right the st case will hear is suck i rap versus trump and we'll hear mr basis of a facially will gentleman on a vow to reason the course will neither look behind the exercise of that discretion nor test it by balancing its just occasion against the asserted constitutional interest of u s citizens and then lastly if they had it again in commenting on mandela when it comes to collecting evidence and drawing inferences on questions of national security a lack of confidence on the part of the courts is market then the court goes on to say when you ask them to do that well that's what the court says we thought that it was an alternative rationale that the court could decide under and it was not i think clear at that point exactly what the distinction between rational basis and review would be sufficient to satisfy and i doubt you could hold that but if you were so do you i mean do you read the supreme court's discussion that i was referring to him and why to be t alternative holdings one sided mandela and one based on a rational basis review yeah i don't quite read it that way i read the whole thing as being a rational basis review it but strongly strongly suggesting that well they they strongly suggested it's simply because of the posture that you presented to the court right i mean had you help tight you don't quite know where they would have gone but you basically said open the door go it were welcome open the door they said because the government invited t and then we were beyond mandela and they did do it on the rational basis test but i think that was a little bit not a little bit it was overtly based on your posture or right i mean i think you could decide  need to reach at all i think if you do let me ask that if we rejected your just that a cli if we were injected your rational basis argument in that scenario is it your view we would have to address whether mendell controls yes ok so your your argument is they don't even when under a rational basis therefore you don't have to answer the perhaps harder question harder legal question of the full scope of  that's what you're asking us to do and that's what you're taking a white yes or no we're just presenting a serious alternative arguments i would say the st is rational basis as applied in hawaii and then if you reject that with our arguments under gal and then we would alternative our grounds would be happy to have a victory i know i want to but that you know the supreme court who i did say we don't need to reach the man doubtless you because you think it survives rational basis review quite clearly and i think this court would treat feel very comfortable doing exactly the same this is a about is on point to cases you could get as almost a reason to cases you could get from the supreme court of the united states and i think it's the proper course i would think is the just follow the reasoning and same claims that the plaintiffs make here is that a necessary part of your argument i mean so imagine the hypothetical where the supreme court for one reason or another was not presented with any presidential tweets or who are candidate twe if you would with that change the analysis for her for us all rational basis review i don't think so but i think it makes the outcome of the case even clearer because there's the st question and then understanding why it's clearer but why don't you think that would change the rational basis question well because the question on a rational basis review is not whether the plaintiffs have something plausible to attack the policy but whether there's something plausible supporting review excludes subjective motives from consideration i mean beach explained that is when courts statement and beach under the rational basis of said it is entirely irrelevant for the constitutional purposes whether the complete reason for the challenge distinction actually motivated the legislature that's entirely qur'an the so the idea of a rational basis look face of the statute not the reasons given by the president  would be seems to me it would be your program to answer richard's question whether it makes a difference if we were looking at the issue through a different president who not prepared and right answer should be i would guess it should make any difference right that's right and i think you could have think of three or four different reasons why it doesn't matter a rational basis reviewing including the one that you just get that is just a subjective motivations to start another reason i understand and not take that point there's something new here that distinguishes it from hawaii and i don't think that's the case but even if you were to grant that the supreme court gave nothing reasons why the law was rational  my contention would be even if they weren't repeating the same arguments if they're just trying to take pot shots here and there that's not the standard under rational basis review a rational basis you only ask whether there's a plausible explanation and then they want to say for example well if we had a wrapper we could you know attack the evidence in the empirical data and show it's not a very good solution will be communication says you don't need it you don't need a which is the senior and so i don't think it would change the analysis but i think it makes it a lot easier to say there's nothing new here from for my point why would you ever reach a different conclusion in the spring or the just two years ago when the don't think they're reaching so far so say it or close it i think they're saying that it addressed the issues and the issues here are the same and so we should be guided by them the important part is that is that different merits well i don't that's my point i don't think they argued that it might i think they what they argued argued is that the court conducted them analysis under the rational basis under mandela on a rational basis and basically injunction standard the way the court looked at the issue is to determine whether the white plaintiffs had proven without the benefit of discovery that they were likely to succeed on the merits of the claim by doing that by weighing the evidence the court was able to draw whatever court did conduct a rational basis analysis and did make determinations under that thing and should my question is should we ignore all the reasons that they give for that analysis and our we are conducting that analysis in other words if we have to conduct a rational basis nahla since and i gather you grew up with that standard right then all we entitled to look at straw man i don't think that's their argument i think their argument is is that's irrelevant under the rational review basis and the when you look at the face of the statute you look for any rational basis for that regardless of whether that was the motivating cases there is certainly the only thing that white plaintiffs had were the fact that this room report that afforded to cover two hundred countries was seven thousand pages long the dissent in the supreme court said it was willing to draw the inference that this wasn't a thorough review what the majority said is that inference is not warranted because we don't know the contents of the of their report and we don't know the extent of the decisional material our position is on a motion to dismiss we are entitle to every reasonable inference  inference that just sort of more and justice ginsburg are willing to drop is sufficiently reasonable to give us the benefit of that now and we can see what the majority said what changed their mind they wanted to sit they said if you want to prove that this wasn't a serious national response specifically to the dissent that the page count was not a target event and it is we have to accept that that it is reasonable for the majority not to be willing to draw any inference from the page count the question on a motion to dismiss that was the majority not the dissent right bent but on a preliminary injunction proceeding the supreme court was able to draw whatever inference if thought was better supported by the record but what we're saying is on a motion to dismiss the court the district court doesn't decide which inference is more persuasive it only looks to see whether the inference the we asked the court