but his he so intense and i asked about people look at all the statements and if people looked at all the statements and took that he was doing other than being completely anti- muslim how would you deal with that but your position is he absolutely anti- muslim and everything he's doing is that results and his banning 150 million people most of whom are muslims and his band doesn't affect 90% of muslims in the world does it?
2:43 am
>> your honor, that is a matter. >> i'm asking you. >> he could add more countries under section 4c of this population but what matters, your honor, is that he has banned 100. >> he's not smart enough to figure out how to band more muslims? >> his purpose is to favor his mom he need not be on every single -- >> i've heard 150 million but there are over 150 billion muslim muslims who aren't. >> you continue to ban these six predominantly muslim countries and taken together there over 95% muslim and affected 150 million people. the government makes much of the fact that he's thrown in to non-muslim countries on measure but venezuela is not initially banned but a targeted band and the other one affects less than 100 people. >> let me ask you this. the court below applied --
2:44 am
nothing is correct -- but it applied a least restrictive analysis in it said that the government hasn't shown that the national security interest put in be addressed without this being. what alternative as far as addressing this national security interest would you find acceptable? >> your honor, there is the venezuela type band for one thing. to address 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 betting process. >> but this, has a case-by-case waiver provision, doesn't it? >> and substitute the president's criteria for that waiver process for the one instituted by congress. >> but it does have it in
2:45 am
individualized basis but you can apply any individual can apply? >> there's a waiver available, your honor -- >> for individuals to the. >> which is also inconsistent with the system covers enacted. >> how important is it to your statutory argued that this fact that the spam is indefinite is that a crucial distinction or one of [inaudible]? >> your honor, i think it is an important consideration in a couple of ways. one is that the president, the government came in on eo two and said the reason that this ban is okay is because it's a temporary 90 day pause and the president was repeatedly said since march 1520 oh two was enjoined i'm going to get even tougher and go back to my original plan. >> [inaudible] you haven't made any substantive finding but you made a commission and so we've
2:46 am
got a different situation out. >> sure, it's also relevant under 1182 on the very terms as your honor noted in talking with the government that the statute speaks in terms of suspending or period of time. >> when i'm trying to get at -- we are temporary rather than indefinite would that make a difference in the ultimate out come of the keys in your view? >> no, your honor. even if it were temporary i think shall prevail under statutory claim and on the constitutional claim of force. it does show the fact that it is now indefinite and more permanent countries potentially being added does distinguish this proclamation from every prior proclamation under 1182. nothing else, no president has ever done look like this. >> i thought this was the reasons for the restrictions and
2:47 am
then had. lack of use of this restrictions what you think that is included for? >> your honor, those correct reviews we have to assume will follow the same format as the original. >> i understand but don't you think that if a review turns up that the restrictions are no longer needed and the implication is that the restrictions will be lifted? >> it is possible but the president's criteria because he doesn't apply his stated criteria consistently we it's a black box. we don't know what the -- >> it should be. that's what we have committed to the department of state and secretary of defense and the president. >> accept your honor the government is relying on the black box and if the question is does the study cure the taint the answer has to be no.
2:48 am
>> it doesn't address the taint or acknowledge the team. they are saying that these proclamations issued in the interest of national security in order to identify persons who can challenge the safety of the country if they came into this country and it's a difficult problem that's been experienced by many countries with all the disturbances in the near east and the question is is that a logical or irrational and those no longer exist there's no need for proclamation and you have to assume on the face of the proclamation that with those periodic reviews the purpose is to see if the restrictions are still needed. >> but your honor, the periodic reviews are so part of the original message which was to use nationality as a proxy for religion and there's nothing on the record that undercuts that original purpose and he has set himself starting march 15 continuously through the summer and the issuance of eo three,
2:49 am
proclamation that he is sticking with that purpose. finally, your honor, i want to add that if the government is bright that this is nonreviewable and if the government is right that this is the scope of presidential power than in the prescient words of justice jackson, this pooling would lie about a loaded weapon and it is telling the president while campaigning explicitly referred to the japanese american internment as a precedent for this ban. that is contrary to the laws passed by congress and contrary to the establishment cause and is contrary to the basic structure of government in the constitution. >> thank you, counsel. >> thank you. >> will, your five minutes reserved. >> reserved? [laughter] >> he does. >> your honor, four points.
2:50 am
