tv Trump v. Hawaii Oral Argument CSPAN June 26, 2018 7:52pm-9:01pm EDT
president's travel ban. the 5-4 decision written by chief justice john roberts upholds the policy of banning travel for citizens of iran, libya, north korea, syria, somalia, venezuela and yemen. attorneys argued the case before the supreme court in april. this is just over an hour. >> we will hear argument today in case 17-965, donald trump, president of the united states, versus hawaii. mr. francisco? >> mr. chief justice, and may it please the court, after a worldwide multi-agency review, the president's acting homeland security secretary recommended that he adopt entry restrictions on countries that failed to provide the minimum baseline of information needed to vet their nationals. the proclamation adopts those recommendations. it omits the vast majority of the world including the vast majority of the muslim world because they met the baseline.
it now applies to only seven countries that fall below that baseline or had other problems. and it exerts diplomatic pressure on those countries to provide needed information and to protect the country until they do. the proclamation reflects the foreign policy and national security judgment that falls well within the president's power under 1182-f and has been successful which is why the country of chad was recently dropped from the list. >> you mentioned 1182-f, and the worrisome thing about this is the president -- [inaudible] -- it's been suggested in one of the briefs that we read 1182-f to allow the president to suspend entry but only for a
period of time, long enough for congress to say yea or nay. >> yes, 1182-f in a broad and flexible power in a narrow area. here, however, i think that you don't need to explore those outer limits because the proclamation is meant to help implent the ina by making sure we have the minimum level of information needed to determine if aliens are admissible under the ina. in terms of a time limit, i think that's simply inconsistent with the text of the statute and inconsistent with virtually every 1182-f proclamation ever issued. here we have -- >> i'm sorry. i thought that congress had looked at the situation and created a statutory system that addressed the very concern the president is expressing. congress said you can have visa waivers, if you can meet the
three criteria that the special committee of the president looked at, and if you don't, you have to have a very heightened extreme vetting process, and created that vetting process and suggested its parameters. more importantly, it took terrorist countries and designated which ones supported terrorism and added another layer of review and said if you're a national from one of those countries or you have visited one of those countries, in the recent past, you also have to get the permission of the attorney general and the secretary of state to affirm that you are not a danger to the u.s. so -- but what i see the president doing here is saying i'm going to add more to the limits that congress set and to
what congress set was enough, where does the president get the authority to do more than congress has already decided is adequate? >> well, there's a lot packed into your question, your honor. so let me try to unpack it a little bit. i think the basic answer is that 1182-f gives the president the authority to impose restrictions in addition to those set forth in the ina, but to go to the statutes -- >> but on the very grounds that congress has already looked -- >> that's exactly what i was going to address next, your honor. the visa waiver program provides a special benefit to our closest allies and some of the safest countries in the world. neither the visa waiver program nor any of the other statutes that they cite addresses whether we get the minimum level of information needed to determine the admissibility of individuals coming in from some of the
riskiest countries in the world. and 1182-f then does give the president the authority to supplement that vetting system. after all, the whole vetting system is essentially determined by the executive branch. it is up to the executive branch to set it up. it is up to the executive branch to maintain it. it is up to the executive branch to constantly improve it. here you have something that really is at the core of 1182-f since its main purpose is to help implement the ina by making sure we have the minimum baseline of information, and if you look at the proclamation, what we're talking about is very basic pieces of information. not the ideal, but the minimu are they reporting terrorism history information? are they reporting criminal history? do they cooperate with us on a real-time basis? i can give you an example to illustrate how this works. suppose jane doe shows up at our border with a valid visa, but after that visa was issued pursuant to the process you described, your honor, her home country learns that she
associated with a terrorist organization but doesn't tell us. when she shows at the border we can't make an intelligent determination as to whether or not she's admissible under the ina. that's wt this proclamation goes to to make sure we have the minimum baseline information needed to determine admissibility. it really does reflect -- it is different than past proclamations but it is typical in the sense that it seeks to identify harmful conduct that a foreign government is engaging in and then it imposes sanctions in order to pressure that government to change. that's what president carter did with respect to iran, what president reagan did with respect to cuba. the harmful conduct is the failure to provide us with the minimum baseline information. >> can you represent that no other country that fails all three of the criteria was excluded from this list? >> well, your honor, what i can
