supreme court of the united states · justice sotomayor: i'm sorry, mr. - general. i thought...
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SUPREME COURT OF THE UNITED STATES
IN THE SUPREME COURT OF THE UNITED STATES
DONALD J TRUMP PRESIDENT OF THE )
UNITED STATES ET AL )
Petitioners )
v ) No 17-965
HAWAII ET AL )
Respondents )
Pages 1 through 82
Place Washington DC
Date April 25 2018
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IN THE SUPREME COURT OF THE UNITED STATES
DONALD J TRUMP PRESIDENT OF THE )
UNITED STATES ET AL )
Petitioners )
v ) No 17-965
HAWAII ET AL )
Respondents )
Washington DC
Wednesday April 25 2018
The above-entitled matter came on for oral
argument before the Supreme Court of the United
States at 1002 am
APPEARANCES
GEN NOEL J FRANCISCO Solicitor General
Department of Justice Washington DC
on behalf of the Petitioners
NEAL K KATYAL ESQ Washington DC on behalf
of the Respondents
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C O N T E N T S
ORAL ARGUMENT OF PAGE
GEN NOEL J FRANCISCO
On behalf of the Petitioners 3
ORAL ARGUMENT OF
NEAL K KATYAL ESQ
On behalf of Respondents 38
REBUTTAL ARGUMENT OF
GEN NOEL J FRANCISCO
On behalf of Petitioners 75
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P R O C E E D I N G S
(1002 am)
CHIEF JUSTICE ROBERTS Well hear
argument today in Case 17-965 Trump President
of the -- Donald Trump President of the United
States versus Hawaii
Mr Francisco
ORAL ARGUMENT OF GENERAL NOEL J FRANCISCO
ON BEHALF OF THE PETITIONERS
GENERAL FRANCISCO Mr Chief Justice
and may it please the Court
After a worldwide multi-agency review
the Presidents acting Homeland Security
Secretary recommended that he adopt entry
restrictions on countries that failed to
provide the minimum baseline of information
needed to vet their nationals
The proclamation adopts those
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 baseline or had other problems
and it exerts diplomatic pressure on those
countries to provide the needed information and
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to protect the country until they do
The proclamation reflects a foreign
policy and national security judgment that
falls well within the Presidents power under
1182(f) and has been successful which is why
the country of Chad was recently dropped from
the list But it -shy
JUSTICE GINSBURG You -- you
mentioned 1182(f) And the worrisome thing
about this is that the President acts Congress
is the one responsible for making the laws
about immigration It has been suggested in
one of the briefs that we read 1182(f) to allow
the President to suspend entry but only for a
period of time long enough for Congress to say
yea or nay
GENERAL FRANCISCO Your Honor yes
1182(f) is a broad and flexible power in a
narrow area Here however I think that you
dont need to explore those outer limits
because the proclamations meant to help
implement the INA by making sure that we have
the minimum level of information needed to
determine if aliens are admissible under the
INA
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In terms of a time limit I think
thats simply inconsistent with the text of the
statute and inconsistent with virtually every
1182(f) proclamation ever issued Here we
have a fair -shy
JUSTICE SOTOMAYOR Im sorry Mr -shy
General I thought that Congress had looked at
the situation and created a statutory system
that addressed the very concern the President
is expressing Congress said you can have visa
waivers if you -- if you can meet the three
criteria that this special committee of the
President looked at and if you dont you have
to have a very heightened extreme vetting
process And it created that vetting process
and suggested its parameters
More importantly it took terrorist
countries and designated which ones supported
terrorism and added another layer of review and
said if youre 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 to -- to affirm that you
are not a danger to the US
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GENERAL FRANCISCO And -shy
JUSTICE SOTOMAYOR So I -- but what I
see the President doing here is saying Im
going to add more to the limits that Congress
set -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- and to what
Congress said was enough Where does a
President get the authority to do more than
Congress has already decided is adequate
GENERAL FRANCISCO Well there are -shy
theres a lot packed into your question Your
Honor and so let me try to unpack it a little
bit
I think the basic answer is that
1182(f) gives the President the authority to
impose restrictions in addition to those set
forth in the INA but to go to the statutes
that Your Honor was -shy
JUSTICE SOTOMAYOR But -- it might
but -shy
GENERAL FRANCISCO Right but -shy
JUSTICE SOTOMAYOR -- on the very
grounds that Congress has already looked at
GENERAL FRANCISCO And thats exactly
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what I was going to address next Your Honor
The Visa Waiver Program provides a special
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 admissibility of individuals
coming in from some of the riskiest countries
in the world
And 1182(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 Its up to the executive
branch to set it up Its up to the executive
branch to maintain it And its up to the
executive branch to constantly improve it
And here you have something that
really is at the core of 1182(f) since its main
purpose is to help implement the INA by making
sure we have that minimum baseline of
information
And if you look at the proclamation
what were talking about is very basic pieces
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of information Not the ideal but the
minimum Are they reporting terrorism history
information Are they 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 visa 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
doesnt tell us
Once she shows up at the border we
cannot make an intelligent determination as to
whether or not shes admissible under the INA
And thats 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
that it seeks to identify harmful conduct that
a foreign government is engaging in and then
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it imposes sanctions in order to pressure that
government to change
Thats what President Carter did with
respect 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
JUSTICE SOTOMAYOR Can you represent
that no other country that -- that fails all
three of the criteria was excluded from this
list
GENERAL FRANCISCO Well Your Honor
what I can represent is that the -- the -- the
analysis was holistic It wasnt if you failed
any one or the others It was if your overall
score was sufficiently low
JUSTICE SOTOMAYOR So given -shy
GENERAL FRANCISCO 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 below -- below the baseline but was not
subjected to sanctions
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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 weve now seen has been
successful as with the case of the government
of Iraq -- of Chad
JUSTICE KENNEDY In fact if you
compare this proclamation to the Reagan and the
Carter proclamations which I think were one or
two sentences this is longer than any
proclamation that -- that Ive seen in this
particular area
GENERAL FRANCISCO This is Your
Honor the most detailed 1182 -shy
JUSTICE KENNEDY Id say longer
detail -shy
GENERAL FRANCISCO Yes
JUSTICE KENNEDY -- is -- is a better
word
GENERAL FRANCISCO Yes This is the
more detailed 1182(f) proclamation in history
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It is not -shy
JUSTICE SOTOMAYOR General the
proclamations by Reagan and Carter however
were not as broad as this one
GENERAL FRANCISCO Your Honor they
were almost as broad but -shy
JUSTICE SOTOMAYOR And -- and -shy
GENERAL FRANCISCO -- to complete my
answer to Justice Kennedys 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 Reagans or President Carters
covered But its -shy
JUSTICE SOTOMAYOR And more -- and
more immigrants because Carters only applied
to certain immigrants not to all
GENERAL FRANCISCO President Carters
actually applied to all immigrants but then had
an exception much like the waiver provision
here for national interests and humanitarian
concerns So I think President Carters was
actually very similar to the proclamation here
And -shy
CHIEF JUSTICE ROBERTS Is your
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consular non-reviewability argument -- is that
a jurisdictional argument
GENERAL FRANCISCO Your Honor I -shy
yes I think it is a jurisdictional argument
And thats why I dont 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 to -shy
CHIEF JUSTICE ROBERTS I -- I thought
in Sale that we decided that this -- this
wasnt jurisdictional or at least decided the
merits despite the non-reviewability argument
that the government made
GENERAL FRANCISCO I think the second
thing that you just said Mr Chief Justice is
accurate The Court didnt address the
reviewability issue at all And so we dont
think its precedential one way or another
CHIEF JUSTICE ROBERTS Was the -- was
the argument raised in that case by the
government
GENERAL FRANCISCO Yes it was Your
Honor Actually you could -shy
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CHIEF JUSTICE ROBERTS So -- so its
an argument we would have been required to
address if it were in fact jurisdictional
GENERAL FRANCISCO I think so And
so I think one way you could understand it is
that it doesnt go to Article III jurisdiction
though it is a justiciability argument and we
would urge this Court to accept it because we
think its correct
But even if you dont think that its
correct we think that this proclamation
satisfies the merits because it does fall well
within the power of the President under
1182(f)
JUSTICE BREYER If youre about -shy
JUSTICE KAGAN May I turn General
to the constitutional claims in this case
GENERAL FRANCISCO Yes Your Honor
JUSTICE KAGAN And your principal
response to the Establishment Clause claim is
to cite Mandel and to say that once the
government comes forward with a legitimate
reason -- of course national security is the
most important reason one can come forward with
-- the game is over essentially And I just
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want to press on that a little bit
GENERAL FRANCISCO Sure
JUSTICE KAGAN So first I want to
ask whether that means -- you started off by
talking a lot about the process of this
proclamation But I -- I take it that that
argument would apply irrespective of what
process was used
In other words you would have made
the same Mandel argument to the first executive
order in this case or would you not
GENERAL FRANCISCO We would have made
a Mandel argument but it is far stronger given
that you have the process and substance upon
which this proclamation was based because
whatever you -shy
JUSTICE KAGAN Well I guess I wonder
why that is just because when I read Mandel
I dont see anything about process or you have
to meet a certain kind of bar
GENERAL FRANCISCO Uh-huh
JUSTICE KAGAN Mandel really is kind
of you state a reason and this Court stops
GENERAL FRANCISCO And I think that
that is right but I think that when you in
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addition to that have the extensive worldwide
process that we had that resulted in a
cabinet-level recommendation that applied a
neutral baseline to every country in the world
concluded that almost all the world including
almost all of the Muslim-majority world passed
that baseline but a tiny number of countries
didnt I think that whether you apply Mandel
or whether you apply McCreary that makes the
constitutional case in our favor overwhelmingly
strong Its a -shy
JUSTICE KAGAN So let me give you a
hypothetical and its just -- you know I
think that there are ways to distinguish Mandel
in this case but -- but -- but you know just
in terms of thinking about what Mandel really
forecloses here
GENERAL FRANCISCO And I -- because
Mandel there are only two cases in the area
and its -- its hard to understand the full
contours of it
JUSTICE KAGAN I agree So this is a
hypothetical that youve heard a variant of
before that the government has at any rate
but I want to just give you
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So lets say in some future time a -shy
a President gets elected who is a vehement
anti-Semite -shy
GENERAL FRANCISCO Uh-huh
JUSTICE KAGAN -- and says all kinds
of denigrating comments about 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 dot all the
is and they 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
GENERAL FRANCISCO Right
JUSTICE KAGAN Do you say Mandel puts
an end to judicial review of that set of facts
GENERAL FRANCISCO No Your Honor I
dont say Mandel puts an end to it but I do
say that in that context Mandel would be the
starting point of the analysis because it does
involve the exclusion of aliens which is where
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Mandel applies
If his cabinet -- and this is a very
tough hypothetical that weve 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 in his private heart of hearts
he also harbored animus
JUSTICE KAGAN Well the question is
GENERAL FRANCISCO I would also
suggest though -- if I could finish that Your
Honor -- that I think it would be very
difficult for that to even satisfy Mandel
rational basis scrutiny Id need to know what
the rational was Given that Israel happens to
be one of the countrys closest allies in the
war against terrorism its not clear to me
that you actually could satisfy -shy
JUSTICE KAGAN Well -shy
GENERAL FRANCISCO -- Mandels
rational basis standard on that unless it
truly were based -shy
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JUSTICE KAGAN Yes
GENERAL FRANCISCO -- on a
cabinet-level recommendation that was about
national security
JUSTICE KAGAN General Im -- lets
-- this is a out-of-the-box kind of President
in my hypothetical And -shy
(Laughter)
GENERAL FRANCISCO We -- we -- we
dont have those Your Honor
JUSTICE KAGAN And -- and you know
he thinks that there are good diplomatic
reasons and there might -- who knows what the
future holds that there might be good
diplomatic reasons to put pressure on Israel or
to say we want Israel to vote a certain way in
the UN and this is a way to better our
diplomatic hand and so this is what he does
And -- 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 think -shy
GENERAL FRANCISCO Right
JUSTICE KAGAN -- given this context
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in which this hypothetical President -shy
GENERAL FRANCISCO Sure
JUSTICE KAGAN -- is making virulent
anti-Semitic comments
GENERAL FRANCISCO Right And Your
Honor its a tough hypothetical but its why
I also think that this is a relatively easy
case because were 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 though we think that its
wrong that you applied some kind of domestic
establishment clause jurisprudence because
were 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 dont have the extreme
hypothetical that youre suggesting Your
Honor we do have a multi-agency worldwide
review and a cabinet-level recommendation that
applied a neutral baseline And this wasnt
done just by the cabinet secretaries but by the
agencies to every country in the world and
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concluded -shy
JUSTICE SOTOMAYOR Mr General you
just -shy
JUSTICE KENNEDY If -- if you have
that extreme hypothetical would that present a
free exercise or an Establishment Clause claim
or both
GENERAL FRANCISCO It could
definitely present a free exercise clause
challenge Your Honor just as you had a free
speech type claim in the Mandel case
And there would be people who could
bring that claim and who could potentially
succeed on that claim
JUSTICE KENNEDY And -- and the
people that could bring that claim I assume
were relatives of people that were excluded
father son
GENERAL FRANCISCO On free exercise
potentially I think all -shy
JUSTICE KENNEDY Yeah what about a
university
GENERAL FRANCISCO I think a
university could bring a free speech-type claim
under Mandel much -shy
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JUSTICE SOTOMAYOR Why not an
Establishment Clause claim
GENERAL FRANCISCO And -- and -shy
because Your Honor and the reason why I think
they havent pursued those types of claims is
because I dont think they would possibly
support the types of nationwide injunction that
theyre asking for
Your Honor the reason why I dont
think that they could bring an Establishment
Clause claim is because the proclamation
doesnt actually apply to the Respondents It
only applies to aliens abroad who have no
constitutional right to enter
JUSTICE SOTOMAYOR No but the claim
is that it -- that the proclamation is in place
because of a dislike of a particular religion
And I thought the Establishment Clause at its
heart is that we cannot be anything but neutral
with respect to religion or its practice
GENERAL FRANCISCO 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
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standing to challenge the land transfer from
the government to the Christian college on the
ground that it sent a pro-Christian or
anti-atheist message That -shy
JUSTICE SOTOMAYOR But these people
are saying that that negative religious
attitude is stopping them -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- 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
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR Which is one of
the purposes of the INS
GENERAL FRANCISCO And -- and thats
where they might have free exercise or free
speech claims along the type that Justice
Kennedy suggested -shy
JUSTICE SOTOMAYOR Well but I -shy
GENERAL FRANCISCO -- but which
couldnt support a nationwide injunction I
dont think that that gives them an
Establishment Clause claim when the
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proclamation doesnt actually apply to them
because -shy
JUSTICE SOTOMAYOR General today
can we go back to something thats 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 -- Im
summarizing in an incomplete way -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- 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 -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- not extreme
that he can hire or fire anyone he wants and
that he can put in place whatever policy he
wants
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR If we take Justice
Kagans hypothetical President -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- who basically
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says to his review committee I want to keep
out Jews -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- period find a
way Thats their charge
So in that situation why would the
actions of the committee whatever this is
Executive Committee not be subject to great
suspicion and to thorough review -- which
actually wasnt completely -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- done here -shy
given that they are responsible to the
executive -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- and theyve
been told what the outcome of their
deliberations must be
GENERAL FRANCISCO Sure And I have
two responses to that Your Honor
The first is that the Presidents
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
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cabinet member would refuse to comply or resign
in the face of a plainly unconstitutional
order 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 Mandel
standard
Here however you dont have anything
like that Rather you have the cabinet doing
its job through the agencies where they ask
the agencies to construct and apply 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 across the line
JUSTICE SOTOMAYOR General the
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problem is that I dont 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
the litigants or the courts exactly what was
done how what the evaluation and how -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- it was applied
to all those countries in the world
I understand some of the
confidentiality that might concern you but if
the backdrop is the way that Justice Kagan
described it -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- that -- that
heated -shy
GENERAL FRANCISCO Well I -- yeah -shy
JUSTICE SOTOMAYOR -- anti-Semitic
background dont you think that once you get
through the Mandel preliminary 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
GENERAL FRANCISCO Well Your Honor
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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
owes to another coequal branch of the
government there is a very strong presumption
that what is being set out there is the truth
JUSTICE KAGAN You -- you said
something earlier General I want to make sure
that I got it right You said if at the time
the President had said we dont want Muslims
coming into this country -shy
GENERAL FRANCISCO Uh-huh
JUSTICE KAGAN -- that that would
undermine the proclamation
GENERAL FRANCISCO Yes
JUSTICE KAGAN Did I get you right
GENERAL FRANCISCO Yes
JUSTICE KAGAN So I -- I think you
know honestly the difference here then seems
to be is everything that the President said
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effectively that
GENERAL FRANCISCO I think there are
two issues Your Honor 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 embodiment of the executive branch So
that those statements should be out of bounds
But for -shy
JUSTICE KENNEDY But suppose you have
a local mayor and as a candidate he makes
vituperative hate -- hateful statements hes
elected and on day two he takes acts that are
consistent with those hateful statements
Thats -- whatever he said in the campaign is
irrelevant
GENERAL FRANCISCO Your -- Your
Honor if he takes the same oath -shy
JUSTICE KENNEDY You would say
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whatever he said in the campaign is irrelevant
GENERAL FRANCISCO I would say two
things And that was the -- and the second
thing is the point I was about to turn to I
would say yes because we do think that oath
marks a fundamental transformation but I would
also say here it doesnt matter because here
the statements that they principally rely on
dont actually address the meaning of the
proclamation itself
This is not a so-called Muslim ban
If it were it would be the most ineffective
Muslim ban that one could possibly imagine
since not only does it exclude the vast
majority of the Muslim world it also omits
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 multi-agency worldwide review that
applied neutral criteria all across the world
and concluded under those neutral criteria
most of the world was fine but a small part of
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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
JUSTICE BREYER All right Can -shy
can I ask a more -- I did read I think almost
all the 80 briefs Now your time -- what do -shy
CHIEF JUSTICE ROBERTS Yeah dont
worry Please go ahead
JUSTICE BREYER All right All
right All right Almost 80 and I think I -shy
some were repetitive not too many And I
think I know the basic arguments but theres
one question Im left with and it starts with
an assumption which I think you share but I
want to be sure All right
I noticed that the Carter order and
the Reagan order both had case-by-case
exceptions
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER And I looked 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
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individual circumstances such as giving some
examples the following
And then they have to be no
terrorists Well thats the law anyway And
they -- they have to be in the interests of the
United States And there cant be undue
hardship which the only time the word
hardship appears in the immigration laws it
says extreme hardship
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER So undue must be
less than extreme
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER Okay So Im -- then
they have a list people with foreign contacts
previously established business reasons
theyve been here studying or other long-term
activity they want to visit or reside with a
close family member they have a disease or
something that they need -shy
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER -- treatment for
they -- previously been employed And there
are about five other things
GENERAL FRANCISCO Yeah
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JUSTICE BREYER All right Focus on
that class of individuals
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER Now in countries -shy
150 million people all together there must be
quite a few who have -- do fall within that
class So -shy
GENERAL FRANCISCO Well yes Your
Honor but theres only a small number of
people that seek to come into our country
JUSTICE BREYER Well thats what Im
asking about
GENERAL FRANCISCO Yeah
JUSTICE BREYER You see
GENERAL FRANCISCO Yeah
JUSTICE BREYER Thats now -- if you
-- you think -- now as far as were concerned
if they fall within that class there -shy
theres no reason given here why they should be
excluded other than the -- the normal
processes
GENERAL FRANCISCO Well a couple of
responses Your Honor
JUSTICE BREYER What
GENERAL FRANCISCO First in terms of
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the numbers -shy
JUSTICE BREYER Im not asking about
the numbers
GENERAL FRANCISCO Oh oh youre not
asking -shy
JUSTICE BREYER I want to ask about
GENERAL FRANCISCO So -- so in terms
of the reason -shy
JUSTICE BREYER Yeah
GENERAL FRANCISCO -- they should be
excluded one of the principal purposes of the
proclamation is to exert diplomatic pressure on
governments in order to get them to change and
provide us with the information -shy
JUSTICE BREYER So you think they
should be excluded
GENERAL FRANCISCO Not if they meet
the criteria for the -shy
JUSTICE BREYER Not if they meet the
criteria
GENERAL FRANCISCO -- for the waiver
JUSTICE BREYER Okay Okay So
theres -shy
GENERAL FRANCISCO Thats why we have
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-- thats why we have the waiver
JUSTICE BREYER Thats -- thats -shy
thats what I thought you would say
GENERAL FRANCISCO Yeah
JUSTICE BREYER Then I get -- can ask
my question Sorry
GENERAL FRANCISCO Yes
JUSTICE BREYER But I want to be sure
were the same wavelength
GENERAL FRANCISCO Yes
(Laughter)
JUSTICE BREYER Okay 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 theres the
business community complaining theres the
academic community there were 46 scholars at
Harvard there -- there are families in the
Lisa Blatt brief you know that -- that they
say we were trying to get medical treatment and
nobody told us about this and -- and theyve
only admitted two and theres supposed to be
guidance and -shy
GENERAL FRANCISCO Thats not true
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JUSTICE BREYER -- you havent put in
the guidance and -- and -- and the most there
are is 100 And so there is my question If
you have done the same thing that the Reagan
people did and the Carter people did then it
might be -- Im not expressing a definite
opinion -- but well youve got the same thing
here but if this is as one brief says just
window dressing and they never apply it -shy
GENERAL FRANCISCO Right
JUSTICE BREYER -- then you have
something new and different going well beyond
what President Reagan did
GENERAL FRANCISCO Sure
JUSTICE BREYER Okay So I want to
know how do I find out -- how do I find out
when there is not that information in the
brief do we have to -- can we have another
hearing Do we send it back Do we say look
the government of course thinks this isnt
window dressing -shy
GENERAL FRANCISCO Right
JUSTICE BREYER -- but the other side
says there are only two people no notice
nobody knows
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GENERAL FRANCISCO So Your Honor
two -shy
JUSTICE BREYER There are people in
Yemen there are people in Somalia -shy
GENERAL FRANCISCO Yeah
JUSTICE BREYER -- decent people
Business -- you see my point
GENERAL FRANCISCO Yes
JUSTICE BREYER Whats the answer
GENERAL FRANCISCO And two responses
JUSTICE BREYER Yes
GENERAL FRANCISCO Our reply brief
has our most -- most current number on waivers
and I believe the number at page 17 footnote
-- well its -- its over 400 I cant
remember the exact statement
JUSTICE BREYER All right Thats
400 out of 150 million
GENERAL FRANCISCO And then -shy
JUSTICE BREYER And -- and is it well
publicized in these countries that they know
all they have to do is go to the visa office
and say I understand the thing I want an
exception
GENERAL FRANCISCO No Your Honor
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and I have two -- two responses -shy
JUSTICE BREYER Yeah
GENERAL FRANCISCO -- to that One
is I dont know how well publicized it is but
I suspect that people understand how to get it
My second principal response is
though that frankly in terms of the
legality I think that the waiver is not
necessary although it is a very good thing
which is why -shy
JUSTICE BREYER Not necessary There
-- there you have President Reagan -shy
GENERAL FRANCISCO -- which is why
most -- which is why most governments dont -shy
which is why its -- its a good thing which
is why most of these proclamations often have
them But theres nothing in -shy
JUSTICE BREYER Okay So you want me
to consider -shy
GENERAL FRANCISCO -- the law that
actually requires it
JUSTICE BREYER Thats what you want
You want me to consider the lawfulness of this
order on the assumption that there is no
waiver
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GENERAL FRANCISCO I dont -shy
JUSTICE BREYER Which is not what -shy
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 here thats the -shy
thats the -shy
GENERAL FRANCISCO Right The answer
to my -- your question Your Honor is no I
dont want you to consider the proclamation on
the -- on the hypothetical situation that it is
what it isnt but I do think that the
proclamation as written and as applied falls
well within the Presidents authority under
1182(f)
Thank you Mr Chief Justice
CHIEF JUSTICE ROBERTS Thank you
General We will afford you rebuttal time
GENERAL FRANCISCO Thank you
CHIEF JUSTICE ROBERTS Mr Katyal
ORAL ARGUMENT OF NEAL K KATYAL
ON BEHALF OF THE RESPONDENTS
MR KATYAL Thank you Mr Chief
Justice and may it please the Court
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The executive order is unlawful for
three reasons It conflicts with Congresss
policy choices It defies the bar on
nationality discrimination something you never
heard my friend talk about And it violates
the First Amendment
Congress has already specified a
three-part solution to the very same problem
the order addresses Aliens seeking entry from
countries that dont cooperate with the United
States in vetting including state sponsors of
terrorism and countries that provide inaccurate
information
First aliens have to go through the
individualized 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 the order uses Congress rejected a
ban Instead it used carrots When countries
cooperated theyd get extra credit a track -shy
faster track for admission Legislation to use
big sticks like nationality bans failed
And third Congress was aware
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circumstances could change on the ground so it
required reporting to them so it could change
the law
CHIEF JUSTICE ROBERTS Well lets
take big sticks fail Lets suppose that the
intelligence agencies go to the President and
say we have 100 percent solid information
that on a particular day 20 nationals from
Syria are going to enter the United States with
chemical and biological weapons They could
kill tens of thousands of Americans
In that situation could the President
ban the entry of Syrian nationals on that one
day
MR KATYAL He could for two reasons
Theres two different arguments Theres the
nationality discrimination ban 1152 and then
theres you know whether or not this comports
with Congresss policy judgments
And with respect to both I think it
would It wouldnt be nationality
discrimination for the reasons Judge Sentelle
said in LAVAS when you have an emergency
fast-moving situation like the Syria example
youre saying
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CHIEF JUSTICE ROBERTS Well just to
stop interrupt you there I mean what if
its a week What if its a week a month from
now Thats what the intelligence information
is
In other words Im trying to -shy
MR KATYAL Right
CHIEF JUSTICE ROBERTS -- respond to
your point that it has to be an immediate
decision
MR KATYAL Yeah So I think you
know this Courts dealt with that in
Youngstown and Hamdan and said look you know
the Presidents going to get a pass absolutely
on you know what he says the emergency is
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 460 days on -- later
Mr Chief Justice Hes never even introduced
legislation about this So were so far from
that hypothetical well concede the
hypothetical
CHIEF JUSTICE ROBERTS Well imagine
-- imagine if you can that Congress is unable
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to act when the President asked for
legislation
(Laughter)
MR KATYAL Right
CHIEF JUSTICE ROBERTS And someone
introduces a bill saying lets authorize -shy
first of all the President may have qualms
about sharing that absolute intelligence
broadly but lets say theres a bill
introduced to say lets authorize the President
and theres a bill introduced to say lets
block the President and neither bill moves
MR KATYAL 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 -- theres only one
problem hes identifying which is countries
not cooperating
Hes not talking about people coming
in or something like that like your
hypothetical And with respect to that
Congress has said heres how we deal with it
We deal with it with the individualized vetting
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system which pushes all the burdens on a
person coming in Thats 1361
Youve got to show biometric ID under
the statute Youve got to have an in-person
interview if theres any risk that the person
is from a country thats a state sponsor of
terrorism like your hypothetical or anything
else
So Congress has really said in a
robust way heres how we would deal with it
And to the extent countries arent cooperating
we offer carrots
Congress rejected exactly what theyre
trying to propose here which is a flat
nationality ban And thats where I think the
force of our argument lies with respect to the
first point which is this is countermanding
Congresss policy judgments
My friend on the other side actually
in his brief -shy
JUSTICE ALITO Well Congress did -shy
Congress did act It enacted 1182(f)
MR KATYAL Correct
JUSTICE ALITO Why doesnt this fall
squarely within the language of 1182(f)
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MR KATYAL For -- for -- we have
both textual reasons that its not a class for
reasons Justice Breyer was talking about Its
not perpetuated -- its perpetual like Justice
Ginsburg was talking about But we think
theres a much bigger point Justice Alito
which is -shy
JUSTICE ALITO Well maybe you could
talk about the text Its not a class
Doesnt 11 -- doesnt 1182(f) say whenever the
President finds that the entry of any aliens -shy
MR KATYAL Correct
JUSTICE ALITO -- or any class of
aliens So put class aside although I dont
really see why people who are nationals of a
particular country dont constitute a class
What about any aliens
MR KATYAL Right So we think it is
any you know -- because the power in 1182 is
so broad and sweeping and does allow the
President to supplement what Congress has done
we think that you have to -- you have to be
careful and read limit -- you have to read it
just the way you read every other statute to
say how do we harmonize that broad text of
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1182(f) with the rest of the INA
And our point in our briefs which I
dont 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 you know and end so-called chain
migration or anything like that He could do
-- countermand any of the provisions of the INA
and turn it into a line item veto
So for that reason we think there
has to be some limit Thats something this
Courts dealt with in you know the tobacco
case or -shy
JUSTICE ALITO Well does this
proclamation do anything like that Does this
proclamation purport to establish a new
permanent immigration policy for the United
States
MR KATYAL Absolutely Your Honor
This is a perpetual policy that bans It does
exactly what Congress in 1965 said you cant
do And it countermands Congresss
fine-grained reticulated judgment from 2001
2015 and several other times which is to say
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instead of these flat bans were going to have
-- were going to balance foreign policy
considerations economic considerations like
the US companies brief humanitarian image
of the United States views all of that
together and said we wont do the flat ban
Instead were going to have a much
more fine-grained approach with individualized
vetting and carrots for the countries that
dont disagree -- that dont cooperate
JUSTICE ALITO What is your basis for
saying that it is perpetual
MR KATYAL Well theres nothing in
the order that ends it And you heard my
friend say oh that would doom all executive
orders But thats not true Half of these -shy
JUSTICE KENNEDY I thought it had to
be reexamined every 180 days
MR KATYAL No thats not what it
says It says theres a report that has to
come in at 180 days and nothing happens at the
end of the report
JUSTICE KENNEDY Well that -- that
indicates there will be a reassessment
MR KATYAL Well in -shy
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JUSTICE KENNEDY And then the -- and
-- and the President has continuing discretion
MR KATYAL Justice Kennedy this
argument wouldnt be there if there was
anything about reassessment the way there are
in about half the orders including the Cuba
order which says it sunsets once the crisis
ends Theres nothing like that in this
And its just like a reporting
requirement to Congress in which Congress isnt
necessarily required to do anything Congress
has statutes like that all the time
This is that And thats why this is
unlike any other executive order If you go
back and look at all 43 executive orders that
Presidents have issued none of them have even
arguably countermanded Congresss judgment in
the area Theyve all been consistent
Theyve all been supplements
JUSTICE KENNEDY Well the statute
says first that -- that -- that 1182 for such
period as he deems necessary and he can have
continuing supervision over whether its still
necessary
MR KATYAL Again we wouldnt have a
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problem with that if it was tailored to a
crisis it says it sunsets and then you know
could be re-upped or something like that
Thats not what this says This is about a
perpetual problem
JUSTICE KENNEDY So you want the
President to say Im convinced that in six
months were going to have a safe world
MR KATYAL Well -- well -- well no
Justice Kennedy thats not our argument Our
argument is here the President is identifying
something that is a perennial problem Our
brief says it goes back 100 years you know
when the Soviet Union was around we dont 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
CHIEF JUSTICE ROBERTS What if the
military advisors tell the President that in
their judgment the President ought to order a
strike an air strike against Syria and the
President says well -- does that mean he cant
because you would regard that as discrimination
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against a majority Muslim country
MR KATYAL Absolutely not Theres
nothing to do with the text of the statute
The 1152 statutes about discrimination and the
issuance of visas And thats all that -shy
CHIEF JUSTICE ROBERTS So under
1182(f) you would say that theres no problem
under that provision
MR KATYAL Well under 1182 as I
understand it was a strike And so I dont
think theres any immigration issue in your
hypothetical I might be misunderstanding it
Mr Chief Justice
CHIEF JUSTICE ROBERTS Well any type
of targeted action that would have a impact on
the Muslim population
MR KATYAL Absolutely We think the
President has wide authorities to do things
that have impacts on the Muslim population
Take the laptop ban that was introduced -shy
CHIEF JUSTICE ROBERTS Why under your
theory wouldnt that constitute or the argument
would be that thats discrimination under your
Establishment Clause argument -shy
MR KATYAL Oh
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CHIEF JUSTICE ROBERTS -- that thats
discrimination on the basis of faith because he
has said in the past if you accept the -shy
MR KATYAL Yeah
CHIEF JUSTICE ROBERTS -- accept the
arguments that he -- he is anti-Muslim
MR KATYAL Not at all Your Honor
and no President has run afoul of this you
know and thats because here the President
and his advisors have directly tied this policy
to those statements And the red brief at page
70 I think is the greatest illustration of
that
Thats 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 INA is
that the President can take a wrecking ball to
the statute and countermand Congresss
fine-grained judgments that -shy
CHIEF JUSTICE ROBERTS He can never
-shy
JUSTICE KAGAN Well you might think
-shy
JUSTICE GORSUCH Mr Katyal -- Mr
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Katyal if I might on -- on the statutory
question before we leave it Weve been
proceeding so far on the assumption that we can
reach the merits but the government makes the
argument for example that aliens who are
removed from this country have to bring their
claims personally and third parties cant
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
who are not present in this country Whats
the answer to that
MR KATYAL Well several This is
not a third-party case These are United
States citizens bringing this challenge in a
state -shy
JUSTICE GORSUCH Oh behalf of -shy
MR KATYAL -- of the United States
JUSTICE GORSUCH -- aliens not
present in the country
MR KATYAL Well but they are
directly -- they are directly harmed
themselves Let me just give you one example
Not just the State of Hawaii whose university
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is directly impacted but lets just take for
example the Alomari -- Mr Alomari the
10-year-old in the PARS Equality brief Justice
Breyer that you were referring to This is a
10-year-old daughter in Yemen who is -- whos
trying to come here because she has cerebral
palsy
JUSTICE GORSUCH I understand that
but those arguments dont work with respect to
aliens present in the country So why do they
work for aliens who are not present in the
country
MR KATYAL Because I -shy
JUSTICE GORSUCH Those very same
arguments would not succeed
MR KATYAL Well -shy
JUSTICE GORSUCH I think youd
concede that they wouldnt succeed for aliens
present -shy
MR KATYAL Right And they dont
succeed because there you have a better
plaintiff might not be willing to bring them in
the United States and thats why the court
you know says no third party But here
these folks are directly impacted
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And the most important thing to say is
Sale answers this You heard my friend concede
Sale was jurisdictional the issues in Sale
Thats how they briefed it up Thats how he
just described it This Court had exactly that
situation United States plaintiffs and it
reached the merits
Our statutory point to you is that if
you accept this order youre giving the
President a power no President in 100 years has
exercised an executive proclamation that
countermands Congresss policy judgments He
has zero examples to say that when Congress has
stepped into the space and solved the exact
problem that the President can then come in
and say No I want a different solution
If you do that youd -- its not just
family preferences that youre allowing him to
get rid of youd get rid of all sorts of even
small things in the Code or big things like
theres a preference for specialty occupations
like software engineers in the INA The
President could say The economics are such
Im going to ban software engineers from going
to California or something like that under that
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sweeping 1182 power
JUSTICE KAGAN I -- I guess the
question though Mr Katyal is maybe youre
entirely right that 1182(f) needs to have some
limits to prevent the President from doing
something thats completely contrary to another
section of the statute
But youre suggesting well the
President cant do anything thats not
contemplated by the rest of the statute
MR KATYAL That is not our argument
JUSTICE KAGAN Okay 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 -shy
MR KATYAL Right
JUSTICE KAGAN -- between what the
President is doing and another statutory
provision
MR KATYAL So our view is that the
President can supplement he just cant
supplant In this Courts decisions in the
Brown amp Williamson case and the UARG greenhouse
gas and Concepcion and Abilene Cotton the
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Savings Clause cases all say there are three
things you look at And its not a flat bar
It cant be like a direct contravention Even
they say its not a direct contravention in
their reply brief at page 19
So the three things are first can
these two solutions coexist or not Second
has Congress prescribed a reticulated
comprehensive scheme And third you know is
there any other indication that Congress
considered 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 -shy
Congress has a comprehensive reticulated scheme
that deals with the exact single problem that
hes identified which is countries not
cooperating It cant coexist with the
solution of a flat ban It makes no sense for
example to have the in-person visa requirement
-- visa interview which is in 12 -shy
1202(h)(2) which is for -- for people who come
from state sponsors of terrorism or who have a
group with a likelihood of providing
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inaccurate information Congress said there
has to be an in-person interview for that
It doesnt make sense to say well
youre going to have a flat ban It doesnt
make sense to have a Visa Waiver Program which
is all about countries that provide zero
information to the United States -- state
sponsors of terrorism and the like -- and say
were going to give you a carrot and then say
oh no forget about the Visa Waiver Program
JUSTICE ALITO Can -- can you imagine
any situation in which the threat of the
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
MR KATYAL Yes
JUSTICE ALITO You cannot imagine any
such situation
MR KATYAL Yes I can And the
President would have a robust authority to deal
with that That is not our argument So -shy
JUSTICE KENNEDY And your argument is
that courts have the -- the duty to review
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whether or not there is such a national
exigency thats for the courts to do not the
President
MR KATYAL No I think you have
wide deference Justice Kennedy Its exactly
what you said when you joined Justice Breyers
opinion in Hamdan which is as long as -- you
know Presidents have wide berth in this area
but if -- you know certainly if theres any
sort of emergency that precludes it
But when you have a statute that
considers the very same problem and theres
nothing new that theyve identified in this
worldwide review process that Congress didnt
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 the -shy
CHIEF JUSTICE ROBERTS But thats in
the abstract I mean they may have more -shy
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
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And it seems to me a difficult
argument to say that Congress was prescient
enough to address any particular factual
situation that might arise
MR KATYAL Well that again -shy
thats again Mr Chief Justice not our
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 But here -shy
CHIEF JUSTICE ROBERTS What about -shy
what about a change of administration in a
particular country -shy
MR KATYAL Yes
CHIEF JUSTICE ROBERTS -- in which
perhaps the vetting procedures are not going to
be taken seriously
MR KATYAL Right
CHIEF JUSTICE ROBERTS That Congress
could not have anticipated
MR KATYAL Well but again
Congress anticipated a country that is a state
sponsor of terrorism and even for -- with
respect to that providing no information and
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indeed fomenting against the United States
Congress said oh were not going to have a
nationality ban You know they flatly banned
that and said were going to have
individualized vetting and this Visa Waiver
Program carrot to try and deal with that you
know dangerous regime
Now again I can imagine an emergency
situation in which the President would have
even greater authority for that But here we
are 460 days later and I would caution the
Court not to make a decision about the
emergency youre concerned about That can be
bracketed as it was in Youngstown as it was in
Hamdan This is so far from that
The text of 1152 is flatly violated
here It says there shall be no discrimination
on the basis of nationality with the issuance
of visas
That is 39 percent of all the visas
this executive order covers Its not a small
part Its 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
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become part of our long-term polity This
executive order flatly contradicts that
Now if you accept his
interpretation -- he says well you know
were discriminating at the entry side not at
the visa side If you do that you are giving
the President the power to undo -- and hes
actually just done it -- hes undone the ban on
nationality-based discrimination Hes imposed
country quotas of zero for these countries at
the border
CHIEF JUSTICE ROBERTS If your -shy
your argument based on discrimination based on
the campaign statements is there a statute of
-- no the one that you do make based on the
campaign statements is there a statute of
limitations on that or is that a ban from
presidential findings for the rest of the
administration
MR KATYAL So Mr Chief Justice I
first want to be very clear about this Our
point about 1152 and the discrimination has
nothing to do with any campaign statements or
anything else
Its purely the text of the
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proclamation which is nationality-based
discrimination through and through Judge
Sentelle said you couldnt imagine a clearer
text than this And this is -- it violates it
Now -shy
CHIEF JUSTICE ROBERTS My question
was on the -shy
MR KATYAL -- youre asking about
the First Amendment
CHIEF JUSTICE ROBERTS Yes
MR KATYAL I just want to make
absolutely clear that were -- thats not -shy
you know you dont need to do any of that for
purposes of 1152 And that would knock out
39 percent of the most important part of the
executive order
CHIEF JUSTICE ROBERTS My question
of course -shy
MR KATYAL Yes Now Im getting -shy
CHIEF JUSTICE ROBERTS -- was not on
1152
MR KATYAL Yes Im getting there
Okay
With respect to that we dont think
-- we think that the test as this Court has
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said a reasonable objective observer viewing
all the statements and we think absolutely
my friend is right you shouldnt look to
campaign statements in general or stuff like
that 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 70
of our red brief you have a very good example
of this
After the executive order this latest
executive order was promulgated the President
tweeted these three virulent anti-Muslim
videos And then the press spokesman was
asked What does this mean What is this
about And the answer was The President has
spoken about exactly this in the proclamation
CHIEF JUSTICE ROBERTS My question
was whether or not the inhibition on the
ability to -- to enter one of the proclamations
applies forever
MR KATYAL Right No I think the
President could have disclaimed -- you know
easily moved away from all of these statements
you know but instead they embraced them
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Thats the difference
And so absolutely the President
would have wide berth to say thats a -shy
CHIEF JUSTICE ROBERTS So if
tomorrow he issues a proclamation saying hes
disavowing all those statements then the next
day he can reenter this proclamation
MR KATYAL Thats exactly what this
Court said in McCreary This Court in McCreary
said you know the same policy can be
constitutional if said -- if promulgated by one
entity and not by another depending on the
circumstances around it
CHIEF JUSTICE ROBERTS Is your answer
to my question yes
MR KATYAL Yes The answer is -shy
CHIEF JUSTICE ROBERTS Tomorrow he
issues a proclamation disavowing those
statements -shy
MR KATYAL Absolutely And thats a
CHIEF JUSTICE ROBERTS -- then the
next day he could reenter this and your
discrimination argument would not be
applicable
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MR KATYAL And -- and -- and Mr
Chief Justice thats exactly what I told the
Ninth Circuit in May The President didnt do
that Thats whats -- thats -- you know
thats what a reasonable objective observer -shy
JUSTICE SOTOMAYOR So if another -shy
JUSTICE ALITO Mr Katyal would any
reasonable observer reading this proclamation
with -- without taking into account statements
think that this was a Muslim ban
I mean there are -- I think there are
50 predominantly Muslim countries in the world
Five -- five countries -- five predominantly
Muslim countries are on this list
The population of the -- of the
predominantly Muslim countries on this list
make up about 8 percent of the worlds Muslim
population
MR KATYAL Absolutely
JUSTICE ALITO If you looked at the
10 countries with the most Muslims exactly
one -shy
MR KATYAL Right
JUSTICE ALITO -- Iran would be on
that list of the top 10
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MR KATYAL Right
JUSTICE ALITO So would a reasonable
observer think this was a Muslim ban
MR KATYAL If it were -- if it were
just the text of the order alone it might
raise eyebrows for fit and other reasons that
the briefs go into but we wouldnt be here
We absolutely agree that just -- its the same
test as in Lukumi and other cases You have to
look to all the circumstances around it that
are said the publicly available ones
You know and Justice Alito the fact
that the order only come -- encompasses some
Muslim countries I dont think means its not
religious discrimination For example if Im
an employer and I have 10 African-Americans
working for me and I only fire two of them I
dont think -- you know and say well Ive
left the other eight in I dont think anyone
can say thats not discrimination
JUSTICE ALITO No I -- I understand
that And it is one of our fundamental values
that there is religious freedom here for
everybody in that number -- adherence to every
religion are entitled to equal treatment
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My only point is that if you look at
what was done it does not look at all like a
Muslim ban There are other justifications
that jump out as to why these particular
countries were put on -- on the list
So you -- it seems to me the list
creates a strong inference that this was not
done for that invidious purpose
MR KATYAL Justice Alito I think if
it were just the list I think wed be right -shy
youd be right although Id point out that
you yourself in the Stormans case said that
its a religious -- it raises an inference of
religious gerrymander of the burden imposed
falls almost exclusively on those with
religious objections
This is a ban that really does fall
almost exclusively on Muslims between
902 percent and 998 percent Muslims And so
it does look very much like what you said in
Stormans But even then we wouldnt be here
if it werent for all of the different
statements
And the best evidence of this about
what a reasonable objective observer would
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think is to look at the wide variety of amicus
briefs in this case from every corner of
society representing millions and millions of
people from the US Conference of Catholic
Bishops which calls it blatant religious
discrimination
JUSTICE GORSUCH Mr Katyal on that
its been a long time since this Court has used
the Lemon test reasonable observer even to
strike down a domestic statute let alone
something with purely international
application What -- what do we do about that
MR KATYAL Yeah 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 and our protest of
King George which is all about using the
immigration power to exclude people of a
different faith And thats what our
Constitution is about So thats the first
thing
And the second is we dont think you
have to get into Lemon and all these other
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tests that you all have struggled with I
think this Court in Lukumi was very clear in
saying that when youre talking about
denigration of religion all the tests point in
the same direction
JUSTICE SOTOMAYOR Mr Katyal you
said something earlier you said you wouldnt
be here if all of those statements the
background statements were not made Do you
mean that on all of your bases You wouldnt
be here on the Establishment Clause claim
MR KATYAL Only on the Establishment
Clause claim not on anything else And our
point is you know he talks about for
example this worldwide vetting process
Remember his own argument on 1182 is
the statute puts the President -shy
JUSTICE SOTOMAYOR So lets -- lets
go back to not being here without the
statements Clearly the statements even
conceded by your adversary do give you a basis
to look behind all right the reason
So if were looking behind it how do
you deal with the Generals suggestion that
there was a cleansing that occurred because of
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all of the agencies and departments who
participated in this process
MR KATYAL Yeah So theres three
things Number one is that his -- his own
argument is that 1182 puts the President in the
drivers seat so the cabinets not important
Its the Presidents proclamation
Second the order itself says in its
first lines it harkens back to Executive
Orders 1 and 2 and it says its an outgrowth
of that So it was infected by the same thing
that was struck down on Establishment 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 ban
a non-politically-correct ban and the like
So given all of those things but in
particular given the fact that 1182 itself
forces the President to make the proclamation
its the Presidents proclamation so I dont
think you even have to get into this whole
unitary executive thing but I do agree with
you Justice Sotomayor that thats another
problem which is theyre coming before the
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Court and saying Nope its the President
whos in charge And now theyre saying here
Oh no no no its these other people
This is the Presidents proclamation
through and through No President has ever
said anything -- anything like this And
thats what makes this different
And the President -shy
JUSTICE KAGAN And -- and yet Mr
Katyal 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 evaluating the adequacy of those
national security interests which for the most
part weve said courts are not equipped to do
MR KATYAL Right Were not asking
you to second-guess a national security
judgment at all with the purpose of the
Establishment Clause
Were saying you just have to look to
what a reasonable objective observer would do
Thats the ordinary test that youve used in
cases like Lukumi Is there an official
purpose to disparage a religion Here there
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very much is Thats you know everything
that the President has said and that the order
itself embodies Thats our fundamental
problem
JUSTICE BREYER What do you think -shy
its a -- its a -- its still something Im -shy
Im thinking about perhaps to the side but
the statute you point to one of the ones that
is stronger for you There are obviously
objections to what youre saying in quite a few
briefs all right but the one that you talked
about it does say you have to have an
interview with a consular official if the
person is from a country officially designated
by the Secretary as a state sponsor of
terrorism It does say that
So theyll say but we do have that in
respect to everyone under the exception So
there isnt much problem Weve gone beyond
that in respect to other people All right
Take their argument for a moment
Because my question is which I
couldnt find in the briefs is is it true -shy
Im just taking what they say -- that really
that isnt so they dont publicize it they
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havent put forth a guidance people dont know
they can come in and qualify for this
And if it turns out that that is
something that is important to the lawfulness
of the order because there are many many
categories there -shy
MR KATYAL Right
JUSTICE BREYER -- what do we do
MR KATYAL So two things Number
one this waiver process has excluded -- and
you have this in the PARS Equality brief at
page 14 A 10-year-old with cerebral palsy who
wants to come to the United States to save her
life and she cant move or talk The
10-year-old was denied a waiver Justice
Breyer
He says theres 430 people who have
gotten waivers Theyve never told you the
denominator and theres no publication of this
process and how -- how often it is And the
data that we do have suggests as a matter of
percentages its very weak
Just to give you some evidence of
that just the State of Hawaii has gotten about
1000 letters from people most of which say
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were not even getting waivers on the like
JUSTICE GORSUCH That -shy
MR KATYAL Weve heard very few
instances -shy
JUSTICE GORSUCH -- raises a question
of remedy for me
MR KATYAL Yes
JUSTICE GORSUCH We have this
troubling rise of this nationwide injunction
cosmic injunction -shy
MR KATYAL Yeah yeah
JUSTICE GORSUCH -- not limited to
relief for the parties at issue or even a class
action
MR KATYAL Right
JUSTICE GORSUCH And near as I can
tell thats -- thats a really new development
where a district court asserts the right to
strike down a -- a federal statute with regard
to anybody anywhere in the world
MR KATYAL Yeah
JUSTICE GORSUCH What -- what do we
do about that
MR KATYAL Obviously the injunction
here has been trimmed by this Court itself and
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others And I do think -- I -- I share your
impulse Justice Gorsuch Thats something
that I think lower courts are debating right
now in a number of different contexts like the
contraception case and the like
I think this case is the poorest
example to get into it because of United States
versus Texass point which is this is an
immigration case and Article I Section 8 puts
Congress in the drivers 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 doesnt make a
tremendous amount of sense It would almost be
an advisory opinion
Our fundamental point to you though
is that Congress is in the drivers seat when
it comes to immigration and that this
executive order transgresses the limits that
every President has done with this proclamation
power since 1918 And to accept it here is to
accept that the President can take an iron
wrecking ball to the statute and pick and
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choose things that he doesnt want for purposes
of our immigration code That cant be the law
of the United States
CHIEF JUSTICE ROBERTS Take five
extra minutes Okay
MR KATYAL Okay
(Laughter)
CHIEF JUSTICE ROBERTS You dont have
to
(Laughter)
MR KATYAL Well if there are -- if
there are any other questions Im happy to
take anything Okay Thank you
CHIEF JUSTICE ROBERTS Thank you
counsel
Five minutes for rebuttal General
REBUTTAL ARGUMENT OF GENERAL NOEL J FRANCISCO
ON BEHALF OF THE PETITIONERS
GENERAL FRANCISCO Mr Chief -- Mr
Chief Justice and may it please the Court
I -- I really do have just a few quick
points unless Your Honors have additional
questions
Justice Breyer I did want to respond
in more detail to your question about how the
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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
the waiver -- the visa officer first determines
whether the person is otherwise admissible
under other provisions of the INA
If theyre inadmissible you never
even get to the proclamation Then for those
people who are not inadmissible under other
parts of the INA like 1182(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 youre not subject to an exception
then the consular officer him or herself
turns to the waiver provision and applies the
criteria of the waiver provision
JUSTICE GINSBURG How do you deal
with the -shy
GENERAL FRANCISCO So it does get
applied in every single case
JUSTICE GINSBURG How -- how do you
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deal with the example that was brought up of
the child with cerebral palsy
GENERAL FRANCISCO Your Honor the
waiver is built to address those issues I am
not familiar enough with the details of that
case to tell you what happened in that
particular case But thats what the waiver
provision -shy
JUSTICE BREYER But thats -- thats
you see -shy
GENERAL FRANCISCO -- is intended to
address
JUSTICE BREYER Youve read the
briefs as have I All right Now there are
some that lists about 10 or 15 instances like
the cerebral palsy One has Parkinsons Then
theres another brief that lists all the people
who are professors scholars at universities
and there are a lot And -- and then there are
people they list the students from these
countries a lot
GENERAL FRANCISCO Yeah
JUSTICE BREYER And then the business
community lists a -- a whole bunch and says my
goodness they have been unable to get -- we
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dont know whats going on
And then they say Well whats going
on is nothing is going on
GENERAL FRANCISCO Well Your Honor
-shy
JUSTICE BREYER Now I dont -- Im
not taking sides on that Im just saying I
dont know
GENERAL FRANCISCO Right And the
principal purpose of the proclamation is of
course to 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 Im 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
admissible
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 dont and doesnt tell us we
cannot intelligently make the admissibility
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determination
Third Id like to address the
1152(a)(1)(A) point about nationality-based
discrimination
JUSTICE SOTOMAYOR General could you
stop just one second
GENERAL FRANCISCO Yes Your Honor
of course
JUSTICE SOTOMAYOR I for one am like
Justice Breyer concerned about is this window
dressing or not Whats in place to ensure
its not What are you personally doing to
represent to us that it is in fact a real
waiver process -shy
GENERAL FRANCISCO Your Honor State
Department consular officers automatically
apply the waiver process in the course of every
visa application And they are doing that
which is why there have been -- and I looked at
our brief -- 430 waivers that have been issued
since -shy
JUSTICE SOTOMAYOR Have you bothered
-shy
GENERAL FRANCISCO -- the
proclamation was issued
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JUSTICE SOTOMAYOR -- to look to see
if there are reasons for all of those peoples
exclusions
GENERAL FRANCISCO Your Honor I
cannot claim that I have looked into every
individual case
JUSTICE KENNEDY Could you make your
1152 point
GENERAL FRANCISCO Yes Your Honor
1152(a)(1)(A) addresses one thing the issuance
of immigrant visas It doesnt address the
broader question over whether somebodys
allowed to enter in the first place
Thats governed by 1182 including
1182(f) So essentially 1182 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 1152(a)(1)(A) is
one of the rules that governs how we distribute
visas amongst that group thats eligible to
come in
And its not just nationality-based
distinctions that it applies to It also
applies to things like place of residence So
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once you have that universe of eligible people
1152(a)(1)(A) governs how you distribute them
But lets 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 non-immigrant visas to people who
arent allowed to enter but we wouldnt have
to allow anyone to enter and we wouldnt have
to issue any non-immigrant visas
So the bottom line is I think theyre
simply wrong on that case -- on that issue
My final point has to do with my -- my
brothers 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 25 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
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says its about Foreign policy and national
security And we would ask that you reverse
the court below
CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1109 am the case
was submitted)
Heritage Reporting Corporation
83Official
1 998 [1] 6619 39914 44111417 51581120 arise [2] 5725 584
1 [1] 6910 A 52101118
ALITO [16] 432124 446813 45
around [3] 4814 6313 6510
Article [2] 136 749 1000 [1] 7225 am [3] 116 32 826 15 4611 561119 6472024 65 aside [1] 4414 10 [4] 642125 6516 7715 Abilene [1] 5425 21221 669 asks [3] 169 519 7614 10-year-old [4] 5235 721215 ability [1] 6220 allies [2] 73 1719 assert [2] 5111 7811 1002 [2] 116 32 able [2] 2210 5111 allow [3] 413 4420 8110 asserts [1] 7318 100 [4] 353 407 4813 5310 above-entitled [1] 114 allowed [3] 178 8013 819 associate [1] 2211 11 [1] 4410 abroad [1] 2113 allowing [1] 5318 associated [1] 812 1109 [1] 826 absolute [1] 428 almost [8] 116 1556 30712 66 assume [4] 19811 2016 813 1152 [7] 4017 494 5916 6022 61 absolutely [12] 4114 4213 4520 1518 7416 assumption [3] 3016 3724 513 1421 808 49217 5810 6112 622 63220 Alomari [2] 5222 attitude [1] 227
1152(a)(1)(A [4] 793 801019 81 6419 658 alone [2] 655 6710 Attorney [1] 523 2 abstract [1] 5720 already [3] 61024 397 authorities [1] 4918
1182 [10] 1018 4419 4721 499 academic [1] 3418 although [3] 379 4414 6611 authority [7] 6916 712 3815 42 541 6816 69519 801415 accept [8] 138 454 5035 539 Amendment [3] 396 619 6716 15 5622 5910
1182(a [1] 7612 603 742324 American [1] 1111 authorize [2] 42610 1182(f [18] 4591318 54 616 7 acceptability [1] 108 Americans [2] 4011 8121 automatically [2] 764 7916 1120 1025 1314 3816 432225 account [2] 105 649 amicus [1] 671 available [1] 6511 4410 451 497 544 8015 accurate [1] 1218 amongst [1] 8021 aware [2] 391725
12 [1] 5522 across [3] 107 2524 2923 amount [1] 7416 away [2] 6224 8117 1202(h)(2 [1] 5523
1361 [1] 432
act [4] 128 177 421 4322
acting [1] 313 analysis [3] 914 1624 7013
animus [1] 1710 B
14 [1] 7212 action [4] 2511 385 4915 7314 another [10] 519 1220 279 35 back [6] 234 3519 4715 4813
15 [1] 7715 actions [1] 247 18 54619 6312 646 6924 77 6819 699
150 [2] 325 3618 activity [1] 3118 17 backdrop [1] 2613
17 [1] 3614 acts [3] 410 281119 answer [9] 615 119 369 389 45 background [2] 2620 689
17-965 [1] 34 actually [14] 111923 1225 175 3 5113 6216 631416 balance [2] 462 4818
180 [2] 461821 21 2112 231 2410 257 299 37 answers [1] 532 ball [2] 5018 7425
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1918 [1] 7423 add [1] 64 anti-Muslim [2] 506 6213 4315 466 4817 4920 5324 55
1965 [1] 4522 added [1] 519 anti-Semite [1] 163 20 564 593 60817 6410 653
2 addition [2] 617 151 anti-Semitic [2] 194 2619 66317 691617 8119
2 [1] 6910
20 [1] 408
2001 [1] 4524
2015 [1] 4525
2018 [1] 112
25 [2] 112 8118
additional [1] 7522
address [10] 71 12618 133 299
583 77412 792 8011
addressed [2] 59 5723
addresses [3] 76 399 8010
adequacy [2] 5724 7014
adequate [1] 610
anti-Semitism [1] 1615
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anybody [1] 7320
anyway [1] 314
APPEARANCES [1] 118
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applicable [1] 6325
banned [1] 593
bans [3] 3924 4521 461
bar [3] 1420 393 552
bare [1] 303
based [7] 1415 1725 275 2922
60131315
baseline [14] 3162123 722 819
3 adherence [1] 6524 application [2] 6712 7918 972124 1547 1923 302 3919
3 [1] 24 administration [2] 5813 6019 applied [10] 111619 153 1913 7817
38 [1] 27 admissibility [3] 78 820 7825 23 269 2923 3814 76324 bases [1] 6810
39 [2] 5920 6115 admissible [4] 424 816 767 78 applies [9] 322 171 2113 6221 basic [4] 615 725 127 3014
4 19
admission [1] 3923 7651619 802425
apply [9] 147 1589 1918 2112
basically [2] 23725
basis [8] 85 171724 1916 4611
400 [2] 361518 admitted [1] 3423 231 2516 359 7917 502 5918 6821
43 [1] 4715 adopt [1] 314 approach [1] 468 became [1] 3917
430 [2] 7217 7920 adopts [1] 318 appropriate [1] 3025 become [1] 601
46 [1] 3418 adversary [1] 6821 April [1] 112 becomes [1] 5925
460 [2] 4119 5911 advice [2] 179 289 arbiter [1] 2622 began [1] 6915
5 50 [1] 6412
advisors [2] 4821 5010
advisory [1] 7417
affirm [1] 524
area [5] 419 1016 1519 4718 57
8
arent [2] 4311 819
behalf [9] 12122 24710 39 38
23 5118 7518
behind [2] 682223
7 afford [1] 3819 arguably [1] 4717 believe [1] 3614
70 [2] 5012 628 afoul [1] 508 argued [1] 236 below [6] 323 9212424 262 82
75 [1] 210 African-Americans [1] 6516 argument [37] 115 2258 348 3
8 agencies [5] 1925 251516 406
691 121241422 1327 1471013
19912 3822 4316 474 4810
benefit [1] 73
berth [2] 578 633
8 [2] 6417 749 agree [3] 1522 658 6923 11 492224 515 5411 562324 best [1] 6624
80 [2] 30812 ahead [1] 3010 5827 6013 6324 6816 695 71 better [3] 1022 1817 5221
9 air [1] 4823
AL [2] 147 21 7517
arguments [5] 3014 4016 506
between [2] 5418 6618
beyond [2] 3512 7119 902 [1] 6619 aliens [16] 424 128 1625 2113 52915 big [3] 3924 405 5320
Heritage Reporting Corporation Sheet 1 1 - big
84Official
bigger [1] 446
bill [4] 42691112
biological [1] 4010
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Bishops [1] 675
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both [5] 207 274 3019 4020 44
2
bothered [1] 7922
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bounds [1] 2814
bracketed [1] 5914
branch [8] 715161718 2312 27
89 2813
BREYER [49] 1315 3061122 31
111422 321411141624 332
610162023 3425812 35111
1523 36369111720 37211
1822 382 443 524 715 72816
7524 7791323 786 7910
Breyers [1] 576
brief [14] 3420 35818 3612 43
20 464 4813 5011 523 555 62
9 7211 7717 7920
briefed [1] 534
briefs [9] 413 308 3416 452 65
7 672 711123 7714
bring [7] 20131624 2110 2212
516 5222
bringing [1] 5116
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broad [5] 418 1146 442025
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Brown [1] 5424
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business [4] 3116 3417 367 77
23
C cabinet [9] 169 1724 1924 24
2225 25114 2810
cabinets [1] 696
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California [1] 5325
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60141623 624
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805
careful [1] 4423
carrot [2] 569 596
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Carter [6] 93 1013 113 3018 35
5 384
Carters [4] 1113161822
Case [25] 34 109 1222 1317 14
11 151015 198 2011 236 45
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case-by-case [5] 30192325 38
77
cases [5] 1519 551 659 6913
7024
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16
change [5] 92 3314 4012 5813
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21 131 309 3817182124 404
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634141722 642 75481419
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13 6510
cite [2] 76 1321
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24 2121115 2225 5014 6811
13 805
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131416 7313
Clause [15] 1320 1914 2069 21
21118 2225 288 4924 551 68
1113 6912 7020
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5415 6021 6112 682
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Clearly [1] 6820
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Code [2] 5320 752
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college [1] 222
come [13] 1324 175 3210 4621
526 5315 5523 5925 6513 72
213 801622
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6925
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committee [4] 512 24178
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companies [1] 464
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Concepcion [1] 5425
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concluded [4] 155 201 2518 29
24
conduct [2] 824 95
Conference [1] 674
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4819
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Constitution [3] 2424 289 6722
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15 5717
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core [1] 720
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Cotton [1] 5425
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counsel [2] 7515 825
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countrys [1] 1719
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COURT [22] 1115 311 1218 13
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85Official
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drivers [3] 696 741019
dropped [1] 46
duty [2] 276 5625
duty-bound [1] 2423
E earlier [2] 2713 687
easily [1] 6224
easy [1] 197
economic [1] 463
economics [1] 5323
effectively [1] 281
eight [1] 6519
either [2] 1112 265
elected [2] 162 2819
eligible [3] 801621 811
embodies [1] 713
embodiment [1] 2813
embraced [1] 6225
emergency [5] 4023 4115 5710
59813
emerges [2] 161416
employed [1] 3123
employer [1] 6516
enacted [1] 4322
encompasses [1] 6513
end [6] 162022 2314 4557 46
22
ends [2] 4614 478
engaging [1] 825
engineers [2] 532224
enough [4] 415 68 583 775
ensure [2] 2623 7911
enter [7] 1617 2114 409 6220
8013 81910
entire [1] 810
entirely [1] 544
entitled [1] 6525
entity [1] 6312
entry [6] 314 414 399 4013 44
11 605
equal [1] 6525
Equality [2] 523 7211
equipped [1] 7016
ESQ [2] 122 26
essentially [3] 714 1325 8015
establish [1] 4517
established [1] 3116
Establishment [12] 1320 1914
206 2121018 2225 4924 68
1112 6912 7020
ET [2] 147
evaluating [1] 7014
evaluation [1] 267
even [20] 1310 17916 19811 25
11 4120 4716 5319 553 5824
5910 6621 679 6820 691522
73113 7610
everybody [2] 2123 6524
everyone [1] 7118
everything [2] 2725 711
evidence [2] 6624 7223
exact [4] 3616 4217 5314 5517
exactly [12] 625 266 4313 4522
535 57515 62817 638 64221
example [14] 86 4024 455 515
24 522 5521 587 629 6515 67
17 6815 747 771
examples [2] 312 5313
exception [7] 92123 1120 3624
7118 761417
exceptions [2] 302023
exclude [2] 2914 6720
excluded [6] 910 2017 3220 33
1217 7210
exclusion [2] 127 1625
exclusions [1] 803
exclusively [2] 661518
executive [23] 715151618 14
10 23712 24814 2813 391 46
15 471415 5311 5921 602 61
16 621112 69923 7421
exercise [4] 206919 2218
exercised [1] 5311
exert [1] 3313
exerts [1] 324
exigency [1] 572
expect [1] 2424
explore [1] 420
expressing [2] 510 356
extensive [1] 151
extent [1] 4311
extra [2] 3922 755
extreme [8] 514 1919 205 2314
17 255 31912
eyebrows [1] 656
F face [1] 252
facial [1] 2510
fact [8] 10311 133 2623 6512
6714 6919 7913
factors [1] 5515
facts [1] 1620
factual [1] 583
fail [1] 405
failed [4] 315 914 301 3924
failing [1] 3918
fails [1] 99
failure [1] 96
fair [1] 55
faith [3] 277 502 6721
fall [7] 323 924 1312 32618 43
24 6617
falling [1] 3412
falls [3] 44 3814 6615
familiar [1] 775
families [1] 3419
family [5] 2212 3119 4566 53
18
far [5] 1413 3217 4121 513 59
15
fast-moving [1] 4024
faster [1] 3923
father [1] 2018
favor [1] 1510
federal [1] 7319
fell [1] 920
few [4] 326 7110 733 7521
final [1] 8114
find [4] 244 351616 7123
findings [1] 6018
finds [1] 4411
fine [3] 2521 2925 7615
fine-grained [4] 4524 468 4818
5020
finish [1] 1714
fire [2] 2318 6517
first [21] 14310 2421 272 283
3225 39614 427 4317 4721
556 6021 619 671622 699 76
614 801317
fit [1] 656
five [6] 3124 64131313 75416
flat [7] 4314 4616 4817 55220
564
flatly [3] 59316 602
flexible [1] 418
Focus [1] 321
folks [1] 5225
follow [1] 178
following [1] 312
fomenting [1] 591
footnote [1] 3614
force [1] 4316
forces [1] 6920
forecloses [1] 1517
foreign [8] 42 825 106 129 31
15 462 8018 821
forever [1] 6221
Forge [2] 212225
forget [1] 5610
form [1] 1916
forth [2] 618 721
forward [2] 132224
founding [1] 6718
four [1] 7814
Fourth [1] 263
FRANCISCO [117] 119 239 37
810 417 616112225 91218
10172124 115818 1231624
13418 142122124 1518 164
1821 171323 182924 1925
2081923 21321 228141722
2310162124 243111519 268
Heritage Reporting Corporation Sheet 3 danger - FRANCISCO
86Official
151825 27172022 28223 292
3021 3110132125 32381315
2225 334811182225 3447
1025 35101422 361581012
1925 3731320 381920 7517
19 7623 7731122 7849 797
1524 8049
frankly [1] 377
free [7] 2069101924 221818
freedom [1] 6523
friend [5] 395 4319 4615 532
623
full [1] 1520
fundamental [5] 2811 296 6522
713 7418
future [2] 161 1814
G game [1] 1325
gas [1] 5425
GEN [3] 119 239
General [127] 119 3810 417 57
23 616112225 91218 1017
2124 1125818 1231624 134
1618 142122124 1518 16418
21 171323 1825924 1925 20
281923 21321 228141722
23310162124 243111519 25
25 268151825 2713172022
28223 292 3021 31101321
25 323813152225 334811
182225 34471025 35101422
3615810121925 3731320
38191920 624 75161719 76
23 7731122 7849 79571524
8049
Generals [1] 6824
George [1] 6719
gerrymander [1] 6614
gets [1] 162
getting [4] 611922 731 7414
GINSBURG [4] 48 445 762125
give [8] 711 86 151225 5124
569 6821 7223
given [10] 917 1413 1718 1825
1915 241325 3219 691819
gives [2] 616 2224
giving [3] 311 539 606
goodness [1] 7725
GORSUCH [14] 5025 511820 52
81417 677 73258121622 74
2
got [4] 2714 357 4334
gotten [2] 721824
governed [1] 8014
government [14] 825 92 109 12
1523 1322 1524 222 264 278
10 3520 514 7823
governments [2] 3314 3714
governs [2] 8020 812
great [4] 248 274 812124
greater [1] 5910
greatest [1] 5012
greenhouse [1] 5424
ground [3] 223 401 5723
grounds [2] 624 6913
group [2] 5525 8021
guess [2] 1417 542
guidance [3] 3424 352 721
H Half [2] 4616 476
Hamdan [3] 4113 577 5915
hand [1] 1818
happened [1] 776
happens [2] 1718 4621
happy [1] 7512
harbored [1] 1710
hard [1] 1520
hardship [3] 31789
harkens [1] 699
harmed [1] 5123
harmful [2] 824 95
harmonize [1] 4425
Harvard [1] 3419
hate [1] 2818
hateful [2] 281820
hatred [1] 167
HAWAII [4] 17 36 5125 7224
head [2] 23812
hear [1] 33
heard [7] 1523 39519 453 4614
532 733
hearing [1] 3519
heart [6] 179 181921 2119 59
24 6716
hearts [3] 179 182021
heated [1] 2617
heightened [1] 514
help [4] 421 721 87 2523
herself [1] 7618
hire [1] 2318
history [6] 824 1025 1111 303
4
holds [1] 1814
holistic [1] 914
home [2] 811 7823
Homeland [1] 313
honestly [2] 176 2724
Honor [38] 417 61319 71 810 9
12 1018 11511 12325 1318
1621 1715 1810 19621 2010
214922 2420 2625 28324 32
923 36125 3810 4520 507 77
3 784 79715 8049
Honors [1] 7522
hoping [1] 7814
however [3] 419 113 2513
humanitarian [2] 1121 464
hypothetical [15] 151323 173
187 191620 205 2323 3812
412223 4223 437 4912
I is [1] 1613
ID [1] 433
idea [1] 454
ideal [2] 81 303
identified [2] 5518 5713
identify [1] 824
identifying [2] 4219 4811
III [1] 136
illustrate [1] 87
illustration [1] 5012
image [1] 464
imagine [7] 2913 412425 5611
19 598 613
imbued [1] 128
immediate [1] 419
immigrant [3] 5923 8011 817
immigrants [3] 11161719
immigration [10] 412 318 4518
4911 67151720 74920 752
impact [1] 4915
impacted [2] 52125
impacts [1] 4919
impediment [1] 4117
implement [3] 422 721 815
important [7] 1324 531 5923 61
15 696 7011 724
importantly [2] 517 6914
impose [3] 617 103 457
imposed [3] 2522 609 6614
imposes [1] 91
imposing [1] 8119
improve [1] 718
impulse [1] 742
in-person [3] 434 5521 562
INA [11] 42225 618 721 816 45
19 5017 5322 76812
inaccurate [2] 3912 561
inadequate [1] 5617
inadmissible [2] 76911
including [9] 320 155 251819
2917 3911 4217 476 8014
incomplete [1] 239
inconsistent [2] 523
indeed [1] 591
independent [1] 2622
indicates [1] 4624
indication [1] 5510
individual [4] 311 781522 806
individualized [4] 3915 4225 46
8 595
individuals [2] 78 322
ineffective [1] 2912
infected [1] 6911
inference [2] 66713
infiltration [1] 5613
information [20] 31625 423 77
23 81319 97 302 3315 3517
3913 407 414 5617 5825 78
1317
inhibition [1] 6219
initial [1] 253
injunction [5] 217 2223 73910
24
injury [1] 2124
INS [1] 2216
instances [2] 734 7715
Instead [5] 3921 4617 4817 62
25
intelligence [3] 406 414 428
intelligent [1] 815
intelligently [1] 7825
intended [1] 7711
intention [1] 8119
interests [4] 1121 315 701115
international [1] 6711
interpretation [1] 604
interrupt [1] 412
interview [4] 435 5522 562 71
13
introduced [4] 4120 421011 49
20
introduces [1] 426
invidious [1] 668
involve [1] 1625
Iran [2] 94 6424
Iraq [3] 923 1010 2917
iron [1] 7424
irrelevant [2] 2822 291
irrespective [1] 147
Islam [1] 8123
isnt [5] 3520 3813 4710 7119
25
Israel [4] 1617 1718 181516
issuance [3] 495 5918 8010
issue [10] 1219 16101011 4911
5511 7313 8171113
issued [7] 54 89 1110 4716 78
22 792025
issues [6] 126 283 533 63518
774
item [1] 4510
itself [5] 2910 69819 713 7325
J Jane [1] 88
Jews [2] 166 242
job [1] 2515
join [1] 2213
joined [1] 576
Judge [2] 4022 612
judges [2] 2623
judgment [6] 43 4524 4717 48
22 7019 8019
judgments [4] 4019 4318 5020
5312
judicial [1] 1620
jump [1] 664
jurisdiction [1] 136
jurisdictional [5] 122413 133
533
jurisprudence [1] 1914
