a statute does not authorize the proclamations in this case st the proclamations do not satisfy the express prerequisite to find as a matter of fact that permitting immigration be detrimental to the national interest the proclamations are based on honor we think that the word findings needs to have some meaning and rights or get your point about false and i get that but i understand your argument that obviously if it's false it can't  can't be an adequate funding but i'm just asking whether whether you can really go so far as you're willing which does also supported by substantial evidence that just you're turning this into an a p a case which this me clearly isn't that right your honor we're not asking for so we're so how do you how do you define the standard here i mean well let me ask you this what what how would we evaluate them what lens would you argue that we just clarify if you do not think that the findings were false what would you look you know if i think if i think with respect to immigrants immigrant visas that the findings are not false what how  felt you still would argue that there are not adequate findings but what's the standard if it isn't rational and substantial evidence whatever your honor we would think that at least a subset of those individuals who cannot that immigrants contribute to economic growth and to the jobs and wages of u s workers they agree that that's true and the ordinary course and they don't offer any evidence and even if you think that asking for evidence is too much they don't ask offer even why so that while ultimately the president could reach the conclusion he reached there has to be some evidence to support the latter point the supreme court was clear and all why saying that he's not required to link his every piece of the puzzle in the specific context of foreign policy national security and the reasons for that the president is own power in that area he probably shouldn't be required to disclose confidential information state secrets to center and in that context but in the purely domestic context there's no reason not to ask him to explain his findings and give a reason for them and in fact congress put the word fines and legislation for a reason that we point out it page two thousand nine hundred and thirty of the blue brief congress chose finds instead of dean specifically so that he would have to for suspension on some facts and not on opinion or guess and what he's done here is he's just made an opinion or a guess about what might happen in the case of a recession he's admitted that  become moot with respect to most of the appeal be moot with respect to most of the plaintiff the problem though is that our diversity visa plaintiffs they receive their visas in september and they only last for six months so they would all expire by the end of march so they need to come in and the doctor they can be renewed and so they need to come in on their visas before the end of march so the proclamations need to be lifted one where the other in order for them to use the to make another point with respect to the findings issue i think that one way to look at this is that the president there's got to be some floor above which the findings have to have to satisfy right otherwise it wouldn't be a finding and the president couldn't for example find that all foreigners are criminals and therefore i'm going to exclude aliens from entering the country that would constitute a finding the just made up and just contrary to all the evidence and that's suggest that there is dr torie support for that and you know it's a situation if i'm understanding you correctly i think what the the best reading for the president sort of this is  they're saying that in the aggregate there's a persistently high unemployment it went when this persistently high unemployment and labor's supply outpaces labor demand in not situation which is dire we can act to block any competition even though there are individual employment sectors that might not fit because there are workers there who really may not compete against american workers but we don't have to go to that detail we're making and this is our theory this is our policy they seem to be saying if you assume the level of unemployment is as high as it is it is ok to block a group potentially competes and they do compete in certain areas for sure it is ok as a matter of policy for us to do it even on the a p a terms we allow an agency some room to move i know this is unemployment issue well but the immigrants in certain areas will certainly compete against american workers they're not wrong on none i think your argument is they're not sure going that in every sector and i think that's certainly true you hear that over and over again i don't know what the exact details are it is true that in some sectors immigrants really are not competing directly against america and workers in your argument intellect can't that can adversely affect the unemployment situation by i think what the president's side is saying the aggregate numbers are sufficiently severe we can take an approach would says we're not going to allow competition in at this point well you're on the there's two points some of the many of the immigrants here are going into sectors where alan don't they compete  but their unemployment is gone down for example h one b visas unemployment is going down because those are i agree but what i'm asking you is is the president required to go through each and every employment sector and say we're making the determination in all of these areas and we can support it with facts is that what you're saying i'm not reading the trunk cases suggesting well what we're what we're saying is number one he's got to make findings with respect to each class excluding and so he's got to make findings with respect it's one beast because that's a class is excluded but then more broadly he needs to have a rational basis to conclude that he the individuals who are coming in are going to actually not just complete that impact and cause more unemployment to exist but i suppose the response from the news that is our theory that that that it will have a positive effect we can't tell you for sure but that is on theory and we see lots of cases like that certainly in the a p a arena and the agency runs are a lot to protect because they have a starting foundation that is the numbers are wrong in our view and we think that the best way to protect the class who we're trying to protect is to avoid all competition even though we understand that in some places it might not there might not be him by overriding various statutes that authorize the super grahams that are addition he's thrown out the j v said program the h g s a program all the immigrant visa program and he's just not allowed to to do that he's allowed to supplement some restrictions that congress may have and acted as he did in hawaii but he's not allowed to just take out the categories wholesale because what he's done here and then what do you relying on to support the cl there's really a division of authority even within the th circuit and that pain is still subject to or the hearing petition so that we can argue the more persuasive authority is the step and then  do not throw