represent is that the analysis was holistic. it wasn't if you failed any one or the other, it was if your overall score was sufficiently low, so i can represent that all of the countries listed in the proclamation are the same countries that fell below the baseline with the exception of somalia which the proclamation makes quite clear, and the exception of iraq which did fall below the baseline, but was not subjected to sanctions. and i think that this reflects the tailored nature of this proclamation. and the fact that it was meant to impose tailored pressure on these countries while also taking into account other types of national security and foreign policy considerations to try to move those countries across the line into acceptability, which we have now seen has been successful as with the case of the government of chad. >> if you compare this proclamation to the reagan and
the carter proclamations, which i think were one or two sentences, this is longer than any proclamation that i've seen in this particular area. >> this is, your honor, the most detailed 1182 -- >> detailed is a better word. >> this is the more detailed 1182-f proclamation in history. the -- >> general, the proclamations by reagan and carter however were not as broad as this one. >> your honor, they were almost as broad but to complete my answer to justice kennedy's question, this is the most detailed proclamation ever issued in american history. yes, your honor, to be sure, this covers more countries than either president reagan's or president carter's covered. >> and more immigrants because carter's only applied to certain immigrants, not to all. >> president carter's actually applied to all immigrants but then had an exception much like the waiver provision here for national interest and humanitarian concerns. so i think president carter's was actually very similar to the
>> it is that argument and we would urge the court to accept it because we think it is correct. but even if you don't think it is correct this inflammation with the president under 1182f. >> the answer to the constitutional claims, in your principal response to the establishment laws claim that once the government comes forward with a legitimate reaso reason, national security is the most important reason one can come forward with, the game is over essentially. i want to press on that a little bit. does that mean you talk a lot about the process of the proclamation.
but that argument would apply irrespective of what process was used. gimmick we would have made a mandel argument that it is far stronger. >> why that is? >> because i don't see anything about process to need a certain kind of bar and if you see a reason. but in addition to that have the extensive worldwide process that we have with a cabinet level recommendation with a baseline to every country in the world almost all the world including the majority world
passes that baseline but a tiny number country whether you apply mandel or not that makes the constitutional case in our favor strong demand there are ways to establish mandel that just in terms of what he proposes. >> because mandel is the only case in the area it is hard for full contentac i agree. this is a hypothetical you have heard before but, in a future time a vehemence and i might with all kinds d hatred over the course of
the campaign and his presidency. and in the course of that,'s staff or cabinet members to issue a recommendation he can issue the proclamation of this kind. they.the eyes and cross the t and what emerges in the context is a proclamation that says no one shall enter from israel. does mandel put an end to the judicial set of review? doesn't put an end to it because that does involve the exclusion of aliens in his cap
cabinet were to come to him to actually say mr. president, there is a national security risk and you have to act, i think the president would be allowed to follow that advice even with his private heart of hearts also i would suggest if i could finish not even to satisfy mandel scrutiny and don't need to know that rationale given in israel's one of the country's closest allies in the war against terrorism is not clear to me that you actually could satisfy that mandel rational basis on that standard unless it truly were based on a cabinet level recommendation about national security. >> this is an out-of-the-box type of president in my hypothetical. [laughter] >> we don't have those, your honor. >> and there are good diplomatic reasons and who knows what the future holds.
but tuesday to enter the diplomatic hand so this is what he does and knows what his heart apart? -- his heart part? but what do reasonable observers think that this hypothetical president made anti- somatic comments? >> that is a tough hypothetical but also why i think this is a relatively easy case because for the sake of argument and we are even willing to assume that to apply establishment clause because we are quite confident given that process no matter what standards you apply it is
constitutional since we don't have the hypotheticals that you are suggesting we do have the multi agency worldwide review and a cabinet level recommendation that has a neutral baseline. not just by that cabinet secretary but by the agency to everybody in the world. >> with the extreme hypothetical whether that be under the establishment clause ? >> definitely presenting a free exercise clause challenge just as a free-speech type of claim in the mandel a and people could bring that claim and potentially succeed. >> i assume they are relatives looted? >> i think university could bring free-speech type of claim under mandel. >> why not establishment?
