tv Trump v. Hawaii Oral Argument CSPAN April 26, 2018 1:39am-2:49am EDT
on both the business and social site. she said there are two donald trumps, one is the one that you see on tv, who makes these outrageous comments to get attention for his brand. even if it creates negative publicity, he is still the center of attention everyday in conversation, for the media. then there is the other donald trump, who is opposite, he is --, he listens, he is very careful about making decisions. >> watch at 9:00 eastern on c-span2'ss to be -- book tv. >> the supreme court heard from lawyers in the case of trump versus hawaii, which concerns an executive order facing immigration restrictions on citizens of seven countries. the ninth circuit has a ready rolled the trouble -- travel ban
unconstitutional. this oral argument is just over one hour. >> we will hear arguments today in donald trump, president of united states versus hawaii. mr. francisco? >> mr. chief justice, and may it , after ae court worldwide multi agency review, the president's acting homeland security secretary recommend that he adopt entry restrictions on countries that fail to provide the minimum baseline of information needed to that their -- their -- that vet their-- nationals. but now applies to only seven countries that fall below the baseline, or had other problems. it exerts diplomatic pressure on those countries to provide needed information and to protect the country until they do.
the proclamation reflects a 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 on the list. f, and oneioned 1182 thing about it is the president asks congress is the one responsible for making the laws of immigration. suggested in one of we bring 1182 f to allow the president to suspend entry, but only for a forod of time, long enough congress to say aye or nay. >> it is a broad and flexible if you doe however
not need to ask outer limits because the proclamation is meant to help implement the nia to make sure we had a minimum level of information needed to determine if italians are admissible under the time limit. it is consistent with the text of the statute and with virtually every 1182. proclamation ever issued. here we have -- >> i am sorry general, but i thought congress look at the situation and created a statutory system that addresses the concern that the president is expressing. congress said could have visa waivers if you can meet the if youhreat to their -- can meet the three criteria, and if you do not you have a heightened and extreme vetting thatss, and it created
vetting process and suggested parameters. more importantly, it took terrorist countries and designated which one supported terrorism, and added another if youf review and said, are 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 affirmry of state to that you are not a danger to the u.s. what i see the president doing here is saying that i am going to add more to the limits that congress set, and what congress said was enough. where does the president get the thanrity to do more congress has already decided is adequate? >> there is a lot packed into
your question. i think the basic answer is that 1182 after as the president authority to impose restrictions in addition to those set forth in the nia. congress?very grounds >> that is what i was or to adjust next, the visa waiver program provides special benefits to our closest allies, and some of the safest countries in the world. negative visa waiver program or any of the other statutes the site addresses if 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. 1182 f does give the president the authority to supplement that vetting system, after all, the whole system is essentially determined by the executive branch and it is up to the executive branch to set it up.
is up to the executive branch to maintain it, and to constantly improve it. have something that is at the core of 82 f, since the main purpose is to help implement the nia by making sure that the minimum baseline of information. if you look at the proclamation, but we are talking about is basic pieces for information. not the ideal, but the minimum. are the reported criminal or terrorist history, and i can give you an example to help bolster to how this works. suppose jane doe shows up at our border a valid visa, but after that visa is issued pursuant to the problems you describe, her home country list shoes associated with a terrorist organization but doesn't tell us.
the proclamation is different than past proclamation spectacle in this sense it six to identify harmful conduct that a foreign government is engaging in and imposes sanctions in order to pressure the government to change. carter what president did with respect to iran but president reagan did. it. to cuba will conduct provides is the minimum baseline of information. >> do you represent that no that fails all three of the criteria was excluded from this list?
