well her argument today a seventy nine sixty five trump president the donald trump president united states versus hawaii to francisco mr chief justice and may it please the court after a worldwide multi agency review the president's acting homeland security secretary recommended that he adopt entry restrictions on countries that failed to provide the minimum baseline of information needed to vent their nationals the proclamation adopt right recommendations it omits the vast majority of the world including the vast majority of the muslim world because they met the baseline it now applies to only seven countries that fall below that bas line or had other problems and it exerts diplomatic pressure on those countries to provide the 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 eleven eighty two f and has been successful which is why the country of chad was recently dropped from the list but you mention eleven eighty  thing the president and congress is the one responsible for making the laws about immigration and it has been suggested in one of the area here however i think that you don't need to explore those outer limits because the proclamations meant to help implement the ai in a by making sure that we have the minimum level of information needed to determine if only ns are admissible under the in terms of a time limit i think that's simply inconsistent with the text of the statute and inconsistent with virtually every eleven eighty two f proclamation ever issued here we have the five sorry mr general i thought the congress had looked at the situation and created a statutory system that addressed the very concern the president is expressing congress said you could have visa waivers if you if you can meet the three criteria that the special committee of the president looked at and if you don't you have to have a very heightened extreme vetting process and it created dating process and suggested its parameters more importantly it took terrorists countries and designated which ones supported terrorism and added another layer of review and said if you're a national from one of those countries or you have visited one of those countries in the recent past you also have to get the permission of the attorney general and the secretary of state two to affirm that you are not a danger to the u s but what i see the president doing here is saying i am going to add more the limits that congress set right and to what congress said was enough where does the president get the authority to do more and then congress has already decided his attic well there are there's a lot packed in your question your honor and so let me try to unpack it a little bit i think the basic answer is that eleven eighty two f gives the president the authority to impose restrictions in benefit to our closest allies and some of the safest countries in the world neither the visa waiver program nor any of the other statutes that they cite addresses whether we get the minimum level of information needed to determine the admiss ibility of individuals coming in from some of the riskiest countries in the world and eleven eighty two f then does give the president the authority to supplement that vetting system after all the whole vetting system is essentially determined by the executive branch it's up to the executive branch to set it up it's up to the executive branch to maintain it and it's up to the executive branch to constantly improve it and here you have something that really is at the core of eleven eighty two f since its main purpose is to help implement the i a e a by making sure we have that minimum baseline of information and if you look at the proclamation what we're talking about is very basic pieces of information not the ideal but the minimum are they reporting terrorism history information or the reporting criminal history do they cooperate with us on a real time basis and i could give you an example to help illustrate how this works suppose that jane doe shows up at our border with a valid visa but after that diesel was issued pursuant to the entire process your honor that you described her home country learns that she is associated with a terrorist organization but doesn't tell us when she shows up at the border we cannot make an intelligent to terminate as to whether or not she's admissible under the i and that's what this proclamation really does go to making sure we have that minimum baseline of information needed to determine admissibility and so the proclamation really does reflect a it is different than past proclamations but it is typical in the sense identify harmful conduct that a foreign government is engaging in and then it imposes sanctions in order to pressure that government to change that's what president carter did was spec to iran what president reagan did with respect to cuba here the harmful conduct is the failure to provide us with that minimum baseline of information you represent that no other country that that fails all three of the criteria was excluded from this list what your honor what i can represent is that the the analysis was holistic it wasn't if you failed any one of the others it was if your overall score was sufficient you know so i can represent that all of the countries listed in the proclamation are the same countries that fell below the baseline with the exception of somalia which the proclamation makes quite clear and the exception of iraq which did fall believe the below the baseline but was not subjected to sanctions and i think that this reflects the tailored nature of this proclamation and the fact that it was meant to impose tailored pressure on these countries while also taking into account other types of national security and foreign policy considerations to try to move those countries across the line into acceptability which we've now seen has been successful as with the case of the government of iraq of chad if you compare this proclamation to the reagan in the carter proclamation which i think were one or two sentences this is longer than any proclamation the i've seen in this particular area this is  almost and they ought but to complete my answer to justice kennedy's question this is the most detailed proclamation ever issued in american history yes your honor to be sure this covers more countries than either president reagan's or president carter cover and whatever and more immigrants because carter's only applied to certain immigrants not still president carter's actually applied to all immigrants but then had exception much like the waiver provision here for national interest humanitarian concerns so i think president carter's was actually very similar to the proclamation here in your counselor non review ability argument is that a jurisdictional argument your honor i think yes i think it is a jurisdictional argument and that's why i don't think you really should address any of these issues the basic rule is that the exclusion