Justice [217] 120 3310 48 56 6
272023 9817 10111922 112
791525 12111721 1311516
19 1431722 151222 16519
171122 18151125 193 2024
1521 21115 2259151921 23
31117222225 2441216 2525
269131619 2712182123 28
1625 30691122 31111422 32
1411141624 3326101620
23 3425812 351111523 363
Heritage Reporting Corporation Sheet 4 FRANCISCO - Justice
87Official
69111720 372111822 382
17182125 404 41182024 42
5 432124 44346813 4515 46
111723 471320 4861020 49
6131421 5015212325 5118
20 52381417 5421218 5611
1924 575619 586121620 60
1220 616101720 6218 63414
1722 642672024 6521221
669 677 68618 6924 709 715
72815 73258121622 742 75
48142024 762125 7791323
786 79591022 8017 824
justiciability [1] 137
justifications [1] 663
K KAGAN [26] 131619 1431722
151222 16519 171122 1815
1125 193 2613 2712182123
5023 5421218 709
Kagans [1] 2323
KATYAL [79] 122 26 38212224
4015 41711 42413 4323 441
1218 4520 46131925 47325
489 49291725 504725 511
141922 52131620 5431117
21 561821 574 585151922
6020 618111922 6222 638
1620 64171923 6514 669 67
713 68612 693 701017 7279
733711152124 75611
keep [3] 241 258 4215
KENNEDY [19] 10111922 204
1521 2220 281625 461723 47
1320 48610 5624 575 807
Kennedys [1] 119
kept [1] 264
kill [1] 4011
kind [8] 142022 1612 186 1913
5415 5924 7012
kinds [1] 165
King [1] 6719
knock [1] 6114
knows [4] 181319 3525 7823
L land [1] 221
language [1] 4325
laptop [1] 4920
large [1] 5922
later [2] 4119 5911
latest [1] 6211
Laughter [5] 188 3411 423 757
10
LAVAS [1] 4023
law [4] 314 3720 403 752
lawfulness [2] 3723 724
laws [2] 411 318
layer [1] 519
lays [1] 273
learns [1] 811
least [1] 1213
leave [1] 512
left [2] 3015 6519
legality [1] 378
Legislation [3] 3923 4121 422
legislative [1] 4117
legitimacy [1] 2511
legitimate [1] 1322
Lemon [2] 67925
less [1] 3112
letters [1] 7225
level [2] 423 77
lies [1] 4316
life [1] 7214
light [1] 5722
likelihood [1] 5525
limit [3] 51 4423 4512
limitations [1] 6017
limited [1] 7312
limits [4] 420 64 545 7421
line [4] 107 2524 4510 8112
lines [1] 699
Lisa [1] 3420
list [10] 47 911 3115 64141625
665610 7720
listed [1] 919
lists [3] 77151724
litigants [1] 266
little [2] 613 141
local [1] 2817
long [3] 415 577 678
long-term [2] 3117 601
longer [2] 101419
look [16] 724 2622 3519 4113
4715 552 6238 6510 661220
671 6822 7021 801
looked [7] 5713 624 3022 6420
7919 805
looking [1] 6823
lot [5] 612 145 167 771921
love [1] 8122
low [1] 916
lower [1] 743
Lukumi [3] 659 682 7024
M made [7] 1215 14912 286 689
811820
main [1] 720
maintain [1] 717
majority [6] 31920 251920 29
15 491
Mandel [18] 1321 1410131822
158141619 16192223 17116
201125 2511 2621
Mandels [1] 1723
many [5] 3013 7255 812222
mark [1] 2811
marks [1] 296
material [1] 261
matter [5] 114 1917 259 297 72
21
mayor [1] 2817
McCreary [3] 159 6399
mean [9] 1820 412 4824 5720
6215 6411 6715 6810 814
meaning [1] 299
means [2] 144 6514
meant [2] 421 103
measures [1] 5615
medical [1] 3421
meet [4] 511 1420 331820
member [3] 2425 251 3119
members [2] 1610 2213
mentioned [2] 49 5616
merits [4] 1214 1312 514 537
message [2] 2124 224
met [1] 321
might [13] 620 181314 2218 26
12 356 4912 5023 511 5222
584 655 7413
migration [1] 458
military [1] 4821
million [2] 325 3618
millions [2] 6733
minimum [11] 316 423 7722 8
218 96 30123 7816
minutes [2] 75516
misunderstanding [1] 4912
moment [1] 7121
month [1] 413
months [1] 488
most [18] 1018 1110 1324 2912
25 352 361313 37141416 53
1 5922 6115 6421 6914 7015
7225
move [3] 107 2523 7214
moved [1] 6224
moves [1] 4212
much [8] 1120 2025 285 446 46
7 6620 71119
multi-agency [3] 312 1921 29
22
Muslim [19] 321 251820 2911
1315 4911619 6410121416
17 65314 663 811922
Muslim-majority [2] 156 2916
Muslims [5] 2715 6421 661819
8120
must [4] 2418 3111 325 7411
N narrow [1] 419
nation [1] 5924
national [14] 43 520 105 1121
129 1323 176 184 571 7011
1518 8019 821
nationality [7] 39424 401721
4315 59318
nationality-based [4] 609 611
793 8023
nationals [4] 317 40813 4415
nationwide [3] 217 2223 739
naturalization [1] 7411
nature [1] 102
nay [1] 416
NEAL [3] 122 26 3822
near [1] 7316
necessarily [1] 4711
necessary [4] 37911 472224
need [6] 420 1717 2622 304 31
20 6113
needed [7] 31725 423 77 819
781217
needs [1] 544
negative [2] 2124 226
Neither [2] 74 4212
neutral [6] 154 1923 2119 2517
292324
never [7] 359 394 4120 5021 72
18 76916
new [4] 3512 4517 5713 7317
next [3] 71 63623
Ninth [2] 262 643
nobody [2] 3422 3525
NOEL [5] 119 239 38 7517
non-immigrant [2] 81811
non-politically-correct [1] 6917
non-reviewability [2] 12114
none [1] 4716
Nope [1] 701
nor [1] 75
normal [1] 3220
nothing [8] 3717 461321 478
493 5713 6023 783
notice [1] 3524
noticed [1] 3018
number [11] 157 2522 329 34
15 361314 6524 6714 694 72
9 744
numbers [2] 3313
O oath [3] 28724 295
objections [2] 6616 7110
objective [4] 621 645 6625 70
22
observer [7] 621 6458 653 66
25 679 7022
observers [1] 1823
obviously [2] 719 7324
occupations [1] 5321
occurred [1] 6825
offer [1] 4312
office [2] 288 3622
officer [3] 7661318
officers [2] 764 7916
official [2] 7024 7113
officially [1] 7114
often [3] 3716 7220 8018
Okay [11] 3114 332323 3412 35
15 3718 5412 6123 755613
omits [2] 319 2915
Once [5] 814 1321 2620 477 81
1
one [39] 41113 52021 915 10
13 114 1220 13524 1616 17
19 2215 2314 278 2913 3015
3312 358 373 4013 4218 51
24 6015 6220 6311 6422 6522
6714 694 71811 7210 7716
7969 801020 8123
ones [3] 518 6511 718
only [17] 322 414 1116 1519 21
Heritage Reporting Corporation Sheet 5 Justice - only
88Official
13 2914 317 329 3423 3524
4218 5514 626 651317 661
6812
opinion [3] 357 577 7417
Opinions [1] 288
oral [5] 114 225 38 3822
order [31] 91 1411 2425 253 29
1921 30181923 3314 3724 39
1920 4614 47714 4822 539
5921 602 6116 621112 655
13 698 712 725 7421 7812
orders [5] 2917 4616 47615 69
10
ordinary [1] 7023
organization [1] 812
other [29] 323 75 99 105 149
311724 3220 3523 416 4319
4424 4525 4714 5510 5615 58
9 656919 663 671525 6913
703 7120 7512 76811
others [2] 915 741
Otherwise [3] 2124 2210 767
ought [1] 4822
out [13] 242 258 27311 2814 35
1616 3618 588 6114 66411
723
out-of-the-box [1] 186
outcome [1] 2417
outer [1] 420
outgrowth [1] 6910
over [5] 1325 167 3615 4723 80
12
overall [1] 915
overwhelmingly [1] 1510
owes [1] 279
own [2] 6816 694
P packed [1] 612
PAGE [6] 22 3614 5011 555 62
8 7212
palsy [4] 527 7212 77216
parameters [1] 516
Parkinsons [1] 7716
PARS [2] 523 7211
part [7] 2925 59222223 601 61
15 7016
participated [1] 692
particular [15] 1016 2117 2589
408 4416 5614 57212225 58
314 664 6919 777
parties [2] 517 7313
parts [1] 7612
party [1] 5224
pass [1] 4114
passed [1] 156
past [4] 522 822 2917 503
people [32] 20121617 225 31
15 32510 3415 355524 3634
6 375 4221 4415 5523 5925
67420 703 7120 7211725 76
11 771720 8016 8118
peoples [1] 802
percent [6] 407 5920 6115 64
17 661919
percentages [1] 7222
perennial [2] 4812 5716
perhaps [2] 5817 717
period [3] 415 244 4722
permanent [1] 4518
permission [1] 523
perpetual [4] 444 4521 4612 48
5
perpetuated [1] 444
person [6] 4325 7114 767 78
1820
personally [2] 517 7912
persons [1] 5110
Petitioners [6] 1521 2410 39
7518
pick [1] 7425
pieces [1] 725
place [6] 2116 2319 7911 8013
1725
placed [1] 3916
plainly [1] 252
plaintiff [1] 5222
plaintiffs [2] 2125 536
please [4] 311 3010 3825 7520
point [23] 1624 1820 294 367
419 4215 4317 446 452 538
5415 6022 66111 68414 718
74818 7814 793 808 8114
points [1] 7522
policy [15] 43 106 129 2319 39
3 4019 4318 451821 462 50
10 5312 6310 8018 821
political [1] 128
polity [1] 601
poorest [1] 746
population [4] 491619 641518
position [1] 5017
possibility [1] 386
possibly [2] 216 2913
potentially [2] 201320
power [11] 4418 1313 4419 45
5 5310 541 5811 607 6720 74
23
practice [1] 2120
praised [1] 8123
precedential [1] 1220
precludes [1] 5710
predominantly [3] 64121316
preference [2] 456 5321
preferences [1] 5318
preliminary [1] 2621
prescient [1] 582
prescribed [1] 558
present [8] 2059 5191221 52
101119
presidency [1] 168
PRESIDENT [86] 13 345 410
14 5913 63916 712 934 11
13131822 1313 162 1758 18
6 191 2381223 257 271525
3513 3712 3834 40612 4217
101214 441121 454 472 487
11212224 4918 508918 5310
101523 54591922 561622 57
321 5810 599 607 6271216
23 632 643 6817 6951520 70
158 712 742224 811517
Presidents [8] 313 44 2421 38
15 4114 69721 704
presidential [1] 6018
Presidents [2] 4716 578
press [2] 141 6214
pressure [8] 324 91 104 1815
252223 3313 7811
presumption [1] 2710
prevent [1] 545
previously [2] 311623
principal [4] 1319 3312 376 78
10
principally [1] 298
private [4] 179 28712 625
pro-Christian [1] 223
probably [2] 3414 7415
problem [16] 261 3413 398 42
1719 481512 497 5315 5517
571216 6925 71419
problems [3] 323 2521 5721
proc [1] 1610
procedures [1] 5817
proceeding [1] 513
process [27] 51515 810 1458
1419 152 1915 2623 274 29
20 3915 5714 6815 69215 72
1020 76123 78161823 7914
17
processes [1] 3221
proclamation [55] 318 42 54 7
24 81721 92022 102121525
111023 1311 14615 161216
191718 211116 231 273519
2910 3313 381114 451617 53
11 5514 611 6217 635718 64
8 6972021 70410 7422 7610
131516 7810 7925 81525
proclamations [1] 421
proclamations [5] 823 1013 11
3 3716 6220
professors [1] 7718
Program [5] 725 56510 596
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IN THE SUPREME COURT OF THE UNITED STATES
DONALD J TRUMP PRESIDENT OF THE )
UNITED STATES ET AL )
Petitioners )
v ) No 17-965
HAWAII ET AL )
Respondents )
Washington DC
Wednesday April 25 2018
The above-entitled matter came on for oral
argument before the Supreme Court of the United
States at 1002 am
APPEARANCES
GEN NOEL J FRANCISCO Solicitor General
Department of Justice Washington DC
on behalf of the Petitioners
NEAL K KATYAL ESQ Washington DC on behalf
of the Respondents
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C O N T E N T S
ORAL ARGUMENT OF PAGE
GEN NOEL J FRANCISCO
On behalf of the Petitioners 3
ORAL ARGUMENT OF
NEAL K KATYAL ESQ
On behalf of Respondents 38
REBUTTAL ARGUMENT OF
GEN NOEL J FRANCISCO
On behalf of Petitioners 75
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P R O C E E D I N G S
(1002 am)
CHIEF JUSTICE ROBERTS Well hear
argument today in Case 17-965 Trump President
of the -- Donald Trump President of the United
States versus Hawaii
Mr Francisco
ORAL ARGUMENT OF GENERAL NOEL J FRANCISCO
ON BEHALF OF THE PETITIONERS
GENERAL FRANCISCO Mr Chief Justice
and may it please the Court
After a worldwide multi-agency review
the Presidents acting Homeland Security
Secretary recommended that he adopt entry
restrictions on countries that failed to
provide the minimum baseline of information
needed to vet their nationals
The proclamation adopts those
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 baseline or had other problems
and it exerts diplomatic pressure on those
countries to provide the needed information and
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to protect the country until they do
The proclamation reflects a foreign
policy and national security judgment that
falls well within the Presidents power under
1182(f) and has been successful which is why
the country of Chad was recently dropped from
the list But it -shy
JUSTICE GINSBURG You -- you
mentioned 1182(f) And the worrisome thing
about this is that the President acts Congress
is the one responsible for making the laws
about immigration It has been suggested in
one of the briefs that we read 1182(f) to allow
the President to suspend entry but only for a
period of time long enough for Congress to say
yea or nay
GENERAL FRANCISCO Your Honor yes
1182(f) is a broad and flexible power in a
narrow area Here however I think that you
dont need to explore those outer limits
because the proclamations meant to help
implement the INA by making sure that we have
the minimum level of information needed to
determine if aliens are admissible under the
INA
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In terms of a time limit I think
thats simply inconsistent with the text of the
statute and inconsistent with virtually every
1182(f) proclamation ever issued Here we
have a fair -shy
JUSTICE SOTOMAYOR Im sorry Mr -shy
General I thought that Congress had looked at
the situation and created a statutory system
that addressed the very concern the President
is expressing Congress said you can have visa
waivers if you -- if you can meet the three
criteria that this special committee of the
President looked at and if you dont you have
to have a very heightened extreme vetting
process And it created that vetting process
and suggested its parameters
More importantly it took terrorist
countries and designated which ones supported
terrorism and added another layer of review and
said if youre 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 to -- to affirm that you
are not a danger to the US
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GENERAL FRANCISCO And -shy
JUSTICE SOTOMAYOR So I -- but what I
see the President doing here is saying Im
going to add more to the limits that Congress
set -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- and to what
Congress said was enough Where does a
President get the authority to do more than
Congress has already decided is adequate
GENERAL FRANCISCO Well there are -shy
theres a lot packed into your question Your
Honor and so let me try to unpack it a little
bit
I think the basic answer is that
1182(f) gives the President the authority to
impose restrictions in addition to those set
forth in the INA but to go to the statutes
that Your Honor was -shy
JUSTICE SOTOMAYOR But -- it might
but -shy
GENERAL FRANCISCO Right but -shy
JUSTICE SOTOMAYOR -- on the very
grounds that Congress has already looked at
GENERAL FRANCISCO And thats exactly
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what I was going to address next Your Honor
The Visa Waiver Program provides a special
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 admissibility of individuals
coming in from some of the riskiest countries
in the world
And 1182(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 Its up to the executive
branch to set it up Its up to the executive
branch to maintain it And its up to the
executive branch to constantly improve it
And here you have something that
really is at the core of 1182(f) since its main
purpose is to help implement the INA by making
sure we have that minimum baseline of
information
And if you look at the proclamation
what were talking about is very basic pieces
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of information Not the ideal but the
minimum Are they reporting terrorism history
information Are they 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 visa 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
doesnt tell us
Once she shows up at the border we
cannot make an intelligent determination as to
whether or not shes admissible under the INA
And thats 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
that it seeks to identify harmful conduct that
a foreign government is engaging in and then
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it imposes sanctions in order to pressure that
government to change
Thats what President Carter did with
respect 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
JUSTICE SOTOMAYOR Can you represent
that no other country that -- that fails all
three of the criteria was excluded from this
list
GENERAL FRANCISCO Well Your Honor
what I can represent is that the -- the -- the
analysis was holistic It wasnt if you failed
any one or the others It was if your overall
score was sufficiently low
JUSTICE SOTOMAYOR So given -shy
GENERAL FRANCISCO 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 below -- below the baseline but was not
subjected to sanctions
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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 weve now seen has been
successful as with the case of the government
of Iraq -- of Chad
JUSTICE KENNEDY In fact if you
compare this proclamation to the Reagan and the
Carter proclamations which I think were one or
two sentences this is longer than any
proclamation that -- that Ive seen in this
particular area
GENERAL FRANCISCO This is Your
Honor the most detailed 1182 -shy
JUSTICE KENNEDY Id say longer
detail -shy
GENERAL FRANCISCO Yes
JUSTICE KENNEDY -- is -- is a better
word
GENERAL FRANCISCO Yes This is the
more detailed 1182(f) proclamation in history
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It is not -shy
JUSTICE SOTOMAYOR General the
proclamations by Reagan and Carter however
were not as broad as this one
GENERAL FRANCISCO Your Honor they
were almost as broad but -shy
JUSTICE SOTOMAYOR And -- and -shy
GENERAL FRANCISCO -- to complete my
answer to Justice Kennedys 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 Reagans or President Carters
covered But its -shy
JUSTICE SOTOMAYOR And more -- and
more immigrants because Carters only applied
to certain immigrants not to all
GENERAL FRANCISCO President Carters
actually applied to all immigrants but then had
an exception much like the waiver provision
here for national interests and humanitarian
concerns So I think President Carters was
actually very similar to the proclamation here
And -shy
CHIEF JUSTICE ROBERTS Is your
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consular non-reviewability argument -- is that
a jurisdictional argument
GENERAL FRANCISCO Your Honor I -shy
yes I think it is a jurisdictional argument
And thats why I dont 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 to -shy
CHIEF JUSTICE ROBERTS I -- I thought
in Sale that we decided that this -- this
wasnt jurisdictional or at least decided the
merits despite the non-reviewability argument
that the government made
GENERAL FRANCISCO I think the second
thing that you just said Mr Chief Justice is
accurate The Court didnt address the
reviewability issue at all And so we dont
think its precedential one way or another
CHIEF JUSTICE ROBERTS Was the -- was
the argument raised in that case by the
government
GENERAL FRANCISCO Yes it was Your
Honor Actually you could -shy
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CHIEF JUSTICE ROBERTS So -- so its
an argument we would have been required to
address if it were in fact jurisdictional
GENERAL FRANCISCO I think so And
so I think one way you could understand it is
that it doesnt go to Article III jurisdiction
though it is a justiciability argument and we
would urge this Court to accept it because we
think its correct
But even if you dont think that its
correct we think that this proclamation
satisfies the merits because it does fall well
within the power of the President under
1182(f)
JUSTICE BREYER If youre about -shy
JUSTICE KAGAN May I turn General
to the constitutional claims in this case
GENERAL FRANCISCO Yes Your Honor
JUSTICE KAGAN And your principal
response to the Establishment Clause claim is
to cite Mandel and to say that once the
government comes forward with a legitimate
reason -- of course national security is the
most important reason one can come forward with
-- the game is over essentially And I just
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want to press on that a little bit
GENERAL FRANCISCO Sure
JUSTICE KAGAN So first I want to
ask whether that means -- you started off by
talking a lot about the process of this
proclamation But I -- I take it that that
argument would apply irrespective of what
process was used
In other words you would have made
the same Mandel argument to the first executive
order in this case or would you not
GENERAL FRANCISCO We would have made
a Mandel argument but it is far stronger given
that you have the process and substance upon
which this proclamation was based because
whatever you -shy
JUSTICE KAGAN Well I guess I wonder
why that is just because when I read Mandel
I dont see anything about process or you have
to meet a certain kind of bar
GENERAL FRANCISCO Uh-huh
JUSTICE KAGAN Mandel really is kind
of you state a reason and this Court stops
GENERAL FRANCISCO And I think that
that is right but I think that when you in
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addition to that have the extensive worldwide
process that we had that resulted in a
cabinet-level recommendation that applied a
neutral baseline to every country in the world
concluded that almost all the world including
almost all of the Muslim-majority world passed
that baseline but a tiny number of countries
didnt I think that whether you apply Mandel
or whether you apply McCreary that makes the
constitutional case in our favor overwhelmingly
strong Its a -shy
JUSTICE KAGAN So let me give you a
hypothetical and its just -- you know I
think that there are ways to distinguish Mandel
in this case but -- but -- but you know just
in terms of thinking about what Mandel really
forecloses here
GENERAL FRANCISCO And I -- because
Mandel there are only two cases in the area
and its -- its hard to understand the full
contours of it
JUSTICE KAGAN I agree So this is a
hypothetical that youve heard a variant of
before that the government has at any rate
but I want to just give you
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So lets say in some future time a -shy
a President gets elected who is a vehement
anti-Semite -shy
GENERAL FRANCISCO Uh-huh
JUSTICE KAGAN -- and says all kinds
of denigrating comments about 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 dot all the
is and they 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
GENERAL FRANCISCO Right
JUSTICE KAGAN Do you say Mandel puts
an end to judicial review of that set of facts
GENERAL FRANCISCO No Your Honor I
dont say Mandel puts an end to it but I do
say that in that context Mandel would be the
starting point of the analysis because it does
involve the exclusion of aliens which is where
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Mandel applies
If his cabinet -- and this is a very
tough hypothetical that weve 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 in his private heart of hearts
he also harbored animus
JUSTICE KAGAN Well the question is
GENERAL FRANCISCO I would also
suggest though -- if I could finish that Your
Honor -- that I think it would be very
difficult for that to even satisfy Mandel
rational basis scrutiny Id need to know what
the rational was Given that Israel happens to
be one of the countrys closest allies in the
war against terrorism its not clear to me
that you actually could satisfy -shy
JUSTICE KAGAN Well -shy
GENERAL FRANCISCO -- Mandels
rational basis standard on that unless it
truly were based -shy
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JUSTICE KAGAN Yes
GENERAL FRANCISCO -- on a
cabinet-level recommendation that was about
national security
JUSTICE KAGAN General Im -- lets
-- this is a out-of-the-box kind of President
in my hypothetical And -shy
(Laughter)
GENERAL FRANCISCO We -- we -- we
dont have those Your Honor
JUSTICE KAGAN And -- and you know
he thinks that there are good diplomatic
reasons and there might -- who knows what the
future holds that there might be good
diplomatic reasons to put pressure on Israel or
to say we want Israel to vote a certain way in
the UN and this is a way to better our
diplomatic hand and so this is what he does
And -- 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 think -shy
GENERAL FRANCISCO Right
JUSTICE KAGAN -- given this context
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in which this hypothetical President -shy
GENERAL FRANCISCO Sure
JUSTICE KAGAN -- is making virulent
anti-Semitic comments
GENERAL FRANCISCO Right And Your
Honor its a tough hypothetical but its why
I also think that this is a relatively easy
case because were 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 though we think that its
wrong that you applied some kind of domestic
establishment clause jurisprudence because
were 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 dont have the extreme
hypothetical that youre suggesting Your
Honor we do have a multi-agency worldwide
review and a cabinet-level recommendation that
applied a neutral baseline And this wasnt
done just by the cabinet secretaries but by the
agencies to every country in the world and
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concluded -shy
JUSTICE SOTOMAYOR Mr General you
just -shy
JUSTICE KENNEDY If -- if you have
that extreme hypothetical would that present a
free exercise or an Establishment Clause claim
or both
GENERAL FRANCISCO It could
definitely present a free exercise clause
challenge Your Honor just as you had a free
speech type claim in the Mandel case
And there would be people who could
bring that claim and who could potentially
succeed on that claim
JUSTICE KENNEDY And -- and the
people that could bring that claim I assume
were relatives of people that were excluded
father son
GENERAL FRANCISCO On free exercise
potentially I think all -shy
JUSTICE KENNEDY Yeah what about a
university
GENERAL FRANCISCO I think a
university could bring a free speech-type claim
under Mandel much -shy
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JUSTICE SOTOMAYOR Why not an
Establishment Clause claim
GENERAL FRANCISCO And -- and -shy
because Your Honor and the reason why I think
they havent pursued those types of claims is
because I dont think they would possibly
support the types of nationwide injunction that
theyre asking for
Your Honor the reason why I dont
think that they could bring an Establishment
Clause claim is because the proclamation
doesnt actually apply to the Respondents It
only applies to aliens abroad who have no
constitutional right to enter
JUSTICE SOTOMAYOR No but the claim
is that it -- that the proclamation is in place
because of a dislike of a particular religion
And I thought the Establishment Clause at its
heart is that we cannot be anything but neutral
with respect to religion or its practice
GENERAL FRANCISCO 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
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standing to challenge the land transfer from
the government to the Christian college on the
ground that it sent a pro-Christian or
anti-atheist message That -shy
JUSTICE SOTOMAYOR But these people
are saying that that negative religious
attitude is stopping them -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- 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
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR Which is one of
the purposes of the INS
GENERAL FRANCISCO And -- and thats
where they might have free exercise or free
speech claims along the type that Justice
Kennedy suggested -shy
JUSTICE SOTOMAYOR Well but I -shy
GENERAL FRANCISCO -- but which
couldnt support a nationwide injunction I
dont think that that gives them an
Establishment Clause claim when the
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proclamation doesnt actually apply to them
because -shy
JUSTICE SOTOMAYOR General today
can we go back to something thats 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 -- Im
summarizing in an incomplete way -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- 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 -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- not extreme
that he can hire or fire anyone he wants and
that he can put in place whatever policy he
wants
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR If we take Justice
Kagans hypothetical President -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- who basically
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says to his review committee I want to keep
out Jews -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- period find a
way Thats their charge
So in that situation why would the
actions of the committee whatever this is
Executive Committee not be subject to great
suspicion and to thorough review -- which
actually wasnt completely -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- done here -shy
given that they are responsible to the
executive -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- and theyve
been told what the outcome of their
deliberations must be
GENERAL FRANCISCO Sure And I have
two responses to that Your Honor
The first is that the Presidents
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
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cabinet member would refuse to comply or resign
in the face of a plainly unconstitutional
order 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 Mandel
standard
Here however you dont have anything
like that Rather you have the cabinet doing
its job through the agencies where they ask
the agencies to construct and apply 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 across the line
JUSTICE SOTOMAYOR General the
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problem is that I dont 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
the litigants or the courts exactly what was
done how what the evaluation and how -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- it was applied
to all those countries in the world
I understand some of the
confidentiality that might concern you but if
the backdrop is the way that Justice Kagan
described it -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- that -- that
heated -shy
GENERAL FRANCISCO Well I -- yeah -shy
JUSTICE SOTOMAYOR -- anti-Semitic
background dont you think that once you get
through the Mandel preliminary 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
GENERAL FRANCISCO Well Your Honor
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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
owes to another coequal branch of the
government there is a very strong presumption
that what is being set out there is the truth
JUSTICE KAGAN You -- you said
something earlier General I want to make sure
that I got it right You said if at the time
the President had said we dont want Muslims
coming into this country -shy
GENERAL FRANCISCO Uh-huh
JUSTICE KAGAN -- that that would
undermine the proclamation
GENERAL FRANCISCO Yes
JUSTICE KAGAN Did I get you right
GENERAL FRANCISCO Yes
JUSTICE KAGAN So I -- I think you
know honestly the difference here then seems
to be is everything that the President said
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effectively that
GENERAL FRANCISCO I think there are
two issues Your Honor 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 embodiment of the executive branch So
that those statements should be out of bounds
But for -shy
JUSTICE KENNEDY But suppose you have
a local mayor and as a candidate he makes
vituperative hate -- hateful statements hes
elected and on day two he takes acts that are
consistent with those hateful statements
Thats -- whatever he said in the campaign is
irrelevant
GENERAL FRANCISCO Your -- Your
Honor if he takes the same oath -shy
JUSTICE KENNEDY You would say
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whatever he said in the campaign is irrelevant
GENERAL FRANCISCO I would say two
things And that was the -- and the second
thing is the point I was about to turn to I
would say yes because we do think that oath
marks a fundamental transformation but I would
also say here it doesnt matter because here
the statements that they principally rely on
dont actually address the meaning of the
proclamation itself
This is not a so-called Muslim ban
If it were it would be the most ineffective
Muslim ban that one could possibly imagine
since not only does it exclude the vast
majority of the Muslim world it also omits
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 multi-agency worldwide review that
applied neutral criteria all across the world
and concluded under those neutral criteria
most of the world was fine but a small part of
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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
JUSTICE BREYER All right Can -shy
can I ask a more -- I did read I think almost
all the 80 briefs Now your time -- what do -shy
CHIEF JUSTICE ROBERTS Yeah dont
worry Please go ahead
JUSTICE BREYER All right All
right All right Almost 80 and I think I -shy
some were repetitive not too many And I
think I know the basic arguments but theres
one question Im left with and it starts with
an assumption which I think you share but I
want to be sure All right
I noticed that the Carter order and
the Reagan order both had case-by-case
exceptions
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER And I looked 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
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individual circumstances such as giving some
examples the following
And then they have to be no
terrorists Well thats the law anyway And
they -- they have to be in the interests of the
United States And there cant be undue
hardship which the only time the word
hardship appears in the immigration laws it
says extreme hardship
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER So undue must be
less than extreme
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER Okay So Im -- then
they have a list people with foreign contacts
previously established business reasons
theyve been here studying or other long-term
activity they want to visit or reside with a
close family member they have a disease or
something that they need -shy
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER -- treatment for
they -- previously been employed And there
are about five other things
GENERAL FRANCISCO Yeah
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JUSTICE BREYER All right Focus on
that class of individuals
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER Now in countries -shy
150 million people all together there must be
quite a few who have -- do fall within that
class So -shy
GENERAL FRANCISCO Well yes Your
Honor but theres only a small number of
people that seek to come into our country
JUSTICE BREYER Well thats what Im
asking about
GENERAL FRANCISCO Yeah
JUSTICE BREYER You see
GENERAL FRANCISCO Yeah
JUSTICE BREYER Thats now -- if you
-- you think -- now as far as were concerned
if they fall within that class there -shy
theres no reason given here why they should be
excluded other than the -- the normal
processes
GENERAL FRANCISCO Well a couple of
responses Your Honor
JUSTICE BREYER What
GENERAL FRANCISCO First in terms of
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the numbers -shy
JUSTICE BREYER Im not asking about
the numbers
GENERAL FRANCISCO Oh oh youre not
asking -shy
JUSTICE BREYER I want to ask about
GENERAL FRANCISCO So -- so in terms
of the reason -shy
JUSTICE BREYER Yeah
GENERAL FRANCISCO -- they should be
excluded one of the principal purposes of the
proclamation is to exert diplomatic pressure on
governments in order to get them to change and
provide us with the information -shy
JUSTICE BREYER So you think they
should be excluded
GENERAL FRANCISCO Not if they meet
the criteria for the -shy
JUSTICE BREYER Not if they meet the
criteria
GENERAL FRANCISCO -- for the waiver
JUSTICE BREYER Okay Okay So
theres -shy
GENERAL FRANCISCO Thats why we have
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-- thats why we have the waiver
JUSTICE BREYER Thats -- thats -shy
thats what I thought you would say
GENERAL FRANCISCO Yeah
JUSTICE BREYER Then I get -- can ask
my question Sorry
GENERAL FRANCISCO Yes
JUSTICE BREYER But I want to be sure
were the same wavelength
GENERAL FRANCISCO Yes
(Laughter)
JUSTICE BREYER Okay 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 theres the
business community complaining theres the
academic community there were 46 scholars at
Harvard there -- there are families in the
Lisa Blatt brief you know that -- that they
say we were trying to get medical treatment and
nobody told us about this and -- and theyve
only admitted two and theres supposed to be
guidance and -shy
GENERAL FRANCISCO Thats not true
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JUSTICE BREYER -- you havent put in
the guidance and -- and -- and the most there
are is 100 And so there is my question If
you have done the same thing that the Reagan
people did and the Carter people did then it
might be -- Im not expressing a definite
opinion -- but well youve got the same thing
here but if this is as one brief says just
window dressing and they never apply it -shy
GENERAL FRANCISCO Right
JUSTICE BREYER -- then you have
something new and different going well beyond
what President Reagan did
GENERAL FRANCISCO Sure
JUSTICE BREYER Okay So I want to
know how do I find out -- how do I find out
when there is not that information in the
brief do we have to -- can we have another
hearing Do we send it back Do we say look
the government of course thinks this isnt
window dressing -shy
GENERAL FRANCISCO Right
JUSTICE BREYER -- but the other side
says there are only two people no notice
nobody knows
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GENERAL FRANCISCO So Your Honor
two -shy
JUSTICE BREYER There are people in
Yemen there are people in Somalia -shy
GENERAL FRANCISCO Yeah
JUSTICE BREYER -- decent people
Business -- you see my point
GENERAL FRANCISCO Yes
JUSTICE BREYER Whats the answer
GENERAL FRANCISCO And two responses
JUSTICE BREYER Yes
GENERAL FRANCISCO Our reply brief
has our most -- most current number on waivers
and I believe the number at page 17 footnote
-- well its -- its over 400 I cant
remember the exact statement
JUSTICE BREYER All right Thats
400 out of 150 million
GENERAL FRANCISCO And then -shy
JUSTICE BREYER And -- and is it well
publicized in these countries that they know
all they have to do is go to the visa office
and say I understand the thing I want an
exception
GENERAL FRANCISCO No Your Honor
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and I have two -- two responses -shy
JUSTICE BREYER Yeah
GENERAL FRANCISCO -- to that One
is I dont know how well publicized it is but
I suspect that people understand how to get it
My second principal response is
though that frankly in terms of the
legality I think that the waiver is not
necessary although it is a very good thing
which is why -shy
JUSTICE BREYER Not necessary There
-- there you have President Reagan -shy
GENERAL FRANCISCO -- which is why
most -- which is why most governments dont -shy
which is why its -- its a good thing which
is why most of these proclamations often have
them But theres nothing in -shy
JUSTICE BREYER Okay So you want me
to consider -shy
GENERAL FRANCISCO -- the law that
actually requires it
JUSTICE BREYER Thats what you want
You want me to consider the lawfulness of this
order on the assumption that there is no
waiver
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GENERAL FRANCISCO I dont -shy
JUSTICE BREYER Which is not what -shy
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 here thats the -shy
thats the -shy
GENERAL FRANCISCO Right The answer
to my -- your question Your Honor is no I
dont want you to consider the proclamation on
the -- on the hypothetical situation that it is
what it isnt but I do think that the
proclamation as written and as applied falls
well within the Presidents authority under
1182(f)
Thank you Mr Chief Justice
CHIEF JUSTICE ROBERTS Thank you
General We will afford you rebuttal time
GENERAL FRANCISCO Thank you
CHIEF JUSTICE ROBERTS Mr Katyal
ORAL ARGUMENT OF NEAL K KATYAL
ON BEHALF OF THE RESPONDENTS
MR KATYAL Thank you Mr Chief
Justice and may it please the Court
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The executive order is unlawful for
three reasons It conflicts with Congresss
policy choices It defies the bar on
nationality discrimination something you never
heard my friend talk about And it violates
the First Amendment
Congress has already specified a
three-part solution to the very same problem
the order addresses Aliens seeking entry from
countries that dont cooperate with the United
States in vetting including state sponsors of
terrorism and countries that provide inaccurate
information
First aliens have to go through the
individualized 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 the order uses Congress rejected a
ban Instead it used carrots When countries
cooperated theyd get extra credit a track -shy
faster track for admission Legislation to use
big sticks like nationality bans failed
And third Congress was aware
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circumstances could change on the ground so it
required reporting to them so it could change
the law
CHIEF JUSTICE ROBERTS Well lets
take big sticks fail Lets suppose that the
intelligence agencies go to the President and
say we have 100 percent solid information
that on a particular day 20 nationals from
Syria are going to enter the United States with
chemical and biological weapons They could
kill tens of thousands of Americans
In that situation could the President
ban the entry of Syrian nationals on that one
day
MR KATYAL He could for two reasons
Theres two different arguments Theres the
nationality discrimination ban 1152 and then
theres you know whether or not this comports
with Congresss policy judgments
And with respect to both I think it
would It wouldnt be nationality
discrimination for the reasons Judge Sentelle
said in LAVAS when you have an emergency
fast-moving situation like the Syria example
youre saying
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CHIEF JUSTICE ROBERTS Well just to
stop interrupt you there I mean what if
its a week What if its a week a month from
now Thats what the intelligence information
is
In other words Im trying to -shy
MR KATYAL Right
CHIEF JUSTICE ROBERTS -- respond to
your point that it has to be an immediate
decision
MR KATYAL Yeah So I think you
know this Courts dealt with that in
Youngstown and Hamdan and said look you know
the Presidents going to get a pass absolutely
on you know what he says the emergency is
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 460 days on -- later
Mr Chief Justice Hes never even introduced
legislation about this So were so far from
that hypothetical well concede the
hypothetical
CHIEF JUSTICE ROBERTS Well imagine
-- imagine if you can that Congress is unable
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to act when the President asked for
legislation
(Laughter)
MR KATYAL Right
CHIEF JUSTICE ROBERTS And someone
introduces a bill saying lets authorize -shy
first of all the President may have qualms
about sharing that absolute intelligence
broadly but lets say theres a bill
introduced to say lets authorize the President
and theres a bill introduced to say lets
block the President and neither bill moves
MR KATYAL 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 -- theres only one
problem hes identifying which is countries
not cooperating
Hes not talking about people coming
in or something like that like your
hypothetical And with respect to that
Congress has said heres how we deal with it
We deal with it with the individualized vetting
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system which pushes all the burdens on a
person coming in Thats 1361
Youve got to show biometric ID under
the statute Youve got to have an in-person
interview if theres any risk that the person
is from a country thats a state sponsor of
terrorism like your hypothetical or anything
else
So Congress has really said in a
robust way heres how we would deal with it
And to the extent countries arent cooperating
we offer carrots
Congress rejected exactly what theyre
trying to propose here which is a flat
nationality ban And thats where I think the
force of our argument lies with respect to the
first point which is this is countermanding
Congresss policy judgments
My friend on the other side actually
in his brief -shy
JUSTICE ALITO Well Congress did -shy
Congress did act It enacted 1182(f)
MR KATYAL Correct
JUSTICE ALITO Why doesnt this fall
squarely within the language of 1182(f)
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MR KATYAL For -- for -- we have
both textual reasons that its not a class for
reasons Justice Breyer was talking about Its
not perpetuated -- its perpetual like Justice
Ginsburg was talking about But we think
theres a much bigger point Justice Alito
which is -shy
JUSTICE ALITO Well maybe you could
talk about the text Its not a class
Doesnt 11 -- doesnt 1182(f) say whenever the
President finds that the entry of any aliens -shy
MR KATYAL Correct
JUSTICE ALITO -- or any class of
aliens So put class aside although I dont
really see why people who are nationals of a
particular country dont constitute a class
What about any aliens
MR KATYAL Right So we think it is
any you know -- because the power in 1182 is
so broad and sweeping and does allow the
President to supplement what Congress has done
we think that you have to -- you have to be
careful and read limit -- you have to read it
just the way you read every other statute to
say how do we harmonize that broad text of
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1182(f) with the rest of the INA
And our point in our briefs which I
dont 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 you know and end so-called chain
migration or anything like that He could do
-- countermand any of the provisions of the INA
and turn it into a line item veto
So for that reason we think there
has to be some limit Thats something this
Courts dealt with in you know the tobacco
case or -shy
JUSTICE ALITO Well does this
proclamation do anything like that Does this
proclamation purport to establish a new
permanent immigration policy for the United
States
MR KATYAL Absolutely Your Honor
This is a perpetual policy that bans It does
exactly what Congress in 1965 said you cant
do And it countermands Congresss
fine-grained reticulated judgment from 2001
2015 and several other times which is to say
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instead of these flat bans were going to have
-- were going to balance foreign policy
considerations economic considerations like
the US companies brief humanitarian image
of the United States views all of that
together and said we wont do the flat ban
Instead were going to have a much
more fine-grained approach with individualized
vetting and carrots for the countries that
dont disagree -- that dont cooperate
JUSTICE ALITO What is your basis for
saying that it is perpetual
MR KATYAL Well theres nothing in
the order that ends it And you heard my
friend say oh that would doom all executive
orders But thats not true Half of these -shy
JUSTICE KENNEDY I thought it had to
be reexamined every 180 days
MR KATYAL No thats not what it
says It says theres a report that has to
come in at 180 days and nothing happens at the
end of the report
JUSTICE KENNEDY Well that -- that
indicates there will be a reassessment
MR KATYAL Well in -shy
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JUSTICE KENNEDY And then the -- and
-- and the President has continuing discretion
MR KATYAL Justice Kennedy this
argument wouldnt be there if there was
anything about reassessment the way there are
in about half the orders including the Cuba
order which says it sunsets once the crisis
ends Theres nothing like that in this
And its just like a reporting
requirement to Congress in which Congress isnt
necessarily required to do anything Congress
has statutes like that all the time
This is that And thats why this is
unlike any other executive order If you go
back and look at all 43 executive orders that
Presidents have issued none of them have even
arguably countermanded Congresss judgment in
the area Theyve all been consistent
Theyve all been supplements
JUSTICE KENNEDY Well the statute
says first that -- that -- that 1182 for such
period as he deems necessary and he can have
continuing supervision over whether its still
necessary
MR KATYAL Again we wouldnt have a
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problem with that if it was tailored to a
crisis it says it sunsets and then you know
could be re-upped or something like that
Thats not what this says This is about a
perpetual problem
JUSTICE KENNEDY So you want the
President to say Im convinced that in six
months were going to have a safe world
MR KATYAL Well -- well -- well no
Justice Kennedy thats not our argument Our
argument is here the President is identifying
something that is a perennial problem Our
brief says it goes back 100 years you know
when the Soviet Union was around we dont 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
CHIEF JUSTICE ROBERTS What if the
military advisors tell the President that in
their judgment the President ought to order a
strike an air strike against Syria and the
President says well -- does that mean he cant
because you would regard that as discrimination
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against a majority Muslim country
MR KATYAL Absolutely not Theres
nothing to do with the text of the statute
The 1152 statutes about discrimination and the
issuance of visas And thats all that -shy
CHIEF JUSTICE ROBERTS So under
1182(f) you would say that theres no problem
under that provision
MR KATYAL Well under 1182 as I
understand it was a strike And so I dont
think theres any immigration issue in your
hypothetical I might be misunderstanding it
Mr Chief Justice
CHIEF JUSTICE ROBERTS Well any type
of targeted action that would have a impact on
the Muslim population
MR KATYAL Absolutely We think the
President has wide authorities to do things
that have impacts on the Muslim population
Take the laptop ban that was introduced -shy
CHIEF JUSTICE ROBERTS Why under your
theory wouldnt that constitute or the argument
would be that thats discrimination under your
Establishment Clause argument -shy
MR KATYAL Oh
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CHIEF JUSTICE ROBERTS -- that thats
discrimination on the basis of faith because he
has said in the past if you accept the -shy
MR KATYAL Yeah
CHIEF JUSTICE ROBERTS -- accept the
arguments that he -- he is anti-Muslim
MR KATYAL Not at all Your Honor
and no President has run afoul of this you
know and thats because here the President
and his advisors have directly tied this policy
to those statements And the red brief at page
70 I think is the greatest illustration of
that
Thats 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 INA is
that the President can take a wrecking ball to
the statute and countermand Congresss
fine-grained judgments that -shy
CHIEF JUSTICE ROBERTS He can never
-shy
JUSTICE KAGAN Well you might think
-shy
JUSTICE GORSUCH Mr Katyal -- Mr
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Katyal if I might on -- on the statutory
question before we leave it Weve been
proceeding so far on the assumption that we can
reach the merits but the government makes the
argument for example that aliens who are
removed from this country have to bring their
claims personally and third parties cant
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
who are not present in this country Whats
the answer to that
MR KATYAL Well several This is
not a third-party case These are United
States citizens bringing this challenge in a
state -shy
JUSTICE GORSUCH Oh behalf of -shy
MR KATYAL -- of the United States
JUSTICE GORSUCH -- aliens not
present in the country
MR KATYAL Well but they are
directly -- they are directly harmed
themselves Let me just give you one example
Not just the State of Hawaii whose university
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is directly impacted but lets just take for
example the Alomari -- Mr Alomari the
10-year-old in the PARS Equality brief Justice
Breyer that you were referring to This is a
10-year-old daughter in Yemen who is -- whos
trying to come here because she has cerebral
palsy
JUSTICE GORSUCH I understand that
but those arguments dont work with respect to
aliens present in the country So why do they
work for aliens who are not present in the
country
MR KATYAL Because I -shy
JUSTICE GORSUCH Those very same
arguments would not succeed
MR KATYAL Well -shy
JUSTICE GORSUCH I think youd
concede that they wouldnt succeed for aliens
present -shy
MR KATYAL Right And they dont
succeed because there you have a better
plaintiff might not be willing to bring them in
the United States and thats why the court
you know says no third party But here
these folks are directly impacted
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And the most important thing to say is
Sale answers this You heard my friend concede
Sale was jurisdictional the issues in Sale
Thats how they briefed it up Thats how he
just described it This Court had exactly that
situation United States plaintiffs and it
reached the merits
Our statutory point to you is that if
you accept this order youre giving the
President a power no President in 100 years has
exercised an executive proclamation that
countermands Congresss policy judgments He
has zero examples to say that when Congress has
stepped into the space and solved the exact
problem that the President can then come in
and say No I want a different solution
If you do that youd -- its not just
family preferences that youre allowing him to
get rid of youd get rid of all sorts of even
small things in the Code or big things like
theres a preference for specialty occupations
like software engineers in the INA The
President could say The economics are such
Im going to ban software engineers from going
to California or something like that under that
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sweeping 1182 power
JUSTICE KAGAN I -- I guess the
question though Mr Katyal is maybe youre
entirely right that 1182(f) needs to have some
limits to prevent the President from doing
something thats completely contrary to another
section of the statute
But youre suggesting well the
President cant do anything thats not
contemplated by the rest of the statute
MR KATYAL That is not our argument
JUSTICE KAGAN Okay 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 -shy
MR KATYAL Right
JUSTICE KAGAN -- between what the
President is doing and another statutory
provision
MR KATYAL So our view is that the
President can supplement he just cant
supplant In this Courts decisions in the
Brown amp Williamson case and the UARG greenhouse
gas and Concepcion and Abilene Cotton the
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Savings Clause cases all say there are three
things you look at And its not a flat bar
It cant be like a direct contravention Even
they say its not a direct contravention in
their reply brief at page 19
So the three things are first can
these two solutions coexist or not Second
has Congress prescribed a reticulated
comprehensive scheme And third you know is
there any other indication that Congress
considered 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 -shy
Congress has a comprehensive reticulated scheme
that deals with the exact single problem that
hes identified which is countries not
cooperating It cant coexist with the
solution of a flat ban It makes no sense for
example to have the in-person visa requirement
-- visa interview which is in 12 -shy
1202(h)(2) which is for -- for people who come
from state sponsors of terrorism or who have a
group with a likelihood of providing
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inaccurate information Congress said there
has to be an in-person interview for that
It doesnt make sense to say well
youre going to have a flat ban It doesnt
make sense to have a Visa Waiver Program which
is all about countries that provide zero
information to the United States -- state
sponsors of terrorism and the like -- and say
were going to give you a carrot and then say
oh no forget about the Visa Waiver Program
JUSTICE ALITO Can -- can you imagine
any situation in which the threat of the
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
MR KATYAL Yes
JUSTICE ALITO You cannot imagine any
such situation
MR KATYAL Yes I can And the
President would have a robust authority to deal
with that That is not our argument So -shy
JUSTICE KENNEDY And your argument is
that courts have the -- the duty to review
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whether or not there is such a national
exigency thats for the courts to do not the
President
MR KATYAL No I think you have
wide deference Justice Kennedy Its exactly
what you said when you joined Justice Breyers
opinion in Hamdan which is as long as -- you
know Presidents have wide berth in this area
but if -- you know certainly if theres any
sort of emergency that precludes it
But when you have a statute that
considers the very same problem and theres
nothing new that theyve identified in this
worldwide review process that Congress didnt
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 the -shy
CHIEF JUSTICE ROBERTS But thats in
the abstract I mean they may have more -shy
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
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And it seems to me a difficult
argument to say that Congress was prescient
enough to address any particular factual
situation that might arise
MR KATYAL Well that again -shy
thats again Mr Chief Justice not our
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 But here -shy
CHIEF JUSTICE ROBERTS What about -shy
what about a change of administration in a
particular country -shy
MR KATYAL Yes
CHIEF JUSTICE ROBERTS -- in which
perhaps the vetting procedures are not going to
be taken seriously
MR KATYAL Right
CHIEF JUSTICE ROBERTS That Congress
could not have anticipated
MR KATYAL Well but again
Congress anticipated a country that is a state
sponsor of terrorism and even for -- with
respect to that providing no information and
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indeed fomenting against the United States
Congress said oh were not going to have a
nationality ban You know they flatly banned
that and said were going to have
individualized vetting and this Visa Waiver
Program carrot to try and deal with that you
know dangerous regime
Now again I can imagine an emergency
situation in which the President would have
even greater authority for that But here we
are 460 days later and I would caution the
Court not to make a decision about the
emergency youre concerned about That can be
bracketed as it was in Youngstown as it was in
Hamdan This is so far from that
The text of 1152 is flatly violated
here It says there shall be no discrimination
on the basis of nationality with the issuance
of visas
That is 39 percent of all the visas
this executive order covers Its not a small
part Its 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
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become part of our long-term polity This
executive order flatly contradicts that
Now if you accept his
interpretation -- he says well you know
were discriminating at the entry side not at
the visa side If you do that you are giving
the President the power to undo -- and hes
actually just done it -- hes undone the ban on
nationality-based discrimination Hes imposed
country quotas of zero for these countries at
the border
CHIEF JUSTICE ROBERTS If your -shy
your argument based on discrimination based on
the campaign statements is there a statute of
-- no the one that you do make based on the
campaign statements is there a statute of
limitations on that or is that a ban from
presidential findings for the rest of the
administration
MR KATYAL So Mr Chief Justice I
first want to be very clear about this Our
point about 1152 and the discrimination has
nothing to do with any campaign statements or
anything else
Its purely the text of the
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proclamation which is nationality-based
discrimination through and through Judge
Sentelle said you couldnt imagine a clearer
text than this And this is -- it violates it
Now -shy
CHIEF JUSTICE ROBERTS My question
was on the -shy
MR KATYAL -- youre asking about
the First Amendment
CHIEF JUSTICE ROBERTS Yes
MR KATYAL I just want to make
absolutely clear that were -- thats not -shy
you know you dont need to do any of that for
purposes of 1152 And that would knock out
39 percent of the most important part of the
executive order
CHIEF JUSTICE ROBERTS My question
of course -shy
MR KATYAL Yes Now Im getting -shy
CHIEF JUSTICE ROBERTS -- was not on
1152
MR KATYAL Yes Im getting there
Okay
With respect to that we dont think
-- we think that the test as this Court has
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said a reasonable objective observer viewing
all the statements and we think absolutely
my friend is right you shouldnt look to
campaign statements in general or stuff like
that 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 70
of our red brief you have a very good example
of this
After the executive order this latest
executive order was promulgated the President
tweeted these three virulent anti-Muslim
videos And then the press spokesman was
asked What does this mean What is this
about And the answer was The President has
spoken about exactly this in the proclamation
CHIEF JUSTICE ROBERTS My question
was whether or not the inhibition on the
ability to -- to enter one of the proclamations
applies forever
MR KATYAL Right No I think the
President could have disclaimed -- you know
easily moved away from all of these statements
you know but instead they embraced them
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Thats the difference
And so absolutely the President
would have wide berth to say thats a -shy
CHIEF JUSTICE ROBERTS So if
tomorrow he issues a proclamation saying hes
disavowing all those statements then the next
day he can reenter this proclamation
MR KATYAL Thats exactly what this
Court said in McCreary This Court in McCreary
said you know the same policy can be
constitutional if said -- if promulgated by one
entity and not by another depending on the
circumstances around it
CHIEF JUSTICE ROBERTS Is your answer
to my question yes
MR KATYAL Yes The answer is -shy
CHIEF JUSTICE ROBERTS Tomorrow he
issues a proclamation disavowing those
statements -shy
MR KATYAL Absolutely And thats a
CHIEF JUSTICE ROBERTS -- then the
next day he could reenter this and your
discrimination argument would not be
applicable
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MR KATYAL And -- and -- and Mr
Chief Justice thats exactly what I told the
Ninth Circuit in May The President didnt do
that Thats whats -- thats -- you know
thats what a reasonable objective observer -shy
JUSTICE SOTOMAYOR So if another -shy
JUSTICE ALITO Mr Katyal would any
reasonable observer reading this proclamation
with -- without taking into account statements
think that this was a Muslim ban
I mean there are -- I think there are
50 predominantly Muslim countries in the world
Five -- five countries -- five predominantly
Muslim countries are on this list
The population of the -- of the
predominantly Muslim countries on this list
make up about 8 percent of the worlds Muslim
population
MR KATYAL Absolutely
JUSTICE ALITO If you looked at the
10 countries with the most Muslims exactly
one -shy
MR KATYAL Right
JUSTICE ALITO -- Iran would be on
that list of the top 10
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MR KATYAL Right
JUSTICE ALITO So would a reasonable
observer think this was a Muslim ban
MR KATYAL If it were -- if it were
just the text of the order alone it might
raise eyebrows for fit and other reasons that
the briefs go into but we wouldnt be here
We absolutely agree that just -- its the same
test as in Lukumi and other cases You have to
look to all the circumstances around it that
are said the publicly available ones
You know and Justice Alito the fact
that the order only come -- encompasses some
Muslim countries I dont think means its not
religious discrimination For example if Im
an employer and I have 10 African-Americans
working for me and I only fire two of them I
dont think -- you know and say well Ive
left the other eight in I dont think anyone
can say thats not discrimination
JUSTICE ALITO No I -- I understand
that And it is one of our fundamental values
that there is religious freedom here for
everybody in that number -- adherence to every
religion are entitled to equal treatment
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My only point is that if you look at
what was done it does not look at all like a
Muslim ban There are other justifications
that jump out as to why these particular
countries were put on -- on the list
So you -- it seems to me the list
creates a strong inference that this was not
done for that invidious purpose
MR KATYAL Justice Alito I think if
it were just the list I think wed be right -shy
youd be right although Id point out that
you yourself in the Stormans case said that
its a religious -- it raises an inference of
religious gerrymander of the burden imposed
falls almost exclusively on those with
religious objections
This is a ban that really does fall
almost exclusively on Muslims between
902 percent and 998 percent Muslims And so
it does look very much like what you said in
Stormans But even then we wouldnt be here
if it werent for all of the different
statements
And the best evidence of this about
what a reasonable objective observer would
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think is to look at the wide variety of amicus
briefs in this case from every corner of
society representing millions and millions of
people from the US Conference of Catholic
Bishops which calls it blatant religious
discrimination
JUSTICE GORSUCH Mr Katyal on that
its been a long time since this Court has used
the Lemon test reasonable observer even to
strike down a domestic statute let alone
something with purely international
application What -- what do we do about that
MR KATYAL Yeah 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 and our protest of
King George which is all about using the
immigration power to exclude people of a
different faith And thats what our
Constitution is about So thats the first
thing
And the second is we dont think you
have to get into Lemon and all these other
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tests that you all have struggled with I
think this Court in Lukumi was very clear in
saying that when youre talking about
denigration of religion all the tests point in
the same direction
JUSTICE SOTOMAYOR Mr Katyal you
said something earlier you said you wouldnt
be here if all of those statements the
background statements were not made Do you
mean that on all of your bases You wouldnt
be here on the Establishment Clause claim
MR KATYAL Only on the Establishment
Clause claim not on anything else And our
point is you know he talks about for
example this worldwide vetting process
Remember his own argument on 1182 is
the statute puts the President -shy
JUSTICE SOTOMAYOR So lets -- lets
go back to not being here without the
statements Clearly the statements even
conceded by your adversary do give you a basis
to look behind all right the reason
So if were looking behind it how do
you deal with the Generals suggestion that
there was a cleansing that occurred because of
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all of the agencies and departments who
participated in this process
MR KATYAL Yeah So theres three
things Number one is that his -- his own
argument is that 1182 puts the President in the
drivers seat so the cabinets not important
Its the Presidents proclamation
Second the order itself says in its
first lines it harkens back to Executive
Orders 1 and 2 and it says its an outgrowth
of that So it was infected by the same thing
that was struck down on Establishment 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 ban
a non-politically-correct ban and the like
So given all of those things but in
particular given the fact that 1182 itself
forces the President to make the proclamation
its the Presidents proclamation so I dont
think you even have to get into this whole
unitary executive thing but I do agree with
you Justice Sotomayor that thats another
problem which is theyre coming before the
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Court and saying Nope its the President
whos in charge And now theyre saying here
Oh no no no its these other people
This is the Presidents proclamation
through and through No President has ever
said anything -- anything like this And
thats what makes this different
And the President -shy
JUSTICE KAGAN And -- and yet Mr
Katyal 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 evaluating the adequacy of those
national security interests which for the most
part weve said courts are not equipped to do
MR KATYAL Right Were not asking
you to second-guess a national security
judgment at all with the purpose of the
Establishment Clause
Were saying you just have to look to
what a reasonable objective observer would do
Thats the ordinary test that youve used in
cases like Lukumi Is there an official
purpose to disparage a religion Here there
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very much is Thats you know everything
that the President has said and that the order
itself embodies Thats our fundamental
problem
JUSTICE BREYER What do you think -shy
its a -- its a -- its still something Im -shy
Im thinking about perhaps to the side but
the statute you point to one of the ones that
is stronger for you There are obviously
objections to what youre saying in quite a few
briefs all right but the one that you talked
about it does say you have to have an
interview with a consular official if the
person is from a country officially designated
by the Secretary as a state sponsor of
terrorism It does say that
So theyll say but we do have that in
respect to everyone under the exception So
there isnt much problem Weve gone beyond
that in respect to other people All right
Take their argument for a moment
Because my question is which I
couldnt find in the briefs is is it true -shy
Im just taking what they say -- that really
that isnt so they dont publicize it they
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havent put forth a guidance people dont know
they can come in and qualify for this
And if it turns out that that is
something that is important to the lawfulness
of the order because there are many many
categories there -shy
MR KATYAL Right
JUSTICE BREYER -- what do we do
MR KATYAL So two things Number
one this waiver process has excluded -- and
you have this in the PARS Equality brief at
page 14 A 10-year-old with cerebral palsy who
wants to come to the United States to save her
life and she cant move or talk The
10-year-old was denied a waiver Justice
Breyer
He says theres 430 people who have
gotten waivers Theyve never told you the
denominator and theres no publication of this
process and how -- how often it is And the
data that we do have suggests as a matter of
percentages its very weak
Just to give you some evidence of
that just the State of Hawaii has gotten about
1000 letters from people most of which say
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were not even getting waivers on the like
JUSTICE GORSUCH That -shy
MR KATYAL Weve heard very few
instances -shy
JUSTICE GORSUCH -- raises a question
of remedy for me
MR KATYAL Yes
JUSTICE GORSUCH We have this
troubling rise of this nationwide injunction
cosmic injunction -shy
MR KATYAL Yeah yeah
JUSTICE GORSUCH -- not limited to
relief for the parties at issue or even a class
action
MR KATYAL Right
JUSTICE GORSUCH And near as I can
tell thats -- thats a really new development
where a district court asserts the right to
strike down a -- a federal statute with regard
to anybody anywhere in the world
MR KATYAL Yeah
JUSTICE GORSUCH What -- what do we
do about that
MR KATYAL Obviously the injunction
here has been trimmed by this Court itself and
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others And I do think -- I -- I share your
impulse Justice Gorsuch Thats something
that I think lower courts are debating right
now in a number of different contexts like the
contraception case and the like
I think this case is the poorest
example to get into it because of United States
versus Texass point which is this is an
immigration case and Article I Section 8 puts
Congress in the drivers 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 doesnt make a
tremendous amount of sense It would almost be
an advisory opinion
Our fundamental point to you though
is that Congress is in the drivers seat when
it comes to immigration and that this
executive order transgresses the limits that
every President has done with this proclamation
power since 1918 And to accept it here is to
accept that the President can take an iron
wrecking ball to the statute and pick and
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choose things that he doesnt want for purposes
of our immigration code That cant be the law
of the United States
CHIEF JUSTICE ROBERTS Take five
extra minutes Okay
MR KATYAL Okay
(Laughter)
CHIEF JUSTICE ROBERTS You dont have
to
(Laughter)
MR KATYAL Well if there are -- if
there are any other questions Im happy to
take anything Okay Thank you
CHIEF JUSTICE ROBERTS Thank you
counsel
Five minutes for rebuttal General
REBUTTAL ARGUMENT OF GENERAL NOEL J FRANCISCO
ON BEHALF OF THE PETITIONERS
GENERAL FRANCISCO Mr Chief -- Mr
Chief Justice and may it please the Court
I -- I really do have just a few quick
points unless Your Honors have additional
questions
Justice Breyer I did want to respond
in more detail to your question about how the
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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
the waiver -- the visa officer first determines
whether the person is otherwise admissible
under other provisions of the INA
If theyre inadmissible you never
even get to the proclamation Then for those
people who are not inadmissible under other
parts of the INA like 1182(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 youre not subject to an exception
then the consular officer him or herself
turns to the waiver provision and applies the
criteria of the waiver provision
JUSTICE GINSBURG How do you deal
with the -shy
GENERAL FRANCISCO So it does get
applied in every single case
JUSTICE GINSBURG How -- how do you
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deal with the example that was brought up of
the child with cerebral palsy
GENERAL FRANCISCO Your Honor the
waiver is built to address those issues I am
not familiar enough with the details of that
case to tell you what happened in that
particular case But thats what the waiver
provision -shy
JUSTICE BREYER But thats -- thats
you see -shy
GENERAL FRANCISCO -- is intended to
address
JUSTICE BREYER Youve read the
briefs as have I All right Now there are
some that lists about 10 or 15 instances like
the cerebral palsy One has Parkinsons Then
theres another brief that lists all the people
who are professors scholars at universities
and there are a lot And -- and then there are
people they list the students from these
countries a lot
GENERAL FRANCISCO Yeah
JUSTICE BREYER And then the business
community lists a -- a whole bunch and says my
goodness they have been unable to get -- we
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dont know whats going on
And then they say Well whats going
on is nothing is going on
GENERAL FRANCISCO Well Your Honor
-shy
JUSTICE BREYER Now I dont -- Im
not taking sides on that Im just saying I
dont know
GENERAL FRANCISCO Right And the
principal purpose of the proclamation is of
course to 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 Im 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
admissible
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 dont and doesnt tell us we
cannot intelligently make the admissibility
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determination
Third Id like to address the
1152(a)(1)(A) point about nationality-based
discrimination
JUSTICE SOTOMAYOR General could you
stop just one second
GENERAL FRANCISCO Yes Your Honor
of course
JUSTICE SOTOMAYOR I for one am like
Justice Breyer concerned about is this window
dressing or not Whats in place to ensure
its not What are you personally doing to
represent to us that it is in fact a real
waiver process -shy
GENERAL FRANCISCO Your Honor State
Department consular officers automatically
apply the waiver process in the course of every
visa application And they are doing that
which is why there have been -- and I looked at
our brief -- 430 waivers that have been issued
since -shy
JUSTICE SOTOMAYOR Have you bothered
-shy
GENERAL FRANCISCO -- the
proclamation was issued
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JUSTICE SOTOMAYOR -- to look to see
if there are reasons for all of those peoples
exclusions
GENERAL FRANCISCO Your Honor I
cannot claim that I have looked into every
individual case
JUSTICE KENNEDY Could you make your
1152 point
GENERAL FRANCISCO Yes Your Honor
1152(a)(1)(A) addresses one thing the issuance
of immigrant visas It doesnt address the
broader question over whether somebodys
allowed to enter in the first place
Thats governed by 1182 including
1182(f) So essentially 1182 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 1152(a)(1)(A) is
one of the rules that governs how we distribute
visas amongst that group thats eligible to
come in
And its not just nationality-based
distinctions that it applies to It also
applies to things like place of residence So
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once you have that universe of eligible people
1152(a)(1)(A) governs how you distribute them
But lets 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 non-immigrant visas to people who
arent allowed to enter but we wouldnt have
to allow anyone to enter and we wouldnt have
to issue any non-immigrant visas
So the bottom line is I think theyre
simply wrong on that case -- on that issue
My final point has to do with my -- my
brothers 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 25 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
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says its about Foreign policy and national
security And we would ask that you reverse
the court below
CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1109 am the case
was submitted)
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1 998 [1] 6619 39914 44111417 51581120 arise [2] 5725 584
1 [1] 6910 A 52101118
ALITO [16] 432124 446813 45
around [3] 4814 6313 6510
Article [2] 136 749 1000 [1] 7225 am [3] 116 32 826 15 4611 561119 6472024 65 aside [1] 4414 10 [4] 642125 6516 7715 Abilene [1] 5425 21221 669 asks [3] 169 519 7614 10-year-old [4] 5235 721215 ability [1] 6220 allies [2] 73 1719 assert [2] 5111 7811 1002 [2] 116 32 able [2] 2210 5111 allow [3] 413 4420 8110 asserts [1] 7318 100 [4] 353 407 4813 5310 above-entitled [1] 114 allowed [3] 178 8013 819 associate [1] 2211 11 [1] 4410 abroad [1] 2113 allowing [1] 5318 associated [1] 812 1109 [1] 826 absolute [1] 428 almost [8] 116 1556 30712 66 assume [4] 19811 2016 813 1152 [7] 4017 494 5916 6022 61 absolutely [12] 4114 4213 4520 1518 7416 assumption [3] 3016 3724 513 1421 808 49217 5810 6112 622 63220 Alomari [2] 5222 attitude [1] 227
1152(a)(1)(A [4] 793 801019 81 6419 658 alone [2] 655 6710 Attorney [1] 523 2 abstract [1] 5720 already [3] 61024 397 authorities [1] 4918
1182 [10] 1018 4419 4721 499 academic [1] 3418 although [3] 379 4414 6611 authority [7] 6916 712 3815 42 541 6816 69519 801415 accept [8] 138 454 5035 539 Amendment [3] 396 619 6716 15 5622 5910
1182(a [1] 7612 603 742324 American [1] 1111 authorize [2] 42610 1182(f [18] 4591318 54 616 7 acceptability [1] 108 Americans [2] 4011 8121 automatically [2] 764 7916 1120 1025 1314 3816 432225 account [2] 105 649 amicus [1] 671 available [1] 6511 4410 451 497 544 8015 accurate [1] 1218 amongst [1] 8021 aware [2] 391725
12 [1] 5522 across [3] 107 2524 2923 amount [1] 7416 away [2] 6224 8117 1202(h)(2 [1] 5523
1361 [1] 432
act [4] 128 177 421 4322
acting [1] 313 analysis [3] 914 1624 7013
animus [1] 1710 B
14 [1] 7212 action [4] 2511 385 4915 7314 another [10] 519 1220 279 35 back [6] 234 3519 4715 4813
15 [1] 7715 actions [1] 247 18 54619 6312 646 6924 77 6819 699
150 [2] 325 3618 activity [1] 3118 17 backdrop [1] 2613
17 [1] 3614 acts [3] 410 281119 answer [9] 615 119 369 389 45 background [2] 2620 689
17-965 [1] 34 actually [14] 111923 1225 175 3 5113 6216 631416 balance [2] 462 4818
180 [2] 461821 21 2112 231 2410 257 299 37 answers [1] 532 ball [2] 5018 7425
19 [1] 555 21 4319 608 763 anti-atheist [1] 224 ban [22] 291113 3921 401317
1918 [1] 7423 add [1] 64 anti-Muslim [2] 506 6213 4315 466 4817 4920 5324 55
1965 [1] 4522 added [1] 519 anti-Semite [1] 163 20 564 593 60817 6410 653
2 addition [2] 617 151 anti-Semitic [2] 194 2619 66317 691617 8119
2 [1] 6910
20 [1] 408
2001 [1] 4524
2015 [1] 4525
2018 [1] 112
25 [2] 112 8118
additional [1] 7522
address [10] 71 12618 133 299
583 77412 792 8011
addressed [2] 59 5723
addresses [3] 76 399 8010
adequacy [2] 5724 7014
adequate [1] 610
anti-Semitism [1] 1615
anticipated [2] 582123
anybody [1] 7320
anyway [1] 314
APPEARANCES [1] 118
appears [1] 318
applicable [1] 6325
banned [1] 593
bans [3] 3924 4521 461
bar [3] 1420 393 552
bare [1] 303
based [7] 1415 1725 275 2922
60131315
baseline [14] 3162123 722 819
3 adherence [1] 6524 application [2] 6712 7918 972124 1547 1923 302 3919
3 [1] 24 administration [2] 5813 6019 applied [10] 111619 153 1913 7817
38 [1] 27 admissibility [3] 78 820 7825 23 269 2923 3814 76324 bases [1] 6810
39 [2] 5920 6115 admissible [4] 424 816 767 78 applies [9] 322 171 2113 6221 basic [4] 615 725 127 3014
4 19
admission [1] 3923 7651619 802425
apply [9] 147 1589 1918 2112
basically [2] 23725
basis [8] 85 171724 1916 4611
400 [2] 361518 admitted [1] 3423 231 2516 359 7917 502 5918 6821
43 [1] 4715 adopt [1] 314 approach [1] 468 became [1] 3917
430 [2] 7217 7920 adopts [1] 318 appropriate [1] 3025 become [1] 601
46 [1] 3418 adversary [1] 6821 April [1] 112 becomes [1] 5925
460 [2] 4119 5911 advice [2] 179 289 arbiter [1] 2622 began [1] 6915
5 50 [1] 6412
advisors [2] 4821 5010
advisory [1] 7417
affirm [1] 524
area [5] 419 1016 1519 4718 57
8
arent [2] 4311 819
behalf [9] 12122 24710 39 38
23 5118 7518
behind [2] 682223
7 afford [1] 3819 arguably [1] 4717 believe [1] 3614
70 [2] 5012 628 afoul [1] 508 argued [1] 236 below [6] 323 9212424 262 82
75 [1] 210 African-Americans [1] 6516 argument [37] 115 2258 348 3
8 agencies [5] 1925 251516 406
691 121241422 1327 1471013
19912 3822 4316 474 4810
benefit [1] 73
berth [2] 578 633
8 [2] 6417 749 agree [3] 1522 658 6923 11 492224 515 5411 562324 best [1] 6624
80 [2] 30812 ahead [1] 3010 5827 6013 6324 6816 695 71 better [3] 1022 1817 5221
9 air [1] 4823
AL [2] 147 21 7517
arguments [5] 3014 4016 506
between [2] 5418 6618
beyond [2] 3512 7119 902 [1] 6619 aliens [16] 424 128 1625 2113 52915 big [3] 3924 405 5320
Heritage Reporting Corporation Sheet 1 1 - big
84Official
bigger [1] 446
bill [4] 42691112
biological [1] 4010
biometric [1] 433
Bishops [1] 675
bit [2] 614 141
blatant [1] 675
Blatt [1] 3420
block [1] 4212
border [4] 8814 6011 7821
both [5] 207 274 3019 4020 44
2
bothered [1] 7922
bothering [1] 235
bottom [1] 8112
bounds [1] 2814
bracketed [1] 5914
branch [8] 715161718 2312 27
89 2813
BREYER [49] 1315 3061122 31
111422 321411141624 332
610162023 3425812 35111
1523 36369111720 37211
1822 382 443 524 715 72816
7524 7791323 786 7910
Breyers [1] 576
brief [14] 3420 35818 3612 43
20 464 4813 5011 523 555 62
9 7211 7717 7920
briefed [1] 534
briefs [9] 413 308 3416 452 65
7 672 711123 7714
bring [7] 20131624 2110 2212
516 5222
bringing [1] 5116
brings [1] 7813
broad [5] 418 1146 442025
broader [1] 8012
broadly [1] 429
broke [1] 256
brothers [1] 8115
brought [1] 771
Brown [1] 5424
built [1] 774
bunch [1] 7724
burden [2] 3915 6614
burdens [1] 431
business [4] 3116 3417 367 77
23
C cabinet [9] 169 1724 1924 24
2225 25114 2810
cabinets [1] 696
cabinet-level [3] 153 183 1922
California [1] 5325
call [1] 278
calls [1] 675
came [2] 114 587
campaign [9] 168 285621 291
60141623 624
candidate [1] 2817
cannot [5] 815 2119 5619 7825
805
careful [1] 4423
carrot [2] 569 596
carrots [3] 3921 4312 469
Carter [6] 93 1013 113 3018 35
5 384
Carters [4] 1113161822
Case [25] 34 109 1222 1317 14
11 151015 198 2011 236 45
14 5115 5424 6612 672 7456
9 7624 7767 806 8113 8256
case-by-case [5] 30192325 38
77
cases [5] 1519 551 659 6913
7024
categories [1] 726
Catholic [1] 674
Catholics [1] 6718
caution [1] 5911
cerebral [4] 526 7212 77216
certain [3] 1117 1420 1816
certainly [2] 5015 579
Chad [3] 46 1010 2917
chain [1] 457
challenge [4] 2010 2123 221 51
16
change [5] 92 3314 4012 5813
charge [2] 245 702
check [1] 254
chemical [1] 4010
CHIEF [49] 3310 1125 121117
21 131 309 3817182124 404
41182024 425 4820 49613
1421 501521 5719 5861216
20 601220 616101720 6218
634141722 642 75481419
20 824
child [1] 772
choices [1] 393
choose [1] 751
Christian [1] 222
Circuit [3] 2633 643
circumstances [4] 311 401 63
13 6510
cite [2] 76 1321
citizen [3] 28712 625
citizens [1] 5116
claim [15] 1320 20611131416
24 2121115 2225 5014 6811
13 805
claimed [1] 2624
claims [4] 1317 215 2219 517
class [10] 322718 3413 4429
131416 7313
Clause [15] 1320 1914 2069 21
21118 2225 288 4924 551 68
1113 6912 7020
cleansing [1] 6825
clear [8] 923 1720 2123 5016
5415 6021 6112 682
clearer [1] 613
Clearly [1] 6820
close [1] 3119
closest [2] 73 1719
Code [2] 5320 752
coequal [1] 279
coexist [2] 55719
college [1] 222
come [13] 1324 175 3210 4621
526 5315 5523 5925 6513 72
213 801622
comes [3] 1322 5717 7420
coming [5] 79 2716 4221 432
6925
comments [2] 166 194
committee [4] 512 24178
community [3] 341718 7724
companies [1] 464
compare [1] 1012
complaining [1] 3417
complete [1] 118
completely [2] 2410 546
comply [1] 251
comports [1] 4018
comprehensive [2] 55916
concede [3] 4122 5218 532
conceded [1] 6821
Concepcion [1] 5425
concern [2] 59 2612
concerned [3] 3217 5913 7910