>> the analysis was holistic. the countries that fell below the baseline, with the exception of some other, which the proclamation makes clear, and right,eption of all which fell below the baseline but was not subject to sanctions. i think this reflects the nature of this proclamation and the fact 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 which hastability, been successful as is the case of the government of chad. >> if you compare the proclamation with the right in and carter populations, which are one or two sentences, this is lighter than any population that i have seen this particular area. >> this is the most detailed
1182 f proclamation in history. >> the proclamation by reagan and carter however are not as broad as this one. to complete my answer to justice kennedy's question, this is the most detailed proclamation ever issued in american history. to be sure, this covers more countries than either president reagan or president carter covered. and more immigrants because carter only applied to certain immigrants and not all. >> president carter apply to all immigrants but had been exception which like the waiver provision here for national interest and humanitarian concerns. i think president carter was very similar to the proclamation here. is that a jurisdictional argument? yes, i think it is a jurisdictional argument about is white we should address any of
these issues. the basic rule is that exclusion of aliens is a political act, imbued with foreign policy initials occur to concerns. >> that we decided this wasn't despite theal, non-review about the argument the government made? >> the second think you said is accurate, the court didn't address the review about the issue at all, so don't think it is presidential, one way or the other. >> so it is an argument we are required to address? >> i think one way you could understand it is it does not go to article three jurisdiction, though it is a judicial argument and we urge the court to accept it because we think it is correct. even if you don't think it is cracked, we think this proclamation satisfies the merits because it does fall well within the power of the
president under 1182 f. to the constitutional claims in this case -- in your principal response to the to zikahment plan is mandell and say that once the government comes forward with a legitimate reason, national security is the most important reason. the game is over, essentially. i want to press on that a little bit. i want to ask whether that means, you started off talking about the process of this proclamation. i take it that argument would apply irrespective of what process was used. in other words, you would have argumentsame man down -- the same argument, or would
you not? >> it is far stronger given you have the process and substance of which upon this proclamation was based. is, becausewhy that i don't see anything about process or you have to need a certain kind of bar. you state a reason and this court stops. >> i think that is right, but in addition to that, yet the extensive worldwide process that we had that resulted in a cabinet level recommendation that a neutral baseline was applied to every country in the world concluded that almost all the world, including all of the muslim majority world, past the baseline, but a tiny number of countries didn't. mandell or apply mccleary, that the place of the constitutional case in our favor overwhelmingly strong. >> me give you a hypothetical,
there are ways to distinguish mandell in this case. in terms of thinking about what mandel really foreclosed. >> there are only two cases in the area and it is hard to understand the full contours of it. >> i agree, and is a hypothetical, i want to give you. time, ay in some future vmsident is elected who is a and anti-semite and says all kinds of denigrating comments about jews and provokes resentment and hatred over the course of a campaign, and in his presidency. that, asks hisf staff or cabinet members to issue recommendation so he can issue a proclamation of this kind, and they got all the eyes
and across all the keys, -- they is the i's, and what emerges a proclamation that says no one shall enter from israel. -- do save mandell puts an end to that set of facts? >> know your honor, i sit in that context mandela would be the starting point of analysis because it does involve the exclusion of italians, which is if theandela applies -- cabinet was to come to him and say mr. president, there is honestly the national security risk your and you have to act, i think then the president would be allowed to follow that advice, even if it is in his private heart of hearts he harbored animus.
gest be also sug difficult to apply them and rationale given israel happens to be one of the countries closest allies in the war against terrorism and that is not fit to me you could satisfy andell's rational standard, this is based on a cabinet level recommendation that was about national security. this is an out-of-the-box president in my hypothetical. [laughter] >> we don't have those, your honor. they are good diplomatic reasons, and who knows what the future holds that there may be good diplomatic resist the pressure on israel or say what israel to vote a certain way in the u.n., and this is a way to better our diplomatic hand. this is what he does, and who knows what his heart of hearts is.
i take that point, but the question is, not really what his heart of hearts is, the question is what are reasonable observers to think given the context in which this hypothetical president is making anti-semitic comments. hypothetical, but it is white i think it is a relatively easy case because we are willing to assume for the sake of argument to consider the statements, and we are willing to assume for the sake of argument that it is rock you apply some kind of domestic establishment caused and pollutants because we confident given the process and substance the forms the basis of this proclamation that, the matter what standard you apply this proclamation is constitutional. since we don't have the extreme hypothetical you suggested, we have a multi agency worldwide review and cabinet level recommendation that applied a neutral baseline. this wasn't done by the cabinet
secretaries to the agencies to every country in the world. >> do you have that extreme hypothetical -- with the present a free exercise or establishment clause, or both? >> icad represent a free it couldclause -- present a free exercise clause claim and could eventually succeed on that claim. who could bring that claim our relatives of those who are excluded, father or son? what about a university? >> i think universities can bring a free-speech type of claim under mandell. the reason why i think they haven't pursued those types of crimes because i think it would possibly support the nationwide injunction that they are asking for. the reason why i think they will bring in establishing cause claim is because the respondents.