of aliens is a political act imbued with foreign policy and national security concerns and therefore subject i thought i seo that we decided that this this wasn't jurisdictional or at least decided the merits despite the non reviewable of the argument that the government made i think the second thing that you just said mr chief justice is accurate the court didn't address the review ability issue at all and so we don't don't think it's presidential we want to know it was the argument raised in that case but yes that was your honor i don't so it's an argument we would have been required to address if it were and factors to i think so and so i think one way you could understand it is that it doesn't go to article three jurisdiction though it is a juice disability argument and we would urge this court to accept it because we think it's correct but even if you don't think that it's correct we think th proclamation satisfies the merits because it does fall well within the power of the president under eleven eighty two f if we are in general to the constitutional claims in this case yes your honor and your principle response to the establishment clause claim is to cite mendell and to say that once the government comes forward with a legitimate reason course national security is the most important reason one can come forward with the game is over essentially and i was trying to press on that a little bit sure so first i want to ask whether that means you started off by talking a lot about the process of this proclamation but i take it that that argument would apply irrespective of what process was used in other words you would have made the same mendell argument to the first executive order in this case or would you not we would have made a mandela argument but it is far stronger given that you have the process and substance upon which this proclamation that is right but i think that when you in addition to that have the extensive worldwide process that we had that resulted in a cabinet level recommendation that a pardon neutral baseline to every country in the world concluded that almost all the world including almost all of the muslim majority world past that baseline but a tiny number of countries didn't i think that whether you apply mendell or the whether you apply mccreary that makes the constitutional case in our favor overwhelmingly strong so let me give you a hypothetical and it's just you know i think that there are ways to distinguish mandela in this case but but but he you know just in terms of thinking about what mandela really foreclose and i could because mandela there are only two cases in the area and it's hard to understand before contours of i agree so this is a hypothetical that you've heard a variant of before that the government has at any rate but i want to just give you jews and provokes a lot of resentment and hatred over the course of a campaign and in his presidency and in the course of that asks his staff or his cabinet members to issue a proc to issue recommendations so that he can issue a proclamation of this kind and they start all the i's and cross all the ts and what emerges and again in the context of this virulent anti semitism what emerges is a proclamation that says no one shall enter from israel right do you say mendell puts an end to judicial review of that no your honor i don't see mandela puts an end to it but i do see that in that context mandela would be the starting point of the analysis because it does involve the exclusion of aliens which is where mandela applies if his cabinet and this is a very tough hypothetical that we've dealt with throughout but if his cabinet were to actually come to him and say mr president there is honestly a national security risk here and you have to act i think then that the president would be allowed to follow that advice even if his and in his private heart of hearts he also harbor animus but i would also suggest that if i could finish that your honor that i think will be very difficult for that to even satisfy mendell rational basis scrutiny i don't need to know what the rationale was given that israel happens to be one of the countries closest allies in the war against terrorism it's not clear to me that you actually could satisfy woman yells rational basis standard on that unless it truly were based on a cabinet reading level recommendation that was about national security general and this is the box kind of president in my hypothetical and we don't have those here on  and any you know he thinks that there are good diplomatic reasons and there might be who knows what the future holds that there might be good diplomat reasons to put pressure on israel or to say we want israel to vote a certain way in the u n and this is a to better our diplomatic hand and so this is what he does and who knows what his heart of hearts is i mean i take that point but the question is not really what his heart of hearts is the question is what are reasonable observers to thing right given this context in which this hypothetical president sure is making very ill and anti semitic comments right and your honor it's a tough hypothetical but it's why i also think that this is a relative the easy case because we're willing to even assume for the sake of argument that you consider all of the statements and were even willing to assume for the sake of argument that we think that it's wrong that you applied some kind of domestic establishment cla quite confident that given the process and substance that form the basis of this proclamation no matter what standard you apply this proclamation is constitutional since we don't have the extreme hypothetical that you're suggesting your honor we do have a multi agency world wide review and a cabinet level recommendation that applied a neutral baseline and this wasn't done just by the cabinet secretaries but by the agencies to every country in the world and consumed generally you have that extreme hypothetical people who could bring that claim and who could potentially succeed that when the people that could bring that claim i assume were relatives of people that were excluded for father son and free exercise potentially i think whether or not in university i think  university could bring a free speech type claim undermanned del why not establish and because your honor and the reason why i think they haven't pursued those types of claims is good i don't think they would possibly support the types of nationwide injunction that they're asking for your honor the reason why i don't think that they could bring an establishment clause claim is because the proclamation doesn't actually apply to the respondents it only applies to aliens abroad who have no constitutional no one and if your claim is that it that the proclamation is in place because of a dislike of a particular religion and i thought the establishment clause and its heart is that we cannot be anything but neutral with