honor this case involves challenges to an executive order on the state department's implementing funding notice the order which can be found at j a n forty seven dollars which directs the secretary of state to develop a process by which state and local government consent to resettlement of refugees is taken into account to the maximum extent consistent with law the notice which can be found at j a fifty one dollars implements that directive by asking resettlement agencies to gather consensus for jurisdictions where they propose to resettle refugees nothing in the order or the notice of supplants the state department's ultimate discretion to determine where in the country refugees shall be resettled consequently th preliminary injunction because contrary to the district courts conclusion the consent requirement described in the executive order and implemented by the founding notice does not give states or localities of veto over refugee resettlement in their borders plaintiff focus most of their arguments on the notice but i'd like to start with the executive order consistent with the refugee act the executive order expresses the federal government's policy that the views of state and local governments are an important factor  think i director honors attention to j forty seven under section one purpose which describes how some states and localities have viewed the existing consultation requirement that exists in section one thousand five hundred and twenty two of the refugee act but any two in the title is consent of states and localities to the placement of refugees so i just hard to understand is your argument really that this executive order is not about getting consent before there is resettlement or your honor we think absolutely the local rules and many courts local rules well choir attorney is to seek the consent of opposing counsel before they file particular motions or request particular relief from the court and of course that doesn't set up some type of veto over the court's ultimate decision on that motion and likewise here i think that's exactly what's going on with this consent requirement it's not a you know yes refugees get to be resettled here if we consent or no they can't be put here if we don't give consent it's instead just a means of clearly communicating to state and local governments views now of course in consultation you know conversations are broader that i'm here yes no on refugee read resettlement but as far as this requirement goes it's not setting up a hard and fast veto over the federal ultimate placement decision and so to go back to judge harris's question for a moment you know under section one the purpose of this executive order makes clear that there's a need for quote a more clearly defined role for state and local governments and early ok point to the process and you want let me ask you a question something that can really bothering me about this and i guess it may be my background in the state and local government law but the executive order los is nothing more than a political subdivision of the state the locality can with the consent and get this order how do you reconcile that the it  seems to me the chaotic construct you have here where you're putting the localities and the states as with the state constitution we are i think it's important to sort of recognize the practicalities on the ground here and i think we only have perhaps a chaotic system if this court now agrees with the district court that a mere consent or non consent sets up this sort of veto power no refugees get to go and that's not how this operates and so if a locality or to submit a letter to the state department saying you know we don't think we can accommodate refugees this year and so we can't give our consent but the state itself broadly sets we welcome refugees in any of our locations create a chaotic situation in the implementation well in your honor and i agree with you that states states and localities have to have sort of the respect of government but at the end of the day when a locality provides its consent the locality is not providing some type of legal authorization for refugees to go there it's merely a way to communicate to the state department that they are willing or unwilling to accept refugees and then it's up to the state department in its discretion to consider that information considered with all the other factors and if so where do you get that absolutely your honor and this sort of gets back to a point that i would like to make your earlier question which is looking at section to be on j a forty eight  that section expressly acknowledges that the state department can resettle refugees in non consenting to say only you can make a finding that failing to leave bet on the refugees within a particular locality would be inconsistent with the law can you tell me what that even means let me just give you an example say outlander doesn't give their consent even though georgia did so now we have this chaotic situation under the statute you look at factors like well does atlant the resources is there too much out migration what would it mean to say that failing to resettle a refugee in atlanta would somehow be inconsistent with that with those desultory criteria i does that's like a double negative that i don't understand certainly so i think in that example your honor you know if that's going to says we can't accommodate refugees this year and the secretary of state takes that information and looks also at the other factors your honor highlighted which by the way you know in person they're not withstanding the lack of consent so long as that would be consistent with those factors it has to be someone has to be able to say if i posted anywhere but it lands that would be inconsistent with the statutory scheme how will that ever be the case i just literally don't understand why how this exception could ever be satisfied they would it would have to be right that there was literally nowhere else in the country where you could put this refugee  aside the exception as it is written to show that it would be consistent with the statute to put a refugee in atlanta and it has to be inconsistent with the statute not to put him in atlanta and please explain to