concerns [2] 1122 129
concluded [4] 155 201 2518 29
24
conduct [2] 824 95
Conference [1] 674
confident [1] 1915
confidential [1] 265
confidentiality [1] 2612
confirms [1] 2921
conflict [1] 5416
conflicts [1] 392
Congress [40] 41015 5710 64
81024 385 397172025 4117
25 421624 439132122 4421
4522 47101011 4817 5313 55
81016 561 571423 5822023
592 741019
Congresss [7] 392 4019 4318
4523 4717 5019 5312
consequences [1] 5017
consider [6] 199 284 371923
3811 5715
considerations [4] 106 4633
4819
considered [1] 5511
considers [1] 5712
consistent [2] 2820 4718
constantly [1] 718
constitute [2] 4416 4922
Constitution [3] 2424 289 6722
constitutional [6] 1317 1510 19
18 2114 5014 6311
constitutionally [1] 2810
construct [1] 2516
consular [6] 121 7113 76412
18 7916
contacts [1] 3115
contemplated [1] 5410
context [3] 161523 1825
contexts [2] 5725 744
continuing [2] 47223
contours [1] 1521
contraception [1] 745
contradicts [1] 602
contrary [2] 54614
contravention [2] 5534
convinced [1] 487
cooperate [5] 84 3910 4610 48
15 5717
cooperated [1] 3922
cooperating [3] 4220 4311 55
19
core [1] 720
corner [1] 672
correct [4] 13911 4323 4412
cosmic [1] 7310
Cotton [1] 5425
couldnt [3] 2223 613 7123
counsel [2] 7515 825
countermand [2] 459 5019
countermanded [1] 4717
countermanding [1] 4317
countermands [2] 4523 5312
countries [45] 3152225 51821
22 749 91920 1047 1112 15
7 2212 252224 2610 2916 32
4 3621 3910121821 4219 43
11 469 4815 5518 566 5716
5810 6010 641213141621 65
14 665 7721 7811 812224
country [29] 416 811 99 154
1925 251718 2716 305 3210
4215 436 4416 491 516912
21 521012 5615 581423 6010
7114 8017 812123
countrys [1] 1719
couple [2] 271 3222
course [8] 1323 1679 3520 61
18 7811 79817
COURT [22] 1115 311 1218 13
8 1423 3825 5223 535 5912
6125 6399 678 682 701 7318
25 741315 7520 823
Courts [3] 4112 4513 5423
courts [5] 266 5625 572 7016
743
covered [2] 1114 2917
covers [2] 1112 5921
created [2] 5815
creates [1] 667
credit [1] 3922
criminal [2] 83 304
crisis [2] 477 482
criteria [8] 512 910 292324 33
1921 3919 7620
cross [1] 1613
crystal-clear [2] 811820
Cuba [2] 95 476
current [1] 3613
cuts [1] 6715
D DC [3] 1112022
Heritage Reporting Corporation Sheet 2 bigger - DC
85Official
danger [1] 525
dangerous [1] 597
data [1] 7221
daughter [1] 525
day [5] 2819 40814 63723
days [4] 4119 461821 5911
deal [8] 422425 4310 5622 596
6824 7621 771
deals [1] 5517
dealt [3] 173 4112 4513
debating [1] 743
decent [1] 366
decided [3] 610 121213
decision [3] 2122 4110 5912
decisions [1] 5423
deemed [1] 5616
deems [1] 4722
defend [1] 2423
deference [2] 4118 575
defies [1] 393
definite [1] 356
definitely [1] 209
deliberations [1] 2418
denied [1] 7215
denigrating [1] 166
denigration [1] 684
denominator [1] 7219
Department [3] 120 761 7916
departments [1] 691
depending [1] 6312
depends [1] 7816
described [3] 811 2614 535
designated [2] 518 7114
despite [1] 1214
detail [3] 1020 274 7525
detailed [3] 101825 1110
details [1] 775
determination [2] 815 791
determine [4] 424 78 819 7817
determined [1] 714
determines [1] 766
developing [1] 5722
development [1] 7317
difference [2] 2724 631
different [10] 822 3512 4016 53
16 5511 6622 6721 707 744
816
difficult [2] 1716 581
diplomatic [5] 324 18121518
3313
direct [3] 5415 5534
direction [2] 5512 685
directly [6] 5010 512323 52125
5413
disagree [1] 4610
disagreed [1] 813
disavowing [2] 63618
disclaimed [1] 6223
discretion [1] 472
discriminating [1] 605
discrimination [17] 394 401722
4825 49423 502 5917 60913
22 612 6324 651520 676 794
disease [1] 3119
dislike [1] 2117
disparage [1] 7025
distinctions [1] 8024
distinguish [1] 1514
distribute [2] 8020 812
district [1] 7318
Doe [1] 88
doing [8] 63 229 2514 5015 54
519 791218
domestic [2] 1913 6710
DONALD [2] 13 35
done [9] 1924 2412 267 354 44
21 608 6628 7422
doom [1] 4615
dot [1] 1612
down [4] 256 6710 6912 7319
dressing [3] 35921 7911
drivers [3] 696 741019
dropped [1] 46
duty [2] 276 5625
duty-bound [1] 2423
E earlier [2] 2713 687
easily [1] 6224
easy [1] 197
economic [1] 463
economics [1] 5323
effectively [1] 281
eight [1] 6519
either [2] 1112 265
elected [2] 162 2819
eligible [3] 801621 811
embodies [1] 713
embodiment [1] 2813
embraced [1] 6225
emergency [5] 4023 4115 5710
59813
emerges [2] 161416
employed [1] 3123
employer [1] 6516
enacted [1] 4322
encompasses [1] 6513
end [6] 162022 2314 4557 46
22
ends [2] 4614 478
engaging [1] 825
engineers [2] 532224
enough [4] 415 68 583 775
ensure [2] 2623 7911
enter [7] 1617 2114 409 6220
8013 81910
entire [1] 810
entirely [1] 544
entitled [1] 6525
entity [1] 6312
entry [6] 314 414 399 4013 44
11 605
equal [1] 6525
Equality [2] 523 7211
equipped [1] 7016
ESQ [2] 122 26
essentially [3] 714 1325 8015
establish [1] 4517
established [1] 3116
Establishment [12] 1320 1914
206 2121018 2225 4924 68
1112 6912 7020
ET [2] 147
evaluating [1] 7014
evaluation [1] 267
even [20] 1310 17916 19811 25
11 4120 4716 5319 553 5824
5910 6621 679 6820 691522
73113 7610
everybody [2] 2123 6524
everyone [1] 7118
everything [2] 2725 711
evidence [2] 6624 7223
exact [4] 3616 4217 5314 5517
exactly [12] 625 266 4313 4522
535 57515 62817 638 64221
example [14] 86 4024 455 515
24 522 5521 587 629 6515 67
17 6815 747 771
examples [2] 312 5313
exception [7] 92123 1120 3624
7118 761417
exceptions [2] 302023
exclude [2] 2914 6720
excluded [6] 910 2017 3220 33
1217 7210
exclusion [2] 127 1625
exclusions [1] 803
exclusively [2] 661518
executive [23] 715151618 14
10 23712 24814 2813 391 46
15 471415 5311 5921 602 61
16 621112 69923 7421
exercise [4] 206919 2218
exercised [1] 5311
exert [1] 3313
exerts [1] 324
exigency [1] 572
expect [1] 2424
explore [1] 420
expressing [2] 510 356
extensive [1] 151
extent [1] 4311
extra [2] 3922 755
extreme [8] 514 1919 205 2314
17 255 31912
eyebrows [1] 656
F face [1] 252
facial [1] 2510
fact [8] 10311 133 2623 6512
6714 6919 7913
factors [1] 5515
facts [1] 1620
factual [1] 583
fail [1] 405
failed [4] 315 914 301 3924
failing [1] 3918
fails [1] 99
failure [1] 96
fair [1] 55
faith [3] 277 502 6721
fall [7] 323 924 1312 32618 43
24 6617
falling [1] 3412
falls [3] 44 3814 6615
familiar [1] 775
families [1] 3419
family [5] 2212 3119 4566 53
18
far [5] 1413 3217 4121 513 59
15
fast-moving [1] 4024
faster [1] 3923
father [1] 2018
favor [1] 1510
federal [1] 7319
fell [1] 920
few [4] 326 7110 733 7521
final [1] 8114
find [4] 244 351616 7123
findings [1] 6018
finds [1] 4411
fine [3] 2521 2925 7615
fine-grained [4] 4524 468 4818
5020
finish [1] 1714
fire [2] 2318 6517
first [21] 14310 2421 272 283
3225 39614 427 4317 4721
556 6021 619 671622 699 76
614 801317
fit [1] 656
five [6] 3124 64131313 75416
flat [7] 4314 4616 4817 55220
564
flatly [3] 59316 602
flexible [1] 418
Focus [1] 321
folks [1] 5225
follow [1] 178
following [1] 312
fomenting [1] 591
footnote [1] 3614
force [1] 4316
forces [1] 6920
forecloses [1] 1517
foreign [8] 42 825 106 129 31
15 462 8018 821
forever [1] 6221
Forge [2] 212225
forget [1] 5610
form [1] 1916
forth [2] 618 721
forward [2] 132224
founding [1] 6718
four [1] 7814
Fourth [1] 263
FRANCISCO [117] 119 239 37
810 417 616112225 91218
10172124 115818 1231624
13418 142122124 1518 164
1821 171323 182924 1925
2081923 21321 228141722
2310162124 243111519 268
Heritage Reporting Corporation Sheet 3 danger - FRANCISCO
86Official
151825 27172022 28223 292
3021 3110132125 32381315
2225 334811182225 3447
1025 35101422 361581012
1925 3731320 381920 7517
19 7623 7731122 7849 797
1524 8049
frankly [1] 377
free [7] 2069101924 221818
freedom [1] 6523
friend [5] 395 4319 4615 532
623
full [1] 1520
fundamental [5] 2811 296 6522
713 7418
future [2] 161 1814
G game [1] 1325
gas [1] 5425
GEN [3] 119 239
General [127] 119 3810 417 57
23 616112225 91218 1017
2124 1125818 1231624 134
1618 142122124 1518 16418
21 171323 1825924 1925 20
281923 21321 228141722
23310162124 243111519 25
25 268151825 2713172022
28223 292 3021 31101321
25 323813152225 334811
182225 34471025 35101422
3615810121925 3731320
38191920 624 75161719 76
23 7731122 7849 79571524
8049
Generals [1] 6824
George [1] 6719
gerrymander [1] 6614
gets [1] 162
getting [4] 611922 731 7414
GINSBURG [4] 48 445 762125
give [8] 711 86 151225 5124
569 6821 7223
given [10] 917 1413 1718 1825
1915 241325 3219 691819
gives [2] 616 2224
giving [3] 311 539 606
goodness [1] 7725
GORSUCH [14] 5025 511820 52
81417 677 73258121622 74
2
got [4] 2714 357 4334
gotten [2] 721824
governed [1] 8014
government [14] 825 92 109 12
1523 1322 1524 222 264 278
10 3520 514 7823
governments [2] 3314 3714
governs [2] 8020 812
great [4] 248 274 812124
greater [1] 5910
greatest [1] 5012
greenhouse [1] 5424
ground [3] 223 401 5723
grounds [2] 624 6913
group [2] 5525 8021
guess [2] 1417 542
guidance [3] 3424 352 721
H Half [2] 4616 476
Hamdan [3] 4113 577 5915
hand [1] 1818
happened [1] 776
happens [2] 1718 4621
happy [1] 7512
harbored [1] 1710
hard [1] 1520
hardship [3] 31789
harkens [1] 699
harmed [1] 5123
harmful [2] 824 95
harmonize [1] 4425
Harvard [1] 3419
hate [1] 2818
hateful [2] 281820
hatred [1] 167
HAWAII [4] 17 36 5125 7224
head [2] 23812
hear [1] 33
heard [7] 1523 39519 453 4614
532 733
hearing [1] 3519
heart [6] 179 181921 2119 59
24 6716
hearts [3] 179 182021
heated [1] 2617
heightened [1] 514
help [4] 421 721 87 2523
herself [1] 7618
hire [1] 2318
history [6] 824 1025 1111 303
4
holds [1] 1814
holistic [1] 914
home [2] 811 7823
Homeland [1] 313
honestly [2] 176 2724
Honor [38] 417 61319 71 810 9
12 1018 11511 12325 1318
1621 1715 1810 19621 2010
214922 2420 2625 28324 32
923 36125 3810 4520 507 77
3 784 79715 8049
Honors [1] 7522
hoping [1] 7814
however [3] 419 113 2513
humanitarian [2] 1121 464
hypothetical [15] 151323 173
187 191620 205 2323 3812
412223 4223 437 4912
I is [1] 1613
ID [1] 433
idea [1] 454
ideal [2] 81 303
identified [2] 5518 5713
identify [1] 824
identifying [2] 4219 4811
III [1] 136
illustrate [1] 87
illustration [1] 5012
image [1] 464
imagine [7] 2913 412425 5611
19 598 613
imbued [1] 128
immediate [1] 419
immigrant [3] 5923 8011 817
immigrants [3] 11161719
immigration [10] 412 318 4518
4911 67151720 74920 752
impact [1] 4915
impacted [2] 52125
impacts [1] 4919
impediment [1] 4117
implement [3] 422 721 815
important [7] 1324 531 5923 61
15 696 7011 724
importantly [2] 517 6914
impose [3] 617 103 457
imposed [3] 2522 609 6614
imposes [1] 91
imposing [1] 8119
improve [1] 718
impulse [1] 742
in-person [3] 434 5521 562
INA [11] 42225 618 721 816 45
19 5017 5322 76812
inaccurate [2] 3912 561
inadequate [1] 5617
inadmissible [2] 76911
including [9] 320 155 251819
2917 3911 4217 476 8014
incomplete [1] 239
inconsistent [2] 523
indeed [1] 591
independent [1] 2622
indicates [1] 4624
indication [1] 5510
individual [4] 311 781522 806
individualized [4] 3915 4225 46
8 595
individuals [2] 78 322
ineffective [1] 2912
infected [1] 6911
inference [2] 66713
infiltration [1] 5613
information [20] 31625 423 77
23 81319 97 302 3315 3517
3913 407 414 5617 5825 78
1317
inhibition [1] 6219
initial [1] 253
injunction [5] 217 2223 73910
24
injury [1] 2124
INS [1] 2216
instances [2] 734 7715
Instead [5] 3921 4617 4817 62
25
intelligence [3] 406 414 428
intelligent [1] 815
intelligently [1] 7825
intended [1] 7711
intention [1] 8119
interests [4] 1121 315 701115
international [1] 6711
interpretation [1] 604
interrupt [1] 412
interview [4] 435 5522 562 71
13
introduced [4] 4120 421011 49
20
introduces [1] 426
invidious [1] 668
involve [1] 1625
Iran [2] 94 6424
Iraq [3] 923 1010 2917
iron [1] 7424
irrelevant [2] 2822 291
irrespective [1] 147
Islam [1] 8123
isnt [5] 3520 3813 4710 7119
25
Israel [4] 1617 1718 181516
issuance [3] 495 5918 8010
issue [10] 1219 16101011 4911
5511 7313 8171113
issued [7] 54 89 1110 4716 78
22 792025
issues [6] 126 283 533 63518
774
item [1] 4510
itself [5] 2910 69819 713 7325
J Jane [1] 88
Jews [2] 166 242
job [1] 2515
join [1] 2213
joined [1] 576
Judge [2] 4022 612
judges [2] 2623
judgment [6] 43 4524 4717 48
22 7019 8019
judgments [4] 4019 4318 5020
5312
judicial [1] 1620
jump [1] 664
jurisdiction [1] 136
jurisdictional [5] 122413 133
533
jurisprudence [1] 1914
Justice [217] 120 3310 48 56 6
272023 9817 10111922 112
791525 12111721 1311516
19 1431722 151222 16519
171122 18151125 193 2024
1521 21115 2259151921 23
31117222225 2441216 2525
269131619 2712182123 28
1625 30691122 31111422 32
1411141624 3326101620
23 3425812 351111523 363
Heritage Reporting Corporation Sheet 4 FRANCISCO - Justice
87Official
69111720 372111822 382
17182125 404 41182024 42
5 432124 44346813 4515 46
111723 471320 4861020 49
6131421 5015212325 5118
20 52381417 5421218 5611
1924 575619 586121620 60
1220 616101720 6218 63414
1722 642672024 6521221
669 677 68618 6924 709 715
72815 73258121622 742 75
48142024 762125 7791323
786 79591022 8017 824
justiciability [1] 137
justifications [1] 663
K KAGAN [26] 131619 1431722
151222 16519 171122 1815
1125 193 2613 2712182123
5023 5421218 709
Kagans [1] 2323
KATYAL [79] 122 26 38212224
4015 41711 42413 4323 441
1218 4520 46131925 47325
489 49291725 504725 511
141922 52131620 5431117
21 561821 574 585151922
6020 618111922 6222 638
1620 64171923 6514 669 67
713 68612 693 701017 7279
733711152124 75611
keep [3] 241 258 4215
KENNEDY [19] 10111922 204
1521 2220 281625 461723 47
1320 48610 5624 575 807
Kennedys [1] 119
kept [1] 264
kill [1] 4011
kind [8] 142022 1612 186 1913
5415 5924 7012
kinds [1] 165
King [1] 6719
knock [1] 6114
knows [4] 181319 3525 7823
L land [1] 221
language [1] 4325
laptop [1] 4920
large [1] 5922
later [2] 4119 5911
latest [1] 6211
Laughter [5] 188 3411 423 757
10
LAVAS [1] 4023
law [4] 314 3720 403 752
lawfulness [2] 3723 724
laws [2] 411 318
layer [1] 519
lays [1] 273
learns [1] 811
least [1] 1213
leave [1] 512
left [2] 3015 6519
legality [1] 378
Legislation [3] 3923 4121 422
legislative [1] 4117
legitimacy [1] 2511
legitimate [1] 1322
Lemon [2] 67925
less [1] 3112
letters [1] 7225
level [2] 423 77
lies [1] 4316
life [1] 7214
light [1] 5722
likelihood [1] 5525
limit [3] 51 4423 4512
limitations [1] 6017
limited [1] 7312
limits [4] 420 64 545 7421
line [4] 107 2524 4510 8112
lines [1] 699
Lisa [1] 3420
list [10] 47 911 3115 64141625
665610 7720
listed [1] 919
lists [3] 77151724
litigants [1] 266
little [2] 613 141
local [1] 2817
long [3] 415 577 678
long-term [2] 3117 601
longer [2] 101419
look [16] 724 2622 3519 4113
4715 552 6238 6510 661220
671 6822 7021 801
looked [7] 5713 624 3022 6420
7919 805
looking [1] 6823
lot [5] 612 145 167 771921
love [1] 8122
low [1] 916
lower [1] 743
Lukumi [3] 659 682 7024
M made [7] 1215 14912 286 689
811820
main [1] 720
maintain [1] 717
majority [6] 31920 251920 29
15 491
Mandel [18] 1321 1410131822
158141619 16192223 17116
201125 2511 2621
Mandels [1] 1723
many [5] 3013 7255 812222
mark [1] 2811
marks [1] 296
material [1] 261
matter [5] 114 1917 259 297 72
21
mayor [1] 2817
McCreary [3] 159 6399
mean [9] 1820 412 4824 5720
6215 6411 6715 6810 814
meaning [1] 299
means [2] 144 6514
meant [2] 421 103
measures [1] 5615
medical [1] 3421
meet [4] 511 1420 331820
member [3] 2425 251 3119
members [2] 1610 2213
mentioned [2] 49 5616
merits [4] 1214 1312 514 537
message [2] 2124 224
met [1] 321
might [13] 620 181314 2218 26
12 356 4912 5023 511 5222
584 655 7413
migration [1] 458
military [1] 4821
million [2] 325 3618
millions [2] 6733
minimum [11] 316 423 7722 8
218 96 30123 7816
minutes [2] 75516
misunderstanding [1] 4912
moment [1] 7121
month [1] 413
months [1] 488
most [18] 1018 1110 1324 2912
25 352 361313 37141416 53
1 5922 6115 6421 6914 7015
7225
move [3] 107 2523 7214
moved [1] 6224
moves [1] 4212
much [8] 1120 2025 285 446 46
7 6620 71119
multi-agency [3] 312 1921 29
22
Muslim [19] 321 251820 2911
1315 4911619 6410121416
17 65314 663 811922
Muslim-majority [2] 156 2916
Muslims [5] 2715 6421 661819
8120
must [4] 2418 3111 325 7411
N narrow [1] 419
nation [1] 5924
national [14] 43 520 105 1121
129 1323 176 184 571 7011
1518 8019 821
nationality [7] 39424 401721
4315 59318
nationality-based [4] 609 611
793 8023
nationals [4] 317 40813 4415
nationwide [3] 217 2223 739
naturalization [1] 7411
nature [1] 102
nay [1] 416
NEAL [3] 122 26 3822
near [1] 7316
necessarily [1] 4711
necessary [4] 37911 472224
need [6] 420 1717 2622 304 31
20 6113
needed [7] 31725 423 77 819
781217
needs [1] 544
negative [2] 2124 226
Neither [2] 74 4212
neutral [6] 154 1923 2119 2517
292324
never [7] 359 394 4120 5021 72
18 76916
new [4] 3512 4517 5713 7317
next [3] 71 63623
Ninth [2] 262 643
nobody [2] 3422 3525
NOEL [5] 119 239 38 7517
non-immigrant [2] 81811
non-politically-correct [1] 6917
non-reviewability [2] 12114
none [1] 4716
Nope [1] 701
nor [1] 75
normal [1] 3220
nothing [8] 3717 461321 478
493 5713 6023 783
notice [1] 3524
noticed [1] 3018
number [11] 157 2522 329 34
15 361314 6524 6714 694 72
9 744
numbers [2] 3313
O oath [3] 28724 295
objections [2] 6616 7110
objective [4] 621 645 6625 70
22
observer [7] 621 6458 653 66
25 679 7022
observers [1] 1823
obviously [2] 719 7324
occupations [1] 5321
occurred [1] 6825
offer [1] 4312
office [2] 288 3622
officer [3] 7661318
officers [2] 764 7916
official [2] 7024 7113
officially [1] 7114
often [3] 3716 7220 8018
Okay [11] 3114 332323 3412 35
15 3718 5412 6123 755613
omits [2] 319 2915
Once [5] 814 1321 2620 477 81
1
one [39] 41113 52021 915 10
13 114 1220 13524 1616 17
19 2215 2314 278 2913 3015
3312 358 373 4013 4218 51
24 6015 6220 6311 6422 6522
6714 694 71811 7210 7716
7969 801020 8123
ones [3] 518 6511 718
only [17] 322 414 1116 1519 21
Heritage Reporting Corporation Sheet 5 Justice - only
88Official
13 2914 317 329 3423 3524
4218 5514 626 651317 661
6812
opinion [3] 357 577 7417
Opinions [1] 288
oral [5] 114 225 38 3822
order [31] 91 1411 2425 253 29
1921 30181923 3314 3724 39
1920 4614 47714 4822 539
5921 602 6116 621112 655
13 698 712 725 7421 7812
orders [5] 2917 4616 47615 69
10
ordinary [1] 7023
organization [1] 812
other [29] 323 75 99 105 149
311724 3220 3523 416 4319
4424 4525 4714 5510 5615 58
9 656919 663 671525 6913
703 7120 7512 76811
others [2] 915 741
Otherwise [3] 2124 2210 767
ought [1] 4822
out [13] 242 258 27311 2814 35
1616 3618 588 6114 66411
723
out-of-the-box [1] 186
outcome [1] 2417
outer [1] 420
outgrowth [1] 6910
over [5] 1325 167 3615 4723 80
12
overall [1] 915
overwhelmingly [1] 1510
owes [1] 279
own [2] 6816 694
P packed [1] 612
PAGE [6] 22 3614 5011 555 62
8 7212
palsy [4] 527 7212 77216
parameters [1] 516
Parkinsons [1] 7716
PARS [2] 523 7211
part [7] 2925 59222223 601 61
15 7016
participated [1] 692
particular [15] 1016 2117 2589
408 4416 5614 57212225 58
314 664 6919 777
parties [2] 517 7313
parts [1] 7612
party [1] 5224
pass [1] 4114
passed [1] 156
past [4] 522 822 2917 503
people [32] 20121617 225 31
15 32510 3415 355524 3634
6 375 4221 4415 5523 5925
67420 703 7120 7211725 76
11 771720 8016 8118
peoples [1] 802
percent [6] 407 5920 6115 64
17 661919
percentages [1] 7222
perennial [2] 4812 5716
perhaps [2] 5817 717
period [3] 415 244 4722
permanent [1] 4518
permission [1] 523
perpetual [4] 444 4521 4612 48
5
perpetuated [1] 444
person [6] 4325 7114 767 78
1820
personally [2] 517 7912
persons [1] 5110
Petitioners [6] 1521 2410 39
7518
pick [1] 7425
pieces [1] 725
place [6] 2116 2319 7911 8013
1725
placed [1] 3916
plainly [1] 252
plaintiff [1] 5222
plaintiffs [2] 2125 536
please [4] 311 3010 3825 7520
point [23] 1624 1820 294 367
419 4215 4317 446 452 538
5415 6022 66111 68414 718
74818 7814 793 808 8114
points [1] 7522
policy [15] 43 106 129 2319 39
3 4019 4318 451821 462 50
10 5312 6310 8018 821
political [1] 128
polity [1] 601
poorest [1] 746
population [4] 491619 641518
position [1] 5017
possibility [1] 386
possibly [2] 216 2913
potentially [2] 201320
power [11] 4418 1313 4419 45
5 5310 541 5811 607 6720 74
23
practice [1] 2120
praised [1] 8123
precedential [1] 1220
precludes [1] 5710
predominantly [3] 64121316
preference [2] 456 5321
preferences [1] 5318
preliminary [1] 2621
prescient [1] 582
prescribed [1] 558
present [8] 2059 5191221 52
101119
presidency [1] 168
PRESIDENT [86] 13 345 410
14 5913 63916 712 934 11
13131822 1313 162 1758 18
6 191 2381223 257 271525
3513 3712 3834 40612 4217
101214 441121 454 472 487
11212224 4918 508918 5310
101523 54591922 561622 57
321 5810 599 607 6271216
23 632 643 6817 6951520 70
158 712 742224 811517
Presidents [8] 313 44 2421 38
15 4114 69721 704
presidential [1] 6018
Presidents [2] 4716 578
press [2] 141 6214
pressure [8] 324 91 104 1815
252223 3313 7811
presumption [1] 2710
prevent [1] 545
previously [2] 311623
principal [4] 1319 3312 376 78
10
principally [1] 298
private [4] 179 28712 625
pro-Christian [1] 223
probably [2] 3414 7415
problem [16] 261 3413 398 42
1719 481512 497 5315 5517
571216 6925 71419
problems [3] 323 2521 5721
proc [1] 1610
procedures [1] 5817
proceeding [1] 513
process [27] 51515 810 1458
1419 152 1915 2623 274 29
20 3915 5714 6815 69215 72
1020 76123 78161823 7914
17
processes [1] 3221
proclamation [55] 318 42 54 7
24 81721 92022 102121525
111023 1311 14615 161216
191718 211116 231 273519
2910 3313 381114 451617 53
11 5514 611 6217 635718 64
8 6972021 70410 7422 7610
131516 7810 7925 81525
proclamations [1] 421
proclamations [5] 823 1013 11
3 3716 6220
professors [1] 7718
Program [5] 725 56510 596
promulgated [2] 6212 6311
propose [1] 4314
protect [3] 41 2423 304
protest [1] 6718
provide [8] 31625 96 301 3315
3912 566 7812
provides [1] 72
providing [2] 5525 5825
provision [6] 1120 498 5420 76
1920 778
provisions [2] 459 768
provokes [1] 166
publication [1] 7219
publicize [1] 7125
publicized [2] 3621 374
publicly [1] 6511
publish [1] 762
purely [2] 6025 6711
purport [1] 4517
purports [1] 2919
purpose [5] 721 668 701925 78
10
purposes [4] 2216 3312 6114
751
pursuant [2] 89 7822
pursued [1] 215
pushes [1] 431
put [6] 1815 2319 351 4414 66
5 721
puts [5] 161922 6817 695 749
Q qualify [1] 722
qualms [1] 427
question [23] 612 119 1711 18
2122 3015 346 353 3810 41
16 51210 543 5724 61617 62
18 6315 7012 7122 735 7525
8012
questions [3] 5725 751223
quick [1] 7521
quite [4] 922 1915 326 7110
quotas [1] 6010
R race [1] 259
raise [1] 656
raised [1] 1222
raises [2] 6613 735
rate [1] 1524
Rather [1] 2514
rational [3] 17171824
re-upped [1] 483
reach [1] 514
reached [1] 537
read [8] 413 1418 307 3416 44
232324 7713
reading [1] 648
Reagan [8] 94 1012 113 3019
35413 3712 383
Reagans [1] 1113
real [1] 7913
real-time [1] 85
really [14] 720 81721 125 1422
1516 1821 439 4415 6617 71
24 7317 7521 814
reason [9] 132324 1423 2149
3219 339 4511 6822
reasonable [8] 1822 621 6458
652 6625 679 7022
reasons [11] 181315 3116 392
401522 4423 656 7412 802
reassessment [2] 4624 475
REBUTTAL [4] 28 3819 7516
17
receives [1] 289
recent [1] 522
recently [1] 46
recognition [1] 8115
recommendation [3] 153 183
1922
recommendations [2] 319 16
Heritage Reporting Corporation Sheet 6 only - recommendations
89Official
11
recommended [2] 314 2523
red [2] 5011 629
reenter [2] 63723
reexamined [1] 4618
referring [1] 524
reflect [1] 822
reflects [2] 42 101
refuse [1] 251
refused [1] 265
regard [2] 4825 7319
regime [1] 597
regularity [1] 277
rejected [2] 3920 4313
rekindled [1] 628
relatively [1] 197
relatives [1] 2017
relief [1] 7313
religion [6] 211720 259 6525
684 7025
religious [7] 226 651523 6613
1416 675
rely [1] 298
remedy [1] 736
remember [2] 3616 6816
removed [2] 4118 516
repetitive [1] 3013
reply [2] 3612 555
report [2] 462022
reporting [4] 823 402 479
represent [4] 981318 7913
representing [1] 673
required [3] 132 402 4711
requirement [2] 4710 5521
requires [1] 3721
resentment [1] 167
reside [1] 3118
residence [1] 8025
residual [1] 4214
resign [1] 251
respect [13] 945 2120 4020 42
23 4316 529 5513 5614 5825
6124 711820
respond [2] 418 7524
Respondents [5] 1823 27 21
12 3823
response [2] 1320 376
responses [5] 2420 271 3223
3610 371
responsible [2] 411 2413
rest [3] 451 5410 6018
restrictions [3] 315 617 6717
resulted [1] 152
reticulated [3] 4524 55816
reverse [1] 822
review [10] 312 519 1620 1922
2419 2922 5625 5714 6915
reviewability [1] 1219
reviewed [1] 262
rid [2] 531919
rights [2] 51811
rise [1] 739
risk [2] 176 435
riskiest [1] 79
ROBERTS [38] 33 1125 121121
131 309 381821 404 411824
425 4820 4961421 501521
5719 58121620 6012 61610
1720 6218 634141722 7548
14 824
robust [2] 4310 5622
rule [2] 127 7411
rules [1] 8020
run [1] 508
S safe [2] 4215 488
safest [1] 74
sake [2] 19912
Sale [4] 1212 53233
same [15] 920 1410 2824 349
3547 39819 5214 571215 63
10 658 685 6911
sanctions [2] 9125
satisfies [2] 1312 5515
satisfy [3] 171621 3918
save [1] 7213
Savings [1] 551
saying [13] 63 226 4025 426 46
12 5413 635 683 701221 71
10 787
says [28] 16516 237 241 3024
24 319 35824 4115 462020
47721 48241324 5224 5917
604 69810 7010 7217 7410
7724 821
scenario [1] 256
scheme [2] 55916
scholars [3] 2211 3418 7718
score [1] 916
scrutiny [1] 1717
seat [3] 696 741019
second [9] 1216 293 376 3917
557 6724 698 7813 796
second-guess [1] 7018
Secondly [1] 255
secretaries [1] 1924
Secretary [3] 314 524 7115
section [2] 547 749
Security [12] 313 43 105 129
1323 176 184 70111518 80
19 822
see [8] 63 1419 261 3214 367
4415 7710 801
seek [1] 3210
seeking [1] 399
seeks [1] 824
seems [5] 2724 3414 5414 581
666
seen [2] 10815
send [1] 3519
sense [6] 823 5520 5635 7014
7416
sent [1] 223
Sentelle [2] 4022 613
sentences [1] 1014
September [1] 8118
seriously [1] 5818
set [5] 6517 716 1620 2711
sets [1] 8015
seven [1] 322
several [2] 4525 5114
severe [1] 5614
shall [2] 1617 5917
share [3] 265 3016 741
sharing [1] 428
shes [1] 816
shouldnt [1] 623
show [1] 433
shows [3] 8814 7820
side [5] 3523 4319 6056 717
sides [1] 787
significant [2] 2811 3415
similar [1] 1123
simply [2] 52 8113
since [6] 720 1919 2914 678 74
23 7921
single [2] 5517 7624
situation [10] 58 246 3812 40
1224 536 561220 584 599
situations [1] 5722
six [1] 487
slightly [1] 816
small [5] 2521 2925 329 5320
5921
so-called [2] 2911 457
society [1] 673
software [3] 532224 589
Solicitor [1] 119
solid [1] 407
solution [4] 398 4816 5316 55
20
solutions [1] 557
solved [1] 5314
Somalia [2] 922 364
somebody [1] 765
somebodys [1] 8012
someone [1] 425
son [1] 2018
sorry [3] 56 346 8116
sort [1] 5710
sorts [1] 5319
SOTOMAYOR [37] 56 62720
23 9817 112715 202 21115
22591521 23311172225 24
41216 2525 2691619 646 68
618 6924 795922 801
Soviet [1] 4814
space [1] 5314
special [2] 512 72
specialty [1] 5321
specified [1] 397
speech [2] 2011 2219
speech-type [1] 2024
spoken [1] 6217
spokesman [1] 6214
sponsor [3] 436 5824 7115
sponsors [3] 3911 5524 568
squarely [1] 4325
staff [2] 169 627
stage [1] 2621
stake [1] 7012
standard [4] 1724 1917 251217
standing [2] 2123 221
started [1] 144
starting [1] 1624
starts [1] 3015
State [13] 524 1423 3911 436
511725 5524 567 5823 7115
7224 761 7915
statement [2] 258 3616
statements [23] 1910 285614
1820 298 5011 60141623 62
24524 63619 649 6623 688
92020
STATES [20] 11416 36 316 39
11 409 4519 465 511619 52
23 536 56713 5717 591 7213
747 753
statute [16] 53 434 4424 4720
493 5019 54710 5711 6014
16 6710 6817 718 7319 7425
statutes [1] 494
statutes [3] 618 76 4712
statutory [4] 58 511 538 5419
stepped [1] 5314
sticks [2] 3924 405
still [2] 4723 716
stop [2] 412 796
stopping [1] 227
stops [1] 1423
Stormans [2] 661221
strike [5] 482323 4910 6710 73
19
strong [3] 1511 2710 667
stronger [2] 1413 719
struck [1] 6912
struggled [1] 681
students [2] 2212 7720
studying [1] 3117
stuff [1] 624
subject [4] 1210 248 761417
subjected [1] 925
submitted [2] 8257
substance [4] 1414 1916 275
2920
succeed [4] 2014 52151821
successful [2] 45 109
Sudan [1] 2918
sufficiently [1] 916
suggest [1] 1714
suggested [3] 412 516 2220
suggesting [2] 1920 548
suggestion [1] 6824
suggests [1] 7221
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90Official
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4818
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7
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3912 437 5524 568 5824 71
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25 614 655
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24 34161723 3717 40161618
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8 492711 5321 57912 693 72
1719 7717
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1819 5713 7218
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6914 792
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4216 543 7418
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615 6213 693
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two [18] 1014 1519 2420 28319
292 3423 3524 36210 3711
401516 557 6517 6713 729
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U UN [1] 1817
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2511 276 288 2924 3815 433
496892123 5325 7118 768
11
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3623 375 4214 4910 528 65
21
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23 536 56713 5717 591 7213
747 753
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up [10] 715161617 8814 534
6417 771 7820
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using [1] 6719
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Valley [2] 212225
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15 4225 469 481518 571824
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2122 56510 595 606 7656 78
21 7918
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21 817811
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1015 7612361920 7747 79
1417
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18 731 7920
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Washington [3] 1112022
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245 2613 4310 4424 475 67
15 816
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7 2821 291
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284 4018 4723 571 6219 767
7818 8012
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Williamson [1] 5424
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3815 4325 7615
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22 5714 6815
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Z zero [3] 5313 566 6010
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C O N T E N T S
ORAL ARGUMENT OF PAGE
GEN NOEL J FRANCISCO
On behalf of the Petitioners 3
ORAL ARGUMENT OF
NEAL K KATYAL ESQ
On behalf of Respondents 38
REBUTTAL ARGUMENT OF
GEN NOEL J FRANCISCO
On behalf of Petitioners 75
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P R O C E E D I N G S
(1002 am)
CHIEF JUSTICE ROBERTS Well hear
argument today in Case 17-965 Trump President
of the -- Donald Trump President of the United
States versus Hawaii
Mr Francisco
ORAL ARGUMENT OF GENERAL NOEL J FRANCISCO
ON BEHALF OF THE PETITIONERS
GENERAL FRANCISCO Mr Chief Justice
and may it please the Court
After a worldwide multi-agency review
the Presidents acting Homeland Security
Secretary recommended that he adopt entry
restrictions on countries that failed to
provide the minimum baseline of information
needed to vet their nationals
The proclamation adopts those
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 baseline or had other problems
and it exerts diplomatic pressure on those
countries to provide the needed information and
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to protect the country until they do
The proclamation reflects a foreign
policy and national security judgment that
falls well within the Presidents power under
1182(f) and has been successful which is why
the country of Chad was recently dropped from
the list But it -shy
JUSTICE GINSBURG You -- you
mentioned 1182(f) And the worrisome thing
about this is that the President acts Congress
is the one responsible for making the laws
about immigration It has been suggested in
one of the briefs that we read 1182(f) to allow
the President to suspend entry but only for a
period of time long enough for Congress to say
yea or nay
GENERAL FRANCISCO Your Honor yes
1182(f) is a broad and flexible power in a
narrow area Here however I think that you
dont need to explore those outer limits
because the proclamations meant to help
implement the INA by making sure that we have
the minimum level of information needed to
determine if aliens are admissible under the
INA
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In terms of a time limit I think
thats simply inconsistent with the text of the
statute and inconsistent with virtually every
1182(f) proclamation ever issued Here we
have a fair -shy
JUSTICE SOTOMAYOR Im sorry Mr -shy
General I thought that Congress had looked at
the situation and created a statutory system
that addressed the very concern the President
is expressing Congress said you can have visa
waivers if you -- if you can meet the three
criteria that this special committee of the
President looked at and if you dont you have
to have a very heightened extreme vetting
process And it created that vetting process
and suggested its parameters
More importantly it took terrorist
countries and designated which ones supported
terrorism and added another layer of review and
said if youre 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 to -- to affirm that you
are not a danger to the US
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GENERAL FRANCISCO And -shy
JUSTICE SOTOMAYOR So I -- but what I
see the President doing here is saying Im
going to add more to the limits that Congress
set -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- and to what
Congress said was enough Where does a
President get the authority to do more than
Congress has already decided is adequate
GENERAL FRANCISCO Well there are -shy
theres a lot packed into your question Your
Honor and so let me try to unpack it a little
bit
I think the basic answer is that
1182(f) gives the President the authority to
impose restrictions in addition to those set
forth in the INA but to go to the statutes
that Your Honor was -shy
JUSTICE SOTOMAYOR But -- it might
but -shy
GENERAL FRANCISCO Right but -shy
JUSTICE SOTOMAYOR -- on the very
grounds that Congress has already looked at
GENERAL FRANCISCO And thats exactly
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what I was going to address next Your Honor
The Visa Waiver Program provides a special
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 admissibility of individuals
coming in from some of the riskiest countries
in the world
And 1182(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 Its up to the executive
branch to set it up Its up to the executive
branch to maintain it And its up to the
executive branch to constantly improve it
And here you have something that
really is at the core of 1182(f) since its main
purpose is to help implement the INA by making
sure we have that minimum baseline of
information
And if you look at the proclamation
what were talking about is very basic pieces
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of information Not the ideal but the
minimum Are they reporting terrorism history
information Are they 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 visa 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
doesnt tell us
Once she shows up at the border we
cannot make an intelligent determination as to
whether or not shes admissible under the INA
And thats 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
that it seeks to identify harmful conduct that
a foreign government is engaging in and then
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it imposes sanctions in order to pressure that
government to change
Thats what President Carter did with
respect 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
JUSTICE SOTOMAYOR Can you represent
that no other country that -- that fails all
three of the criteria was excluded from this
list
GENERAL FRANCISCO Well Your Honor
what I can represent is that the -- the -- the
analysis was holistic It wasnt if you failed
any one or the others It was if your overall
score was sufficiently low
JUSTICE SOTOMAYOR So given -shy
GENERAL FRANCISCO 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 below -- below the baseline but was not
subjected to sanctions
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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 weve now seen has been
successful as with the case of the government
of Iraq -- of Chad
JUSTICE KENNEDY In fact if you
compare this proclamation to the Reagan and the
Carter proclamations which I think were one or
two sentences this is longer than any
proclamation that -- that Ive seen in this
particular area
GENERAL FRANCISCO This is Your
Honor the most detailed 1182 -shy
JUSTICE KENNEDY Id say longer
detail -shy
GENERAL FRANCISCO Yes
JUSTICE KENNEDY -- is -- is a better
word
GENERAL FRANCISCO Yes This is the
more detailed 1182(f) proclamation in history
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It is not -shy
JUSTICE SOTOMAYOR General the
proclamations by Reagan and Carter however
were not as broad as this one
GENERAL FRANCISCO Your Honor they
were almost as broad but -shy
JUSTICE SOTOMAYOR And -- and -shy
GENERAL FRANCISCO -- to complete my
answer to Justice Kennedys 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 Reagans or President Carters
covered But its -shy
JUSTICE SOTOMAYOR And more -- and
more immigrants because Carters only applied
to certain immigrants not to all
GENERAL FRANCISCO President Carters
actually applied to all immigrants but then had
an exception much like the waiver provision
here for national interests and humanitarian
concerns So I think President Carters was
actually very similar to the proclamation here
And -shy
CHIEF JUSTICE ROBERTS Is your
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consular non-reviewability argument -- is that
a jurisdictional argument
GENERAL FRANCISCO Your Honor I -shy
yes I think it is a jurisdictional argument
And thats why I dont 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 to -shy
CHIEF JUSTICE ROBERTS I -- I thought
in Sale that we decided that this -- this
wasnt jurisdictional or at least decided the
merits despite the non-reviewability argument
that the government made
GENERAL FRANCISCO I think the second
thing that you just said Mr Chief Justice is
accurate The Court didnt address the
reviewability issue at all And so we dont
think its precedential one way or another
CHIEF JUSTICE ROBERTS Was the -- was
the argument raised in that case by the
government
GENERAL FRANCISCO Yes it was Your
Honor Actually you could -shy
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CHIEF JUSTICE ROBERTS So -- so its
an argument we would have been required to
address if it were in fact jurisdictional
GENERAL FRANCISCO I think so And
so I think one way you could understand it is
that it doesnt go to Article III jurisdiction
though it is a justiciability argument and we
would urge this Court to accept it because we
think its correct
But even if you dont think that its
correct we think that this proclamation
satisfies the merits because it does fall well
within the power of the President under
1182(f)
JUSTICE BREYER If youre about -shy
JUSTICE KAGAN May I turn General
to the constitutional claims in this case
GENERAL FRANCISCO Yes Your Honor
JUSTICE KAGAN And your principal
response to the Establishment Clause claim is
to cite Mandel and to say that once the
government comes forward with a legitimate
reason -- of course national security is the
most important reason one can come forward with
-- the game is over essentially And I just
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want to press on that a little bit
GENERAL FRANCISCO Sure
JUSTICE KAGAN So first I want to
ask whether that means -- you started off by
talking a lot about the process of this
proclamation But I -- I take it that that
argument would apply irrespective of what
process was used
In other words you would have made
the same Mandel argument to the first executive
order in this case or would you not
GENERAL FRANCISCO We would have made
a Mandel argument but it is far stronger given
that you have the process and substance upon
which this proclamation was based because
whatever you -shy
JUSTICE KAGAN Well I guess I wonder
why that is just because when I read Mandel
I dont see anything about process or you have
to meet a certain kind of bar
GENERAL FRANCISCO Uh-huh
JUSTICE KAGAN Mandel really is kind
of you state a reason and this Court stops
GENERAL FRANCISCO And I think that
that is right but I think that when you in
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addition to that have the extensive worldwide
process that we had that resulted in a
cabinet-level recommendation that applied a
neutral baseline to every country in the world
concluded that almost all the world including
almost all of the Muslim-majority world passed
that baseline but a tiny number of countries
didnt I think that whether you apply Mandel
or whether you apply McCreary that makes the
constitutional case in our favor overwhelmingly
strong Its a -shy
JUSTICE KAGAN So let me give you a
hypothetical and its just -- you know I
think that there are ways to distinguish Mandel
in this case but -- but -- but you know just
in terms of thinking about what Mandel really
forecloses here
GENERAL FRANCISCO And I -- because
Mandel there are only two cases in the area
and its -- its hard to understand the full
contours of it
JUSTICE KAGAN I agree So this is a
hypothetical that youve heard a variant of
before that the government has at any rate
but I want to just give you
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So lets say in some future time a -shy
a President gets elected who is a vehement
anti-Semite -shy
GENERAL FRANCISCO Uh-huh
JUSTICE KAGAN -- and says all kinds
of denigrating comments about 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 dot all the
is and they 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
GENERAL FRANCISCO Right
JUSTICE KAGAN Do you say Mandel puts
an end to judicial review of that set of facts
GENERAL FRANCISCO No Your Honor I
dont say Mandel puts an end to it but I do
say that in that context Mandel would be the
starting point of the analysis because it does
involve the exclusion of aliens which is where
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Mandel applies
If his cabinet -- and this is a very
tough hypothetical that weve 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 in his private heart of hearts
he also harbored animus
JUSTICE KAGAN Well the question is
GENERAL FRANCISCO I would also
suggest though -- if I could finish that Your
Honor -- that I think it would be very
difficult for that to even satisfy Mandel
rational basis scrutiny Id need to know what
the rational was Given that Israel happens to
be one of the countrys closest allies in the
war against terrorism its not clear to me
that you actually could satisfy -shy
JUSTICE KAGAN Well -shy
GENERAL FRANCISCO -- Mandels
rational basis standard on that unless it
truly were based -shy
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JUSTICE KAGAN Yes
GENERAL FRANCISCO -- on a
cabinet-level recommendation that was about
national security
JUSTICE KAGAN General Im -- lets
-- this is a out-of-the-box kind of President
in my hypothetical And -shy
(Laughter)
GENERAL FRANCISCO We -- we -- we
dont have those Your Honor
JUSTICE KAGAN And -- and you know
he thinks that there are good diplomatic
reasons and there might -- who knows what the
future holds that there might be good
diplomatic reasons to put pressure on Israel or
to say we want Israel to vote a certain way in
the UN and this is a way to better our
diplomatic hand and so this is what he does
And -- 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 think -shy
GENERAL FRANCISCO Right
JUSTICE KAGAN -- given this context
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in which this hypothetical President -shy
GENERAL FRANCISCO Sure
JUSTICE KAGAN -- is making virulent
anti-Semitic comments
GENERAL FRANCISCO Right And Your
Honor its a tough hypothetical but its why
I also think that this is a relatively easy
case because were 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 though we think that its
wrong that you applied some kind of domestic
establishment clause jurisprudence because
were 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 dont have the extreme
hypothetical that youre suggesting Your
Honor we do have a multi-agency worldwide
review and a cabinet-level recommendation that
applied a neutral baseline And this wasnt
done just by the cabinet secretaries but by the
agencies to every country in the world and
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concluded -shy
JUSTICE SOTOMAYOR Mr General you
just -shy
JUSTICE KENNEDY If -- if you have
that extreme hypothetical would that present a
free exercise or an Establishment Clause claim
or both
GENERAL FRANCISCO It could
definitely present a free exercise clause
challenge Your Honor just as you had a free
speech type claim in the Mandel case
And there would be people who could
bring that claim and who could potentially
succeed on that claim
JUSTICE KENNEDY And -- and the
people that could bring that claim I assume
were relatives of people that were excluded
father son
GENERAL FRANCISCO On free exercise
potentially I think all -shy
JUSTICE KENNEDY Yeah what about a
university
GENERAL FRANCISCO I think a
university could bring a free speech-type claim
under Mandel much -shy
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JUSTICE SOTOMAYOR Why not an
Establishment Clause claim
GENERAL FRANCISCO And -- and -shy
because Your Honor and the reason why I think
they havent pursued those types of claims is
because I dont think they would possibly
support the types of nationwide injunction that
theyre asking for
Your Honor the reason why I dont
think that they could bring an Establishment
Clause claim is because the proclamation
doesnt actually apply to the Respondents It
only applies to aliens abroad who have no
constitutional right to enter
JUSTICE SOTOMAYOR No but the claim
is that it -- that the proclamation is in place
because of a dislike of a particular religion
And I thought the Establishment Clause at its
heart is that we cannot be anything but neutral
with respect to religion or its practice
GENERAL FRANCISCO 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
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standing to challenge the land transfer from
the government to the Christian college on the
ground that it sent a pro-Christian or
anti-atheist message That -shy
JUSTICE SOTOMAYOR But these people
are saying that that negative religious
attitude is stopping them -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- 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
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR Which is one of
the purposes of the INS
GENERAL FRANCISCO And -- and thats
where they might have free exercise or free
speech claims along the type that Justice
Kennedy suggested -shy
JUSTICE SOTOMAYOR Well but I -shy
GENERAL FRANCISCO -- but which
couldnt support a nationwide injunction I
dont think that that gives them an
Establishment Clause claim when the
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proclamation doesnt actually apply to them
because -shy
JUSTICE SOTOMAYOR General today
can we go back to something thats 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 -- Im
summarizing in an incomplete way -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- 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 -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- not extreme
that he can hire or fire anyone he wants and
that he can put in place whatever policy he
wants
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR If we take Justice
Kagans hypothetical President -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- who basically
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says to his review committee I want to keep
out Jews -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- period find a
way Thats their charge
So in that situation why would the
actions of the committee whatever this is
Executive Committee not be subject to great
suspicion and to thorough review -- which
actually wasnt completely -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- done here -shy
given that they are responsible to the
executive -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- and theyve
been told what the outcome of their
deliberations must be
GENERAL FRANCISCO Sure And I have
two responses to that Your Honor
The first is that the Presidents
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
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cabinet member would refuse to comply or resign
in the face of a plainly unconstitutional
order 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 Mandel
standard
Here however you dont have anything
like that Rather you have the cabinet doing
its job through the agencies where they ask
the agencies to construct and apply 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 across the line
JUSTICE SOTOMAYOR General the
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problem is that I dont 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
the litigants or the courts exactly what was
done how what the evaluation and how -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- it was applied
to all those countries in the world
I understand some of the
confidentiality that might concern you but if
the backdrop is the way that Justice Kagan
described it -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- that -- that
heated -shy
GENERAL FRANCISCO Well I -- yeah -shy
JUSTICE SOTOMAYOR -- anti-Semitic
background dont you think that once you get
through the Mandel preliminary 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
GENERAL FRANCISCO Well Your Honor
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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
owes to another coequal branch of the
government there is a very strong presumption
that what is being set out there is the truth
JUSTICE KAGAN You -- you said
something earlier General I want to make sure
that I got it right You said if at the time
the President had said we dont want Muslims
coming into this country -shy
GENERAL FRANCISCO Uh-huh
JUSTICE KAGAN -- that that would
undermine the proclamation
GENERAL FRANCISCO Yes
JUSTICE KAGAN Did I get you right
GENERAL FRANCISCO Yes
JUSTICE KAGAN So I -- I think you
know honestly the difference here then seems
to be is everything that the President said
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effectively that
GENERAL FRANCISCO I think there are
two issues Your Honor 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 embodiment of the executive branch So
that those statements should be out of bounds
But for -shy
JUSTICE KENNEDY But suppose you have
a local mayor and as a candidate he makes
vituperative hate -- hateful statements hes
elected and on day two he takes acts that are
consistent with those hateful statements
Thats -- whatever he said in the campaign is
irrelevant
GENERAL FRANCISCO Your -- Your
Honor if he takes the same oath -shy
JUSTICE KENNEDY You would say
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whatever he said in the campaign is irrelevant
GENERAL FRANCISCO I would say two
things And that was the -- and the second
thing is the point I was about to turn to I
would say yes because we do think that oath
marks a fundamental transformation but I would
also say here it doesnt matter because here
the statements that they principally rely on
dont actually address the meaning of the
proclamation itself
This is not a so-called Muslim ban
If it were it would be the most ineffective
Muslim ban that one could possibly imagine
since not only does it exclude the vast
majority of the Muslim world it also omits
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 multi-agency worldwide review that
applied neutral criteria all across the world
and concluded under those neutral criteria
most of the world was fine but a small part of
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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
JUSTICE BREYER All right Can -shy
can I ask a more -- I did read I think almost
all the 80 briefs Now your time -- what do -shy
CHIEF JUSTICE ROBERTS Yeah dont
worry Please go ahead
JUSTICE BREYER All right All
right All right Almost 80 and I think I -shy
some were repetitive not too many And I
think I know the basic arguments but theres
one question Im left with and it starts with
an assumption which I think you share but I
want to be sure All right
I noticed that the Carter order and
the Reagan order both had case-by-case
exceptions
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER And I looked 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
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individual circumstances such as giving some
examples the following
And then they have to be no
terrorists Well thats the law anyway And
they -- they have to be in the interests of the
United States And there cant be undue
hardship which the only time the word
hardship appears in the immigration laws it
says extreme hardship
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER So undue must be
less than extreme
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER Okay So Im -- then
they have a list people with foreign contacts
previously established business reasons
theyve been here studying or other long-term
activity they want to visit or reside with a
close family member they have a disease or
something that they need -shy
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER -- treatment for
they -- previously been employed And there
are about five other things
GENERAL FRANCISCO Yeah
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JUSTICE BREYER All right Focus on
that class of individuals
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER Now in countries -shy
150 million people all together there must be
quite a few who have -- do fall within that
class So -shy
GENERAL FRANCISCO Well yes Your
Honor but theres only a small number of
people that seek to come into our country
JUSTICE BREYER Well thats what Im
asking about
GENERAL FRANCISCO Yeah
JUSTICE BREYER You see
GENERAL FRANCISCO Yeah
JUSTICE BREYER Thats now -- if you
-- you think -- now as far as were concerned
if they fall within that class there -shy
theres no reason given here why they should be
excluded other than the -- the normal
processes
GENERAL FRANCISCO Well a couple of
responses Your Honor
JUSTICE BREYER What
GENERAL FRANCISCO First in terms of
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the numbers -shy
JUSTICE BREYER Im not asking about
the numbers
GENERAL FRANCISCO Oh oh youre not
asking -shy
JUSTICE BREYER I want to ask about
GENERAL FRANCISCO So -- so in terms
of the reason -shy
JUSTICE BREYER Yeah
GENERAL FRANCISCO -- they should be
excluded one of the principal purposes of the
proclamation is to exert diplomatic pressure on
governments in order to get them to change and
provide us with the information -shy
JUSTICE BREYER So you think they
should be excluded
GENERAL FRANCISCO Not if they meet
the criteria for the -shy
JUSTICE BREYER Not if they meet the
criteria
GENERAL FRANCISCO -- for the waiver
JUSTICE BREYER Okay Okay So
theres -shy
GENERAL FRANCISCO Thats why we have
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-- thats why we have the waiver
JUSTICE BREYER Thats -- thats -shy
thats what I thought you would say
GENERAL FRANCISCO Yeah
JUSTICE BREYER Then I get -- can ask
my question Sorry
GENERAL FRANCISCO Yes
JUSTICE BREYER But I want to be sure
were the same wavelength
GENERAL FRANCISCO Yes
(Laughter)
JUSTICE BREYER Okay 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 theres the
business community complaining theres the
academic community there were 46 scholars at
Harvard there -- there are families in the
Lisa Blatt brief you know that -- that they
say we were trying to get medical treatment and
nobody told us about this and -- and theyve
only admitted two and theres supposed to be
guidance and -shy
GENERAL FRANCISCO Thats not true
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JUSTICE BREYER -- you havent put in
the guidance and -- and -- and the most there
are is 100 And so there is my question If
you have done the same thing that the Reagan
people did and the Carter people did then it
might be -- Im not expressing a definite
opinion -- but well youve got the same thing
here but if this is as one brief says just
window dressing and they never apply it -shy
GENERAL FRANCISCO Right
JUSTICE BREYER -- then you have
something new and different going well beyond
what President Reagan did
GENERAL FRANCISCO Sure
JUSTICE BREYER Okay So I want to
know how do I find out -- how do I find out
when there is not that information in the
brief do we have to -- can we have another
hearing Do we send it back Do we say look
the government of course thinks this isnt
window dressing -shy
GENERAL FRANCISCO Right
JUSTICE BREYER -- but the other side
says there are only two people no notice
nobody knows
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GENERAL FRANCISCO So Your Honor
two -shy
JUSTICE BREYER There are people in
Yemen there are people in Somalia -shy
GENERAL FRANCISCO Yeah
JUSTICE BREYER -- decent people
Business -- you see my point
GENERAL FRANCISCO Yes
JUSTICE BREYER Whats the answer
GENERAL FRANCISCO And two responses
JUSTICE BREYER Yes
GENERAL FRANCISCO Our reply brief
has our most -- most current number on waivers
and I believe the number at page 17 footnote
-- well its -- its over 400 I cant
remember the exact statement
JUSTICE BREYER All right Thats
400 out of 150 million
GENERAL FRANCISCO And then -shy
JUSTICE BREYER And -- and is it well
publicized in these countries that they know
all they have to do is go to the visa office
and say I understand the thing I want an
exception
GENERAL FRANCISCO No Your Honor
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and I have two -- two responses -shy
JUSTICE BREYER Yeah
GENERAL FRANCISCO -- to that One
is I dont know how well publicized it is but
I suspect that people understand how to get it
My second principal response is
though that frankly in terms of the
legality I think that the waiver is not
necessary although it is a very good thing
which is why -shy
JUSTICE BREYER Not necessary There
-- there you have President Reagan -shy
GENERAL FRANCISCO -- which is why
most -- which is why most governments dont -shy
which is why its -- its a good thing which
is why most of these proclamations often have
them But theres nothing in -shy
JUSTICE BREYER Okay So you want me
to consider -shy
GENERAL FRANCISCO -- the law that
actually requires it
JUSTICE BREYER Thats what you want
You want me to consider the lawfulness of this
order on the assumption that there is no
waiver
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GENERAL FRANCISCO I dont -shy
JUSTICE BREYER Which is not what -shy
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 here thats the -shy
thats the -shy
GENERAL FRANCISCO Right The answer
to my -- your question Your Honor is no I
dont want you to consider the proclamation on
the -- on the hypothetical situation that it is
what it isnt but I do think that the
proclamation as written and as applied falls
well within the Presidents authority under
1182(f)
Thank you Mr Chief Justice
CHIEF JUSTICE ROBERTS Thank you
General We will afford you rebuttal time
GENERAL FRANCISCO Thank you
CHIEF JUSTICE ROBERTS Mr Katyal
ORAL ARGUMENT OF NEAL K KATYAL
ON BEHALF OF THE RESPONDENTS
MR KATYAL Thank you Mr Chief
Justice and may it please the Court
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The executive order is unlawful for
three reasons It conflicts with Congresss
policy choices It defies the bar on
nationality discrimination something you never
heard my friend talk about And it violates
the First Amendment
Congress has already specified a
three-part solution to the very same problem
the order addresses Aliens seeking entry from
countries that dont cooperate with the United
States in vetting including state sponsors of
terrorism and countries that provide inaccurate
information
First aliens have to go through the
individualized 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 the order uses Congress rejected a
ban Instead it used carrots When countries
cooperated theyd get extra credit a track -shy
faster track for admission Legislation to use
big sticks like nationality bans failed
And third Congress was aware
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circumstances could change on the ground so it
required reporting to them so it could change
the law
CHIEF JUSTICE ROBERTS Well lets
take big sticks fail Lets suppose that the
intelligence agencies go to the President and
say we have 100 percent solid information
that on a particular day 20 nationals from
Syria are going to enter the United States with
chemical and biological weapons They could
kill tens of thousands of Americans
In that situation could the President
ban the entry of Syrian nationals on that one
day
MR KATYAL He could for two reasons
Theres two different arguments Theres the
nationality discrimination ban 1152 and then
theres you know whether or not this comports
with Congresss policy judgments
And with respect to both I think it
would It wouldnt be nationality
discrimination for the reasons Judge Sentelle
said in LAVAS when you have an emergency
fast-moving situation like the Syria example
youre saying
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CHIEF JUSTICE ROBERTS Well just to
stop interrupt you there I mean what if
its a week What if its a week a month from
now Thats what the intelligence information
is
In other words Im trying to -shy
MR KATYAL Right
CHIEF JUSTICE ROBERTS -- respond to
your point that it has to be an immediate
decision
MR KATYAL Yeah So I think you
know this Courts dealt with that in
Youngstown and Hamdan and said look you know
the Presidents going to get a pass absolutely
on you know what he says the emergency is
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 460 days on -- later
Mr Chief Justice Hes never even introduced
legislation about this So were so far from
that hypothetical well concede the
hypothetical
CHIEF JUSTICE ROBERTS Well imagine
-- imagine if you can that Congress is unable
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to act when the President asked for
legislation
(Laughter)
MR KATYAL Right
CHIEF JUSTICE ROBERTS And someone
introduces a bill saying lets authorize -shy
first of all the President may have qualms
about sharing that absolute intelligence
broadly but lets say theres a bill
introduced to say lets authorize the President
and theres a bill introduced to say lets
block the President and neither bill moves
MR KATYAL 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 -- theres only one
problem hes identifying which is countries
not cooperating
Hes not talking about people coming
in or something like that like your
hypothetical And with respect to that
Congress has said heres how we deal with it
We deal with it with the individualized vetting
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system which pushes all the burdens on a
person coming in Thats 1361
Youve got to show biometric ID under
the statute Youve got to have an in-person
interview if theres any risk that the person
is from a country thats a state sponsor of
terrorism like your hypothetical or anything
else
So Congress has really said in a
robust way heres how we would deal with it
And to the extent countries arent cooperating
we offer carrots
Congress rejected exactly what theyre
trying to propose here which is a flat
nationality ban And thats where I think the
force of our argument lies with respect to the
first point which is this is countermanding
Congresss policy judgments
My friend on the other side actually
in his brief -shy
JUSTICE ALITO Well Congress did -shy
Congress did act It enacted 1182(f)
MR KATYAL Correct
JUSTICE ALITO Why doesnt this fall
squarely within the language of 1182(f)
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MR KATYAL For -- for -- we have
both textual reasons that its not a class for
reasons Justice Breyer was talking about Its
not perpetuated -- its perpetual like Justice
Ginsburg was talking about But we think
theres a much bigger point Justice Alito
which is -shy
JUSTICE ALITO Well maybe you could
talk about the text Its not a class
Doesnt 11 -- doesnt 1182(f) say whenever the
President finds that the entry of any aliens -shy
MR KATYAL Correct
JUSTICE ALITO -- or any class of
aliens So put class aside although I dont
really see why people who are nationals of a
particular country dont constitute a class
What about any aliens
MR KATYAL Right So we think it is
any you know -- because the power in 1182 is
so broad and sweeping and does allow the
President to supplement what Congress has done
we think that you have to -- you have to be
careful and read limit -- you have to read it
just the way you read every other statute to
say how do we harmonize that broad text of
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1182(f) with the rest of the INA
And our point in our briefs which I
dont 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 you know and end so-called chain
migration or anything like that He could do
-- countermand any of the provisions of the INA
and turn it into a line item veto
So for that reason we think there
has to be some limit Thats something this
Courts dealt with in you know the tobacco
case or -shy
JUSTICE ALITO Well does this
proclamation do anything like that Does this
proclamation purport to establish a new
permanent immigration policy for the United
States
MR KATYAL Absolutely Your Honor
This is a perpetual policy that bans It does
exactly what Congress in 1965 said you cant
do And it countermands Congresss
fine-grained reticulated judgment from 2001
2015 and several other times which is to say
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instead of these flat bans were going to have
-- were going to balance foreign policy
considerations economic considerations like
the US companies brief humanitarian image
of the United States views all of that
together and said we wont do the flat ban
Instead were going to have a much
more fine-grained approach with individualized
vetting and carrots for the countries that
dont disagree -- that dont cooperate
JUSTICE ALITO What is your basis for
saying that it is perpetual
MR KATYAL Well theres nothing in
the order that ends it And you heard my
friend say oh that would doom all executive
orders But thats not true Half of these -shy
JUSTICE KENNEDY I thought it had to
be reexamined every 180 days
MR KATYAL No thats not what it
says It says theres a report that has to
come in at 180 days and nothing happens at the
end of the report
JUSTICE KENNEDY Well that -- that
indicates there will be a reassessment
MR KATYAL Well in -shy
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JUSTICE KENNEDY And then the -- and
-- and the President has continuing discretion
MR KATYAL Justice Kennedy this
argument wouldnt be there if there was
anything about reassessment the way there are
in about half the orders including the Cuba
order which says it sunsets once the crisis
ends Theres nothing like that in this
And its just like a reporting
requirement to Congress in which Congress isnt
necessarily required to do anything Congress
has statutes like that all the time
This is that And thats why this is
unlike any other executive order If you go
back and look at all 43 executive orders that
Presidents have issued none of them have even
arguably countermanded Congresss judgment in
the area Theyve all been consistent
Theyve all been supplements
JUSTICE KENNEDY Well the statute
says first that -- that -- that 1182 for such
period as he deems necessary and he can have
continuing supervision over whether its still
necessary
MR KATYAL Again we wouldnt have a
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problem with that if it was tailored to a
crisis it says it sunsets and then you know
could be re-upped or something like that
Thats not what this says This is about a
perpetual problem
JUSTICE KENNEDY So you want the
President to say Im convinced that in six
months were going to have a safe world
MR KATYAL Well -- well -- well no
Justice Kennedy thats not our argument Our
argument is here the President is identifying
something that is a perennial problem Our
brief says it goes back 100 years you know
when the Soviet Union was around we dont 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
CHIEF JUSTICE ROBERTS What if the
military advisors tell the President that in
their judgment the President ought to order a
strike an air strike against Syria and the
President says well -- does that mean he cant
because you would regard that as discrimination
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against a majority Muslim country
MR KATYAL Absolutely not Theres
nothing to do with the text of the statute
The 1152 statutes about discrimination and the
issuance of visas And thats all that -shy
CHIEF JUSTICE ROBERTS So under
1182(f) you would say that theres no problem
under that provision
MR KATYAL Well under 1182 as I
understand it was a strike And so I dont
think theres any immigration issue in your
hypothetical I might be misunderstanding it
Mr Chief Justice
CHIEF JUSTICE ROBERTS Well any type
of targeted action that would have a impact on
the Muslim population
MR KATYAL Absolutely We think the
President has wide authorities to do things
that have impacts on the Muslim population
Take the laptop ban that was introduced -shy
CHIEF JUSTICE ROBERTS Why under your
theory wouldnt that constitute or the argument
would be that thats discrimination under your
Establishment Clause argument -shy
MR KATYAL Oh
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CHIEF JUSTICE ROBERTS -- that thats
discrimination on the basis of faith because he
has said in the past if you accept the -shy
MR KATYAL Yeah
CHIEF JUSTICE ROBERTS -- accept the
arguments that he -- he is anti-Muslim
MR KATYAL Not at all Your Honor
and no President has run afoul of this you
know and thats because here the President
and his advisors have directly tied this policy
to those statements And the red brief at page
70 I think is the greatest illustration of
that
Thats 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 INA is
that the President can take a wrecking ball to
the statute and countermand Congresss
fine-grained judgments that -shy
CHIEF JUSTICE ROBERTS He can never
-shy
JUSTICE KAGAN Well you might think
-shy
JUSTICE GORSUCH Mr Katyal -- Mr
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Katyal if I might on -- on the statutory
question before we leave it Weve been
proceeding so far on the assumption that we can
reach the merits but the government makes the
argument for example that aliens who are
removed from this country have to bring their
claims personally and third parties cant
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
who are not present in this country Whats
the answer to that
MR KATYAL Well several This is
not a third-party case These are United
States citizens bringing this challenge in a
state -shy
JUSTICE GORSUCH Oh behalf of -shy
MR KATYAL -- of the United States
JUSTICE GORSUCH -- aliens not
present in the country
MR KATYAL Well but they are
directly -- they are directly harmed
themselves Let me just give you one example
Not just the State of Hawaii whose university
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is directly impacted but lets just take for
example the Alomari -- Mr Alomari the
10-year-old in the PARS Equality brief Justice
Breyer that you were referring to This is a
10-year-old daughter in Yemen who is -- whos
trying to come here because she has cerebral
palsy
JUSTICE GORSUCH I understand that
but those arguments dont work with respect to
aliens present in the country So why do they
work for aliens who are not present in the
country
MR KATYAL Because I -shy
JUSTICE GORSUCH Those very same
arguments would not succeed
MR KATYAL Well -shy
JUSTICE GORSUCH I think youd
concede that they wouldnt succeed for aliens
present -shy
MR KATYAL Right And they dont
succeed because there you have a better
plaintiff might not be willing to bring them in
the United States and thats why the court
you know says no third party But here
these folks are directly impacted
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And the most important thing to say is
Sale answers this You heard my friend concede
Sale was jurisdictional the issues in Sale
Thats how they briefed it up Thats how he
just described it This Court had exactly that
situation United States plaintiffs and it
reached the merits
Our statutory point to you is that if
you accept this order youre giving the
President a power no President in 100 years has
exercised an executive proclamation that
countermands Congresss policy judgments He
has zero examples to say that when Congress has
stepped into the space and solved the exact
problem that the President can then come in
and say No I want a different solution
If you do that youd -- its not just
family preferences that youre allowing him to
get rid of youd get rid of all sorts of even
small things in the Code or big things like
theres a preference for specialty occupations
like software engineers in the INA The
President could say The economics are such
Im going to ban software engineers from going
to California or something like that under that
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sweeping 1182 power
JUSTICE KAGAN I -- I guess the
question though Mr Katyal is maybe youre
entirely right that 1182(f) needs to have some
limits to prevent the President from doing
something thats completely contrary to another
section of the statute
But youre suggesting well the
President cant do anything thats not
contemplated by the rest of the statute
MR KATYAL That is not our argument
JUSTICE KAGAN Okay 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 -shy
MR KATYAL Right
JUSTICE KAGAN -- between what the
President is doing and another statutory
provision
MR KATYAL So our view is that the
President can supplement he just cant
supplant In this Courts decisions in the
Brown amp Williamson case and the UARG greenhouse
gas and Concepcion and Abilene Cotton the
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Savings Clause cases all say there are three
things you look at And its not a flat bar
It cant be like a direct contravention Even
they say its not a direct contravention in
their reply brief at page 19
So the three things are first can
these two solutions coexist or not Second
has Congress prescribed a reticulated
comprehensive scheme And third you know is
there any other indication that Congress
considered 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 -shy
Congress has a comprehensive reticulated scheme
that deals with the exact single problem that
hes identified which is countries not
cooperating It cant coexist with the
solution of a flat ban It makes no sense for
example to have the in-person visa requirement
-- visa interview which is in 12 -shy
1202(h)(2) which is for -- for people who come
from state sponsors of terrorism or who have a
group with a likelihood of providing
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inaccurate information Congress said there
has to be an in-person interview for that
It doesnt make sense to say well
youre going to have a flat ban It doesnt
make sense to have a Visa Waiver Program which
is all about countries that provide zero
information to the United States -- state
sponsors of terrorism and the like -- and say
were going to give you a carrot and then say
oh no forget about the Visa Waiver Program
JUSTICE ALITO Can -- can you imagine
any situation in which the threat of the
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
MR KATYAL Yes
JUSTICE ALITO You cannot imagine any
such situation
MR KATYAL Yes I can And the
President would have a robust authority to deal
with that That is not our argument So -shy
JUSTICE KENNEDY And your argument is
that courts have the -- the duty to review
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whether or not there is such a national
exigency thats for the courts to do not the
President
MR KATYAL No I think you have
wide deference Justice Kennedy Its exactly
what you said when you joined Justice Breyers
opinion in Hamdan which is as long as -- you
know Presidents have wide berth in this area
but if -- you know certainly if theres any
sort of emergency that precludes it
But when you have a statute that
considers the very same problem and theres
nothing new that theyve identified in this
worldwide review process that Congress didnt
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 the -shy
CHIEF JUSTICE ROBERTS But thats in
the abstract I mean they may have more -shy
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
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And it seems to me a difficult
argument to say that Congress was prescient
enough to address any particular factual
situation that might arise
MR KATYAL Well that again -shy
thats again Mr Chief Justice not our
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 But here -shy
CHIEF JUSTICE ROBERTS What about -shy
what about a change of administration in a
particular country -shy
MR KATYAL Yes
CHIEF JUSTICE ROBERTS -- in which
perhaps the vetting procedures are not going to
be taken seriously
MR KATYAL Right
CHIEF JUSTICE ROBERTS That Congress
could not have anticipated
MR KATYAL Well but again
Congress anticipated a country that is a state
sponsor of terrorism and even for -- with
respect to that providing no information and
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indeed fomenting against the United States
Congress said oh were not going to have a
nationality ban You know they flatly banned
that and said were going to have
individualized vetting and this Visa Waiver
Program carrot to try and deal with that you
know dangerous regime
Now again I can imagine an emergency
situation in which the President would have
even greater authority for that But here we
are 460 days later and I would caution the
Court not to make a decision about the
emergency youre concerned about That can be
bracketed as it was in Youngstown as it was in
Hamdan This is so far from that
The text of 1152 is flatly violated
here It says there shall be no discrimination
on the basis of nationality with the issuance
of visas
That is 39 percent of all the visas
this executive order covers Its not a small
part Its 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
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become part of our long-term polity This
executive order flatly contradicts that
Now if you accept his
interpretation -- he says well you know
were discriminating at the entry side not at
the visa side If you do that you are giving
the President the power to undo -- and hes
actually just done it -- hes undone the ban on
nationality-based discrimination Hes imposed
country quotas of zero for these countries at
the border
CHIEF JUSTICE ROBERTS If your -shy
your argument based on discrimination based on
the campaign statements is there a statute of
-- no the one that you do make based on the
campaign statements is there a statute of
limitations on that or is that a ban from
presidential findings for the rest of the
administration
MR KATYAL So Mr Chief Justice I
first want to be very clear about this Our
point about 1152 and the discrimination has
nothing to do with any campaign statements or
anything else
Its purely the text of the
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proclamation which is nationality-based
discrimination through and through Judge
Sentelle said you couldnt imagine a clearer
text than this And this is -- it violates it
Now -shy
CHIEF JUSTICE ROBERTS My question
was on the -shy
MR KATYAL -- youre asking about
the First Amendment
CHIEF JUSTICE ROBERTS Yes
MR KATYAL I just want to make
absolutely clear that were -- thats not -shy
you know you dont need to do any of that for
purposes of 1152 And that would knock out
39 percent of the most important part of the
executive order
CHIEF JUSTICE ROBERTS My question
of course -shy
MR KATYAL Yes Now Im getting -shy
CHIEF JUSTICE ROBERTS -- was not on
1152
MR KATYAL Yes Im getting there
Okay
With respect to that we dont think
-- we think that the test as this Court has
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said a reasonable objective observer viewing
all the statements and we think absolutely
my friend is right you shouldnt look to
campaign statements in general or stuff like
that 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 70
of our red brief you have a very good example
of this
After the executive order this latest
executive order was promulgated the President
tweeted these three virulent anti-Muslim
videos And then the press spokesman was
asked What does this mean What is this
about And the answer was The President has
spoken about exactly this in the proclamation
CHIEF JUSTICE ROBERTS My question
was whether or not the inhibition on the
ability to -- to enter one of the proclamations
applies forever
MR KATYAL Right No I think the
President could have disclaimed -- you know
easily moved away from all of these statements
you know but instead they embraced them
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Thats the difference
And so absolutely the President
would have wide berth to say thats a -shy
CHIEF JUSTICE ROBERTS So if
tomorrow he issues a proclamation saying hes
disavowing all those statements then the next
day he can reenter this proclamation
MR KATYAL Thats exactly what this
Court said in McCreary This Court in McCreary
said you know the same policy can be
constitutional if said -- if promulgated by one
entity and not by another depending on the
circumstances around it
CHIEF JUSTICE ROBERTS Is your answer
to my question yes
MR KATYAL Yes The answer is -shy
CHIEF JUSTICE ROBERTS Tomorrow he
issues a proclamation disavowing those
statements -shy
MR KATYAL Absolutely And thats a
CHIEF JUSTICE ROBERTS -- then the
next day he could reenter this and your
discrimination argument would not be
applicable
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MR KATYAL And -- and -- and Mr
Chief Justice thats exactly what I told the
Ninth Circuit in May The President didnt do
that Thats whats -- thats -- you know
thats what a reasonable objective observer -shy
JUSTICE SOTOMAYOR So if another -shy
JUSTICE ALITO Mr Katyal would any
reasonable observer reading this proclamation
with -- without taking into account statements
think that this was a Muslim ban
I mean there are -- I think there are
50 predominantly Muslim countries in the world
Five -- five countries -- five predominantly
Muslim countries are on this list
The population of the -- of the
predominantly Muslim countries on this list
make up about 8 percent of the worlds Muslim
population
MR KATYAL Absolutely
JUSTICE ALITO If you looked at the
10 countries with the most Muslims exactly
one -shy
MR KATYAL Right
JUSTICE ALITO -- Iran would be on
that list of the top 10
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MR KATYAL Right
JUSTICE ALITO So would a reasonable
observer think this was a Muslim ban
MR KATYAL If it were -- if it were
just the text of the order alone it might
raise eyebrows for fit and other reasons that
the briefs go into but we wouldnt be here
We absolutely agree that just -- its the same
test as in Lukumi and other cases You have to
look to all the circumstances around it that
are said the publicly available ones
You know and Justice Alito the fact
that the order only come -- encompasses some
Muslim countries I dont think means its not
religious discrimination For example if Im
an employer and I have 10 African-Americans
working for me and I only fire two of them I
dont think -- you know and say well Ive
left the other eight in I dont think anyone
can say thats not discrimination
JUSTICE ALITO No I -- I understand
that And it is one of our fundamental values
that there is religious freedom here for
everybody in that number -- adherence to every
religion are entitled to equal treatment
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My only point is that if you look at
what was done it does not look at all like a
Muslim ban There are other justifications
that jump out as to why these particular
countries were put on -- on the list
So you -- it seems to me the list
creates a strong inference that this was not
done for that invidious purpose
MR KATYAL Justice Alito I think if
it were just the list I think wed be right -shy
youd be right although Id point out that
you yourself in the Stormans case said that
its a religious -- it raises an inference of
religious gerrymander of the burden imposed
falls almost exclusively on those with
religious objections
This is a ban that really does fall
almost exclusively on Muslims between
902 percent and 998 percent Muslims And so
it does look very much like what you said in
Stormans But even then we wouldnt be here
if it werent for all of the different
statements
And the best evidence of this about
what a reasonable objective observer would
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think is to look at the wide variety of amicus
briefs in this case from every corner of
society representing millions and millions of
people from the US Conference of Catholic
Bishops which calls it blatant religious
discrimination
JUSTICE GORSUCH Mr Katyal on that
its been a long time since this Court has used
the Lemon test reasonable observer even to
strike down a domestic statute let alone