respect to religion it's practice that is true your honor but as the valley forge decision makes clear not everybody has standing to challenge that negative message injury otherwise the plaintiffs in valley forge would have had standing t challenge the land transfer from the government to the christian college on the ground that it sent a pro christian or anti eclipse the message people that's saying that that negative religious attitude is stopping them right 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 join them raj is one of the purposes of the ins and that's where they might have free exercise or free speech claims along the type that just isn't it i suggested but which couldn't support a nationwide injunction i don't think that that gives them an establishment clause to claim when proclamation doesn't actually apply to them today can we go back to something that's been bothering me here which is and it was argued in a case this week about the unitary executive theory which basically says the president is at the head i think i'm summarizing in an incomplete when but that the president is the head of the executive branch and that he should have for those who are in the extreme of this theory or or on one end of the theory on how to extreme that he can hire or fire anyone he wants and that he can put in place whatever policy he wants if we take justice kagan is hypothetical president who's basically says to his review committee i want to keep out jews period find a way that's their charge so in that situation why would the actions of the committee whatever  told what the outcome of their deliberations must be sure and i have two responses to that your honor the first is that the president's cabinet just like all of us here is duty bound to protect and defend the constitution so i would expect that if any cabinet member were given that order that cabinet member would refuse to comply or resign in the face of a plainly unconstitutional war so i think that would be the initial check secondly if you had an extreme scenario where all of that broke down then if the president actually did make that statement i want to keep out a particular race or a particular religion no matter what that would undermine the facial legitimacy of the action even under the mandela standard here however you don't have anything like that rather you have the cabinet doing its job through the agencies where they asked the agencies to construct and applied this neutral standard to every country in the world including every muslim country they concluded that the vast majority of the world including the vast majority of the muslim world was just fine but there were problems with a small number of countries and so imposed pressure recommended pressure to help move those countries and also to run them is that i don't see that that material was reviewed by the judges below by the ninth circuit or the fourth circuit judges i thought that the government had kept confidential and refused to share either with  what was the how what the evaluation and how us apply to all those countries in the world i understand some of the confidentiality that my concern here but if the backdrop is the way that justice stage that you need an independent arbiter to look at all of that to ensure the process in fact is what is claimed it was well your honor a couple of responses to that first of all i think that the proclamation is very transparent and lays out in great detail both the process and the substance upon which the proclamation is based and i think that under the duty of regularity or good faith or whatever you want to call it that one branch of the government goes to another co equal branch of the government there is a very strong presumption that's what is being said out there is the truth you said something earlier general and want to make sure that i got it right that you said if at the time the president had said we don't want muslims coming into this country that that would undermine the proclamation did i get you right yes so i think you know honestly the difference here then seems to be is everything that the president said effectively that i think there are two issues you're on are there the first is whether you can ever consider things like campaign statements and we are very much of the view that campaign statements are made by a private citizen before he takes the oath of office and before under the opinions clause of the constitution receives the advice of his cabinet and that those are constitutionally significant acts that mark the fundamental transformation from being a private citizen to the embod executive branch so that those statements should be out of bounds supposed to have a local mayor and as a candidate he makes vituperative hateful statements he's elected and on day two he takes acts that are i would say yes because we do think that oath marks a fundamental transformation but i would also say here it doesn't matter because here the statements that they principally rely on don't actually address the meaning of the proclamation itself this is not a so called muslim band if it were it would be the most ineffective muslim band that one could possibly imagine since not only does it exclude the vast majority of the muslim world it also mit's three muslim majority countries that were covered by past orders including iraq chad and sudan and so this order is what it purports to be and what its process and substance confirms that it is it is an order that is based on a multiyear agency wide review that applied neutral criteria all across the world and concluded under those neutral criteria most of the world was fine but he said part of it failed to provide us with that minimum baseline of information the minimum not the ideal the bare minimum terrorism history criminal history that we need to protect the country can i ask a more well i did read i think almost all the eighty briefs and now your time please go ahead all right almost eighty and i think i'm somewhere repetitive not too many and i think i know the basic argument but there is one question i'm left with and it starts with an assumption which i think you share but i want to be sure or i notice that the carter order and the reagan order both had case by case exceptions and i look at this order and this has case by case exceptions and then it says you know it says case by case waivers may be appropriate in individual circumstances such as giving some examples the following and then they have to be no terrorist well that's the law anyway and they they have to be in the interest the united states and there can't be undue hardship which is the only time that the word hardship appears in the immigration laws it says extreme hardship so one do must be less than extreme ok so then they have a list of people with foreign contacts previously established for previously been employed and there about five of them or focus on that