it only applies to aliens abroad will have no constitutional right to enter. >> the claim is the proclamation is in place because of the dislike of a particular religion. i thought the establishment clause at its heart is that we cannot be anything but neutral with respect to religion or its practice. >> that is true, your honor, as the valley forge-ish is mixed there, not everyone has the challenge that negative message injury, otherwise the point this would have had outstanding challenges of the last transfer from the government to the christian college on the ground that it sent a pro christian message. >> but that negative religious attitude is stopping them from doing things that they would otherwise be able to do to associate with scholars from these countries, to bring in students, to have family members
joined them. it is one of the purposes of the ins. >> that is where they might have free exercise or free-speech claims like the types justice kennedy suggested. i do think that is a an establishment clause claim by the proclamation doesn't actually apply to them. >> can we go back to something that is bothering me here, which , it was argued about the unitary. it basically says the president -- i am summarizing and an incomplete way hash the president is the head of the executive branch, and he should have, for those in the extreme end,is theory, or one they can hire or fire whoever he wants and put in place whatever
policy he wants. if we take justice kagan's hypothetical president, who basically says to his review committee that i want to keep out jews, period. find a way. that is their charge. situation, why would the actions of the committee, whatever this is, executive committee, not be subject to great suspicion to thorough review? which wasn't completely done here. responsiblehey are to the executive and they have been told what the outcome of their deliberations must be. that.ave two responses to
the first is the president's, just like all of us here, is duty-bound to protect and defend the constitution. i suspect if any cabinet member was given that order, the cabinet member will refuse to comply or resign in the face of a plainly unconstitutional order. that is the initial check. secondly if you have a extreme scenario where all that down, then if the president actually did make that statement, i want to keep up a particular race or particular religion no matter the, that would undermine legitimacy of action, even under the mandel standard. here you don't have anything like that coming of the doing its job through the agencies were they asked agencies to construct and the plight this neutral standard to every country in the world, including every muslim country in the world. they conclude that the vast
majority of the world, including the muslim world, was just fine, but there were problems with a small number of countries, and so imposed pressure, recommended pressure to -- >> the problem is i don't see that material was reviewed by the judges below, by the ninth circuit or the fourth circuit judges. i thought the government had kept confidential and refused to share, either with the litigants or the courts, exactly what was evaluation,hat the and how it applied to those countries in the world. i understand that confidentiality that concerns you, but if the backup is the way justice kagan describes it, that he made anti-semitic background, don't you think once
you get through the mandel preliminary stage that you need an independent arbiter to look at all of that to ensure the process is fact? >> a couple of responses to that. all, the proclamation is very transparent and lays out in great detail both process and the substance upon the proclamation is based. i think under the duty of regularity or good-faith, that one branch of the government ghost to a coequal branch of the government. there is a strong presumption that is what is being set out there is the truth. >> you said something earlier general and i want to make sure you got it right. be set at the time with the president had said we don't want muslims coming into the country, that would undermine the proclamation. did i get you write?