me th scenario where that would be true well that's right your honor and i think again you know this is a question by the way that occurs much later down the line in the process of can you just i am just a genuine question is there an area that you guys have in mind that would trigger this exception is your honor i think if you know for example if a particular refugee has a very strong community you know family members or otherwise that are located in atlanta and that atlanta has plenty of resources to care for that refugee and did put them in atlanta but that's not what the exemptions the another factor that's listed in the refugee act in that subduction is secondary migration which of course could occur if the refugee is moving from one place where they have no family to atlanta where they do have family and so you know i i realize that there might be questions on the ground about once the secretary of state gets all of this information what the secretary does with it but as far as what the order requires the order just requires  g there is absolutely no mechanism that if an agency wants to override the consent or excuse me the consented to how do they apply there's absolutely nothing can that directs the resettlement agencies in how to go about it it seems to me that this is like a one off this is like somebody whose idea of something good to do without any thought as to how it's going to be implemented and how can it be consistent with the refugee act when there is no provision for how the saving squads can be implemented if in fact it is a big call sure so two responses to that your honor one i think you're correct to sort of separate the executive order from the notice on this part so when we think about that savings clause in the order and thinking about how the notice implemented i think it's important to keep those separate but nd you know that you're correct also that the notice does not specifically say that when a state or locality a person uses to give consent and that there you know that these were some agencies can't apply and in fact i can tell you on behalf of the state department that they will not reject application merely because a state or merely because of an agency has applied for a location that has refused to give consent there's nothing in the notice that says they will reject that at that application and in fact practically speaking they want and so well the no isn't anything addresses the the what the agency must do or applying for so called savings because really what is the agency have to do with the secretary can make a finding they do is they apply consistent with that notice with all their information and proposals locations and all and i will point out that jay fifty five the notice says very clearly that the state department will evaluate quote all applications you know i j sixty two it says you know after discussing the fact that consent can be provided on a rolling basis it says to resettlement agencies to document consensus for their own availability and that no placement will occur in places lacking the documentation but y i i don't want to charge you with what's going on in other cases but you're sort of catching me on a bad day because i've had a long series of cases now where the government comes into court and tries to pretend that these executive orders don't mean anything they're just we're just spinning our wheels just making noise and don't worry none of this actually means what it seems to mean and i sort of feel like eyes are you know defend this executive order which i understand has a saving clause consistent with law and an exception that has not been operationalized by the agency and on its face doesn't seem to mean anything but the point of it is to require consent and the agency is clear that the it will consider the absence of consent to the fullest extent permitted by law so i feel like having the whole argument about whether  an executive order that did something different and said we just want to like really confirm that everyone's having good consultations and then we'll just throw that into the mix with everything else i mean we can talk all day about whether that executive order would be legal or not but i don't i feel like we're not talking about the actual executive order we haven't well so just a couple responses that you aren't number one that you know to the extent the court thinks that the notice hasn't you know implemented that savings clause of the order appropriately that might be a basis to enjoying the notice but not the order and just going back to the order that you know it just simply does not set up the veto that this record thought it did and i want to remind the court that that is really what this case is about it's not about ultimately what the state department does with the funding that is something that plane just could challenge if their funding got denied through a subsequent action under the e p a the question here is merely gathering consensus merely asking states and localities that they say yes or no is that a veto over the federal resettlement decisions and it doesn't it's not set up like that and in practice it doesn't operate like that so i agree the executive order does something it does make clear that gathering those consensus or taking those views is serious state department has not implemented their requirements by notice they've just continued to operate under previous cooperation agreements with the agency guys down the list and that's not what i'm trying to think about the practical applications for this and how it's going to play out and there's that will quite arment that the executives of the locality consent ok so let's look let's take a classic executive situation in paris texas county virginia where the county executive ok would say he consents but the board of supervisors of fairfax county is the body that appoint the county executive and they override his consent they say no you can't consent you're subject to you know to service at our pleasure and we're dismissing you because you're exceeding your authority honor just in that specific circumstance it's hard to offer a specific view but i would point the court to guidance that the agency provided after issuing the