class of individuals now in countries one hundred fifty million people altogether there must be quite a few who have to fall within that class yes you are but there's only a small number of people that seek to come into well that's what i'm asking about you see that now if you think as far as we're concerned if they fall within that class there is no reason the principal purposes of the proclamation is to exert diplomatic pressure on governments in order to get them to change and provide us with and so you think they should be excluded not if they meet the criteria  that is that we have that's what i thought you would so then i get to can ask my question sorry but i want to be sure you were on the same way that's ok now falling within that class here is the problem it seems to me that there are probably a significant number of such people and you read the briefs you think hey there's the business community complaining there is the academic community there were forty six scholars at harvard there are families in the lisa black brief you know that they say we were trying to get medical treatment and nobody told the reagan people did and the carter people did then it might be i'm not expressing a definite opinion but you've got the same thing here but if this is as one brief says just window dressing and they never apply it right then you have something new and different which going well beyond what president reagan did ok so i want to know how do i find out or how do i find out when there is not that information in the brief would do we have to can we have another hearing  do we send it back do we say look the government of course thinks this isn't window dressing but the other side says there are only two people no notice so your arms to their people in yemen their people in somalia decent people the lawfulness of this order on the assumption that there is no waiver i don't is not what not what president reagan did not what not what president carter did and if you go through every action that congress took waiver waiver waiver possibility case by case case by case that's right the answer to your question on or is no i don't want you to consider the proclamation on the on the hypothetical situation that it is what it isn't but i do think that the violates the first amendment congress has already specified a three part solution to the very same problem the order addresses alien seeking entry from countries that don't cooperate with the united states in vetting including quote state sponsors of terrorism and countries that provide inaccurate information first aliens have to go through the individual eyes vetting process with the burden placed on them second when congress became aware that some countries were failing to satisfy the very same baseline criteria you just heard about that if the order uses congress rejected a ban instead it used carrots when countries cooperated they get extra credit a trap faster track for admission legislation to use big sticks like nationality an and third congress was aware circumstances could change on the ground so required reporting to them so it could change the law well let's take the big sticks fair let's suppose that the intelligence agencies go to the president and say we have  hundred percent solid information that on a particular day twenty eight 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 ban the entry of syrian nationals on that one day he could for two reasons you know there's two different arguments there's the nationality discrimination ban eleven fifty two and then there's a you know whether or not this congress is policy judgments and with respect to both i think it would it would be nationality discrimination for the reasons judson tell said in love when you have an emergency fast moving situation like the syria example you're saying well just to stop in and interrupt you there i mean what if it's a weak what if it's a we a month from now that's what the intelligence information is in other words trying to respond your point that it has to be an immediate yes is so i think that you know this court's dealt with that in youngstown and hummed on and said look you know the president's go get a pass absolutely on you know what he says the emergency has but the ultimate question is can you go to congress and get any legislative impediment removed and that he can have deference about but here we are four hundred sixty days on or later mr chief justice he's never even introduced legislation about this so we're so far from that hypothetical will concede imagine that imagine if you can that congress is unable to act when the president asks for legislation and someone introduces a bill saying let's authorize first of all the president may have qualms about sharing that absolute intelligence broadly but let's say there's a bill introduced to say let's authorize the president and there's a bill introduced to say let's block the president and neither bill move absolutely we understand the president will have residual authority to keep the country safe our point here though is that congress has thought about this exact problem including you know you know about there's only one problem he's identifying which is countries not cooperating he's not talking about people coming in or something like that like your hypothetical and with respect to that congress has said here's how we deal with that we deal with it with the individual as vetting system which pushes all the burdens on a person coming in that's thirteen sixty one you've got to show biometric i under the statute you've got to have it in person interview if there's any risk that the person is it from a country that's a state sponsor of terrorism like your hypothetical or anything else to congress has really said we're in a robust way here's how we deal with it in to the extent countries aren't cooperating we offer carrots congress rejected exactly what they're trying to propose here which is a flat nationality ban and that's where i think the force of our argument lies with the spec to the first point which is this is countermanding congress policy judgments my friend on the other side actually risen congress did act or didn't act in the levin eighty two half career why doesn't this fall squarely within the language of eleven eighty two f for three we have both textual reasons that it's not a class for reasons justice breyer was talking about it's not perpetual it's perpetual like justice ginsburg was talking about but we think there's a much bigger point justice alito well james you could talk about the text it's not a class doesn't particular country don't constitute a class what about any aliens so we think it is in need of because the prop power in eleven eighty two is so broad and sweeping and does allow the president to supplement what congress has done we think that you have to do you have to be careful in read the limit that you have to read it just the way