right? >> yes. >> what the president said is effectively that. >> there are two issues, the first is you cannot consider capping statements, and we are very much in the view cap and statements are made by a private citizen before he takes the oath of office and before the opinions cause of the constitution since the advice of his cabinet. those are constitutionally significant acts that are the fundamental transformation from being a private citizen to the embodiment of the executive branch. those statements should be out of bounds. >> suppose you have a local mayor as a candidate, and he makes hateful statements. he is elected, and on day t wo he takes actions consistent with the statements. wherever he said in his campaign is irrelevant? >> i would say two things, and
the second point is i was about to turn to, i would say yes because of the fundamental transformation, but i would say that here it doesn't matter. because here the statements that they principally rely on book actually address the meaning of the proclamation itself. this is not a so-called muslim back, if it worked would be the most ineffective muslim men that one could imagine. exclude the vast majority of the muslim world and also omits three muslim geordie countries that are covered, in past orders including iraq, chad, and sudan. this order is what it purports to be an conference it is. it is an order based on a multi agency worldwide review that applied neutral criteria all across the world, and concluded under those neutral criteria that most of the world was fine, but a small part of it failed to provide us with that minimum
baseline of information. the minimum, not the ideal, the bare minimum. terrorist and criminal history, that we need to protect the country. read all 80 briefs. almost 80. i think i am somewhat repetitive and another basic arguments, but there's one question i am left with an starts with an assumption, which i think you share, but i want to be sure. i noticed the carter and reagan order had case-by-case exceptions. i look at this order and this has case-by-case exceptions. it says case-by-case waivers may be appropriate and individual circumstances such as, giving examples, the following. they have to be no terrorist,
that is blindly, and they have to be in the interest of the cannot betes and undue hardship, and the temperature appears immigration law, extreme hardship,. then they have a list. established, business reasons, they have been here studying or other long-term activities. they want to visit a close family member, they have a disease they need treatment for, they have previously been employed, about five are the things. focus on that class. few who dobe quite a fall within that class. >> only a small number of people who sit to come. >> that is what i am asking about. as far as we are concerned, if they fall within that class,
there's no reason why they should be excluded other than the normal processes. >> a couple of responses, your honor. in terms of the reasons that should be excluded, when of the principles of the proclamation is to exert o-matic pressure on governments in order to get them to change and provide us with data. >> sioux think they should be excluded -- so you think they should be excluded? i want to be sure we are on the same wavelength. here is the problem. it seems to me there are probably a significant number of such people. you read the briefs and you think this is the is this academic complaining, community, 46 scholars at harvard, there are families that
safety or tried to get medical treatment and nobody told us about this and the only admitted to, and they're supposed to be guidance. so, there is my question. if you have done the same things the right and people did -- the id,gan and carter people de then you have the same thing care. but as one brief says, this is window dressing and they never apply it, then you have something new and different going well beyond what president reagan did. i want to know how do i find out when there is not that information in the brief? we have another hearing, do we send it back? do we say the government thinks this is window dressing? but the other side says there is only two people,. you will notice.
there are decent people in yemen and somalia. >> if you my brief as most current number on waivers. i believe the number on page 17 footnote it's over 400. >> is it well-publicized in these countries that they know they just have to go to the office. >> your honor two responses to , that. one is, i don't know how well-publicized it is. i suspect people understand how to get it. my second responses that in terms of the legality the waiver is not necessary which is why most governments it's a good thing which is why they often have them.
>> he wants me to consider the lawfulness of this order on the assumption there is no waiver. which is not what president reagan did, not what president carter did. and if you go through every took,on that congress waiver, waiver, case-by-case, case-by-case parent >> the answer to your question, your honor, is no, i don't want you to consider the proclamation on the hypothetical situation but i do think it is has written and applied falls within the president's authority. thank you. >> thank you. >> thank you mr. chief justice. the executive order is unlawful for three reason. it complex with congress policy choices, defies the bar a nationality discrimination, and it violates the first amendment.
congress has specified a three-part solution to the same problem the order dresses. alien seeking entry from countries that don't cooperate including "state sponsors of terrorism in countries that provide inaccurate information." first, aliens have to go through the vetting process with the burden placed on them. when congress became aware that some countries were failing to satisfy this congress rejected a ban and instead it used credits. when companies cooperated they'll get extra credits. , they used big sticks like nationality band failed in congress was aware could change. -- failed, and congress was aware could change. >> let's suppose that
intelligence agencies go to the president and say we have 100% solid information that on a particular day 20 nationals from syria are going to enter the united states with chemical and biological weapons. they could kill tens of thousands of americans. in that situation, could the president band syrians on that day. he could. for two reasons. there are two different arguments. there's national discrimination ban and whether -- with respect to both it would. it would not be nationality discrimination for when you have an emergency fast moving situation. like the syria example you're saying. there, to interrupt you what if it's a week, a month from now? in other words, i'm responding to your point that it has to be immediate. >> this court has dealt with the and said the president is going