something with purely international
application What -- what do we do about that
MR KATYAL Yeah 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 and our protest of
King George which is all about using the
immigration power to exclude people of a
different faith And thats what our
Constitution is about So thats the first
thing
And the second is we dont think you
have to get into Lemon and all these other
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tests that you all have struggled with I
think this Court in Lukumi was very clear in
saying that when youre talking about
denigration of religion all the tests point in
the same direction
JUSTICE SOTOMAYOR Mr Katyal you
said something earlier you said you wouldnt
be here if all of those statements the
background statements were not made Do you
mean that on all of your bases You wouldnt
be here on the Establishment Clause claim
MR KATYAL Only on the Establishment
Clause claim not on anything else And our
point is you know he talks about for
example this worldwide vetting process
Remember his own argument on 1182 is
the statute puts the President -shy
JUSTICE SOTOMAYOR So lets -- lets
go back to not being here without the
statements Clearly the statements even
conceded by your adversary do give you a basis
to look behind all right the reason
So if were looking behind it how do
you deal with the Generals suggestion that
there was a cleansing that occurred because of
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all of the agencies and departments who
participated in this process
MR KATYAL Yeah So theres three
things Number one is that his -- his own
argument is that 1182 puts the President in the
drivers seat so the cabinets not important
Its the Presidents proclamation
Second the order itself says in its
first lines it harkens back to Executive
Orders 1 and 2 and it says its an outgrowth
of that So it was infected by the same thing
that was struck down on Establishment 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 ban
a non-politically-correct ban and the like
So given all of those things but in
particular given the fact that 1182 itself
forces the President to make the proclamation
its the Presidents proclamation so I dont
think you even have to get into this whole
unitary executive thing but I do agree with
you Justice Sotomayor that thats another
problem which is theyre coming before the
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Court and saying Nope its the President
whos in charge And now theyre saying here
Oh no no no its these other people
This is the Presidents proclamation
through and through No President has ever
said anything -- anything like this And
thats what makes this different
And the President -shy
JUSTICE KAGAN And -- and yet Mr
Katyal 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 evaluating the adequacy of those
national security interests which for the most
part weve said courts are not equipped to do
MR KATYAL Right Were not asking
you to second-guess a national security
judgment at all with the purpose of the
Establishment Clause
Were saying you just have to look to
what a reasonable objective observer would do
Thats the ordinary test that youve used in
cases like Lukumi Is there an official
purpose to disparage a religion Here there
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very much is Thats you know everything
that the President has said and that the order
itself embodies Thats our fundamental
problem
JUSTICE BREYER What do you think -shy
its a -- its a -- its still something Im -shy
Im thinking about perhaps to the side but
the statute you point to one of the ones that
is stronger for you There are obviously
objections to what youre saying in quite a few
briefs all right but the one that you talked
about it does say you have to have an
interview with a consular official if the
person is from a country officially designated
by the Secretary as a state sponsor of
terrorism It does say that
So theyll say but we do have that in
respect to everyone under the exception So
there isnt much problem Weve gone beyond
that in respect to other people All right
Take their argument for a moment
Because my question is which I
couldnt find in the briefs is is it true -shy
Im just taking what they say -- that really
that isnt so they dont publicize it they
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havent put forth a guidance people dont know
they can come in and qualify for this
And if it turns out that that is
something that is important to the lawfulness
of the order because there are many many
categories there -shy
MR KATYAL Right
JUSTICE BREYER -- what do we do
MR KATYAL So two things Number
one this waiver process has excluded -- and
you have this in the PARS Equality brief at
page 14 A 10-year-old with cerebral palsy who
wants to come to the United States to save her
life and she cant move or talk The
10-year-old was denied a waiver Justice
Breyer
He says theres 430 people who have
gotten waivers Theyve never told you the
denominator and theres no publication of this
process and how -- how often it is And the
data that we do have suggests as a matter of
percentages its very weak
Just to give you some evidence of
that just the State of Hawaii has gotten about
1000 letters from people most of which say
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were not even getting waivers on the like
JUSTICE GORSUCH That -shy
MR KATYAL Weve heard very few
instances -shy
JUSTICE GORSUCH -- raises a question
of remedy for me
MR KATYAL Yes
JUSTICE GORSUCH We have this
troubling rise of this nationwide injunction
cosmic injunction -shy
MR KATYAL Yeah yeah
JUSTICE GORSUCH -- not limited to
relief for the parties at issue or even a class
action
MR KATYAL Right
JUSTICE GORSUCH And near as I can
tell thats -- thats a really new development
where a district court asserts the right to
strike down a -- a federal statute with regard
to anybody anywhere in the world
MR KATYAL Yeah
JUSTICE GORSUCH What -- what do we
do about that
MR KATYAL Obviously the injunction
here has been trimmed by this Court itself and
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others And I do think -- I -- I share your
impulse Justice Gorsuch Thats something
that I think lower courts are debating right
now in a number of different contexts like the
contraception case and the like
I think this case is the poorest
example to get into it because of United States
versus Texass point which is this is an
immigration case and Article I Section 8 puts
Congress in the drivers 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 doesnt make a
tremendous amount of sense It would almost be
an advisory opinion
Our fundamental point to you though
is that Congress is in the drivers seat when
it comes to immigration and that this
executive order transgresses the limits that
every President has done with this proclamation
power since 1918 And to accept it here is to
accept that the President can take an iron
wrecking ball to the statute and pick and
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choose things that he doesnt want for purposes
of our immigration code That cant be the law
of the United States
CHIEF JUSTICE ROBERTS Take five
extra minutes Okay
MR KATYAL Okay
(Laughter)
CHIEF JUSTICE ROBERTS You dont have
to
(Laughter)
MR KATYAL Well if there are -- if
there are any other questions Im happy to
take anything Okay Thank you
CHIEF JUSTICE ROBERTS Thank you
counsel
Five minutes for rebuttal General
REBUTTAL ARGUMENT OF GENERAL NOEL J FRANCISCO
ON BEHALF OF THE PETITIONERS
GENERAL FRANCISCO Mr Chief -- Mr
Chief Justice and may it please the Court
I -- I really do have just a few quick
points unless Your Honors have additional
questions
Justice Breyer I did want to respond
in more detail to your question about how the
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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
the waiver -- the visa officer first determines
whether the person is otherwise admissible
under other provisions of the INA
If theyre inadmissible you never
even get to the proclamation Then for those
people who are not inadmissible under other
parts of the INA like 1182(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 youre not subject to an exception
then the consular officer him or herself
turns to the waiver provision and applies the
criteria of the waiver provision
JUSTICE GINSBURG How do you deal
with the -shy
GENERAL FRANCISCO So it does get
applied in every single case
JUSTICE GINSBURG How -- how do you
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deal with the example that was brought up of
the child with cerebral palsy
GENERAL FRANCISCO Your Honor the
waiver is built to address those issues I am
not familiar enough with the details of that
case to tell you what happened in that
particular case But thats what the waiver
provision -shy
JUSTICE BREYER But thats -- thats
you see -shy
GENERAL FRANCISCO -- is intended to
address
JUSTICE BREYER Youve read the
briefs as have I All right Now there are
some that lists about 10 or 15 instances like
the cerebral palsy One has Parkinsons Then
theres another brief that lists all the people
who are professors scholars at universities
and there are a lot And -- and then there are
people they list the students from these
countries a lot
GENERAL FRANCISCO Yeah
JUSTICE BREYER And then the business
community lists a -- a whole bunch and says my
goodness they have been unable to get -- we
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dont know whats going on
And then they say Well whats going
on is nothing is going on
GENERAL FRANCISCO Well Your Honor
-shy
JUSTICE BREYER Now I dont -- Im
not taking sides on that Im just saying I
dont know
GENERAL FRANCISCO Right And the
principal purpose of the proclamation is of
course to 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 Im 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
admissible
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 dont and doesnt tell us we
cannot intelligently make the admissibility
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determination
Third Id like to address the
1152(a)(1)(A) point about nationality-based
discrimination
JUSTICE SOTOMAYOR General could you
stop just one second
GENERAL FRANCISCO Yes Your Honor
of course
JUSTICE SOTOMAYOR I for one am like
Justice Breyer concerned about is this window
dressing or not Whats in place to ensure
its not What are you personally doing to
represent to us that it is in fact a real
waiver process -shy
GENERAL FRANCISCO Your Honor State
Department consular officers automatically
apply the waiver process in the course of every
visa application And they are doing that
which is why there have been -- and I looked at
our brief -- 430 waivers that have been issued
since -shy
JUSTICE SOTOMAYOR Have you bothered
-shy
GENERAL FRANCISCO -- the
proclamation was issued
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JUSTICE SOTOMAYOR -- to look to see
if there are reasons for all of those peoples
exclusions
GENERAL FRANCISCO Your Honor I
cannot claim that I have looked into every
individual case
JUSTICE KENNEDY Could you make your
1152 point
GENERAL FRANCISCO Yes Your Honor
1152(a)(1)(A) addresses one thing the issuance
of immigrant visas It doesnt address the
broader question over whether somebodys
allowed to enter in the first place
Thats governed by 1182 including
1182(f) So essentially 1182 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 1152(a)(1)(A) is
one of the rules that governs how we distribute
visas amongst that group thats eligible to
come in
And its not just nationality-based
distinctions that it applies to It also
applies to things like place of residence So
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once you have that universe of eligible people
1152(a)(1)(A) governs how you distribute them
But lets 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 non-immigrant visas to people who
arent allowed to enter but we wouldnt have
to allow anyone to enter and we wouldnt have
to issue any non-immigrant visas
So the bottom line is I think theyre
simply wrong on that case -- on that issue
My final point has to do with my -- my
brothers 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 25 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
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says its about Foreign policy and national
security And we would ask that you reverse
the court below
CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1109 am the case
was submitted)
Heritage Reporting Corporation
83Official
1 998 [1] 6619 39914 44111417 51581120 arise [2] 5725 584
1 [1] 6910 A 52101118
ALITO [16] 432124 446813 45
around [3] 4814 6313 6510
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583 77412 792 8011
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60131315
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4 19
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Heritage Reporting Corporation Sheet 1 1 - big
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Conference [1] 674
confident [1] 1915
confidential [1] 265
confidentiality [1] 2612
confirms [1] 2921
conflict [1] 5416
conflicts [1] 392
Congress [40] 41015 5710 64
81024 385 397172025 4117
25 421624 439132122 4421
4522 47101011 4817 5313 55
81016 561 571423 5822023
592 741019
Congresss [7] 392 4019 4318
4523 4717 5019 5312
consequences [1] 5017
consider [6] 199 284 371923
3811 5715
considerations [4] 106 4633
4819
considered [1] 5511
considers [1] 5712
consistent [2] 2820 4718
constantly [1] 718
constitute [2] 4416 4922
Constitution [3] 2424 289 6722
constitutional [6] 1317 1510 19
18 2114 5014 6311
constitutionally [1] 2810
construct [1] 2516
consular [6] 121 7113 76412
18 7916
contacts [1] 3115
contemplated [1] 5410
context [3] 161523 1825
contexts [2] 5725 744
continuing [2] 47223
contours [1] 1521
contraception [1] 745
contradicts [1] 602
contrary [2] 54614
contravention [2] 5534
convinced [1] 487
cooperate [5] 84 3910 4610 48
15 5717
cooperated [1] 3922
cooperating [3] 4220 4311 55
19
core [1] 720
corner [1] 672
correct [4] 13911 4323 4412
cosmic [1] 7310
Cotton [1] 5425
couldnt [3] 2223 613 7123
counsel [2] 7515 825
countermand [2] 459 5019
countermanded [1] 4717
countermanding [1] 4317
countermands [2] 4523 5312
countries [45] 3152225 51821
22 749 91920 1047 1112 15
7 2212 252224 2610 2916 32
4 3621 3910121821 4219 43
11 469 4815 5518 566 5716
5810 6010 641213141621 65
14 665 7721 7811 812224
country [29] 416 811 99 154
1925 251718 2716 305 3210
4215 436 4416 491 516912
21 521012 5615 581423 6010
7114 8017 812123
countrys [1] 1719
couple [2] 271 3222
course [8] 1323 1679 3520 61
18 7811 79817
COURT [22] 1115 311 1218 13
8 1423 3825 5223 535 5912
6125 6399 678 682 701 7318
25 741315 7520 823
Courts [3] 4112 4513 5423
courts [5] 266 5625 572 7016
743
covered [2] 1114 2917
covers [2] 1112 5921
created [2] 5815
creates [1] 667
credit [1] 3922
criminal [2] 83 304
crisis [2] 477 482
criteria [8] 512 910 292324 33
1921 3919 7620
cross [1] 1613
crystal-clear [2] 811820
Cuba [2] 95 476
current [1] 3613
cuts [1] 6715
D DC [3] 1112022
Heritage Reporting Corporation Sheet 2 bigger - DC
85Official
danger [1] 525
dangerous [1] 597
data [1] 7221
daughter [1] 525
day [5] 2819 40814 63723
days [4] 4119 461821 5911
deal [8] 422425 4310 5622 596
6824 7621 771
deals [1] 5517
dealt [3] 173 4112 4513
debating [1] 743
decent [1] 366
decided [3] 610 121213
decision [3] 2122 4110 5912
decisions [1] 5423
deemed [1] 5616
deems [1] 4722
defend [1] 2423
deference [2] 4118 575
defies [1] 393
definite [1] 356
definitely [1] 209
deliberations [1] 2418
denied [1] 7215
denigrating [1] 166
denigration [1] 684
denominator [1] 7219
Department [3] 120 761 7916
departments [1] 691
depending [1] 6312
depends [1] 7816
described [3] 811 2614 535
designated [2] 518 7114
despite [1] 1214
detail [3] 1020 274 7525
detailed [3] 101825 1110
details [1] 775
determination [2] 815 791
determine [4] 424 78 819 7817
determined [1] 714
determines [1] 766
developing [1] 5722
development [1] 7317
difference [2] 2724 631
different [10] 822 3512 4016 53
16 5511 6622 6721 707 744
816
difficult [2] 1716 581
diplomatic [5] 324 18121518
3313
direct [3] 5415 5534
direction [2] 5512 685
directly [6] 5010 512323 52125
5413
disagree [1] 4610
disagreed [1] 813
disavowing [2] 63618
disclaimed [1] 6223
discretion [1] 472
discriminating [1] 605
discrimination [17] 394 401722
4825 49423 502 5917 60913
22 612 6324 651520 676 794
disease [1] 3119
dislike [1] 2117
disparage [1] 7025
distinctions [1] 8024
distinguish [1] 1514
distribute [2] 8020 812
district [1] 7318
Doe [1] 88
doing [8] 63 229 2514 5015 54
519 791218
domestic [2] 1913 6710
DONALD [2] 13 35
done [9] 1924 2412 267 354 44
21 608 6628 7422
doom [1] 4615
dot [1] 1612
down [4] 256 6710 6912 7319
dressing [3] 35921 7911
drivers [3] 696 741019
dropped [1] 46
duty [2] 276 5625
duty-bound [1] 2423
E earlier [2] 2713 687
easily [1] 6224
easy [1] 197
economic [1] 463
economics [1] 5323
effectively [1] 281
eight [1] 6519
either [2] 1112 265
elected [2] 162 2819
eligible [3] 801621 811
embodies [1] 713
embodiment [1] 2813
embraced [1] 6225
emergency [5] 4023 4115 5710
59813
emerges [2] 161416
employed [1] 3123
employer [1] 6516
enacted [1] 4322
encompasses [1] 6513
end [6] 162022 2314 4557 46
22
ends [2] 4614 478
engaging [1] 825
engineers [2] 532224
enough [4] 415 68 583 775
ensure [2] 2623 7911
enter [7] 1617 2114 409 6220
8013 81910
entire [1] 810
entirely [1] 544
entitled [1] 6525
entity [1] 6312
entry [6] 314 414 399 4013 44
11 605
equal [1] 6525
Equality [2] 523 7211
equipped [1] 7016
ESQ [2] 122 26
essentially [3] 714 1325 8015
establish [1] 4517
established [1] 3116
Establishment [12] 1320 1914
206 2121018 2225 4924 68
1112 6912 7020
ET [2] 147
evaluating [1] 7014
evaluation [1] 267
even [20] 1310 17916 19811 25
11 4120 4716 5319 553 5824
5910 6621 679 6820 691522
73113 7610
everybody [2] 2123 6524
everyone [1] 7118
everything [2] 2725 711
evidence [2] 6624 7223
exact [4] 3616 4217 5314 5517
exactly [12] 625 266 4313 4522
535 57515 62817 638 64221
example [14] 86 4024 455 515
24 522 5521 587 629 6515 67
17 6815 747 771
examples [2] 312 5313
exception [7] 92123 1120 3624
7118 761417
exceptions [2] 302023
exclude [2] 2914 6720
excluded [6] 910 2017 3220 33
1217 7210
exclusion [2] 127 1625
exclusions [1] 803
exclusively [2] 661518
executive [23] 715151618 14
10 23712 24814 2813 391 46
15 471415 5311 5921 602 61
16 621112 69923 7421
exercise [4] 206919 2218
exercised [1] 5311
exert [1] 3313
exerts [1] 324
exigency [1] 572
expect [1] 2424
explore [1] 420
expressing [2] 510 356
extensive [1] 151
extent [1] 4311
extra [2] 3922 755
extreme [8] 514 1919 205 2314
17 255 31912
eyebrows [1] 656
F face [1] 252
facial [1] 2510
fact [8] 10311 133 2623 6512
6714 6919 7913
factors [1] 5515
facts [1] 1620
factual [1] 583
fail [1] 405
failed [4] 315 914 301 3924
failing [1] 3918
fails [1] 99
failure [1] 96
fair [1] 55
faith [3] 277 502 6721
fall [7] 323 924 1312 32618 43
24 6617
falling [1] 3412
falls [3] 44 3814 6615
familiar [1] 775
families [1] 3419
family [5] 2212 3119 4566 53
18
far [5] 1413 3217 4121 513 59
15
fast-moving [1] 4024
faster [1] 3923
father [1] 2018
favor [1] 1510
federal [1] 7319
fell [1] 920
few [4] 326 7110 733 7521
final [1] 8114
find [4] 244 351616 7123
findings [1] 6018
finds [1] 4411
fine [3] 2521 2925 7615
fine-grained [4] 4524 468 4818
5020
finish [1] 1714
fire [2] 2318 6517
first [21] 14310 2421 272 283
3225 39614 427 4317 4721
556 6021 619 671622 699 76
614 801317
fit [1] 656
five [6] 3124 64131313 75416
flat [7] 4314 4616 4817 55220
564
flatly [3] 59316 602
flexible [1] 418
Focus [1] 321
folks [1] 5225
follow [1] 178
following [1] 312
fomenting [1] 591
footnote [1] 3614
force [1] 4316
forces [1] 6920
forecloses [1] 1517
foreign [8] 42 825 106 129 31
15 462 8018 821
forever [1] 6221
Forge [2] 212225
forget [1] 5610
form [1] 1916
forth [2] 618 721
forward [2] 132224
founding [1] 6718
four [1] 7814
Fourth [1] 263
FRANCISCO [117] 119 239 37
810 417 616112225 91218
10172124 115818 1231624
13418 142122124 1518 164
1821 171323 182924 1925
2081923 21321 228141722
2310162124 243111519 268
Heritage Reporting Corporation Sheet 3 danger - FRANCISCO
86Official
151825 27172022 28223 292
3021 3110132125 32381315
2225 334811182225 3447
1025 35101422 361581012
1925 3731320 381920 7517
19 7623 7731122 7849 797
1524 8049
frankly [1] 377
free [7] 2069101924 221818
freedom [1] 6523
friend [5] 395 4319 4615 532
623
full [1] 1520
fundamental [5] 2811 296 6522
713 7418
future [2] 161 1814
G game [1] 1325
gas [1] 5425
GEN [3] 119 239
General [127] 119 3810 417 57
23 616112225 91218 1017
2124 1125818 1231624 134
1618 142122124 1518 16418
21 171323 1825924 1925 20
281923 21321 228141722
23310162124 243111519 25
25 268151825 2713172022
28223 292 3021 31101321
25 323813152225 334811
182225 34471025 35101422
3615810121925 3731320
38191920 624 75161719 76
23 7731122 7849 79571524
8049
Generals [1] 6824
George [1] 6719
gerrymander [1] 6614
gets [1] 162
getting [4] 611922 731 7414
GINSBURG [4] 48 445 762125
give [8] 711 86 151225 5124
569 6821 7223
given [10] 917 1413 1718 1825
1915 241325 3219 691819
gives [2] 616 2224
giving [3] 311 539 606
goodness [1] 7725
GORSUCH [14] 5025 511820 52
81417 677 73258121622 74
2
got [4] 2714 357 4334
gotten [2] 721824
governed [1] 8014
government [14] 825 92 109 12
1523 1322 1524 222 264 278
10 3520 514 7823
governments [2] 3314 3714
governs [2] 8020 812
great [4] 248 274 812124
greater [1] 5910
greatest [1] 5012
greenhouse [1] 5424
ground [3] 223 401 5723
grounds [2] 624 6913
group [2] 5525 8021
guess [2] 1417 542
guidance [3] 3424 352 721
H Half [2] 4616 476
Hamdan [3] 4113 577 5915
hand [1] 1818
happened [1] 776
happens [2] 1718 4621
happy [1] 7512
harbored [1] 1710
hard [1] 1520
hardship [3] 31789
harkens [1] 699
harmed [1] 5123
harmful [2] 824 95
harmonize [1] 4425
Harvard [1] 3419
hate [1] 2818
hateful [2] 281820
hatred [1] 167
HAWAII [4] 17 36 5125 7224
head [2] 23812
hear [1] 33
heard [7] 1523 39519 453 4614
532 733
hearing [1] 3519
heart [6] 179 181921 2119 59
24 6716
hearts [3] 179 182021
heated [1] 2617
heightened [1] 514
help [4] 421 721 87 2523
herself [1] 7618
hire [1] 2318
history [6] 824 1025 1111 303
4
holds [1] 1814
holistic [1] 914
home [2] 811 7823
Homeland [1] 313
honestly [2] 176 2724
Honor [38] 417 61319 71 810 9
12 1018 11511 12325 1318
1621 1715 1810 19621 2010
214922 2420 2625 28324 32
923 36125 3810 4520 507 77
3 784 79715 8049
Honors [1] 7522
hoping [1] 7814
however [3] 419 113 2513
humanitarian [2] 1121 464
hypothetical [15] 151323 173
187 191620 205 2323 3812
412223 4223 437 4912
I is [1] 1613
ID [1] 433
idea [1] 454
ideal [2] 81 303
identified [2] 5518 5713
identify [1] 824
identifying [2] 4219 4811
III [1] 136
illustrate [1] 87
illustration [1] 5012
image [1] 464
imagine [7] 2913 412425 5611
19 598 613
imbued [1] 128
immediate [1] 419
immigrant [3] 5923 8011 817
immigrants [3] 11161719
immigration [10] 412 318 4518
4911 67151720 74920 752
impact [1] 4915
impacted [2] 52125
impacts [1] 4919
impediment [1] 4117
implement [3] 422 721 815
important [7] 1324 531 5923 61
15 696 7011 724
importantly [2] 517 6914
impose [3] 617 103 457
imposed [3] 2522 609 6614
imposes [1] 91
imposing [1] 8119
improve [1] 718
impulse [1] 742
in-person [3] 434 5521 562
INA [11] 42225 618 721 816 45
19 5017 5322 76812
inaccurate [2] 3912 561
inadequate [1] 5617
inadmissible [2] 76911
including [9] 320 155 251819
2917 3911 4217 476 8014
incomplete [1] 239
inconsistent [2] 523
indeed [1] 591
independent [1] 2622
indicates [1] 4624
indication [1] 5510
individual [4] 311 781522 806
individualized [4] 3915 4225 46
8 595
individuals [2] 78 322
ineffective [1] 2912
infected [1] 6911
inference [2] 66713
infiltration [1] 5613
information [20] 31625 423 77
23 81319 97 302 3315 3517
3913 407 414 5617 5825 78
1317
inhibition [1] 6219
initial [1] 253
injunction [5] 217 2223 73910
24
injury [1] 2124
INS [1] 2216
instances [2] 734 7715
Instead [5] 3921 4617 4817 62
25
intelligence [3] 406 414 428
intelligent [1] 815
intelligently [1] 7825
intended [1] 7711
intention [1] 8119
interests [4] 1121 315 701115
international [1] 6711
interpretation [1] 604
interrupt [1] 412
interview [4] 435 5522 562 71
13
introduced [4] 4120 421011 49
20
introduces [1] 426
invidious [1] 668
involve [1] 1625
Iran [2] 94 6424
Iraq [3] 923 1010 2917
iron [1] 7424
irrelevant [2] 2822 291
irrespective [1] 147
Islam [1] 8123
isnt [5] 3520 3813 4710 7119
25
Israel [4] 1617 1718 181516
issuance [3] 495 5918 8010
issue [10] 1219 16101011 4911
5511 7313 8171113
issued [7] 54 89 1110 4716 78
22 792025
issues [6] 126 283 533 63518
774
item [1] 4510
itself [5] 2910 69819 713 7325
J Jane [1] 88
Jews [2] 166 242
job [1] 2515
join [1] 2213
joined [1] 576
Judge [2] 4022 612
judges [2] 2623
judgment [6] 43 4524 4717 48
22 7019 8019
judgments [4] 4019 4318 5020
5312
judicial [1] 1620
jump [1] 664
jurisdiction [1] 136
jurisdictional [5] 122413 133
533
jurisprudence [1] 1914
Justice [217] 120 3310 48 56 6
272023 9817 10111922 112
791525 12111721 1311516
19 1431722 151222 16519
171122 18151125 193 2024
1521 21115 2259151921 23
31117222225 2441216 2525
269131619 2712182123 28
1625 30691122 31111422 32
1411141624 3326101620
23 3425812 351111523 363
Heritage Reporting Corporation Sheet 4 FRANCISCO - Justice
87Official
69111720 372111822 382
17182125 404 41182024 42
5 432124 44346813 4515 46
111723 471320 4861020 49
6131421 5015212325 5118
20 52381417 5421218 5611
1924 575619 586121620 60
1220 616101720 6218 63414
1722 642672024 6521221
669 677 68618 6924 709 715
72815 73258121622 742 75
48142024 762125 7791323
786 79591022 8017 824
justiciability [1] 137
justifications [1] 663
K KAGAN [26] 131619 1431722
151222 16519 171122 1815
1125 193 2613 2712182123
5023 5421218 709
Kagans [1] 2323
KATYAL [79] 122 26 38212224
4015 41711 42413 4323 441
1218 4520 46131925 47325
489 49291725 504725 511
141922 52131620 5431117
21 561821 574 585151922
6020 618111922 6222 638
1620 64171923 6514 669 67
713 68612 693 701017 7279
733711152124 75611
keep [3] 241 258 4215
KENNEDY [19] 10111922 204
1521 2220 281625 461723 47
1320 48610 5624 575 807
Kennedys [1] 119
kept [1] 264
kill [1] 4011
kind [8] 142022 1612 186 1913
5415 5924 7012
kinds [1] 165
King [1] 6719
knock [1] 6114
knows [4] 181319 3525 7823
L land [1] 221
language [1] 4325
laptop [1] 4920
large [1] 5922
later [2] 4119 5911
latest [1] 6211
Laughter [5] 188 3411 423 757
10
LAVAS [1] 4023
law [4] 314 3720 403 752
lawfulness [2] 3723 724
laws [2] 411 318
layer [1] 519
lays [1] 273
learns [1] 811
least [1] 1213
leave [1] 512
left [2] 3015 6519
legality [1] 378
Legislation [3] 3923 4121 422
legislative [1] 4117
legitimacy [1] 2511
legitimate [1] 1322
Lemon [2] 67925
less [1] 3112
letters [1] 7225
level [2] 423 77
lies [1] 4316
life [1] 7214
light [1] 5722
likelihood [1] 5525
limit [3] 51 4423 4512
limitations [1] 6017
limited [1] 7312
limits [4] 420 64 545 7421
line [4] 107 2524 4510 8112
lines [1] 699
Lisa [1] 3420
list [10] 47 911 3115 64141625
665610 7720
listed [1] 919
lists [3] 77151724
litigants [1] 266
little [2] 613 141
local [1] 2817
long [3] 415 577 678
long-term [2] 3117 601
longer [2] 101419
look [16] 724 2622 3519 4113
4715 552 6238 6510 661220
671 6822 7021 801
looked [7] 5713 624 3022 6420
7919 805
looking [1] 6823
lot [5] 612 145 167 771921
love [1] 8122
low [1] 916
lower [1] 743
Lukumi [3] 659 682 7024
M made [7] 1215 14912 286 689
811820
main [1] 720
maintain [1] 717
majority [6] 31920 251920 29
15 491
Mandel [18] 1321 1410131822
158141619 16192223 17116
201125 2511 2621
Mandels [1] 1723
many [5] 3013 7255 812222
mark [1] 2811
marks [1] 296
material [1] 261
matter [5] 114 1917 259 297 72
21
mayor [1] 2817
McCreary [3] 159 6399
mean [9] 1820 412 4824 5720
6215 6411 6715 6810 814
meaning [1] 299
means [2] 144 6514
meant [2] 421 103
measures [1] 5615
medical [1] 3421
meet [4] 511 1420 331820
member [3] 2425 251 3119
members [2] 1610 2213
mentioned [2] 49 5616
merits [4] 1214 1312 514 537
message [2] 2124 224
met [1] 321
might [13] 620 181314 2218 26
12 356 4912 5023 511 5222
584 655 7413
migration [1] 458
military [1] 4821
million [2] 325 3618
millions [2] 6733
minimum [11] 316 423 7722 8
218 96 30123 7816
minutes [2] 75516
misunderstanding [1] 4912
moment [1] 7121
month [1] 413
months [1] 488
most [18] 1018 1110 1324 2912
25 352 361313 37141416 53
1 5922 6115 6421 6914 7015
7225
move [3] 107 2523 7214
moved [1] 6224
moves [1] 4212
much [8] 1120 2025 285 446 46
7 6620 71119
multi-agency [3] 312 1921 29
22
Muslim [19] 321 251820 2911
1315 4911619 6410121416
17 65314 663 811922
Muslim-majority [2] 156 2916
Muslims [5] 2715 6421 661819
8120
must [4] 2418 3111 325 7411
N narrow [1] 419
nation [1] 5924
national [14] 43 520 105 1121
129 1323 176 184 571 7011
1518 8019 821
nationality [7] 39424 401721
4315 59318
nationality-based [4] 609 611
793 8023
nationals [4] 317 40813 4415
nationwide [3] 217 2223 739
naturalization [1] 7411
nature [1] 102
nay [1] 416
NEAL [3] 122 26 3822
near [1] 7316
necessarily [1] 4711
necessary [4] 37911 472224
need [6] 420 1717 2622 304 31
20 6113
needed [7] 31725 423 77 819
781217
needs [1] 544
negative [2] 2124 226
Neither [2] 74 4212
neutral [6] 154 1923 2119 2517
292324
never [7] 359 394 4120 5021 72
18 76916
new [4] 3512 4517 5713 7317
next [3] 71 63623
Ninth [2] 262 643
nobody [2] 3422 3525
NOEL [5] 119 239 38 7517
non-immigrant [2] 81811
non-politically-correct [1] 6917
non-reviewability [2] 12114
none [1] 4716
Nope [1] 701
nor [1] 75
normal [1] 3220
nothing [8] 3717 461321 478
493 5713 6023 783
notice [1] 3524
noticed [1] 3018
number [11] 157 2522 329 34
15 361314 6524 6714 694 72
9 744
numbers [2] 3313
O oath [3] 28724 295
objections [2] 6616 7110
objective [4] 621 645 6625 70
22
observer [7] 621 6458 653 66
25 679 7022
observers [1] 1823
obviously [2] 719 7324
occupations [1] 5321
occurred [1] 6825
offer [1] 4312
office [2] 288 3622
officer [3] 7661318
officers [2] 764 7916
official [2] 7024 7113
officially [1] 7114
often [3] 3716 7220 8018
Okay [11] 3114 332323 3412 35
15 3718 5412 6123 755613
omits [2] 319 2915
Once [5] 814 1321 2620 477 81
1
one [39] 41113 52021 915 10
13 114 1220 13524 1616 17
19 2215 2314 278 2913 3015
3312 358 373 4013 4218 51
24 6015 6220 6311 6422 6522
6714 694 71811 7210 7716
7969 801020 8123
ones [3] 518 6511 718
only [17] 322 414 1116 1519 21
Heritage Reporting Corporation Sheet 5 Justice - only
88Official
13 2914 317 329 3423 3524
4218 5514 626 651317 661
6812
opinion [3] 357 577 7417
Opinions [1] 288
oral [5] 114 225 38 3822
order [31] 91 1411 2425 253 29
1921 30181923 3314 3724 39
1920 4614 47714 4822 539
5921 602 6116 621112 655
13 698 712 725 7421 7812
orders [5] 2917 4616 47615 69
10
ordinary [1] 7023
organization [1] 812
other [29] 323 75 99 105 149
311724 3220 3523 416 4319
4424 4525 4714 5510 5615 58
9 656919 663 671525 6913
703 7120 7512 76811
others [2] 915 741
Otherwise [3] 2124 2210 767
ought [1] 4822
out [13] 242 258 27311 2814 35
1616 3618 588 6114 66411
723
out-of-the-box [1] 186
outcome [1] 2417
outer [1] 420
outgrowth [1] 6910
over [5] 1325 167 3615 4723 80
12
overall [1] 915
overwhelmingly [1] 1510
owes [1] 279
own [2] 6816 694
P packed [1] 612
PAGE [6] 22 3614 5011 555 62
8 7212
palsy [4] 527 7212 77216
parameters [1] 516
Parkinsons [1] 7716
PARS [2] 523 7211
part [7] 2925 59222223 601 61
15 7016
participated [1] 692
particular [15] 1016 2117 2589
408 4416 5614 57212225 58
314 664 6919 777
parties [2] 517 7313
parts [1] 7612
party [1] 5224
pass [1] 4114
passed [1] 156
past [4] 522 822 2917 503
people [32] 20121617 225 31
15 32510 3415 355524 3634
6 375 4221 4415 5523 5925
67420 703 7120 7211725 76
11 771720 8016 8118
peoples [1] 802
percent [6] 407 5920 6115 64
17 661919
percentages [1] 7222
perennial [2] 4812 5716
perhaps [2] 5817 717
period [3] 415 244 4722
permanent [1] 4518
permission [1] 523
perpetual [4] 444 4521 4612 48
5
perpetuated [1] 444
person [6] 4325 7114 767 78
1820
personally [2] 517 7912
persons [1] 5110
Petitioners [6] 1521 2410 39
7518
pick [1] 7425
pieces [1] 725
place [6] 2116 2319 7911 8013
1725
placed [1] 3916
plainly [1] 252
plaintiff [1] 5222
plaintiffs [2] 2125 536
please [4] 311 3010 3825 7520
point [23] 1624 1820 294 367
419 4215 4317 446 452 538
5415 6022 66111 68414 718
74818 7814 793 808 8114
points [1] 7522
policy [15] 43 106 129 2319 39
3 4019 4318 451821 462 50
10 5312 6310 8018 821
political [1] 128
polity [1] 601
poorest [1] 746
population [4] 491619 641518
position [1] 5017
possibility [1] 386
possibly [2] 216 2913
potentially [2] 201320
power [11] 4418 1313 4419 45
5 5310 541 5811 607 6720 74
23
practice [1] 2120
praised [1] 8123
precedential [1] 1220
precludes [1] 5710
predominantly [3] 64121316
preference [2] 456 5321
preferences [1] 5318
preliminary [1] 2621
prescient [1] 582
prescribed [1] 558
present [8] 2059 5191221 52
101119
presidency [1] 168
PRESIDENT [86] 13 345 410
14 5913 63916 712 934 11
13131822 1313 162 1758 18
6 191 2381223 257 271525
3513 3712 3834 40612 4217
101214 441121 454 472 487
11212224 4918 508918 5310
101523 54591922 561622 57
321 5810 599 607 6271216
23 632 643 6817 6951520 70
158 712 742224 811517
Presidents [8] 313 44 2421 38
15 4114 69721 704
presidential [1] 6018
Presidents [2] 4716 578
press [2] 141 6214
pressure [8] 324 91 104 1815
252223 3313 7811
presumption [1] 2710
prevent [1] 545
previously [2] 311623
principal [4] 1319 3312 376 78
10
principally [1] 298
private [4] 179 28712 625
pro-Christian [1] 223
probably [2] 3414 7415
problem [16] 261 3413 398 42
1719 481512 497 5315 5517
571216 6925 71419
problems [3] 323 2521 5721
proc [1] 1610
procedures [1] 5817
proceeding [1] 513
process [27] 51515 810 1458
1419 152 1915 2623 274 29
20 3915 5714 6815 69215 72
1020 76123 78161823 7914
17
processes [1] 3221
proclamation [55] 318 42 54 7
24 81721 92022 102121525
111023 1311 14615 161216
191718 211116 231 273519
2910 3313 381114 451617 53
11 5514 611 6217 635718 64
8 6972021 70410 7422 7610
131516 7810 7925 81525
proclamations [1] 421
proclamations [5] 823 1013 11
3 3716 6220
professors [1] 7718
Program [5] 725 56510 596
promulgated [2] 6212 6311
propose [1] 4314
protect [3] 41 2423 304
protest [1] 6718
provide [8] 31625 96 301 3315
3912 566 7812
provides [1] 72
providing [2] 5525 5825
provision [6] 1120 498 5420 76
1920 778
provisions [2] 459 768
provokes [1] 166
publication [1] 7219
publicize [1] 7125
publicized [2] 3621 374
publicly [1] 6511
publish [1] 762
purely [2] 6025 6711
purport [1] 4517
purports [1] 2919
purpose [5] 721 668 701925 78
10
purposes [4] 2216 3312 6114
751
pursuant [2] 89 7822
pursued [1] 215
pushes [1] 431
put [6] 1815 2319 351 4414 66
5 721
puts [5] 161922 6817 695 749
Q qualify [1] 722
qualms [1] 427
question [23] 612 119 1711 18
2122 3015 346 353 3810 41
16 51210 543 5724 61617 62
18 6315 7012 7122 735 7525
8012
questions [3] 5725 751223
quick [1] 7521
quite [4] 922 1915 326 7110
quotas [1] 6010
R race [1] 259
raise [1] 656
raised [1] 1222
raises [2] 6613 735
rate [1] 1524
Rather [1] 2514
rational [3] 17171824
re-upped [1] 483
reach [1] 514
reached [1] 537
read [8] 413 1418 307 3416 44
232324 7713
reading [1] 648
Reagan [8] 94 1012 113 3019
35413 3712 383
Reagans [1] 1113
real [1] 7913
real-time [1] 85
really [14] 720 81721 125 1422
1516 1821 439 4415 6617 71
24 7317 7521 814
reason [9] 132324 1423 2149
3219 339 4511 6822
reasonable [8] 1822 621 6458
652 6625 679 7022
reasons [11] 181315 3116 392
401522 4423 656 7412 802
reassessment [2] 4624 475
REBUTTAL [4] 28 3819 7516
17
receives [1] 289
recent [1] 522
recently [1] 46
recognition [1] 8115
recommendation [3] 153 183
1922
recommendations [2] 319 16
Heritage Reporting Corporation Sheet 6 only - recommendations
89Official
11
recommended [2] 314 2523
red [2] 5011 629
reenter [2] 63723
reexamined [1] 4618
referring [1] 524
reflect [1] 822
reflects [2] 42 101
refuse [1] 251
refused [1] 265
regard [2] 4825 7319
regime [1] 597
regularity [1] 277
rejected [2] 3920 4313
rekindled [1] 628
relatively [1] 197
relatives [1] 2017
relief [1] 7313
religion [6] 211720 259 6525
684 7025
religious [7] 226 651523 6613
1416 675
rely [1] 298
remedy [1] 736
remember [2] 3616 6816
removed [2] 4118 516
repetitive [1] 3013
reply [2] 3612 555
report [2] 462022
reporting [4] 823 402 479
represent [4] 981318 7913
representing [1] 673
required [3] 132 402 4711
requirement [2] 4710 5521
requires [1] 3721
resentment [1] 167
reside [1] 3118
residence [1] 8025
residual [1] 4214
resign [1] 251
respect [13] 945 2120 4020 42
23 4316 529 5513 5614 5825
6124 711820
respond [2] 418 7524
Respondents [5] 1823 27 21
12 3823
response [2] 1320 376
responses [5] 2420 271 3223
3610 371
responsible [2] 411 2413
rest [3] 451 5410 6018
restrictions [3] 315 617 6717
resulted [1] 152
reticulated [3] 4524 55816
reverse [1] 822
review [10] 312 519 1620 1922
2419 2922 5625 5714 6915
reviewability [1] 1219
reviewed [1] 262
rid [2] 531919
rights [2] 51811
rise [1] 739
risk [2] 176 435
riskiest [1] 79
ROBERTS [38] 33 1125 121121
131 309 381821 404 411824
425 4820 4961421 501521
5719 58121620 6012 61610
1720 6218 634141722 7548
14 824
robust [2] 4310 5622
rule [2] 127 7411
rules [1] 8020
run [1] 508
S safe [2] 4215 488
safest [1] 74
sake [2] 19912
Sale [4] 1212 53233
same [15] 920 1410 2824 349
3547 39819 5214 571215 63
10 658 685 6911
sanctions [2] 9125
satisfies [2] 1312 5515
satisfy [3] 171621 3918
save [1] 7213
Savings [1] 551
saying [13] 63 226 4025 426 46
12 5413 635 683 701221 71
10 787
says [28] 16516 237 241 3024
24 319 35824 4115 462020
47721 48241324 5224 5917
604 69810 7010 7217 7410
7724 821
scenario [1] 256
scheme [2] 55916
scholars [3] 2211 3418 7718
score [1] 916
scrutiny [1] 1717
seat [3] 696 741019
second [9] 1216 293 376 3917
557 6724 698 7813 796
second-guess [1] 7018
Secondly [1] 255
secretaries [1] 1924
Secretary [3] 314 524 7115
section [2] 547 749
Security [12] 313 43 105 129
1323 176 184 70111518 80
19 822
see [8] 63 1419 261 3214 367
4415 7710 801
seek [1] 3210
seeking [1] 399
seeks [1] 824
seems [5] 2724 3414 5414 581
666
seen [2] 10815
send [1] 3519
sense [6] 823 5520 5635 7014
7416
sent [1] 223
Sentelle [2] 4022 613
sentences [1] 1014
September [1] 8118
seriously [1] 5818
set [5] 6517 716 1620 2711
sets [1] 8015
seven [1] 322
several [2] 4525 5114
severe [1] 5614
shall [2] 1617 5917
share [3] 265 3016 741
sharing [1] 428
shes [1] 816
shouldnt [1] 623
show [1] 433
shows [3] 8814 7820
side [5] 3523 4319 6056 717
sides [1] 787
significant [2] 2811 3415
similar [1] 1123
simply [2] 52 8113
since [6] 720 1919 2914 678 74
23 7921
single [2] 5517 7624
situation [10] 58 246 3812 40
1224 536 561220 584 599
situations [1] 5722
six [1] 487
slightly [1] 816
small [5] 2521 2925 329 5320
5921
so-called [2] 2911 457
society [1] 673
software [3] 532224 589
Solicitor [1] 119
solid [1] 407
solution [4] 398 4816 5316 55
20
solutions [1] 557
solved [1] 5314
Somalia [2] 922 364
somebody [1] 765
somebodys [1] 8012
someone [1] 425
son [1] 2018
sorry [3] 56 346 8116
sort [1] 5710
sorts [1] 5319
SOTOMAYOR [37] 56 62720
23 9817 112715 202 21115
22591521 23311172225 24
41216 2525 2691619 646 68
618 6924 795922 801
Soviet [1] 4814
space [1] 5314
special [2] 512 72
specialty [1] 5321
specified [1] 397
speech [2] 2011 2219
speech-type [1] 2024
spoken [1] 6217
spokesman [1] 6214
sponsor [3] 436 5824 7115
sponsors [3] 3911 5524 568
squarely [1] 4325
staff [2] 169 627
stage [1] 2621
stake [1] 7012
standard [4] 1724 1917 251217
standing [2] 2123 221
started [1] 144
starting [1] 1624
starts [1] 3015
State [13] 524 1423 3911 436
511725 5524 567 5823 7115
7224 761 7915
statement [2] 258 3616
statements [23] 1910 285614
1820 298 5011 60141623 62
24524 63619 649 6623 688
92020
STATES [20] 11416 36 316 39
11 409 4519 465 511619 52
23 536 56713 5717 591 7213
747 753
statute [16] 53 434 4424 4720
493 5019 54710 5711 6014
16 6710 6817 718 7319 7425
statutes [1] 494
statutes [3] 618 76 4712
statutory [4] 58 511 538 5419
stepped [1] 5314
sticks [2] 3924 405
still [2] 4723 716
stop [2] 412 796
stopping [1] 227
stops [1] 1423
Stormans [2] 661221
strike [5] 482323 4910 6710 73
19
strong [3] 1511 2710 667
stronger [2] 1413 719
struck [1] 6912
struggled [1] 681
students [2] 2212 7720
studying [1] 3117
stuff [1] 624
subject [4] 1210 248 761417
subjected [1] 925
submitted [2] 8257
substance [4] 1414 1916 275
2920
succeed [4] 2014 52151821
successful [2] 45 109
Sudan [1] 2918
sufficiently [1] 916
suggest [1] 1714
suggested [3] 412 516 2220
suggesting [2] 1920 548
suggestion [1] 6824
suggests [1] 7221
summarizing [1] 239
sunsets [2] 477 482
supervision [1] 4723
supplant [1] 5423
supplement [3] 712 4421 5422
supplements [1] 4719
support [2] 217 2223
supported [1] 518
Suppose [3] 87 2816 405
supposed [1] 3423
SUPREME [3] 1115 7415
Heritage Reporting Corporation Sheet 7 recommendations - SUPREME
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suspect [1] 375
suspend [1] 414
suspicion [1] 249
sweeping [3] 4420 455 541
Syria [3] 40924 4823
Syrian [1] 4013
system [6] 58 71314 431 456
4818
T ts [1] 1613
tailored [3] 1023 481
talked [1] 7111
talks [1] 6814
targeted [1] 4915
tens [1] 4011
terms [5] 51 1516 3225 338 37
7
terrorism [10] 519 82 1720 303
3912 437 5524 568 5824 71
16
terrorist [2] 517 812
terrorists [2] 314 5613
test [4] 6125 659 679 7023
tests [2] 6814
Texass [1] 748
text [8] 52 44925 493 5916 60
25 614 655
textual [1] 442
themselves [2] 5124 627
theory [4] 2371415 4922
theres [30] 612 3014 32919 33
24 34161723 3717 40161618
4291118 435 446 461320 47
8 492711 5321 57912 693 72
1719 7717
therefore [1] 1210
theyll [1] 7117
theyve [7] 2416 3117 3422 47
1819 5713 7218
thinking [2] 1516 717
thinks [2] 1812 3520
third [7] 3925 51710 5224 559
6914 792
third-party [1] 5115
thorough [1] 249
though [7] 137 1714 1912 377
4216 543 7418
thousands [1] 4011
threat [1] 5612
three [9] 511 910 2916 392 551
615 6213 693
three-part [1] 398
throughout [1] 174
tied [1] 5010
tiny [1] 157
tobacco [1] 4513
today [2] 34 233
together [2] 325 466
tomorrow [3] 63517 8116
took [2] 517 385
top [1] 6425
tough [2] 173 196
tougher [1] 6916
track [2] 392223
transfer [1] 221
transformation [2] 2812 296
transgresses [1] 7421
transparent [1] 273
treatment [3] 3122 3421 6525
tremendous [1] 7416
trimmed [1] 7325
troubling [1] 739
true [4] 2121 3425 4616 7123
truly [1] 1725
TRUMP [3] 13 345
truth [1] 2711
try [4] 613 106 596 7814
trying [4] 3421 416 4314 526
turn [3] 1316 294 4510
turns [3] 723 761319
tweeted [2] 6213 6916
two [18] 1014 1519 2420 28319
292 3423 3524 36210 3711
401516 557 6517 6713 729
type [3] 2011 2219 4914
types [4] 105 2157 5715
typical [1] 823
U UN [1] 1817
US [3] 525 464 674
UARG [1] 5424
ultimate [1] 4116
unable [2] 4125 7725
unconstitutional [1] 252
under [20] 4424 816 1313 2025
2511 276 288 2924 3815 433
496892123 5325 7118 768
11
undermine [2] 2510 2719
understand [9] 135 1520 2611
3623 375 4214 4910 528 65
21
undo [1] 607
undone [1] 608
undue [2] 31611
uniform [1] 7411
Union [1] 4814
unitary [2] 236 6923
UNITED [20] 11415 35 316 39
10 409 4518 465 511519 52
23 536 56713 5717 591 7213
747 753
universe [2] 8016 811
universities [1] 7718
university [3] 202224 5125
unlawful [1] 391
unless [2] 1724 7522
unlike [1] 4714
unpack [1] 613
until [1] 41
up [10] 715161617 8814 534
6417 771 7820
urge [1] 138
uses [1] 3920
using [1] 6719
V valid [1] 88
validly [1] 7821
Valley [2] 212225
values [1] 6522
variant [1] 1523
variety [1] 671
vast [5] 31920 251920 2914
vehement [1] 162
versus [2] 36 748
vet [1] 317
veto [1] 4510
vetting [18] 51415 71313 3911
15 4225 469 481518 571824
5817 595 6815 78151822
videos [1] 6214
view [2] 286 5421
viewing [1] 621
views [1] 465
vindicate [1] 518
violated [1] 5916
violates [2] 395 614
virtually [1] 53
virulent [3] 1615 193 6213
virus [1] 588
visa [16] 510 725 899 3622 55
2122 56510 595 606 7656 78
21 7918
visa-processing [1] 589
visas [9] 495 59192023 8011
21 817811
visit [1] 3118
visited [1] 521
vituperative [1] 2818
vote [1] 1816
W Waiver [25] 725 1120 3322 341
37825 38666 56510 595 72
1015 7612361920 7747 79
1417
waivers [6] 511 3025 3613 72
18 731 7920
wanted [1] 6916
wants [3] 231820 7213
war [1] 1720
Washington [3] 1112022
wavelength [1] 349
way [12] 1220 135 181617 239
245 2613 4310 4424 475 67
15 816
ways [1] 1514
weak [1] 7222
weapons [1] 4010
website [1] 762
Wednesday [1] 112
week [3] 236 4133
whatever [6] 1416 2319 247 27
7 2821 291
whenever [1] 4410
Whereupon [1] 826
whether [13] 76 816 144 1589
284 4018 4723 571 6219 767
7818 8012
whos [2] 525 702
whole [3] 713 6922 7724
wide [5] 4918 5758 633 671
will [3] 3819 4214 4624
Williamson [1] 5424
willing [3] 19811 5222
window [3] 35921 7910
wiped [1] 588
within [8] 44 1313 32618 3413
3815 4325 7615
without [3] 649 6819 7013
wonder [1] 1417
word [2] 1023 317
words [2] 149 416
work [2] 52911
working [1] 6517
works [2] 87 761
world [19] 32021 7410 15456
1925 25171920 2610 291523
25 488 6412 7320 8124
worlds [1] 6417
worldwide [6] 312 151 1921 29
22 5714 6815
worrisome [1] 49
worry [1] 3010
wrecking [2] 5018 7425
written [1] 3814
Y yea [1] 416
years [2] 4813 5310
Yemen [2] 364 525
Youngstown [2] 4113 5914
yourself [1] 6612
Z zero [3] 5313 566 6010
Heritage Reporting Corporation Sheet 8 suspect - zero
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P R O C E E D I N G S
(1002 am)
CHIEF JUSTICE ROBERTS Well hear
argument today in Case 17-965 Trump President
of the -- Donald Trump President of the United
States versus Hawaii
Mr Francisco
ORAL ARGUMENT OF GENERAL NOEL J FRANCISCO
ON BEHALF OF THE PETITIONERS
GENERAL FRANCISCO Mr Chief Justice
and may it please the Court
After a worldwide multi-agency review
the Presidents acting Homeland Security
Secretary recommended that he adopt entry
restrictions on countries that failed to
provide the minimum baseline of information
needed to vet their nationals
The proclamation adopts those
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 baseline or had other problems
and it exerts diplomatic pressure on those
countries to provide the needed information and
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to protect the country until they do
The proclamation reflects a foreign
policy and national security judgment that
falls well within the Presidents power under
1182(f) and has been successful which is why
the country of Chad was recently dropped from
the list But it -shy
JUSTICE GINSBURG You -- you
mentioned 1182(f) And the worrisome thing
about this is that the President acts Congress
is the one responsible for making the laws
about immigration It has been suggested in
one of the briefs that we read 1182(f) to allow
the President to suspend entry but only for a
period of time long enough for Congress to say
yea or nay
GENERAL FRANCISCO Your Honor yes
1182(f) is a broad and flexible power in a
narrow area Here however I think that you
dont need to explore those outer limits
because the proclamations meant to help
implement the INA by making sure that we have
the minimum level of information needed to
determine if aliens are admissible under the
INA
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In terms of a time limit I think
thats simply inconsistent with the text of the
statute and inconsistent with virtually every
1182(f) proclamation ever issued Here we
have a fair -shy
JUSTICE SOTOMAYOR Im sorry Mr -shy
General I thought that Congress had looked at
the situation and created a statutory system
that addressed the very concern the President
is expressing Congress said you can have visa
waivers if you -- if you can meet the three
criteria that this special committee of the
President looked at and if you dont you have
to have a very heightened extreme vetting
process And it created that vetting process
and suggested its parameters
More importantly it took terrorist
countries and designated which ones supported
terrorism and added another layer of review and
said if youre 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 to -- to affirm that you
are not a danger to the US
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GENERAL FRANCISCO And -shy
JUSTICE SOTOMAYOR So I -- but what I
see the President doing here is saying Im
going to add more to the limits that Congress
set -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- and to what
Congress said was enough Where does a
President get the authority to do more than
Congress has already decided is adequate
GENERAL FRANCISCO Well there are -shy
theres a lot packed into your question Your
Honor and so let me try to unpack it a little
bit
I think the basic answer is that
1182(f) gives the President the authority to
impose restrictions in addition to those set
forth in the INA but to go to the statutes
that Your Honor was -shy
JUSTICE SOTOMAYOR But -- it might
but -shy
GENERAL FRANCISCO Right but -shy
JUSTICE SOTOMAYOR -- on the very
grounds that Congress has already looked at
GENERAL FRANCISCO And thats exactly
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what I was going to address next Your Honor
The Visa Waiver Program provides a special
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 admissibility of individuals
coming in from some of the riskiest countries
in the world
And 1182(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 Its up to the executive
branch to set it up Its up to the executive
branch to maintain it And its up to the
executive branch to constantly improve it
And here you have something that
really is at the core of 1182(f) since its main
purpose is to help implement the INA by making
sure we have that minimum baseline of
information
And if you look at the proclamation
what were talking about is very basic pieces
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of information Not the ideal but the
minimum Are they reporting terrorism history
information Are they 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 visa 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
doesnt tell us
Once she shows up at the border we
cannot make an intelligent determination as to
whether or not shes admissible under the INA
And thats 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
that it seeks to identify harmful conduct that
a foreign government is engaging in and then
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it imposes sanctions in order to pressure that
government to change
Thats what President Carter did with
respect 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
JUSTICE SOTOMAYOR Can you represent
that no other country that -- that fails all
three of the criteria was excluded from this
list
GENERAL FRANCISCO Well Your Honor
what I can represent is that the -- the -- the
analysis was holistic It wasnt if you failed
any one or the others It was if your overall
score was sufficiently low
JUSTICE SOTOMAYOR So given -shy
GENERAL FRANCISCO 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 below -- below the baseline but was not
subjected to sanctions
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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 weve now seen has been
successful as with the case of the government
of Iraq -- of Chad
JUSTICE KENNEDY In fact if you
compare this proclamation to the Reagan and the
Carter proclamations which I think were one or
two sentences this is longer than any
proclamation that -- that Ive seen in this
particular area
GENERAL FRANCISCO This is Your
Honor the most detailed 1182 -shy
JUSTICE KENNEDY Id say longer
detail -shy
GENERAL FRANCISCO Yes
JUSTICE KENNEDY -- is -- is a better
word
GENERAL FRANCISCO Yes This is the
more detailed 1182(f) proclamation in history
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It is not -shy
JUSTICE SOTOMAYOR General the
proclamations by Reagan and Carter however
were not as broad as this one
GENERAL FRANCISCO Your Honor they
were almost as broad but -shy
JUSTICE SOTOMAYOR And -- and -shy
GENERAL FRANCISCO -- to complete my
answer to Justice Kennedys 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 Reagans or President Carters
covered But its -shy
JUSTICE SOTOMAYOR And more -- and
more immigrants because Carters only applied
to certain immigrants not to all
GENERAL FRANCISCO President Carters
actually applied to all immigrants but then had
an exception much like the waiver provision
here for national interests and humanitarian
concerns So I think President Carters was
actually very similar to the proclamation here
And -shy
CHIEF JUSTICE ROBERTS Is your
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consular non-reviewability argument -- is that
a jurisdictional argument
GENERAL FRANCISCO Your Honor I -shy
yes I think it is a jurisdictional argument
And thats why I dont 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 to -shy
CHIEF JUSTICE ROBERTS I -- I thought
in Sale that we decided that this -- this
wasnt jurisdictional or at least decided the
merits despite the non-reviewability argument
that the government made
GENERAL FRANCISCO I think the second
thing that you just said Mr Chief Justice is
accurate The Court didnt address the
reviewability issue at all And so we dont
think its precedential one way or another
CHIEF JUSTICE ROBERTS Was the -- was
the argument raised in that case by the
government
GENERAL FRANCISCO Yes it was Your
Honor Actually you could -shy
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CHIEF JUSTICE ROBERTS So -- so its
an argument we would have been required to
address if it were in fact jurisdictional
GENERAL FRANCISCO I think so And
so I think one way you could understand it is
that it doesnt go to Article III jurisdiction
though it is a justiciability argument and we
would urge this Court to accept it because we
think its correct
But even if you dont think that its
correct we think that this proclamation
satisfies the merits because it does fall well
within the power of the President under
1182(f)
JUSTICE BREYER If youre about -shy
JUSTICE KAGAN May I turn General
to the constitutional claims in this case
GENERAL FRANCISCO Yes Your Honor
JUSTICE KAGAN And your principal
response to the Establishment Clause claim is
to cite Mandel and to say that once the
government comes forward with a legitimate
reason -- of course national security is the
most important reason one can come forward with
-- the game is over essentially And I just
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want to press on that a little bit
GENERAL FRANCISCO Sure
JUSTICE KAGAN So first I want to
ask whether that means -- you started off by
talking a lot about the process of this
proclamation But I -- I take it that that
argument would apply irrespective of what
process was used
In other words you would have made
the same Mandel argument to the first executive
order in this case or would you not
GENERAL FRANCISCO We would have made
a Mandel argument but it is far stronger given
that you have the process and substance upon
which this proclamation was based because
whatever you -shy
JUSTICE KAGAN Well I guess I wonder
why that is just because when I read Mandel
I dont see anything about process or you have
to meet a certain kind of bar
GENERAL FRANCISCO Uh-huh
JUSTICE KAGAN Mandel really is kind
of you state a reason and this Court stops
GENERAL FRANCISCO And I think that
that is right but I think that when you in
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addition to that have the extensive worldwide
process that we had that resulted in a
cabinet-level recommendation that applied a
neutral baseline to every country in the world
concluded that almost all the world including
almost all of the Muslim-majority world passed
that baseline but a tiny number of countries
didnt I think that whether you apply Mandel
or whether you apply McCreary that makes the
constitutional case in our favor overwhelmingly
strong Its a -shy
JUSTICE KAGAN So let me give you a
hypothetical and its just -- you know I
think that there are ways to distinguish Mandel
in this case but -- but -- but you know just
in terms of thinking about what Mandel really
forecloses here
GENERAL FRANCISCO And I -- because
Mandel there are only two cases in the area
and its -- its hard to understand the full
contours of it
JUSTICE KAGAN I agree So this is a
hypothetical that youve heard a variant of
before that the government has at any rate
but I want to just give you
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So lets say in some future time a -shy
a President gets elected who is a vehement
anti-Semite -shy
GENERAL FRANCISCO Uh-huh
JUSTICE KAGAN -- and says all kinds
of denigrating comments about 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 dot all the
is and they 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
GENERAL FRANCISCO Right
JUSTICE KAGAN Do you say Mandel puts
an end to judicial review of that set of facts
GENERAL FRANCISCO No Your Honor I
dont say Mandel puts an end to it but I do
say that in that context Mandel would be the
starting point of the analysis because it does
involve the exclusion of aliens which is where
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Mandel applies
If his cabinet -- and this is a very
tough hypothetical that weve 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 in his private heart of hearts
he also harbored animus
JUSTICE KAGAN Well the question is
GENERAL FRANCISCO I would also
suggest though -- if I could finish that Your
Honor -- that I think it would be very
difficult for that to even satisfy Mandel
rational basis scrutiny Id need to know what
the rational was Given that Israel happens to
be one of the countrys closest allies in the
war against terrorism its not clear to me
that you actually could satisfy -shy
JUSTICE KAGAN Well -shy
GENERAL FRANCISCO -- Mandels
rational basis standard on that unless it
truly were based -shy
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JUSTICE KAGAN Yes
GENERAL FRANCISCO -- on a
cabinet-level recommendation that was about
national security
JUSTICE KAGAN General Im -- lets
-- this is a out-of-the-box kind of President
in my hypothetical And -shy
(Laughter)
GENERAL FRANCISCO We -- we -- we
dont have those Your Honor
JUSTICE KAGAN And -- and you know
he thinks that there are good diplomatic
reasons and there might -- who knows what the
future holds that there might be good
diplomatic reasons to put pressure on Israel or
to say we want Israel to vote a certain way in
the UN and this is a way to better our
diplomatic hand and so this is what he does
And -- 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 think -shy
GENERAL FRANCISCO Right
JUSTICE KAGAN -- given this context
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in which this hypothetical President -shy
GENERAL FRANCISCO Sure
JUSTICE KAGAN -- is making virulent
anti-Semitic comments
GENERAL FRANCISCO Right And Your
Honor its a tough hypothetical but its why
I also think that this is a relatively easy
case because were 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 though we think that its
wrong that you applied some kind of domestic
establishment clause jurisprudence because
were 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 dont have the extreme
hypothetical that youre suggesting Your
Honor we do have a multi-agency worldwide
review and a cabinet-level recommendation that
applied a neutral baseline And this wasnt
done just by the cabinet secretaries but by the
agencies to every country in the world and
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concluded -shy
JUSTICE SOTOMAYOR Mr General you
just -shy
JUSTICE KENNEDY If -- if you have
that extreme hypothetical would that present a
free exercise or an Establishment Clause claim
or both
GENERAL FRANCISCO It could
definitely present a free exercise clause
challenge Your Honor just as you had a free
speech type claim in the Mandel case
And there would be people who could
bring that claim and who could potentially
succeed on that claim
JUSTICE KENNEDY And -- and the
people that could bring that claim I assume
were relatives of people that were excluded
father son
GENERAL FRANCISCO On free exercise
potentially I think all -shy
JUSTICE KENNEDY Yeah what about a
university
GENERAL FRANCISCO I think a
university could bring a free speech-type claim
under Mandel much -shy
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JUSTICE SOTOMAYOR Why not an
Establishment Clause claim
GENERAL FRANCISCO And -- and -shy
because Your Honor and the reason why I think
they havent pursued those types of claims is
because I dont think they would possibly
support the types of nationwide injunction that
theyre asking for
Your Honor the reason why I dont
think that they could bring an Establishment
Clause claim is because the proclamation
doesnt actually apply to the Respondents It
only applies to aliens abroad who have no
constitutional right to enter
JUSTICE SOTOMAYOR No but the claim
is that it -- that the proclamation is in place
because of a dislike of a particular religion
And I thought the Establishment Clause at its
heart is that we cannot be anything but neutral
with respect to religion or its practice
GENERAL FRANCISCO 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
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standing to challenge the land transfer from
the government to the Christian college on the
ground that it sent a pro-Christian or
anti-atheist message That -shy
JUSTICE SOTOMAYOR But these people
are saying that that negative religious
attitude is stopping them -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- 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
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR Which is one of
the purposes of the INS
GENERAL FRANCISCO And -- and thats
where they might have free exercise or free
speech claims along the type that Justice
Kennedy suggested -shy
JUSTICE SOTOMAYOR Well but I -shy
GENERAL FRANCISCO -- but which
couldnt support a nationwide injunction I
dont think that that gives them an
Establishment Clause claim when the
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proclamation doesnt actually apply to them
because -shy
JUSTICE SOTOMAYOR General today
can we go back to something thats 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 -- Im
summarizing in an incomplete way -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- 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 -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- not extreme
that he can hire or fire anyone he wants and
that he can put in place whatever policy he
wants
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR If we take Justice
Kagans hypothetical President -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- who basically
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says to his review committee I want to keep
out Jews -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- period find a
way Thats their charge
So in that situation why would the
actions of the committee whatever this is
Executive Committee not be subject to great
suspicion and to thorough review -- which
actually wasnt completely -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- done here -shy
given that they are responsible to the
executive -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- and theyve
been told what the outcome of their
deliberations must be
GENERAL FRANCISCO Sure And I have
two responses to that Your Honor
The first is that the Presidents
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
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cabinet member would refuse to comply or resign
in the face of a plainly unconstitutional
order 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 Mandel
standard
Here however you dont have anything
like that Rather you have the cabinet doing
its job through the agencies where they ask
the agencies to construct and apply 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 across the line
JUSTICE SOTOMAYOR General the
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problem is that I dont 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
the litigants or the courts exactly what was
done how what the evaluation and how -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- it was applied
to all those countries in the world
I understand some of the
confidentiality that might concern you but if
the backdrop is the way that Justice Kagan
described it -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- that -- that
heated -shy
GENERAL FRANCISCO Well I -- yeah -shy
JUSTICE SOTOMAYOR -- anti-Semitic
background dont you think that once you get
through the Mandel preliminary 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
GENERAL FRANCISCO Well Your Honor
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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
owes to another coequal branch of the
government there is a very strong presumption
that what is being set out there is the truth
JUSTICE KAGAN You -- you said
something earlier General I want to make sure
that I got it right You said if at the time
the President had said we dont want Muslims
coming into this country -shy
GENERAL FRANCISCO Uh-huh
JUSTICE KAGAN -- that that would
undermine the proclamation
GENERAL FRANCISCO Yes
JUSTICE KAGAN Did I get you right
GENERAL FRANCISCO Yes
JUSTICE KAGAN So I -- I think you
know honestly the difference here then seems
to be is everything that the President said
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effectively that
GENERAL FRANCISCO I think there are
two issues Your Honor 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 embodiment of the executive branch So
that those statements should be out of bounds
But for -shy
JUSTICE KENNEDY But suppose you have
a local mayor and as a candidate he makes
vituperative hate -- hateful statements hes
elected and on day two he takes acts that are
consistent with those hateful statements
Thats -- whatever he said in the campaign is
irrelevant
GENERAL FRANCISCO Your -- Your
Honor if he takes the same oath -shy
JUSTICE KENNEDY You would say
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whatever he said in the campaign is irrelevant
GENERAL FRANCISCO I would say two
things And that was the -- and the second
thing is the point I was about to turn to I
would say yes because we do think that oath
marks a fundamental transformation but I would
also say here it doesnt matter because here
the statements that they principally rely on
dont actually address the meaning of the
proclamation itself
This is not a so-called Muslim ban
If it were it would be the most ineffective
Muslim ban that one could possibly imagine
since not only does it exclude the vast
majority of the Muslim world it also omits
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 multi-agency worldwide review that
applied neutral criteria all across the world
and concluded under those neutral criteria
most of the world was fine but a small part of
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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
JUSTICE BREYER All right Can -shy
can I ask a more -- I did read I think almost
all the 80 briefs Now your time -- what do -shy
CHIEF JUSTICE ROBERTS Yeah dont
worry Please go ahead
JUSTICE BREYER All right All
right All right Almost 80 and I think I -shy
some were repetitive not too many And I
think I know the basic arguments but theres
one question Im left with and it starts with
an assumption which I think you share but I
want to be sure All right
I noticed that the Carter order and
the Reagan order both had case-by-case
exceptions
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER And I looked 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
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individual circumstances such as giving some
examples the following
And then they have to be no
terrorists Well thats the law anyway And
they -- they have to be in the interests of the
United States And there cant be undue
hardship which the only time the word
hardship appears in the immigration laws it
says extreme hardship
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER So undue must be
less than extreme
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER Okay So Im -- then
they have a list people with foreign contacts
previously established business reasons
theyve been here studying or other long-term
activity they want to visit or reside with a
close family member they have a disease or
something that they need -shy
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER -- treatment for
they -- previously been employed And there
are about five other things
GENERAL FRANCISCO Yeah
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JUSTICE BREYER All right Focus on
that class of individuals
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER Now in countries -shy
150 million people all together there must be
quite a few who have -- do fall within that
class So -shy
GENERAL FRANCISCO Well yes Your
Honor but theres only a small number of
people that seek to come into our country
JUSTICE BREYER Well thats what Im
asking about
GENERAL FRANCISCO Yeah
JUSTICE BREYER You see
GENERAL FRANCISCO Yeah
JUSTICE BREYER Thats now -- if you
-- you think -- now as far as were concerned
if they fall within that class there -shy
theres no reason given here why they should be
excluded other than the -- the normal
processes
GENERAL FRANCISCO Well a couple of
responses Your Honor
JUSTICE BREYER What
GENERAL FRANCISCO First in terms of
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the numbers -shy
JUSTICE BREYER Im not asking about
the numbers
GENERAL FRANCISCO Oh oh youre not
asking -shy
JUSTICE BREYER I want to ask about
GENERAL FRANCISCO So -- so in terms
of the reason -shy
JUSTICE BREYER Yeah
GENERAL FRANCISCO -- they should be
excluded one of the principal purposes of the
proclamation is to exert diplomatic pressure on
governments in order to get them to change and
provide us with the information -shy
JUSTICE BREYER So you think they
should be excluded
GENERAL FRANCISCO Not if they meet
the criteria for the -shy
JUSTICE BREYER Not if they meet the
criteria
GENERAL FRANCISCO -- for the waiver
JUSTICE BREYER Okay Okay So
theres -shy
GENERAL FRANCISCO Thats why we have
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-- thats why we have the waiver
JUSTICE BREYER Thats -- thats -shy
thats what I thought you would say
GENERAL FRANCISCO Yeah
JUSTICE BREYER Then I get -- can ask
my question Sorry
GENERAL FRANCISCO Yes
JUSTICE BREYER But I want to be sure
were the same wavelength
GENERAL FRANCISCO Yes
(Laughter)
JUSTICE BREYER Okay 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 theres the
business community complaining theres the
academic community there were 46 scholars at
Harvard there -- there are families in the
Lisa Blatt brief you know that -- that they
say we were trying to get medical treatment and
nobody told us about this and -- and theyve
only admitted two and theres supposed to be
guidance and -shy
GENERAL FRANCISCO Thats not true
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JUSTICE BREYER -- you havent put in
the guidance and -- and -- and the most there
are is 100 And so there is my question If
you have done the same thing that the Reagan
people did and the Carter people did then it
might be -- Im not expressing a definite
opinion -- but well youve got the same thing
here but if this is as one brief says just
window dressing and they never apply it -shy
GENERAL FRANCISCO Right
JUSTICE BREYER -- then you have
something new and different going well beyond
what President Reagan did
GENERAL FRANCISCO Sure
JUSTICE BREYER Okay So I want to
know how do I find out -- how do I find out
when there is not that information in the
brief do we have to -- can we have another
hearing Do we send it back Do we say look
the government of course thinks this isnt
window dressing -shy
GENERAL FRANCISCO Right
JUSTICE BREYER -- but the other side
says there are only two people no notice
nobody knows
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GENERAL FRANCISCO So Your Honor
two -shy
JUSTICE BREYER There are people in
Yemen there are people in Somalia -shy
GENERAL FRANCISCO Yeah
JUSTICE BREYER -- decent people
Business -- you see my point
GENERAL FRANCISCO Yes
JUSTICE BREYER Whats the answer
GENERAL FRANCISCO And two responses
JUSTICE BREYER Yes
GENERAL FRANCISCO Our reply brief
has our most -- most current number on waivers
and I believe the number at page 17 footnote
-- well its -- its over 400 I cant
remember the exact statement
JUSTICE BREYER All right Thats
400 out of 150 million
GENERAL FRANCISCO And then -shy
JUSTICE BREYER And -- and is it well
publicized in these countries that they know
all they have to do is go to the visa office
and say I understand the thing I want an
exception
GENERAL FRANCISCO No Your Honor
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and I have two -- two responses -shy
JUSTICE BREYER Yeah
GENERAL FRANCISCO -- to that One
is I dont know how well publicized it is but
I suspect that people understand how to get it
My second principal response is
though that frankly in terms of the
legality I think that the waiver is not
necessary although it is a very good thing
which is why -shy
JUSTICE BREYER Not necessary There
-- there you have President Reagan -shy
GENERAL FRANCISCO -- which is why
most -- which is why most governments dont -shy
which is why its -- its a good thing which
is why most of these proclamations often have
them But theres nothing in -shy
JUSTICE BREYER Okay So you want me
to consider -shy
GENERAL FRANCISCO -- the law that
actually requires it
JUSTICE BREYER Thats what you want
You want me to consider the lawfulness of this
order on the assumption that there is no
waiver
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GENERAL FRANCISCO I dont -shy
JUSTICE BREYER Which is not what -shy
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 here thats the -shy
thats the -shy
GENERAL FRANCISCO Right The answer
to my -- your question Your Honor is no I
dont want you to consider the proclamation on
the -- on the hypothetical situation that it is
what it isnt but I do think that the
proclamation as written and as applied falls
well within the Presidents authority under
1182(f)
Thank you Mr Chief Justice
CHIEF JUSTICE ROBERTS Thank you
General We will afford you rebuttal time
GENERAL FRANCISCO Thank you
CHIEF JUSTICE ROBERTS Mr Katyal
ORAL ARGUMENT OF NEAL K KATYAL
ON BEHALF OF THE RESPONDENTS
MR KATYAL Thank you Mr Chief
Justice and may it please the Court
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The executive order is unlawful for
three reasons It conflicts with Congresss
policy choices It defies the bar on
nationality discrimination something you never
heard my friend talk about And it violates
the First Amendment
Congress has already specified a
three-part solution to the very same problem
the order addresses Aliens seeking entry from
countries that dont cooperate with the United
States in vetting including state sponsors of
terrorism and countries that provide inaccurate
information
First aliens have to go through the
individualized 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 the order uses Congress rejected a
ban Instead it used carrots When countries
cooperated theyd get extra credit a track -shy
faster track for admission Legislation to use
big sticks like nationality bans failed
And third Congress was aware
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circumstances could change on the ground so it
required reporting to them so it could change
the law
CHIEF JUSTICE ROBERTS Well lets
take big sticks fail Lets suppose that the
intelligence agencies go to the President and
say we have 100 percent solid information
that on a particular day 20 nationals from
Syria are going to enter the United States with
chemical and biological weapons They could
kill tens of thousands of Americans
In that situation could the President
ban the entry of Syrian nationals on that one
day
MR KATYAL He could for two reasons
Theres two different arguments Theres the
nationality discrimination ban 1152 and then
theres you know whether or not this comports
with Congresss policy judgments
And with respect to both I think it
would It wouldnt be nationality
discrimination for the reasons Judge Sentelle
said in LAVAS when you have an emergency
fast-moving situation like the Syria example
youre saying
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CHIEF JUSTICE ROBERTS Well just to
stop interrupt you there I mean what if
its a week What if its a week a month from
now Thats what the intelligence information
is
In other words Im trying to -shy
MR KATYAL Right
CHIEF JUSTICE ROBERTS -- respond to
your point that it has to be an immediate
decision
MR KATYAL Yeah So I think you
know this Courts dealt with that in
Youngstown and Hamdan and said look you know
the Presidents going to get a pass absolutely
on you know what he says the emergency is
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 460 days on -- later
Mr Chief Justice Hes never even introduced
legislation about this So were so far from
that hypothetical well concede the
hypothetical
CHIEF JUSTICE ROBERTS Well imagine
-- imagine if you can that Congress is unable
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to act when the President asked for
legislation
(Laughter)
MR KATYAL Right
CHIEF JUSTICE ROBERTS And someone
introduces a bill saying lets authorize -shy
first of all the President may have qualms
about sharing that absolute intelligence
broadly but lets say theres a bill
introduced to say lets authorize the President
and theres a bill introduced to say lets
block the President and neither bill moves
MR KATYAL 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 -- theres only one
problem hes identifying which is countries
not cooperating
Hes not talking about people coming
in or something like that like your
hypothetical And with respect to that
Congress has said heres how we deal with it
We deal with it with the individualized vetting
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system which pushes all the burdens on a
person coming in Thats 1361
Youve got to show biometric ID under
the statute Youve got to have an in-person
interview if theres any risk that the person
is from a country thats a state sponsor of
terrorism like your hypothetical or anything
else
So Congress has really said in a
robust way heres how we would deal with it
And to the extent countries arent cooperating
we offer carrots
Congress rejected exactly what theyre
trying to propose here which is a flat
nationality ban And thats where I think the
force of our argument lies with respect to the
first point which is this is countermanding
Congresss policy judgments
My friend on the other side actually
in his brief -shy
JUSTICE ALITO Well Congress did -shy
Congress did act It enacted 1182(f)
MR KATYAL Correct
JUSTICE ALITO Why doesnt this fall
squarely within the language of 1182(f)
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MR KATYAL For -- for -- we have
both textual reasons that its not a class for
reasons Justice Breyer was talking about Its
not perpetuated -- its perpetual like Justice
Ginsburg was talking about But we think
theres a much bigger point Justice Alito
which is -shy
JUSTICE ALITO Well maybe you could
talk about the text Its not a class
Doesnt 11 -- doesnt 1182(f) say whenever the
President finds that the entry of any aliens -shy
MR KATYAL Correct
JUSTICE ALITO -- or any class of
aliens So put class aside although I dont
really see why people who are nationals of a
particular country dont constitute a class
What about any aliens
MR KATYAL Right So we think it is
any you know -- because the power in 1182 is
so broad and sweeping and does allow the
President to supplement what Congress has done
we think that you have to -- you have to be
careful and read limit -- you have to read it
just the way you read every other statute to
say how do we harmonize that broad text of
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1182(f) with the rest of the INA
And our point in our briefs which I
dont 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 you know and end so-called chain
migration or anything like that He could do
-- countermand any of the provisions of the INA
and turn it into a line item veto
So for that reason we think there
has to be some limit Thats something this
Courts dealt with in you know the tobacco
case or -shy
JUSTICE ALITO Well does this
proclamation do anything like that Does this
proclamation purport to establish a new
permanent immigration policy for the United
States
MR KATYAL Absolutely Your Honor
This is a perpetual policy that bans It does
exactly what Congress in 1965 said you cant
do And it countermands Congresss
fine-grained reticulated judgment from 2001
2015 and several other times which is to say
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instead of these flat bans were going to have
-- were going to balance foreign policy
considerations economic considerations like
the US companies brief humanitarian image
of the United States views all of that
together and said we wont do the flat ban
Instead were going to have a much
more fine-grained approach with individualized
vetting and carrots for the countries that
dont disagree -- that dont cooperate
JUSTICE ALITO What is your basis for
saying that it is perpetual
MR KATYAL Well theres nothing in
the order that ends it And you heard my
friend say oh that would doom all executive
orders But thats not true Half of these -shy
JUSTICE KENNEDY I thought it had to
be reexamined every 180 days
MR KATYAL No thats not what it
says It says theres a report that has to
come in at 180 days and nothing happens at the
end of the report
JUSTICE KENNEDY Well that -- that
indicates there will be a reassessment
MR KATYAL Well in -shy
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JUSTICE KENNEDY And then the -- and
-- and the President has continuing discretion
MR KATYAL Justice Kennedy this
argument wouldnt be there if there was
anything about reassessment the way there are
in about half the orders including the Cuba
order which says it sunsets once the crisis
ends Theres nothing like that in this
And its just like a reporting
requirement to Congress in which Congress isnt
necessarily required to do anything Congress
has statutes like that all the time
This is that And thats why this is
unlike any other executive order If you go
back and look at all 43 executive orders that
Presidents have issued none of them have even
arguably countermanded Congresss judgment in
the area Theyve all been consistent
Theyve all been supplements
JUSTICE KENNEDY Well the statute
says first that -- that -- that 1182 for such
period as he deems necessary and he can have
continuing supervision over whether its still
necessary
MR KATYAL Again we wouldnt have a
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problem with that if it was tailored to a
crisis it says it sunsets and then you know
could be re-upped or something like that
Thats not what this says This is about a
perpetual problem
JUSTICE KENNEDY So you want the
President to say Im convinced that in six
months were going to have a safe world
MR KATYAL Well -- well -- well no
Justice Kennedy thats not our argument Our
argument is here the President is identifying
something that is a perennial problem Our
brief says it goes back 100 years you know
when the Soviet Union was around we dont 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
CHIEF JUSTICE ROBERTS What if the
military advisors tell the President that in
their judgment the President ought to order a
strike an air strike against Syria and the
President says well -- does that mean he cant
because you would regard that as discrimination
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against a majority Muslim country
MR KATYAL Absolutely not Theres
nothing to do with the text of the statute
The 1152 statutes about discrimination and the
issuance of visas And thats all that -shy
CHIEF JUSTICE ROBERTS So under
1182(f) you would say that theres no problem
under that provision
MR KATYAL Well under 1182 as I
understand it was a strike And so I dont
think theres any immigration issue in your
hypothetical I might be misunderstanding it
Mr Chief Justice
CHIEF JUSTICE ROBERTS Well any type
of targeted action that would have a impact on
the Muslim population
MR KATYAL Absolutely We think the
President has wide authorities to do things
that have impacts on the Muslim population
Take the laptop ban that was introduced -shy
CHIEF JUSTICE ROBERTS Why under your
theory wouldnt that constitute or the argument
would be that thats discrimination under your
Establishment Clause argument -shy
MR KATYAL Oh
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CHIEF JUSTICE ROBERTS -- that thats
discrimination on the basis of faith because he
has said in the past if you accept the -shy
MR KATYAL Yeah
CHIEF JUSTICE ROBERTS -- accept the
arguments that he -- he is anti-Muslim
MR KATYAL Not at all Your Honor
and no President has run afoul of this you
know and thats because here the President
and his advisors have directly tied this policy
to those statements And the red brief at page
70 I think is the greatest illustration of
that
Thats 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 INA is
that the President can take a wrecking ball to
the statute and countermand Congresss
fine-grained judgments that -shy
CHIEF JUSTICE ROBERTS He can never
-shy
JUSTICE KAGAN Well you might think
-shy
JUSTICE GORSUCH Mr Katyal -- Mr
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Katyal if I might on -- on the statutory