you read every other statute to say how do we harmonize that broad text of eleven eighty two f with the rest of the ins and our point in our briefs which i don't think you heard an answer to is if you accept their idea that the president has such a sweeping power he could end for example family the family preference system and impose a you know an end so called chain migration or anything like that he could do countermand any of the provisions of the a and turn it into a line item veto so for that reason we think there has to be some limit that's something this court's dealt with then you know the tobacco proclamation do anything like that is this proclamation purport to establish a new permanent immigration policy for the united states absolutely your honor this is a perpetual policy that bans it does exactly where congress in one thousand sixty five said you can't do and it countermands congress is a judgment from two thousand one two thousand and fifteen and several other times which is to say instead of these flat bans we're going to have mud we're going to balance foreign policy considerations economic considerations like the u s companies brief humanitarian image of the united states views all of that together and said we won't do the flat ban instead we're going to have a much more fine grained approach with individual eyes betting and carrots for the countries that don't disagree with what is  saying that it is perpetual well at there is nothing in the order that ends it and you heard my friend say oh that would do him all executive orders but that's not true i don't it has to be reexamined every one hundred eighty days no that's not what it says it says there's a report that has to come in at one hundred  eighty days and nothing happens at the end of the will that in that indicates the will be a reassessment well in and then the and the president has continuing discretion justice kennedy this argument when be there if there was anything about reassessment the way they were in about half the orders including the cuba order which says it sunsets once the crisis sends there's nothing like that in this and it's just like a reporting requirement to congress which congress isn't necessarily required to do anything congress has statutes like that all the time this is that and that's why this is unlike any other executive order if you go back and look at all forty three executive orders that presidents of issued none of them have even arguably countermanded congress's judgment in the area they've all been consistent they have all been two for such period as he deems necessary and he could have continued to be busy over whether it's still necessary again we would have a problem with that if it was tailored to a crisis as it sunsets and then you know could be re up to something like that that's not what this says this is about a perpetual problem the president to say i'm convinced that in six months we're going to have a safe world well well joe no justice kennedy that's an argument argument is here the president is identifying something that is a perennial problem our brief says it goes back a hundred years you know when the soviet union was around we don't have countries that cooperate with us in vetting and the solution has always been from congress not to have a flat ban but instead to have a fine grained vetting system to balance these considerations and if the military advisors tell the president that in their judgment the president ought to order a strike strike against syria and the president says well i mean he can't because you would regard that as discrimination against a majority muslim country absolutely not there's nothing to do with the text of the statute the eleven fifty two statutes about discrimination in the quote issuance of visas and that's all that under eleven eighty two half you would say that there's no problem under that on the muslim population absolutely we think the president has a wide authority is to do things that have impacts on the muslim population take the laptop and y and z are theories wouldn't that constitute the argument would be that that's  discrimination under your establishment clause argument that that's discrimination on the basis of faith because he has said in the past if you accept the accept the arguments that he is anti muslim not at all your honor and that no president has run afoul of this you know and that's because here the president and his advisers have directly tied this policy to those statements and the red brief it page seventy i think is the greatest that that's a constitutional claim and i certainly want to get there but before doing so i just want to make very clear the consequences of their position for the i and a is that the president can take a wrecking ball to the statute and countermand to congress is this country have to bring their claims personally and third parties can't vindicate those rights of aliens being who are present in this country and asks the question why it should be that third persons should be able to assert the rights of aliens were not present in this country as we would see answer to that several this is not a third party case these are united states citizens bringing this challenge an assumption have the united states well i would say our present in the country or directly harm to themselves who is trying to come here be honest in that but those arguments don't work with respect to aliens present in the country so why do they work for aliens who are not present in the because they very same arguments would not succeed well i think you can see that they wouldn't succeed right and they don't  succeed because there you have a better plaintiffs who might not be willing to bring them in the united states and that's why the court you know defense says no third party but here these folks are directly impacted and the most important thing to say is sail answers this you heard my friend concede sale was jurisdictional issues and sale that's how they briefed it up that's how he just described it this court had exactly that situation ited says plaintiffs and it reached the merits our statutory point to you is that if you accept this order you're giving the president a power no president in one hundred years has exercised an executive proclamation that countermands congress's policy judgments he has zero examples to say that when congress has stepped into the space and solved to the exact problem that the president can then come in and say no i want to different solution if you do that you do not just family preferences that you're allowing to get rid of you get rid of all sorts of even small things in the code or big things like there's a preference for specialty occupations like software engineers in the needs to have some limits to prevent the president from doing something that's completely contrary to another section of the statute but you're suggesting well the president