to get a pass on what he's going to say the emergency us. -- emergency is. can he go to congress and get a legislative impediment removed? were 460 days later. he's not introduce legislation. were so far from the hypothetical. >> imagine if you can that congress is unable to act when the president asked for legislation. [laughter] someone introduces a bill the -- first of all the president may have qualms about sharing that intelligence but what if there's a bill introduced and one introduced to say let's block the president. >> we understand he has residual authority to keep the country safe. our point here though is congress has thought about this exact problem given there's only one problem is identified which is countries not cooperating. his not talking about people
coming in. with respect to that congress , has said here's how we deal with it, with the individual's -- individualized vetting system which places the burden on someone coming in. you have to show biometric id under the statute. you have to have been in person there is any red risk that they are state-sponsored terrorism congress has said here's how we , deal with it and to the extent countries are not cooperating , we offer carrots. congress rejected a flat nationality band. that's where the force of our argument lies. >> congress did act and they enacted 1182f. why doesn't this fall squarely within that language? >> we have textual reasons that it is not a class, it is
perpetual, but we think there is a much bigger point. >> maybe you could talk about the text. it's not a class. doesn't 1182f say whenever the president finds the entry of any aliens or any class of aliens , so put class a side. although i don't see why people , from a particular country doesn't constitute a class. what about any aliens? -- powere the prowler is so broad and sweeping, and allows the president to supplement what congress has done we think you have to be careful and read it how you read the other statutes which how do -- which is how do you harmonize , that broad text with the rest of the ina? if you accept their idea that he has such a sweeping power he
he could end the family preference system and end chain migration. he could do countermand any provisions of the ina and turn it into a line item veto. for that reason, there has to be someone -- that's something the courts have dealt with. >> does this proclamation do anything like that? does it purport to establish a new, permanent immigration policy? >> absolutely. this is a perpetual policy that bans does what they said you couldn't do in 1965, and it judgmentts congress's from several other times saying instead of these bands, we will balance foreign policy considerations economics considerations,, humanitarian, all that together and said we
won't do the flat pan instead will have an approach. >> what is your basis for saying it is perpetual? >> there's nothing in the order that ends it. you heard my friend say they did other executive orders parent >> it does not have to be really re-examined every 180 days. >> no it doesn't. that indicates will be a reassessment. this argument would be there if there's anything about reassessment. including the cuba order there's nothing like that in this. it's just like a reporting argument to congress. in which congress isn't necessarily required to do anything. they have statutes like that all the time to read this is that spirit that's why this is unlike
any executive order. if you go back look at all 43 executive orders issued, none of them have countermanded congress' judgment in the area. they've all been supplement. as for such.e says he deems necessary and he could have continuance over whether it is still necessary. >> again, we would have a --blem with that if it was if it could be reactor something this is about a perpetual problem. >> if the president said in six months will have a safe world. is, here, thet -- hasnt is identified identified the problem. when the soviet union was around we don't have countries that , cooperate with us in vetting. the solution has always been from congress not to have a flat band but to have a fine-grained system. >> what if the military advisors
said the president ought to order an airstrike against syria , and the president says would you regard that is discrimination this is about the assurances of he says. >> absolutely not. the statute is about discrimination and visas. >> so under that you would say there is no problem under that provision? on to this there is a strike oe so i don't think there's any immigration issue. >> any type of targeted action that would have an impact on the muslim population. >> we think the president has wide authority to do things -- >> why would that constitute , or the argument would be that is discrimination under your
establishment clause is discrimination on the basis of faith because he is said in the past, if you accept the arguments, that he is anti-muslim. >> no sir. no president has run afoul in this. the president has directly tied this policy to those statements. on page 70, that is the greatest illustration of that. that is a constitutional claim and i want to get there. but before doing so, i want to make clear the consequences of their position for the ina is that the president can take a wrecking ball to the statue and countermand the congress judgment. if i might on this question before we leave it, we are proceeding on the assumption that we can reach the merits. but the government makes the , argument that aliens who were removed from this country have
to bring their claims personally. and third party cannot vindicate those rights and asked the question why it should be there the third persons that should have certain rights of aliens. >> this is not a third-party case. [over talk] directly harming themselves. let me just give you an example the state of hawaii. if you look at the 10-year-old . this is a 10-year-old daughter in yemen is trying to come here. >> i understand that but those arguments don't work present to whyns in the country, so does it work for aliens who are not in the country? the very same argument would not succeed. i believe you can succeed that. -- i think you can concede that
there and >> because there you have a plaintiff who might not be willing to bring them in the united states. but here these folks are directly impacted. you heard my friend conceded that the issue in sales that's how you briefed it up. this court had that situation. it reached the merits. our statutory point is that if you accept this order you are giving the president the power. an executive proclamation that counteracts congress's decisions. no president and hundred years has countermand the policy judgment. he had zero examples to say when congress steps in and solves the exact problem the president can come in and say one a different solution. if you do that, you are going to get rid of all sorts of things like a preference for specialty like software engineers in the ina. the president could say i'm
going to ban software engineers from going to california. >> maybe you are entirely right 2f needs to have a limits to prevent the president from doing something contrary. but you're suggesting the president can't do anything contemplated. so then i want to know, what are you saying this is contrary to? it seems to me you would have to point to a clear and direct conflict between what he's doing and another statutory provision. so, our view is that he can supplement but not supplant in decisions, and other cases say they are -- there are three things you look at. direct action.