notice that makes clear to the resettlement agencies that to the extent there is confusion over who can give consent or what will proper locality is not talking about when the localities legislative body overrules the executive of the locality who has appointed the executive in the st place that so impractical when you think about operating on the ground well your honor i'm going to shout that certainly and i would think i would go back to the point that this is not something that sets up you know a hard and fast rule on where refugees can go to the extent that there is confusion or to the extent that consent cannot be provided because there's a lack of authority i mean this is just one piece of the puzzle it doesn't destroy the other consultation conversations that happen under the refugee act  and the other thing that i would say here is that you know that that real question about what happens on the ground really says very little about what the district court held with respect to this requirement which is that just asking for consent to create a veto as long as this court says that it doesn't that that is right and the executive order leaves it to the agency to decide how these consents will be obtained if we will have to get the consent whether that will be the government itself the better government reaching out for consensus or not so is there some place in the record that explains why the agency decided that it would make that burden on the resettling be drawn i think we there is a declaration in the record that the district court did not strike and  actually the ones proposing locations so they know where they hope refugees can be placed and number two as even plentiful as knowledge they have extensive community contacts at the state department really doesn't have in those local areas and so they have the contacts already to be talks about the intent of congress in providing this is that social service one should be focused on employment related services english is the nd language case management services they're not concentrate the money on employment related services inglis's with nd language and things that have nothing to do with consent your honor so i think that the funding that they that these agencies get through these grant process  which actually doesn't vision exactly a process where representative quota of local affiliates of volunteer agencies meet regularly not less often than quarterly with representatives of state and local governments so it is  we have these conversations and consultation conversations happening between these resettlement agencies states and localities where they discuss the plan for resettlement and so it's not inconsistent with the refugee act if the refugee act a silent regarding consent so i don't think there's anything special about having a consent requirement happen in those consultations and that's something i think the act and visions it's just that this consent requirement provides a very clear mechanism for those used to be shared in writing a very early stage in the maybe getting at your question is that and then in the notice of funding at j a sixty two the state department says that p r m n o r r quote seek strong environments to support resettlement speeding ticket ration and regard state and local consent to refugee resettlement activity as important evidence of such strength so to the extent the court thinks that there is not enough explanation for why resettlement agencies were chosen to initiate those contacts you know again that might be a grounds to enjoin that notice certainly not a ground to enjoin the further irreparable injury and to restore the status quo as it has existed for some forty years while the rest of this case plays out just to pick up on a few of the questions directed to ms mandel i want to start with this consultation and consent consultation which is why the statute does use is of course not consultation is a conversation it's a dialogue it's not a permission slip if congress wanted to require consent or to make consent are relevant to generation in the statutory scheme that would have said so but it didn't and it didn't for good reason congress did of course recognize that states can be valuable partners in the effective or settlement of refugees but they're even clear that they can't stand in the way of refugee resettlement and that their preferences as to refugees being resettled within their borders is just not a relevant consideration under the statute going in and and we know i also wanted to to touch on the fact that we know right now that just as the executive order directs and thirteen he explains in no uncertain terms that consent is required for there is one agencies to be able to resettle refugees in any particular jurisdiction and january st when the applications to the funding orders were to but the consent hasn't been granted yet they can still submit a proposal so long as they receive consent before the beginning of the funding period which was to begin on june st she says as well that if in the last sentence and paragraph eleven he states that p r m plans to maintain flexibility a actually consent is withdrawn in the middle of the year they will parent we adjust the placement plans so we on that basis is demonstrating quite plainly that the rule of the consent is playing and this process now i understand why this window on appeal wants to want to try to put some distance between the executive order and the funding notice and to suggest that perhaps the funding notice was not in accordance with the executive order but that's  brief they argue on page twenty one that the agency is this merely directly implementing the requirements of the executive order on their reply on page a they say that the agency represented the agency is simply carrying out the un and begin with the import of the directives of the president and so yes and we we don't disagree we have never argued we never suggested that the funding notices in any way inconsistent with the executive order to the contrary we believe that as the government's reply on page nine states considered the role that states and localities could play in this resettlement program and they expressed we decided not to give them to us