can't do anything that's not contemplated by the rest of that it should not or ok so then i want to know what are you saying this is directly contrary to because it seems to me you would have to point to some kind of clear and direct conflict between what the president is doing and another statutory provision so our it's not a flat bar of how can be like a direct contravention even they say it's not a direct contribution convention in their reply brief page nineteen so the three things are first can these two solutions co exist or not second has congress a p good comprehensive scheme and third you know this or any other indication that congress consider the issue and went in a different direction with respect to all of those for here and again only this proclamation satisfies all three of those factors congress has a comprehensive particularly good scheme that deals with the exact single problem that he's identified which is countries not cooperating it can't co exist with the solution of a flap in it makes no sense for example  visa require interview which is in twelve eight twelve twelve o two h two which is for cunt for people who come from state sponsors of terrorism or who have a quote group with a likelihood of providing inaccurate information congress said there has to be an in person interview for that it doesn't make sense to say we're going to flout ban it doesn't make sense have a visa waiver program which is all about countries that provide zero information to the united states state sponsors of terrorism in the like and say we're going to give you a car and then say oh no forget about visa waiver carol you know imagine any situation in which the threat of infiltration of the united states by terrorists was so severe with respect to a particular country that the other measures that you have mentioned could be deemed by a president to be inadequate yeah i'm not imagine any such situation yes i can and the president would have a robust authority to deal with that that is not argument and so your argument is that courts have the the duty to review whether or not there is such a national as a good that's for the courts to do not the president no i think you have a wide deference justice kennedy it's exactly what you said when you joined justice briar's opinion in  is as long as you know presidents have wide berth in the syria but if you know and it's certainly if there's any sort of emergency that precludes it but when you have a statute that considers the very same problem and there's nothing new that they've identified in this worldwide review process that congress didn't consider exactly the same types of things it is a perennial problem that countries do not cooperate with the united states when it comes to vetting you know this in the abstract i mean they may have more put the president may have more particular problems in light of particular situations developing on the ground and yes congress addressed the question of the adequacy of vetting but those questions arise in particular contexts and it seems to me a difficult argument to say that congress nothing to address any particular factual situation that i don't and that's again mr chief justice not argument so for example if something came along like a virus that you know wiped out the visa processing software in all these other countries absolutely the president would have the power to do it out here what about a change of administration in a particular country in which perhaps the vetting procedures are not going to be taken seriously right that congress could not have anticipated well but again congress anticipated a country that is a quote state sponsor of to and even for with respect to that providing no information indeed fermenting against the united states congress said oh we're not going to have a nationality ban you know they flatly banned that and said we're going have individualized vetting and this visa waiver program carrot to try and deal with that you know dangerous regime now again i think can imagine an emergency situation in which the president of even greater authority for that but here we are four hundred sixty days later and i would caution the court not to make a decision about the emergency are concerned about that can be bracketed as it was in youngstown as it was in this is so far from the text of eleven fifty two is flatly violated here it says there shall be no discrimination on the basis of nationality with the issuance of visas that is thirty nine percent of all the visas this executive order covers it's not a small parts it's a large part and it is the most important part because immigrant visas are the kind of heart about you know what the nation becomes its 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 well you know we're discriminating at the entry side not at the visa side if you do that you are giving the president the power to undo and he's actually just done it he's undone the ban on nationality based discrimination he's impose country quotas of zero for these countries at the border if you're your argument based on discrimination based on the campaign statements is there a statute of loot no the one that you do make based on the campaign statements is there any statute of limitations on that where is that a ban from presidential findings for the rest of the administration so mr chief justice i first want to be very clear about this our point about the eleven fifty two in the discrimination has nothing to do with any campaign statements or anything else it's purely the text of the proclamation which is nationality based discrimination through and through judge sent tell said you couldn't imagine a clearer text to than this and this is the violence that now  i just want to it's absolutely clear that word that's not you know you don't need to do any of that for purposes of eleven fifty two and that would knock out thirty nine percent of the most important part of the executive  respect to that we don't think we think that the test is this court has said a reasonable objective observer viewing all the statements and we think absolutely my friend is right you shouldn't look to campaign statements in general or stuff like that at statements of a private citizen the only thing is here they themselves the president and his staff have rekindled exactly that if you look at page seventy of our read brief you have a very good exe ample of this were after the executive order this latest executive order was promulgated the president tweeted one of the proclamations applies forever no i think the president could have disclaimed you know easily moved away from all of these statements you know but instead they embrace them that's the difference and so absolutely the president have wide berth to say ninth circuit in may the president didn't do that that's what's that's the you know that's what i'm reasonable objective is to catch you know we're going to have the