three things. first, can these solutions coexist? second, has congress provided an articulated scheme and third , is there any other indication that they consider it in a different direction. in respect of those, only this proclamation satisfies all three factors. congress has a scheme that deals with the exact problem is as countries that are not cooperating. it cannot coexist. it makes no sense to have the impersonal visa -- >> for the interview, this is for people who are coming from state sponsors of terrorism congress said there has to be an in person interview. it doesn't make sense to say we will have a flat band.
or a visa waiver program which is about countries that provide zero information to the united states and say were gonna give you a carrot. then, they say forget about the visa waiver. >> can you imagine any situation in which the threat of the infiltration of the united was soby a terrorist severe with respect to a particular country that the other measures of what you have mentioned could be deemed by a president to be inadequate? >> yes i can. the president would have a robust authority to deal with that. >> your arguments courts have the duty to review whether there is or is not a course for the president. >> it's exactly what you said when you joined the opinion as long as they have wide birth in this area certainly if there's
an emergency that precludes it statute thathave a concerns the same problem and nothing new you've identified in this progress that congress , didn't consider the same type statute that concerns the same problem and of things. it's a perennial problem that countries don't cooperate with the united states when it comes to vetting. >> this seems abstract. the president may have more particular problems developing yes, congress addressing the question of vetting that and those arise in a particular , context. it's a difficult argument to say or pressured enough. >> again, that is not an argument. for example, if something came along like a virus that wiped out the visa processing software, then the president would have the power to do it. >> what about the change of administration in which the
-- change of administration in a particular country. in which the vetting procedures will not be taken seriously. >> congress anticipated a state sponsor of terrorism. and even with respect to that, provided no information in mending the united states. congress said we are not going to have a nationality ban and said we will have individualized vetting and this visa program can deal with the regime. again, i can imagine an emergency situation in which the president needed greater authority for that, but here we are 460 days later and i'll caution you not to make a decision based on an emergency. that can be bracketed in youngstown, and other places. this is so far from that. the text of 1152 is violated here. it says there should be no discrimination on the basis of
nationality with the issuance of visas. that is 39% of all the visas this executive order covers. it is not a small part, it is the most important part because immigrant visas are the heart about what the nation becomes. it is people who want to come here and become part of our long-term policy. this executive order flatly contradicts that. now if you accept his , interpretation he says were discriminating on the entry said, not the visa side, then you are giving the president the power to undo this. he has impose country quotas of zero at the border. >> your argument based on discrimination, based on the campaign statements is there , statute of limitations on that? froms that i ban presidential findings for the rest of the administration?
>> i want to be clear about this. our point about the 1152 has nothing to do with campaign statements. it is purely the text of the proclamation which is nationally -- nationality-based discrimination. one judge said you could not imagine a clearer text than this. make absolutely clear that you don't need to do any of that for purposes of 1152. that would knock out 39% of the most important order. with respect to that, we think the court set a reasonable observer to view all of the statements. my friend is right, you should look to campaign statements in general, the thing is, the president and himself has
rekindled if you look at page 70 of the brief you have a good , example. after the latest executive order was promulgated, the president tweeted these videos and the press spokesman said what is this about. the answer was the president , spoke about this in the proclamation. does theestion is inability to apply the proclamation apply forever? >> no. i think the president could've easily moved away from the statements. but instead he embrace them. --so tomorrow, if he if he issues a proclamation saying he is disavowing them the next day he could put it back in. >> at exec the this court said in mccrery. they said it could be constitutional. depending on the circumstances around it. >> is your answer yes? >> yes.