>> the reason why is because i don't think they could support the nationwide injunction they are asking her. reason why i don't think they could bring the establishment clause claim because it does not apply to the respondent but only to aliens abroad who have no constitutional claim. >> if that is in place because
>> you said sometngarlier general, i wanto make sure i got it right you said, at the time the president had said we don't want muslims coming into the country, but that would undermine the proclamation. did i get you request mark. >> yes. >> honestly, the difference ses to be if everything the president said effectively that? >> i think there are two issues, the first is if you can consider campaign statements. were about the view that these are made by private citizen before she takes the oath of office and before the opinions cause of the
>> and takes those that are inconsistent whatever he said in the campaign? that is irrelevant i would say two things when i was about to te turn to it was a fundamental transformation but here it does not matter. because here the statement that they principally rely on do not address the meaning of the proclamation itself. it is not a muslim band if it were it would be the most ineffective that one could possibly imagine. and admit those that were from past orders including iraq for chan -- chad or sudan. this is what it purports to be
and it confirms that it is it is an order based on the multi agency worldwide review with criteria all across the world included under the neutral criteria most of the world was falling but it failed to provide us with that minimum baseline of information. terrorism history, criminal history that we need to protect the country. >> so i did read i think i know but there is one question it starts with the assumption that i thank you share but i want to be sure. with part of the reagan order with case-by-case exceptions
and that says a case-by-case waiver could beppropriate such as such as the following with no terrorist and interest in united states which the only time the hardship with its immigration laws is extreme hardship and then there is a list those that previously established business reasons, they have been here studying i want to reside with a close family member or the disease or what they need to previously be employed in five other things. focus on that. and with 150 million people
all together. >> there is only a small number of full. >> and as far as we are concerned and there is no reason why they should be at with the normal processing. and in terms of the numbers, and one of those principal purposes of the proclamation is to observe diplomatic pressure on government to get them to change and provide. >> so they should be excluded? >> that is what i thought you would say now i can ask my question. i wanted to be sure we are on the same wavelength. so following within that class here is the problem seems to
me there are probably a significant number of such people with the business community complaining, the academic community, families that say we are trying to get medical treatment and nobody told us about this. there is supposed to be guidance in the most there are is 100 so there is my question. so what the carter people did they got the same thing here but this is one windowdressing and they never apply it and there is something new and different. so how do i find out? when there is not that
information? do we send it back? the government of course thing is that the other side says there are only two people there are people in yemen or somalia. >> in that most current number , i believe the number at age 17 it is over 400. is it well-publicized like i have two responses but i don't know how publicized it is that people understand how to get it but the second principle response is frankly with legality the waiver is not
necessary which is why most governments it is a good thing why they have them. >> you want me to consider the lawfulness of this order on the assumption not what president reagan did that every action that congress took waiver waiver waiver case-by-case. >> that the answer is no i do not want you to consider a proclamation with a hypothetical situation. but i do think the proclamation has written and applied flies just falls well under 1182(f). >> thank you we will reserve your rebuttal time.