question before we leave it Weve been
proceeding so far on the assumption that we can
reach the merits but the government makes the
argument for example that aliens who are
removed from this country have to bring their
claims personally and third parties cant
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
who are not present in this country Whats
the answer to that
MR KATYAL Well several This is
not a third-party case These are United
States citizens bringing this challenge in a
state -shy
JUSTICE GORSUCH Oh behalf of -shy
MR KATYAL -- of the United States
JUSTICE GORSUCH -- aliens not
present in the country
MR KATYAL Well but they are
directly -- they are directly harmed
themselves Let me just give you one example
Not just the State of Hawaii whose university
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is directly impacted but lets just take for
example the Alomari -- Mr Alomari the
10-year-old in the PARS Equality brief Justice
Breyer that you were referring to This is a
10-year-old daughter in Yemen who is -- whos
trying to come here because she has cerebral
palsy
JUSTICE GORSUCH I understand that
but those arguments dont work with respect to
aliens present in the country So why do they
work for aliens who are not present in the
country
MR KATYAL Because I -shy
JUSTICE GORSUCH Those very same
arguments would not succeed
MR KATYAL Well -shy
JUSTICE GORSUCH I think youd
concede that they wouldnt succeed for aliens
present -shy
MR KATYAL Right And they dont
succeed because there you have a better
plaintiff might not be willing to bring them in
the United States and thats why the court
you know says no third party But here
these folks are directly impacted
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And the most important thing to say is
Sale answers this You heard my friend concede
Sale was jurisdictional the issues in Sale
Thats how they briefed it up Thats how he
just described it This Court had exactly that
situation United States plaintiffs and it
reached the merits
Our statutory point to you is that if
you accept this order youre giving the
President a power no President in 100 years has
exercised an executive proclamation that
countermands Congresss policy judgments He
has zero examples to say that when Congress has
stepped into the space and solved the exact
problem that the President can then come in
and say No I want a different solution
If you do that youd -- its not just
family preferences that youre allowing him to
get rid of youd get rid of all sorts of even
small things in the Code or big things like
theres a preference for specialty occupations
like software engineers in the INA The
President could say The economics are such
Im going to ban software engineers from going
to California or something like that under that
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sweeping 1182 power
JUSTICE KAGAN I -- I guess the
question though Mr Katyal is maybe youre
entirely right that 1182(f) needs to have some
limits to prevent the President from doing
something thats completely contrary to another
section of the statute
But youre suggesting well the
President cant do anything thats not
contemplated by the rest of the statute
MR KATYAL That is not our argument
JUSTICE KAGAN Okay 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 -shy
MR KATYAL Right
JUSTICE KAGAN -- between what the
President is doing and another statutory
provision
MR KATYAL So our view is that the
President can supplement he just cant
supplant In this Courts decisions in the
Brown amp Williamson case and the UARG greenhouse
gas and Concepcion and Abilene Cotton the
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Savings Clause cases all say there are three
things you look at And its not a flat bar
It cant be like a direct contravention Even
they say its not a direct contravention in
their reply brief at page 19
So the three things are first can
these two solutions coexist or not Second
has Congress prescribed a reticulated
comprehensive scheme And third you know is
there any other indication that Congress
considered 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 -shy
Congress has a comprehensive reticulated scheme
that deals with the exact single problem that
hes identified which is countries not
cooperating It cant coexist with the
solution of a flat ban It makes no sense for
example to have the in-person visa requirement
-- visa interview which is in 12 -shy
1202(h)(2) which is for -- for people who come
from state sponsors of terrorism or who have a
group with a likelihood of providing
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inaccurate information Congress said there
has to be an in-person interview for that
It doesnt make sense to say well
youre going to have a flat ban It doesnt
make sense to have a Visa Waiver Program which
is all about countries that provide zero
information to the United States -- state
sponsors of terrorism and the like -- and say
were going to give you a carrot and then say
oh no forget about the Visa Waiver Program
JUSTICE ALITO Can -- can you imagine
any situation in which the threat of the
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
MR KATYAL Yes
JUSTICE ALITO You cannot imagine any
such situation
MR KATYAL Yes I can And the
President would have a robust authority to deal
with that That is not our argument So -shy
JUSTICE KENNEDY And your argument is
that courts have the -- the duty to review
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whether or not there is such a national
exigency thats for the courts to do not the
President
MR KATYAL No I think you have
wide deference Justice Kennedy Its exactly
what you said when you joined Justice Breyers
opinion in Hamdan which is as long as -- you
know Presidents have wide berth in this area
but if -- you know certainly if theres any
sort of emergency that precludes it
But when you have a statute that
considers the very same problem and theres
nothing new that theyve identified in this
worldwide review process that Congress didnt
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 the -shy
CHIEF JUSTICE ROBERTS But thats in
the abstract I mean they may have more -shy
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
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And it seems to me a difficult
argument to say that Congress was prescient
enough to address any particular factual
situation that might arise
MR KATYAL Well that again -shy
thats again Mr Chief Justice not our
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 But here -shy
CHIEF JUSTICE ROBERTS What about -shy
what about a change of administration in a
particular country -shy
MR KATYAL Yes
CHIEF JUSTICE ROBERTS -- in which
perhaps the vetting procedures are not going to
be taken seriously
MR KATYAL Right
CHIEF JUSTICE ROBERTS That Congress
could not have anticipated
MR KATYAL Well but again
Congress anticipated a country that is a state
sponsor of terrorism and even for -- with
respect to that providing no information and
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indeed fomenting against the United States
Congress said oh were not going to have a
nationality ban You know they flatly banned
that and said were going to have
individualized vetting and this Visa Waiver
Program carrot to try and deal with that you
know dangerous regime
Now again I can imagine an emergency
situation in which the President would have
even greater authority for that But here we
are 460 days later and I would caution the
Court not to make a decision about the
emergency youre concerned about That can be
bracketed as it was in Youngstown as it was in
Hamdan This is so far from that
The text of 1152 is flatly violated
here It says there shall be no discrimination
on the basis of nationality with the issuance
of visas
That is 39 percent of all the visas
this executive order covers Its not a small
part Its 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
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become part of our long-term polity This
executive order flatly contradicts that
Now if you accept his
interpretation -- he says well you know
were discriminating at the entry side not at
the visa side If you do that you are giving
the President the power to undo -- and hes
actually just done it -- hes undone the ban on
nationality-based discrimination Hes imposed
country quotas of zero for these countries at
the border
CHIEF JUSTICE ROBERTS If your -shy
your argument based on discrimination based on
the campaign statements is there a statute of
-- no the one that you do make based on the
campaign statements is there a statute of
limitations on that or is that a ban from
presidential findings for the rest of the
administration
MR KATYAL So Mr Chief Justice I
first want to be very clear about this Our
point about 1152 and the discrimination has
nothing to do with any campaign statements or
anything else
Its purely the text of the
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proclamation which is nationality-based
discrimination through and through Judge
Sentelle said you couldnt imagine a clearer
text than this And this is -- it violates it
Now -shy
CHIEF JUSTICE ROBERTS My question
was on the -shy
MR KATYAL -- youre asking about
the First Amendment
CHIEF JUSTICE ROBERTS Yes
MR KATYAL I just want to make
absolutely clear that were -- thats not -shy
you know you dont need to do any of that for
purposes of 1152 And that would knock out
39 percent of the most important part of the
executive order
CHIEF JUSTICE ROBERTS My question
of course -shy
MR KATYAL Yes Now Im getting -shy
CHIEF JUSTICE ROBERTS -- was not on
1152
MR KATYAL Yes Im getting there
Okay
With respect to that we dont think
-- we think that the test as this Court has
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said a reasonable objective observer viewing
all the statements and we think absolutely
my friend is right you shouldnt look to
campaign statements in general or stuff like
that 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 70
of our red brief you have a very good example
of this
After the executive order this latest
executive order was promulgated the President
tweeted these three virulent anti-Muslim
videos And then the press spokesman was
asked What does this mean What is this
about And the answer was The President has
spoken about exactly this in the proclamation
CHIEF JUSTICE ROBERTS My question
was whether or not the inhibition on the
ability to -- to enter one of the proclamations
applies forever
MR KATYAL Right No I think the
President could have disclaimed -- you know
easily moved away from all of these statements
you know but instead they embraced them
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Thats the difference
And so absolutely the President
would have wide berth to say thats a -shy
CHIEF JUSTICE ROBERTS So if
tomorrow he issues a proclamation saying hes
disavowing all those statements then the next
day he can reenter this proclamation
MR KATYAL Thats exactly what this
Court said in McCreary This Court in McCreary
said you know the same policy can be
constitutional if said -- if promulgated by one
entity and not by another depending on the
circumstances around it
CHIEF JUSTICE ROBERTS Is your answer
to my question yes
MR KATYAL Yes The answer is -shy
CHIEF JUSTICE ROBERTS Tomorrow he
issues a proclamation disavowing those
statements -shy
MR KATYAL Absolutely And thats a
CHIEF JUSTICE ROBERTS -- then the
next day he could reenter this and your
discrimination argument would not be
applicable
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MR KATYAL And -- and -- and Mr
Chief Justice thats exactly what I told the
Ninth Circuit in May The President didnt do
that Thats whats -- thats -- you know
thats what a reasonable objective observer -shy
JUSTICE SOTOMAYOR So if another -shy
JUSTICE ALITO Mr Katyal would any
reasonable observer reading this proclamation
with -- without taking into account statements
think that this was a Muslim ban
I mean there are -- I think there are
50 predominantly Muslim countries in the world
Five -- five countries -- five predominantly
Muslim countries are on this list
The population of the -- of the
predominantly Muslim countries on this list
make up about 8 percent of the worlds Muslim
population
MR KATYAL Absolutely
JUSTICE ALITO If you looked at the
10 countries with the most Muslims exactly
one -shy
MR KATYAL Right
JUSTICE ALITO -- Iran would be on
that list of the top 10
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MR KATYAL Right
JUSTICE ALITO So would a reasonable
observer think this was a Muslim ban
MR KATYAL If it were -- if it were
just the text of the order alone it might
raise eyebrows for fit and other reasons that
the briefs go into but we wouldnt be here
We absolutely agree that just -- its the same
test as in Lukumi and other cases You have to
look to all the circumstances around it that
are said the publicly available ones
You know and Justice Alito the fact
that the order only come -- encompasses some
Muslim countries I dont think means its not
religious discrimination For example if Im
an employer and I have 10 African-Americans
working for me and I only fire two of them I
dont think -- you know and say well Ive
left the other eight in I dont think anyone
can say thats not discrimination
JUSTICE ALITO No I -- I understand
that And it is one of our fundamental values
that there is religious freedom here for
everybody in that number -- adherence to every
religion are entitled to equal treatment
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My only point is that if you look at
what was done it does not look at all like a
Muslim ban There are other justifications
that jump out as to why these particular
countries were put on -- on the list
So you -- it seems to me the list
creates a strong inference that this was not
done for that invidious purpose
MR KATYAL Justice Alito I think if
it were just the list I think wed be right -shy
youd be right although Id point out that
you yourself in the Stormans case said that
its a religious -- it raises an inference of
religious gerrymander of the burden imposed
falls almost exclusively on those with
religious objections
This is a ban that really does fall
almost exclusively on Muslims between
902 percent and 998 percent Muslims And so
it does look very much like what you said in
Stormans But even then we wouldnt be here
if it werent for all of the different
statements
And the best evidence of this about
what a reasonable objective observer would
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think is to look at the wide variety of amicus
briefs in this case from every corner of
society representing millions and millions of
people from the US Conference of Catholic
Bishops which calls it blatant religious
discrimination
JUSTICE GORSUCH Mr Katyal on that
its been a long time since this Court has used
the Lemon test reasonable observer even to
strike down a domestic statute let alone
something with purely international
application What -- what do we do about that
MR KATYAL Yeah 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 and our protest of
King George which is all about using the
immigration power to exclude people of a
different faith And thats what our
Constitution is about So thats the first
thing
And the second is we dont think you
have to get into Lemon and all these other
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tests that you all have struggled with I
think this Court in Lukumi was very clear in
saying that when youre talking about
denigration of religion all the tests point in
the same direction
JUSTICE SOTOMAYOR Mr Katyal you
said something earlier you said you wouldnt
be here if all of those statements the
background statements were not made Do you
mean that on all of your bases You wouldnt
be here on the Establishment Clause claim
MR KATYAL Only on the Establishment
Clause claim not on anything else And our
point is you know he talks about for
example this worldwide vetting process
Remember his own argument on 1182 is
the statute puts the President -shy
JUSTICE SOTOMAYOR So lets -- lets
go back to not being here without the
statements Clearly the statements even
conceded by your adversary do give you a basis
to look behind all right the reason
So if were looking behind it how do
you deal with the Generals suggestion that
there was a cleansing that occurred because of
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all of the agencies and departments who
participated in this process
MR KATYAL Yeah So theres three
things Number one is that his -- his own
argument is that 1182 puts the President in the
drivers seat so the cabinets not important
Its the Presidents proclamation
Second the order itself says in its
first lines it harkens back to Executive
Orders 1 and 2 and it says its an outgrowth
of that So it was infected by the same thing
that was struck down on Establishment 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 ban
a non-politically-correct ban and the like
So given all of those things but in
particular given the fact that 1182 itself
forces the President to make the proclamation
its the Presidents proclamation so I dont
think you even have to get into this whole
unitary executive thing but I do agree with
you Justice Sotomayor that thats another
problem which is theyre coming before the
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Court and saying Nope its the President
whos in charge And now theyre saying here
Oh no no no its these other people
This is the Presidents proclamation
through and through No President has ever
said anything -- anything like this And
thats what makes this different
And the President -shy
JUSTICE KAGAN And -- and yet Mr
Katyal 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 evaluating the adequacy of those
national security interests which for the most
part weve said courts are not equipped to do
MR KATYAL Right Were not asking
you to second-guess a national security
judgment at all with the purpose of the
Establishment Clause
Were saying you just have to look to
what a reasonable objective observer would do
Thats the ordinary test that youve used in
cases like Lukumi Is there an official
purpose to disparage a religion Here there
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very much is Thats you know everything
that the President has said and that the order
itself embodies Thats our fundamental
problem
JUSTICE BREYER What do you think -shy
its a -- its a -- its still something Im -shy
Im thinking about perhaps to the side but
the statute you point to one of the ones that
is stronger for you There are obviously
objections to what youre saying in quite a few
briefs all right but the one that you talked
about it does say you have to have an
interview with a consular official if the
person is from a country officially designated
by the Secretary as a state sponsor of
terrorism It does say that
So theyll say but we do have that in
respect to everyone under the exception So
there isnt much problem Weve gone beyond
that in respect to other people All right
Take their argument for a moment
Because my question is which I
couldnt find in the briefs is is it true -shy
Im just taking what they say -- that really
that isnt so they dont publicize it they
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havent put forth a guidance people dont know
they can come in and qualify for this
And if it turns out that that is
something that is important to the lawfulness
of the order because there are many many
categories there -shy
MR KATYAL Right
JUSTICE BREYER -- what do we do
MR KATYAL So two things Number
one this waiver process has excluded -- and
you have this in the PARS Equality brief at
page 14 A 10-year-old with cerebral palsy who
wants to come to the United States to save her
life and she cant move or talk The
10-year-old was denied a waiver Justice
Breyer
He says theres 430 people who have
gotten waivers Theyve never told you the
denominator and theres no publication of this
process and how -- how often it is And the
data that we do have suggests as a matter of
percentages its very weak
Just to give you some evidence of
that just the State of Hawaii has gotten about
1000 letters from people most of which say
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were not even getting waivers on the like
JUSTICE GORSUCH That -shy
MR KATYAL Weve heard very few
instances -shy
JUSTICE GORSUCH -- raises a question
of remedy for me
MR KATYAL Yes
JUSTICE GORSUCH We have this
troubling rise of this nationwide injunction
cosmic injunction -shy
MR KATYAL Yeah yeah
JUSTICE GORSUCH -- not limited to
relief for the parties at issue or even a class
action
MR KATYAL Right
JUSTICE GORSUCH And near as I can
tell thats -- thats a really new development
where a district court asserts the right to
strike down a -- a federal statute with regard
to anybody anywhere in the world
MR KATYAL Yeah
JUSTICE GORSUCH What -- what do we
do about that
MR KATYAL Obviously the injunction
here has been trimmed by this Court itself and
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others And I do think -- I -- I share your
impulse Justice Gorsuch Thats something
that I think lower courts are debating right
now in a number of different contexts like the
contraception case and the like
I think this case is the poorest
example to get into it because of United States
versus Texass point which is this is an
immigration case and Article I Section 8 puts
Congress in the drivers 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 doesnt make a
tremendous amount of sense It would almost be
an advisory opinion
Our fundamental point to you though
is that Congress is in the drivers seat when
it comes to immigration and that this
executive order transgresses the limits that
every President has done with this proclamation
power since 1918 And to accept it here is to
accept that the President can take an iron
wrecking ball to the statute and pick and
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choose things that he doesnt want for purposes
of our immigration code That cant be the law
of the United States
CHIEF JUSTICE ROBERTS Take five
extra minutes Okay
MR KATYAL Okay
(Laughter)
CHIEF JUSTICE ROBERTS You dont have
to
(Laughter)
MR KATYAL Well if there are -- if
there are any other questions Im happy to
take anything Okay Thank you
CHIEF JUSTICE ROBERTS Thank you
counsel
Five minutes for rebuttal General
REBUTTAL ARGUMENT OF GENERAL NOEL J FRANCISCO
ON BEHALF OF THE PETITIONERS
GENERAL FRANCISCO Mr Chief -- Mr
Chief Justice and may it please the Court
I -- I really do have just a few quick
points unless Your Honors have additional
questions
Justice Breyer I did want to respond
in more detail to your question about how the
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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
the waiver -- the visa officer first determines
whether the person is otherwise admissible
under other provisions of the INA
If theyre inadmissible you never
even get to the proclamation Then for those
people who are not inadmissible under other
parts of the INA like 1182(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 youre not subject to an exception
then the consular officer him or herself
turns to the waiver provision and applies the
criteria of the waiver provision
JUSTICE GINSBURG How do you deal
with the -shy
GENERAL FRANCISCO So it does get
applied in every single case
JUSTICE GINSBURG How -- how do you
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deal with the example that was brought up of
the child with cerebral palsy
GENERAL FRANCISCO Your Honor the
waiver is built to address those issues I am
not familiar enough with the details of that
case to tell you what happened in that
particular case But thats what the waiver
provision -shy
JUSTICE BREYER But thats -- thats
you see -shy
GENERAL FRANCISCO -- is intended to
address
JUSTICE BREYER Youve read the
briefs as have I All right Now there are
some that lists about 10 or 15 instances like
the cerebral palsy One has Parkinsons Then
theres another brief that lists all the people
who are professors scholars at universities
and there are a lot And -- and then there are
people they list the students from these
countries a lot
GENERAL FRANCISCO Yeah
JUSTICE BREYER And then the business
community lists a -- a whole bunch and says my
goodness they have been unable to get -- we
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dont know whats going on
And then they say Well whats going
on is nothing is going on
GENERAL FRANCISCO Well Your Honor
-shy
JUSTICE BREYER Now I dont -- Im
not taking sides on that Im just saying I
dont know
GENERAL FRANCISCO Right And the
principal purpose of the proclamation is of
course to 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 Im 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
admissible
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 dont and doesnt tell us we
cannot intelligently make the admissibility
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determination
Third Id like to address the
1152(a)(1)(A) point about nationality-based
discrimination
JUSTICE SOTOMAYOR General could you
stop just one second
GENERAL FRANCISCO Yes Your Honor
of course
JUSTICE SOTOMAYOR I for one am like
Justice Breyer concerned about is this window
dressing or not Whats in place to ensure
its not What are you personally doing to
represent to us that it is in fact a real
waiver process -shy
GENERAL FRANCISCO Your Honor State
Department consular officers automatically
apply the waiver process in the course of every
visa application And they are doing that
which is why there have been -- and I looked at
our brief -- 430 waivers that have been issued
since -shy
JUSTICE SOTOMAYOR Have you bothered
-shy
GENERAL FRANCISCO -- the
proclamation was issued
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JUSTICE SOTOMAYOR -- to look to see
if there are reasons for all of those peoples
exclusions
GENERAL FRANCISCO Your Honor I
cannot claim that I have looked into every
individual case
JUSTICE KENNEDY Could you make your
1152 point
GENERAL FRANCISCO Yes Your Honor
1152(a)(1)(A) addresses one thing the issuance
of immigrant visas It doesnt address the
broader question over whether somebodys
allowed to enter in the first place
Thats governed by 1182 including
1182(f) So essentially 1182 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 1152(a)(1)(A) is
one of the rules that governs how we distribute
visas amongst that group thats eligible to
come in
And its not just nationality-based
distinctions that it applies to It also
applies to things like place of residence So
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once you have that universe of eligible people
1152(a)(1)(A) governs how you distribute them
But lets 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 non-immigrant visas to people who
arent allowed to enter but we wouldnt have
to allow anyone to enter and we wouldnt have
to issue any non-immigrant visas
So the bottom line is I think theyre
simply wrong on that case -- on that issue
My final point has to do with my -- my
brothers 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 25 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
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says its about Foreign policy and national
security And we would ask that you reverse
the court below
CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1109 am the case
was submitted)
Heritage Reporting Corporation
83Official
1 998 [1] 6619 39914 44111417 51581120 arise [2] 5725 584
1 [1] 6910 A 52101118
ALITO [16] 432124 446813 45
around [3] 4814 6313 6510
Article [2] 136 749 1000 [1] 7225 am [3] 116 32 826 15 4611 561119 6472024 65 aside [1] 4414 10 [4] 642125 6516 7715 Abilene [1] 5425 21221 669 asks [3] 169 519 7614 10-year-old [4] 5235 721215 ability [1] 6220 allies [2] 73 1719 assert [2] 5111 7811 1002 [2] 116 32 able [2] 2210 5111 allow [3] 413 4420 8110 asserts [1] 7318 100 [4] 353 407 4813 5310 above-entitled [1] 114 allowed [3] 178 8013 819 associate [1] 2211 11 [1] 4410 abroad [1] 2113 allowing [1] 5318 associated [1] 812 1109 [1] 826 absolute [1] 428 almost [8] 116 1556 30712 66 assume [4] 19811 2016 813 1152 [7] 4017 494 5916 6022 61 absolutely [12] 4114 4213 4520 1518 7416 assumption [3] 3016 3724 513 1421 808 49217 5810 6112 622 63220 Alomari [2] 5222 attitude [1] 227
1152(a)(1)(A [4] 793 801019 81 6419 658 alone [2] 655 6710 Attorney [1] 523 2 abstract [1] 5720 already [3] 61024 397 authorities [1] 4918
1182 [10] 1018 4419 4721 499 academic [1] 3418 although [3] 379 4414 6611 authority [7] 6916 712 3815 42 541 6816 69519 801415 accept [8] 138 454 5035 539 Amendment [3] 396 619 6716 15 5622 5910
1182(a [1] 7612 603 742324 American [1] 1111 authorize [2] 42610 1182(f [18] 4591318 54 616 7 acceptability [1] 108 Americans [2] 4011 8121 automatically [2] 764 7916 1120 1025 1314 3816 432225 account [2] 105 649 amicus [1] 671 available [1] 6511 4410 451 497 544 8015 accurate [1] 1218 amongst [1] 8021 aware [2] 391725
12 [1] 5522 across [3] 107 2524 2923 amount [1] 7416 away [2] 6224 8117 1202(h)(2 [1] 5523
1361 [1] 432
act [4] 128 177 421 4322
acting [1] 313 analysis [3] 914 1624 7013
animus [1] 1710 B
14 [1] 7212 action [4] 2511 385 4915 7314 another [10] 519 1220 279 35 back [6] 234 3519 4715 4813
15 [1] 7715 actions [1] 247 18 54619 6312 646 6924 77 6819 699
150 [2] 325 3618 activity [1] 3118 17 backdrop [1] 2613
17 [1] 3614 acts [3] 410 281119 answer [9] 615 119 369 389 45 background [2] 2620 689
17-965 [1] 34 actually [14] 111923 1225 175 3 5113 6216 631416 balance [2] 462 4818
180 [2] 461821 21 2112 231 2410 257 299 37 answers [1] 532 ball [2] 5018 7425
19 [1] 555 21 4319 608 763 anti-atheist [1] 224 ban [22] 291113 3921 401317
1918 [1] 7423 add [1] 64 anti-Muslim [2] 506 6213 4315 466 4817 4920 5324 55
1965 [1] 4522 added [1] 519 anti-Semite [1] 163 20 564 593 60817 6410 653
2 addition [2] 617 151 anti-Semitic [2] 194 2619 66317 691617 8119
2 [1] 6910
20 [1] 408
2001 [1] 4524
2015 [1] 4525
2018 [1] 112
25 [2] 112 8118
additional [1] 7522
address [10] 71 12618 133 299
583 77412 792 8011
addressed [2] 59 5723
addresses [3] 76 399 8010
adequacy [2] 5724 7014
adequate [1] 610
anti-Semitism [1] 1615
anticipated [2] 582123
anybody [1] 7320
anyway [1] 314
APPEARANCES [1] 118
appears [1] 318
applicable [1] 6325
banned [1] 593
bans [3] 3924 4521 461
bar [3] 1420 393 552
bare [1] 303
based [7] 1415 1725 275 2922
60131315
baseline [14] 3162123 722 819
3 adherence [1] 6524 application [2] 6712 7918 972124 1547 1923 302 3919
3 [1] 24 administration [2] 5813 6019 applied [10] 111619 153 1913 7817
38 [1] 27 admissibility [3] 78 820 7825 23 269 2923 3814 76324 bases [1] 6810
39 [2] 5920 6115 admissible [4] 424 816 767 78 applies [9] 322 171 2113 6221 basic [4] 615 725 127 3014
4 19
admission [1] 3923 7651619 802425
apply [9] 147 1589 1918 2112
basically [2] 23725
basis [8] 85 171724 1916 4611
400 [2] 361518 admitted [1] 3423 231 2516 359 7917 502 5918 6821
43 [1] 4715 adopt [1] 314 approach [1] 468 became [1] 3917
430 [2] 7217 7920 adopts [1] 318 appropriate [1] 3025 become [1] 601
46 [1] 3418 adversary [1] 6821 April [1] 112 becomes [1] 5925
460 [2] 4119 5911 advice [2] 179 289 arbiter [1] 2622 began [1] 6915
5 50 [1] 6412
advisors [2] 4821 5010
advisory [1] 7417
affirm [1] 524
area [5] 419 1016 1519 4718 57
8
arent [2] 4311 819
behalf [9] 12122 24710 39 38
23 5118 7518
behind [2] 682223
7 afford [1] 3819 arguably [1] 4717 believe [1] 3614
70 [2] 5012 628 afoul [1] 508 argued [1] 236 below [6] 323 9212424 262 82
75 [1] 210 African-Americans [1] 6516 argument [37] 115 2258 348 3
8 agencies [5] 1925 251516 406
691 121241422 1327 1471013
19912 3822 4316 474 4810
benefit [1] 73
berth [2] 578 633
8 [2] 6417 749 agree [3] 1522 658 6923 11 492224 515 5411 562324 best [1] 6624
80 [2] 30812 ahead [1] 3010 5827 6013 6324 6816 695 71 better [3] 1022 1817 5221
9 air [1] 4823
AL [2] 147 21 7517
arguments [5] 3014 4016 506
between [2] 5418 6618
beyond [2] 3512 7119 902 [1] 6619 aliens [16] 424 128 1625 2113 52915 big [3] 3924 405 5320
Heritage Reporting Corporation Sheet 1 1 - big
84Official
bigger [1] 446
bill [4] 42691112
biological [1] 4010
biometric [1] 433
Bishops [1] 675
bit [2] 614 141
blatant [1] 675
Blatt [1] 3420
block [1] 4212
border [4] 8814 6011 7821
both [5] 207 274 3019 4020 44
2
bothered [1] 7922
bothering [1] 235
bottom [1] 8112
bounds [1] 2814
bracketed [1] 5914
branch [8] 715161718 2312 27
89 2813
BREYER [49] 1315 3061122 31
111422 321411141624 332
610162023 3425812 35111
1523 36369111720 37211
1822 382 443 524 715 72816
7524 7791323 786 7910
Breyers [1] 576
brief [14] 3420 35818 3612 43
20 464 4813 5011 523 555 62
9 7211 7717 7920
briefed [1] 534
briefs [9] 413 308 3416 452 65
7 672 711123 7714
bring [7] 20131624 2110 2212
516 5222
bringing [1] 5116
brings [1] 7813
broad [5] 418 1146 442025
broader [1] 8012
broadly [1] 429
broke [1] 256
brothers [1] 8115
brought [1] 771
Brown [1] 5424
built [1] 774
bunch [1] 7724
burden [2] 3915 6614
burdens [1] 431
business [4] 3116 3417 367 77
23
C cabinet [9] 169 1724 1924 24
2225 25114 2810
cabinets [1] 696
cabinet-level [3] 153 183 1922
California [1] 5325
call [1] 278
calls [1] 675
came [2] 114 587
campaign [9] 168 285621 291
60141623 624
candidate [1] 2817
cannot [5] 815 2119 5619 7825
805
careful [1] 4423
carrot [2] 569 596
carrots [3] 3921 4312 469
Carter [6] 93 1013 113 3018 35
5 384
Carters [4] 1113161822
Case [25] 34 109 1222 1317 14
11 151015 198 2011 236 45
14 5115 5424 6612 672 7456
9 7624 7767 806 8113 8256
case-by-case [5] 30192325 38
77
cases [5] 1519 551 659 6913
7024
categories [1] 726
Catholic [1] 674
Catholics [1] 6718
caution [1] 5911
cerebral [4] 526 7212 77216
certain [3] 1117 1420 1816
certainly [2] 5015 579
Chad [3] 46 1010 2917
chain [1] 457
challenge [4] 2010 2123 221 51
16
change [5] 92 3314 4012 5813
charge [2] 245 702
check [1] 254
chemical [1] 4010
CHIEF [49] 3310 1125 121117
21 131 309 3817182124 404
41182024 425 4820 49613
1421 501521 5719 5861216
20 601220 616101720 6218
634141722 642 75481419
20 824
child [1] 772
choices [1] 393
choose [1] 751
Christian [1] 222
Circuit [3] 2633 643
circumstances [4] 311 401 63
13 6510
cite [2] 76 1321
citizen [3] 28712 625
citizens [1] 5116
claim [15] 1320 20611131416
24 2121115 2225 5014 6811
13 805
claimed [1] 2624
claims [4] 1317 215 2219 517
class [10] 322718 3413 4429
131416 7313
Clause [15] 1320 1914 2069 21
21118 2225 288 4924 551 68
1113 6912 7020
cleansing [1] 6825
clear [8] 923 1720 2123 5016
5415 6021 6112 682
clearer [1] 613
Clearly [1] 6820
close [1] 3119
closest [2] 73 1719
Code [2] 5320 752
coequal [1] 279
coexist [2] 55719
college [1] 222
come [13] 1324 175 3210 4621
526 5315 5523 5925 6513 72
213 801622
comes [3] 1322 5717 7420
coming [5] 79 2716 4221 432
6925
comments [2] 166 194
committee [4] 512 24178
community [3] 341718 7724
companies [1] 464
compare [1] 1012
complaining [1] 3417
complete [1] 118
completely [2] 2410 546
comply [1] 251
comports [1] 4018
comprehensive [2] 55916
concede [3] 4122 5218 532
conceded [1] 6821
Concepcion [1] 5425
concern [2] 59 2612
concerned [3] 3217 5913 7910
concerns [2] 1122 129
concluded [4] 155 201 2518 29
24
conduct [2] 824 95
Conference [1] 674
confident [1] 1915
confidential [1] 265
confidentiality [1] 2612
confirms [1] 2921
conflict [1] 5416
conflicts [1] 392
Congress [40] 41015 5710 64
81024 385 397172025 4117
25 421624 439132122 4421
4522 47101011 4817 5313 55
81016 561 571423 5822023
592 741019
Congresss [7] 392 4019 4318
4523 4717 5019 5312
consequences [1] 5017
consider [6] 199 284 371923
3811 5715
considerations [4] 106 4633
4819
considered [1] 5511
considers [1] 5712
consistent [2] 2820 4718
constantly [1] 718
constitute [2] 4416 4922
Constitution [3] 2424 289 6722
constitutional [6] 1317 1510 19
18 2114 5014 6311
constitutionally [1] 2810
construct [1] 2516
consular [6] 121 7113 76412
18 7916
contacts [1] 3115
contemplated [1] 5410
context [3] 161523 1825
contexts [2] 5725 744
continuing [2] 47223
contours [1] 1521
contraception [1] 745
contradicts [1] 602
contrary [2] 54614
contravention [2] 5534
convinced [1] 487
cooperate [5] 84 3910 4610 48
15 5717
cooperated [1] 3922
cooperating [3] 4220 4311 55
19
core [1] 720
corner [1] 672
correct [4] 13911 4323 4412
cosmic [1] 7310
Cotton [1] 5425
couldnt [3] 2223 613 7123
counsel [2] 7515 825
countermand [2] 459 5019
countermanded [1] 4717
countermanding [1] 4317
countermands [2] 4523 5312
countries [45] 3152225 51821
22 749 91920 1047 1112 15
7 2212 252224 2610 2916 32
4 3621 3910121821 4219 43
11 469 4815 5518 566 5716
5810 6010 641213141621 65
14 665 7721 7811 812224
country [29] 416 811 99 154
1925 251718 2716 305 3210
4215 436 4416 491 516912
21 521012 5615 581423 6010
7114 8017 812123
countrys [1] 1719
couple [2] 271 3222
course [8] 1323 1679 3520 61
18 7811 79817
COURT [22] 1115 311 1218 13
8 1423 3825 5223 535 5912
6125 6399 678 682 701 7318
25 741315 7520 823
Courts [3] 4112 4513 5423
courts [5] 266 5625 572 7016
743
covered [2] 1114 2917
covers [2] 1112 5921
created [2] 5815
creates [1] 667
credit [1] 3922
criminal [2] 83 304
crisis [2] 477 482
criteria [8] 512 910 292324 33
1921 3919 7620
cross [1] 1613
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Cuba [2] 95 476
current [1] 3613
cuts [1] 6715
D DC [3] 1112022
Heritage Reporting Corporation Sheet 2 bigger - DC
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danger [1] 525
dangerous [1] 597
data [1] 7221
daughter [1] 525
day [5] 2819 40814 63723
days [4] 4119 461821 5911
deal [8] 422425 4310 5622 596
6824 7621 771
deals [1] 5517
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decent [1] 366
decided [3] 610 121213
decision [3] 2122 4110 5912
decisions [1] 5423
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deference [2] 4118 575
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definitely [1] 209
deliberations [1] 2418
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denigrating [1] 166
denigration [1] 684
denominator [1] 7219
Department [3] 120 761 7916
departments [1] 691
depending [1] 6312
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described [3] 811 2614 535
designated [2] 518 7114
despite [1] 1214
detail [3] 1020 274 7525
detailed [3] 101825 1110
details [1] 775
determination [2] 815 791
determine [4] 424 78 819 7817
determined [1] 714
determines [1] 766
developing [1] 5722
development [1] 7317
difference [2] 2724 631
different [10] 822 3512 4016 53
16 5511 6622 6721 707 744
816
difficult [2] 1716 581
diplomatic [5] 324 18121518
3313
direct [3] 5415 5534
direction [2] 5512 685
directly [6] 5010 512323 52125
5413
disagree [1] 4610
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disavowing [2] 63618
disclaimed [1] 6223
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discrimination [17] 394 401722
4825 49423 502 5917 60913
22 612 6324 651520 676 794
disease [1] 3119
dislike [1] 2117
disparage [1] 7025
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distinguish [1] 1514
distribute [2] 8020 812
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Doe [1] 88
doing [8] 63 229 2514 5015 54
519 791218
domestic [2] 1913 6710
DONALD [2] 13 35
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21 608 6628 7422
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dot [1] 1612
down [4] 256 6710 6912 7319
dressing [3] 35921 7911
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duty [2] 276 5625
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E earlier [2] 2713 687
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economic [1] 463
economics [1] 5323
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eight [1] 6519
either [2] 1112 265
elected [2] 162 2819
eligible [3] 801621 811
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emergency [5] 4023 4115 5710
59813
emerges [2] 161416
employed [1] 3123
employer [1] 6516
enacted [1] 4322
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end [6] 162022 2314 4557 46
22
ends [2] 4614 478
engaging [1] 825
engineers [2] 532224
enough [4] 415 68 583 775
ensure [2] 2623 7911
enter [7] 1617 2114 409 6220
8013 81910
entire [1] 810
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entity [1] 6312
entry [6] 314 414 399 4013 44
11 605
equal [1] 6525
Equality [2] 523 7211
equipped [1] 7016
ESQ [2] 122 26
essentially [3] 714 1325 8015
establish [1] 4517
established [1] 3116
Establishment [12] 1320 1914
206 2121018 2225 4924 68
1112 6912 7020
ET [2] 147
evaluating [1] 7014
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even [20] 1310 17916 19811 25
11 4120 4716 5319 553 5824
5910 6621 679 6820 691522
73113 7610
everybody [2] 2123 6524
everyone [1] 7118
everything [2] 2725 711
evidence [2] 6624 7223
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535 57515 62817 638 64221
example [14] 86 4024 455 515
24 522 5521 587 629 6515 67
17 6815 747 771
examples [2] 312 5313
exception [7] 92123 1120 3624
7118 761417
exceptions [2] 302023
exclude [2] 2914 6720
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1217 7210
exclusion [2] 127 1625
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10 23712 24814 2813 391 46
15 471415 5311 5921 602 61
16 621112 69923 7421
exercise [4] 206919 2218
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17 255 31912
eyebrows [1] 656
F face [1] 252
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6714 6919 7913
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fair [1] 55
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fall [7] 323 924 1312 32618 43
24 6617
falling [1] 3412
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family [5] 2212 3119 4566 53
18
far [5] 1413 3217 4121 513 59
15
fast-moving [1] 4024
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findings [1] 6018
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fine-grained [4] 4524 468 4818
5020
finish [1] 1714
fire [2] 2318 6517
first [21] 14310 2421 272 283
3225 39614 427 4317 4721
556 6021 619 671622 699 76
614 801317
fit [1] 656
five [6] 3124 64131313 75416
flat [7] 4314 4616 4817 55220
564
flatly [3] 59316 602
flexible [1] 418
Focus [1] 321
folks [1] 5225
follow [1] 178
following [1] 312
fomenting [1] 591
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force [1] 4316
forces [1] 6920
forecloses [1] 1517
foreign [8] 42 825 106 129 31
15 462 8018 821
forever [1] 6221
Forge [2] 212225
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form [1] 1916
forth [2] 618 721
forward [2] 132224
founding [1] 6718
four [1] 7814
Fourth [1] 263
FRANCISCO [117] 119 239 37
810 417 616112225 91218
10172124 115818 1231624
13418 142122124 1518 164
1821 171323 182924 1925
2081923 21321 228141722
2310162124 243111519 268
Heritage Reporting Corporation Sheet 3 danger - FRANCISCO
86Official
151825 27172022 28223 292
3021 3110132125 32381315
2225 334811182225 3447
1025 35101422 361581012
1925 3731320 381920 7517
19 7623 7731122 7849 797
1524 8049
frankly [1] 377
free [7] 2069101924 221818
freedom [1] 6523
friend [5] 395 4319 4615 532
623
full [1] 1520
fundamental [5] 2811 296 6522
713 7418
future [2] 161 1814
G game [1] 1325
gas [1] 5425
GEN [3] 119 239
General [127] 119 3810 417 57
23 616112225 91218 1017
2124 1125818 1231624 134
1618 142122124 1518 16418
21 171323 1825924 1925 20
281923 21321 228141722
23310162124 243111519 25
25 268151825 2713172022
28223 292 3021 31101321
25 323813152225 334811
182225 34471025 35101422
3615810121925 3731320
38191920 624 75161719 76
23 7731122 7849 79571524
8049
Generals [1] 6824
George [1] 6719
gerrymander [1] 6614
gets [1] 162
getting [4] 611922 731 7414
GINSBURG [4] 48 445 762125
give [8] 711 86 151225 5124
569 6821 7223
given [10] 917 1413 1718 1825
1915 241325 3219 691819
gives [2] 616 2224
giving [3] 311 539 606
goodness [1] 7725
GORSUCH [14] 5025 511820 52
81417 677 73258121622 74
2
got [4] 2714 357 4334
gotten [2] 721824
governed [1] 8014
government [14] 825 92 109 12
1523 1322 1524 222 264 278
10 3520 514 7823
governments [2] 3314 3714
governs [2] 8020 812
great [4] 248 274 812124
greater [1] 5910
greatest [1] 5012
greenhouse [1] 5424
ground [3] 223 401 5723
grounds [2] 624 6913
group [2] 5525 8021
guess [2] 1417 542
guidance [3] 3424 352 721
H Half [2] 4616 476
Hamdan [3] 4113 577 5915
hand [1] 1818
happened [1] 776
happens [2] 1718 4621
happy [1] 7512
harbored [1] 1710
hard [1] 1520
hardship [3] 31789
harkens [1] 699
harmed [1] 5123
harmful [2] 824 95
harmonize [1] 4425
Harvard [1] 3419
hate [1] 2818
hateful [2] 281820
hatred [1] 167
HAWAII [4] 17 36 5125 7224
head [2] 23812
hear [1] 33
heard [7] 1523 39519 453 4614
532 733
hearing [1] 3519
heart [6] 179 181921 2119 59
24 6716
hearts [3] 179 182021
heated [1] 2617
heightened [1] 514
help [4] 421 721 87 2523
herself [1] 7618
hire [1] 2318
history [6] 824 1025 1111 303
4
holds [1] 1814
holistic [1] 914
home [2] 811 7823
Homeland [1] 313
honestly [2] 176 2724
Honor [38] 417 61319 71 810 9
12 1018 11511 12325 1318
1621 1715 1810 19621 2010
214922 2420 2625 28324 32
923 36125 3810 4520 507 77
3 784 79715 8049
Honors [1] 7522
hoping [1] 7814
however [3] 419 113 2513
humanitarian [2] 1121 464
hypothetical [15] 151323 173
187 191620 205 2323 3812
412223 4223 437 4912
I is [1] 1613
ID [1] 433
idea [1] 454
ideal [2] 81 303
identified [2] 5518 5713
identify [1] 824
identifying [2] 4219 4811
III [1] 136
illustrate [1] 87
illustration [1] 5012
image [1] 464
imagine [7] 2913 412425 5611
19 598 613
imbued [1] 128
immediate [1] 419
immigrant [3] 5923 8011 817
immigrants [3] 11161719
immigration [10] 412 318 4518
4911 67151720 74920 752
impact [1] 4915
impacted [2] 52125
impacts [1] 4919
impediment [1] 4117
implement [3] 422 721 815
important [7] 1324 531 5923 61
15 696 7011 724
importantly [2] 517 6914
impose [3] 617 103 457
imposed [3] 2522 609 6614
imposes [1] 91
imposing [1] 8119
improve [1] 718
impulse [1] 742
in-person [3] 434 5521 562
INA [11] 42225 618 721 816 45
19 5017 5322 76812
inaccurate [2] 3912 561
inadequate [1] 5617
inadmissible [2] 76911
including [9] 320 155 251819
2917 3911 4217 476 8014
incomplete [1] 239
inconsistent [2] 523
indeed [1] 591
independent [1] 2622
indicates [1] 4624
indication [1] 5510
individual [4] 311 781522 806
individualized [4] 3915 4225 46
8 595
individuals [2] 78 322
ineffective [1] 2912
infected [1] 6911
inference [2] 66713
infiltration [1] 5613
information [20] 31625 423 77
23 81319 97 302 3315 3517
3913 407 414 5617 5825 78
1317
inhibition [1] 6219
initial [1] 253
injunction [5] 217 2223 73910
24
injury [1] 2124
INS [1] 2216
instances [2] 734 7715
Instead [5] 3921 4617 4817 62
25
intelligence [3] 406 414 428
intelligent [1] 815
intelligently [1] 7825
intended [1] 7711
intention [1] 8119
interests [4] 1121 315 701115
international [1] 6711
interpretation [1] 604
interrupt [1] 412
interview [4] 435 5522 562 71
13
introduced [4] 4120 421011 49
20
introduces [1] 426
invidious [1] 668
involve [1] 1625
Iran [2] 94 6424
Iraq [3] 923 1010 2917
iron [1] 7424
irrelevant [2] 2822 291
irrespective [1] 147
Islam [1] 8123
isnt [5] 3520 3813 4710 7119
25
Israel [4] 1617 1718 181516
issuance [3] 495 5918 8010
issue [10] 1219 16101011 4911
5511 7313 8171113
issued [7] 54 89 1110 4716 78
22 792025
issues [6] 126 283 533 63518
774
item [1] 4510
itself [5] 2910 69819 713 7325
J Jane [1] 88
Jews [2] 166 242
job [1] 2515
join [1] 2213
joined [1] 576
Judge [2] 4022 612
judges [2] 2623
judgment [6] 43 4524 4717 48
22 7019 8019
judgments [4] 4019 4318 5020
5312
judicial [1] 1620
jump [1] 664
jurisdiction [1] 136
jurisdictional [5] 122413 133
533
jurisprudence [1] 1914
Justice [217] 120 3310 48 56 6
272023 9817 10111922 112
791525 12111721 1311516
19 1431722 151222 16519
171122 18151125 193 2024
1521 21115 2259151921 23
31117222225 2441216 2525
269131619 2712182123 28
1625 30691122 31111422 32
1411141624 3326101620
23 3425812 351111523 363
Heritage Reporting Corporation Sheet 4 FRANCISCO - Justice
87Official
69111720 372111822 382
17182125 404 41182024 42
5 432124 44346813 4515 46
111723 471320 4861020 49
6131421 5015212325 5118
20 52381417 5421218 5611
1924 575619 586121620 60
1220 616101720 6218 63414
1722 642672024 6521221
669 677 68618 6924 709 715
72815 73258121622 742 75
48142024 762125 7791323
786 79591022 8017 824
justiciability [1] 137
justifications [1] 663
K KAGAN [26] 131619 1431722
151222 16519 171122 1815
1125 193 2613 2712182123
5023 5421218 709
Kagans [1] 2323
KATYAL [79] 122 26 38212224
4015 41711 42413 4323 441
1218 4520 46131925 47325
489 49291725 504725 511
141922 52131620 5431117
21 561821 574 585151922
6020 618111922 6222 638
1620 64171923 6514 669 67
713 68612 693 701017 7279
733711152124 75611
keep [3] 241 258 4215
KENNEDY [19] 10111922 204
1521 2220 281625 461723 47
1320 48610 5624 575 807
Kennedys [1] 119
kept [1] 264
kill [1] 4011
kind [8] 142022 1612 186 1913
5415 5924 7012
kinds [1] 165
King [1] 6719
knock [1] 6114
knows [4] 181319 3525 7823
L land [1] 221
language [1] 4325
laptop [1] 4920
large [1] 5922
later [2] 4119 5911
latest [1] 6211
Laughter [5] 188 3411 423 757
10
LAVAS [1] 4023
law [4] 314 3720 403 752
lawfulness [2] 3723 724
laws [2] 411 318
layer [1] 519
lays [1] 273
learns [1] 811
least [1] 1213
leave [1] 512
left [2] 3015 6519
legality [1] 378
Legislation [3] 3923 4121 422
legislative [1] 4117
legitimacy [1] 2511
legitimate [1] 1322
Lemon [2] 67925
less [1] 3112
letters [1] 7225
level [2] 423 77
lies [1] 4316
life [1] 7214
light [1] 5722
likelihood [1] 5525
limit [3] 51 4423 4512
limitations [1] 6017
limited [1] 7312
limits [4] 420 64 545 7421
line [4] 107 2524 4510 8112
lines [1] 699
Lisa [1] 3420
list [10] 47 911 3115 64141625
665610 7720
listed [1] 919
lists [3] 77151724
litigants [1] 266
little [2] 613 141
local [1] 2817
long [3] 415 577 678
long-term [2] 3117 601
longer [2] 101419
look [16] 724 2622 3519 4113
4715 552 6238 6510 661220
671 6822 7021 801
looked [7] 5713 624 3022 6420
7919 805
looking [1] 6823
lot [5] 612 145 167 771921
love [1] 8122
low [1] 916
lower [1] 743
Lukumi [3] 659 682 7024
M made [7] 1215 14912 286 689
811820
main [1] 720
maintain [1] 717
majority [6] 31920 251920 29
15 491
Mandel [18] 1321 1410131822
158141619 16192223 17116
201125 2511 2621
Mandels [1] 1723
many [5] 3013 7255 812222
mark [1] 2811
marks [1] 296
material [1] 261
matter [5] 114 1917 259 297 72
21
mayor [1] 2817
McCreary [3] 159 6399
mean [9] 1820 412 4824 5720
6215 6411 6715 6810 814
meaning [1] 299
means [2] 144 6514
meant [2] 421 103
measures [1] 5615
medical [1] 3421
meet [4] 511 1420 331820
member [3] 2425 251 3119
members [2] 1610 2213
mentioned [2] 49 5616
merits [4] 1214 1312 514 537
message [2] 2124 224
met [1] 321
might [13] 620 181314 2218 26
12 356 4912 5023 511 5222
584 655 7413
migration [1] 458
military [1] 4821
million [2] 325 3618
millions [2] 6733
minimum [11] 316 423 7722 8
218 96 30123 7816
minutes [2] 75516
misunderstanding [1] 4912
moment [1] 7121
month [1] 413
months [1] 488
most [18] 1018 1110 1324 2912
25 352 361313 37141416 53
1 5922 6115 6421 6914 7015
7225
move [3] 107 2523 7214
moved [1] 6224
moves [1] 4212
much [8] 1120 2025 285 446 46
7 6620 71119
multi-agency [3] 312 1921 29
22
Muslim [19] 321 251820 2911
1315 4911619 6410121416
17 65314 663 811922
Muslim-majority [2] 156 2916
Muslims [5] 2715 6421 661819
8120
must [4] 2418 3111 325 7411
N narrow [1] 419
nation [1] 5924
national [14] 43 520 105 1121
129 1323 176 184 571 7011
1518 8019 821
nationality [7] 39424 401721
4315 59318
nationality-based [4] 609 611
793 8023
nationals [4] 317 40813 4415
nationwide [3] 217 2223 739
naturalization [1] 7411
nature [1] 102
nay [1] 416
NEAL [3] 122 26 3822
near [1] 7316
necessarily [1] 4711
necessary [4] 37911 472224
need [6] 420 1717 2622 304 31
20 6113
needed [7] 31725 423 77 819
781217
needs [1] 544
negative [2] 2124 226
Neither [2] 74 4212
neutral [6] 154 1923 2119 2517
292324
never [7] 359 394 4120 5021 72
18 76916
new [4] 3512 4517 5713 7317
next [3] 71 63623
Ninth [2] 262 643
nobody [2] 3422 3525
NOEL [5] 119 239 38 7517
non-immigrant [2] 81811
non-politically-correct [1] 6917
non-reviewability [2] 12114
none [1] 4716
Nope [1] 701
nor [1] 75
normal [1] 3220
nothing [8] 3717 461321 478
493 5713 6023 783
notice [1] 3524
noticed [1] 3018
number [11] 157 2522 329 34
15 361314 6524 6714 694 72
9 744
numbers [2] 3313
O oath [3] 28724 295
objections [2] 6616 7110
objective [4] 621 645 6625 70
22
observer [7] 621 6458 653 66
25 679 7022
observers [1] 1823
obviously [2] 719 7324
occupations [1] 5321
occurred [1] 6825
offer [1] 4312
office [2] 288 3622
officer [3] 7661318
officers [2] 764 7916
official [2] 7024 7113
officially [1] 7114
often [3] 3716 7220 8018
Okay [11] 3114 332323 3412 35
15 3718 5412 6123 755613
omits [2] 319 2915
Once [5] 814 1321 2620 477 81
1
one [39] 41113 52021 915 10
13 114 1220 13524 1616 17
19 2215 2314 278 2913 3015
3312 358 373 4013 4218 51
24 6015 6220 6311 6422 6522
6714 694 71811 7210 7716
7969 801020 8123
ones [3] 518 6511 718
only [17] 322 414 1116 1519 21
Heritage Reporting Corporation Sheet 5 Justice - only
88Official
13 2914 317 329 3423 3524
4218 5514 626 651317 661
6812
opinion [3] 357 577 7417
Opinions [1] 288
oral [5] 114 225 38 3822
order [31] 91 1411 2425 253 29
1921 30181923 3314 3724 39
1920 4614 47714 4822 539
5921 602 6116 621112 655
13 698 712 725 7421 7812
orders [5] 2917 4616 47615 69
10
ordinary [1] 7023
organization [1] 812
other [29] 323 75 99 105 149
311724 3220 3523 416 4319
4424 4525 4714 5510 5615 58
9 656919 663 671525 6913
703 7120 7512 76811
others [2] 915 741
Otherwise [3] 2124 2210 767
ought [1] 4822
out [13] 242 258 27311 2814 35
1616 3618 588 6114 66411
723
out-of-the-box [1] 186
outcome [1] 2417
outer [1] 420
outgrowth [1] 6910
over [5] 1325 167 3615 4723 80
12
overall [1] 915
overwhelmingly [1] 1510
owes [1] 279
own [2] 6816 694
P packed [1] 612
PAGE [6] 22 3614 5011 555 62
8 7212
palsy [4] 527 7212 77216
parameters [1] 516
Parkinsons [1] 7716
PARS [2] 523 7211
part [7] 2925 59222223 601 61
15 7016
participated [1] 692
particular [15] 1016 2117 2589
408 4416 5614 57212225 58
314 664 6919 777
parties [2] 517 7313
parts [1] 7612
party [1] 5224
pass [1] 4114
passed [1] 156
past [4] 522 822 2917 503
people [32] 20121617 225 31
15 32510 3415 355524 3634
6 375 4221 4415 5523 5925
67420 703 7120 7211725 76
11 771720 8016 8118
peoples [1] 802
percent [6] 407 5920 6115 64
17 661919
percentages [1] 7222
perennial [2] 4812 5716
perhaps [2] 5817 717
period [3] 415 244 4722
permanent [1] 4518
permission [1] 523
perpetual [4] 444 4521 4612 48
5
perpetuated [1] 444
person [6] 4325 7114 767 78
1820
personally [2] 517 7912
persons [1] 5110
Petitioners [6] 1521 2410 39
7518
pick [1] 7425
pieces [1] 725
place [6] 2116 2319 7911 8013
1725
placed [1] 3916
plainly [1] 252
plaintiff [1] 5222
plaintiffs [2] 2125 536
please [4] 311 3010 3825 7520
point [23] 1624 1820 294 367
419 4215 4317 446 452 538
5415 6022 66111 68414 718
74818 7814 793 808 8114
points [1] 7522
policy [15] 43 106 129 2319 39
3 4019 4318 451821 462 50
10 5312 6310 8018 821
political [1] 128
polity [1] 601
poorest [1] 746
population [4] 491619 641518
position [1] 5017
possibility [1] 386
possibly [2] 216 2913
potentially [2] 201320
power [11] 4418 1313 4419 45
5 5310 541 5811 607 6720 74
23
practice [1] 2120
praised [1] 8123
precedential [1] 1220
precludes [1] 5710
predominantly [3] 64121316
preference [2] 456 5321
preferences [1] 5318
preliminary [1] 2621
prescient [1] 582
prescribed [1] 558
present [8] 2059 5191221 52
101119
presidency [1] 168
PRESIDENT [86] 13 345 410
14 5913 63916 712 934 11
13131822 1313 162 1758 18
6 191 2381223 257 271525
3513 3712 3834 40612 4217
101214 441121 454 472 487
11212224 4918 508918 5310
101523 54591922 561622 57
321 5810 599 607 6271216
23 632 643 6817 6951520 70
158 712 742224 811517
Presidents [8] 313 44 2421 38
15 4114 69721 704
presidential [1] 6018
Presidents [2] 4716 578
press [2] 141 6214
pressure [8] 324 91 104 1815
252223 3313 7811
presumption [1] 2710
prevent [1] 545
previously [2] 311623
principal [4] 1319 3312 376 78
10
principally [1] 298
private [4] 179 28712 625
pro-Christian [1] 223
probably [2] 3414 7415
problem [16] 261 3413 398 42
1719 481512 497 5315 5517
571216 6925 71419
problems [3] 323 2521 5721
proc [1] 1610
procedures [1] 5817
proceeding [1] 513
process [27] 51515 810 1458
1419 152 1915 2623 274 29
20 3915 5714 6815 69215 72
1020 76123 78161823 7914
17
processes [1] 3221
proclamation [55] 318 42 54 7
24 81721 92022 102121525
111023 1311 14615 161216
191718 211116 231 273519
2910 3313 381114 451617 53
11 5514 611 6217 635718 64
8 6972021 70410 7422 7610
131516 7810 7925 81525
proclamations [1] 421
proclamations [5] 823 1013 11
3 3716 6220
professors [1] 7718
Program [5] 725 56510 596
promulgated [2] 6212 6311
propose [1] 4314
protect [3] 41 2423 304
protest [1] 6718
provide [8] 31625 96 301 3315
3912 566 7812
provides [1] 72
providing [2] 5525 5825
provision [6] 1120 498 5420 76
1920 778
provisions [2] 459 768
provokes [1] 166
publication [1] 7219
publicize [1] 7125
publicized [2] 3621 374
publicly [1] 6511
publish [1] 762
purely [2] 6025 6711
purport [1] 4517
purports [1] 2919
purpose [5] 721 668 701925 78
10
purposes [4] 2216 3312 6114
751
pursuant [2] 89 7822
pursued [1] 215
pushes [1] 431
put [6] 1815 2319 351 4414 66
5 721
puts [5] 161922 6817 695 749
Q qualify [1] 722
qualms [1] 427
question [23] 612 119 1711 18
2122 3015 346 353 3810 41
16 51210 543 5724 61617 62
18 6315 7012 7122 735 7525
8012
questions [3] 5725 751223
quick [1] 7521
quite [4] 922 1915 326 7110
quotas [1] 6010
R race [1] 259
raise [1] 656
raised [1] 1222
raises [2] 6613 735
rate [1] 1524
Rather [1] 2514
rational [3] 17171824
re-upped [1] 483
reach [1] 514
reached [1] 537
read [8] 413 1418 307 3416 44
232324 7713
reading [1] 648
Reagan [8] 94 1012 113 3019
35413 3712 383
Reagans [1] 1113
real [1] 7913
real-time [1] 85
really [14] 720 81721 125 1422
1516 1821 439 4415 6617 71
24 7317 7521 814
reason [9] 132324 1423 2149
3219 339 4511 6822
reasonable [8] 1822 621 6458
652 6625 679 7022
reasons [11] 181315 3116 392
401522 4423 656 7412 802
reassessment [2] 4624 475
REBUTTAL [4] 28 3819 7516
17
receives [1] 289
recent [1] 522
recently [1] 46
recognition [1] 8115
recommendation [3] 153 183
1922
recommendations [2] 319 16
Heritage Reporting Corporation Sheet 6 only - recommendations
89Official
11
recommended [2] 314 2523
red [2] 5011 629
reenter [2] 63723
reexamined [1] 4618
referring [1] 524
reflect [1] 822
reflects [2] 42 101
refuse [1] 251
refused [1] 265
regard [2] 4825 7319
regime [1] 597
regularity [1] 277
rejected [2] 3920 4313
rekindled [1] 628
relatively [1] 197
relatives [1] 2017
relief [1] 7313
religion [6] 211720 259 6525
684 7025
religious [7] 226 651523 6613
1416 675
rely [1] 298
remedy [1] 736
remember [2] 3616 6816
removed [2] 4118 516
repetitive [1] 3013
reply [2] 3612 555
report [2] 462022
reporting [4] 823 402 479
represent [4] 981318 7913
representing [1] 673
required [3] 132 402 4711
requirement [2] 4710 5521
requires [1] 3721
resentment [1] 167
reside [1] 3118
residence [1] 8025
residual [1] 4214
resign [1] 251
respect [13] 945 2120 4020 42
23 4316 529 5513 5614 5825
6124 711820
respond [2] 418 7524
Respondents [5] 1823 27 21
12 3823
response [2] 1320 376
responses [5] 2420 271 3223
3610 371
responsible [2] 411 2413
rest [3] 451 5410 6018
restrictions [3] 315 617 6717
resulted [1] 152
reticulated [3] 4524 55816
reverse [1] 822
review [10] 312 519 1620 1922
2419 2922 5625 5714 6915
reviewability [1] 1219
reviewed [1] 262
rid [2] 531919
rights [2] 51811
rise [1] 739
risk [2] 176 435
riskiest [1] 79
ROBERTS [38] 33 1125 121121
131 309 381821 404 411824
425 4820 4961421 501521
5719 58121620 6012 61610
1720 6218 634141722 7548
14 824
robust [2] 4310 5622
rule [2] 127 7411
rules [1] 8020
run [1] 508
S safe [2] 4215 488
safest [1] 74
sake [2] 19912
Sale [4] 1212 53233
same [15] 920 1410 2824 349
3547 39819 5214 571215 63
10 658 685 6911
sanctions [2] 9125
satisfies [2] 1312 5515
satisfy [3] 171621 3918
save [1] 7213
Savings [1] 551
saying [13] 63 226 4025 426 46
12 5413 635 683 701221 71
10 787
says [28] 16516 237 241 3024
24 319 35824 4115 462020
47721 48241324 5224 5917
604 69810 7010 7217 7410
7724 821
scenario [1] 256
scheme [2] 55916
scholars [3] 2211 3418 7718
score [1] 916
scrutiny [1] 1717
seat [3] 696 741019
second [9] 1216 293 376 3917
557 6724 698 7813 796
second-guess [1] 7018
Secondly [1] 255
secretaries [1] 1924
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4415 7710 801
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666
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5921
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1820 298 5011 60141623 62
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493 5019 54710 5711 6014
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2920
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Syrian [1] 4013
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3912 437 5524 568 5824 71
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25 614 655
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24 34161723 3717 40161618
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8 492711 5321 57912 693 72
1719 7717
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1819 5713 7218
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6914 792
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4216 543 7418
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615 6213 693
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292 3423 3524 36210 3711
401516 557 6517 6713 729
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2511 276 288 2924 3815 433
496892123 5325 7118 768
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21 7918
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1015 7612361920 7747 79
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3815 4325 7615
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22 5714 6815
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to protect the country until they do
The proclamation reflects a foreign
policy and national security judgment that
falls well within the Presidents power under
1182(f) and has been successful which is why
the country of Chad was recently dropped from
the list But it -shy
JUSTICE GINSBURG You -- you
mentioned 1182(f) And the worrisome thing
about this is that the President acts Congress
is the one responsible for making the laws
about immigration It has been suggested in
one of the briefs that we read 1182(f) to allow
the President to suspend entry but only for a
period of time long enough for Congress to say
yea or nay
GENERAL FRANCISCO Your Honor yes
1182(f) is a broad and flexible power in a
narrow area Here however I think that you
dont need to explore those outer limits
because the proclamations meant to help
implement the INA by making sure that we have
the minimum level of information needed to
determine if aliens are admissible under the
INA
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In terms of a time limit I think
thats simply inconsistent with the text of the
statute and inconsistent with virtually every
1182(f) proclamation ever issued Here we
have a fair -shy
JUSTICE SOTOMAYOR Im sorry Mr -shy
General I thought that Congress had looked at
the situation and created a statutory system
that addressed the very concern the President
is expressing Congress said you can have visa
waivers if you -- if you can meet the three
criteria that this special committee of the
President looked at and if you dont you have
to have a very heightened extreme vetting
process And it created that vetting process
and suggested its parameters
More importantly it took terrorist
countries and designated which ones supported
terrorism and added another layer of review and
said if youre 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 to -- to affirm that you
are not a danger to the US
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GENERAL FRANCISCO And -shy
JUSTICE SOTOMAYOR So I -- but what I
see the President doing here is saying Im
going to add more to the limits that Congress
set -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- and to what
Congress said was enough Where does a
President get the authority to do more than
Congress has already decided is adequate
GENERAL FRANCISCO Well there are -shy
theres a lot packed into your question Your
Honor and so let me try to unpack it a little
bit
I think the basic answer is that
1182(f) gives the President the authority to
impose restrictions in addition to those set
forth in the INA but to go to the statutes
that Your Honor was -shy
JUSTICE SOTOMAYOR But -- it might
but -shy
GENERAL FRANCISCO Right but -shy
JUSTICE SOTOMAYOR -- on the very
grounds that Congress has already looked at
GENERAL FRANCISCO And thats exactly
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what I was going to address next Your Honor
The Visa Waiver Program provides a special
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 admissibility of individuals
coming in from some of the riskiest countries
in the world
And 1182(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 Its up to the executive
branch to set it up Its up to the executive
branch to maintain it And its up to the
executive branch to constantly improve it
And here you have something that
really is at the core of 1182(f) since its main
purpose is to help implement the INA by making
sure we have that minimum baseline of
information
And if you look at the proclamation
what were talking about is very basic pieces
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of information Not the ideal but the
minimum Are they reporting terrorism history
information Are they 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 visa 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
doesnt tell us
Once she shows up at the border we
cannot make an intelligent determination as to
whether or not shes admissible under the INA
And thats 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
that it seeks to identify harmful conduct that
a foreign government is engaging in and then
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it imposes sanctions in order to pressure that
government to change
Thats what President Carter did with
respect 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
JUSTICE SOTOMAYOR Can you represent
that no other country that -- that fails all
three of the criteria was excluded from this
list
GENERAL FRANCISCO Well Your Honor
what I can represent is that the -- the -- the
analysis was holistic It wasnt if you failed
any one or the others It was if your overall
score was sufficiently low
JUSTICE SOTOMAYOR So given -shy
GENERAL FRANCISCO 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 below -- below the baseline but was not
subjected to sanctions
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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 weve now seen has been
successful as with the case of the government
of Iraq -- of Chad
JUSTICE KENNEDY In fact if you
compare this proclamation to the Reagan and the
Carter proclamations which I think were one or
two sentences this is longer than any
proclamation that -- that Ive seen in this
particular area
GENERAL FRANCISCO This is Your
Honor the most detailed 1182 -shy
JUSTICE KENNEDY Id say longer
detail -shy
GENERAL FRANCISCO Yes
JUSTICE KENNEDY -- is -- is a better
word
GENERAL FRANCISCO Yes This is the
more detailed 1182(f) proclamation in history
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It is not -shy
JUSTICE SOTOMAYOR General the
proclamations by Reagan and Carter however
were not as broad as this one
GENERAL FRANCISCO Your Honor they
were almost as broad but -shy
JUSTICE SOTOMAYOR And -- and -shy
GENERAL FRANCISCO -- to complete my
answer to Justice Kennedys 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 Reagans or President Carters
covered But its -shy
JUSTICE SOTOMAYOR And more -- and
more immigrants because Carters only applied
to certain immigrants not to all
GENERAL FRANCISCO President Carters
actually applied to all immigrants but then had
an exception much like the waiver provision
here for national interests and humanitarian
concerns So I think President Carters was
actually very similar to the proclamation here
And -shy
CHIEF JUSTICE ROBERTS Is your
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consular non-reviewability argument -- is that
a jurisdictional argument
GENERAL FRANCISCO Your Honor I -shy
yes I think it is a jurisdictional argument
And thats why I dont 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 to -shy
CHIEF JUSTICE ROBERTS I -- I thought
in Sale that we decided that this -- this
wasnt jurisdictional or at least decided the
merits despite the non-reviewability argument
that the government made
GENERAL FRANCISCO I think the second
thing that you just said Mr Chief Justice is
accurate The Court didnt address the
reviewability issue at all And so we dont
think its precedential one way or another
CHIEF JUSTICE ROBERTS Was the -- was
the argument raised in that case by the
government
GENERAL FRANCISCO Yes it was Your
Honor Actually you could -shy
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CHIEF JUSTICE ROBERTS So -- so its
an argument we would have been required to
address if it were in fact jurisdictional
GENERAL FRANCISCO I think so And
so I think one way you could understand it is
that it doesnt go to Article III jurisdiction
though it is a justiciability argument and we
would urge this Court to accept it because we
think its correct
But even if you dont think that its
correct we think that this proclamation
satisfies the merits because it does fall well
within the power of the President under
1182(f)
JUSTICE BREYER If youre about -shy
JUSTICE KAGAN May I turn General
to the constitutional claims in this case
GENERAL FRANCISCO Yes Your Honor
JUSTICE KAGAN And your principal
response to the Establishment Clause claim is
to cite Mandel and to say that once the
government comes forward with a legitimate
reason -- of course national security is the
most important reason one can come forward with
-- the game is over essentially And I just
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want to press on that a little bit
GENERAL FRANCISCO Sure
JUSTICE KAGAN So first I want to
ask whether that means -- you started off by
talking a lot about the process of this
proclamation But I -- I take it that that
argument would apply irrespective of what
process was used
In other words you would have made
the same Mandel argument to the first executive
order in this case or would you not
GENERAL FRANCISCO We would have made
a Mandel argument but it is far stronger given
that you have the process and substance upon
which this proclamation was based because
whatever you -shy
JUSTICE KAGAN Well I guess I wonder
why that is just because when I read Mandel
I dont see anything about process or you have
to meet a certain kind of bar
GENERAL FRANCISCO Uh-huh
JUSTICE KAGAN Mandel really is kind
of you state a reason and this Court stops
GENERAL FRANCISCO And I think that
that is right but I think that when you in
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addition to that have the extensive worldwide
process that we had that resulted in a
cabinet-level recommendation that applied a
neutral baseline to every country in the world
concluded that almost all the world including
almost all of the Muslim-majority world passed
that baseline but a tiny number of countries
didnt I think that whether you apply Mandel
or whether you apply McCreary that makes the
constitutional case in our favor overwhelmingly
strong Its a -shy
JUSTICE KAGAN So let me give you a
hypothetical and its just -- you know I
think that there are ways to distinguish Mandel
in this case but -- but -- but you know just
in terms of thinking about what Mandel really
forecloses here
GENERAL FRANCISCO And I -- because
Mandel there are only two cases in the area
and its -- its hard to understand the full
contours of it
JUSTICE KAGAN I agree So this is a
hypothetical that youve heard a variant of
before that the government has at any rate
but I want to just give you
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So lets say in some future time a -shy
a President gets elected who is a vehement
anti-Semite -shy
GENERAL FRANCISCO Uh-huh
JUSTICE KAGAN -- and says all kinds
of denigrating comments about 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 dot all the
is and they 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
GENERAL FRANCISCO Right
JUSTICE KAGAN Do you say Mandel puts
an end to judicial review of that set of facts
GENERAL FRANCISCO No Your Honor I
dont say Mandel puts an end to it but I do
say that in that context Mandel would be the
starting point of the analysis because it does
involve the exclusion of aliens which is where
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Mandel applies
If his cabinet -- and this is a very
tough hypothetical that weve 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 in his private heart of hearts
he also harbored animus
JUSTICE KAGAN Well the question is
GENERAL FRANCISCO I would also
suggest though -- if I could finish that Your
Honor -- that I think it would be very
difficult for that to even satisfy Mandel
rational basis scrutiny Id need to know what
the rational was Given that Israel happens to
be one of the countrys closest allies in the
war against terrorism its not clear to me
that you actually could satisfy -shy
JUSTICE KAGAN Well -shy
GENERAL FRANCISCO -- Mandels
rational basis standard on that unless it
truly were based -shy
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JUSTICE KAGAN Yes
GENERAL FRANCISCO -- on a
cabinet-level recommendation that was about
national security
JUSTICE KAGAN General Im -- lets
-- this is a out-of-the-box kind of President
in my hypothetical And -shy
(Laughter)
GENERAL FRANCISCO We -- we -- we
dont have those Your Honor
JUSTICE KAGAN And -- and you know
he thinks that there are good diplomatic
reasons and there might -- who knows what the
future holds that there might be good
diplomatic reasons to put pressure on Israel or
to say we want Israel to vote a certain way in
the UN and this is a way to better our
diplomatic hand and so this is what he does
And -- 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 think -shy
GENERAL FRANCISCO Right
JUSTICE KAGAN -- given this context
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in which this hypothetical President -shy
GENERAL FRANCISCO Sure
JUSTICE KAGAN -- is making virulent
anti-Semitic comments
GENERAL FRANCISCO Right And Your
Honor its a tough hypothetical but its why
I also think that this is a relatively easy
case because were 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 though we think that its
wrong that you applied some kind of domestic
establishment clause jurisprudence because
were 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 dont have the extreme
hypothetical that youre suggesting Your
Honor we do have a multi-agency worldwide
review and a cabinet-level recommendation that
applied a neutral baseline And this wasnt
done just by the cabinet secretaries but by the
agencies to every country in the world and
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concluded -shy
JUSTICE SOTOMAYOR Mr General you
just -shy
JUSTICE KENNEDY If -- if you have
that extreme hypothetical would that present a
free exercise or an Establishment Clause claim
or both
GENERAL FRANCISCO It could
definitely present a free exercise clause
challenge Your Honor just as you had a free
speech type claim in the Mandel case
And there would be people who could
bring that claim and who could potentially
succeed on that claim
JUSTICE KENNEDY And -- and the
people that could bring that claim I assume
were relatives of people that were excluded
father son
GENERAL FRANCISCO On free exercise
potentially I think all -shy
JUSTICE KENNEDY Yeah what about a
university
GENERAL FRANCISCO I think a
university could bring a free speech-type claim
under Mandel much -shy
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JUSTICE SOTOMAYOR Why not an
Establishment Clause claim
GENERAL FRANCISCO And -- and -shy
because Your Honor and the reason why I think
they havent pursued those types of claims is
because I dont think they would possibly
support the types of nationwide injunction that
theyre asking for
Your Honor the reason why I dont
think that they could bring an Establishment
Clause claim is because the proclamation
doesnt actually apply to the Respondents It
only applies to aliens abroad who have no
constitutional right to enter
JUSTICE SOTOMAYOR No but the claim
is that it -- that the proclamation is in place
because of a dislike of a particular religion
And I thought the Establishment Clause at its
heart is that we cannot be anything but neutral
with respect to religion or its practice
GENERAL FRANCISCO 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
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standing to challenge the land transfer from
the government to the Christian college on the
ground that it sent a pro-Christian or
anti-atheist message That -shy
JUSTICE SOTOMAYOR But these people
are saying that that negative religious
attitude is stopping them -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- 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
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR Which is one of
the purposes of the INS
GENERAL FRANCISCO And -- and thats
where they might have free exercise or free
speech claims along the type that Justice
Kennedy suggested -shy
JUSTICE SOTOMAYOR Well but I -shy
GENERAL FRANCISCO -- but which
couldnt support a nationwide injunction I
dont think that that gives them an
Establishment Clause claim when the
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proclamation doesnt actually apply to them
because -shy
JUSTICE SOTOMAYOR General today
can we go back to something thats 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 -- Im
summarizing in an incomplete way -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- 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 -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- not extreme
that he can hire or fire anyone he wants and
that he can put in place whatever policy he
wants
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR If we take Justice
Kagans hypothetical President -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- who basically
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says to his review committee I want to keep
out Jews -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- period find a
way Thats their charge
So in that situation why would the
actions of the committee whatever this is
Executive Committee not be subject to great
suspicion and to thorough review -- which
actually wasnt completely -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- done here -shy
given that they are responsible to the
executive -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- and theyve
been told what the outcome of their
deliberations must be
GENERAL FRANCISCO Sure And I have
two responses to that Your Honor
The first is that the Presidents
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
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cabinet member would refuse to comply or resign
in the face of a plainly unconstitutional
order 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 Mandel
standard
Here however you dont have anything
like that Rather you have the cabinet doing
its job through the agencies where they ask
the agencies to construct and apply 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 across the line
JUSTICE SOTOMAYOR General the
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problem is that I dont 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
the litigants or the courts exactly what was
done how what the evaluation and how -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- it was applied
to all those countries in the world
I understand some of the
confidentiality that might concern you but if
the backdrop is the way that Justice Kagan
described it -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- that -- that
heated -shy
GENERAL FRANCISCO Well I -- yeah -shy
JUSTICE SOTOMAYOR -- anti-Semitic
background dont you think that once you get
through the Mandel preliminary 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
GENERAL FRANCISCO Well Your Honor
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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
owes to another coequal branch of the
government there is a very strong presumption
that what is being set out there is the truth
JUSTICE KAGAN You -- you said
something earlier General I want to make sure
that I got it right You said if at the time
the President had said we dont want Muslims
coming into this country -shy
GENERAL FRANCISCO Uh-huh
JUSTICE KAGAN -- that that would
undermine the proclamation
GENERAL FRANCISCO Yes
JUSTICE KAGAN Did I get you right
GENERAL FRANCISCO Yes
JUSTICE KAGAN So I -- I think you
know honestly the difference here then seems
to be is everything that the President said
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effectively that
GENERAL FRANCISCO I think there are
two issues Your Honor 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 embodiment of the executive branch So
that those statements should be out of bounds
But for -shy
JUSTICE KENNEDY But suppose you have
a local mayor and as a candidate he makes
vituperative hate -- hateful statements hes
elected and on day two he takes acts that are
consistent with those hateful statements
Thats -- whatever he said in the campaign is
irrelevant
GENERAL FRANCISCO Your -- Your
Honor if he takes the same oath -shy
JUSTICE KENNEDY You would say
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whatever he said in the campaign is irrelevant
GENERAL FRANCISCO I would say two
things And that was the -- and the second
thing is the point I was about to turn to I
would say yes because we do think that oath
marks a fundamental transformation but I would
also say here it doesnt matter because here
the statements that they principally rely on
dont actually address the meaning of the
proclamation itself
This is not a so-called Muslim ban
If it were it would be the most ineffective
Muslim ban that one could possibly imagine
since not only does it exclude the vast
majority of the Muslim world it also omits
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 multi-agency worldwide review that
applied neutral criteria all across the world
and concluded under those neutral criteria
most of the world was fine but a small part of
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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
JUSTICE BREYER All right Can -shy
can I ask a more -- I did read I think almost
all the 80 briefs Now your time -- what do -shy
CHIEF JUSTICE ROBERTS Yeah dont
worry Please go ahead
JUSTICE BREYER All right All
right All right Almost 80 and I think I -shy
some were repetitive not too many And I
think I know the basic arguments but theres
one question Im left with and it starts with
an assumption which I think you share but I
want to be sure All right
I noticed that the Carter order and
the Reagan order both had case-by-case
exceptions
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER And I looked 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
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individual circumstances such as giving some
examples the following
And then they have to be no
terrorists Well thats the law anyway And
they -- they have to be in the interests of the
United States And there cant be undue
hardship which the only time the word
hardship appears in the immigration laws it
says extreme hardship
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER So undue must be
less than extreme
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER Okay So Im -- then
they have a list people with foreign contacts
previously established business reasons
theyve been here studying or other long-term
activity they want to visit or reside with a
close family member they have a disease or
something that they need -shy
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER -- treatment for
they -- previously been employed And there
are about five other things
GENERAL FRANCISCO Yeah
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JUSTICE BREYER All right Focus on
that class of individuals
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER Now in countries -shy
150 million people all together there must be
quite a few who have -- do fall within that
class So -shy
GENERAL FRANCISCO Well yes Your
Honor but theres only a small number of
people that seek to come into our country
JUSTICE BREYER Well thats what Im
asking about
GENERAL FRANCISCO Yeah
JUSTICE BREYER You see
GENERAL FRANCISCO Yeah
JUSTICE BREYER Thats now -- if you
-- you think -- now as far as were concerned
if they fall within that class there -shy
theres no reason given here why they should be
excluded other than the -- the normal
processes
GENERAL FRANCISCO Well a couple of
responses Your Honor
JUSTICE BREYER What
GENERAL FRANCISCO First in terms of
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the numbers -shy
JUSTICE BREYER Im not asking about
the numbers
GENERAL FRANCISCO Oh oh youre not
asking -shy
JUSTICE BREYER I want to ask about
GENERAL FRANCISCO So -- so in terms
of the reason -shy
JUSTICE BREYER Yeah
GENERAL FRANCISCO -- they should be
excluded one of the principal purposes of the