>> he could reenter this near -- this in your discrimination argument. and that would not be applicable. >> that is what i told them in may. that is a reasonable adjective. >> any reasonable observer reading this proclamation without taking into account statements, think this was a muslim ban? i think there 50 predominant muslim countries in the world. five countries are on this list. the population of the predominantly muslim countries 8% ofs list make up about the world's muslim population. if you looked at the ten countries with the most muslims, one, iran, would be on the list. >> if it were just the text of the order alone it might raise
eyebrows. we would not be here. we agree it's the same test you have. you have to look at all the circumstances around it. the publicly available ones. the fact that it only encompasses some muslim countries i don't think it means , it's not religious discrimination. if i have ten african-americans working for me and i fired two of them i think anybody can say it's not discrimination. >> i understand that. it's one of our fundamental values that there is religious freedom here for everybody. and adherence to every religion and every one of them delivers equal treatment -- deserves equal treatment. if you look at what was done it , doesn't look like a muslim ban. there are other justifications that jump out as to why these countries were put on the list.
it seems to me, the list creates a strong inference that this was not done for that purpose. >> if it were just the list, you would be right. although, you yourself has said that if the burden imposed falls almost exclusively in those with religious objections. this is the band that falls almost exclusively on the folks between 92% of 298% muslims. even then, wouldn't be here if it were for all the different statements. the best evidence of what a reasonable objective observer would think, would be to look at the wide variety of briefs from every corner of society representing millions of people. from the u.s. conference who called it blatant discrimination -- >> it has been a long time since
the court has used lemon test is a reasonable observer even to strike down a domestic statute, let alone something with purely international application. what would we do about that? >> number one, the fact that this is immigration, cuts the other way. the heart is about immigration restrictions on catholics at the founding and the protest of king george with his -- king george which is about using the power to exclude people of a different faith. that is what our constitution is about. the we don't think have to get second, into lemon these other tests, think the court was clear in say when you talk about denigration of religion all the test point the same direction. >> you said something earlier, you said you wouldn't be here if all of those statements were not made. do you mean that on all of your
basises? >> only in the establishment clause. he talks about this worldwide vetting process. >> but go back to not being here without the statements. clearly, the statements even conceded by your adversary do give you a basis to look behind. all right, the reason. so if we are looking behind it, how do you deal with the general suggestion that there was a cleansing that occurred because agencies and departments who participated. >> there are three things. number one, his own argument is that 1182 puts the president in the driver seat. it is the president's proclamation. second, the order says in one
-- two importantly, the president before this review process begin tweeted and said he wanted a tougher ban, a non-politically correct ban in thatight. given the fact 1182 itself forces the president to make the proclamation i don't even think you have to get into the executive thing. but, i do agree with you, that that is another problem. they're coming before the court saying it is the the president in charge, but they are coming back and saying it is the other people. no president has ever said anything like this. that is what makes this different. >> and yet, you have a proclamation that says there are important national security therests at stake and
question is, how to do the kind of analysis that you want us to some sense,in evaluating the adequacy of those national security interests which, for the most part, we have the courts are not able to do. >> we're not asking you to second-guess a national security judgment. we are saying you just have to a simple objective observer test. is there an official purpose to disparage a religion? here, there very much as. that is everything the president has said and the order embodies. >> it is still something i'm thinking about, perhaps the side, but the statute that you .2, one of the ones that is stronger for you, there are --iously objects is objections to what you're saying, but the when you are talking about says you have to
have an interview with an official or counselor if the person is from a country officially designated by the secretaries of state as a sponsor of terrorism. let's say we do have that in respect to everyone under the exception. so there isn't much problem going beyond that in respect to other people. take their argument for a moment. my question is, which i could not find in the briefs, is, is it true, and i'm taking what they say, that it really is not maybe that isthat not so? they don't publicize that? they don't put forward a guidance? they don't know they can qualify and if it turns out that it is something that is important to the lawfulness of the order because there are many categories there, what do we do? >> two things. waiver processs has concluded and you have this on page 14. 10-year-old with cerebral