>> mr. chief justice pitt pleases the court it is unlawful for three reasons that conflicts with the policy choices decides that bar a nationality discrimination that we never heard talk about and the first amendment congress is already specified a three-part solution to the very same problem to the order it addresses seeking entry from those that don't cooperate with united states including state boxers of terrorism that provide inaccurate information and aliens have to go through the individualized vetting process the burden placed on them. second when congress became aware that some countries were failing to satisfy these criteria that you just heard about, congress rejected it instead used when credits were used those reviews towards
admission and the nationality be on sale the third congress was aware of circumstances to change on the ground to require the recording on just reporting them to change the law. >> let's suppose the intelligence agencies go to the president to say we have 100% solid information on a particular day, 20 nationals from syria will enter the united states with chemical and biological weapons and could kill tens of thousands of americans, in that situation can the presidents band of syrian nationals on that one day? >> he could. for two reasons nationality discrimination 1152 and then whether or not the policy judgment and with respect to both it is a nationality discrimination or the judge said ihave the emergency fast-moving situation like
your syrian example. >> just to stop you, what if it is one week or one month from now? that is the intelligence information i understand it does have to be immediate. >> dealing with that with youngstown to say the president will get a pass absolutely on what he says the emergency is that the ultimate question is can you go to congress to get a legislative impediment removed? here we are 460 days later mr. chief justice he never produced legislation about this we are so far from hypothetical. >> but imagine if you can congress is unable to act when the president asks for legislation. [laughter] and somebody introduces a bill to say let's authorize, first of all the president may have, is calls about sharing that absolute intelligence broadly but let's say a bill introduced to say let's authorize the president and there is neither. >> we understand to have
residual authority to keep the country safe but what congress has thought about this exact problem, there is only one problem with the countries not cooperating not talking about people coming in with your hypothetical and with respect to that, congress has said we deal with it with the individualized system that shares the burdens on a system you have to show biometric id and have the in person interview with there is any risk the person is from a country that is a state sponsor of terrorism so congress says in a robust way here is how we deal with it to the extent they are not cooperating congress rejected exactly what they are trying to propose which is a flat nationality began. that is the force of the argument is counter mandating
the policy judgment. >> it did an act 1182(f) why doesn't this fall squarely within the language of 1182(f)? >> it is not a class that justice breyer was talking about it was now perpetual like justice ginsburg there was a much bigger point. >> talk about the text. it's not a class? doesn't 1182(f) say whenever the president signs the entry of any aliens or any class of aliens i don't know why people of nationals don't constitute a class but what about any aliens? believe because of the power is so broad and sweeping allowing the president to supplement what congress has done you have to be careful
read it just the way you do every other statute to harmonize that broad text with the rest of the ina and the point of the brief that if you accepted their idea that the president has such a sweeping power he could end the family preference system to impose an end to chain migration to countermand any of the provisions to turn that into the line item veto. someone dealing with tobacco. >> does this proclamation. for to establish a new permanent immigration policy for the united states. >> absolutely your honor it is a perpetual policy that does exactly what they portend to into counter man congress is
judgment of 2001 and 2015 and several other times to say instead of the flat band he will balance foreign policy consideration and economic consideration the humanitarian image and all of that together we won't do the flat fan instead we will have a better approach with individualized vetting and credits for those countries. >> but you say it is perpetual? >> nothing in the order that ends that you heard my friends say that would take executive orders but that's not true. >> they would have to examine everyone? >> no. it says a report asked to come in within 180 days. >> and there is a reassessment and then the president can with his discretion. >> if there is anything about reassessment including the
cuba order that says once the crisis and there is nothing like that in this. it's just like a reporting requirement to congress they are not necessarily required they have statutes like that all the time this is that this is why unlike any other executive orders to go back and look at all 43 executive orders, none of them have arguably countermanded congress judgment in the area there all consistent. >> this says 1182 for such period as deemed necessary to have canoeing supervision when necessary. >> we don't have a problem with that if it's sunset and then could be we authorize that this is a perpetual problem. >> but the presence in to say i'm convinced we will have a safe world? >> but he identifies something that is a perennial problem
going back 100 years when the soviet union was around we don't have countries that cooperate with us in vetting so that solution has always been from congress not to have a flat band but a vetting system to balance these considerations. >> the military advisors tell the president in their judgment the president ought to order airstrike against area. and the president says that means he can't because that is discrimination against the majority muslim country? >> absolutely not 1152 is about discrimination with the issuance of the visa. >> so with 1182(f) you would say no problem under that provision? >> there was a strike so i don't think there is any immigration issue in your hypothetical, sinus understand chief justice. >> with targeted action to have an impact on the muslim
population? >> the president has wide authority like the laptop and. >> why wouldn't that constitute the argument discrimination under your establishment clause on the basis of faith because he said in the past to accept the argument to be anti-muslim? >> not not at all no president has run afoul because here the president and his advisors have directed this policy to the statements in the brief is the greatest illustration of that that is a constitutional claim i want to get there but before doing so i want to make very clear the consequences of their position for the ina is that the president can take a wrecking ball to the statute countermand congresses judgment.