reasonable observer reading this proclamation without taking into account statements think that this was a muslim band i mean there are a but i think there are fifty predominantly muslim countries in the world five of five countries five predominantly muslim countries are on this list and the population of the congo of the predominantly muslim countries on this list make up about eight percent of the world's muslim population if you look at the ten countries with the most muslims exactly one iran would be on that list of the top ten so would a reasonable observer think this was if it were a solemn day and if it were just the text of the order alone it might raise eyebrows for fit in other reasons that the brisco into but we wouldn't be here we absolutely agree that just it's the same test as in luke you mean other cases you have to look to all the circumstances around it that are said the publicly available ones you know in just the lead of the fact that the order only come in come to some muslim countries i don't think means logistics criminalisation for example if i'm an employer and i have ten african americans working for me and i only fire two of them i don't think you know and say well i've left the other eight in i don't think anyone can say that's not discrimination no i understand that is one of our fundamental values that there is religious freedom here for everybody and that member at here instead every religion are entitled to equal treatment my only point is that if you look at what was done it does not look at all like a muslim bam there are other justification is that jump out as to why these particular countries were put on on the list so it seems to me the  quote the burden imposed falls almost exclusively on those with religious objections this is a ban that really does fall almost exclusively on muslims which we ninety point two percent to ninety nine point eight percent muslims and so it does look very much like what you said instruments but even then we wouldn't be here if it weren't for all of the different statements and the best evidence of this about what a reasonable objective observer would think it's a look at the wide variety of amica priests in this case from every corner domestic statute let alone something with purely international application what we do about that yet so two things number one is i think the very fact that this is immigration cuts the other way i mean the heart of the first amendment is about immigration restrictions on for example catholics at the founding in our protest protest of king george which is all about using the immigration power to exclude people of a different faith and that's what our constitution is about so that's the first thing and the second is we don't think you have to get into lemon and all these other tests that you all struggled with i think this court in the cooney was very clear in saying that when you're talking about denigration of religion all the tests point in the same direction you said something earlier you said you wouldn't be here if all of those statements the background statements were not made do you mean that on all of your bases you wouldn't be here on the establishment clause only on the establishment clause claim not in anything else in our point is you know he's talks about for example this worldwide vetting process remember his own argument now being here without the statements clearly the statements even conceded by your adversary to give you a basis to look behind all right the reason so if we're looking behind it how do you deal with the general's gesture in that there was a cleansing that occur because of all of the agencies and departments who participated in this process so there's three things number one is that his own argument is that eleven eighty two puts the president in the driver's seat so the cab that's not important to the president's proclamation second the order itself says in its first lines it harkens back to executive orders one in two and it says it's an outgrowth of that so it was infected by the same thing that was struck down a clause grounds in other cases and third and most importantly the president before this review process even began tweeted and said that he wanted a tougher banning non politically correct ban in the light so given all of those things but in particularly given the fact that eleven eighty two itself forces the president to make the proclamation it's the president's proclamation so i don't think you even have to get into this whole unitary executive thing but i do agree with you justice sotomayor that that's another problem which is they're coming before the court and saying nope it's the president who's in charge and now they're saying hero no no no it's these other people this is the president's proclamation through and through no president has ever said anything anything like this and that's what makes this different and the president and yet mr card you have a proclamation that says there are important national security interests at stake and the question is how to do the kind of analysis that you want us to do without in some sense of value weight in the adequacy of those national security interests which for the most part we've said courts are not equipped to do we're not asking you to second guess the national security judgment at all with the purpose of these styles from cause we're saying you just have to look to what are reasonable objective observer do that's the ordinary test that you've used in cases like lukumi is there in official purpose to but the statute you point to one of the ones that is stronger for you are there are obviously objections to what you're saying in quite a few briefs all right but the one that used to talk about its does  you have to have an interview with a counselor official if the person is from a country officially designated by the secretary is a state sponsor of terrorism it does so they'll say but we do have that in respect to everyone under the exception so there isn't much problem we've gone beyond that in respect to other people but all right take their argument for a moment because my question is which i couldn't find in the briefs is it true i'm just taking what they say that really that isn't so they don't publicize it they davened put forth a guidance people don't know they can come in and qualify for this and if it turns out that that is something that is important to the lawful s of the order because there are many many categories there what do we do so two things number one this waiver process has excluded and you have this on the part of the quality refit page fourteen a ten year old with cerebral palsy who wants to come to the united states to save her life and she can't move or talk the ten year old was denied a waiver just as prior he says there's four hundred thirty people who've gotten waivers they've never told you the denominator and there's no published say sion