out whole visa categories and put on additional limitations similar to what the president did in hawaii here it's different the court sorry the president has not new limitations he's thrown out entire visa card categories and the statute doesn't allow him to do that and if it did it would create a serious not delegation problem because it would allow him to act contrary to congress as well and without any congressional guidance as genuine national emergency and put millions of americans out of work the presidential proclamations at issue here our response to that emergency the president appropriately exercised his authority under section one thousand one hundred and eighty two f and the district court there is you know i apologize plying the extremely limited and highly deferential review of the prophet nation the supreme court laid out in hawaii and i was confused when he said alternative basis because that's the basis in fact that mr wells has a variable i mean suppose the president issues a proclamation banning all immigrants because crime waves are increasing and because immigrants are likely to commit crimes there that's false we  argument i know  wasting time come on my apologies as i think in that case you might have even under the limit for a few it might be you know truly false purely incorrect finding but we are far afield from that and i i would point out that in most of these cases certainly in this proclamation you're talking about a predictive judgement i think judge edwards used phrasing similar to that you're predicting whether after entry this will have a negative impact on the national interest that's kind of what was you struggling with in this case there are certain employment sectors i don't think anyone would disagree there are certain employment sectors where there is not a direct hit on american workers if you bring in immigrants or nonimmigrants and we've known that for a long time before coded and so the question is must the president take account of that that is that some of those assumptions are simply wrong or is it enough to say there are enough places where the hit will be detrimental and so we're not going to worry about the particulars so i think he here we're in the midst of an unprecedented pandemic unprecedented shock to the labor market and i think the president has the authority to make determinations about you know he says in the proclamation in june and that after consulting with the secretaries of labor and homeland security they found that the president admission seen in the exceptions right the president directed the secretary of state in conjunction with the secretary of labor in search of homeland security to issue sort of a mechanism for national interest exemptions for those individuals that it shone boring the august the state department laid out a series of things one that i would use i think because it's kind of a clear and easy example and i think it's actually the st one on the state department web page is the h one b category covers a lot of things including medical professionals and so the  exception there is for travel as a i guess they don't use medical sorry but as a public health or health care professional or researcher to alleviate the effects of the covert one thousand pandemic or to conduct ongoing medical research in an area with a sub is travel by a public health or health care professional researcher in an area of public health or health care that's not directly related to cope in one thousand but has been adversely impacted by the pandemic so you you know that's a good example of we need all hands on deck to help where even before covert there were lots of areas and employers and workers would attest to it lots of areas where for any of a number of reasons the employers could not get out of labor they continued in code for sure and so there was no competition when you brought in these non immigrant age to be persons to perform that work because otherwise it wouldn't get done  the exceptions there i'm happy to walk for all of them the st one is travel based on a request from a us government agency or entity that meets a critical foreign policy objective or to satisfy a nine on talk about let's go to you know going to be really important that you and i understand there are lot of employers across the country in the age to be category and saying you're killing us ok so one another there are three additional factors you need to meet two of them so the st of those would be travel when the person was previously employed and trained by the employer and they've previously worked for the positioning employer that's one of the you need two out of these three the nd one is the applicants traveling based on a temporary labor certification the department of labor gives that reflects a continued need for the worker and it needs to have been approved by the department of labor after july two thousand and twenty so approved after the pandemic has caused a shock i think that's the example you're giving me judge edwards as you know even post pandemic you're causing the shock and the rd would be the de financial hardships the employer examples given would you know illustrating why the hardship is difficult if the employer can't meet a financial contractual obligation its inability to continue its business so i think the example you were giving me where you couldn't find anyone to fill this job without this h two b person writing that you know and you can show that this is going to be a hardship we need someone that would meet that nd one and i think you would get a labor certification after july to me st so that's questions slightly different way the proclamation prohibits not immigrants from enter into the country because of their impact because they might take jobs from americans right that's what this is all about have to certify that bringing someone in on an h one day or age to be these are will not have an adverse effect on domestic workers so i don't understand how he the president can find that it can bark people eligible for each one h two b visas because they're already blocked if they would have d an adverse effect on domestic workers what's not in the st for you the present in the june profit action specifically stated that and the normal labor market he understands that you would labor certification would cover that but given the shock of the pandemic and call that nineteen certification because there are so many unemployed americans sorry did i miss it when i said i think that that goes to the labor certification occurring july or later it as one of the grounds for which you would be able to get a national interest exception because that labor certification has taken account of the unemployment the coal that cost a labor certification granted in march would not have taken account of the labor market in june when the president issued his proclamation and after coburn it had a devastating other words even though congress has already set limitations quite specific problem ation says essentially cove it we want to redo this and we're going to bar everyone and the agencies can come up with guidance as to the exceptions so the burden and the power has shifted and the question is can the president do that