>> but if i may on the statutory question before we leave that we can proceed o the assumption we can reach the merits but the government makes the argument for example aliens removed from this country have to bring their claims personally and third parties cannot indicate those rights of aliens and ask the question why it should be the third person could not serve the rights of those that are not present. >> this is not a third party case is a united states citizen bringing this challenge. >> but they are directly harm to themselves i give you one example not just the state of hawaii that was directly impacted but let's just say for example the 10-year-old that you are referring to justice breyer a 10-year-old daughter in yemen who is
trying to come here. >> i understand that but that doesn't really work with respect to aliens coming into the country so why does it work for those? >> i thank you would concede we would not succeed. >> because there they may not be willing to bring them and that is why the court says no third party they are directly impacted you hurt my friend concede that is how they briefed it up that is how he described it this court had exactly that situation and it reached about merits the statutory point is if you accept this order you give the president the power no president in 100 yearsf exercise the executive proclamation to countermand congress policy judgment. zero examples to say that when congress has stepped into this phase to solve this exact problem the president can say i want a different solution.
those of the family preferences even small things or big things like a specialty occupation like software engineers in the ina the president could say the economics are center will be in software engineers from going to allah for you -- to >> maybe you're entirely right 1182(f) needs to have some limits to prevent the president from doing something completely contrary to another section of the statute that you are suggesting the president can't do anything that is not contemplated, so what are you saying this is directly contrary? so i have to point to a clear and direct conflict between what the president is doing and other statutory provisions. >> the president can supplement just not supplant
in the brown and williamson case. they say there are three things to look at even breitbart says that is not direct on page 19 so those things are first can those solutions coexist? second is congress have that scheme and third are there any other indication that congress enter the issue in a different direction? with respect to all of those that were here to satisfy all three of those factors congress has a reticulated theme with that problem he has identified which countries are not cooperating it cannot coexist with the solution of a flat pan and makes sense the in person visa requirement
which is for people who come from state sponsors of terrorism will have a group with a likelihood to provide information congresses you have to have the in person and will -- interviewer doesn't make sense to have a flat band for the visa waiver program which is all about countries that provide zero information to the united states as state sponsors of terrorism to say we will give you a tariff and then say forget about the visa waiver program. >> can you imagine any situation where the threat of the infiltration of the united states by terrorists was so severe with respect to a particular country that the other measures you have mentioned could have been deemed by a president to be inadequate? >> yes i can and the president would have a robust authority but that is not our argument. >> your argument is the court have the duty to review
whether or not there is status for the courts to do not the president? >> there is a wide difference justice kennedy just like when you joined the opinion that certainly if there is any sort of emergency that precludes that but if you have a statute that looks at the very same problem there is nothing you have identified with this worldwide review process that congress consider those same types of things it is a perennial problem that countries do not cooperate with united states when it comes to vetting. >> this is abstract be the president may have more particular problem or situation developing on the ground and yes congress addresses the question of the adequacy of betting that that arises in the context and it seems a difficult argument to say that congress was prescienengh to address any factual situation.
>> so for example if something came along like a virus wipe out the processing software, absolutely the president would have the power to do that. >> what about a change of administration in which perhaps those procedures are taken seriously? >> that congress anticipated a country that is a state sponsor of terrorism providing no information against the united states, congress said we will not have a nationality man and said we will individualize reading one -- vetting and this esa waiver program to counteract that. with the emergency situation has even greater authority but here we are 460's later i would caution the court not to make a decision about the emergency that could be
bracketed just like youngstown but this is so far from that. the text of 1152 is flatly violated to say there shall be no discrimination on the basis of nationality with the issuance of a visa. that is 39% of all esa covered it is the most important part because immigrants esa -- visa that this contradicts that. if you accept that interpretation he says we are discriminating at the entry side not the visa side then you are giving the president the power he has done that he has undone the band nationality -based discrimination has country quotas zero at the border.