the already that the executive order attempts to do so for example you can see this all over the statutory scheme for example when a state decides that it wants to withdraw entirely from the refugee resettlement program wants nothing to do with the administration or provision of services to refugees in their  borders there's a congressional scrutiny a statutory provision that authorizes the federal agencies to designate a private entity sensually step in the shoes of the states such that refugee resettlement continues uninterrupted  in that within that state and we saw this you know most recently in texas and took in two thousand and fifteen sued to block the resettlement of syrian muslim refugees within its borders you know that case was dismissed in june of and sixteen and in response a couple months later governor abbott and out that he would withdraw a texas woman from the refugee resettlement program and so the federal government arranged for another entity to step in and refugees have continued to be governor mike pence order to indiana state official is that they deny services to refugees from syria and i you know the executive order states and section one that d that some states and localities desire a more defined role but the fact of the matter is that congress decided to give them precisely the role they have this isn't a design flaw this is this is what congress intended and the and well and there's wanted to ask you in order to prevail in order for you to curtail today do we have to agree with the district court that this is a veto power that the executive board or grant state the name and localities or is there an alternative to holding the district court and if so what is it you know your honor you do not have to agree with that with that conclusion to affirm because there are any number of other it's there are a number of conflicts with the statutory scheme that don't depend on that conclusion one for example is that the congress stated explicitly in the statute that it's  provisions are to be uniform and comprehensive and executive order section one is plain that it is not enforcing the statutory scheme instead it says that some states and localities think that the statu scheme is and st consultations game is insufficient that they don't have a sufficient defined role and so he's going to order this sort of additional consent requirement but congress said that what it was doing was comprehensive and there's no dispute either even the government does not dispute that in fact it's part of their position that you know even if a particular state doesn't consent that at a minimum it will that lack of consent will be taken into is he wants the federal agencies to find the best match across the country of available resources and the needs of refugees and that's and it made and it made explicit the factors that each and use are to consider and make sure that the states and localities have the opportunity to write in play but ultimately the decision is what's in the best interests of refugees i think as well the  executive orders the other stated rationale that states and localities have are in the best position to know their own you know the capacity they have for refugee resettlement that also conflicts with the but the statutory across the country so that they can create this overall national plan and have an equitable distribution of refugees around the country and more and portly ensure that where refugees are placed they are most likely to strive to integrate into their to their new home and it says i think the other part of this to your honor that even if you don't agree that the consent requirement is an absolute veto i also undermines the consultation scheme that congress and vision and the as i mentioned before that consultation is not consent and and really this is if you were to if you were to construe consultation to mean consent that would that would have enormous consequences given how common a consultation requirement is in the law and environmental statutes and in many other contexts and the case was clear in that regard that that consultation does not mean consent you don't have to get permission with someone who you're merely required to consult with or see the other i also want to touch briefly on judge  point about how the executive order disrupts the state local balance that congress struck and i agree completely it creates a number of practical difficulties as someone who's sitting in atlanta right now i'll add further complications to the hypothetical you know there are twenty nine counties in the atlanta metro area they don't have executives we don't have county executives in georgia there's a county manager that person's not elected that person is merely hired and and and so there are lots of implementation issues it's plain that no one thought through how this could actually work on the ground argument is that it was merely implementing the executive order there were a number of the discretionary decisions that it made second of water require them to take to devise a process to get the consent of the locality but it doesn't say what kind of locality and agency it currently decided that it should be counties but they've never explained even even on appeal if you have to explain why they chose counties and stead of listed cities and mayors as entities from which consent could be changed but then they mended it about a week later to remove that so they plainly considered it but they've never explained why they chose counties not explain most of that is the relevant decisions even for example the unaccompanied refugees minor program which the declaration mentions on in paragraph eight you know they issued the funding notice that state and local consensus is already granted within the u r and program and so it doesn't make any sense to require this additional consent in the feedback declaration although it claims to geographic based and junction because it doesn't really make sense in this context because of the nine resettlement agency their networks overlap geographically and city we didn't wasn't based on geography it was mostly it was based on the fact that our clients need that full injunction and order to be protected from an executive