proclamation is to exert diplomatic pressure on
governments in order to get them to change and
provide us with the information -shy
JUSTICE BREYER So you think they
should be excluded
GENERAL FRANCISCO Not if they meet
the criteria for the -shy
JUSTICE BREYER Not if they meet the
criteria
GENERAL FRANCISCO -- for the waiver
JUSTICE BREYER Okay Okay So
theres -shy
GENERAL FRANCISCO Thats why we have
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-- thats why we have the waiver
JUSTICE BREYER Thats -- thats -shy
thats what I thought you would say
GENERAL FRANCISCO Yeah
JUSTICE BREYER Then I get -- can ask
my question Sorry
GENERAL FRANCISCO Yes
JUSTICE BREYER But I want to be sure
were the same wavelength
GENERAL FRANCISCO Yes
(Laughter)
JUSTICE BREYER Okay 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 theres the
business community complaining theres the
academic community there were 46 scholars at
Harvard there -- there are families in the
Lisa Blatt brief you know that -- that they
say we were trying to get medical treatment and
nobody told us about this and -- and theyve
only admitted two and theres supposed to be
guidance and -shy
GENERAL FRANCISCO Thats not true
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JUSTICE BREYER -- you havent put in
the guidance and -- and -- and the most there
are is 100 And so there is my question If
you have done the same thing that the Reagan
people did and the Carter people did then it
might be -- Im not expressing a definite
opinion -- but well youve got the same thing
here but if this is as one brief says just
window dressing and they never apply it -shy
GENERAL FRANCISCO Right
JUSTICE BREYER -- then you have
something new and different going well beyond
what President Reagan did
GENERAL FRANCISCO Sure
JUSTICE BREYER Okay So I want to
know how do I find out -- how do I find out
when there is not that information in the
brief do we have to -- can we have another
hearing Do we send it back Do we say look
the government of course thinks this isnt
window dressing -shy
GENERAL FRANCISCO Right
JUSTICE BREYER -- but the other side
says there are only two people no notice
nobody knows
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GENERAL FRANCISCO So Your Honor
two -shy
JUSTICE BREYER There are people in
Yemen there are people in Somalia -shy
GENERAL FRANCISCO Yeah
JUSTICE BREYER -- decent people
Business -- you see my point
GENERAL FRANCISCO Yes
JUSTICE BREYER Whats the answer
GENERAL FRANCISCO And two responses
JUSTICE BREYER Yes
GENERAL FRANCISCO Our reply brief
has our most -- most current number on waivers
and I believe the number at page 17 footnote
-- well its -- its over 400 I cant
remember the exact statement
JUSTICE BREYER All right Thats
400 out of 150 million
GENERAL FRANCISCO And then -shy
JUSTICE BREYER And -- and is it well
publicized in these countries that they know
all they have to do is go to the visa office
and say I understand the thing I want an
exception
GENERAL FRANCISCO No Your Honor
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and I have two -- two responses -shy
JUSTICE BREYER Yeah
GENERAL FRANCISCO -- to that One
is I dont know how well publicized it is but
I suspect that people understand how to get it
My second principal response is
though that frankly in terms of the
legality I think that the waiver is not
necessary although it is a very good thing
which is why -shy
JUSTICE BREYER Not necessary There
-- there you have President Reagan -shy
GENERAL FRANCISCO -- which is why
most -- which is why most governments dont -shy
which is why its -- its a good thing which
is why most of these proclamations often have
them But theres nothing in -shy
JUSTICE BREYER Okay So you want me
to consider -shy
GENERAL FRANCISCO -- the law that
actually requires it
JUSTICE BREYER Thats what you want
You want me to consider the lawfulness of this
order on the assumption that there is no
waiver
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GENERAL FRANCISCO I dont -shy
JUSTICE BREYER Which is not what -shy
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 here thats the -shy
thats the -shy
GENERAL FRANCISCO Right The answer
to my -- your question Your Honor is no I
dont want you to consider the proclamation on
the -- on the hypothetical situation that it is
what it isnt but I do think that the
proclamation as written and as applied falls
well within the Presidents authority under
1182(f)
Thank you Mr Chief Justice
CHIEF JUSTICE ROBERTS Thank you
General We will afford you rebuttal time
GENERAL FRANCISCO Thank you
CHIEF JUSTICE ROBERTS Mr Katyal
ORAL ARGUMENT OF NEAL K KATYAL
ON BEHALF OF THE RESPONDENTS
MR KATYAL Thank you Mr Chief
Justice and may it please the Court
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The executive order is unlawful for
three reasons It conflicts with Congresss
policy choices It defies the bar on
nationality discrimination something you never
heard my friend talk about And it violates
the First Amendment
Congress has already specified a
three-part solution to the very same problem
the order addresses Aliens seeking entry from
countries that dont cooperate with the United
States in vetting including state sponsors of
terrorism and countries that provide inaccurate
information
First aliens have to go through the
individualized 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 the order uses Congress rejected a
ban Instead it used carrots When countries
cooperated theyd get extra credit a track -shy
faster track for admission Legislation to use
big sticks like nationality bans failed
And third Congress was aware
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circumstances could change on the ground so it
required reporting to them so it could change
the law
CHIEF JUSTICE ROBERTS Well lets
take big sticks fail Lets suppose that the
intelligence agencies go to the President and
say we have 100 percent solid information
that on a particular day 20 nationals from
Syria are going to enter the United States with
chemical and biological weapons They could
kill tens of thousands of Americans
In that situation could the President
ban the entry of Syrian nationals on that one
day
MR KATYAL He could for two reasons
Theres two different arguments Theres the
nationality discrimination ban 1152 and then
theres you know whether or not this comports
with Congresss policy judgments
And with respect to both I think it
would It wouldnt be nationality
discrimination for the reasons Judge Sentelle
said in LAVAS when you have an emergency
fast-moving situation like the Syria example
youre saying
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CHIEF JUSTICE ROBERTS Well just to
stop interrupt you there I mean what if
its a week What if its a week a month from
now Thats what the intelligence information
is
In other words Im trying to -shy
MR KATYAL Right
CHIEF JUSTICE ROBERTS -- respond to
your point that it has to be an immediate
decision
MR KATYAL Yeah So I think you
know this Courts dealt with that in
Youngstown and Hamdan and said look you know
the Presidents going to get a pass absolutely
on you know what he says the emergency is
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 460 days on -- later
Mr Chief Justice Hes never even introduced
legislation about this So were so far from
that hypothetical well concede the
hypothetical
CHIEF JUSTICE ROBERTS Well imagine
-- imagine if you can that Congress is unable
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to act when the President asked for
legislation
(Laughter)
MR KATYAL Right
CHIEF JUSTICE ROBERTS And someone
introduces a bill saying lets authorize -shy
first of all the President may have qualms
about sharing that absolute intelligence
broadly but lets say theres a bill
introduced to say lets authorize the President
and theres a bill introduced to say lets
block the President and neither bill moves
MR KATYAL 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 -- theres only one
problem hes identifying which is countries
not cooperating
Hes not talking about people coming
in or something like that like your
hypothetical And with respect to that
Congress has said heres how we deal with it
We deal with it with the individualized vetting
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system which pushes all the burdens on a
person coming in Thats 1361
Youve got to show biometric ID under
the statute Youve got to have an in-person
interview if theres any risk that the person
is from a country thats a state sponsor of
terrorism like your hypothetical or anything
else
So Congress has really said in a
robust way heres how we would deal with it
And to the extent countries arent cooperating
we offer carrots
Congress rejected exactly what theyre
trying to propose here which is a flat
nationality ban And thats where I think the
force of our argument lies with respect to the
first point which is this is countermanding
Congresss policy judgments
My friend on the other side actually
in his brief -shy
JUSTICE ALITO Well Congress did -shy
Congress did act It enacted 1182(f)
MR KATYAL Correct
JUSTICE ALITO Why doesnt this fall
squarely within the language of 1182(f)
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MR KATYAL For -- for -- we have
both textual reasons that its not a class for
reasons Justice Breyer was talking about Its
not perpetuated -- its perpetual like Justice
Ginsburg was talking about But we think
theres a much bigger point Justice Alito
which is -shy
JUSTICE ALITO Well maybe you could
talk about the text Its not a class
Doesnt 11 -- doesnt 1182(f) say whenever the
President finds that the entry of any aliens -shy
MR KATYAL Correct
JUSTICE ALITO -- or any class of
aliens So put class aside although I dont
really see why people who are nationals of a
particular country dont constitute a class
What about any aliens
MR KATYAL Right So we think it is
any you know -- because the power in 1182 is
so broad and sweeping and does allow the
President to supplement what Congress has done
we think that you have to -- you have to be
careful and read limit -- you have to read it
just the way you read every other statute to
say how do we harmonize that broad text of
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1182(f) with the rest of the INA
And our point in our briefs which I
dont 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 you know and end so-called chain
migration or anything like that He could do
-- countermand any of the provisions of the INA
and turn it into a line item veto
So for that reason we think there
has to be some limit Thats something this
Courts dealt with in you know the tobacco
case or -shy
JUSTICE ALITO Well does this
proclamation do anything like that Does this
proclamation purport to establish a new
permanent immigration policy for the United
States
MR KATYAL Absolutely Your Honor
This is a perpetual policy that bans It does
exactly what Congress in 1965 said you cant
do And it countermands Congresss
fine-grained reticulated judgment from 2001
2015 and several other times which is to say
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instead of these flat bans were going to have
-- were going to balance foreign policy
considerations economic considerations like
the US companies brief humanitarian image
of the United States views all of that
together and said we wont do the flat ban
Instead were going to have a much
more fine-grained approach with individualized
vetting and carrots for the countries that
dont disagree -- that dont cooperate
JUSTICE ALITO What is your basis for
saying that it is perpetual
MR KATYAL Well theres nothing in
the order that ends it And you heard my
friend say oh that would doom all executive
orders But thats not true Half of these -shy
JUSTICE KENNEDY I thought it had to
be reexamined every 180 days
MR KATYAL No thats not what it
says It says theres a report that has to
come in at 180 days and nothing happens at the
end of the report
JUSTICE KENNEDY Well that -- that
indicates there will be a reassessment
MR KATYAL Well in -shy
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JUSTICE KENNEDY And then the -- and
-- and the President has continuing discretion
MR KATYAL Justice Kennedy this
argument wouldnt be there if there was
anything about reassessment the way there are
in about half the orders including the Cuba
order which says it sunsets once the crisis
ends Theres nothing like that in this
And its just like a reporting
requirement to Congress in which Congress isnt
necessarily required to do anything Congress
has statutes like that all the time
This is that And thats why this is
unlike any other executive order If you go
back and look at all 43 executive orders that
Presidents have issued none of them have even
arguably countermanded Congresss judgment in
the area Theyve all been consistent
Theyve all been supplements
JUSTICE KENNEDY Well the statute
says first that -- that -- that 1182 for such
period as he deems necessary and he can have
continuing supervision over whether its still
necessary
MR KATYAL Again we wouldnt have a
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problem with that if it was tailored to a
crisis it says it sunsets and then you know
could be re-upped or something like that
Thats not what this says This is about a
perpetual problem
JUSTICE KENNEDY So you want the
President to say Im convinced that in six
months were going to have a safe world
MR KATYAL Well -- well -- well no
Justice Kennedy thats not our argument Our
argument is here the President is identifying
something that is a perennial problem Our
brief says it goes back 100 years you know
when the Soviet Union was around we dont 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
CHIEF JUSTICE ROBERTS What if the
military advisors tell the President that in
their judgment the President ought to order a
strike an air strike against Syria and the
President says well -- does that mean he cant
because you would regard that as discrimination
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against a majority Muslim country
MR KATYAL Absolutely not Theres
nothing to do with the text of the statute
The 1152 statutes about discrimination and the
issuance of visas And thats all that -shy
CHIEF JUSTICE ROBERTS So under
1182(f) you would say that theres no problem
under that provision
MR KATYAL Well under 1182 as I
understand it was a strike And so I dont
think theres any immigration issue in your
hypothetical I might be misunderstanding it
Mr Chief Justice
CHIEF JUSTICE ROBERTS Well any type
of targeted action that would have a impact on
the Muslim population
MR KATYAL Absolutely We think the
President has wide authorities to do things
that have impacts on the Muslim population
Take the laptop ban that was introduced -shy
CHIEF JUSTICE ROBERTS Why under your
theory wouldnt that constitute or the argument
would be that thats discrimination under your
Establishment Clause argument -shy
MR KATYAL Oh
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CHIEF JUSTICE ROBERTS -- that thats
discrimination on the basis of faith because he
has said in the past if you accept the -shy
MR KATYAL Yeah
CHIEF JUSTICE ROBERTS -- accept the
arguments that he -- he is anti-Muslim
MR KATYAL Not at all Your Honor
and no President has run afoul of this you
know and thats because here the President
and his advisors have directly tied this policy
to those statements And the red brief at page
70 I think is the greatest illustration of
that
Thats 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 INA is
that the President can take a wrecking ball to
the statute and countermand Congresss
fine-grained judgments that -shy
CHIEF JUSTICE ROBERTS He can never
-shy
JUSTICE KAGAN Well you might think
-shy
JUSTICE GORSUCH Mr Katyal -- Mr
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Katyal if I might on -- on the statutory
question before we leave it Weve been
proceeding so far on the assumption that we can
reach the merits but the government makes the
argument for example that aliens who are
removed from this country have to bring their
claims personally and third parties cant
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
who are not present in this country Whats
the answer to that
MR KATYAL Well several This is
not a third-party case These are United
States citizens bringing this challenge in a
state -shy
JUSTICE GORSUCH Oh behalf of -shy
MR KATYAL -- of the United States
JUSTICE GORSUCH -- aliens not
present in the country
MR KATYAL Well but they are
directly -- they are directly harmed
themselves Let me just give you one example
Not just the State of Hawaii whose university
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is directly impacted but lets just take for
example the Alomari -- Mr Alomari the
10-year-old in the PARS Equality brief Justice
Breyer that you were referring to This is a
10-year-old daughter in Yemen who is -- whos
trying to come here because she has cerebral
palsy
JUSTICE GORSUCH I understand that
but those arguments dont work with respect to
aliens present in the country So why do they
work for aliens who are not present in the
country
MR KATYAL Because I -shy
JUSTICE GORSUCH Those very same
arguments would not succeed
MR KATYAL Well -shy
JUSTICE GORSUCH I think youd
concede that they wouldnt succeed for aliens
present -shy
MR KATYAL Right And they dont
succeed because there you have a better
plaintiff might not be willing to bring them in
the United States and thats why the court
you know says no third party But here
these folks are directly impacted
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And the most important thing to say is
Sale answers this You heard my friend concede
Sale was jurisdictional the issues in Sale
Thats how they briefed it up Thats how he
just described it This Court had exactly that
situation United States plaintiffs and it
reached the merits
Our statutory point to you is that if
you accept this order youre giving the
President a power no President in 100 years has
exercised an executive proclamation that
countermands Congresss policy judgments He
has zero examples to say that when Congress has
stepped into the space and solved the exact
problem that the President can then come in
and say No I want a different solution
If you do that youd -- its not just
family preferences that youre allowing him to
get rid of youd get rid of all sorts of even
small things in the Code or big things like
theres a preference for specialty occupations
like software engineers in the INA The
President could say The economics are such
Im going to ban software engineers from going
to California or something like that under that
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sweeping 1182 power
JUSTICE KAGAN I -- I guess the
question though Mr Katyal is maybe youre
entirely right that 1182(f) needs to have some
limits to prevent the President from doing
something thats completely contrary to another
section of the statute
But youre suggesting well the
President cant do anything thats not
contemplated by the rest of the statute
MR KATYAL That is not our argument
JUSTICE KAGAN Okay 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 -shy
MR KATYAL Right
JUSTICE KAGAN -- between what the
President is doing and another statutory
provision
MR KATYAL So our view is that the
President can supplement he just cant
supplant In this Courts decisions in the
Brown amp Williamson case and the UARG greenhouse
gas and Concepcion and Abilene Cotton the
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Savings Clause cases all say there are three
things you look at And its not a flat bar
It cant be like a direct contravention Even
they say its not a direct contravention in
their reply brief at page 19
So the three things are first can
these two solutions coexist or not Second
has Congress prescribed a reticulated
comprehensive scheme And third you know is
there any other indication that Congress
considered 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 -shy
Congress has a comprehensive reticulated scheme
that deals with the exact single problem that
hes identified which is countries not
cooperating It cant coexist with the
solution of a flat ban It makes no sense for
example to have the in-person visa requirement
-- visa interview which is in 12 -shy
1202(h)(2) which is for -- for people who come
from state sponsors of terrorism or who have a
group with a likelihood of providing
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inaccurate information Congress said there
has to be an in-person interview for that
It doesnt make sense to say well
youre going to have a flat ban It doesnt
make sense to have a Visa Waiver Program which
is all about countries that provide zero
information to the United States -- state
sponsors of terrorism and the like -- and say
were going to give you a carrot and then say
oh no forget about the Visa Waiver Program
JUSTICE ALITO Can -- can you imagine
any situation in which the threat of the
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
MR KATYAL Yes
JUSTICE ALITO You cannot imagine any
such situation
MR KATYAL Yes I can And the
President would have a robust authority to deal
with that That is not our argument So -shy
JUSTICE KENNEDY And your argument is
that courts have the -- the duty to review
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whether or not there is such a national
exigency thats for the courts to do not the
President
MR KATYAL No I think you have
wide deference Justice Kennedy Its exactly
what you said when you joined Justice Breyers
opinion in Hamdan which is as long as -- you
know Presidents have wide berth in this area
but if -- you know certainly if theres any
sort of emergency that precludes it
But when you have a statute that
considers the very same problem and theres
nothing new that theyve identified in this
worldwide review process that Congress didnt
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 the -shy
CHIEF JUSTICE ROBERTS But thats in
the abstract I mean they may have more -shy
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
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And it seems to me a difficult
argument to say that Congress was prescient
enough to address any particular factual
situation that might arise
MR KATYAL Well that again -shy
thats again Mr Chief Justice not our
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 But here -shy
CHIEF JUSTICE ROBERTS What about -shy
what about a change of administration in a
particular country -shy
MR KATYAL Yes
CHIEF JUSTICE ROBERTS -- in which
perhaps the vetting procedures are not going to
be taken seriously
MR KATYAL Right
CHIEF JUSTICE ROBERTS That Congress
could not have anticipated
MR KATYAL Well but again
Congress anticipated a country that is a state
sponsor of terrorism and even for -- with
respect to that providing no information and
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indeed fomenting against the United States
Congress said oh were not going to have a
nationality ban You know they flatly banned
that and said were going to have
individualized vetting and this Visa Waiver
Program carrot to try and deal with that you
know dangerous regime
Now again I can imagine an emergency
situation in which the President would have
even greater authority for that But here we
are 460 days later and I would caution the
Court not to make a decision about the
emergency youre concerned about That can be
bracketed as it was in Youngstown as it was in
Hamdan This is so far from that
The text of 1152 is flatly violated
here It says there shall be no discrimination
on the basis of nationality with the issuance
of visas
That is 39 percent of all the visas
this executive order covers Its not a small
part Its 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
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become part of our long-term polity This
executive order flatly contradicts that
Now if you accept his
interpretation -- he says well you know
were discriminating at the entry side not at
the visa side If you do that you are giving
the President the power to undo -- and hes
actually just done it -- hes undone the ban on
nationality-based discrimination Hes imposed
country quotas of zero for these countries at
the border
CHIEF JUSTICE ROBERTS If your -shy
your argument based on discrimination based on
the campaign statements is there a statute of
-- no the one that you do make based on the
campaign statements is there a statute of
limitations on that or is that a ban from
presidential findings for the rest of the
administration
MR KATYAL So Mr Chief Justice I
first want to be very clear about this Our
point about 1152 and the discrimination has
nothing to do with any campaign statements or
anything else
Its purely the text of the
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proclamation which is nationality-based
discrimination through and through Judge
Sentelle said you couldnt imagine a clearer
text than this And this is -- it violates it
Now -shy
CHIEF JUSTICE ROBERTS My question
was on the -shy
MR KATYAL -- youre asking about
the First Amendment
CHIEF JUSTICE ROBERTS Yes
MR KATYAL I just want to make
absolutely clear that were -- thats not -shy
you know you dont need to do any of that for
purposes of 1152 And that would knock out
39 percent of the most important part of the
executive order
CHIEF JUSTICE ROBERTS My question
of course -shy
MR KATYAL Yes Now Im getting -shy
CHIEF JUSTICE ROBERTS -- was not on
1152
MR KATYAL Yes Im getting there
Okay
With respect to that we dont think
-- we think that the test as this Court has
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said a reasonable objective observer viewing
all the statements and we think absolutely
my friend is right you shouldnt look to
campaign statements in general or stuff like
that 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 70
of our red brief you have a very good example
of this
After the executive order this latest
executive order was promulgated the President
tweeted these three virulent anti-Muslim
videos And then the press spokesman was
asked What does this mean What is this
about And the answer was The President has
spoken about exactly this in the proclamation
CHIEF JUSTICE ROBERTS My question
was whether or not the inhibition on the
ability to -- to enter one of the proclamations
applies forever
MR KATYAL Right No I think the
President could have disclaimed -- you know
easily moved away from all of these statements
you know but instead they embraced them
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Thats the difference
And so absolutely the President
would have wide berth to say thats a -shy
CHIEF JUSTICE ROBERTS So if
tomorrow he issues a proclamation saying hes
disavowing all those statements then the next
day he can reenter this proclamation
MR KATYAL Thats exactly what this
Court said in McCreary This Court in McCreary
said you know the same policy can be
constitutional if said -- if promulgated by one
entity and not by another depending on the
circumstances around it
CHIEF JUSTICE ROBERTS Is your answer
to my question yes
MR KATYAL Yes The answer is -shy
CHIEF JUSTICE ROBERTS Tomorrow he
issues a proclamation disavowing those
statements -shy
MR KATYAL Absolutely And thats a
CHIEF JUSTICE ROBERTS -- then the
next day he could reenter this and your
discrimination argument would not be
applicable
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MR KATYAL And -- and -- and Mr
Chief Justice thats exactly what I told the
Ninth Circuit in May The President didnt do
that Thats whats -- thats -- you know
thats what a reasonable objective observer -shy
JUSTICE SOTOMAYOR So if another -shy
JUSTICE ALITO Mr Katyal would any
reasonable observer reading this proclamation
with -- without taking into account statements
think that this was a Muslim ban
I mean there are -- I think there are
50 predominantly Muslim countries in the world
Five -- five countries -- five predominantly
Muslim countries are on this list
The population of the -- of the
predominantly Muslim countries on this list
make up about 8 percent of the worlds Muslim
population
MR KATYAL Absolutely
JUSTICE ALITO If you looked at the
10 countries with the most Muslims exactly
one -shy
MR KATYAL Right
JUSTICE ALITO -- Iran would be on
that list of the top 10
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MR KATYAL Right
JUSTICE ALITO So would a reasonable
observer think this was a Muslim ban
MR KATYAL If it were -- if it were
just the text of the order alone it might
raise eyebrows for fit and other reasons that
the briefs go into but we wouldnt be here
We absolutely agree that just -- its the same
test as in Lukumi and other cases You have to
look to all the circumstances around it that
are said the publicly available ones
You know and Justice Alito the fact
that the order only come -- encompasses some
Muslim countries I dont think means its not
religious discrimination For example if Im
an employer and I have 10 African-Americans
working for me and I only fire two of them I
dont think -- you know and say well Ive
left the other eight in I dont think anyone
can say thats not discrimination
JUSTICE ALITO No I -- I understand
that And it is one of our fundamental values
that there is religious freedom here for
everybody in that number -- adherence to every
religion are entitled to equal treatment
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My only point is that if you look at
what was done it does not look at all like a
Muslim ban There are other justifications
that jump out as to why these particular
countries were put on -- on the list
So you -- it seems to me the list
creates a strong inference that this was not
done for that invidious purpose
MR KATYAL Justice Alito I think if
it were just the list I think wed be right -shy
youd be right although Id point out that
you yourself in the Stormans case said that
its a religious -- it raises an inference of
religious gerrymander of the burden imposed
falls almost exclusively on those with
religious objections
This is a ban that really does fall
almost exclusively on Muslims between
902 percent and 998 percent Muslims And so
it does look very much like what you said in
Stormans But even then we wouldnt be here
if it werent for all of the different
statements
And the best evidence of this about
what a reasonable objective observer would
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think is to look at the wide variety of amicus
briefs in this case from every corner of
society representing millions and millions of
people from the US Conference of Catholic
Bishops which calls it blatant religious
discrimination
JUSTICE GORSUCH Mr Katyal on that
its been a long time since this Court has used
the Lemon test reasonable observer even to
strike down a domestic statute let alone
something with purely international
application What -- what do we do about that
MR KATYAL Yeah 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 and our protest of
King George which is all about using the
immigration power to exclude people of a
different faith And thats what our
Constitution is about So thats the first
thing
And the second is we dont think you
have to get into Lemon and all these other
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tests that you all have struggled with I
think this Court in Lukumi was very clear in
saying that when youre talking about
denigration of religion all the tests point in
the same direction
JUSTICE SOTOMAYOR Mr Katyal you
said something earlier you said you wouldnt
be here if all of those statements the
background statements were not made Do you
mean that on all of your bases You wouldnt
be here on the Establishment Clause claim
MR KATYAL Only on the Establishment
Clause claim not on anything else And our
point is you know he talks about for
example this worldwide vetting process
Remember his own argument on 1182 is
the statute puts the President -shy
JUSTICE SOTOMAYOR So lets -- lets
go back to not being here without the
statements Clearly the statements even
conceded by your adversary do give you a basis
to look behind all right the reason
So if were looking behind it how do
you deal with the Generals suggestion that
there was a cleansing that occurred because of
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all of the agencies and departments who
participated in this process
MR KATYAL Yeah So theres three
things Number one is that his -- his own
argument is that 1182 puts the President in the
drivers seat so the cabinets not important
Its the Presidents proclamation
Second the order itself says in its
first lines it harkens back to Executive
Orders 1 and 2 and it says its an outgrowth
of that So it was infected by the same thing
that was struck down on Establishment 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 ban
a non-politically-correct ban and the like
So given all of those things but in
particular given the fact that 1182 itself
forces the President to make the proclamation
its the Presidents proclamation so I dont
think you even have to get into this whole
unitary executive thing but I do agree with
you Justice Sotomayor that thats another
problem which is theyre coming before the
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Court and saying Nope its the President
whos in charge And now theyre saying here
Oh no no no its these other people
This is the Presidents proclamation
through and through No President has ever
said anything -- anything like this And
thats what makes this different
And the President -shy
JUSTICE KAGAN And -- and yet Mr
Katyal 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 evaluating the adequacy of those
national security interests which for the most
part weve said courts are not equipped to do
MR KATYAL Right Were not asking
you to second-guess a national security
judgment at all with the purpose of the
Establishment Clause
Were saying you just have to look to
what a reasonable objective observer would do
Thats the ordinary test that youve used in
cases like Lukumi Is there an official
purpose to disparage a religion Here there
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very much is Thats you know everything
that the President has said and that the order
itself embodies Thats our fundamental
problem
JUSTICE BREYER What do you think -shy
its a -- its a -- its still something Im -shy
Im thinking about perhaps to the side but
the statute you point to one of the ones that
is stronger for you There are obviously
objections to what youre saying in quite a few
briefs all right but the one that you talked
about it does say you have to have an
interview with a consular official if the
person is from a country officially designated
by the Secretary as a state sponsor of
terrorism It does say that
So theyll say but we do have that in
respect to everyone under the exception So
there isnt much problem Weve gone beyond
that in respect to other people All right
Take their argument for a moment
Because my question is which I
couldnt find in the briefs is is it true -shy
Im just taking what they say -- that really
that isnt so they dont publicize it they
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havent put forth a guidance people dont know
they can come in and qualify for this
And if it turns out that that is
something that is important to the lawfulness
of the order because there are many many
categories there -shy
MR KATYAL Right
JUSTICE BREYER -- what do we do
MR KATYAL So two things Number
one this waiver process has excluded -- and
you have this in the PARS Equality brief at
page 14 A 10-year-old with cerebral palsy who
wants to come to the United States to save her
life and she cant move or talk The
10-year-old was denied a waiver Justice
Breyer
He says theres 430 people who have
gotten waivers Theyve never told you the
denominator and theres no publication of this
process and how -- how often it is And the
data that we do have suggests as a matter of
percentages its very weak
Just to give you some evidence of
that just the State of Hawaii has gotten about
1000 letters from people most of which say
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were not even getting waivers on the like
JUSTICE GORSUCH That -shy
MR KATYAL Weve heard very few
instances -shy
JUSTICE GORSUCH -- raises a question
of remedy for me
MR KATYAL Yes
JUSTICE GORSUCH We have this
troubling rise of this nationwide injunction
cosmic injunction -shy
MR KATYAL Yeah yeah
JUSTICE GORSUCH -- not limited to
relief for the parties at issue or even a class
action
MR KATYAL Right
JUSTICE GORSUCH And near as I can
tell thats -- thats a really new development
where a district court asserts the right to
strike down a -- a federal statute with regard
to anybody anywhere in the world
MR KATYAL Yeah
JUSTICE GORSUCH What -- what do we
do about that
MR KATYAL Obviously the injunction
here has been trimmed by this Court itself and
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others And I do think -- I -- I share your
impulse Justice Gorsuch Thats something
that I think lower courts are debating right
now in a number of different contexts like the
contraception case and the like
I think this case is the poorest
example to get into it because of United States
versus Texass point which is this is an
immigration case and Article I Section 8 puts
Congress in the drivers 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 doesnt make a
tremendous amount of sense It would almost be
an advisory opinion
Our fundamental point to you though
is that Congress is in the drivers seat when
it comes to immigration and that this
executive order transgresses the limits that
every President has done with this proclamation
power since 1918 And to accept it here is to
accept that the President can take an iron
wrecking ball to the statute and pick and
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choose things that he doesnt want for purposes
of our immigration code That cant be the law
of the United States
CHIEF JUSTICE ROBERTS Take five
extra minutes Okay
MR KATYAL Okay
(Laughter)
CHIEF JUSTICE ROBERTS You dont have
to
(Laughter)
MR KATYAL Well if there are -- if
there are any other questions Im happy to
take anything Okay Thank you
CHIEF JUSTICE ROBERTS Thank you
counsel
Five minutes for rebuttal General
REBUTTAL ARGUMENT OF GENERAL NOEL J FRANCISCO
ON BEHALF OF THE PETITIONERS
GENERAL FRANCISCO Mr Chief -- Mr
Chief Justice and may it please the Court
I -- I really do have just a few quick
points unless Your Honors have additional
questions
Justice Breyer I did want to respond
in more detail to your question about how the
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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
the waiver -- the visa officer first determines
whether the person is otherwise admissible
under other provisions of the INA
If theyre inadmissible you never
even get to the proclamation Then for those
people who are not inadmissible under other
parts of the INA like 1182(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 youre not subject to an exception
then the consular officer him or herself
turns to the waiver provision and applies the
criteria of the waiver provision
JUSTICE GINSBURG How do you deal
with the -shy
GENERAL FRANCISCO So it does get
applied in every single case
JUSTICE GINSBURG How -- how do you
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deal with the example that was brought up of
the child with cerebral palsy
GENERAL FRANCISCO Your Honor the
waiver is built to address those issues I am
not familiar enough with the details of that
case to tell you what happened in that
particular case But thats what the waiver
provision -shy
JUSTICE BREYER But thats -- thats
you see -shy
GENERAL FRANCISCO -- is intended to
address
JUSTICE BREYER Youve read the
briefs as have I All right Now there are
some that lists about 10 or 15 instances like
the cerebral palsy One has Parkinsons Then
theres another brief that lists all the people
who are professors scholars at universities
and there are a lot And -- and then there are
people they list the students from these
countries a lot
GENERAL FRANCISCO Yeah
JUSTICE BREYER And then the business
community lists a -- a whole bunch and says my
goodness they have been unable to get -- we
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dont know whats going on
And then they say Well whats going
on is nothing is going on
GENERAL FRANCISCO Well Your Honor
-shy
JUSTICE BREYER Now I dont -- Im
not taking sides on that Im just saying I
dont know
GENERAL FRANCISCO Right And the
principal purpose of the proclamation is of
course to 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 Im 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
admissible
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 dont and doesnt tell us we
cannot intelligently make the admissibility
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determination
Third Id like to address the
1152(a)(1)(A) point about nationality-based
discrimination
JUSTICE SOTOMAYOR General could you
stop just one second
GENERAL FRANCISCO Yes Your Honor
of course
JUSTICE SOTOMAYOR I for one am like
Justice Breyer concerned about is this window
dressing or not Whats in place to ensure
its not What are you personally doing to
represent to us that it is in fact a real
waiver process -shy
GENERAL FRANCISCO Your Honor State
Department consular officers automatically
apply the waiver process in the course of every
visa application And they are doing that
which is why there have been -- and I looked at
our brief -- 430 waivers that have been issued
since -shy
JUSTICE SOTOMAYOR Have you bothered
-shy
GENERAL FRANCISCO -- the
proclamation was issued
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JUSTICE SOTOMAYOR -- to look to see
if there are reasons for all of those peoples
exclusions
GENERAL FRANCISCO Your Honor I
cannot claim that I have looked into every
individual case
JUSTICE KENNEDY Could you make your
1152 point
GENERAL FRANCISCO Yes Your Honor
1152(a)(1)(A) addresses one thing the issuance
of immigrant visas It doesnt address the
broader question over whether somebodys
allowed to enter in the first place
Thats governed by 1182 including
1182(f) So essentially 1182 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 1152(a)(1)(A) is
one of the rules that governs how we distribute
visas amongst that group thats eligible to
come in
And its not just nationality-based
distinctions that it applies to It also
applies to things like place of residence So
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once you have that universe of eligible people
1152(a)(1)(A) governs how you distribute them
But lets 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 non-immigrant visas to people who
arent allowed to enter but we wouldnt have
to allow anyone to enter and we wouldnt have
to issue any non-immigrant visas
So the bottom line is I think theyre
simply wrong on that case -- on that issue
My final point has to do with my -- my
brothers 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 25 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
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says its about Foreign policy and national
security And we would ask that you reverse
the court below
CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1109 am the case
was submitted)
Heritage Reporting Corporation
83Official
1 998 [1] 6619 39914 44111417 51581120 arise [2] 5725 584
1 [1] 6910 A 52101118
ALITO [16] 432124 446813 45
around [3] 4814 6313 6510
Article [2] 136 749 1000 [1] 7225 am [3] 116 32 826 15 4611 561119 6472024 65 aside [1] 4414 10 [4] 642125 6516 7715 Abilene [1] 5425 21221 669 asks [3] 169 519 7614 10-year-old [4] 5235 721215 ability [1] 6220 allies [2] 73 1719 assert [2] 5111 7811 1002 [2] 116 32 able [2] 2210 5111 allow [3] 413 4420 8110 asserts [1] 7318 100 [4] 353 407 4813 5310 above-entitled [1] 114 allowed [3] 178 8013 819 associate [1] 2211 11 [1] 4410 abroad [1] 2113 allowing [1] 5318 associated [1] 812 1109 [1] 826 absolute [1] 428 almost [8] 116 1556 30712 66 assume [4] 19811 2016 813 1152 [7] 4017 494 5916 6022 61 absolutely [12] 4114 4213 4520 1518 7416 assumption [3] 3016 3724 513 1421 808 49217 5810 6112 622 63220 Alomari [2] 5222 attitude [1] 227
1152(a)(1)(A [4] 793 801019 81 6419 658 alone [2] 655 6710 Attorney [1] 523 2 abstract [1] 5720 already [3] 61024 397 authorities [1] 4918
1182 [10] 1018 4419 4721 499 academic [1] 3418 although [3] 379 4414 6611 authority [7] 6916 712 3815 42 541 6816 69519 801415 accept [8] 138 454 5035 539 Amendment [3] 396 619 6716 15 5622 5910
1182(a [1] 7612 603 742324 American [1] 1111 authorize [2] 42610 1182(f [18] 4591318 54 616 7 acceptability [1] 108 Americans [2] 4011 8121 automatically [2] 764 7916 1120 1025 1314 3816 432225 account [2] 105 649 amicus [1] 671 available [1] 6511 4410 451 497 544 8015 accurate [1] 1218 amongst [1] 8021 aware [2] 391725
12 [1] 5522 across [3] 107 2524 2923 amount [1] 7416 away [2] 6224 8117 1202(h)(2 [1] 5523
1361 [1] 432
act [4] 128 177 421 4322
acting [1] 313 analysis [3] 914 1624 7013
animus [1] 1710 B
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1965 [1] 4522 added [1] 519 anti-Semite [1] 163 20 564 593 60817 6410 653
2 addition [2] 617 151 anti-Semitic [2] 194 2619 66317 691617 8119
2 [1] 6910
20 [1] 408
2001 [1] 4524
2015 [1] 4525
2018 [1] 112
25 [2] 112 8118
additional [1] 7522
address [10] 71 12618 133 299
583 77412 792 8011
addressed [2] 59 5723
addresses [3] 76 399 8010
adequacy [2] 5724 7014
adequate [1] 610
anti-Semitism [1] 1615
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anybody [1] 7320
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applicable [1] 6325
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bar [3] 1420 393 552
bare [1] 303
based [7] 1415 1725 275 2922
60131315
baseline [14] 3162123 722 819
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38 [1] 27 admissibility [3] 78 820 7825 23 269 2923 3814 76324 bases [1] 6810
39 [2] 5920 6115 admissible [4] 424 816 767 78 applies [9] 322 171 2113 6221 basic [4] 615 725 127 3014
4 19
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basically [2] 23725
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400 [2] 361518 admitted [1] 3423 231 2516 359 7917 502 5918 6821
43 [1] 4715 adopt [1] 314 approach [1] 468 became [1] 3917
430 [2] 7217 7920 adopts [1] 318 appropriate [1] 3025 become [1] 601
46 [1] 3418 adversary [1] 6821 April [1] 112 becomes [1] 5925
460 [2] 4119 5911 advice [2] 179 289 arbiter [1] 2622 began [1] 6915
5 50 [1] 6412
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affirm [1] 524
area [5] 419 1016 1519 4718 57
8
arent [2] 4311 819
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23 5118 7518
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70 [2] 5012 628 afoul [1] 508 argued [1] 236 below [6] 323 9212424 262 82
75 [1] 210 African-Americans [1] 6516 argument [37] 115 2258 348 3
8 agencies [5] 1925 251516 406
691 121241422 1327 1471013
19912 3822 4316 474 4810
benefit [1] 73
berth [2] 578 633
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80 [2] 30812 ahead [1] 3010 5827 6013 6324 6816 695 71 better [3] 1022 1817 5221
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Heritage Reporting Corporation Sheet 1 1 - big
84Official
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2
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805
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14 5115 5424 6612 672 7456
9 7624 7767 806 8113 8256
case-by-case [5] 30192325 38
77
cases [5] 1519 551 659 6913
7024
categories [1] 726
Catholic [1] 674
Catholics [1] 6718
caution [1] 5911
cerebral [4] 526 7212 77216
certain [3] 1117 1420 1816
certainly [2] 5015 579
Chad [3] 46 1010 2917
chain [1] 457
challenge [4] 2010 2123 221 51
16
change [5] 92 3314 4012 5813
charge [2] 245 702
check [1] 254
chemical [1] 4010
CHIEF [49] 3310 1125 121117
21 131 309 3817182124 404
41182024 425 4820 49613
1421 501521 5719 5861216
20 601220 616101720 6218
634141722 642 75481419
20 824
child [1] 772
choices [1] 393
choose [1] 751
Christian [1] 222
Circuit [3] 2633 643
circumstances [4] 311 401 63
13 6510
cite [2] 76 1321
citizen [3] 28712 625
citizens [1] 5116
claim [15] 1320 20611131416
24 2121115 2225 5014 6811
13 805
claimed [1] 2624
claims [4] 1317 215 2219 517
class [10] 322718 3413 4429
131416 7313
Clause [15] 1320 1914 2069 21
21118 2225 288 4924 551 68
1113 6912 7020
cleansing [1] 6825
clear [8] 923 1720 2123 5016
5415 6021 6112 682
clearer [1] 613
Clearly [1] 6820
close [1] 3119
closest [2] 73 1719
Code [2] 5320 752
coequal [1] 279
coexist [2] 55719
college [1] 222
come [13] 1324 175 3210 4621
526 5315 5523 5925 6513 72
213 801622
comes [3] 1322 5717 7420
coming [5] 79 2716 4221 432
6925
comments [2] 166 194
committee [4] 512 24178
community [3] 341718 7724
companies [1] 464
compare [1] 1012
complaining [1] 3417
complete [1] 118
completely [2] 2410 546
comply [1] 251
comports [1] 4018
comprehensive [2] 55916
concede [3] 4122 5218 532
conceded [1] 6821
Concepcion [1] 5425
concern [2] 59 2612
concerned [3] 3217 5913 7910
concerns [2] 1122 129
concluded [4] 155 201 2518 29
24
conduct [2] 824 95
Conference [1] 674
confident [1] 1915
confidential [1] 265
confidentiality [1] 2612
confirms [1] 2921
conflict [1] 5416
conflicts [1] 392
Congress [40] 41015 5710 64
81024 385 397172025 4117
25 421624 439132122 4421
4522 47101011 4817 5313 55
81016 561 571423 5822023
592 741019
Congresss [7] 392 4019 4318
4523 4717 5019 5312
consequences [1] 5017
consider [6] 199 284 371923
3811 5715
considerations [4] 106 4633
4819
considered [1] 5511
considers [1] 5712
consistent [2] 2820 4718
constantly [1] 718
constitute [2] 4416 4922
Constitution [3] 2424 289 6722
constitutional [6] 1317 1510 19
18 2114 5014 6311
constitutionally [1] 2810
construct [1] 2516
consular [6] 121 7113 76412
18 7916
contacts [1] 3115
contemplated [1] 5410
context [3] 161523 1825
contexts [2] 5725 744
continuing [2] 47223
contours [1] 1521
contraception [1] 745
contradicts [1] 602
contrary [2] 54614
contravention [2] 5534
convinced [1] 487
cooperate [5] 84 3910 4610 48
15 5717
cooperated [1] 3922
cooperating [3] 4220 4311 55
19
core [1] 720
corner [1] 672
correct [4] 13911 4323 4412
cosmic [1] 7310
Cotton [1] 5425
couldnt [3] 2223 613 7123
counsel [2] 7515 825
countermand [2] 459 5019
countermanded [1] 4717
countermanding [1] 4317
countermands [2] 4523 5312
countries [45] 3152225 51821
22 749 91920 1047 1112 15
7 2212 252224 2610 2916 32
4 3621 3910121821 4219 43
11 469 4815 5518 566 5716
5810 6010 641213141621 65
14 665 7721 7811 812224
country [29] 416 811 99 154
1925 251718 2716 305 3210
4215 436 4416 491 516912
21 521012 5615 581423 6010
7114 8017 812123
countrys [1] 1719
couple [2] 271 3222
course [8] 1323 1679 3520 61
18 7811 79817
COURT [22] 1115 311 1218 13
8 1423 3825 5223 535 5912
6125 6399 678 682 701 7318
25 741315 7520 823
Courts [3] 4112 4513 5423
courts [5] 266 5625 572 7016
743
covered [2] 1114 2917
covers [2] 1112 5921
created [2] 5815
creates [1] 667
credit [1] 3922
criminal [2] 83 304
crisis [2] 477 482
criteria [8] 512 910 292324 33
1921 3919 7620
cross [1] 1613
crystal-clear [2] 811820
Cuba [2] 95 476
current [1] 3613
cuts [1] 6715
D DC [3] 1112022
Heritage Reporting Corporation Sheet 2 bigger - DC
85Official
danger [1] 525
dangerous [1] 597
data [1] 7221
daughter [1] 525
day [5] 2819 40814 63723
days [4] 4119 461821 5911
deal [8] 422425 4310 5622 596
6824 7621 771
deals [1] 5517
dealt [3] 173 4112 4513
debating [1] 743
decent [1] 366
decided [3] 610 121213
decision [3] 2122 4110 5912
decisions [1] 5423
deemed [1] 5616
deems [1] 4722
defend [1] 2423
deference [2] 4118 575
defies [1] 393
definite [1] 356
definitely [1] 209
deliberations [1] 2418
denied [1] 7215
denigrating [1] 166
denigration [1] 684
denominator [1] 7219
Department [3] 120 761 7916
departments [1] 691
depending [1] 6312
depends [1] 7816
described [3] 811 2614 535
designated [2] 518 7114
despite [1] 1214
detail [3] 1020 274 7525
detailed [3] 101825 1110
details [1] 775
determination [2] 815 791
determine [4] 424 78 819 7817
determined [1] 714
determines [1] 766
developing [1] 5722
development [1] 7317
difference [2] 2724 631
different [10] 822 3512 4016 53
16 5511 6622 6721 707 744
816
difficult [2] 1716 581
diplomatic [5] 324 18121518
3313
direct [3] 5415 5534
direction [2] 5512 685
directly [6] 5010 512323 52125
5413
disagree [1] 4610
disagreed [1] 813
disavowing [2] 63618
disclaimed [1] 6223
discretion [1] 472
discriminating [1] 605
discrimination [17] 394 401722
4825 49423 502 5917 60913
22 612 6324 651520 676 794
disease [1] 3119
dislike [1] 2117
disparage [1] 7025
distinctions [1] 8024
distinguish [1] 1514
distribute [2] 8020 812
district [1] 7318
Doe [1] 88
doing [8] 63 229 2514 5015 54
519 791218
domestic [2] 1913 6710
DONALD [2] 13 35
done [9] 1924 2412 267 354 44
21 608 6628 7422
doom [1] 4615
dot [1] 1612
down [4] 256 6710 6912 7319
dressing [3] 35921 7911
drivers [3] 696 741019
dropped [1] 46
duty [2] 276 5625
duty-bound [1] 2423
E earlier [2] 2713 687
easily [1] 6224
easy [1] 197
economic [1] 463
economics [1] 5323
effectively [1] 281
eight [1] 6519
either [2] 1112 265
elected [2] 162 2819
eligible [3] 801621 811
embodies [1] 713
embodiment [1] 2813
embraced [1] 6225
emergency [5] 4023 4115 5710
59813
emerges [2] 161416
employed [1] 3123
employer [1] 6516
enacted [1] 4322
encompasses [1] 6513
end [6] 162022 2314 4557 46
22
ends [2] 4614 478
engaging [1] 825
engineers [2] 532224
enough [4] 415 68 583 775
ensure [2] 2623 7911
enter [7] 1617 2114 409 6220
8013 81910
entire [1] 810
entirely [1] 544
entitled [1] 6525
entity [1] 6312
entry [6] 314 414 399 4013 44
11 605
equal [1] 6525
Equality [2] 523 7211
equipped [1] 7016
ESQ [2] 122 26
essentially [3] 714 1325 8015
establish [1] 4517
established [1] 3116
Establishment [12] 1320 1914
206 2121018 2225 4924 68
1112 6912 7020
ET [2] 147
evaluating [1] 7014
evaluation [1] 267
even [20] 1310 17916 19811 25
11 4120 4716 5319 553 5824
5910 6621 679 6820 691522
73113 7610
everybody [2] 2123 6524
everyone [1] 7118
everything [2] 2725 711
evidence [2] 6624 7223
exact [4] 3616 4217 5314 5517
exactly [12] 625 266 4313 4522
535 57515 62817 638 64221
example [14] 86 4024 455 515
24 522 5521 587 629 6515 67
17 6815 747 771
examples [2] 312 5313
exception [7] 92123 1120 3624
7118 761417
exceptions [2] 302023
exclude [2] 2914 6720
excluded [6] 910 2017 3220 33
1217 7210
exclusion [2] 127 1625
exclusions [1] 803
exclusively [2] 661518
executive [23] 715151618 14
10 23712 24814 2813 391 46
15 471415 5311 5921 602 61
16 621112 69923 7421
exercise [4] 206919 2218
exercised [1] 5311
exert [1] 3313
exerts [1] 324
exigency [1] 572
expect [1] 2424
explore [1] 420
expressing [2] 510 356
extensive [1] 151
extent [1] 4311
extra [2] 3922 755
extreme [8] 514 1919 205 2314
17 255 31912
eyebrows [1] 656
F face [1] 252
facial [1] 2510
fact [8] 10311 133 2623 6512
6714 6919 7913
factors [1] 5515
facts [1] 1620
factual [1] 583
fail [1] 405
failed [4] 315 914 301 3924
failing [1] 3918
fails [1] 99
failure [1] 96
fair [1] 55
faith [3] 277 502 6721
fall [7] 323 924 1312 32618 43
24 6617
falling [1] 3412
falls [3] 44 3814 6615
familiar [1] 775
families [1] 3419
family [5] 2212 3119 4566 53
18
far [5] 1413 3217 4121 513 59
15
fast-moving [1] 4024
faster [1] 3923
father [1] 2018
favor [1] 1510
federal [1] 7319
fell [1] 920
few [4] 326 7110 733 7521
final [1] 8114
find [4] 244 351616 7123
findings [1] 6018
finds [1] 4411
fine [3] 2521 2925 7615
fine-grained [4] 4524 468 4818
5020
finish [1] 1714
fire [2] 2318 6517
first [21] 14310 2421 272 283
3225 39614 427 4317 4721
556 6021 619 671622 699 76
614 801317
fit [1] 656
five [6] 3124 64131313 75416
flat [7] 4314 4616 4817 55220
564
flatly [3] 59316 602
flexible [1] 418
Focus [1] 321
folks [1] 5225
follow [1] 178
following [1] 312
fomenting [1] 591
footnote [1] 3614
force [1] 4316
forces [1] 6920
forecloses [1] 1517
foreign [8] 42 825 106 129 31
15 462 8018 821
forever [1] 6221
Forge [2] 212225
forget [1] 5610
form [1] 1916
forth [2] 618 721
forward [2] 132224
founding [1] 6718
four [1] 7814
Fourth [1] 263
FRANCISCO [117] 119 239 37
810 417 616112225 91218
10172124 115818 1231624
13418 142122124 1518 164
1821 171323 182924 1925
2081923 21321 228141722
2310162124 243111519 268
Heritage Reporting Corporation Sheet 3 danger - FRANCISCO
86Official
151825 27172022 28223 292
3021 3110132125 32381315
2225 334811182225 3447
1025 35101422 361581012
1925 3731320 381920 7517
19 7623 7731122 7849 797
1524 8049
frankly [1] 377
free [7] 2069101924 221818
freedom [1] 6523
friend [5] 395 4319 4615 532
623
full [1] 1520
fundamental [5] 2811 296 6522
713 7418
future [2] 161 1814
G game [1] 1325
gas [1] 5425
GEN [3] 119 239
General [127] 119 3810 417 57
23 616112225 91218 1017
2124 1125818 1231624 134
1618 142122124 1518 16418
21 171323 1825924 1925 20
281923 21321 228141722
23310162124 243111519 25
25 268151825 2713172022
28223 292 3021 31101321
25 323813152225 334811
182225 34471025 35101422
3615810121925 3731320
38191920 624 75161719 76
23 7731122 7849 79571524
8049
Generals [1] 6824
George [1] 6719
gerrymander [1] 6614
gets [1] 162
getting [4] 611922 731 7414
GINSBURG [4] 48 445 762125
give [8] 711 86 151225 5124
569 6821 7223
given [10] 917 1413 1718 1825
1915 241325 3219 691819
gives [2] 616 2224
giving [3] 311 539 606
goodness [1] 7725
GORSUCH [14] 5025 511820 52
81417 677 73258121622 74
2
got [4] 2714 357 4334
gotten [2] 721824
governed [1] 8014
government [14] 825 92 109 12
1523 1322 1524 222 264 278
10 3520 514 7823
governments [2] 3314 3714
governs [2] 8020 812
great [4] 248 274 812124
greater [1] 5910
greatest [1] 5012
greenhouse [1] 5424
ground [3] 223 401 5723
grounds [2] 624 6913
group [2] 5525 8021
guess [2] 1417 542
guidance [3] 3424 352 721
H Half [2] 4616 476
Hamdan [3] 4113 577 5915
hand [1] 1818
happened [1] 776
happens [2] 1718 4621
happy [1] 7512
harbored [1] 1710
hard [1] 1520
hardship [3] 31789
harkens [1] 699
harmed [1] 5123
harmful [2] 824 95
harmonize [1] 4425
Harvard [1] 3419
hate [1] 2818
hateful [2] 281820
hatred [1] 167
HAWAII [4] 17 36 5125 7224
head [2] 23812
hear [1] 33
heard [7] 1523 39519 453 4614
532 733
hearing [1] 3519
heart [6] 179 181921 2119 59
24 6716
hearts [3] 179 182021
heated [1] 2617
heightened [1] 514
help [4] 421 721 87 2523
herself [1] 7618
hire [1] 2318
history [6] 824 1025 1111 303
4
holds [1] 1814
holistic [1] 914
home [2] 811 7823
Homeland [1] 313
honestly [2] 176 2724
Honor [38] 417 61319 71 810 9
12 1018 11511 12325 1318
1621 1715 1810 19621 2010
214922 2420 2625 28324 32
923 36125 3810 4520 507 77
3 784 79715 8049
Honors [1] 7522
hoping [1] 7814
however [3] 419 113 2513
humanitarian [2] 1121 464
hypothetical [15] 151323 173
187 191620 205 2323 3812
412223 4223 437 4912
I is [1] 1613
ID [1] 433
idea [1] 454
ideal [2] 81 303
identified [2] 5518 5713
identify [1] 824
identifying [2] 4219 4811
III [1] 136
illustrate [1] 87
illustration [1] 5012
image [1] 464
imagine [7] 2913 412425 5611
19 598 613
imbued [1] 128
immediate [1] 419
immigrant [3] 5923 8011 817
immigrants [3] 11161719
immigration [10] 412 318 4518
4911 67151720 74920 752
impact [1] 4915
impacted [2] 52125
impacts [1] 4919
impediment [1] 4117
implement [3] 422 721 815
important [7] 1324 531 5923 61
15 696 7011 724
importantly [2] 517 6914
impose [3] 617 103 457
imposed [3] 2522 609 6614
imposes [1] 91
imposing [1] 8119
improve [1] 718
impulse [1] 742
in-person [3] 434 5521 562
INA [11] 42225 618 721 816 45
19 5017 5322 76812
inaccurate [2] 3912 561
inadequate [1] 5617
inadmissible [2] 76911
including [9] 320 155 251819
2917 3911 4217 476 8014
incomplete [1] 239
inconsistent [2] 523
indeed [1] 591
independent [1] 2622
indicates [1] 4624
indication [1] 5510
individual [4] 311 781522 806
individualized [4] 3915 4225 46
8 595
individuals [2] 78 322
ineffective [1] 2912
infected [1] 6911
inference [2] 66713
infiltration [1] 5613
information [20] 31625 423 77
23 81319 97 302 3315 3517
3913 407 414 5617 5825 78
1317
inhibition [1] 6219
initial [1] 253
injunction [5] 217 2223 73910
24
injury [1] 2124
INS [1] 2216
instances [2] 734 7715
Instead [5] 3921 4617 4817 62
25
intelligence [3] 406 414 428
intelligent [1] 815
intelligently [1] 7825
intended [1] 7711
intention [1] 8119
interests [4] 1121 315 701115
international [1] 6711
interpretation [1] 604
interrupt [1] 412
interview [4] 435 5522 562 71
13
introduced [4] 4120 421011 49
20
introduces [1] 426
invidious [1] 668
involve [1] 1625
Iran [2] 94 6424
Iraq [3] 923 1010 2917
iron [1] 7424
irrelevant [2] 2822 291
irrespective [1] 147
Islam [1] 8123
isnt [5] 3520 3813 4710 7119
25
Israel [4] 1617 1718 181516
issuance [3] 495 5918 8010
issue [10] 1219 16101011 4911
5511 7313 8171113
issued [7] 54 89 1110 4716 78
22 792025
issues [6] 126 283 533 63518
774
item [1] 4510
itself [5] 2910 69819 713 7325
J Jane [1] 88
Jews [2] 166 242
job [1] 2515
join [1] 2213
joined [1] 576
Judge [2] 4022 612
judges [2] 2623
judgment [6] 43 4524 4717 48
22 7019 8019
judgments [4] 4019 4318 5020
5312
judicial [1] 1620
jump [1] 664
jurisdiction [1] 136
jurisdictional [5] 122413 133
533
jurisprudence [1] 1914
Justice [217] 120 3310 48 56 6
272023 9817 10111922 112
791525 12111721 1311516
19 1431722 151222 16519
171122 18151125 193 2024
1521 21115 2259151921 23
31117222225 2441216 2525
269131619 2712182123 28
1625 30691122 31111422 32
1411141624 3326101620
23 3425812 351111523 363
Heritage Reporting Corporation Sheet 4 FRANCISCO - Justice
87Official
69111720 372111822 382
17182125 404 41182024 42
5 432124 44346813 4515 46
111723 471320 4861020 49
6131421 5015212325 5118
20 52381417 5421218 5611
1924 575619 586121620 60
1220 616101720 6218 63414
1722 642672024 6521221
669 677 68618 6924 709 715
72815 73258121622 742 75
48142024 762125 7791323
786 79591022 8017 824
justiciability [1] 137
justifications [1] 663
K KAGAN [26] 131619 1431722
151222 16519 171122 1815
1125 193 2613 2712182123
5023 5421218 709
Kagans [1] 2323
KATYAL [79] 122 26 38212224
4015 41711 42413 4323 441
1218 4520 46131925 47325
489 49291725 504725 511
141922 52131620 5431117
21 561821 574 585151922
6020 618111922 6222 638
1620 64171923 6514 669 67
713 68612 693 701017 7279
733711152124 75611
keep [3] 241 258 4215
KENNEDY [19] 10111922 204
1521 2220 281625 461723 47
1320 48610 5624 575 807
Kennedys [1] 119
kept [1] 264
kill [1] 4011
kind [8] 142022 1612 186 1913
5415 5924 7012
kinds [1] 165
King [1] 6719
knock [1] 6114
knows [4] 181319 3525 7823
L land [1] 221
language [1] 4325
laptop [1] 4920
large [1] 5922
later [2] 4119 5911
latest [1] 6211
Laughter [5] 188 3411 423 757
10
LAVAS [1] 4023
law [4] 314 3720 403 752
lawfulness [2] 3723 724
laws [2] 411 318
layer [1] 519
lays [1] 273
learns [1] 811
least [1] 1213
leave [1] 512
left [2] 3015 6519
legality [1] 378
Legislation [3] 3923 4121 422
legislative [1] 4117
legitimacy [1] 2511
legitimate [1] 1322
Lemon [2] 67925
less [1] 3112
letters [1] 7225
level [2] 423 77
lies [1] 4316
life [1] 7214
light [1] 5722
likelihood [1] 5525
limit [3] 51 4423 4512
limitations [1] 6017
limited [1] 7312
limits [4] 420 64 545 7421
line [4] 107 2524 4510 8112
lines [1] 699
Lisa [1] 3420
list [10] 47 911 3115 64141625
665610 7720
listed [1] 919
lists [3] 77151724
litigants [1] 266
little [2] 613 141
local [1] 2817
long [3] 415 577 678
long-term [2] 3117 601
longer [2] 101419
look [16] 724 2622 3519 4113
4715 552 6238 6510 661220
671 6822 7021 801
looked [7] 5713 624 3022 6420
7919 805
looking [1] 6823
lot [5] 612 145 167 771921
love [1] 8122
low [1] 916
lower [1] 743
Lukumi [3] 659 682 7024
M made [7] 1215 14912 286 689
811820
main [1] 720
maintain [1] 717
majority [6] 31920 251920 29
15 491
Mandel [18] 1321 1410131822
158141619 16192223 17116
201125 2511 2621
Mandels [1] 1723
many [5] 3013 7255 812222
mark [1] 2811
marks [1] 296
material [1] 261
matter [5] 114 1917 259 297 72
21
mayor [1] 2817
McCreary [3] 159 6399
mean [9] 1820 412 4824 5720
6215 6411 6715 6810 814
meaning [1] 299
means [2] 144 6514
meant [2] 421 103
measures [1] 5615
medical [1] 3421
meet [4] 511 1420 331820
member [3] 2425 251 3119
members [2] 1610 2213
mentioned [2] 49 5616
merits [4] 1214 1312 514 537
message [2] 2124 224
met [1] 321
might [13] 620 181314 2218 26
12 356 4912 5023 511 5222
584 655 7413
migration [1] 458
military [1] 4821
million [2] 325 3618
millions [2] 6733
minimum [11] 316 423 7722 8
218 96 30123 7816
minutes [2] 75516
misunderstanding [1] 4912
moment [1] 7121
month [1] 413
months [1] 488
most [18] 1018 1110 1324 2912
25 352 361313 37141416 53
1 5922 6115 6421 6914 7015
7225
move [3] 107 2523 7214
moved [1] 6224
moves [1] 4212
much [8] 1120 2025 285 446 46
7 6620 71119
multi-agency [3] 312 1921 29
22
Muslim [19] 321 251820 2911
1315 4911619 6410121416
17 65314 663 811922
Muslim-majority [2] 156 2916
Muslims [5] 2715 6421 661819
8120
must [4] 2418 3111 325 7411
N narrow [1] 419
nation [1] 5924
national [14] 43 520 105 1121
129 1323 176 184 571 7011
1518 8019 821
nationality [7] 39424 401721
4315 59318
nationality-based [4] 609 611
793 8023
nationals [4] 317 40813 4415
nationwide [3] 217 2223 739
naturalization [1] 7411
nature [1] 102
nay [1] 416
NEAL [3] 122 26 3822
near [1] 7316
necessarily [1] 4711
necessary [4] 37911 472224
need [6] 420 1717 2622 304 31
20 6113
needed [7] 31725 423 77 819
781217
needs [1] 544
negative [2] 2124 226
Neither [2] 74 4212
neutral [6] 154 1923 2119 2517
292324
never [7] 359 394 4120 5021 72
18 76916
new [4] 3512 4517 5713 7317
next [3] 71 63623
Ninth [2] 262 643
nobody [2] 3422 3525
NOEL [5] 119 239 38 7517
non-immigrant [2] 81811
non-politically-correct [1] 6917
non-reviewability [2] 12114
none [1] 4716
Nope [1] 701
nor [1] 75
normal [1] 3220
nothing [8] 3717 461321 478
493 5713 6023 783
notice [1] 3524
noticed [1] 3018
number [11] 157 2522 329 34
15 361314 6524 6714 694 72
9 744
numbers [2] 3313
O oath [3] 28724 295
objections [2] 6616 7110
objective [4] 621 645 6625 70
22
observer [7] 621 6458 653 66
25 679 7022
observers [1] 1823
obviously [2] 719 7324
occupations [1] 5321
occurred [1] 6825
offer [1] 4312
office [2] 288 3622
officer [3] 7661318
officers [2] 764 7916
official [2] 7024 7113
officially [1] 7114
often [3] 3716 7220 8018
Okay [11] 3114 332323 3412 35
15 3718 5412 6123 755613
omits [2] 319 2915
Once [5] 814 1321 2620 477 81
1
one [39] 41113 52021 915 10
13 114 1220 13524 1616 17
19 2215 2314 278 2913 3015
3312 358 373 4013 4218 51
24 6015 6220 6311 6422 6522
6714 694 71811 7210 7716
7969 801020 8123
ones [3] 518 6511 718
only [17] 322 414 1116 1519 21
Heritage Reporting Corporation Sheet 5 Justice - only
88Official
13 2914 317 329 3423 3524
4218 5514 626 651317 661
6812
opinion [3] 357 577 7417
Opinions [1] 288
oral [5] 114 225 38 3822
order [31] 91 1411 2425 253 29
1921 30181923 3314 3724 39
1920 4614 47714 4822 539
5921 602 6116 621112 655
13 698 712 725 7421 7812
orders [5] 2917 4616 47615 69
10
ordinary [1] 7023
organization [1] 812
other [29] 323 75 99 105 149
311724 3220 3523 416 4319
4424 4525 4714 5510 5615 58
9 656919 663 671525 6913
703 7120 7512 76811
others [2] 915 741
Otherwise [3] 2124 2210 767
ought [1] 4822
out [13] 242 258 27311 2814 35
1616 3618 588 6114 66411
723
out-of-the-box [1] 186
outcome [1] 2417
outer [1] 420
outgrowth [1] 6910
over [5] 1325 167 3615 4723 80
12
overall [1] 915
overwhelmingly [1] 1510
owes [1] 279
own [2] 6816 694
P packed [1] 612
PAGE [6] 22 3614 5011 555 62
8 7212
palsy [4] 527 7212 77216
parameters [1] 516
Parkinsons [1] 7716
PARS [2] 523 7211
part [7] 2925 59222223 601 61
15 7016
participated [1] 692
particular [15] 1016 2117 2589
408 4416 5614 57212225 58
314 664 6919 777
parties [2] 517 7313
parts [1] 7612
party [1] 5224
pass [1] 4114
passed [1] 156
past [4] 522 822 2917 503
people [32] 20121617 225 31
15 32510 3415 355524 3634
6 375 4221 4415 5523 5925
67420 703 7120 7211725 76
11 771720 8016 8118
peoples [1] 802
percent [6] 407 5920 6115 64
17 661919
percentages [1] 7222
perennial [2] 4812 5716
perhaps [2] 5817 717
period [3] 415 244 4722
permanent [1] 4518
permission [1] 523
perpetual [4] 444 4521 4612 48
5
perpetuated [1] 444
person [6] 4325 7114 767 78
1820
personally [2] 517 7912
persons [1] 5110
Petitioners [6] 1521 2410 39
7518
pick [1] 7425
pieces [1] 725
place [6] 2116 2319 7911 8013
1725
placed [1] 3916
plainly [1] 252
plaintiff [1] 5222
plaintiffs [2] 2125 536
please [4] 311 3010 3825 7520
point [23] 1624 1820 294 367
419 4215 4317 446 452 538
5415 6022 66111 68414 718
74818 7814 793 808 8114
points [1] 7522
policy [15] 43 106 129 2319 39
3 4019 4318 451821 462 50
10 5312 6310 8018 821
political [1] 128
polity [1] 601
poorest [1] 746
population [4] 491619 641518
position [1] 5017
possibility [1] 386
possibly [2] 216 2913
potentially [2] 201320
power [11] 4418 1313 4419 45
5 5310 541 5811 607 6720 74
23
practice [1] 2120
praised [1] 8123
precedential [1] 1220
precludes [1] 5710
predominantly [3] 64121316
preference [2] 456 5321
preferences [1] 5318
preliminary [1] 2621
prescient [1] 582
prescribed [1] 558
present [8] 2059 5191221 52
101119
presidency [1] 168
PRESIDENT [86] 13 345 410
14 5913 63916 712 934 11
13131822 1313 162 1758 18
6 191 2381223 257 271525
3513 3712 3834 40612 4217
101214 441121 454 472 487
11212224 4918 508918 5310
101523 54591922 561622 57
321 5810 599 607 6271216
23 632 643 6817 6951520 70
158 712 742224 811517
Presidents [8] 313 44 2421 38
15 4114 69721 704
presidential [1] 6018
Presidents [2] 4716 578
press [2] 141 6214
pressure [8] 324 91 104 1815
252223 3313 7811
presumption [1] 2710
prevent [1] 545
previously [2] 311623
principal [4] 1319 3312 376 78
10
principally [1] 298
private [4] 179 28712 625
pro-Christian [1] 223
probably [2] 3414 7415
problem [16] 261 3413 398 42
1719 481512 497 5315 5517
571216 6925 71419
problems [3] 323 2521 5721
proc [1] 1610
procedures [1] 5817
proceeding [1] 513
process [27] 51515 810 1458
1419 152 1915 2623 274 29
20 3915 5714 6815 69215 72
1020 76123 78161823 7914
17
processes [1] 3221
proclamation [55] 318 42 54 7
24 81721 92022 102121525
111023 1311 14615 161216
191718 211116 231 273519
2910 3313 381114 451617 53
11 5514 611 6217 635718 64
8 6972021 70410 7422 7610
131516 7810 7925 81525
proclamations [1] 421
proclamations [5] 823 1013 11
3 3716 6220
professors [1] 7718
Program [5] 725 56510 596
promulgated [2] 6212 6311
propose [1] 4314
protect [3] 41 2423 304
protest [1] 6718
provide [8] 31625 96 301 3315
3912 566 7812
provides [1] 72
providing [2] 5525 5825
provision [6] 1120 498 5420 76
1920 778
provisions [2] 459 768
provokes [1] 166
publication [1] 7219
publicize [1] 7125
publicized [2] 3621 374
publicly [1] 6511
publish [1] 762
purely [2] 6025 6711
purport [1] 4517
purports [1] 2919
purpose [5] 721 668 701925 78
10
purposes [4] 2216 3312 6114
751
pursuant [2] 89 7822
pursued [1] 215
pushes [1] 431
put [6] 1815 2319 351 4414 66
5 721
puts [5] 161922 6817 695 749
Q qualify [1] 722
qualms [1] 427
question [23] 612 119 1711 18
2122 3015 346 353 3810 41
16 51210 543 5724 61617 62
18 6315 7012 7122 735 7525
8012
questions [3] 5725 751223
quick [1] 7521
quite [4] 922 1915 326 7110
quotas [1] 6010
R race [1] 259
raise [1] 656
raised [1] 1222
raises [2] 6613 735
rate [1] 1524
Rather [1] 2514
rational [3] 17171824
re-upped [1] 483
reach [1] 514
reached [1] 537
read [8] 413 1418 307 3416 44
232324 7713
reading [1] 648
Reagan [8] 94 1012 113 3019
35413 3712 383
Reagans [1] 1113
real [1] 7913
real-time [1] 85
really [14] 720 81721 125 1422
1516 1821 439 4415 6617 71
24 7317 7521 814
reason [9] 132324 1423 2149
3219 339 4511 6822
reasonable [8] 1822 621 6458
652 6625 679 7022
reasons [11] 181315 3116 392
401522 4423 656 7412 802
reassessment [2] 4624 475
REBUTTAL [4] 28 3819 7516
17
receives [1] 289
recent [1] 522
recently [1] 46
recognition [1] 8115
recommendation [3] 153 183
1922
recommendations [2] 319 16
Heritage Reporting Corporation Sheet 6 only - recommendations
89Official
11
recommended [2] 314 2523
red [2] 5011 629
reenter [2] 63723
reexamined [1] 4618
referring [1] 524
reflect [1] 822
reflects [2] 42 101
refuse [1] 251
refused [1] 265
regard [2] 4825 7319
regime [1] 597
regularity [1] 277
rejected [2] 3920 4313
rekindled [1] 628
relatively [1] 197
relatives [1] 2017
relief [1] 7313
religion [6] 211720 259 6525
684 7025
religious [7] 226 651523 6613
1416 675
rely [1] 298
remedy [1] 736
remember [2] 3616 6816
removed [2] 4118 516
repetitive [1] 3013
reply [2] 3612 555
report [2] 462022
reporting [4] 823 402 479
represent [4] 981318 7913
representing [1] 673
required [3] 132 402 4711
requirement [2] 4710 5521
requires [1] 3721
resentment [1] 167
reside [1] 3118
residence [1] 8025
residual [1] 4214
resign [1] 251
respect [13] 945 2120 4020 42
23 4316 529 5513 5614 5825
6124 711820
respond [2] 418 7524
Respondents [5] 1823 27 21
12 3823
response [2] 1320 376
responses [5] 2420 271 3223
3610 371
responsible [2] 411 2413
rest [3] 451 5410 6018
restrictions [3] 315 617 6717
resulted [1] 152
reticulated [3] 4524 55816
reverse [1] 822
review [10] 312 519 1620 1922
2419 2922 5625 5714 6915
reviewability [1] 1219
reviewed [1] 262
rid [2] 531919
rights [2] 51811
rise [1] 739
risk [2] 176 435
riskiest [1] 79
ROBERTS [38] 33 1125 121121
131 309 381821 404 411824
425 4820 4961421 501521
5719 58121620 6012 61610
1720 6218 634141722 7548
14 824
robust [2] 4310 5622
rule [2] 127 7411
rules [1] 8020
run [1] 508
S safe [2] 4215 488
safest [1] 74
sake [2] 19912
Sale [4] 1212 53233
same [15] 920 1410 2824 349
3547 39819 5214 571215 63
10 658 685 6911
sanctions [2] 9125
satisfies [2] 1312 5515
satisfy [3] 171621 3918
save [1] 7213
Savings [1] 551
saying [13] 63 226 4025 426 46
12 5413 635 683 701221 71
10 787
says [28] 16516 237 241 3024
24 319 35824 4115 462020
47721 48241324 5224 5917
604 69810 7010 7217 7410
7724 821
scenario [1] 256
scheme [2] 55916
scholars [3] 2211 3418 7718
score [1] 916
scrutiny [1] 1717
seat [3] 696 741019
second [9] 1216 293 376 3917
557 6724 698 7813 796
second-guess [1] 7018
Secondly [1] 255
secretaries [1] 1924
Secretary [3] 314 524 7115
section [2] 547 749
Security [12] 313 43 105 129
1323 176 184 70111518 80
19 822
see [8] 63 1419 261 3214 367
4415 7710 801
seek [1] 3210
seeking [1] 399
seeks [1] 824
seems [5] 2724 3414 5414 581
666
seen [2] 10815
send [1] 3519
sense [6] 823 5520 5635 7014
7416
sent [1] 223
Sentelle [2] 4022 613
sentences [1] 1014
September [1] 8118
seriously [1] 5818
set [5] 6517 716 1620 2711
sets [1] 8015
seven [1] 322
several [2] 4525 5114
severe [1] 5614
shall [2] 1617 5917
share [3] 265 3016 741
sharing [1] 428
shes [1] 816
shouldnt [1] 623
show [1] 433
shows [3] 8814 7820
side [5] 3523 4319 6056 717
sides [1] 787
significant [2] 2811 3415
similar [1] 1123
simply [2] 52 8113
since [6] 720 1919 2914 678 74
23 7921
single [2] 5517 7624
situation [10] 58 246 3812 40
1224 536 561220 584 599
situations [1] 5722
six [1] 487
slightly [1] 816
small [5] 2521 2925 329 5320
5921
so-called [2] 2911 457
society [1] 673
software [3] 532224 589
Solicitor [1] 119
solid [1] 407
solution [4] 398 4816 5316 55
20
solutions [1] 557
solved [1] 5314
Somalia [2] 922 364
somebody [1] 765
somebodys [1] 8012
someone [1] 425
son [1] 2018
sorry [3] 56 346 8116
sort [1] 5710
sorts [1] 5319
SOTOMAYOR [37] 56 62720
23 9817 112715 202 21115
22591521 23311172225 24
41216 2525 2691619 646 68
618 6924 795922 801
Soviet [1] 4814
space [1] 5314
special [2] 512 72
specialty [1] 5321
specified [1] 397
speech [2] 2011 2219
speech-type [1] 2024
spoken [1] 6217
spokesman [1] 6214
sponsor [3] 436 5824 7115
sponsors [3] 3911 5524 568
squarely [1] 4325
staff [2] 169 627
stage [1] 2621
stake [1] 7012
standard [4] 1724 1917 251217
standing [2] 2123 221
started [1] 144
starting [1] 1624
starts [1] 3015
State [13] 524 1423 3911 436
511725 5524 567 5823 7115
7224 761 7915
statement [2] 258 3616
statements [23] 1910 285614
1820 298 5011 60141623 62
24524 63619 649 6623 688
92020
STATES [20] 11416 36 316 39
11 409 4519 465 511619 52
23 536 56713 5717 591 7213
747 753
statute [16] 53 434 4424 4720
493 5019 54710 5711 6014
16 6710 6817 718 7319 7425
statutes [1] 494
statutes [3] 618 76 4712
statutory [4] 58 511 538 5419
stepped [1] 5314
sticks [2] 3924 405
still [2] 4723 716
stop [2] 412 796
stopping [1] 227
stops [1] 1423
Stormans [2] 661221
strike [5] 482323 4910 6710 73
19
strong [3] 1511 2710 667
stronger [2] 1413 719
struck [1] 6912
struggled [1] 681
students [2] 2212 7720
studying [1] 3117
stuff [1] 624
subject [4] 1210 248 761417
subjected [1] 925
submitted [2] 8257
substance [4] 1414 1916 275
2920
succeed [4] 2014 52151821
successful [2] 45 109
Sudan [1] 2918
sufficiently [1] 916
suggest [1] 1714
suggested [3] 412 516 2220
suggesting [2] 1920 548
suggestion [1] 6824
suggests [1] 7221
summarizing [1] 239
sunsets [2] 477 482
supervision [1] 4723
supplant [1] 5423
supplement [3] 712 4421 5422
supplements [1] 4719
support [2] 217 2223
supported [1] 518
Suppose [3] 87 2816 405
supposed [1] 3423
SUPREME [3] 1115 7415
Heritage Reporting Corporation Sheet 7 recommendations - SUPREME
90Official
suspect [1] 375
suspend [1] 414
suspicion [1] 249
sweeping [3] 4420 455 541
Syria [3] 40924 4823
Syrian [1] 4013
system [6] 58 71314 431 456
4818
T ts [1] 1613
tailored [3] 1023 481
talked [1] 7111
talks [1] 6814
targeted [1] 4915
tens [1] 4011
terms [5] 51 1516 3225 338 37
7
terrorism [10] 519 82 1720 303
3912 437 5524 568 5824 71
16
terrorist [2] 517 812
terrorists [2] 314 5613
test [4] 6125 659 679 7023
tests [2] 6814
Texass [1] 748
text [8] 52 44925 493 5916 60
25 614 655
textual [1] 442
themselves [2] 5124 627
theory [4] 2371415 4922
theres [30] 612 3014 32919 33
24 34161723 3717 40161618
4291118 435 446 461320 47
8 492711 5321 57912 693 72
1719 7717
therefore [1] 1210
theyll [1] 7117
theyve [7] 2416 3117 3422 47
1819 5713 7218
thinking [2] 1516 717
thinks [2] 1812 3520
third [7] 3925 51710 5224 559
6914 792
third-party [1] 5115
thorough [1] 249
though [7] 137 1714 1912 377
4216 543 7418
thousands [1] 4011
threat [1] 5612
three [9] 511 910 2916 392 551
615 6213 693
three-part [1] 398
throughout [1] 174
tied [1] 5010
tiny [1] 157
tobacco [1] 4513
today [2] 34 233
together [2] 325 466
tomorrow [3] 63517 8116
took [2] 517 385
top [1] 6425
tough [2] 173 196
tougher [1] 6916
track [2] 392223
transfer [1] 221
transformation [2] 2812 296
transgresses [1] 7421
transparent [1] 273
treatment [3] 3122 3421 6525
tremendous [1] 7416
trimmed [1] 7325
troubling [1] 739
true [4] 2121 3425 4616 7123
truly [1] 1725
TRUMP [3] 13 345
truth [1] 2711
try [4] 613 106 596 7814
trying [4] 3421 416 4314 526
turn [3] 1316 294 4510
turns [3] 723 761319
tweeted [2] 6213 6916
two [18] 1014 1519 2420 28319
292 3423 3524 36210 3711
401516 557 6517 6713 729
type [3] 2011 2219 4914
types [4] 105 2157 5715
typical [1] 823
U UN [1] 1817
US [3] 525 464 674
UARG [1] 5424
ultimate [1] 4116
unable [2] 4125 7725
unconstitutional [1] 252
under [20] 4424 816 1313 2025
2511 276 288 2924 3815 433
496892123 5325 7118 768
11
undermine [2] 2510 2719
understand [9] 135 1520 2611
3623 375 4214 4910 528 65
21
undo [1] 607
undone [1] 608
undue [2] 31611
uniform [1] 7411
Union [1] 4814
unitary [2] 236 6923
UNITED [20] 11415 35 316 39
10 409 4518 465 511519 52
23 536 56713 5717 591 7213
747 753
universe [2] 8016 811
universities [1] 7718
university [3] 202224 5125
unlawful [1] 391
unless [2] 1724 7522
unlike [1] 4714
unpack [1] 613
until [1] 41
up [10] 715161617 8814 534
6417 771 7820
urge [1] 138
uses [1] 3920
using [1] 6719
V valid [1] 88
validly [1] 7821
Valley [2] 212225
values [1] 6522
variant [1] 1523
variety [1] 671
vast [5] 31920 251920 2914
vehement [1] 162
versus [2] 36 748
vet [1] 317
veto [1] 4510
vetting [18] 51415 71313 3911
15 4225 469 481518 571824
5817 595 6815 78151822
videos [1] 6214
view [2] 286 5421
viewing [1] 621
views [1] 465
vindicate [1] 518
violated [1] 5916
violates [2] 395 614
virtually [1] 53
virulent [3] 1615 193 6213
virus [1] 588
visa [16] 510 725 899 3622 55
2122 56510 595 606 7656 78
21 7918
visa-processing [1] 589
visas [9] 495 59192023 8011
21 817811
visit [1] 3118
visited [1] 521
vituperative [1] 2818
vote [1] 1816
W Waiver [25] 725 1120 3322 341
37825 38666 56510 595 72
1015 7612361920 7747 79
1417
waivers [6] 511 3025 3613 72
18 731 7920
wanted [1] 6916
wants [3] 231820 7213
war [1] 1720
Washington [3] 1112022
wavelength [1] 349
way [12] 1220 135 181617 239
245 2613 4310 4424 475 67
15 816
ways [1] 1514
weak [1] 7222
weapons [1] 4010
website [1] 762
Wednesday [1] 112
week [3] 236 4133
whatever [6] 1416 2319 247 27
7 2821 291
whenever [1] 4410
Whereupon [1] 826
whether [13] 76 816 144 1589
284 4018 4723 571 6219 767
7818 8012
whos [2] 525 702
whole [3] 713 6922 7724
wide [5] 4918 5758 633 671
will [3] 3819 4214 4624
Williamson [1] 5424
willing [3] 19811 5222
window [3] 35921 7910
wiped [1] 588
within [8] 44 1313 32618 3413
3815 4325 7615
without [3] 649 6819 7013
wonder [1] 1417
word [2] 1023 317
words [2] 149 416
work [2] 52911
working [1] 6517
works [2] 87 761
world [19] 32021 7410 15456
1925 25171920 2610 291523
25 488 6412 7320 8124
worlds [1] 6417
worldwide [6] 312 151 1921 29
22 5714 6815
worrisome [1] 49
worry [1] 3010
wrecking [2] 5018 7425
written [1] 3814
Y yea [1] 416
years [2] 4813 5310
Yemen [2] 364 525
Youngstown [2] 4113 5914
yourself [1] 6612
Z zero [3] 5313 566 6010
Heritage Reporting Corporation Sheet 8 suspect - zero
1
2
3
4
5
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8
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15
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Official
In terms of a time limit I think
thats simply inconsistent with the text of the
statute and inconsistent with virtually every
1182(f) proclamation ever issued Here we
have a fair -shy
JUSTICE SOTOMAYOR Im sorry Mr -shy
General I thought that Congress had looked at
the situation and created a statutory system
that addressed the very concern the President
is expressing Congress said you can have visa
waivers if you -- if you can meet the three
criteria that this special committee of the
President looked at and if you dont you have
to have a very heightened extreme vetting
process And it created that vetting process
and suggested its parameters
More importantly it took terrorist
countries and designated which ones supported
terrorism and added another layer of review and
said if youre 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 to -- to affirm that you
are not a danger to the US
Heritage Reporting Corporation
1
2
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GENERAL FRANCISCO And -shy
JUSTICE SOTOMAYOR So I -- but what I
see the President doing here is saying Im
going to add more to the limits that Congress
set -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- and to what
Congress said was enough Where does a
President get the authority to do more than
Congress has already decided is adequate
GENERAL FRANCISCO Well there are -shy
theres a lot packed into your question Your
Honor and so let me try to unpack it a little
bit
I think the basic answer is that
1182(f) gives the President the authority to
impose restrictions in addition to those set
forth in the INA but to go to the statutes
that Your Honor was -shy
JUSTICE SOTOMAYOR But -- it might
but -shy
GENERAL FRANCISCO Right but -shy
JUSTICE SOTOMAYOR -- on the very
grounds that Congress has already looked at
GENERAL FRANCISCO And thats exactly
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what I was going to address next Your Honor
The Visa Waiver Program provides a special
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 admissibility of individuals
coming in from some of the riskiest countries
in the world
And 1182(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 Its up to the executive
branch to set it up Its up to the executive
branch to maintain it And its up to the
executive branch to constantly improve it
And here you have something that
really is at the core of 1182(f) since its main
purpose is to help implement the INA by making
sure we have that minimum baseline of
information
And if you look at the proclamation
what were talking about is very basic pieces
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of information Not the ideal but the
minimum Are they reporting terrorism history
information Are they 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 visa 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
doesnt tell us
Once she shows up at the border we
cannot make an intelligent determination as to
whether or not shes admissible under the INA
And thats 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
that it seeks to identify harmful conduct that
a foreign government is engaging in and then
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it imposes sanctions in order to pressure that
government to change
Thats what President Carter did with
respect 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
JUSTICE SOTOMAYOR Can you represent
that no other country that -- that fails all
three of the criteria was excluded from this
list
GENERAL FRANCISCO Well Your Honor
what I can represent is that the -- the -- the
analysis was holistic It wasnt if you failed
any one or the others It was if your overall
score was sufficiently low
JUSTICE SOTOMAYOR So given -shy
GENERAL FRANCISCO 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 below -- below the baseline but was not
subjected to sanctions
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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 weve now seen has been
successful as with the case of the government
of Iraq -- of Chad
JUSTICE KENNEDY In fact if you
compare this proclamation to the Reagan and the
Carter proclamations which I think were one or
two sentences this is longer than any