>> your argument based on discrimination based on campaign statements is there a statute, the one that you do make based on campaign statements is there a statute of limitation or is that a band from presidential findings for the rest of the administration? >> mr. chief justice want to be very clear the point of 1152 and two and discrimination has nothing to do with campaign statements it is purely the text of the proclamation that nationality -based discrimination through and through the judge said he cannot imagine a clearer text than this like i just want to make absolutely clear you don't need to do that for purposes of 1152 that would knock out 39% of percent of the most important part of the executive order. with respect to that we think
that test of court has set with reasonable objective observer we think absolutely my friend is right you should not look to campaign statements of a private citizen and the only thing that is here is that they themselves the president and his staff have rekindled exactly that look at page doesn't either is a very good example after the second if order this latest one was promulgated the president tweeted anti- muslim videos and then they say what is this about? the president has spoken about this in the proclamation. >> first of all it was whether or not the inhibition t enter if that applies forever. >> no. easily the president could have moved away from the statements side instead they erase them and they that is the difference absolutely.
>> so it is to say he disavows those statements in the day he could reenter the proclamation? that is what the court said in the prairie the same policy could be constitutional promulgated by one entity not another depending on the circumstances around that. >> did you answer my question? does that disavow those statements? >> absolutely do make in your discrimination argument would not be asked the ball in that that is exactly what i told the ninth circuit in may and the president did not do that that is a reasonable objective. >> with an observer reading the proclamation, without taking into account statements with a think this was a muslim band? there are 50 predominantly muslim countries in the world five are predominantly muslim are on this list. the population of the predominantly muslim countries make up about eight or scent
of the world muslim population if you look at the ten countries with the most muslims exactly one, iran would be on that list with the top ten so would a reasonable observer? >> just the text alone it may raise eyebrows for this and other reasons the brief goes into but we would not be here we absolutely agree it is the same test as other cases you have to look to all circumstances around it that are publicly available. justice alito the fact it only encompasses some muslim countries doesn't mean it isn't religious discrimination but as an employee with ten african-americans working for me and i only fired two of them i don't think i left the other a dental think anybody could say it isn't discrimination. >> i understand that. is one of our fundamental values there is religious freedom here for everybody with adherence they are
entitled to equal treatment but my point is that if you look at what was done it does not at all look like a muslim man. there are other justifications that jump out as to why these particular countries were put on the list. so it seems to me the list creates a strong inference and i think if it were just the list although i point out that you yourself said that it the religious gerrymander the burden imposed also most recently on those with religious objection. this is a band that really does fall almost exclusively on muslims 90.2% and so it does look very much like what you said but even then we would not be here if not for all of the different statements for that is
evidence of this if i was a reasonable objective observer looking at the wide variety of amicus brief from everybody representing the millions of people from u.s. conference of catholic bishops that call that blatant religious discrimination. >> it has been a long time since we have used that test even for a domestic statute let alone something with. the international application. what do we do about that? >> number one immigration cuts the other way the heart of the first amendment is about immigration restrictions catholic at the founding and the protest of king george which is all about the use of the tariff to people of a different faith and that is what the constitution is about. second we don't thank you have to get into my minority other tests this court was very clear to say that when talking
about denigration of religion all the test point in the same direction. >> you said something elier that you would not be here for those background statements were not made. do you mean that on all of your basis you would not be here on the establishment clause? the neck not on anything else that what he talks about this worldwide vetting process remember his own argument 1182. >> so you are not here without the statement so clearly the statements even conceded by your adversary do give you a basis to look behind the reason. so if we are looking behind it how do you feel at the general suggestion that there was a cleansing that occurred because of the agencies and departments that participated
in the proces process? >> three things. number one the argument that you love and 82 of the president proclamation second, the order itself says it harkens back to number one and number two it is an outgrowth of that it is affected that was struck down and in other cases and third, the president before the review process even began tweeted to say he wanted a non- politically correct band so given those things but in particular that 1182 itself forces the president to make the proclamation it is the president proclamation even to get into the unitary executive thing that i do agree justice sotomayor or that that is another problem coming before the court that to say the