under the authority he cites and i say that in the context of i'd certainly agree that trump an international context but in that case there was this extensive report that set out the factual basis for the findings that's what's troubling to me here can you just act on the basis of a common sense assumption here look we have a pandemic there are a lot of people unemployed and while there are other ways to address that and we can go to congress regarding that instead we're going to issue a proclamation way beyond what was brink or was dealing with in truckee why and that's leaving open the question we have to be clear about this as to whether or not it's rational or reasonable to do what the proclamation did i'm just trying to understand that deal just  the majority of the lines are it went one way and the dissent went the other way that there is some limitation here and we're talking to mess to clean out we're not talking with regard to be international implications and you don't think any of that is relevant here so i think there's a lot to unpack in that question i'll start with the last point we agree with the th circuit that there's no distinction between domestic and foreign impacts i think the text of the statute talking about the ability to suspend when you term an entry because entries were spending when it wouldn't be in the national interest given that you are stopping someone from entering the united states some of that harm to the national interest may naturally occur in the united states the nd point i would make on that is you know as the supreme court said if yellow and they followed up in hawaii any policy pertaining to allowing or not allowing foreign nationals to enter the united states is i think the law was an extra will be intertwined with our foreign relations and one way you might see that is you know we bar entry of of workers in these categories other countries might bar entry of american citizens from being workers and so barring the entry of foreign nationals is always going to be proclamations that pointed to a couple proclamations that had a paragraph or a very short finding here we do have a couple pages of findings you know i discussed before a little bit the president you know laid out that more than twenty million u s workers lost their jobs in industries where employers were requesting each one p and l visas and so here you had a lot more findings than you've seen traditionally in proclamations i think you also mention redoing the scheme texturally under  the president could bar all and free of all immigrants and doing so would obviously cut off all immigrant classifications and all categories and so the statute allows for any reason  accounted for detrimental in one respect that is if unemployed persons capable of performing such service or labor cannot be found in this country that's the condition now other things that a detriment to the country the president obviously may be able to address under a proclamation or trying to understand is why can the president override what age the statute already says with respect to h two b h two b for example non immigrant aliens if the employer has to make that assertion why isn't that the end of it you can say that same thing is detrimental to the interests of the united states that thing the unemployment that's already been accounted for as the supreme court said in hawaii it can impose restrictions in addition to those already in the statute that would be detrimental to the interests of the united states and what we're saying is and can they be detrimentally interest of united states with respect to this one point when the statute has nothing that's changed already takes into account unemployed persons the president is making a predictive you know a predictive finding based on the changed circumstances of our labor market no you know it it's what judge table started with fifteen minutes ago it's would go around in circles it's bizarre congress is already made with respect to one dick traum detrimental circumstance congress has already said the employer has to show that unemployed  persons capable of performing such service cannot be found so we've accounted for that and so why should the president be able to come back and say no just ignore that now we're boring everybody but we'll make exceptions and then you go back and try and reduce some what's an age to be and switch the burden of proof your honor a couple of points again i think the temporal lag between when the employer makes that certification and when the visas and that occurs before the visa applicant is then adjudicated by the department of state and so there's going to be certification at that time one and then the application is occurring time two and so and the proclamation of the president mentioned that in normal circumstances the certification has taken account of our current economic situation we had a shock in need march to the labor market and continuing shock and so the certification that had occurred before then wouldn't have taken account the proclamations obviously can take account of colvin and the collapse of the economy because they'll be more americans looking for jobs there'd be no way so a couple of you could have could have a very surgical instruments question but in save jobs usa versus department of homeland security that the plaintiffs there you know stating they had been replaced for their computer jobs by h one b recipients and the government's defense was that they're not competing it was a competitor standing case because the u citizens can't compete with h one b applicants and this court said that you know even in spite of the labor certification process it might not be perfect and that they have put enough at summary judgment to show they were competing but you know so this court said there that at least there was a factual scenario where people u s workers were competing with h one b workers but the president gave the secretary of state authority to you know find these cases that i think you're trying to drill down on where allowing entry would was sitting here going in circles and not understanding the answer of congress hadn't addressed that it has addressed and you're saying the only you're saying your only answer as far as i can tell is that there is a moral leg and that justifies the president essentially overriding the congressional directive with respect to certification i'd like to make two points that i think it sounds like i haven't gotten across in previous in response to this the st is that the supreme court assumed in hawaii that there might be something to of conflicting or overriding i n a but made clear that eleven each of which is also part of the ins allows you to impose restrictions in addition to what already exists and so when the president imposed restrictions of h one b people those were in addition to the process the labor certification process we've been discussing that already i don't know how i enable can be additional restriction right when the original right way  i think it would be very different if there were a provision of the eye and a saying you know we shall permit in the you know people who need rather than a permissible process for applying and being permitted