palsy who wants to come to the united states to save her life, was denied a waiver justice breyer. 430 people have gotten waivers or how often it is in the data that we do have suggests that is a matter of percentages this very week. just the state of hawaii has 1000 letters from people most of which that state. >> but it is a question for remedy for me. we have this nationwide cosmic induction, not limited to relief for the parties that issued, or even a class-action, as near as i can tell, that is a really new development where a district court asserts the right to strike down a federal statute with regard to anybody anywhere in the world. what do we do about that? >> obviously, the injunction has been trimmed by the supreme
court and others, and i believe that is what lower courts are debating right now in the context of the contraception case. i think this is the poorest example to get into it with because the united states versus texas is an immigration case and to say there must be a uniform rule of naturalization spirit so i get why the court may not want to get into it, but with the supreme court that it would , almost be the advisory opinion rule of naturalization. our fundamental point is that congress is in the driver's seat when it comes to immigration and that this executive order trans -- transcends the limits that done withident has this proclamation power since 1918 and two excepted here is to canpt that the president take an iron wrecking ball to pick and choose anything he doesn't want that it cannot be
the law of the united states. >> you could take five extra minutes. >> uh. [laughter] >> you don't have to. [laughter] >> if there are any other questions questions? >> your five minutes for rebuttal. >> mr. chief justice, may it please the court, i really do a unless the owners point have additional questions justice breyer to respond in more detail to your question how -- question. how the waiver process works, the state state department does publish the waiver process on the website but it is applied automatically by the consular officers, so that when somebody applies for a visa, the visa officer first determines whether the person is otherwise admissible. if they are inadmissible, you never even get to the proclamation. for those not inadmissible under
other parts of the proclamation, 1182a then they turn , the proclamation that is the subject and if you are than it never applies. if you are not subject to the exception the officer turns to , the waiver provision and applies the criteria. >> how do you deal with the example that was brought up in the childless it -- the child with cerebral palsy. >> the waiver is built over issues that address that. i am not familiar enough with the details of that case to tell you what happened in that particular case, but. >> you have read the briefs as have i. there are some that lists about 10 or 15 instances like the cerebral palsy then there is
another brief who lists all the people who are professors and scholars at university and then they list the students from these countries. and then the business community lists all whole bunch and says, my goodness they have been , unable to get -- we don't know what going on. but they say nothing is going on -- going on. i'm not taking sides on that, i am saying i don't know. >> principal purpose of the proclamation of course is to assert pressure on the country's to provide us with the needed information. that brings me to the second that the individual vetting point, process depends upon the minimum baseline of information needed to determine if the person is admissible so when they show up at our border with a visa that we may have validly issued according to the vetting
process, but if the home government doesn't -- the government knows something that does not tell us we cannot intelligently and make that admission. third, i would like to address the 1152. about nationality. one second. i for one am concerned about , is this window addressing it or not. what is in place to a sure it is not? what are you personally doing to represent us, that it is in fact the real waiver process? state department officers automatically apply the waiver process in the course of every visa application. they are doing that, which is why there have been -- and i have seen our brief -- 430 waivers being issued. have you found if there are reasons for all of those exclusions? >> i cannot claim i have looked into every individual case. >> could you make your 1152
point? a1a addresses the issuance of immigrant visas, not the broader question over whether somebody is allowed to enter in the first place. by 1182,overned including 1182f. the universal of people eligible to come into the country in the first place. that is based on a foreign policy national security justice. we --a distributes how determines how we distribute visas on the group that is able to come in. it applies also to places of residence. once you have that universe of eligible people, 1152a1a governs a distribute them. let's assume you disagreed with me, that would mean we would have to implement this proclamation in a slightly different way.
visas,d issue immigrant but not nonimmigrant visas to people who are not able to enter. we would not have to allow anyone to enter and issue any nonimmigrant visas. the bottom line is, i think they are wrong on the case, -- on the issue. my final point has to do with my that ifs recognition the president or to say tomorrow, that he was sorry and all of this would go away. the president has made crystal on september 25, that he is no intention of imposing the muslim man. he has makers of clear that muslims in this country are many, many muslim countries that love this country and he is praised islam as one of the great countries of the world. this proclamation is about what it says it is about. foreign policy and national security, and we ask you would
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