president is in charge now they say no it is the other people this is the president proclamation through and through no president has ever said anything like this, anything and that is what makes this different. >> you have a proclamation that says there are important national security interest at stake so how do you do that analysis you want us to do without some sense evaluating the adequacy of the national security interests which for the most part we have said courts are not equipped to do. >> we are not aski to second-guess the national security judgment with the establishment clause but just what a reasonable objective observer would do with the ordinary test is there an official purpose to disparage a religion here there is everything that the president has said in the order itself. >> still something i am thinking about that t
stut that you point to one of them is stronger for you. obviously there are objections to what you're saying and quite a few briefs but the one that you talked about but didn't say you to have an interview with an official if the person is found a country officially designated by secretary of state sponsor of terrorism so we do have that in respect to everyone under the exception so there isn't much of a problem to go beyond that with respect to other people so i take your argument so my question which i cannot find three, is it true, that maybe that is not so? they don't publicize or put forth a guide people don't know and if that turns out
with lawfulness of the order, what do we do? >> this waiver process from the has a quality brief if somebody wants cerebral palsy want to come to the united states to save her life the 10-year-old was denied a waiver justice breyer he said there is 430 people that got waivers they never tell you the denominator or the discussion of the process or how often it is in the data we have was matter just to give you some evidence of that that the state of hawaii has 1000 people people that say we are not even getting waivers. >> this is a question of remedies we have this nationwide not limited to relief of parties or even a class-action near as i can tell that set development
where a district court reserves the right to strike do aal stute with regard to anybody anywhere in the world. what do we do about that? the next this has been supported by the court and others and they share your impulse that is something now in the context of the contraception case i think because of united states versus texas that this is an immigration case to put congress in the drivers seat to be formal so i think for those but with the supreme court does not make tremendous sense probably the advisory opinion but the fundamental point is that congress is in the drivers seat coming to immigration and this executive order transcends the limits every president had done with
this proclamation 1918 and to accept that here is to accept the president can take an iron like a ball to the to pick and choose what he doesn't want for purposes of immigration code that cannot be the law of the united states. >> take five extra. >> okay. [laughter] >> you don't have to. [laughter] the neck if there any other questions i'm happy. >> five minutes for rebuttal? >> mr. chief justice of it pleases the court i really do have just a few quick points unless you have additional questions justice breyer want to respond in more detail to your question how the waiver process works the state department does publish the waiver process on its website but that process is applied automatically so when somebody
applies for the visa the officer first determines of the person is otherwise admissible under other provisions that they are inadmissible you never get to the proclamation then for those who are not inadmissible under other parts like 1182 sandy officer turns to the proclamation and says a you subject to the exception? you are. fine and a proclamation never applies if you're not, then the officer turns to the waiver provision and applies the criteria of the labor -- of the provision it is applied in every single case. >> so that example with cerebral palsy? >> the waiver is built to address those issues i am not familiar enough of the details of that case to tell you what happened in that particular case that that is the
provision. >> you have read the briefs as have five. some list ten or 15 instances like the cerebral policy or parkinson's but then another list all people who are professors and scholars at universities and there are a lot. then they list from these countries, then the business community and then a bunch and says my goodness they have been unable, so we don't know what is going on and then they say nothing is going on in that i'm not taking saigon that i'm just saying i don't know. the principal is to exert pressure and then i'm hoping to try to make that the
individual vetting process depends upon the minimum baseline of information to determine and that vetting process whether that person is admissible so when the person shows up at the border with the visa visa we have issued but if the home government know something that we don't does not tell us we cannot tell the gmail that admissibility determination and third addressing 1152. about nationality. >> please stop one second. i for one like justice breyer and concerns. how do we ensure it is not? what are you personally doing to represent to us this is the real waiver process? >> the department counselor officers automatically apply with every application and they are doing that there are
430 waivers issued. >> you bothered to see if there were reasons for those exclusions? >> i cannot claim i have looked into every individual case. >> please make your 1152. - this addresses one thing, the issuance of immigrant visa it does not address the broader question whether somebody is allowed to enter in the first place that is governed by 1182 including 1182(f) that sets the universe of people that are eligible to come into the trinhe first place often a foreign policy national security judgment 1152 a1 a governed how we distribute the visa with a group that is eligible it isn't just nationality but
also like place of residence so once you have those eligible people a wine a governed how distribute them but assume that you disagree all that means is we have to implement proclamation in a different way. we issue immigrant visa but not nonimmigrant visa but so i think they are wro on that case but my final point has to do with my brothers recognition if the president were to say tomorrow he was sorry all of this would go away. the president has made crystal clear september 25 he had no intention of imposing the muslim band and has made crystal clear muslims in this country are great american there are many other countries