to receive a visa but the i don't read the to say you must allow in you know without other limitation or without eleven f providing the president additional authority i think you get your point i'm happy to discuss non delegation i  because it is actually overriding the the actual provisions that congress put into the statute to protect domestic workers and you say detrimental the interest in the united states will we're saying is congress already addressed that for example in the age to be that what's detrimental to the interest the united states is whether there are unemployed persons who will not take the job they've already addressed it and we're asking well how can the president say no no no no we're just going to of all aliens that would override in the plaintiff's terminology all classifications for which someone would be permits and enter and it also allowed him to to specify classes and specify classes based on piece that classifications is a perfectly logical aspect of that we're going my st thing to the problem you have is you know i hear that and i think instinctively that's what you would assume but the problem you have is you're saying well look we have exceptions and the exceptions do exactly you go back and try and really do what congress has already done and it's not it doesn't make any sense so you're essentially agreeing that you can't in any way support or not in any way you can't really support your assertion that there is an unemployment hit here because you are agreeing we have exceptions that will do exactly what age to be allows which is allow the employer to findings after consulting with the secretary of labor inspector of homeland security that allowing nine immigrants in these categories would not be in the national interest he also gave the authority to the secretary of state to outlying circumstances in which allow an entry would or i hate to use the double negative but would be a national interest or would not not be in the national interest would not be in the national interest because the cause is the point is the impact was there it would cause continued or exacerbate the unemployment problem yes and what we're saying is that appears not to be accurate and or if there is an issue congress already dealt with it and so why do we need the president under to have to say anything on that point the unemployment hit its already been spoken to so on the nd point about the congress having already dealt with it congress also dealt with situations where there might so that would be my my response there and sorry no no go ahead no i was just saying as the exceptions that shows next steps to narrowly tailor the proclamation to those you know to the employment harm ok all right any further questions no thank you all right for come on give you a couple of minutes incorrect finding can't be upheld because it would be a finding it would just be made up right he pointed out there are sort of the recession here is unprecedented but as drivers point out that's just not true recessions happen all the time  so the most recent ones would have been in october this past october and the one before that would have been in april of last year most of both of which were during the pandemic and so the any profit any sort of occasion that would have happened before in the period immediately before the june proclamation would have accounted for the pandemic and certifications that are made in october certainly would have accounted for the pandemic so doesn't make any sense for them to say there's a detriment of the national interest based on based on those  and with respect to for example if one b b uses the requirements there with respect to the prevailing wage rate the must be paid the employer must certify that and they must continue paying that wage rate and continue providing the benefits and so on that sort of five throughout the employment period and so it's not that the certification happens once and it's over he has to have to continue doing that throughout the entire period so that the there's two things he is not not supported by anything in the proclamation there's no justification explanation for what he's done is contrary to the which makes the finding fault but then at the same time that puts it in conflict with what congress has done and congress's judgments about how these programs that's your over right that's your over my door right right you're on i think there are two of them the two i'm awfully related to each other contend i thought the distinction was where if we get beyond the government's st objection to our review ability if we get to do d what is our limit of the ability we don't have to get into this sensitive area of what is an adequate finding how much evidence those president have have before him what does he need for a rational prediction we've gone through a lot of that and then the other one is well look i was already addressed this isn't that an easier path for mccourt a lower court as i suppose their response is yes but that only takes care of part of my appeal with well i would say that congress has taken care of the labor markets iterations with respect to the entire the entire class not just part of it as it's more explicit with stand suppose your president and you have an economic calamity on your hands as a result of a pandemic and you're trying to figure out what to do on a temporary basis and you decide let's just maintain the status quo for sixty or ninety days no no authority to do that well you're out of the status quo would be to continue allowing these programs to operate and for those people to come in and i would point out t deal with the pandemic specifically there are different proclamations that prevent people from areas with high rates of infection and coming in so not dealing with that we're just dealing with the recession aspects of this the status quo is allowing the visa programs to operate and of course you're staying there if you wanted to if you want to respect immigration with respect to the recession i'm not saying he would necessarily have to go back to congress if he could make  finding that supported what he was doing that he my might be able to make that decision i think probably that would still run into the override issue because congress has made this call and is not put in it could have put in triggers or could have put in specific pr president's own comments as to d teen undercut some of the conclusions in the proclamation but they do reference discussions with two other members of the cabinet proclamations do reference though it's not clear what discussions occurred or what the content of them was or what findings were made and those are in the administrate of record and they've not otherwise been produced trip or in front of the courts here i think the government conceded in the national association of manufacturers case if you look at opinion the government conceded that the entire scope of the findings was within the proclamations themselves so it's not clear that they're even by what the proclamations as not clear that that actually occurred or that there was anything substantive there and certainly it's not in front of the court and it is hard to use that as a ground to support