order and the records the record is quite strong on th ca but this the biggest reason why our clients need needed has to do a secondary migration and the fact that in some places the networks overlap and in some places they d if the injunction is limited to just our clients that would mean that catholic charities cannot reach that are refugees and alabama and so if there is a refugee who has a family member and who's already in alabama or preexisting social pie that would like ordinarily result in that refugee being resettled in alabama and stead they're going to get resettled somewhere else and then you know shortly after they arrive they will pick up and move to alabama because that's because that's where their network is that's where their family is and the record is i'm disputing that that phenomenon which is known as secondary migration hurts everyone it would hurt our clients even though they initially resettled the refugee waste all of their the investments in getting an apartment for them and helping them access other services and and so regardless of you know the the arguments about whether or not it was appropriate to extending injunction to non parties i mean the fact of the matter is our clients need it need an injunction of the executive order and that finding others and their entire we didn't think it was possible to have an injunction that only with only one but it's our clients including because this is in this context where you have a funding notice where the agency is the federal agencies are going to decide which of the practically administer a you know this program with an injunction that's only that's limited to these three plaintiffs given geographical overlap and you know the fact that you're supposed to be evaluating applications from all of and you know just rested on on their their arguments and just sort of principle the principle that that a nationwide injunction is per se improper i think the discussion of that those with all yes your honor thank you i'd like to make just a few points in rebuttal i'd like to start with judge keenan's question of opposing counsel where she asks if the court finds that the order in the notice don't create a veto is there anything left that could support the injunction and just addressing those three points that mr cox made in response in the st one is that he said that resettlement provisions under this act are supposed to be uniform and comprehensive but this is a uniform process every state and localities centering on consent is taken into account the fact that may lead us down the line to see more refugees going to one area or another may create and nonuniform placement of refugees but that is always the case some states always have more refugees and others that's not a question of whether the policies themselves are uniform or comprehensive and number two he said that we have to look at one thousand five hundred and twenty two dollars a three which is the federal requirement to ascertain capacities and that that's not really directed to refugee agencies but of course the st response to that is that that statutory section doesn't foreclose resettlement agencies from being involved in this process gathering consents and in any event that is only the argument that's directed to the notice it's not an argument for enjoying the executive order and then rd he pointed out that that this work wireman would just destroy the consultation process altogether but we would resist the notion that as mr cox characterizes it that this is some sort of permission requirement that again overrides the secretary's decision making because once the court recognizes that this is not a veto it's not as if once the state says no refugees can't go then it just becomes yet another factor just like the consultation process that already occurred that the state department takes into consents and then we will just consider that along with all of the other statutory factors it's just one more additional factor and that's all and then there is what i think when i say what let me just say what i see when i look at the executive imagine hypothetically it doesn't say that you will now look at the absence of consent as just one among every other factor equally weighted it says that to the maximum extent possible will not be several people a consent subject to the limited exception undefined in the funding notice not operationalized anywhere and which on its face says the exception will apply only when failing to resettle a refugee would be inconsistent with wall your arguing for number two no no that's not what the order said that says that you'll just consider it along with all other factors if i think hypothetically it's actually the rd one i described there is the limited exception that on its face applies only when you can show that not relocating someone to a particular place would be inconsistent with the law the law requires what happened in your view when every every day and locality withholds consent why doesn't that create a problem undermining the act purpose of resettling refugees nobody will take them i mean your whole argument seems to assume that somebody will take them what nobody does where we left so your honor i mean again we would resist this notion that when a state says no that refugees can't be placed there it's really just communicating their their recommendation or their preference in a clear manner and we can talk about the real numbers on the ground here because in fact you know in a short while that this notice and executive order up and running well your honor and you know again even if every state and locality in the country said we're not willing to accept refugees that refugee resettlement process continues under the refugee act because of course not taking any refugees when they have been approved and when there are places with you know employment opportunities and housing that would be inconsistent with the refugee act and that is exactly what the executive order says failing to resettle refugees in that jurisdiction would be inconsistent with the act  or if it's not if it's inconsistent with those other factors that are mentioned in the act itself case then of course you know that's going to affect the weighing of