to drop is reasonable if it is it must be drawn in our favor in our position it on a motion to dismiss we think that we need to be credited with our factual allegations that this was not if there were a world wide review and you know the waiver is that all those issues were addressed expressed by the court i'm looking here where they go down the proclamation and they look at face of it and then they get i am number seven reasons why you don't move past and basically they not down all sense arguments and basically said you look at the base of the document plaintiffs are you there and what we are you hear is the fact that there is that's true that's ultimately but the court examined the document itself and determine what's the consequence of reviewing the documents and the consequence was you don't look at the nature of the conduct of the investigation you don't look at this you look at the base of the document to see if there was a legitimate purpose revealed on it and then you go down and they include a rd one was just because they conducted a rational basis review on the merits because the question on a preliminary injunction is likelihood of success on the merits you should be conducting analysis your twelve b six nothing in the supreme court's decision document is rationally supported and then they said survive a rational basis that's the only conclusion they're making at this point in the dock in the opinion ower is one component of their ultimate holding is to do you agree that that's what you have to show in other words that the only plausible basis right or i guess i'm more encouraged to plausible it's plausible based on your complaint that the only in connection with the alleged robbery purpose then absurdly but what you say is that i mean this is i'm just reading from your brief right so you say the proclamation fails because animists is the quote only possible explanation for it and what i'm trying to understand just as a framework understand the ultimate questions a different way but the framework you agree that that's what you have to satisfy whether it is plausible that animists is the only plausible explanation for the proclamation i'm quoting from very brief i'm not yeah i don't i don't think this is a difficult or ok you think that's right except that for a minute i'm not trying to get concede something you want to but and then the question that pollution from that i believe is when the supreme court has sad there are legitimate explanation it's maybe there are legitimate ones too but they're legitimate explanation springboards told us that might help me understand how you were animists are a few months undermining the supreme court's indication that there are proclamation if the national security rationality is independent from the anti religious hostility that comes from rome or rome or says the same thing it says that the legitimate explanation has to be independent so our view disfavored class i mean how do you square that with the language the printer said the the subject it reasons that an action was taken aren't what's at issue the question is whether there is a legitimate rationale even after the fact what i mean legitimate justification even ex post what where and what each communications said is that you would accept and consider a post hoc justification so even if the national security justification wasn't came up with after the fact you would still consider it that's not a reason to reject it but what roemer and anyone who why says that we wouldn't hold we wouldn't hold it on that ground if we looked at the we if we looked at the document a determined that the purpose was that here in hawaii it's impossible to discern in rome or it was impossible to reduce our relationship to a legitimate state interest right so impossible to discern any legitimate state interest in rome are fine but the supreme court is now already told us in contrast to that there is the ability to discern a legitimate governmental interest with respect to the population on the record before which is conducted without absolute and i get your point there we're not bound by at but you know on the list of persuasive authorities like it's pretty high maybe but there's also i mean to go back to that university of texas could grasp the difference between we're not bound by it but they've already decided the issues but it's hard for me to see the daylight and the t v what the reason in university of texas was a commission that a court of the supreme court says you don't treat preliminary injunction rulings as binding a trial on the merits because you can have discovery you can develop fact that it's an and that makes a lot of sense in cases where you're looking ultimately like a preponderance question right but the difficulty you've got is that you've got that scenario but you're in a rational basis world right and because you're a rational basis world the burra set really low for the government not right wrong or indifferent and so i get your point is in a standard kids involving you know some factual dispute it's not binding on the on the backyard and i'm a sense technically binding here but given the very low bar that is that animists must be the only plausible explanation is hard to see how we sort of ignore hawaii to sort of give your your allegations credit it's not going to ignore it it's just recognition of the fact the rational basis review does depend on the record the supreme court has said a lot valid under one set of facts to be invalid under another set of facts i think  judging by them and say joseph still has a good job of reconciling what the supreme court said beach munitions versus the ultimate the ability of a plaintiff to prove the case and what he said is there is no evidence cherry burden on the government to put forth evidence but even a seemingly plausible rationale can be negated by proof a deuced by the plaintiff's planes can put forward evidence to call into question and to negate the government's rationale even in beach communications when it says you don't need evidence it says you need rational speculation it has to be reasonable assumptions how do you know he does in fact questions rather can introduce evidence to negate the rationality of any speculation they have itself there is any rational basis then it has to be upheld and we don't take that into account on the beach then i i would revert if i can answer god course of course supreme court didn't limit itself to the face of that argument we think it  beyond the evidence of the record well it's looking at the same thing we're looking at i mean you pled the documents you attach the proclamation and you attach the various documents ok why don't we hear from  legitimate rationale the government reasons that are given but they should have the opportunity to put forward evidence of animists that they contend will overwhelm those justification and indicate that their pretextual the national security interest was just protection or because of you know a sort of weighting of facts right just like we think about in an employment case where we have  are evidence of animists he claims post discovery could negate the government interests found in hawaii amended they ought to have the opportunity to do that right i'd it seems to me if you give them animists as a motivating factor then you get to your argument they then have to show that was the exclusive recent right and just just just to address that being all of conning from these countries if you have the waiver program and none of those things are really those things stand on the face of the proclamation would it regardless of what they want to show in discovery and with big want to say is look this is vastly over and that's where we are now they want to say this is why we don't think this is a very persuasive policy we don't think the evidence is good and that fails under rational basis review and because it can't possibly meet a high standard even if they could show all that it can't meet the high standard for a rational basis view and because it doesn't persuasively distinguish between entirely normal conduct and their claim of our lawful conduct it doesn't meet the it wall and that's one of the standard which is you have to distinguish between