proclamation that -- that Ive seen in this
particular area
GENERAL FRANCISCO This is Your
Honor the most detailed 1182 -shy
JUSTICE KENNEDY Id say longer
detail -shy
GENERAL FRANCISCO Yes
JUSTICE KENNEDY -- is -- is a better
word
GENERAL FRANCISCO Yes This is the
more detailed 1182(f) proclamation in history
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It is not -shy
JUSTICE SOTOMAYOR General the
proclamations by Reagan and Carter however
were not as broad as this one
GENERAL FRANCISCO Your Honor they
were almost as broad but -shy
JUSTICE SOTOMAYOR And -- and -shy
GENERAL FRANCISCO -- to complete my
answer to Justice Kennedys 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 Reagans or President Carters
covered But its -shy
JUSTICE SOTOMAYOR And more -- and
more immigrants because Carters only applied
to certain immigrants not to all
GENERAL FRANCISCO President Carters
actually applied to all immigrants but then had
an exception much like the waiver provision
here for national interests and humanitarian
concerns So I think President Carters was
actually very similar to the proclamation here
And -shy
CHIEF JUSTICE ROBERTS Is your
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consular non-reviewability argument -- is that
a jurisdictional argument
GENERAL FRANCISCO Your Honor I -shy
yes I think it is a jurisdictional argument
And thats why I dont 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 to -shy
CHIEF JUSTICE ROBERTS I -- I thought
in Sale that we decided that this -- this
wasnt jurisdictional or at least decided the
merits despite the non-reviewability argument
that the government made
GENERAL FRANCISCO I think the second
thing that you just said Mr Chief Justice is
accurate The Court didnt address the
reviewability issue at all And so we dont
think its precedential one way or another
CHIEF JUSTICE ROBERTS Was the -- was
the argument raised in that case by the
government
GENERAL FRANCISCO Yes it was Your
Honor Actually you could -shy
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CHIEF JUSTICE ROBERTS So -- so its
an argument we would have been required to
address if it were in fact jurisdictional
GENERAL FRANCISCO I think so And
so I think one way you could understand it is
that it doesnt go to Article III jurisdiction
though it is a justiciability argument and we
would urge this Court to accept it because we
think its correct
But even if you dont think that its
correct we think that this proclamation
satisfies the merits because it does fall well
within the power of the President under
1182(f)
JUSTICE BREYER If youre about -shy
JUSTICE KAGAN May I turn General
to the constitutional claims in this case
GENERAL FRANCISCO Yes Your Honor
JUSTICE KAGAN And your principal
response to the Establishment Clause claim is
to cite Mandel and to say that once the
government comes forward with a legitimate
reason -- of course national security is the
most important reason one can come forward with
-- the game is over essentially And I just
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want to press on that a little bit
GENERAL FRANCISCO Sure
JUSTICE KAGAN So first I want to
ask whether that means -- you started off by
talking a lot about the process of this
proclamation But I -- I take it that that
argument would apply irrespective of what
process was used
In other words you would have made
the same Mandel argument to the first executive
order in this case or would you not
GENERAL FRANCISCO We would have made
a Mandel argument but it is far stronger given
that you have the process and substance upon
which this proclamation was based because
whatever you -shy
JUSTICE KAGAN Well I guess I wonder
why that is just because when I read Mandel
I dont see anything about process or you have
to meet a certain kind of bar
GENERAL FRANCISCO Uh-huh
JUSTICE KAGAN Mandel really is kind
of you state a reason and this Court stops
GENERAL FRANCISCO And I think that
that is right but I think that when you in
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addition to that have the extensive worldwide
process that we had that resulted in a
cabinet-level recommendation that applied a
neutral baseline to every country in the world
concluded that almost all the world including
almost all of the Muslim-majority world passed
that baseline but a tiny number of countries
didnt I think that whether you apply Mandel
or whether you apply McCreary that makes the
constitutional case in our favor overwhelmingly
strong Its a -shy
JUSTICE KAGAN So let me give you a
hypothetical and its just -- you know I
think that there are ways to distinguish Mandel
in this case but -- but -- but you know just
in terms of thinking about what Mandel really
forecloses here
GENERAL FRANCISCO And I -- because
Mandel there are only two cases in the area
and its -- its hard to understand the full
contours of it
JUSTICE KAGAN I agree So this is a
hypothetical that youve heard a variant of
before that the government has at any rate
but I want to just give you
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So lets say in some future time a -shy
a President gets elected who is a vehement
anti-Semite -shy
GENERAL FRANCISCO Uh-huh
JUSTICE KAGAN -- and says all kinds
of denigrating comments about 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 dot all the
is and they 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
GENERAL FRANCISCO Right
JUSTICE KAGAN Do you say Mandel puts
an end to judicial review of that set of facts
GENERAL FRANCISCO No Your Honor I
dont say Mandel puts an end to it but I do
say that in that context Mandel would be the
starting point of the analysis because it does
involve the exclusion of aliens which is where
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Mandel applies
If his cabinet -- and this is a very
tough hypothetical that weve 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 in his private heart of hearts
he also harbored animus
JUSTICE KAGAN Well the question is
GENERAL FRANCISCO I would also
suggest though -- if I could finish that Your
Honor -- that I think it would be very
difficult for that to even satisfy Mandel
rational basis scrutiny Id need to know what
the rational was Given that Israel happens to
be one of the countrys closest allies in the
war against terrorism its not clear to me
that you actually could satisfy -shy
JUSTICE KAGAN Well -shy
GENERAL FRANCISCO -- Mandels
rational basis standard on that unless it
truly were based -shy
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JUSTICE KAGAN Yes
GENERAL FRANCISCO -- on a
cabinet-level recommendation that was about
national security
JUSTICE KAGAN General Im -- lets
-- this is a out-of-the-box kind of President
in my hypothetical And -shy
(Laughter)
GENERAL FRANCISCO We -- we -- we
dont have those Your Honor
JUSTICE KAGAN And -- and you know
he thinks that there are good diplomatic
reasons and there might -- who knows what the
future holds that there might be good
diplomatic reasons to put pressure on Israel or
to say we want Israel to vote a certain way in
the UN and this is a way to better our
diplomatic hand and so this is what he does
And -- 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 think -shy
GENERAL FRANCISCO Right
JUSTICE KAGAN -- given this context
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in which this hypothetical President -shy
GENERAL FRANCISCO Sure
JUSTICE KAGAN -- is making virulent
anti-Semitic comments
GENERAL FRANCISCO Right And Your
Honor its a tough hypothetical but its why
I also think that this is a relatively easy
case because were 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 though we think that its
wrong that you applied some kind of domestic
establishment clause jurisprudence because
were 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 dont have the extreme
hypothetical that youre suggesting Your
Honor we do have a multi-agency worldwide
review and a cabinet-level recommendation that
applied a neutral baseline And this wasnt
done just by the cabinet secretaries but by the
agencies to every country in the world and
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concluded -shy
JUSTICE SOTOMAYOR Mr General you
just -shy
JUSTICE KENNEDY If -- if you have
that extreme hypothetical would that present a
free exercise or an Establishment Clause claim
or both
GENERAL FRANCISCO It could
definitely present a free exercise clause
challenge Your Honor just as you had a free
speech type claim in the Mandel case
And there would be people who could
bring that claim and who could potentially
succeed on that claim
JUSTICE KENNEDY And -- and the
people that could bring that claim I assume
were relatives of people that were excluded
father son
GENERAL FRANCISCO On free exercise
potentially I think all -shy
JUSTICE KENNEDY Yeah what about a
university
GENERAL FRANCISCO I think a
university could bring a free speech-type claim
under Mandel much -shy
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JUSTICE SOTOMAYOR Why not an
Establishment Clause claim
GENERAL FRANCISCO And -- and -shy
because Your Honor and the reason why I think
they havent pursued those types of claims is
because I dont think they would possibly
support the types of nationwide injunction that
theyre asking for
Your Honor the reason why I dont
think that they could bring an Establishment
Clause claim is because the proclamation
doesnt actually apply to the Respondents It
only applies to aliens abroad who have no
constitutional right to enter
JUSTICE SOTOMAYOR No but the claim
is that it -- that the proclamation is in place
because of a dislike of a particular religion
And I thought the Establishment Clause at its
heart is that we cannot be anything but neutral
with respect to religion or its practice
GENERAL FRANCISCO 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
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standing to challenge the land transfer from
the government to the Christian college on the
ground that it sent a pro-Christian or
anti-atheist message That -shy
JUSTICE SOTOMAYOR But these people
are saying that that negative religious
attitude is stopping them -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- 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
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR Which is one of
the purposes of the INS
GENERAL FRANCISCO And -- and thats
where they might have free exercise or free
speech claims along the type that Justice
Kennedy suggested -shy
JUSTICE SOTOMAYOR Well but I -shy
GENERAL FRANCISCO -- but which
couldnt support a nationwide injunction I
dont think that that gives them an
Establishment Clause claim when the
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proclamation doesnt actually apply to them
because -shy
JUSTICE SOTOMAYOR General today
can we go back to something thats 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 -- Im
summarizing in an incomplete way -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- 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 -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- not extreme
that he can hire or fire anyone he wants and
that he can put in place whatever policy he
wants
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR If we take Justice
Kagans hypothetical President -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- who basically
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says to his review committee I want to keep
out Jews -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- period find a
way Thats their charge
So in that situation why would the
actions of the committee whatever this is
Executive Committee not be subject to great
suspicion and to thorough review -- which
actually wasnt completely -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- done here -shy
given that they are responsible to the
executive -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- and theyve
been told what the outcome of their
deliberations must be
GENERAL FRANCISCO Sure And I have
two responses to that Your Honor
The first is that the Presidents
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
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cabinet member would refuse to comply or resign
in the face of a plainly unconstitutional
order 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 Mandel
standard
Here however you dont have anything
like that Rather you have the cabinet doing
its job through the agencies where they ask
the agencies to construct and apply 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 across the line
JUSTICE SOTOMAYOR General the
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problem is that I dont 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
the litigants or the courts exactly what was
done how what the evaluation and how -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- it was applied
to all those countries in the world
I understand some of the
confidentiality that might concern you but if
the backdrop is the way that Justice Kagan
described it -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- that -- that
heated -shy
GENERAL FRANCISCO Well I -- yeah -shy
JUSTICE SOTOMAYOR -- anti-Semitic
background dont you think that once you get
through the Mandel preliminary 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
GENERAL FRANCISCO Well Your Honor
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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
owes to another coequal branch of the
government there is a very strong presumption
that what is being set out there is the truth
JUSTICE KAGAN You -- you said
something earlier General I want to make sure
that I got it right You said if at the time
the President had said we dont want Muslims
coming into this country -shy
GENERAL FRANCISCO Uh-huh
JUSTICE KAGAN -- that that would
undermine the proclamation
GENERAL FRANCISCO Yes
JUSTICE KAGAN Did I get you right
GENERAL FRANCISCO Yes
JUSTICE KAGAN So I -- I think you
know honestly the difference here then seems
to be is everything that the President said
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effectively that
GENERAL FRANCISCO I think there are
two issues Your Honor 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 embodiment of the executive branch So
that those statements should be out of bounds
But for -shy
JUSTICE KENNEDY But suppose you have
a local mayor and as a candidate he makes
vituperative hate -- hateful statements hes
elected and on day two he takes acts that are
consistent with those hateful statements
Thats -- whatever he said in the campaign is
irrelevant
GENERAL FRANCISCO Your -- Your
Honor if he takes the same oath -shy
JUSTICE KENNEDY You would say
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whatever he said in the campaign is irrelevant
GENERAL FRANCISCO I would say two
things And that was the -- and the second
thing is the point I was about to turn to I
would say yes because we do think that oath
marks a fundamental transformation but I would
also say here it doesnt matter because here
the statements that they principally rely on
dont actually address the meaning of the
proclamation itself
This is not a so-called Muslim ban
If it were it would be the most ineffective
Muslim ban that one could possibly imagine
since not only does it exclude the vast
majority of the Muslim world it also omits
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 multi-agency worldwide review that
applied neutral criteria all across the world
and concluded under those neutral criteria
most of the world was fine but a small part of
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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
JUSTICE BREYER All right Can -shy
can I ask a more -- I did read I think almost
all the 80 briefs Now your time -- what do -shy
CHIEF JUSTICE ROBERTS Yeah dont
worry Please go ahead
JUSTICE BREYER All right All
right All right Almost 80 and I think I -shy
some were repetitive not too many And I
think I know the basic arguments but theres
one question Im left with and it starts with
an assumption which I think you share but I
want to be sure All right
I noticed that the Carter order and
the Reagan order both had case-by-case
exceptions
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER And I looked 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
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individual circumstances such as giving some
examples the following
And then they have to be no
terrorists Well thats the law anyway And
they -- they have to be in the interests of the
United States And there cant be undue
hardship which the only time the word
hardship appears in the immigration laws it
says extreme hardship
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER So undue must be
less than extreme
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER Okay So Im -- then
they have a list people with foreign contacts
previously established business reasons
theyve been here studying or other long-term
activity they want to visit or reside with a
close family member they have a disease or
something that they need -shy
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER -- treatment for
they -- previously been employed And there
are about five other things
GENERAL FRANCISCO Yeah
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JUSTICE BREYER All right Focus on
that class of individuals
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER Now in countries -shy
150 million people all together there must be
quite a few who have -- do fall within that
class So -shy
GENERAL FRANCISCO Well yes Your
Honor but theres only a small number of
people that seek to come into our country
JUSTICE BREYER Well thats what Im
asking about
GENERAL FRANCISCO Yeah
JUSTICE BREYER You see
GENERAL FRANCISCO Yeah
JUSTICE BREYER Thats now -- if you
-- you think -- now as far as were concerned
if they fall within that class there -shy
theres no reason given here why they should be
excluded other than the -- the normal
processes
GENERAL FRANCISCO Well a couple of
responses Your Honor
JUSTICE BREYER What
GENERAL FRANCISCO First in terms of
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the numbers -shy
JUSTICE BREYER Im not asking about
the numbers
GENERAL FRANCISCO Oh oh youre not
asking -shy
JUSTICE BREYER I want to ask about
GENERAL FRANCISCO So -- so in terms
of the reason -shy
JUSTICE BREYER Yeah
GENERAL FRANCISCO -- they should be
excluded one of the principal purposes of the
proclamation is to exert diplomatic pressure on
governments in order to get them to change and
provide us with the information -shy
JUSTICE BREYER So you think they
should be excluded
GENERAL FRANCISCO Not if they meet
the criteria for the -shy
JUSTICE BREYER Not if they meet the
criteria
GENERAL FRANCISCO -- for the waiver
JUSTICE BREYER Okay Okay So
theres -shy
GENERAL FRANCISCO Thats why we have
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-- thats why we have the waiver
JUSTICE BREYER Thats -- thats -shy
thats what I thought you would say
GENERAL FRANCISCO Yeah
JUSTICE BREYER Then I get -- can ask
my question Sorry
GENERAL FRANCISCO Yes
JUSTICE BREYER But I want to be sure
were the same wavelength
GENERAL FRANCISCO Yes
(Laughter)
JUSTICE BREYER Okay 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 theres the
business community complaining theres the
academic community there were 46 scholars at
Harvard there -- there are families in the
Lisa Blatt brief you know that -- that they
say we were trying to get medical treatment and
nobody told us about this and -- and theyve
only admitted two and theres supposed to be
guidance and -shy
GENERAL FRANCISCO Thats not true
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JUSTICE BREYER -- you havent put in
the guidance and -- and -- and the most there
are is 100 And so there is my question If
you have done the same thing that the Reagan
people did and the Carter people did then it
might be -- Im not expressing a definite
opinion -- but well youve got the same thing
here but if this is as one brief says just
window dressing and they never apply it -shy
GENERAL FRANCISCO Right
JUSTICE BREYER -- then you have
something new and different going well beyond
what President Reagan did
GENERAL FRANCISCO Sure
JUSTICE BREYER Okay So I want to
know how do I find out -- how do I find out
when there is not that information in the
brief do we have to -- can we have another
hearing Do we send it back Do we say look
the government of course thinks this isnt
window dressing -shy
GENERAL FRANCISCO Right
JUSTICE BREYER -- but the other side
says there are only two people no notice
nobody knows
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GENERAL FRANCISCO So Your Honor
two -shy
JUSTICE BREYER There are people in
Yemen there are people in Somalia -shy
GENERAL FRANCISCO Yeah
JUSTICE BREYER -- decent people
Business -- you see my point
GENERAL FRANCISCO Yes
JUSTICE BREYER Whats the answer
GENERAL FRANCISCO And two responses
JUSTICE BREYER Yes
GENERAL FRANCISCO Our reply brief
has our most -- most current number on waivers
and I believe the number at page 17 footnote
-- well its -- its over 400 I cant
remember the exact statement
JUSTICE BREYER All right Thats
400 out of 150 million
GENERAL FRANCISCO And then -shy
JUSTICE BREYER And -- and is it well
publicized in these countries that they know
all they have to do is go to the visa office
and say I understand the thing I want an
exception
GENERAL FRANCISCO No Your Honor
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and I have two -- two responses -shy
JUSTICE BREYER Yeah
GENERAL FRANCISCO -- to that One
is I dont know how well publicized it is but
I suspect that people understand how to get it
My second principal response is
though that frankly in terms of the
legality I think that the waiver is not
necessary although it is a very good thing
which is why -shy
JUSTICE BREYER Not necessary There
-- there you have President Reagan -shy
GENERAL FRANCISCO -- which is why
most -- which is why most governments dont -shy
which is why its -- its a good thing which
is why most of these proclamations often have
them But theres nothing in -shy
JUSTICE BREYER Okay So you want me
to consider -shy
GENERAL FRANCISCO -- the law that
actually requires it
JUSTICE BREYER Thats what you want
You want me to consider the lawfulness of this
order on the assumption that there is no
waiver
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GENERAL FRANCISCO I dont -shy
JUSTICE BREYER Which is not what -shy
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 here thats the -shy
thats the -shy
GENERAL FRANCISCO Right The answer
to my -- your question Your Honor is no I
dont want you to consider the proclamation on
the -- on the hypothetical situation that it is
what it isnt but I do think that the
proclamation as written and as applied falls
well within the Presidents authority under
1182(f)
Thank you Mr Chief Justice
CHIEF JUSTICE ROBERTS Thank you
General We will afford you rebuttal time
GENERAL FRANCISCO Thank you
CHIEF JUSTICE ROBERTS Mr Katyal
ORAL ARGUMENT OF NEAL K KATYAL
ON BEHALF OF THE RESPONDENTS
MR KATYAL Thank you Mr Chief
Justice and may it please the Court
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The executive order is unlawful for
three reasons It conflicts with Congresss
policy choices It defies the bar on
nationality discrimination something you never
heard my friend talk about And it violates
the First Amendment
Congress has already specified a
three-part solution to the very same problem
the order addresses Aliens seeking entry from
countries that dont cooperate with the United
States in vetting including state sponsors of
terrorism and countries that provide inaccurate
information
First aliens have to go through the
individualized 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 the order uses Congress rejected a
ban Instead it used carrots When countries
cooperated theyd get extra credit a track -shy
faster track for admission Legislation to use
big sticks like nationality bans failed
And third Congress was aware
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circumstances could change on the ground so it
required reporting to them so it could change
the law
CHIEF JUSTICE ROBERTS Well lets
take big sticks fail Lets suppose that the
intelligence agencies go to the President and
say we have 100 percent solid information
that on a particular day 20 nationals from
Syria are going to enter the United States with
chemical and biological weapons They could
kill tens of thousands of Americans
In that situation could the President
ban the entry of Syrian nationals on that one
day
MR KATYAL He could for two reasons
Theres two different arguments Theres the
nationality discrimination ban 1152 and then
theres you know whether or not this comports
with Congresss policy judgments
And with respect to both I think it
would It wouldnt be nationality
discrimination for the reasons Judge Sentelle
said in LAVAS when you have an emergency
fast-moving situation like the Syria example
youre saying
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CHIEF JUSTICE ROBERTS Well just to
stop interrupt you there I mean what if
its a week What if its a week a month from
now Thats what the intelligence information
is
In other words Im trying to -shy
MR KATYAL Right
CHIEF JUSTICE ROBERTS -- respond to
your point that it has to be an immediate
decision
MR KATYAL Yeah So I think you
know this Courts dealt with that in
Youngstown and Hamdan and said look you know
the Presidents going to get a pass absolutely
on you know what he says the emergency is
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 460 days on -- later
Mr Chief Justice Hes never even introduced
legislation about this So were so far from
that hypothetical well concede the
hypothetical
CHIEF JUSTICE ROBERTS Well imagine
-- imagine if you can that Congress is unable
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to act when the President asked for
legislation
(Laughter)
MR KATYAL Right
CHIEF JUSTICE ROBERTS And someone
introduces a bill saying lets authorize -shy
first of all the President may have qualms
about sharing that absolute intelligence
broadly but lets say theres a bill
introduced to say lets authorize the President
and theres a bill introduced to say lets
block the President and neither bill moves
MR KATYAL 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 -- theres only one
problem hes identifying which is countries
not cooperating
Hes not talking about people coming
in or something like that like your
hypothetical And with respect to that
Congress has said heres how we deal with it
We deal with it with the individualized vetting
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system which pushes all the burdens on a
person coming in Thats 1361
Youve got to show biometric ID under
the statute Youve got to have an in-person
interview if theres any risk that the person
is from a country thats a state sponsor of
terrorism like your hypothetical or anything
else
So Congress has really said in a
robust way heres how we would deal with it
And to the extent countries arent cooperating
we offer carrots
Congress rejected exactly what theyre
trying to propose here which is a flat
nationality ban And thats where I think the
force of our argument lies with respect to the
first point which is this is countermanding
Congresss policy judgments
My friend on the other side actually
in his brief -shy
JUSTICE ALITO Well Congress did -shy
Congress did act It enacted 1182(f)
MR KATYAL Correct
JUSTICE ALITO Why doesnt this fall
squarely within the language of 1182(f)
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MR KATYAL For -- for -- we have
both textual reasons that its not a class for
reasons Justice Breyer was talking about Its
not perpetuated -- its perpetual like Justice
Ginsburg was talking about But we think
theres a much bigger point Justice Alito
which is -shy
JUSTICE ALITO Well maybe you could
talk about the text Its not a class
Doesnt 11 -- doesnt 1182(f) say whenever the
President finds that the entry of any aliens -shy
MR KATYAL Correct
JUSTICE ALITO -- or any class of
aliens So put class aside although I dont
really see why people who are nationals of a
particular country dont constitute a class
What about any aliens
MR KATYAL Right So we think it is
any you know -- because the power in 1182 is
so broad and sweeping and does allow the
President to supplement what Congress has done
we think that you have to -- you have to be
careful and read limit -- you have to read it
just the way you read every other statute to
say how do we harmonize that broad text of
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1182(f) with the rest of the INA
And our point in our briefs which I
dont 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 you know and end so-called chain
migration or anything like that He could do
-- countermand any of the provisions of the INA
and turn it into a line item veto
So for that reason we think there
has to be some limit Thats something this
Courts dealt with in you know the tobacco
case or -shy
JUSTICE ALITO Well does this
proclamation do anything like that Does this
proclamation purport to establish a new
permanent immigration policy for the United
States
MR KATYAL Absolutely Your Honor
This is a perpetual policy that bans It does
exactly what Congress in 1965 said you cant
do And it countermands Congresss
fine-grained reticulated judgment from 2001
2015 and several other times which is to say
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instead of these flat bans were going to have
-- were going to balance foreign policy
considerations economic considerations like
the US companies brief humanitarian image
of the United States views all of that
together and said we wont do the flat ban
Instead were going to have a much
more fine-grained approach with individualized
vetting and carrots for the countries that
dont disagree -- that dont cooperate
JUSTICE ALITO What is your basis for
saying that it is perpetual
MR KATYAL Well theres nothing in
the order that ends it And you heard my
friend say oh that would doom all executive
orders But thats not true Half of these -shy
JUSTICE KENNEDY I thought it had to
be reexamined every 180 days
MR KATYAL No thats not what it
says It says theres a report that has to
come in at 180 days and nothing happens at the
end of the report
JUSTICE KENNEDY Well that -- that
indicates there will be a reassessment
MR KATYAL Well in -shy
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JUSTICE KENNEDY And then the -- and
-- and the President has continuing discretion
MR KATYAL Justice Kennedy this
argument wouldnt be there if there was
anything about reassessment the way there are
in about half the orders including the Cuba
order which says it sunsets once the crisis
ends Theres nothing like that in this
And its just like a reporting
requirement to Congress in which Congress isnt
necessarily required to do anything Congress
has statutes like that all the time
This is that And thats why this is
unlike any other executive order If you go
back and look at all 43 executive orders that
Presidents have issued none of them have even
arguably countermanded Congresss judgment in
the area Theyve all been consistent
Theyve all been supplements
JUSTICE KENNEDY Well the statute
says first that -- that -- that 1182 for such
period as he deems necessary and he can have
continuing supervision over whether its still
necessary
MR KATYAL Again we wouldnt have a
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problem with that if it was tailored to a
crisis it says it sunsets and then you know
could be re-upped or something like that
Thats not what this says This is about a
perpetual problem
JUSTICE KENNEDY So you want the
President to say Im convinced that in six
months were going to have a safe world
MR KATYAL Well -- well -- well no
Justice Kennedy thats not our argument Our
argument is here the President is identifying
something that is a perennial problem Our
brief says it goes back 100 years you know
when the Soviet Union was around we dont 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
CHIEF JUSTICE ROBERTS What if the
military advisors tell the President that in
their judgment the President ought to order a
strike an air strike against Syria and the
President says well -- does that mean he cant
because you would regard that as discrimination
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against a majority Muslim country
MR KATYAL Absolutely not Theres
nothing to do with the text of the statute
The 1152 statutes about discrimination and the
issuance of visas And thats all that -shy
CHIEF JUSTICE ROBERTS So under
1182(f) you would say that theres no problem
under that provision
MR KATYAL Well under 1182 as I
understand it was a strike And so I dont
think theres any immigration issue in your
hypothetical I might be misunderstanding it
Mr Chief Justice
CHIEF JUSTICE ROBERTS Well any type
of targeted action that would have a impact on
the Muslim population
MR KATYAL Absolutely We think the
President has wide authorities to do things
that have impacts on the Muslim population
Take the laptop ban that was introduced -shy
CHIEF JUSTICE ROBERTS Why under your
theory wouldnt that constitute or the argument
would be that thats discrimination under your
Establishment Clause argument -shy
MR KATYAL Oh
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CHIEF JUSTICE ROBERTS -- that thats
discrimination on the basis of faith because he
has said in the past if you accept the -shy
MR KATYAL Yeah
CHIEF JUSTICE ROBERTS -- accept the
arguments that he -- he is anti-Muslim
MR KATYAL Not at all Your Honor
and no President has run afoul of this you
know and thats because here the President
and his advisors have directly tied this policy
to those statements And the red brief at page
70 I think is the greatest illustration of
that
Thats 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 INA is
that the President can take a wrecking ball to
the statute and countermand Congresss
fine-grained judgments that -shy
CHIEF JUSTICE ROBERTS He can never
-shy
JUSTICE KAGAN Well you might think
-shy
JUSTICE GORSUCH Mr Katyal -- Mr
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Katyal if I might on -- on the statutory
question before we leave it Weve been
proceeding so far on the assumption that we can
reach the merits but the government makes the
argument for example that aliens who are
removed from this country have to bring their
claims personally and third parties cant
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
who are not present in this country Whats
the answer to that
MR KATYAL Well several This is
not a third-party case These are United
States citizens bringing this challenge in a
state -shy
JUSTICE GORSUCH Oh behalf of -shy
MR KATYAL -- of the United States
JUSTICE GORSUCH -- aliens not
present in the country
MR KATYAL Well but they are
directly -- they are directly harmed
themselves Let me just give you one example
Not just the State of Hawaii whose university
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is directly impacted but lets just take for
example the Alomari -- Mr Alomari the
10-year-old in the PARS Equality brief Justice
Breyer that you were referring to This is a
10-year-old daughter in Yemen who is -- whos
trying to come here because she has cerebral
palsy
JUSTICE GORSUCH I understand that
but those arguments dont work with respect to
aliens present in the country So why do they
work for aliens who are not present in the
country
MR KATYAL Because I -shy
JUSTICE GORSUCH Those very same
arguments would not succeed
MR KATYAL Well -shy
JUSTICE GORSUCH I think youd
concede that they wouldnt succeed for aliens
present -shy
MR KATYAL Right And they dont
succeed because there you have a better
plaintiff might not be willing to bring them in
the United States and thats why the court
you know says no third party But here
these folks are directly impacted
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And the most important thing to say is
Sale answers this You heard my friend concede
Sale was jurisdictional the issues in Sale
Thats how they briefed it up Thats how he
just described it This Court had exactly that
situation United States plaintiffs and it
reached the merits
Our statutory point to you is that if
you accept this order youre giving the
President a power no President in 100 years has
exercised an executive proclamation that
countermands Congresss policy judgments He
has zero examples to say that when Congress has
stepped into the space and solved the exact
problem that the President can then come in
and say No I want a different solution
If you do that youd -- its not just
family preferences that youre allowing him to
get rid of youd get rid of all sorts of even
small things in the Code or big things like
theres a preference for specialty occupations
like software engineers in the INA The
President could say The economics are such
Im going to ban software engineers from going
to California or something like that under that
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sweeping 1182 power
JUSTICE KAGAN I -- I guess the
question though Mr Katyal is maybe youre
entirely right that 1182(f) needs to have some
limits to prevent the President from doing
something thats completely contrary to another
section of the statute
But youre suggesting well the
President cant do anything thats not
contemplated by the rest of the statute
MR KATYAL That is not our argument
JUSTICE KAGAN Okay 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 -shy
MR KATYAL Right
JUSTICE KAGAN -- between what the
President is doing and another statutory
provision
MR KATYAL So our view is that the
President can supplement he just cant
supplant In this Courts decisions in the
Brown amp Williamson case and the UARG greenhouse
gas and Concepcion and Abilene Cotton the
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Savings Clause cases all say there are three
things you look at And its not a flat bar
It cant be like a direct contravention Even
they say its not a direct contravention in
their reply brief at page 19
So the three things are first can
these two solutions coexist or not Second
has Congress prescribed a reticulated
comprehensive scheme And third you know is
there any other indication that Congress
considered 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 -shy
Congress has a comprehensive reticulated scheme
that deals with the exact single problem that
hes identified which is countries not
cooperating It cant coexist with the
solution of a flat ban It makes no sense for
example to have the in-person visa requirement
-- visa interview which is in 12 -shy
1202(h)(2) which is for -- for people who come
from state sponsors of terrorism or who have a
group with a likelihood of providing
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inaccurate information Congress said there
has to be an in-person interview for that
It doesnt make sense to say well
youre going to have a flat ban It doesnt
make sense to have a Visa Waiver Program which
is all about countries that provide zero
information to the United States -- state
sponsors of terrorism and the like -- and say
were going to give you a carrot and then say
oh no forget about the Visa Waiver Program
JUSTICE ALITO Can -- can you imagine
any situation in which the threat of the
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
MR KATYAL Yes
JUSTICE ALITO You cannot imagine any
such situation
MR KATYAL Yes I can And the
President would have a robust authority to deal
with that That is not our argument So -shy
JUSTICE KENNEDY And your argument is
that courts have the -- the duty to review
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whether or not there is such a national
exigency thats for the courts to do not the
President
MR KATYAL No I think you have
wide deference Justice Kennedy Its exactly
what you said when you joined Justice Breyers
opinion in Hamdan which is as long as -- you
know Presidents have wide berth in this area
but if -- you know certainly if theres any
sort of emergency that precludes it
But when you have a statute that
considers the very same problem and theres
nothing new that theyve identified in this
worldwide review process that Congress didnt
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 the -shy
CHIEF JUSTICE ROBERTS But thats in
the abstract I mean they may have more -shy
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
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And it seems to me a difficult
argument to say that Congress was prescient
enough to address any particular factual
situation that might arise
MR KATYAL Well that again -shy
thats again Mr Chief Justice not our
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 But here -shy
CHIEF JUSTICE ROBERTS What about -shy
what about a change of administration in a
particular country -shy
MR KATYAL Yes
CHIEF JUSTICE ROBERTS -- in which
perhaps the vetting procedures are not going to
be taken seriously
MR KATYAL Right
CHIEF JUSTICE ROBERTS That Congress
could not have anticipated
MR KATYAL Well but again
Congress anticipated a country that is a state
sponsor of terrorism and even for -- with
respect to that providing no information and
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indeed fomenting against the United States
Congress said oh were not going to have a
nationality ban You know they flatly banned
that and said were going to have
individualized vetting and this Visa Waiver
Program carrot to try and deal with that you
know dangerous regime
Now again I can imagine an emergency
situation in which the President would have
even greater authority for that But here we
are 460 days later and I would caution the
Court not to make a decision about the
emergency youre concerned about That can be
bracketed as it was in Youngstown as it was in
Hamdan This is so far from that
The text of 1152 is flatly violated
here It says there shall be no discrimination
on the basis of nationality with the issuance
of visas
That is 39 percent of all the visas
this executive order covers Its not a small
part Its 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
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become part of our long-term polity This
executive order flatly contradicts that
Now if you accept his
interpretation -- he says well you know
were discriminating at the entry side not at
the visa side If you do that you are giving
the President the power to undo -- and hes
actually just done it -- hes undone the ban on
nationality-based discrimination Hes imposed
country quotas of zero for these countries at
the border
CHIEF JUSTICE ROBERTS If your -shy
your argument based on discrimination based on
the campaign statements is there a statute of
-- no the one that you do make based on the
campaign statements is there a statute of
limitations on that or is that a ban from
presidential findings for the rest of the
administration
MR KATYAL So Mr Chief Justice I
first want to be very clear about this Our
point about 1152 and the discrimination has
nothing to do with any campaign statements or
anything else
Its purely the text of the
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proclamation which is nationality-based
discrimination through and through Judge
Sentelle said you couldnt imagine a clearer
text than this And this is -- it violates it
Now -shy
CHIEF JUSTICE ROBERTS My question
was on the -shy
MR KATYAL -- youre asking about
the First Amendment
CHIEF JUSTICE ROBERTS Yes
MR KATYAL I just want to make
absolutely clear that were -- thats not -shy
you know you dont need to do any of that for
purposes of 1152 And that would knock out
39 percent of the most important part of the
executive order
CHIEF JUSTICE ROBERTS My question
of course -shy
MR KATYAL Yes Now Im getting -shy
CHIEF JUSTICE ROBERTS -- was not on
1152
MR KATYAL Yes Im getting there
Okay
With respect to that we dont think
-- we think that the test as this Court has
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said a reasonable objective observer viewing
all the statements and we think absolutely
my friend is right you shouldnt look to
campaign statements in general or stuff like
that 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 70
of our red brief you have a very good example
of this
After the executive order this latest
executive order was promulgated the President
tweeted these three virulent anti-Muslim
videos And then the press spokesman was
asked What does this mean What is this
about And the answer was The President has
spoken about exactly this in the proclamation
CHIEF JUSTICE ROBERTS My question
was whether or not the inhibition on the
ability to -- to enter one of the proclamations
applies forever
MR KATYAL Right No I think the
President could have disclaimed -- you know
easily moved away from all of these statements
you know but instead they embraced them
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Thats the difference
And so absolutely the President
would have wide berth to say thats a -shy
CHIEF JUSTICE ROBERTS So if
tomorrow he issues a proclamation saying hes
disavowing all those statements then the next
day he can reenter this proclamation
MR KATYAL Thats exactly what this
Court said in McCreary This Court in McCreary
said you know the same policy can be
constitutional if said -- if promulgated by one
entity and not by another depending on the
circumstances around it
CHIEF JUSTICE ROBERTS Is your answer
to my question yes
MR KATYAL Yes The answer is -shy
CHIEF JUSTICE ROBERTS Tomorrow he
issues a proclamation disavowing those
statements -shy
MR KATYAL Absolutely And thats a
CHIEF JUSTICE ROBERTS -- then the
next day he could reenter this and your
discrimination argument would not be
applicable
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MR KATYAL And -- and -- and Mr
Chief Justice thats exactly what I told the
Ninth Circuit in May The President didnt do
that Thats whats -- thats -- you know
thats what a reasonable objective observer -shy
JUSTICE SOTOMAYOR So if another -shy
JUSTICE ALITO Mr Katyal would any
reasonable observer reading this proclamation
with -- without taking into account statements
think that this was a Muslim ban
I mean there are -- I think there are
50 predominantly Muslim countries in the world
Five -- five countries -- five predominantly
Muslim countries are on this list
The population of the -- of the
predominantly Muslim countries on this list
make up about 8 percent of the worlds Muslim
population
MR KATYAL Absolutely
JUSTICE ALITO If you looked at the
10 countries with the most Muslims exactly
one -shy
MR KATYAL Right
JUSTICE ALITO -- Iran would be on
that list of the top 10
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MR KATYAL Right
JUSTICE ALITO So would a reasonable
observer think this was a Muslim ban
MR KATYAL If it were -- if it were
just the text of the order alone it might
raise eyebrows for fit and other reasons that
the briefs go into but we wouldnt be here
We absolutely agree that just -- its the same
test as in Lukumi and other cases You have to
look to all the circumstances around it that
are said the publicly available ones
You know and Justice Alito the fact
that the order only come -- encompasses some
Muslim countries I dont think means its not
religious discrimination For example if Im
an employer and I have 10 African-Americans
working for me and I only fire two of them I
dont think -- you know and say well Ive
left the other eight in I dont think anyone
can say thats not discrimination
JUSTICE ALITO No I -- I understand
that And it is one of our fundamental values
that there is religious freedom here for
everybody in that number -- adherence to every
religion are entitled to equal treatment
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My only point is that if you look at
what was done it does not look at all like a
Muslim ban There are other justifications
that jump out as to why these particular
countries were put on -- on the list
So you -- it seems to me the list
creates a strong inference that this was not
done for that invidious purpose
MR KATYAL Justice Alito I think if
it were just the list I think wed be right -shy
youd be right although Id point out that
you yourself in the Stormans case said that
its a religious -- it raises an inference of
religious gerrymander of the burden imposed
falls almost exclusively on those with
religious objections
This is a ban that really does fall
almost exclusively on Muslims between
902 percent and 998 percent Muslims And so
it does look very much like what you said in
Stormans But even then we wouldnt be here
if it werent for all of the different
statements
And the best evidence of this about
what a reasonable objective observer would
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think is to look at the wide variety of amicus
briefs in this case from every corner of
society representing millions and millions of
people from the US Conference of Catholic
Bishops which calls it blatant religious
discrimination
JUSTICE GORSUCH Mr Katyal on that
its been a long time since this Court has used
the Lemon test reasonable observer even to
strike down a domestic statute let alone
something with purely international
application What -- what do we do about that
MR KATYAL Yeah 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 and our protest of
King George which is all about using the
immigration power to exclude people of a
different faith And thats what our
Constitution is about So thats the first
thing
And the second is we dont think you
have to get into Lemon and all these other
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tests that you all have struggled with I
think this Court in Lukumi was very clear in
saying that when youre talking about
denigration of religion all the tests point in
the same direction
JUSTICE SOTOMAYOR Mr Katyal you
said something earlier you said you wouldnt
be here if all of those statements the
background statements were not made Do you
mean that on all of your bases You wouldnt
be here on the Establishment Clause claim
MR KATYAL Only on the Establishment
Clause claim not on anything else And our
point is you know he talks about for
example this worldwide vetting process
Remember his own argument on 1182 is
the statute puts the President -shy
JUSTICE SOTOMAYOR So lets -- lets
go back to not being here without the
statements Clearly the statements even
conceded by your adversary do give you a basis
to look behind all right the reason
So if were looking behind it how do
you deal with the Generals suggestion that
there was a cleansing that occurred because of
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all of the agencies and departments who
participated in this process
MR KATYAL Yeah So theres three
things Number one is that his -- his own
argument is that 1182 puts the President in the
drivers seat so the cabinets not important
Its the Presidents proclamation
Second the order itself says in its
first lines it harkens back to Executive
Orders 1 and 2 and it says its an outgrowth
of that So it was infected by the same thing
that was struck down on Establishment 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 ban
a non-politically-correct ban and the like
So given all of those things but in
particular given the fact that 1182 itself
forces the President to make the proclamation
its the Presidents proclamation so I dont
think you even have to get into this whole
unitary executive thing but I do agree with
you Justice Sotomayor that thats another
problem which is theyre coming before the
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Court and saying Nope its the President
whos in charge And now theyre saying here
Oh no no no its these other people
This is the Presidents proclamation
through and through No President has ever
said anything -- anything like this And
thats what makes this different
And the President -shy
JUSTICE KAGAN And -- and yet Mr
Katyal 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 evaluating the adequacy of those
national security interests which for the most
part weve said courts are not equipped to do
MR KATYAL Right Were not asking
you to second-guess a national security
judgment at all with the purpose of the
Establishment Clause
Were saying you just have to look to
what a reasonable objective observer would do
Thats the ordinary test that youve used in
cases like Lukumi Is there an official
purpose to disparage a religion Here there
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very much is Thats you know everything
that the President has said and that the order
itself embodies Thats our fundamental
problem
JUSTICE BREYER What do you think -shy
its a -- its a -- its still something Im -shy
Im thinking about perhaps to the side but
the statute you point to one of the ones that
is stronger for you There are obviously
objections to what youre saying in quite a few
briefs all right but the one that you talked
about it does say you have to have an
interview with a consular official if the
person is from a country officially designated
by the Secretary as a state sponsor of
terrorism It does say that
So theyll say but we do have that in
respect to everyone under the exception So
there isnt much problem Weve gone beyond
that in respect to other people All right
Take their argument for a moment
Because my question is which I
couldnt find in the briefs is is it true -shy
Im just taking what they say -- that really
that isnt so they dont publicize it they
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havent put forth a guidance people dont know
they can come in and qualify for this
And if it turns out that that is
something that is important to the lawfulness
of the order because there are many many
categories there -shy
MR KATYAL Right
JUSTICE BREYER -- what do we do
MR KATYAL So two things Number
one this waiver process has excluded -- and
you have this in the PARS Equality brief at
page 14 A 10-year-old with cerebral palsy who
wants to come to the United States to save her
life and she cant move or talk The
10-year-old was denied a waiver Justice
Breyer
He says theres 430 people who have
gotten waivers Theyve never told you the
denominator and theres no publication of this
process and how -- how often it is And the
data that we do have suggests as a matter of
percentages its very weak
Just to give you some evidence of
that just the State of Hawaii has gotten about
1000 letters from people most of which say
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were not even getting waivers on the like
JUSTICE GORSUCH That -shy
MR KATYAL Weve heard very few
instances -shy
JUSTICE GORSUCH -- raises a question
of remedy for me
MR KATYAL Yes
JUSTICE GORSUCH We have this
troubling rise of this nationwide injunction
cosmic injunction -shy
MR KATYAL Yeah yeah
JUSTICE GORSUCH -- not limited to
relief for the parties at issue or even a class
action
MR KATYAL Right
JUSTICE GORSUCH And near as I can
tell thats -- thats a really new development
where a district court asserts the right to
strike down a -- a federal statute with regard
to anybody anywhere in the world
MR KATYAL Yeah
JUSTICE GORSUCH What -- what do we
do about that
MR KATYAL Obviously the injunction
here has been trimmed by this Court itself and
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others And I do think -- I -- I share your
impulse Justice Gorsuch Thats something
that I think lower courts are debating right
now in a number of different contexts like the
contraception case and the like
I think this case is the poorest
example to get into it because of United States
versus Texass point which is this is an
immigration case and Article I Section 8 puts
Congress in the drivers 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 doesnt make a
tremendous amount of sense It would almost be
an advisory opinion
Our fundamental point to you though
is that Congress is in the drivers seat when
it comes to immigration and that this
executive order transgresses the limits that
every President has done with this proclamation
power since 1918 And to accept it here is to
accept that the President can take an iron
wrecking ball to the statute and pick and
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choose things that he doesnt want for purposes
of our immigration code That cant be the law
of the United States
CHIEF JUSTICE ROBERTS Take five
extra minutes Okay
MR KATYAL Okay
(Laughter)
CHIEF JUSTICE ROBERTS You dont have
to
(Laughter)
MR KATYAL Well if there are -- if
there are any other questions Im happy to
take anything Okay Thank you
CHIEF JUSTICE ROBERTS Thank you
counsel
Five minutes for rebuttal General
REBUTTAL ARGUMENT OF GENERAL NOEL J FRANCISCO
ON BEHALF OF THE PETITIONERS
GENERAL FRANCISCO Mr Chief -- Mr
Chief Justice and may it please the Court
I -- I really do have just a few quick
points unless Your Honors have additional
questions
Justice Breyer I did want to respond
in more detail to your question about how the
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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
the waiver -- the visa officer first determines
whether the person is otherwise admissible
under other provisions of the INA
If theyre inadmissible you never
even get to the proclamation Then for those
people who are not inadmissible under other
parts of the INA like 1182(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 youre not subject to an exception
then the consular officer him or herself
turns to the waiver provision and applies the
criteria of the waiver provision
JUSTICE GINSBURG How do you deal
with the -shy
GENERAL FRANCISCO So it does get
applied in every single case
JUSTICE GINSBURG How -- how do you
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deal with the example that was brought up of
the child with cerebral palsy
GENERAL FRANCISCO Your Honor the
waiver is built to address those issues I am
not familiar enough with the details of that
case to tell you what happened in that
particular case But thats what the waiver
provision -shy
JUSTICE BREYER But thats -- thats
you see -shy
GENERAL FRANCISCO -- is intended to
address
JUSTICE BREYER Youve read the
briefs as have I All right Now there are
some that lists about 10 or 15 instances like
the cerebral palsy One has Parkinsons Then
theres another brief that lists all the people
who are professors scholars at universities
and there are a lot And -- and then there are
people they list the students from these
countries a lot
GENERAL FRANCISCO Yeah
JUSTICE BREYER And then the business
community lists a -- a whole bunch and says my
goodness they have been unable to get -- we
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dont know whats going on
And then they say Well whats going
on is nothing is going on
GENERAL FRANCISCO Well Your Honor
-shy
JUSTICE BREYER Now I dont -- Im
not taking sides on that Im just saying I
dont know
GENERAL FRANCISCO Right And the
principal purpose of the proclamation is of
course to 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 Im 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
admissible
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 dont and doesnt tell us we
cannot intelligently make the admissibility
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determination
Third Id like to address the
1152(a)(1)(A) point about nationality-based
discrimination
JUSTICE SOTOMAYOR General could you
stop just one second
GENERAL FRANCISCO Yes Your Honor
of course
JUSTICE SOTOMAYOR I for one am like
Justice Breyer concerned about is this window
dressing or not Whats in place to ensure
its not What are you personally doing to
represent to us that it is in fact a real
waiver process -shy
GENERAL FRANCISCO Your Honor State
Department consular officers automatically
apply the waiver process in the course of every
visa application And they are doing that
which is why there have been -- and I looked at
our brief -- 430 waivers that have been issued
since -shy
JUSTICE SOTOMAYOR Have you bothered
-shy
GENERAL FRANCISCO -- the
proclamation was issued
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JUSTICE SOTOMAYOR -- to look to see
if there are reasons for all of those peoples
exclusions
GENERAL FRANCISCO Your Honor I
cannot claim that I have looked into every
individual case
JUSTICE KENNEDY Could you make your
1152 point
GENERAL FRANCISCO Yes Your Honor
1152(a)(1)(A) addresses one thing the issuance
of immigrant visas It doesnt address the
broader question over whether somebodys
allowed to enter in the first place
Thats governed by 1182 including
1182(f) So essentially 1182 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 1152(a)(1)(A) is
one of the rules that governs how we distribute
visas amongst that group thats eligible to
come in
And its not just nationality-based
distinctions that it applies to It also
applies to things like place of residence So
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once you have that universe of eligible people
1152(a)(1)(A) governs how you distribute them
But lets 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 non-immigrant visas to people who
arent allowed to enter but we wouldnt have
to allow anyone to enter and we wouldnt have
to issue any non-immigrant visas
So the bottom line is I think theyre
simply wrong on that case -- on that issue
My final point has to do with my -- my
brothers 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 25 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
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says its about Foreign policy and national
security And we would ask that you reverse
the court below
CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1109 am the case
was submitted)
Heritage Reporting Corporation
83Official
1 998 [1] 6619 39914 44111417 51581120 arise [2] 5725 584
1 [1] 6910 A 52101118
ALITO [16] 432124 446813 45
around [3] 4814 6313 6510
Article [2] 136 749 1000 [1] 7225 am [3] 116 32 826 15 4611 561119 6472024 65 aside [1] 4414 10 [4] 642125 6516 7715 Abilene [1] 5425 21221 669 asks [3] 169 519 7614 10-year-old [4] 5235 721215 ability [1] 6220 allies [2] 73 1719 assert [2] 5111 7811 1002 [2] 116 32 able [2] 2210 5111 allow [3] 413 4420 8110 asserts [1] 7318 100 [4] 353 407 4813 5310 above-entitled [1] 114 allowed [3] 178 8013 819 associate [1] 2211 11 [1] 4410 abroad [1] 2113 allowing [1] 5318 associated [1] 812 1109 [1] 826 absolute [1] 428 almost [8] 116 1556 30712 66 assume [4] 19811 2016 813 1152 [7] 4017 494 5916 6022 61 absolutely [12] 4114 4213 4520 1518 7416 assumption [3] 3016 3724 513 1421 808 49217 5810 6112 622 63220 Alomari [2] 5222 attitude [1] 227
1152(a)(1)(A [4] 793 801019 81 6419 658 alone [2] 655 6710 Attorney [1] 523 2 abstract [1] 5720 already [3] 61024 397 authorities [1] 4918
1182 [10] 1018 4419 4721 499 academic [1] 3418 although [3] 379 4414 6611 authority [7] 6916 712 3815 42 541 6816 69519 801415 accept [8] 138 454 5035 539 Amendment [3] 396 619 6716 15 5622 5910
1182(a [1] 7612 603 742324 American [1] 1111 authorize [2] 42610 1182(f [18] 4591318 54 616 7 acceptability [1] 108 Americans [2] 4011 8121 automatically [2] 764 7916 1120 1025 1314 3816 432225 account [2] 105 649 amicus [1] 671 available [1] 6511 4410 451 497 544 8015 accurate [1] 1218 amongst [1] 8021 aware [2] 391725
12 [1] 5522 across [3] 107 2524 2923 amount [1] 7416 away [2] 6224 8117 1202(h)(2 [1] 5523
1361 [1] 432
act [4] 128 177 421 4322
acting [1] 313 analysis [3] 914 1624 7013
animus [1] 1710 B
14 [1] 7212 action [4] 2511 385 4915 7314 another [10] 519 1220 279 35 back [6] 234 3519 4715 4813
15 [1] 7715 actions [1] 247 18 54619 6312 646 6924 77 6819 699
150 [2] 325 3618 activity [1] 3118 17 backdrop [1] 2613
17 [1] 3614 acts [3] 410 281119 answer [9] 615 119 369 389 45 background [2] 2620 689
17-965 [1] 34 actually [14] 111923 1225 175 3 5113 6216 631416 balance [2] 462 4818
180 [2] 461821 21 2112 231 2410 257 299 37 answers [1] 532 ball [2] 5018 7425
19 [1] 555 21 4319 608 763 anti-atheist [1] 224 ban [22] 291113 3921 401317
1918 [1] 7423 add [1] 64 anti-Muslim [2] 506 6213 4315 466 4817 4920 5324 55
1965 [1] 4522 added [1] 519 anti-Semite [1] 163 20 564 593 60817 6410 653
2 addition [2] 617 151 anti-Semitic [2] 194 2619 66317 691617 8119
2 [1] 6910
20 [1] 408
2001 [1] 4524
2015 [1] 4525
2018 [1] 112
25 [2] 112 8118
additional [1] 7522
address [10] 71 12618 133 299
583 77412 792 8011
addressed [2] 59 5723
addresses [3] 76 399 8010
adequacy [2] 5724 7014
adequate [1] 610
anti-Semitism [1] 1615
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anybody [1] 7320
anyway [1] 314
APPEARANCES [1] 118
appears [1] 318
applicable [1] 6325
banned [1] 593
bans [3] 3924 4521 461
bar [3] 1420 393 552
bare [1] 303
based [7] 1415 1725 275 2922
60131315
baseline [14] 3162123 722 819
3 adherence [1] 6524 application [2] 6712 7918 972124 1547 1923 302 3919
3 [1] 24 administration [2] 5813 6019 applied [10] 111619 153 1913 7817
38 [1] 27 admissibility [3] 78 820 7825 23 269 2923 3814 76324 bases [1] 6810
39 [2] 5920 6115 admissible [4] 424 816 767 78 applies [9] 322 171 2113 6221 basic [4] 615 725 127 3014
4 19
admission [1] 3923 7651619 802425
apply [9] 147 1589 1918 2112
basically [2] 23725
basis [8] 85 171724 1916 4611
400 [2] 361518 admitted [1] 3423 231 2516 359 7917 502 5918 6821
43 [1] 4715 adopt [1] 314 approach [1] 468 became [1] 3917
430 [2] 7217 7920 adopts [1] 318 appropriate [1] 3025 become [1] 601
46 [1] 3418 adversary [1] 6821 April [1] 112 becomes [1] 5925
460 [2] 4119 5911 advice [2] 179 289 arbiter [1] 2622 began [1] 6915
5 50 [1] 6412
advisors [2] 4821 5010
advisory [1] 7417
affirm [1] 524
area [5] 419 1016 1519 4718 57
8
arent [2] 4311 819
behalf [9] 12122 24710 39 38
23 5118 7518
behind [2] 682223
7 afford [1] 3819 arguably [1] 4717 believe [1] 3614
70 [2] 5012 628 afoul [1] 508 argued [1] 236 below [6] 323 9212424 262 82
75 [1] 210 African-Americans [1] 6516 argument [37] 115 2258 348 3
8 agencies [5] 1925 251516 406
691 121241422 1327 1471013
19912 3822 4316 474 4810
benefit [1] 73
berth [2] 578 633
8 [2] 6417 749 agree [3] 1522 658 6923 11 492224 515 5411 562324 best [1] 6624
80 [2] 30812 ahead [1] 3010 5827 6013 6324 6816 695 71 better [3] 1022 1817 5221
9 air [1] 4823
AL [2] 147 21 7517
arguments [5] 3014 4016 506
between [2] 5418 6618
beyond [2] 3512 7119 902 [1] 6619 aliens [16] 424 128 1625 2113 52915 big [3] 3924 405 5320
Heritage Reporting Corporation Sheet 1 1 - big
84Official
bigger [1] 446
bill [4] 42691112
biological [1] 4010
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Bishops [1] 675
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both [5] 207 274 3019 4020 44
2
bothered [1] 7922
bothering [1] 235
bottom [1] 8112
bounds [1] 2814
bracketed [1] 5914
branch [8] 715161718 2312 27
89 2813
BREYER [49] 1315 3061122 31
111422 321411141624 332
610162023 3425812 35111
1523 36369111720 37211
1822 382 443 524 715 72816
7524 7791323 786 7910
Breyers [1] 576
brief [14] 3420 35818 3612 43
20 464 4813 5011 523 555 62
9 7211 7717 7920
briefed [1] 534
briefs [9] 413 308 3416 452 65
7 672 711123 7714
bring [7] 20131624 2110 2212
516 5222
bringing [1] 5116
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broad [5] 418 1146 442025
broader [1] 8012
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brothers [1] 8115
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Brown [1] 5424
built [1] 774
bunch [1] 7724
burden [2] 3915 6614
burdens [1] 431
business [4] 3116 3417 367 77
23
C cabinet [9] 169 1724 1924 24
2225 25114 2810
cabinets [1] 696
cabinet-level [3] 153 183 1922
California [1] 5325
call [1] 278
calls [1] 675
came [2] 114 587
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60141623 624
candidate [1] 2817
cannot [5] 815 2119 5619 7825
805
careful [1] 4423
carrot [2] 569 596
carrots [3] 3921 4312 469
Carter [6] 93 1013 113 3018 35
5 384
Carters [4] 1113161822
Case [25] 34 109 1222 1317 14
11 151015 198 2011 236 45
14 5115 5424 6612 672 7456
9 7624 7767 806 8113 8256
case-by-case [5] 30192325 38
77
cases [5] 1519 551 659 6913
7024
categories [1] 726
Catholic [1] 674
Catholics [1] 6718
caution [1] 5911
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Chad [3] 46 1010 2917
chain [1] 457
challenge [4] 2010 2123 221 51
16
change [5] 92 3314 4012 5813
charge [2] 245 702
check [1] 254
chemical [1] 4010
CHIEF [49] 3310 1125 121117
21 131 309 3817182124 404
41182024 425 4820 49613
1421 501521 5719 5861216
20 601220 616101720 6218
634141722 642 75481419
20 824
child [1] 772
choices [1] 393
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Christian [1] 222
Circuit [3] 2633 643
circumstances [4] 311 401 63
13 6510
cite [2] 76 1321
citizen [3] 28712 625
citizens [1] 5116
claim [15] 1320 20611131416
24 2121115 2225 5014 6811
13 805
claimed [1] 2624
claims [4] 1317 215 2219 517
class [10] 322718 3413 4429
131416 7313
Clause [15] 1320 1914 2069 21
21118 2225 288 4924 551 68
1113 6912 7020
cleansing [1] 6825
clear [8] 923 1720 2123 5016
5415 6021 6112 682
clearer [1] 613
Clearly [1] 6820
close [1] 3119
closest [2] 73 1719
Code [2] 5320 752
coequal [1] 279
coexist [2] 55719
college [1] 222
come [13] 1324 175 3210 4621
526 5315 5523 5925 6513 72
213 801622
comes [3] 1322 5717 7420
coming [5] 79 2716 4221 432
6925
comments [2] 166 194
committee [4] 512 24178
community [3] 341718 7724
companies [1] 464
compare [1] 1012
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complete [1] 118
completely [2] 2410 546
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comprehensive [2] 55916
concede [3] 4122 5218 532
conceded [1] 6821
Concepcion [1] 5425
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concerned [3] 3217 5913 7910
concerns [2] 1122 129
concluded [4] 155 201 2518 29
24
conduct [2] 824 95
Conference [1] 674
confident [1] 1915
confidential [1] 265
confidentiality [1] 2612
confirms [1] 2921
conflict [1] 5416
conflicts [1] 392
Congress [40] 41015 5710 64
81024 385 397172025 4117
25 421624 439132122 4421
4522 47101011 4817 5313 55
81016 561 571423 5822023
592 741019
Congresss [7] 392 4019 4318
4523 4717 5019 5312
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consider [6] 199 284 371923
3811 5715
considerations [4] 106 4633
4819
considered [1] 5511
considers [1] 5712
consistent [2] 2820 4718
constantly [1] 718
constitute [2] 4416 4922
Constitution [3] 2424 289 6722
constitutional [6] 1317 1510 19
18 2114 5014 6311
constitutionally [1] 2810
construct [1] 2516
consular [6] 121 7113 76412
18 7916
contacts [1] 3115
contemplated [1] 5410
context [3] 161523 1825
contexts [2] 5725 744
continuing [2] 47223
contours [1] 1521
contraception [1] 745
contradicts [1] 602
contrary [2] 54614
contravention [2] 5534
convinced [1] 487
cooperate [5] 84 3910 4610 48
15 5717
cooperated [1] 3922
cooperating [3] 4220 4311 55
19
core [1] 720
corner [1] 672
correct [4] 13911 4323 4412
cosmic [1] 7310
Cotton [1] 5425
couldnt [3] 2223 613 7123
counsel [2] 7515 825
countermand [2] 459 5019
countermanded [1] 4717
countermanding [1] 4317
countermands [2] 4523 5312
countries [45] 3152225 51821
22 749 91920 1047 1112 15
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4 3621 3910121821 4219 43
11 469 4815 5518 566 5716
5810 6010 641213141621 65
14 665 7721 7811 812224
country [29] 416 811 99 154
1925 251718 2716 305 3210
4215 436 4416 491 516912
21 521012 5615 581423 6010
7114 8017 812123
countrys [1] 1719
couple [2] 271 3222
course [8] 1323 1679 3520 61
18 7811 79817
COURT [22] 1115 311 1218 13
8 1423 3825 5223 535 5912
6125 6399 678 682 701 7318
25 741315 7520 823
Courts [3] 4112 4513 5423
courts [5] 266 5625 572 7016
743
covered [2] 1114 2917
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credit [1] 3922
criminal [2] 83 304
crisis [2] 477 482
criteria [8] 512 910 292324 33
1921 3919 7620
cross [1] 1613
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Cuba [2] 95 476
current [1] 3613
cuts [1] 6715
D DC [3] 1112022
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danger [1] 525
dangerous [1] 597
data [1] 7221
daughter [1] 525
day [5] 2819 40814 63723
days [4] 4119 461821 5911
deal [8] 422425 4310 5622 596
6824 7621 771
deals [1] 5517
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decided [3] 610 121213
decision [3] 2122 4110 5912
decisions [1] 5423
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definitely [1] 209
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denigration [1] 684
denominator [1] 7219
Department [3] 120 761 7916
departments [1] 691
depending [1] 6312
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described [3] 811 2614 535
designated [2] 518 7114
despite [1] 1214
detail [3] 1020 274 7525
detailed [3] 101825 1110
details [1] 775
determination [2] 815 791
determine [4] 424 78 819 7817
determined [1] 714
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developing [1] 5722
development [1] 7317
difference [2] 2724 631
different [10] 822 3512 4016 53
16 5511 6622 6721 707 744
816
difficult [2] 1716 581
diplomatic [5] 324 18121518
3313
direct [3] 5415 5534
direction [2] 5512 685
directly [6] 5010 512323 52125
5413
disagree [1] 4610
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disavowing [2] 63618
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4825 49423 502 5917 60913
22 612 6324 651520 676 794
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disparage [1] 7025
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Doe [1] 88
doing [8] 63 229 2514 5015 54
519 791218
domestic [2] 1913 6710
DONALD [2] 13 35
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21 608 6628 7422
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E earlier [2] 2713 687
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eight [1] 6519
either [2] 1112 265
elected [2] 162 2819
eligible [3] 801621 811
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emergency [5] 4023 4115 5710
59813
emerges [2] 161416
employed [1] 3123
employer [1] 6516
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22
ends [2] 4614 478
engaging [1] 825
engineers [2] 532224
enough [4] 415 68 583 775
ensure [2] 2623 7911
enter [7] 1617 2114 409 6220
8013 81910
entire [1] 810
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entity [1] 6312
entry [6] 314 414 399 4013 44
11 605
equal [1] 6525
Equality [2] 523 7211
equipped [1] 7016
ESQ [2] 122 26
essentially [3] 714 1325 8015
establish [1] 4517
established [1] 3116
Establishment [12] 1320 1914
206 2121018 2225 4924 68
1112 6912 7020
ET [2] 147
evaluating [1] 7014
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even [20] 1310 17916 19811 25
11 4120 4716 5319 553 5824
5910 6621 679 6820 691522
73113 7610
everybody [2] 2123 6524
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evidence [2] 6624 7223
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535 57515 62817 638 64221
example [14] 86 4024 455 515
24 522 5521 587 629 6515 67
17 6815 747 771
examples [2] 312 5313
exception [7] 92123 1120 3624
7118 761417
exceptions [2] 302023
exclude [2] 2914 6720
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1217 7210
exclusion [2] 127 1625
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10 23712 24814 2813 391 46
15 471415 5311 5921 602 61
16 621112 69923 7421
exercise [4] 206919 2218
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17 255 31912
eyebrows [1] 656
F face [1] 252
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6714 6919 7913
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fair [1] 55
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fall [7] 323 924 1312 32618 43
24 6617
falling [1] 3412
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18
far [5] 1413 3217 4121 513 59
15
fast-moving [1] 4024
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findings [1] 6018
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fine-grained [4] 4524 468 4818
5020
finish [1] 1714
fire [2] 2318 6517
first [21] 14310 2421 272 283
3225 39614 427 4317 4721
556 6021 619 671622 699 76
614 801317
fit [1] 656
five [6] 3124 64131313 75416
flat [7] 4314 4616 4817 55220
564
flatly [3] 59316 602
flexible [1] 418
Focus [1] 321
folks [1] 5225
follow [1] 178
following [1] 312
fomenting [1] 591
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force [1] 4316
forces [1] 6920
forecloses [1] 1517
foreign [8] 42 825 106 129 31
15 462 8018 821
forever [1] 6221
Forge [2] 212225
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forward [2] 132224
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four [1] 7814
Fourth [1] 263
FRANCISCO [117] 119 239 37
810 417 616112225 91218
10172124 115818 1231624
13418 142122124 1518 164
1821 171323 182924 1925
2081923 21321 228141722
2310162124 243111519 268
Heritage Reporting Corporation Sheet 3 danger - FRANCISCO
86Official
151825 27172022 28223 292
3021 3110132125 32381315
2225 334811182225 3447
1025 35101422 361581012
1925 3731320 381920 7517
19 7623 7731122 7849 797
1524 8049
frankly [1] 377
free [7] 2069101924 221818
freedom [1] 6523
friend [5] 395 4319 4615 532
623
full [1] 1520
fundamental [5] 2811 296 6522
713 7418
future [2] 161 1814
G game [1] 1325
gas [1] 5425
GEN [3] 119 239
General [127] 119 3810 417 57
23 616112225 91218 1017
2124 1125818 1231624 134
1618 142122124 1518 16418
21 171323 1825924 1925 20
281923 21321 228141722
23310162124 243111519 25
25 268151825 2713172022
28223 292 3021 31101321
25 323813152225 334811
182225 34471025 35101422
3615810121925 3731320
38191920 624 75161719 76
23 7731122 7849 79571524
8049
Generals [1] 6824
George [1] 6719
gerrymander [1] 6614
gets [1] 162
getting [4] 611922 731 7414
GINSBURG [4] 48 445 762125
give [8] 711 86 151225 5124
569 6821 7223
given [10] 917 1413 1718 1825
1915 241325 3219 691819
gives [2] 616 2224
giving [3] 311 539 606
goodness [1] 7725
GORSUCH [14] 5025 511820 52
81417 677 73258121622 74
2
got [4] 2714 357 4334
gotten [2] 721824
governed [1] 8014
government [14] 825 92 109 12
1523 1322 1524 222 264 278
10 3520 514 7823
governments [2] 3314 3714
governs [2] 8020 812
great [4] 248 274 812124
greater [1] 5910
greatest [1] 5012
greenhouse [1] 5424
ground [3] 223 401 5723
grounds [2] 624 6913
group [2] 5525 8021
guess [2] 1417 542
guidance [3] 3424 352 721
H Half [2] 4616 476
Hamdan [3] 4113 577 5915
hand [1] 1818
happened [1] 776
happens [2] 1718 4621
happy [1] 7512
harbored [1] 1710
hard [1] 1520
hardship [3] 31789
harkens [1] 699
harmed [1] 5123
harmful [2] 824 95
harmonize [1] 4425
Harvard [1] 3419
hate [1] 2818
hateful [2] 281820
hatred [1] 167
HAWAII [4] 17 36 5125 7224
head [2] 23812
hear [1] 33
heard [7] 1523 39519 453 4614
532 733
hearing [1] 3519
heart [6] 179 181921 2119 59
24 6716
hearts [3] 179 182021
heated [1] 2617
heightened [1] 514
help [4] 421 721 87 2523
herself [1] 7618
hire [1] 2318
history [6] 824 1025 1111 303
4
holds [1] 1814
holistic [1] 914
home [2] 811 7823
Homeland [1] 313
honestly [2] 176 2724
Honor [38] 417 61319 71 810 9
12 1018 11511 12325 1318
1621 1715 1810 19621 2010
214922 2420 2625 28324 32
923 36125 3810 4520 507 77
3 784 79715 8049
Honors [1] 7522
hoping [1] 7814
however [3] 419 113 2513
humanitarian [2] 1121 464
hypothetical [15] 151323 173
187 191620 205 2323 3812
412223 4223 437 4912
I is [1] 1613
ID [1] 433
idea [1] 454
ideal [2] 81 303
identified [2] 5518 5713
identify [1] 824
identifying [2] 4219 4811
III [1] 136
illustrate [1] 87
illustration [1] 5012
image [1] 464
imagine [7] 2913 412425 5611
19 598 613
imbued [1] 128
immediate [1] 419
immigrant [3] 5923 8011 817
immigrants [3] 11161719
immigration [10] 412 318 4518
4911 67151720 74920 752
impact [1] 4915
impacted [2] 52125
impacts [1] 4919
impediment [1] 4117
implement [3] 422 721 815
important [7] 1324 531 5923 61
15 696 7011 724
importantly [2] 517 6914
impose [3] 617 103 457
imposed [3] 2522 609 6614
imposes [1] 91
imposing [1] 8119
improve [1] 718
impulse [1] 742
in-person [3] 434 5521 562
INA [11] 42225 618 721 816 45
19 5017 5322 76812
inaccurate [2] 3912 561
inadequate [1] 5617
inadmissible [2] 76911
including [9] 320 155 251819
2917 3911 4217 476 8014
incomplete [1] 239
inconsistent [2] 523
indeed [1] 591
independent [1] 2622
indicates [1] 4624
indication [1] 5510
individual [4] 311 781522 806
individualized [4] 3915 4225 46
8 595
individuals [2] 78 322
ineffective [1] 2912
infected [1] 6911
inference [2] 66713
infiltration [1] 5613
information [20] 31625 423 77
23 81319 97 302 3315 3517
3913 407 414 5617 5825 78
1317
inhibition [1] 6219
initial [1] 253
injunction [5] 217 2223 73910
24
injury [1] 2124
INS [1] 2216
instances [2] 734 7715
Instead [5] 3921 4617 4817 62
25
intelligence [3] 406 414 428
intelligent [1] 815
intelligently [1] 7825
intended [1] 7711
intention [1] 8119
interests [4] 1121 315 701115
international [1] 6711
interpretation [1] 604
interrupt [1] 412
interview [4] 435 5522 562 71
13
introduced [4] 4120 421011 49
20
introduces [1] 426
invidious [1] 668
involve [1] 1625
Iran [2] 94 6424
Iraq [3] 923 1010 2917
iron [1] 7424
irrelevant [2] 2822 291
irrespective [1] 147
Islam [1] 8123
isnt [5] 3520 3813 4710 7119
25
Israel [4] 1617 1718 181516
issuance [3] 495 5918 8010
issue [10] 1219 16101011 4911
5511 7313 8171113
issued [7] 54 89 1110 4716 78
22 792025
issues [6] 126 283 533 63518
774
item [1] 4510
itself [5] 2910 69819 713 7325
J Jane [1] 88
Jews [2] 166 242
job [1] 2515
join [1] 2213
joined [1] 576
Judge [2] 4022 612
judges [2] 2623
judgment [6] 43 4524 4717 48
22 7019 8019
judgments [4] 4019 4318 5020
5312
judicial [1] 1620
jump [1] 664
jurisdiction [1] 136
jurisdictional [5] 122413 133
533
jurisprudence [1] 1914
Justice [217] 120 3310 48 56 6
272023 9817 10111922 112
791525 12111721 1311516
19 1431722 151222 16519
171122 18151125 193 2024
1521 21115 2259151921 23
31117222225 2441216 2525
269131619 2712182123 28
1625 30691122 31111422 32
1411141624 3326101620
23 3425812 351111523 363
Heritage Reporting Corporation Sheet 4 FRANCISCO - Justice
87Official
69111720 372111822 382
17182125 404 41182024 42
5 432124 44346813 4515 46
111723 471320 4861020 49
6131421 5015212325 5118
20 52381417 5421218 5611
1924 575619 586121620 60
1220 616101720 6218 63414
1722 642672024 6521221
669 677 68618 6924 709 715
72815 73258121622 742 75
48142024 762125 7791323
786 79591022 8017 824
justiciability [1] 137
justifications [1] 663
K KAGAN [26] 131619 1431722
151222 16519 171122 1815
1125 193 2613 2712182123
5023 5421218 709
Kagans [1] 2323
KATYAL [79] 122 26 38212224
4015 41711 42413 4323 441
1218 4520 46131925 47325
489 49291725 504725 511
141922 52131620 5431117
21 561821 574 585151922
6020 618111922 6222 638
1620 64171923 6514 669 67
713 68612 693 701017 7279
733711152124 75611
keep [3] 241 258 4215
KENNEDY [19] 10111922 204
1521 2220 281625 461723 47
1320 48610 5624 575 807
Kennedys [1] 119
kept [1] 264
kill [1] 4011
kind [8] 142022 1612 186 1913
5415 5924 7012
kinds [1] 165
King [1] 6719
knock [1] 6114
knows [4] 181319 3525 7823
L land [1] 221
language [1] 4325
laptop [1] 4920
large [1] 5922
later [2] 4119 5911
latest [1] 6211
Laughter [5] 188 3411 423 757
10
LAVAS [1] 4023
law [4] 314 3720 403 752
lawfulness [2] 3723 724
laws [2] 411 318
layer [1] 519
lays [1] 273
learns [1] 811
least [1] 1213
leave [1] 512
left [2] 3015 6519
legality [1] 378
Legislation [3] 3923 4121 422
legislative [1] 4117
legitimacy [1] 2511
legitimate [1] 1322
Lemon [2] 67925
less [1] 3112
letters [1] 7225
level [2] 423 77
lies [1] 4316
life [1] 7214
light [1] 5722
likelihood [1] 5525
limit [3] 51 4423 4512
limitations [1] 6017
limited [1] 7312
limits [4] 420 64 545 7421
line [4] 107 2524 4510 8112
lines [1] 699
Lisa [1] 3420
list [10] 47 911 3115 64141625
665610 7720
listed [1] 919
lists [3] 77151724
litigants [1] 266
little [2] 613 141
local [1] 2817
long [3] 415 577 678
long-term [2] 3117 601
longer [2] 101419
look [16] 724 2622 3519 4113
4715 552 6238 6510 661220
671 6822 7021 801
looked [7] 5713 624 3022 6420
7919 805
looking [1] 6823
lot [5] 612 145 167 771921
love [1] 8122
low [1] 916
lower [1] 743
Lukumi [3] 659 682 7024
M made [7] 1215 14912 286 689
811820
main [1] 720
maintain [1] 717
majority [6] 31920 251920 29
15 491
Mandel [18] 1321 1410131822
158141619 16192223 17116
201125 2511 2621
Mandels [1] 1723
many [5] 3013 7255 812222
mark [1] 2811
marks [1] 296
material [1] 261
matter [5] 114 1917 259 297 72
21
mayor [1] 2817
McCreary [3] 159 6399
mean [9] 1820 412 4824 5720
6215 6411 6715 6810 814
meaning [1] 299
means [2] 144 6514
meant [2] 421 103
measures [1] 5615
medical [1] 3421
meet [4] 511 1420 331820
member [3] 2425 251 3119
members [2] 1610 2213
mentioned [2] 49 5616
merits [4] 1214 1312 514 537
message [2] 2124 224
met [1] 321
might [13] 620 181314 2218 26
12 356 4912 5023 511 5222
584 655 7413
migration [1] 458
military [1] 4821
million [2] 325 3618
millions [2] 6733
minimum [11] 316 423 7722 8
218 96 30123 7816
minutes [2] 75516
misunderstanding [1] 4912
moment [1] 7121
month [1] 413
months [1] 488
most [18] 1018 1110 1324 2912
25 352 361313 37141416 53
1 5922 6115 6421 6914 7015
7225
move [3] 107 2523 7214
moved [1] 6224
moves [1] 4212
much [8] 1120 2025 285 446 46
7 6620 71119
multi-agency [3] 312 1921 29
22
Muslim [19] 321 251820 2911
1315 4911619 6410121416
17 65314 663 811922
Muslim-majority [2] 156 2916
Muslims [5] 2715 6421 661819
8120
must [4] 2418 3111 325 7411
N narrow [1] 419
nation [1] 5924
national [14] 43 520 105 1121
129 1323 176 184 571 7011
1518 8019 821
nationality [7] 39424 401721
4315 59318
nationality-based [4] 609 611
793 8023
nationals [4] 317 40813 4415
nationwide [3] 217 2223 739
naturalization [1] 7411