that factor but again it's not a veto problem it's just a relative weight of these consents or berman i guess i i'm not sure if i understand the courts question but i think the answer to your question your honor is just this savings clause in this order makes clear that the secretary's decision making process is preserved under the act ok go case they if placing a refugee in a particular area that hasn't consented would accord with the act and then the consent you know probably played very little role in the process i don't know if it's something that we don't revise the requirement it's just it's not a veto so it's not something that really gets know if i'm right as well it seems your reasoning and i guess i should let you know what i'm referring to here the city and county of san francisco ok you know when the court by rescuing the constitutionality of the measure would override the clear and specific blanker just seems to me that there's just been internal conflict within your position that is section to be here really just says that you know there's got to be a mechanism to gather consensus and not consensus and that it says should it doesn't say shall it so should these refugees should not be resettled in those localities that don't consent unless failing to do so would be inconsistent with the law and that i don't think creates the sort of conflict that the san francisco case is really looking at that is something that speaks to a very real consideration by the secretary of state that once it has these defending an executive order that said they should not be we located there in the last the secretary considering all the factors in the statute thought that that was best to relocate them there but that is so not what this executive order says and people dressed the things really carefully they did not say unless it would be consistent with the statute to relocate them over the jurisdictions non consent and i still except where i actually did sort of get to an answer toward the end that it might be inconsistent with why not to resettle a particular refugee in a particular place if everybody had said no and so there was nowhere else to put them but short of that i mean they  you know people choose the language and executive orders with great care and they did not write it the way you were defending it and so on just i just keep getting caught in this you know what did it were written the way you are you're defending it because then  relative weight of this factor among the others it's not a question of whether just having the consent is a veto right and that's really what's going on here because if it's just gathering the consent were all you needed there would be no reason to include that savings provision in the executive order at all because then the executive order would have to stand for the proposition that once you have to consent that all you get really what this executive order does interaction to be is to say that you know after you get these consents and if you're going to have to be or you decide you're not going to spend as refugees or the locality that didn't then you have to make sure that i'm not sending then to that place would not be inconsistent with the bastards and i just don't see there's sort of a problem on the face of the order and that is my concern and so your honor the the only thing that i was going to say just briefly before that was that you know the order clearly does direct the secretary to look at those factors references the factors specifically  of course the secretary has to look at them now when when the language that is failing to resettle refugees within that state or locality would be inconsistent with those factors it plainly contemplates a process where the secretary considers those factors and then thinks about whether or not putting the refugee in that location is inconsistent with those factors and that is enough to defeat this idea that it is a veto because that shows that the secretary of state retains this just question to determine whether it's inconsistent and there may well be a number of reasons why it could be inconsistent thinking about secondary migration the tallest exact or and including the language here subsection c three big roman numeral three the likelihood of refugees placed in the area becoming self sufficient this is a holistic likelihood that they will be self sufficient and secretary would buy at least what i'm looking at atlanta and i think they would likely be self sufficient in atlanta but that doesn't mean that it would be inconsistent with that factor to you settle down and say you work if they would also be self sufficient in new york and so that's why i'm having but i don't see how looking at a factor like that you could ever find it would be just because it would work in atlanta doesn't mean it would be inconsistent with that factor to put them somewhere else and you wonder on the grounds that it's work that it so that that might be the case in you know certain circumstances but of course there's a very you know real likelihood on the other end that it's not i mean likelihood is not an on off switch likelihood already implies some type of degree of likelihood and so you know again if atlanta is a place where the refugee has you know numerous contacts there's plenty of employment opportunities you know it may be the case that that really n likelihood of success you know much greater and so it would be inconsistent and that circumstance to traps play some you know somewhere else and i would say by the way your honor but you know there have been times that the state department has been told by states and localities that they just really have grave concerns about resettlement in a particular year and that they don't think that they can support it and the state department has never only on that basis determined that placement should or shouldn't occur in that location so this is something that the state of  equipped to consider and so when we're thinking about what is or isn't inconsistent i mean that just really gets into the secretary of state's discretion it's really not a question of whether just asking for those consents automatically creates a veto because if there's any chance that it doesn't