the first is the last time we were here faulted the government for having findings to justify the prior entry suspension faulted the government for doing it in terms suspension before those findings were made. now the government has made those findings and counsel is right in this proclamation is not like any that are ever before that is because no other proclamation ever had this detailed level of investigation interview and findings. the findings here that what the president reported justified restrictions they have imposed and as the district court recognized in this instance is there accurate asking for the second-guessed policy judgment and nothing in 1182 authorizes that sort of second-guessing. for example, they say that it is illogical and inconsistent in a
2:51 am
it is not true and b it is not authorized to engage in that sort of second-guessing. the primary point that they keep emphasizing is that their exemptions and no law pursues its purposes at all costs. all laws recognize there are competing considerations and in the circumstance it makes particular sense no way trying to do is encourage foreign governments to change the behavior that you tailor that based on what the foreign government is. they also emphasize that this goes above and beyond the visa betting program. first of all in 1182 they've always been organized to go above and beyond restrictions and that's the dc circuit recognized and what the first circuit recognizes and they didn't respond to that. here it makes perfect sense they say that what should happen is they should deny visa they don't have information but the whole point in the whole problem here is that it will determine the foreign governments are giving us enough information. that is the surface it does make sense to run to the visa betting
2:52 am
program when the defect is that the [inaudible] there is a systematic problem [inaudible] >> the main purpose is to influence these countries internal policies, correct, about information sharing? >> of the dual purpose, your honor. because there's inadequate sharing practices want to encourage them to change their behavior in to protect this nation until they do. >> absolutely. the main thing you want to encourage them to change and as to. would you say they have the greatest amount of exemptions in terms of people affected by this ban. >> there is no exemption for austrianorth korea. >> the greatest influence you want to have on north korea is that we want to let their citizens come in. >> your honor, with respect to the information sharing --
2:53 am
>> i'm just trying to say that they have the most restrictions, correct? yes, there are one of the most recalcitrant countries in respect to the greatest amount of restrictions imposed on them. countries that cooperated more with the government were less restrictions imposed on them but countries like north korea and syria that could at least have the greatest instructions proposed on it. (i like to make on the statutory section is the question of whether [inaudible]. given that the finding is that there is an inadequate there would make little sense to have it be a definite restriction in the foreign governments don't get to about the clock and not providing us information we need but what we have done is made it a periodic review so if they do improve that can be revisited. >> i see your sunset provision no subject to review of. >> again, a sunset provision doesn't make sense there's an actual item identified problem and we have a every hundred 80
2:54 am
days under the preparation it will be revisited. i believe judge hawkins pointed out in the ninth circuit 42 out of 43 past executive orders don't even have that. they are straight up indefinite and that's totally consistent with the language of the statute which is for such period as the president made the trip. the second point i like to make is on 1122, national discussion. the point of that statute is legislative history makes clear with the wipe out the national origins potus but it was not to restrict the ability of the president to make determinations about problems that make people ineligible to enter in the first place and that is the solution and the expiration why the cuban order wasn't invalid and why the iranian ordered wasn't invalid. it's not that there some made up emergency exception of the statute. the statute is not issuing immigrant visas not about people not eligible to enter the country in the first place. even if you thought there was
2:55 am
some sort of made up emergency exception this proclamation should satisfy just as much the cuban proclamation. it involved a diplomatic dispute, breach that was demoted earlier in here the agencies have recommended to the president that there are identified feedbacks information searing today in response to that president is acting in this is far easier to justify than the cuban proclamation even on their own rationale. >> thank you, counsel. >> yes. >> you have two minutes. >> thank you, your honor. my rebuttal time is limited to our cross-appeal so i will just be very briefly. we are cross appealing because permitting any part of this third version of the van to go into effect is violates the first amendment core requirements that the government not single out one religion or disfavor and that that is fine because it's no longer pause but
2:56 am
an indefinite band with possibly even more was countries to be added. this court pointed out that the great promise of the subsequent cause that religion will not operate at the instrument of division in our country and that is exactly what the proclamation does in the court should not countenance that. thank you, your honor. >> thank you. >> will ask the clerk to adjourn the court for the term and then we will come down and greet counsel. [inaudible]
2:57 am
2:58 am
2:59 am
was nominated to be commission chair. this is two hours, 40 minutes. [background noises]

12 Views

info Stream Only

Uploaded by TV Archive on