of loose process and how many how often it is in the data that we do have suggests is a matter of percentages it's very weak just to give you some evidence of that just the state of hawaii has gotten about a thousand letters from people most of which say we're not even getting waivers on the like we've heard very raises a question of remedy for me we have a struggling rise of this nationwide injunction cosmic injunction not limited to relief for the parties that issue even a class action and near as i can tell that's that's a really new development where a district court sorts the right to strike down of a federal statute with regard to anybody anywhere in the world what do we do about that obviously the injunction here has been trimmed by this court itself and others and i do think i share your impulse just as corsets that's something that i think lower courts are debating right now in a number of different context context like the contraception case and the like i think this case is the poorest example to get into it because of united states versus texas point which is this is an immigration case in article one section eight puts congress in the dark driver's seat and says there must be a uniform rule of naturalization so i think for those reasons you know i get why the court might want to get into it getting into it here i think in the supreme court probably doesn't make a tremendous amount of sense it almost be an advisory opinion or fundamental point to though is that congress is in the driver's seat when it comes to immigration and that this executive order transgress is the limits that every president has done with this proclamation power since one thousand nine hundred eighteen and to accept it here is to accept that the president can take an iron wrecking ball to the statute and pick and choose things that he doesn't want for purposes of our immigration code that can't be the law but you don't have to but if there are if there are any other questions i'm happy to take anything and thank you counsel of five minutes for rebuttal general chief mr chief justice and may please the court i really do have just a few quick points unless your honour's have additional questions just as prior i did want to respond in more detail to your question about how the waiver process works the state department does publish the waiver process on its website but the waiver process actually is applied automatically by consular officers so when somebody applies for a visa waiver the peace officer first determines whether the person is otherwise admissible under other provisions of the i a e a if they're inadmissible you never even get to the proclamation then for those people who are not inadmissible under other parts of the like eleven eighty two a the consular officer then turns to the proclamation and first asks are you subject to an exception within the proclamation if you are fine and the proclamation never applies if you're not subject to an exception than the consular officer him or herself turns to the waiver provision and applies the am not familiar enough with the details of that case to tell you what happened in that particular case but that's what the waiver present provision is that's that's you see if you've read the briefs that has have on all right now there's some that lissa bout ten or fifteen instances like the cerebral policy the policy one has parkinson's then there's another brief that list all the people who are professors scholars at university isn't there a law and then there are people they list the students from these countries a lot and then the business community lists a whole bunch and says my goodness they have been unable to get we don't know what's going on and then they say well what's going on is nothing is going on when you're i don't i'm not taking sides on that i'm just saying i don't know right and the principal purpose of the proclamation is of course to assert assert pressure on these countries in order to provide us with the needed information which brings me to the second point in the four that i'm hoping to try to make and that is that the individual vetting process depends upon us having the minimum baseline of information needed to determine in that vetting process whether the person is a ible so when the person shows up at our border with a visa that we may have validly issued pursuant to that individual vetting process but if her home government knows something that we don't and doesn't tell us we cannot intelligently make  admissibility determination third i'd like to address the eleven fifty two a one a point about nationality exist or not just one say yes of course i for one and like justice prior concerned about is this window dressing or not what's in place to ensure it's not to you personally doing to represent to us that is in fact a real way for processing your honor  state department consular officers automatically apply the waiver process in the course of every visa applicants application and they are doing that which is why they're banned and i looked at our brief four hundred thirty waivers that have been issued since addresses one thing the issuance of immigrant visas it doesn't address the broader question over when or whether somebody is allowed to enter in the first place that's governed by eleven eighty two including ele so essentially eleven eighty two sets the universe of people who are eligible to come into the country in the first place and that is often a foreign policy and national security judgment eleven fifty two a one a is one of the rules that governs how we distribute visas amongst that group that's eligible to come in and it's not just nationality based distinctions it's that it applies to it also applies to things like place of residence so once you have that universe of eligible people eleven fifty two a a governs how you distribute them but let's assume that you disagreed with me all it would really mean is that we have to implement this proclamation in a slightly different way we would have to issue immigrant visas but not nonimmigrant pieces to people who aren't allowed to enter but we wouldn't have to allow anyone to enter and we wouldn't have to issue any non immigrant visas so the bottom line is i think they're simply wrong on that case on that issue my final point has to do with my my brother's record recognition that if the president were to say tomorrow that he was sorry all of this would go away well the president has made crystal clear on september twenty fifth that he had no intention of imposing the muslim ban he has made crystal clear that muslims in this country are great americans and there are many many muslim countries who love this country and he has praised islam as one of the great countries of the world this proclamation is about what it says about foreign policy and national security and we would ask that you reverse the court below thank you counsel the cases submitted