nature [1] 102
nay [1] 416
NEAL [3] 122 26 3822
near [1] 7316
necessarily [1] 4711
necessary [4] 37911 472224
need [6] 420 1717 2622 304 31
20 6113
needed [7] 31725 423 77 819
781217
needs [1] 544
negative [2] 2124 226
Neither [2] 74 4212
neutral [6] 154 1923 2119 2517
292324
never [7] 359 394 4120 5021 72
18 76916
new [4] 3512 4517 5713 7317
next [3] 71 63623
Ninth [2] 262 643
nobody [2] 3422 3525
NOEL [5] 119 239 38 7517
non-immigrant [2] 81811
non-politically-correct [1] 6917
non-reviewability [2] 12114
none [1] 4716
Nope [1] 701
nor [1] 75
normal [1] 3220
nothing [8] 3717 461321 478
493 5713 6023 783
notice [1] 3524
noticed [1] 3018
number [11] 157 2522 329 34
15 361314 6524 6714 694 72
9 744
numbers [2] 3313
O oath [3] 28724 295
objections [2] 6616 7110
objective [4] 621 645 6625 70
22
observer [7] 621 6458 653 66
25 679 7022
observers [1] 1823
obviously [2] 719 7324
occupations [1] 5321
occurred [1] 6825
offer [1] 4312
office [2] 288 3622
officer [3] 7661318
officers [2] 764 7916
official [2] 7024 7113
officially [1] 7114
often [3] 3716 7220 8018
Okay [11] 3114 332323 3412 35
15 3718 5412 6123 755613
omits [2] 319 2915
Once [5] 814 1321 2620 477 81
1
one [39] 41113 52021 915 10
13 114 1220 13524 1616 17
19 2215 2314 278 2913 3015
3312 358 373 4013 4218 51
24 6015 6220 6311 6422 6522
6714 694 71811 7210 7716
7969 801020 8123
ones [3] 518 6511 718
only [17] 322 414 1116 1519 21
Heritage Reporting Corporation Sheet 5 Justice - only
88Official
13 2914 317 329 3423 3524
4218 5514 626 651317 661
6812
opinion [3] 357 577 7417
Opinions [1] 288
oral [5] 114 225 38 3822
order [31] 91 1411 2425 253 29
1921 30181923 3314 3724 39
1920 4614 47714 4822 539
5921 602 6116 621112 655
13 698 712 725 7421 7812
orders [5] 2917 4616 47615 69
10
ordinary [1] 7023
organization [1] 812
other [29] 323 75 99 105 149
311724 3220 3523 416 4319
4424 4525 4714 5510 5615 58
9 656919 663 671525 6913
703 7120 7512 76811
others [2] 915 741
Otherwise [3] 2124 2210 767
ought [1] 4822
out [13] 242 258 27311 2814 35
1616 3618 588 6114 66411
723
out-of-the-box [1] 186
outcome [1] 2417
outer [1] 420
outgrowth [1] 6910
over [5] 1325 167 3615 4723 80
12
overall [1] 915
overwhelmingly [1] 1510
owes [1] 279
own [2] 6816 694
P packed [1] 612
PAGE [6] 22 3614 5011 555 62
8 7212
palsy [4] 527 7212 77216
parameters [1] 516
Parkinsons [1] 7716
PARS [2] 523 7211
part [7] 2925 59222223 601 61
15 7016
participated [1] 692
particular [15] 1016 2117 2589
408 4416 5614 57212225 58
314 664 6919 777
parties [2] 517 7313
parts [1] 7612
party [1] 5224
pass [1] 4114
passed [1] 156
past [4] 522 822 2917 503
people [32] 20121617 225 31
15 32510 3415 355524 3634
6 375 4221 4415 5523 5925
67420 703 7120 7211725 76
11 771720 8016 8118
peoples [1] 802
percent [6] 407 5920 6115 64
17 661919
percentages [1] 7222
perennial [2] 4812 5716
perhaps [2] 5817 717
period [3] 415 244 4722
permanent [1] 4518
permission [1] 523
perpetual [4] 444 4521 4612 48
5
perpetuated [1] 444
person [6] 4325 7114 767 78
1820
personally [2] 517 7912
persons [1] 5110
Petitioners [6] 1521 2410 39
7518
pick [1] 7425
pieces [1] 725
place [6] 2116 2319 7911 8013
1725
placed [1] 3916
plainly [1] 252
plaintiff [1] 5222
plaintiffs [2] 2125 536
please [4] 311 3010 3825 7520
point [23] 1624 1820 294 367
419 4215 4317 446 452 538
5415 6022 66111 68414 718
74818 7814 793 808 8114
points [1] 7522
policy [15] 43 106 129 2319 39
3 4019 4318 451821 462 50
10 5312 6310 8018 821
political [1] 128
polity [1] 601
poorest [1] 746
population [4] 491619 641518
position [1] 5017
possibility [1] 386
possibly [2] 216 2913
potentially [2] 201320
power [11] 4418 1313 4419 45
5 5310 541 5811 607 6720 74
23
practice [1] 2120
praised [1] 8123
precedential [1] 1220
precludes [1] 5710
predominantly [3] 64121316
preference [2] 456 5321
preferences [1] 5318
preliminary [1] 2621
prescient [1] 582
prescribed [1] 558
present [8] 2059 5191221 52
101119
presidency [1] 168
PRESIDENT [86] 13 345 410
14 5913 63916 712 934 11
13131822 1313 162 1758 18
6 191 2381223 257 271525
3513 3712 3834 40612 4217
101214 441121 454 472 487
11212224 4918 508918 5310
101523 54591922 561622 57
321 5810 599 607 6271216
23 632 643 6817 6951520 70
158 712 742224 811517
Presidents [8] 313 44 2421 38
15 4114 69721 704
presidential [1] 6018
Presidents [2] 4716 578
press [2] 141 6214
pressure [8] 324 91 104 1815
252223 3313 7811
presumption [1] 2710
prevent [1] 545
previously [2] 311623
principal [4] 1319 3312 376 78
10
principally [1] 298
private [4] 179 28712 625
pro-Christian [1] 223
probably [2] 3414 7415
problem [16] 261 3413 398 42
1719 481512 497 5315 5517
571216 6925 71419
problems [3] 323 2521 5721
proc [1] 1610
procedures [1] 5817
proceeding [1] 513
process [27] 51515 810 1458
1419 152 1915 2623 274 29
20 3915 5714 6815 69215 72
1020 76123 78161823 7914
17
processes [1] 3221
proclamation [55] 318 42 54 7
24 81721 92022 102121525
111023 1311 14615 161216
191718 211116 231 273519
2910 3313 381114 451617 53
11 5514 611 6217 635718 64
8 6972021 70410 7422 7610
131516 7810 7925 81525
proclamations [1] 421
proclamations [5] 823 1013 11
3 3716 6220
professors [1] 7718
Program [5] 725 56510 596
promulgated [2] 6212 6311
propose [1] 4314
protect [3] 41 2423 304
protest [1] 6718
provide [8] 31625 96 301 3315
3912 566 7812
provides [1] 72
providing [2] 5525 5825
provision [6] 1120 498 5420 76
1920 778
provisions [2] 459 768
provokes [1] 166
publication [1] 7219
publicize [1] 7125
publicized [2] 3621 374
publicly [1] 6511
publish [1] 762
purely [2] 6025 6711
purport [1] 4517
purports [1] 2919
purpose [5] 721 668 701925 78
10
purposes [4] 2216 3312 6114
751
pursuant [2] 89 7822
pursued [1] 215
pushes [1] 431
put [6] 1815 2319 351 4414 66
5 721
puts [5] 161922 6817 695 749
Q qualify [1] 722
qualms [1] 427
question [23] 612 119 1711 18
2122 3015 346 353 3810 41
16 51210 543 5724 61617 62
18 6315 7012 7122 735 7525
8012
questions [3] 5725 751223
quick [1] 7521
quite [4] 922 1915 326 7110
quotas [1] 6010
R race [1] 259
raise [1] 656
raised [1] 1222
raises [2] 6613 735
rate [1] 1524
Rather [1] 2514
rational [3] 17171824
re-upped [1] 483
reach [1] 514
reached [1] 537
read [8] 413 1418 307 3416 44
232324 7713
reading [1] 648
Reagan [8] 94 1012 113 3019
35413 3712 383
Reagans [1] 1113
real [1] 7913
real-time [1] 85
really [14] 720 81721 125 1422
1516 1821 439 4415 6617 71
24 7317 7521 814
reason [9] 132324 1423 2149
3219 339 4511 6822
reasonable [8] 1822 621 6458
652 6625 679 7022
reasons [11] 181315 3116 392
401522 4423 656 7412 802
reassessment [2] 4624 475
REBUTTAL [4] 28 3819 7516
17
receives [1] 289
recent [1] 522
recently [1] 46
recognition [1] 8115
recommendation [3] 153 183
1922
recommendations [2] 319 16
Heritage Reporting Corporation Sheet 6 only - recommendations
89Official
11
recommended [2] 314 2523
red [2] 5011 629
reenter [2] 63723
reexamined [1] 4618
referring [1] 524
reflect [1] 822
reflects [2] 42 101
refuse [1] 251
refused [1] 265
regard [2] 4825 7319
regime [1] 597
regularity [1] 277
rejected [2] 3920 4313
rekindled [1] 628
relatively [1] 197
relatives [1] 2017
relief [1] 7313
religion [6] 211720 259 6525
684 7025
religious [7] 226 651523 6613
1416 675
rely [1] 298
remedy [1] 736
remember [2] 3616 6816
removed [2] 4118 516
repetitive [1] 3013
reply [2] 3612 555
report [2] 462022
reporting [4] 823 402 479
represent [4] 981318 7913
representing [1] 673
required [3] 132 402 4711
requirement [2] 4710 5521
requires [1] 3721
resentment [1] 167
reside [1] 3118
residence [1] 8025
residual [1] 4214
resign [1] 251
respect [13] 945 2120 4020 42
23 4316 529 5513 5614 5825
6124 711820
respond [2] 418 7524
Respondents [5] 1823 27 21
12 3823
response [2] 1320 376
responses [5] 2420 271 3223
3610 371
responsible [2] 411 2413
rest [3] 451 5410 6018
restrictions [3] 315 617 6717
resulted [1] 152
reticulated [3] 4524 55816
reverse [1] 822
review [10] 312 519 1620 1922
2419 2922 5625 5714 6915
reviewability [1] 1219
reviewed [1] 262
rid [2] 531919
rights [2] 51811
rise [1] 739
risk [2] 176 435
riskiest [1] 79
ROBERTS [38] 33 1125 121121
131 309 381821 404 411824
425 4820 4961421 501521
5719 58121620 6012 61610
1720 6218 634141722 7548
14 824
robust [2] 4310 5622
rule [2] 127 7411
rules [1] 8020
run [1] 508
S safe [2] 4215 488
safest [1] 74
sake [2] 19912
Sale [4] 1212 53233
same [15] 920 1410 2824 349
3547 39819 5214 571215 63
10 658 685 6911
sanctions [2] 9125
satisfies [2] 1312 5515
satisfy [3] 171621 3918
save [1] 7213
Savings [1] 551
saying [13] 63 226 4025 426 46
12 5413 635 683 701221 71
10 787
says [28] 16516 237 241 3024
24 319 35824 4115 462020
47721 48241324 5224 5917
604 69810 7010 7217 7410
7724 821
scenario [1] 256
scheme [2] 55916
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557 6724 698 7813 796
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666
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5921
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2920
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4818
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3912 437 5524 568 5824 71
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1719 7717
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6914 792
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615 6213 693
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GENERAL FRANCISCO And -shy
JUSTICE SOTOMAYOR So I -- but what I
see the President doing here is saying Im
going to add more to the limits that Congress
set -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- and to what
Congress said was enough Where does a
President get the authority to do more than
Congress has already decided is adequate
GENERAL FRANCISCO Well there are -shy
theres a lot packed into your question Your
Honor and so let me try to unpack it a little
bit
I think the basic answer is that
1182(f) gives the President the authority to
impose restrictions in addition to those set
forth in the INA but to go to the statutes
that Your Honor was -shy
JUSTICE SOTOMAYOR But -- it might
but -shy
GENERAL FRANCISCO Right but -shy
JUSTICE SOTOMAYOR -- on the very
grounds that Congress has already looked at
GENERAL FRANCISCO And thats exactly
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what I was going to address next Your Honor
The Visa Waiver Program provides a special
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 admissibility of individuals
coming in from some of the riskiest countries
in the world
And 1182(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 Its up to the executive
branch to set it up Its up to the executive
branch to maintain it And its up to the
executive branch to constantly improve it
And here you have something that
really is at the core of 1182(f) since its main
purpose is to help implement the INA by making
sure we have that minimum baseline of
information
And if you look at the proclamation
what were talking about is very basic pieces
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of information Not the ideal but the
minimum Are they reporting terrorism history
information Are they 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 visa 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
doesnt tell us
Once she shows up at the border we
cannot make an intelligent determination as to
whether or not shes admissible under the INA
And thats 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
that it seeks to identify harmful conduct that
a foreign government is engaging in and then
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it imposes sanctions in order to pressure that
government to change
Thats what President Carter did with
respect 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
JUSTICE SOTOMAYOR Can you represent
that no other country that -- that fails all
three of the criteria was excluded from this
list
GENERAL FRANCISCO Well Your Honor
what I can represent is that the -- the -- the
analysis was holistic It wasnt if you failed
any one or the others It was if your overall
score was sufficiently low
JUSTICE SOTOMAYOR So given -shy
GENERAL FRANCISCO 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 below -- below the baseline but was not
subjected to sanctions
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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 weve now seen has been
successful as with the case of the government
of Iraq -- of Chad
JUSTICE KENNEDY In fact if you
compare this proclamation to the Reagan and the
Carter proclamations which I think were one or
two sentences this is longer than any
proclamation that -- that Ive seen in this
particular area
GENERAL FRANCISCO This is Your
Honor the most detailed 1182 -shy
JUSTICE KENNEDY Id say longer
detail -shy
GENERAL FRANCISCO Yes
JUSTICE KENNEDY -- is -- is a better
word
GENERAL FRANCISCO Yes This is the
more detailed 1182(f) proclamation in history
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It is not -shy
JUSTICE SOTOMAYOR General the
proclamations by Reagan and Carter however
were not as broad as this one
GENERAL FRANCISCO Your Honor they
were almost as broad but -shy
JUSTICE SOTOMAYOR And -- and -shy
GENERAL FRANCISCO -- to complete my
answer to Justice Kennedys 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 Reagans or President Carters
covered But its -shy
JUSTICE SOTOMAYOR And more -- and
more immigrants because Carters only applied
to certain immigrants not to all
GENERAL FRANCISCO President Carters
actually applied to all immigrants but then had
an exception much like the waiver provision
here for national interests and humanitarian
concerns So I think President Carters was
actually very similar to the proclamation here
And -shy
CHIEF JUSTICE ROBERTS Is your
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consular non-reviewability argument -- is that
a jurisdictional argument
GENERAL FRANCISCO Your Honor I -shy
yes I think it is a jurisdictional argument
And thats why I dont 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 to -shy
CHIEF JUSTICE ROBERTS I -- I thought
in Sale that we decided that this -- this
wasnt jurisdictional or at least decided the
merits despite the non-reviewability argument
that the government made
GENERAL FRANCISCO I think the second
thing that you just said Mr Chief Justice is
accurate The Court didnt address the
reviewability issue at all And so we dont
think its precedential one way or another
CHIEF JUSTICE ROBERTS Was the -- was
the argument raised in that case by the
government
GENERAL FRANCISCO Yes it was Your
Honor Actually you could -shy
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CHIEF JUSTICE ROBERTS So -- so its
an argument we would have been required to
address if it were in fact jurisdictional
GENERAL FRANCISCO I think so And
so I think one way you could understand it is
that it doesnt go to Article III jurisdiction
though it is a justiciability argument and we
would urge this Court to accept it because we
think its correct
But even if you dont think that its
correct we think that this proclamation
satisfies the merits because it does fall well
within the power of the President under
1182(f)
JUSTICE BREYER If youre about -shy
JUSTICE KAGAN May I turn General
to the constitutional claims in this case
GENERAL FRANCISCO Yes Your Honor
JUSTICE KAGAN And your principal
response to the Establishment Clause claim is
to cite Mandel and to say that once the
government comes forward with a legitimate
reason -- of course national security is the
most important reason one can come forward with
-- the game is over essentially And I just
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want to press on that a little bit
GENERAL FRANCISCO Sure
JUSTICE KAGAN So first I want to
ask whether that means -- you started off by
talking a lot about the process of this
proclamation But I -- I take it that that
argument would apply irrespective of what
process was used
In other words you would have made
the same Mandel argument to the first executive
order in this case or would you not
GENERAL FRANCISCO We would have made
a Mandel argument but it is far stronger given
that you have the process and substance upon
which this proclamation was based because
whatever you -shy
JUSTICE KAGAN Well I guess I wonder
why that is just because when I read Mandel
I dont see anything about process or you have
to meet a certain kind of bar
GENERAL FRANCISCO Uh-huh
JUSTICE KAGAN Mandel really is kind
of you state a reason and this Court stops
GENERAL FRANCISCO And I think that
that is right but I think that when you in
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addition to that have the extensive worldwide
process that we had that resulted in a
cabinet-level recommendation that applied a
neutral baseline to every country in the world
concluded that almost all the world including
almost all of the Muslim-majority world passed
that baseline but a tiny number of countries
didnt I think that whether you apply Mandel
or whether you apply McCreary that makes the
constitutional case in our favor overwhelmingly
strong Its a -shy
JUSTICE KAGAN So let me give you a
hypothetical and its just -- you know I
think that there are ways to distinguish Mandel
in this case but -- but -- but you know just
in terms of thinking about what Mandel really
forecloses here
GENERAL FRANCISCO And I -- because
Mandel there are only two cases in the area
and its -- its hard to understand the full
contours of it
JUSTICE KAGAN I agree So this is a
hypothetical that youve heard a variant of
before that the government has at any rate
but I want to just give you
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So lets say in some future time a -shy
a President gets elected who is a vehement
anti-Semite -shy
GENERAL FRANCISCO Uh-huh
JUSTICE KAGAN -- and says all kinds
of denigrating comments about 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 dot all the
is and they 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
GENERAL FRANCISCO Right
JUSTICE KAGAN Do you say Mandel puts
an end to judicial review of that set of facts
GENERAL FRANCISCO No Your Honor I
dont say Mandel puts an end to it but I do
say that in that context Mandel would be the
starting point of the analysis because it does
involve the exclusion of aliens which is where
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Mandel applies
If his cabinet -- and this is a very
tough hypothetical that weve 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 in his private heart of hearts
he also harbored animus
JUSTICE KAGAN Well the question is
GENERAL FRANCISCO I would also
suggest though -- if I could finish that Your
Honor -- that I think it would be very
difficult for that to even satisfy Mandel
rational basis scrutiny Id need to know what
the rational was Given that Israel happens to
be one of the countrys closest allies in the
war against terrorism its not clear to me
that you actually could satisfy -shy
JUSTICE KAGAN Well -shy
GENERAL FRANCISCO -- Mandels
rational basis standard on that unless it
truly were based -shy
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JUSTICE KAGAN Yes
GENERAL FRANCISCO -- on a
cabinet-level recommendation that was about
national security
JUSTICE KAGAN General Im -- lets
-- this is a out-of-the-box kind of President
in my hypothetical And -shy
(Laughter)
GENERAL FRANCISCO We -- we -- we
dont have those Your Honor
JUSTICE KAGAN And -- and you know
he thinks that there are good diplomatic
reasons and there might -- who knows what the
future holds that there might be good
diplomatic reasons to put pressure on Israel or
to say we want Israel to vote a certain way in
the UN and this is a way to better our
diplomatic hand and so this is what he does
And -- 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 think -shy
GENERAL FRANCISCO Right
JUSTICE KAGAN -- given this context
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in which this hypothetical President -shy
GENERAL FRANCISCO Sure
JUSTICE KAGAN -- is making virulent
anti-Semitic comments
GENERAL FRANCISCO Right And Your
Honor its a tough hypothetical but its why
I also think that this is a relatively easy
case because were 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 though we think that its
wrong that you applied some kind of domestic
establishment clause jurisprudence because
were 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 dont have the extreme
hypothetical that youre suggesting Your
Honor we do have a multi-agency worldwide
review and a cabinet-level recommendation that
applied a neutral baseline And this wasnt
done just by the cabinet secretaries but by the
agencies to every country in the world and
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concluded -shy
JUSTICE SOTOMAYOR Mr General you
just -shy
JUSTICE KENNEDY If -- if you have
that extreme hypothetical would that present a
free exercise or an Establishment Clause claim
or both
GENERAL FRANCISCO It could
definitely present a free exercise clause
challenge Your Honor just as you had a free
speech type claim in the Mandel case
And there would be people who could
bring that claim and who could potentially
succeed on that claim
JUSTICE KENNEDY And -- and the
people that could bring that claim I assume
were relatives of people that were excluded
father son
GENERAL FRANCISCO On free exercise
potentially I think all -shy
JUSTICE KENNEDY Yeah what about a
university
GENERAL FRANCISCO I think a
university could bring a free speech-type claim
under Mandel much -shy
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JUSTICE SOTOMAYOR Why not an
Establishment Clause claim
GENERAL FRANCISCO And -- and -shy
because Your Honor and the reason why I think
they havent pursued those types of claims is
because I dont think they would possibly
support the types of nationwide injunction that
theyre asking for
Your Honor the reason why I dont
think that they could bring an Establishment
Clause claim is because the proclamation
doesnt actually apply to the Respondents It
only applies to aliens abroad who have no
constitutional right to enter
JUSTICE SOTOMAYOR No but the claim
is that it -- that the proclamation is in place
because of a dislike of a particular religion
And I thought the Establishment Clause at its
heart is that we cannot be anything but neutral
with respect to religion or its practice
GENERAL FRANCISCO 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
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standing to challenge the land transfer from
the government to the Christian college on the
ground that it sent a pro-Christian or
anti-atheist message That -shy
JUSTICE SOTOMAYOR But these people
are saying that that negative religious
attitude is stopping them -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- 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
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR Which is one of
the purposes of the INS
GENERAL FRANCISCO And -- and thats
where they might have free exercise or free
speech claims along the type that Justice
Kennedy suggested -shy
JUSTICE SOTOMAYOR Well but I -shy
GENERAL FRANCISCO -- but which
couldnt support a nationwide injunction I
dont think that that gives them an
Establishment Clause claim when the
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proclamation doesnt actually apply to them
because -shy
JUSTICE SOTOMAYOR General today
can we go back to something thats 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 -- Im
summarizing in an incomplete way -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- 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 -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- not extreme
that he can hire or fire anyone he wants and
that he can put in place whatever policy he
wants
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR If we take Justice
Kagans hypothetical President -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- who basically
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says to his review committee I want to keep
out Jews -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- period find a
way Thats their charge
So in that situation why would the
actions of the committee whatever this is
Executive Committee not be subject to great
suspicion and to thorough review -- which
actually wasnt completely -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- done here -shy
given that they are responsible to the
executive -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- and theyve
been told what the outcome of their
deliberations must be
GENERAL FRANCISCO Sure And I have
two responses to that Your Honor
The first is that the Presidents
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
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cabinet member would refuse to comply or resign
in the face of a plainly unconstitutional
order 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 Mandel
standard
Here however you dont have anything
like that Rather you have the cabinet doing
its job through the agencies where they ask
the agencies to construct and apply 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 across the line
JUSTICE SOTOMAYOR General the
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problem is that I dont 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
the litigants or the courts exactly what was
done how what the evaluation and how -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- it was applied
to all those countries in the world
I understand some of the
confidentiality that might concern you but if
the backdrop is the way that Justice Kagan
described it -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- that -- that
heated -shy
GENERAL FRANCISCO Well I -- yeah -shy
JUSTICE SOTOMAYOR -- anti-Semitic
background dont you think that once you get
through the Mandel preliminary 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
GENERAL FRANCISCO Well Your Honor
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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
owes to another coequal branch of the
government there is a very strong presumption
that what is being set out there is the truth
JUSTICE KAGAN You -- you said
something earlier General I want to make sure
that I got it right You said if at the time
the President had said we dont want Muslims
coming into this country -shy
GENERAL FRANCISCO Uh-huh
JUSTICE KAGAN -- that that would
undermine the proclamation
GENERAL FRANCISCO Yes
JUSTICE KAGAN Did I get you right
GENERAL FRANCISCO Yes
JUSTICE KAGAN So I -- I think you
know honestly the difference here then seems
to be is everything that the President said
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effectively that
GENERAL FRANCISCO I think there are
two issues Your Honor 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 embodiment of the executive branch So
that those statements should be out of bounds
But for -shy
JUSTICE KENNEDY But suppose you have
a local mayor and as a candidate he makes
vituperative hate -- hateful statements hes
elected and on day two he takes acts that are
consistent with those hateful statements
Thats -- whatever he said in the campaign is
irrelevant
GENERAL FRANCISCO Your -- Your
Honor if he takes the same oath -shy
JUSTICE KENNEDY You would say
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whatever he said in the campaign is irrelevant
GENERAL FRANCISCO I would say two
things And that was the -- and the second
thing is the point I was about to turn to I
would say yes because we do think that oath
marks a fundamental transformation but I would
also say here it doesnt matter because here
the statements that they principally rely on
dont actually address the meaning of the
proclamation itself
This is not a so-called Muslim ban
If it were it would be the most ineffective
Muslim ban that one could possibly imagine
since not only does it exclude the vast
majority of the Muslim world it also omits
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 multi-agency worldwide review that
applied neutral criteria all across the world
and concluded under those neutral criteria
most of the world was fine but a small part of
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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
JUSTICE BREYER All right Can -shy
can I ask a more -- I did read I think almost
all the 80 briefs Now your time -- what do -shy
CHIEF JUSTICE ROBERTS Yeah dont
worry Please go ahead
JUSTICE BREYER All right All
right All right Almost 80 and I think I -shy
some were repetitive not too many And I
think I know the basic arguments but theres
one question Im left with and it starts with
an assumption which I think you share but I
want to be sure All right
I noticed that the Carter order and
the Reagan order both had case-by-case
exceptions
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER And I looked 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
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individual circumstances such as giving some
examples the following
And then they have to be no
terrorists Well thats the law anyway And
they -- they have to be in the interests of the
United States And there cant be undue
hardship which the only time the word
hardship appears in the immigration laws it
says extreme hardship
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER So undue must be
less than extreme
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER Okay So Im -- then
they have a list people with foreign contacts
previously established business reasons
theyve been here studying or other long-term
activity they want to visit or reside with a
close family member they have a disease or
something that they need -shy
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER -- treatment for
they -- previously been employed And there
are about five other things
GENERAL FRANCISCO Yeah
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JUSTICE BREYER All right Focus on
that class of individuals
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER Now in countries -shy
150 million people all together there must be
quite a few who have -- do fall within that
class So -shy
GENERAL FRANCISCO Well yes Your
Honor but theres only a small number of
people that seek to come into our country
JUSTICE BREYER Well thats what Im
asking about
GENERAL FRANCISCO Yeah
JUSTICE BREYER You see
GENERAL FRANCISCO Yeah
JUSTICE BREYER Thats now -- if you
-- you think -- now as far as were concerned
if they fall within that class there -shy
theres no reason given here why they should be
excluded other than the -- the normal
processes
GENERAL FRANCISCO Well a couple of
responses Your Honor
JUSTICE BREYER What
GENERAL FRANCISCO First in terms of
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the numbers -shy
JUSTICE BREYER Im not asking about
the numbers
GENERAL FRANCISCO Oh oh youre not
asking -shy
JUSTICE BREYER I want to ask about
GENERAL FRANCISCO So -- so in terms
of the reason -shy
JUSTICE BREYER Yeah
GENERAL FRANCISCO -- they should be
excluded one of the principal purposes of the
proclamation is to exert diplomatic pressure on
governments in order to get them to change and
provide us with the information -shy
JUSTICE BREYER So you think they
should be excluded
GENERAL FRANCISCO Not if they meet
the criteria for the -shy
JUSTICE BREYER Not if they meet the
criteria
GENERAL FRANCISCO -- for the waiver
JUSTICE BREYER Okay Okay So
theres -shy
GENERAL FRANCISCO Thats why we have
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-- thats why we have the waiver
JUSTICE BREYER Thats -- thats -shy
thats what I thought you would say
GENERAL FRANCISCO Yeah
JUSTICE BREYER Then I get -- can ask
my question Sorry
GENERAL FRANCISCO Yes
JUSTICE BREYER But I want to be sure
were the same wavelength
GENERAL FRANCISCO Yes
(Laughter)
JUSTICE BREYER Okay 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 theres the
business community complaining theres the
academic community there were 46 scholars at
Harvard there -- there are families in the
Lisa Blatt brief you know that -- that they
say we were trying to get medical treatment and
nobody told us about this and -- and theyve
only admitted two and theres supposed to be
guidance and -shy
GENERAL FRANCISCO Thats not true
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JUSTICE BREYER -- you havent put in
the guidance and -- and -- and the most there
are is 100 And so there is my question If
you have done the same thing that the Reagan
people did and the Carter people did then it
might be -- Im not expressing a definite
opinion -- but well youve got the same thing
here but if this is as one brief says just
window dressing and they never apply it -shy
GENERAL FRANCISCO Right
JUSTICE BREYER -- then you have
something new and different going well beyond
what President Reagan did
GENERAL FRANCISCO Sure
JUSTICE BREYER Okay So I want to
know how do I find out -- how do I find out
when there is not that information in the
brief do we have to -- can we have another
hearing Do we send it back Do we say look
the government of course thinks this isnt
window dressing -shy
GENERAL FRANCISCO Right
JUSTICE BREYER -- but the other side
says there are only two people no notice
nobody knows
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GENERAL FRANCISCO So Your Honor
two -shy
JUSTICE BREYER There are people in
Yemen there are people in Somalia -shy
GENERAL FRANCISCO Yeah
JUSTICE BREYER -- decent people
Business -- you see my point
GENERAL FRANCISCO Yes
JUSTICE BREYER Whats the answer
GENERAL FRANCISCO And two responses
JUSTICE BREYER Yes
GENERAL FRANCISCO Our reply brief
has our most -- most current number on waivers
and I believe the number at page 17 footnote
-- well its -- its over 400 I cant
remember the exact statement
JUSTICE BREYER All right Thats
400 out of 150 million
GENERAL FRANCISCO And then -shy
JUSTICE BREYER And -- and is it well
publicized in these countries that they know
all they have to do is go to the visa office
and say I understand the thing I want an
exception
GENERAL FRANCISCO No Your Honor
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and I have two -- two responses -shy
JUSTICE BREYER Yeah
GENERAL FRANCISCO -- to that One
is I dont know how well publicized it is but
I suspect that people understand how to get it
My second principal response is
though that frankly in terms of the
legality I think that the waiver is not
necessary although it is a very good thing
which is why -shy
JUSTICE BREYER Not necessary There
-- there you have President Reagan -shy
GENERAL FRANCISCO -- which is why
most -- which is why most governments dont -shy
which is why its -- its a good thing which
is why most of these proclamations often have
them But theres nothing in -shy
JUSTICE BREYER Okay So you want me
to consider -shy
GENERAL FRANCISCO -- the law that
actually requires it
JUSTICE BREYER Thats what you want
You want me to consider the lawfulness of this
order on the assumption that there is no
waiver
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GENERAL FRANCISCO I dont -shy
JUSTICE BREYER Which is not what -shy
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 here thats the -shy
thats the -shy
GENERAL FRANCISCO Right The answer
to my -- your question Your Honor is no I
dont want you to consider the proclamation on
the -- on the hypothetical situation that it is
what it isnt but I do think that the
proclamation as written and as applied falls
well within the Presidents authority under
1182(f)
Thank you Mr Chief Justice
CHIEF JUSTICE ROBERTS Thank you
General We will afford you rebuttal time
GENERAL FRANCISCO Thank you
CHIEF JUSTICE ROBERTS Mr Katyal
ORAL ARGUMENT OF NEAL K KATYAL
ON BEHALF OF THE RESPONDENTS
MR KATYAL Thank you Mr Chief
Justice and may it please the Court
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The executive order is unlawful for
three reasons It conflicts with Congresss
policy choices It defies the bar on
nationality discrimination something you never
heard my friend talk about And it violates
the First Amendment
Congress has already specified a
three-part solution to the very same problem
the order addresses Aliens seeking entry from
countries that dont cooperate with the United
States in vetting including state sponsors of
terrorism and countries that provide inaccurate
information
First aliens have to go through the
individualized 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 the order uses Congress rejected a
ban Instead it used carrots When countries
cooperated theyd get extra credit a track -shy
faster track for admission Legislation to use
big sticks like nationality bans failed
And third Congress was aware
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circumstances could change on the ground so it
required reporting to them so it could change
the law
CHIEF JUSTICE ROBERTS Well lets
take big sticks fail Lets suppose that the
intelligence agencies go to the President and
say we have 100 percent solid information
that on a particular day 20 nationals from
Syria are going to enter the United States with
chemical and biological weapons They could
kill tens of thousands of Americans
In that situation could the President
ban the entry of Syrian nationals on that one
day
MR KATYAL He could for two reasons
Theres two different arguments Theres the
nationality discrimination ban 1152 and then
theres you know whether or not this comports
with Congresss policy judgments
And with respect to both I think it
would It wouldnt be nationality
discrimination for the reasons Judge Sentelle
said in LAVAS when you have an emergency
fast-moving situation like the Syria example
youre saying
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CHIEF JUSTICE ROBERTS Well just to
stop interrupt you there I mean what if
its a week What if its a week a month from
now Thats what the intelligence information
is
In other words Im trying to -shy
MR KATYAL Right
CHIEF JUSTICE ROBERTS -- respond to
your point that it has to be an immediate
decision
MR KATYAL Yeah So I think you
know this Courts dealt with that in
Youngstown and Hamdan and said look you know
the Presidents going to get a pass absolutely
on you know what he says the emergency is
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 460 days on -- later
Mr Chief Justice Hes never even introduced
legislation about this So were so far from
that hypothetical well concede the
hypothetical
CHIEF JUSTICE ROBERTS Well imagine
-- imagine if you can that Congress is unable
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to act when the President asked for
legislation
(Laughter)
MR KATYAL Right
CHIEF JUSTICE ROBERTS And someone
introduces a bill saying lets authorize -shy
first of all the President may have qualms
about sharing that absolute intelligence
broadly but lets say theres a bill
introduced to say lets authorize the President
and theres a bill introduced to say lets
block the President and neither bill moves
MR KATYAL 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 -- theres only one
problem hes identifying which is countries
not cooperating
Hes not talking about people coming
in or something like that like your
hypothetical And with respect to that
Congress has said heres how we deal with it
We deal with it with the individualized vetting
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system which pushes all the burdens on a
person coming in Thats 1361
Youve got to show biometric ID under
the statute Youve got to have an in-person
interview if theres any risk that the person
is from a country thats a state sponsor of
terrorism like your hypothetical or anything
else
So Congress has really said in a
robust way heres how we would deal with it
And to the extent countries arent cooperating
we offer carrots
Congress rejected exactly what theyre
trying to propose here which is a flat
nationality ban And thats where I think the
force of our argument lies with respect to the
first point which is this is countermanding
Congresss policy judgments
My friend on the other side actually
in his brief -shy
JUSTICE ALITO Well Congress did -shy
Congress did act It enacted 1182(f)
MR KATYAL Correct
JUSTICE ALITO Why doesnt this fall
squarely within the language of 1182(f)
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MR KATYAL For -- for -- we have
both textual reasons that its not a class for
reasons Justice Breyer was talking about Its
not perpetuated -- its perpetual like Justice
Ginsburg was talking about But we think
theres a much bigger point Justice Alito
which is -shy
JUSTICE ALITO Well maybe you could
talk about the text Its not a class
Doesnt 11 -- doesnt 1182(f) say whenever the
President finds that the entry of any aliens -shy
MR KATYAL Correct
JUSTICE ALITO -- or any class of
aliens So put class aside although I dont
really see why people who are nationals of a
particular country dont constitute a class
What about any aliens
MR KATYAL Right So we think it is
any you know -- because the power in 1182 is
so broad and sweeping and does allow the
President to supplement what Congress has done
we think that you have to -- you have to be
careful and read limit -- you have to read it
just the way you read every other statute to
say how do we harmonize that broad text of
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1182(f) with the rest of the INA
And our point in our briefs which I
dont 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 you know and end so-called chain
migration or anything like that He could do
-- countermand any of the provisions of the INA
and turn it into a line item veto
So for that reason we think there
has to be some limit Thats something this
Courts dealt with in you know the tobacco
case or -shy
JUSTICE ALITO Well does this
proclamation do anything like that Does this
proclamation purport to establish a new
permanent immigration policy for the United
States
MR KATYAL Absolutely Your Honor
This is a perpetual policy that bans It does
exactly what Congress in 1965 said you cant
do And it countermands Congresss
fine-grained reticulated judgment from 2001
2015 and several other times which is to say
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instead of these flat bans were going to have
-- were going to balance foreign policy
considerations economic considerations like
the US companies brief humanitarian image
of the United States views all of that
together and said we wont do the flat ban
Instead were going to have a much
more fine-grained approach with individualized
vetting and carrots for the countries that
dont disagree -- that dont cooperate
JUSTICE ALITO What is your basis for
saying that it is perpetual
MR KATYAL Well theres nothing in
the order that ends it And you heard my
friend say oh that would doom all executive
orders But thats not true Half of these -shy
JUSTICE KENNEDY I thought it had to
be reexamined every 180 days
MR KATYAL No thats not what it
says It says theres a report that has to
come in at 180 days and nothing happens at the
end of the report
JUSTICE KENNEDY Well that -- that
indicates there will be a reassessment
MR KATYAL Well in -shy
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JUSTICE KENNEDY And then the -- and
-- and the President has continuing discretion
MR KATYAL Justice Kennedy this
argument wouldnt be there if there was
anything about reassessment the way there are
in about half the orders including the Cuba
order which says it sunsets once the crisis
ends Theres nothing like that in this
And its just like a reporting
requirement to Congress in which Congress isnt
necessarily required to do anything Congress
has statutes like that all the time
This is that And thats why this is
unlike any other executive order If you go
back and look at all 43 executive orders that
Presidents have issued none of them have even
arguably countermanded Congresss judgment in
the area Theyve all been consistent
Theyve all been supplements
JUSTICE KENNEDY Well the statute
says first that -- that -- that 1182 for such
period as he deems necessary and he can have
continuing supervision over whether its still
necessary
MR KATYAL Again we wouldnt have a
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problem with that if it was tailored to a
crisis it says it sunsets and then you know
could be re-upped or something like that
Thats not what this says This is about a
perpetual problem
JUSTICE KENNEDY So you want the
President to say Im convinced that in six
months were going to have a safe world
MR KATYAL Well -- well -- well no
Justice Kennedy thats not our argument Our
argument is here the President is identifying
something that is a perennial problem Our
brief says it goes back 100 years you know
when the Soviet Union was around we dont 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
CHIEF JUSTICE ROBERTS What if the
military advisors tell the President that in
their judgment the President ought to order a
strike an air strike against Syria and the
President says well -- does that mean he cant
because you would regard that as discrimination
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against a majority Muslim country
MR KATYAL Absolutely not Theres
nothing to do with the text of the statute
The 1152 statutes about discrimination and the
issuance of visas And thats all that -shy
CHIEF JUSTICE ROBERTS So under
1182(f) you would say that theres no problem
under that provision
MR KATYAL Well under 1182 as I
understand it was a strike And so I dont
think theres any immigration issue in your
hypothetical I might be misunderstanding it
Mr Chief Justice
CHIEF JUSTICE ROBERTS Well any type
of targeted action that would have a impact on
the Muslim population
MR KATYAL Absolutely We think the
President has wide authorities to do things
that have impacts on the Muslim population
Take the laptop ban that was introduced -shy
CHIEF JUSTICE ROBERTS Why under your
theory wouldnt that constitute or the argument
would be that thats discrimination under your
Establishment Clause argument -shy
MR KATYAL Oh
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CHIEF JUSTICE ROBERTS -- that thats
discrimination on the basis of faith because he
has said in the past if you accept the -shy
MR KATYAL Yeah
CHIEF JUSTICE ROBERTS -- accept the
arguments that he -- he is anti-Muslim
MR KATYAL Not at all Your Honor
and no President has run afoul of this you
know and thats because here the President
and his advisors have directly tied this policy
to those statements And the red brief at page
70 I think is the greatest illustration of
that
Thats 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 INA is
that the President can take a wrecking ball to
the statute and countermand Congresss
fine-grained judgments that -shy
CHIEF JUSTICE ROBERTS He can never
-shy
JUSTICE KAGAN Well you might think
-shy
JUSTICE GORSUCH Mr Katyal -- Mr
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Katyal if I might on -- on the statutory
question before we leave it Weve been
proceeding so far on the assumption that we can
reach the merits but the government makes the
argument for example that aliens who are
removed from this country have to bring their
claims personally and third parties cant
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
who are not present in this country Whats
the answer to that
MR KATYAL Well several This is
not a third-party case These are United
States citizens bringing this challenge in a
state -shy
JUSTICE GORSUCH Oh behalf of -shy
MR KATYAL -- of the United States
JUSTICE GORSUCH -- aliens not
present in the country
MR KATYAL Well but they are
directly -- they are directly harmed
themselves Let me just give you one example
Not just the State of Hawaii whose university
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is directly impacted but lets just take for
example the Alomari -- Mr Alomari the
10-year-old in the PARS Equality brief Justice
Breyer that you were referring to This is a
10-year-old daughter in Yemen who is -- whos
trying to come here because she has cerebral
palsy
JUSTICE GORSUCH I understand that
but those arguments dont work with respect to
aliens present in the country So why do they
work for aliens who are not present in the
country
MR KATYAL Because I -shy
JUSTICE GORSUCH Those very same
arguments would not succeed
MR KATYAL Well -shy
JUSTICE GORSUCH I think youd
concede that they wouldnt succeed for aliens
present -shy
MR KATYAL Right And they dont
succeed because there you have a better
plaintiff might not be willing to bring them in
the United States and thats why the court
you know says no third party But here
these folks are directly impacted
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And the most important thing to say is
Sale answers this You heard my friend concede
Sale was jurisdictional the issues in Sale
Thats how they briefed it up Thats how he
just described it This Court had exactly that
situation United States plaintiffs and it
reached the merits
Our statutory point to you is that if
you accept this order youre giving the
President a power no President in 100 years has
exercised an executive proclamation that
countermands Congresss policy judgments He
has zero examples to say that when Congress has
stepped into the space and solved the exact
problem that the President can then come in
and say No I want a different solution
If you do that youd -- its not just
family preferences that youre allowing him to
get rid of youd get rid of all sorts of even
small things in the Code or big things like
theres a preference for specialty occupations
like software engineers in the INA The
President could say The economics are such
Im going to ban software engineers from going
to California or something like that under that
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sweeping 1182 power
JUSTICE KAGAN I -- I guess the
question though Mr Katyal is maybe youre
entirely right that 1182(f) needs to have some
limits to prevent the President from doing
something thats completely contrary to another
section of the statute
But youre suggesting well the
President cant do anything thats not
contemplated by the rest of the statute
MR KATYAL That is not our argument
JUSTICE KAGAN Okay 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 -shy
MR KATYAL Right
JUSTICE KAGAN -- between what the
President is doing and another statutory
provision
MR KATYAL So our view is that the
President can supplement he just cant
supplant In this Courts decisions in the
Brown amp Williamson case and the UARG greenhouse
gas and Concepcion and Abilene Cotton the
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Savings Clause cases all say there are three
things you look at And its not a flat bar
It cant be like a direct contravention Even
they say its not a direct contravention in
their reply brief at page 19
So the three things are first can
these two solutions coexist or not Second
has Congress prescribed a reticulated
comprehensive scheme And third you know is
there any other indication that Congress
considered 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 -shy
Congress has a comprehensive reticulated scheme
that deals with the exact single problem that
hes identified which is countries not
cooperating It cant coexist with the
solution of a flat ban It makes no sense for
example to have the in-person visa requirement
-- visa interview which is in 12 -shy
1202(h)(2) which is for -- for people who come
from state sponsors of terrorism or who have a
group with a likelihood of providing
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inaccurate information Congress said there
has to be an in-person interview for that
It doesnt make sense to say well
youre going to have a flat ban It doesnt
make sense to have a Visa Waiver Program which
is all about countries that provide zero
information to the United States -- state
sponsors of terrorism and the like -- and say
were going to give you a carrot and then say
oh no forget about the Visa Waiver Program
JUSTICE ALITO Can -- can you imagine
any situation in which the threat of the
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
MR KATYAL Yes
JUSTICE ALITO You cannot imagine any
such situation
MR KATYAL Yes I can And the
President would have a robust authority to deal
with that That is not our argument So -shy
JUSTICE KENNEDY And your argument is
that courts have the -- the duty to review
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whether or not there is such a national
exigency thats for the courts to do not the
President
MR KATYAL No I think you have
wide deference Justice Kennedy Its exactly
what you said when you joined Justice Breyers
opinion in Hamdan which is as long as -- you
know Presidents have wide berth in this area
but if -- you know certainly if theres any
sort of emergency that precludes it
But when you have a statute that
considers the very same problem and theres
nothing new that theyve identified in this
worldwide review process that Congress didnt
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 the -shy
CHIEF JUSTICE ROBERTS But thats in
the abstract I mean they may have more -shy
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
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And it seems to me a difficult
argument to say that Congress was prescient
enough to address any particular factual
situation that might arise
MR KATYAL Well that again -shy
thats again Mr Chief Justice not our
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 But here -shy
CHIEF JUSTICE ROBERTS What about -shy
what about a change of administration in a
particular country -shy
MR KATYAL Yes
CHIEF JUSTICE ROBERTS -- in which
perhaps the vetting procedures are not going to
be taken seriously
MR KATYAL Right
CHIEF JUSTICE ROBERTS That Congress
could not have anticipated
MR KATYAL Well but again
Congress anticipated a country that is a state
sponsor of terrorism and even for -- with
respect to that providing no information and
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indeed fomenting against the United States
Congress said oh were not going to have a
nationality ban You know they flatly banned
that and said were going to have
individualized vetting and this Visa Waiver
Program carrot to try and deal with that you
know dangerous regime
Now again I can imagine an emergency
situation in which the President would have
even greater authority for that But here we
are 460 days later and I would caution the
Court not to make a decision about the
emergency youre concerned about That can be
bracketed as it was in Youngstown as it was in
Hamdan This is so far from that
The text of 1152 is flatly violated
here It says there shall be no discrimination
on the basis of nationality with the issuance
of visas
That is 39 percent of all the visas
this executive order covers Its not a small
part Its 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
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become part of our long-term polity This
executive order flatly contradicts that
Now if you accept his
interpretation -- he says well you know
were discriminating at the entry side not at
the visa side If you do that you are giving
the President the power to undo -- and hes
actually just done it -- hes undone the ban on
nationality-based discrimination Hes imposed
country quotas of zero for these countries at
the border
CHIEF JUSTICE ROBERTS If your -shy
your argument based on discrimination based on
the campaign statements is there a statute of
-- no the one that you do make based on the
campaign statements is there a statute of
limitations on that or is that a ban from
presidential findings for the rest of the
administration
MR KATYAL So Mr Chief Justice I
first want to be very clear about this Our
point about 1152 and the discrimination has
nothing to do with any campaign statements or
anything else
Its purely the text of the
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proclamation which is nationality-based
discrimination through and through Judge
Sentelle said you couldnt imagine a clearer
text than this And this is -- it violates it
Now -shy
CHIEF JUSTICE ROBERTS My question
was on the -shy
MR KATYAL -- youre asking about
the First Amendment
CHIEF JUSTICE ROBERTS Yes
MR KATYAL I just want to make
absolutely clear that were -- thats not -shy
you know you dont need to do any of that for
purposes of 1152 And that would knock out
39 percent of the most important part of the
executive order
CHIEF JUSTICE ROBERTS My question
of course -shy
MR KATYAL Yes Now Im getting -shy
CHIEF JUSTICE ROBERTS -- was not on
1152
MR KATYAL Yes Im getting there
Okay
With respect to that we dont think
-- we think that the test as this Court has
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said a reasonable objective observer viewing
all the statements and we think absolutely
my friend is right you shouldnt look to
campaign statements in general or stuff like
that 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 70
of our red brief you have a very good example
of this
After the executive order this latest
executive order was promulgated the President
tweeted these three virulent anti-Muslim
videos And then the press spokesman was
asked What does this mean What is this
about And the answer was The President has
spoken about exactly this in the proclamation
CHIEF JUSTICE ROBERTS My question
was whether or not the inhibition on the
ability to -- to enter one of the proclamations
applies forever
MR KATYAL Right No I think the
President could have disclaimed -- you know
easily moved away from all of these statements
you know but instead they embraced them
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Thats the difference
And so absolutely the President
would have wide berth to say thats a -shy
CHIEF JUSTICE ROBERTS So if
tomorrow he issues a proclamation saying hes
disavowing all those statements then the next
day he can reenter this proclamation
MR KATYAL Thats exactly what this
Court said in McCreary This Court in McCreary
said you know the same policy can be
constitutional if said -- if promulgated by one
entity and not by another depending on the
circumstances around it
CHIEF JUSTICE ROBERTS Is your answer
to my question yes
MR KATYAL Yes The answer is -shy
CHIEF JUSTICE ROBERTS Tomorrow he
issues a proclamation disavowing those
statements -shy
MR KATYAL Absolutely And thats a
CHIEF JUSTICE ROBERTS -- then the
next day he could reenter this and your
discrimination argument would not be
applicable
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MR KATYAL And -- and -- and Mr
Chief Justice thats exactly what I told the
Ninth Circuit in May The President didnt do
that Thats whats -- thats -- you know
thats what a reasonable objective observer -shy
JUSTICE SOTOMAYOR So if another -shy
JUSTICE ALITO Mr Katyal would any
reasonable observer reading this proclamation
with -- without taking into account statements
think that this was a Muslim ban
I mean there are -- I think there are
50 predominantly Muslim countries in the world
Five -- five countries -- five predominantly
Muslim countries are on this list
The population of the -- of the
predominantly Muslim countries on this list
make up about 8 percent of the worlds Muslim
population
MR KATYAL Absolutely
JUSTICE ALITO If you looked at the
10 countries with the most Muslims exactly
one -shy
MR KATYAL Right
JUSTICE ALITO -- Iran would be on
that list of the top 10
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MR KATYAL Right
JUSTICE ALITO So would a reasonable
observer think this was a Muslim ban
MR KATYAL If it were -- if it were
just the text of the order alone it might
raise eyebrows for fit and other reasons that
the briefs go into but we wouldnt be here
We absolutely agree that just -- its the same
test as in Lukumi and other cases You have to
look to all the circumstances around it that
are said the publicly available ones
You know and Justice Alito the fact
that the order only come -- encompasses some
Muslim countries I dont think means its not
religious discrimination For example if Im
an employer and I have 10 African-Americans
working for me and I only fire two of them I
dont think -- you know and say well Ive
left the other eight in I dont think anyone
can say thats not discrimination
JUSTICE ALITO No I -- I understand
that And it is one of our fundamental values
that there is religious freedom here for
everybody in that number -- adherence to every
religion are entitled to equal treatment
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My only point is that if you look at
what was done it does not look at all like a
Muslim ban There are other justifications
that jump out as to why these particular
countries were put on -- on the list
So you -- it seems to me the list
creates a strong inference that this was not
done for that invidious purpose
MR KATYAL Justice Alito I think if
it were just the list I think wed be right -shy
youd be right although Id point out that
you yourself in the Stormans case said that
its a religious -- it raises an inference of
religious gerrymander of the burden imposed
falls almost exclusively on those with
religious objections
This is a ban that really does fall
almost exclusively on Muslims between
902 percent and 998 percent Muslims And so
it does look very much like what you said in
Stormans But even then we wouldnt be here
if it werent for all of the different
statements
And the best evidence of this about
what a reasonable objective observer would
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think is to look at the wide variety of amicus
briefs in this case from every corner of
society representing millions and millions of
people from the US Conference of Catholic
Bishops which calls it blatant religious
discrimination
JUSTICE GORSUCH Mr Katyal on that
its been a long time since this Court has used
the Lemon test reasonable observer even to
strike down a domestic statute let alone
something with purely international
application What -- what do we do about that
MR KATYAL Yeah 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 and our protest of
King George which is all about using the
immigration power to exclude people of a
different faith And thats what our
Constitution is about So thats the first
thing
And the second is we dont think you
have to get into Lemon and all these other
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tests that you all have struggled with I
think this Court in Lukumi was very clear in
saying that when youre talking about
denigration of religion all the tests point in
the same direction
JUSTICE SOTOMAYOR Mr Katyal you
said something earlier you said you wouldnt
be here if all of those statements the
background statements were not made Do you
mean that on all of your bases You wouldnt
be here on the Establishment Clause claim
MR KATYAL Only on the Establishment
Clause claim not on anything else And our
point is you know he talks about for
example this worldwide vetting process
Remember his own argument on 1182 is
the statute puts the President -shy
JUSTICE SOTOMAYOR So lets -- lets
go back to not being here without the
statements Clearly the statements even
conceded by your adversary do give you a basis
to look behind all right the reason
So if were looking behind it how do
you deal with the Generals suggestion that
there was a cleansing that occurred because of
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all of the agencies and departments who
participated in this process
MR KATYAL Yeah So theres three
things Number one is that his -- his own
argument is that 1182 puts the President in the
drivers seat so the cabinets not important
Its the Presidents proclamation
Second the order itself says in its
first lines it harkens back to Executive
Orders 1 and 2 and it says its an outgrowth
of that So it was infected by the same thing
that was struck down on Establishment 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 ban
a non-politically-correct ban and the like
So given all of those things but in
particular given the fact that 1182 itself
forces the President to make the proclamation
its the Presidents proclamation so I dont
think you even have to get into this whole
unitary executive thing but I do agree with
you Justice Sotomayor that thats another
problem which is theyre coming before the
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Court and saying Nope its the President
whos in charge And now theyre saying here
Oh no no no its these other people
This is the Presidents proclamation
through and through No President has ever
said anything -- anything like this And
thats what makes this different
And the President -shy
JUSTICE KAGAN And -- and yet Mr
Katyal 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 evaluating the adequacy of those
national security interests which for the most
part weve said courts are not equipped to do
MR KATYAL Right Were not asking
you to second-guess a national security
judgment at all with the purpose of the
Establishment Clause
Were saying you just have to look to
what a reasonable objective observer would do
Thats the ordinary test that youve used in
cases like Lukumi Is there an official
purpose to disparage a religion Here there
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very much is Thats you know everything
that the President has said and that the order
itself embodies Thats our fundamental
problem
JUSTICE BREYER What do you think -shy
its a -- its a -- its still something Im -shy
Im thinking about perhaps to the side but
the statute you point to one of the ones that
is stronger for you There are obviously
objections to what youre saying in quite a few
briefs all right but the one that you talked
about it does say you have to have an
interview with a consular official if the
person is from a country officially designated
by the Secretary as a state sponsor of
terrorism It does say that
So theyll say but we do have that in
respect to everyone under the exception So
there isnt much problem Weve gone beyond
that in respect to other people All right
Take their argument for a moment
Because my question is which I
couldnt find in the briefs is is it true -shy
Im just taking what they say -- that really
that isnt so they dont publicize it they
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havent put forth a guidance people dont know
they can come in and qualify for this
And if it turns out that that is
something that is important to the lawfulness
of the order because there are many many
categories there -shy
MR KATYAL Right
JUSTICE BREYER -- what do we do
MR KATYAL So two things Number
one this waiver process has excluded -- and
you have this in the PARS Equality brief at
page 14 A 10-year-old with cerebral palsy who
wants to come to the United States to save her
life and she cant move or talk The
10-year-old was denied a waiver Justice
Breyer
He says theres 430 people who have
gotten waivers Theyve never told you the
denominator and theres no publication of this
process and how -- how often it is And the
data that we do have suggests as a matter of
percentages its very weak
Just to give you some evidence of
that just the State of Hawaii has gotten about
1000 letters from people most of which say
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were not even getting waivers on the like
JUSTICE GORSUCH That -shy
MR KATYAL Weve heard very few
instances -shy
JUSTICE GORSUCH -- raises a question
of remedy for me
MR KATYAL Yes
JUSTICE GORSUCH We have this
troubling rise of this nationwide injunction
cosmic injunction -shy
MR KATYAL Yeah yeah
JUSTICE GORSUCH -- not limited to
relief for the parties at issue or even a class
action
MR KATYAL Right
JUSTICE GORSUCH And near as I can
tell thats -- thats a really new development
where a district court asserts the right to
strike down a -- a federal statute with regard
to anybody anywhere in the world
MR KATYAL Yeah
JUSTICE GORSUCH What -- what do we
do about that
MR KATYAL Obviously the injunction
here has been trimmed by this Court itself and
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others And I do think -- I -- I share your
impulse Justice Gorsuch Thats something
that I think lower courts are debating right
now in a number of different contexts like the
contraception case and the like
I think this case is the poorest
example to get into it because of United States
versus Texass point which is this is an
immigration case and Article I Section 8 puts
Congress in the drivers 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 doesnt make a
tremendous amount of sense It would almost be
an advisory opinion
Our fundamental point to you though
is that Congress is in the drivers seat when
it comes to immigration and that this
executive order transgresses the limits that
every President has done with this proclamation
power since 1918 And to accept it here is to
accept that the President can take an iron
wrecking ball to the statute and pick and
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choose things that he doesnt want for purposes
of our immigration code That cant be the law
of the United States
CHIEF JUSTICE ROBERTS Take five
extra minutes Okay
MR KATYAL Okay
(Laughter)
CHIEF JUSTICE ROBERTS You dont have
to
(Laughter)
MR KATYAL Well if there are -- if
there are any other questions Im happy to
take anything Okay Thank you
CHIEF JUSTICE ROBERTS Thank you
counsel
Five minutes for rebuttal General
REBUTTAL ARGUMENT OF GENERAL NOEL J FRANCISCO
ON BEHALF OF THE PETITIONERS
GENERAL FRANCISCO Mr Chief -- Mr
Chief Justice and may it please the Court
I -- I really do have just a few quick
points unless Your Honors have additional
questions
Justice Breyer I did want to respond
in more detail to your question about how the
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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
the waiver -- the visa officer first determines
whether the person is otherwise admissible
under other provisions of the INA
If theyre inadmissible you never
even get to the proclamation Then for those
people who are not inadmissible under other
parts of the INA like 1182(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 youre not subject to an exception
then the consular officer him or herself
turns to the waiver provision and applies the
criteria of the waiver provision
JUSTICE GINSBURG How do you deal
with the -shy
GENERAL FRANCISCO So it does get
applied in every single case
JUSTICE GINSBURG How -- how do you
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deal with the example that was brought up of
the child with cerebral palsy
GENERAL FRANCISCO Your Honor the
waiver is built to address those issues I am
not familiar enough with the details of that
case to tell you what happened in that
particular case But thats what the waiver
provision -shy
JUSTICE BREYER But thats -- thats
you see -shy
GENERAL FRANCISCO -- is intended to
address
JUSTICE BREYER Youve read the
briefs as have I All right Now there are
some that lists about 10 or 15 instances like
the cerebral palsy One has Parkinsons Then
theres another brief that lists all the people
who are professors scholars at universities
and there are a lot And -- and then there are
people they list the students from these
countries a lot
GENERAL FRANCISCO Yeah
JUSTICE BREYER And then the business
community lists a -- a whole bunch and says my
goodness they have been unable to get -- we
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dont know whats going on
And then they say Well whats going
on is nothing is going on
GENERAL FRANCISCO Well Your Honor
-shy
JUSTICE BREYER Now I dont -- Im
not taking sides on that Im just saying I
dont know
GENERAL FRANCISCO Right And the
principal purpose of the proclamation is of
course to 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 Im 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
admissible
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 dont and doesnt tell us we
cannot intelligently make the admissibility
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determination
Third Id like to address the
1152(a)(1)(A) point about nationality-based
discrimination
JUSTICE SOTOMAYOR General could you
stop just one second
GENERAL FRANCISCO Yes Your Honor
of course
JUSTICE SOTOMAYOR I for one am like
Justice Breyer concerned about is this window
dressing or not Whats in place to ensure
its not What are you personally doing to
represent to us that it is in fact a real
waiver process -shy
GENERAL FRANCISCO Your Honor State
Department consular officers automatically
apply the waiver process in the course of every
visa application And they are doing that
which is why there have been -- and I looked at
our brief -- 430 waivers that have been issued
since -shy
JUSTICE SOTOMAYOR Have you bothered
-shy
GENERAL FRANCISCO -- the
proclamation was issued
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JUSTICE SOTOMAYOR -- to look to see
if there are reasons for all of those peoples
exclusions
GENERAL FRANCISCO Your Honor I
cannot claim that I have looked into every
individual case
JUSTICE KENNEDY Could you make your
1152 point
GENERAL FRANCISCO Yes Your Honor
1152(a)(1)(A) addresses one thing the issuance
of immigrant visas It doesnt address the
broader question over whether somebodys
allowed to enter in the first place
Thats governed by 1182 including
1182(f) So essentially 1182 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 1152(a)(1)(A) is
one of the rules that governs how we distribute
visas amongst that group thats eligible to
come in
And its not just nationality-based
distinctions that it applies to It also
applies to things like place of residence So
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once you have that universe of eligible people
1152(a)(1)(A) governs how you distribute them
But lets 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 non-immigrant visas to people who
arent allowed to enter but we wouldnt have
to allow anyone to enter and we wouldnt have
to issue any non-immigrant visas
So the bottom line is I think theyre
simply wrong on that case -- on that issue
My final point has to do with my -- my
brothers 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 25 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
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says its about Foreign policy and national
security And we would ask that you reverse
the court below
CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1109 am the case
was submitted)
Heritage Reporting Corporation
83Official
1 998 [1] 6619 39914 44111417 51581120 arise [2] 5725 584
1 [1] 6910 A 52101118
ALITO [16] 432124 446813 45
around [3] 4814 6313 6510
Article [2] 136 749 1000 [1] 7225 am [3] 116 32 826 15 4611 561119 6472024 65 aside [1] 4414 10 [4] 642125 6516 7715 Abilene [1] 5425 21221 669 asks [3] 169 519 7614 10-year-old [4] 5235 721215 ability [1] 6220 allies [2] 73 1719 assert [2] 5111 7811 1002 [2] 116 32 able [2] 2210 5111 allow [3] 413 4420 8110 asserts [1] 7318 100 [4] 353 407 4813 5310 above-entitled [1] 114 allowed [3] 178 8013 819 associate [1] 2211 11 [1] 4410 abroad [1] 2113 allowing [1] 5318 associated [1] 812 1109 [1] 826 absolute [1] 428 almost [8] 116 1556 30712 66 assume [4] 19811 2016 813 1152 [7] 4017 494 5916 6022 61 absolutely [12] 4114 4213 4520 1518 7416 assumption [3] 3016 3724 513 1421 808 49217 5810 6112 622 63220 Alomari [2] 5222 attitude [1] 227
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1361 [1] 432
act [4] 128 177 421 4322
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25 [2] 112 8118
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583 77412 792 8011
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60131315
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4 19
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Heritage Reporting Corporation Sheet 1 1 - big
84Official
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6925
comments [2] 166 194
committee [4] 512 24178
community [3] 341718 7724
companies [1] 464
compare [1] 1012
complaining [1] 3417
complete [1] 118
completely [2] 2410 546
comply [1] 251
comports [1] 4018
comprehensive [2] 55916
concede [3] 4122 5218 532
conceded [1] 6821
Concepcion [1] 5425
concern [2] 59 2612
concerned [3] 3217 5913 7910
concerns [2] 1122 129
concluded [4] 155 201 2518 29
24
conduct [2] 824 95
Conference [1] 674
confident [1] 1915
confidential [1] 265
confidentiality [1] 2612
confirms [1] 2921
conflict [1] 5416
conflicts [1] 392
Congress [40] 41015 5710 64
81024 385 397172025 4117
25 421624 439132122 4421
4522 47101011 4817 5313 55
81016 561 571423 5822023
592 741019
Congresss [7] 392 4019 4318
4523 4717 5019 5312
consequences [1] 5017
consider [6] 199 284 371923
3811 5715
considerations [4] 106 4633
4819
considered [1] 5511
considers [1] 5712
consistent [2] 2820 4718
constantly [1] 718
constitute [2] 4416 4922
Constitution [3] 2424 289 6722
constitutional [6] 1317 1510 19
18 2114 5014 6311
constitutionally [1] 2810
construct [1] 2516
consular [6] 121 7113 76412
18 7916
contacts [1] 3115
contemplated [1] 5410
context [3] 161523 1825
contexts [2] 5725 744
continuing [2] 47223
contours [1] 1521
contraception [1] 745
contradicts [1] 602
contrary [2] 54614
contravention [2] 5534
convinced [1] 487
cooperate [5] 84 3910 4610 48
15 5717
cooperated [1] 3922
cooperating [3] 4220 4311 55
19
core [1] 720
corner [1] 672
correct [4] 13911 4323 4412
cosmic [1] 7310
Cotton [1] 5425
couldnt [3] 2223 613 7123
counsel [2] 7515 825
countermand [2] 459 5019
countermanded [1] 4717
countermanding [1] 4317
countermands [2] 4523 5312
countries [45] 3152225 51821
22 749 91920 1047 1112 15
7 2212 252224 2610 2916 32
4 3621 3910121821 4219 43
11 469 4815 5518 566 5716
5810 6010 641213141621 65
14 665 7721 7811 812224
country [29] 416 811 99 154
1925 251718 2716 305 3210
4215 436 4416 491 516912
21 521012 5615 581423 6010
7114 8017 812123
countrys [1] 1719
couple [2] 271 3222
course [8] 1323 1679 3520 61
18 7811 79817
COURT [22] 1115 311 1218 13
8 1423 3825 5223 535 5912
6125 6399 678 682 701 7318
25 741315 7520 823
Courts [3] 4112 4513 5423
courts [5] 266 5625 572 7016
743
covered [2] 1114 2917
covers [2] 1112 5921
created [2] 5815
creates [1] 667
credit [1] 3922
criminal [2] 83 304
crisis [2] 477 482
criteria [8] 512 910 292324 33
1921 3919 7620
cross [1] 1613
crystal-clear [2] 811820
Cuba [2] 95 476
current [1] 3613
cuts [1] 6715
D DC [3] 1112022
Heritage Reporting Corporation Sheet 2 bigger - DC
85Official
danger [1] 525
dangerous [1] 597
data [1] 7221
daughter [1] 525
day [5] 2819 40814 63723
days [4] 4119 461821 5911
deal [8] 422425 4310 5622 596
6824 7621 771
deals [1] 5517
dealt [3] 173 4112 4513
debating [1] 743
decent [1] 366
decided [3] 610 121213
decision [3] 2122 4110 5912
decisions [1] 5423
deemed [1] 5616
deems [1] 4722
defend [1] 2423
deference [2] 4118 575
defies [1] 393
definite [1] 356
definitely [1] 209
deliberations [1] 2418
denied [1] 7215
denigrating [1] 166
denigration [1] 684
denominator [1] 7219
Department [3] 120 761 7916
departments [1] 691
depending [1] 6312
depends [1] 7816
described [3] 811 2614 535
designated [2] 518 7114
despite [1] 1214
detail [3] 1020 274 7525
detailed [3] 101825 1110
details [1] 775
determination [2] 815 791
determine [4] 424 78 819 7817
determined [1] 714
determines [1] 766
developing [1] 5722
development [1] 7317
difference [2] 2724 631
different [10] 822 3512 4016 53
16 5511 6622 6721 707 744
816
difficult [2] 1716 581
diplomatic [5] 324 18121518
3313
direct [3] 5415 5534
direction [2] 5512 685
directly [6] 5010 512323 52125
5413
disagree [1] 4610
disagreed [1] 813
disavowing [2] 63618
disclaimed [1] 6223
discretion [1] 472
discriminating [1] 605
discrimination [17] 394 401722
4825 49423 502 5917 60913
22 612 6324 651520 676 794
disease [1] 3119
dislike [1] 2117
disparage [1] 7025
distinctions [1] 8024
distinguish [1] 1514
distribute [2] 8020 812
district [1] 7318
Doe [1] 88
doing [8] 63 229 2514 5015 54
519 791218
domestic [2] 1913 6710
DONALD [2] 13 35
done [9] 1924 2412 267 354 44
21 608 6628 7422
doom [1] 4615
dot [1] 1612
down [4] 256 6710 6912 7319
dressing [3] 35921 7911
drivers [3] 696 741019
dropped [1] 46
duty [2] 276 5625
duty-bound [1] 2423
E earlier [2] 2713 687
easily [1] 6224
easy [1] 197
economic [1] 463
economics [1] 5323
effectively [1] 281
eight [1] 6519
either [2] 1112 265
elected [2] 162 2819
eligible [3] 801621 811
embodies [1] 713
embodiment [1] 2813
embraced [1] 6225
emergency [5] 4023 4115 5710
59813
emerges [2] 161416
employed [1] 3123
employer [1] 6516
enacted [1] 4322
encompasses [1] 6513
end [6] 162022 2314 4557 46
22
ends [2] 4614 478
engaging [1] 825
engineers [2] 532224
enough [4] 415 68 583 775
ensure [2] 2623 7911
enter [7] 1617 2114 409 6220
8013 81910
entire [1] 810
entirely [1] 544
entitled [1] 6525
entity [1] 6312
entry [6] 314 414 399 4013 44
11 605
equal [1] 6525
Equality [2] 523 7211
equipped [1] 7016
ESQ [2] 122 26
essentially [3] 714 1325 8015
establish [1] 4517
established [1] 3116
Establishment [12] 1320 1914
206 2121018 2225 4924 68
1112 6912 7020
ET [2] 147
evaluating [1] 7014
evaluation [1] 267
even [20] 1310 17916 19811 25
11 4120 4716 5319 553 5824
5910 6621 679 6820 691522
73113 7610
everybody [2] 2123 6524
everyone [1] 7118
everything [2] 2725 711
evidence [2] 6624 7223
exact [4] 3616 4217 5314 5517
exactly [12] 625 266 4313 4522
535 57515 62817 638 64221
example [14] 86 4024 455 515
24 522 5521 587 629 6515 67
17 6815 747 771
examples [2] 312 5313
exception [7] 92123 1120 3624
7118 761417
exceptions [2] 302023
exclude [2] 2914 6720
excluded [6] 910 2017 3220 33
1217 7210
exclusion [2] 127 1625
exclusions [1] 803
exclusively [2] 661518
executive [23] 715151618 14
10 23712 24814 2813 391 46
15 471415 5311 5921 602 61
16 621112 69923 7421
exercise [4] 206919 2218
exercised [1] 5311
exert [1] 3313
exerts [1] 324
exigency [1] 572
expect [1] 2424
explore [1] 420
expressing [2] 510 356
extensive [1] 151
extent [1] 4311
extra [2] 3922 755
extreme [8] 514 1919 205 2314
17 255 31912
eyebrows [1] 656
F face [1] 252
facial [1] 2510
fact [8] 10311 133 2623 6512
6714 6919 7913
factors [1] 5515
facts [1] 1620
factual [1] 583
fail [1] 405
failed [4] 315 914 301 3924
failing [1] 3918
fails [1] 99
failure [1] 96
fair [1] 55
faith [3] 277 502 6721
fall [7] 323 924 1312 32618 43
24 6617
falling [1] 3412
falls [3] 44 3814 6615
familiar [1] 775
families [1] 3419
family [5] 2212 3119 4566 53
18
far [5] 1413 3217 4121 513 59
15
fast-moving [1] 4024
faster [1] 3923
father [1] 2018
favor [1] 1510
federal [1] 7319
fell [1] 920
few [4] 326 7110 733 7521
final [1] 8114
find [4] 244 351616 7123
findings [1] 6018
finds [1] 4411
fine [3] 2521 2925 7615
fine-grained [4] 4524 468 4818
5020
finish [1] 1714
fire [2] 2318 6517
first [21] 14310 2421 272 283
3225 39614 427 4317 4721
556 6021 619 671622 699 76
614 801317
fit [1] 656
five [6] 3124 64131313 75416
flat [7] 4314 4616 4817 55220
564
flatly [3] 59316 602
flexible [1] 418
Focus [1] 321
folks [1] 5225
follow [1] 178
following [1] 312
fomenting [1] 591
footnote [1] 3614
force [1] 4316
forces [1] 6920
forecloses [1] 1517
foreign [8] 42 825 106 129 31
15 462 8018 821
forever [1] 6221
Forge [2] 212225
forget [1] 5610
form [1] 1916
forth [2] 618 721
forward [2] 132224
founding [1] 6718
four [1] 7814
Fourth [1] 263
FRANCISCO [117] 119 239 37
810 417 616112225 91218
10172124 115818 1231624
13418 142122124 1518 164
1821 171323 182924 1925
2081923 21321 228141722
2310162124 243111519 268
Heritage Reporting Corporation Sheet 3 danger - FRANCISCO
86Official
151825 27172022 28223 292
3021 3110132125 32381315
2225 334811182225 3447
1025 35101422 361581012
1925 3731320 381920 7517
19 7623 7731122 7849 797
1524 8049
frankly [1] 377
free [7] 2069101924 221818
freedom [1] 6523
friend [5] 395 4319 4615 532
623
full [1] 1520
fundamental [5] 2811 296 6522
713 7418
future [2] 161 1814
G game [1] 1325
gas [1] 5425
GEN [3] 119 239
General [127] 119 3810 417 57
23 616112225 91218 1017
2124 1125818 1231624 134
1618 142122124 1518 16418
21 171323 1825924 1925 20
281923 21321 228141722
23310162124 243111519 25
25 268151825 2713172022
28223 292 3021 31101321
25 323813152225 334811
182225 34471025 35101422
3615810121925 3731320
38191920 624 75161719 76
23 7731122 7849 79571524
8049
Generals [1] 6824
George [1] 6719
gerrymander [1] 6614
gets [1] 162
getting [4] 611922 731 7414
GINSBURG [4] 48 445 762125
give [8] 711 86 151225 5124
569 6821 7223
given [10] 917 1413 1718 1825
1915 241325 3219 691819
gives [2] 616 2224
giving [3] 311 539 606
goodness [1] 7725
GORSUCH [14] 5025 511820 52
81417 677 73258121622 74
2
got [4] 2714 357 4334
gotten [2] 721824
governed [1] 8014
government [14] 825 92 109 12
1523 1322 1524 222 264 278
10 3520 514 7823
governments [2] 3314 3714
governs [2] 8020 812
great [4] 248 274 812124
greater [1] 5910
greatest [1] 5012
greenhouse [1] 5424
ground [3] 223 401 5723
grounds [2] 624 6913
group [2] 5525 8021
guess [2] 1417 542
guidance [3] 3424 352 721
H Half [2] 4616 476
Hamdan [3] 4113 577 5915
hand [1] 1818
happened [1] 776
happens [2] 1718 4621
happy [1] 7512
harbored [1] 1710
hard [1] 1520
hardship [3] 31789
harkens [1] 699
harmed [1] 5123
harmful [2] 824 95
harmonize [1] 4425
Harvard [1] 3419
hate [1] 2818
hateful [2] 281820
hatred [1] 167
HAWAII [4] 17 36 5125 7224
head [2] 23812
hear [1] 33
heard [7] 1523 39519 453 4614
532 733
hearing [1] 3519
heart [6] 179 181921 2119 59
24 6716
hearts [3] 179 182021
heated [1] 2617
heightened [1] 514
help [4] 421 721 87 2523
herself [1] 7618
hire [1] 2318
history [6] 824 1025 1111 303
4
holds [1] 1814
holistic [1] 914
home [2] 811 7823
Homeland [1] 313
honestly [2] 176 2724
Honor [38] 417 61319 71 810 9
12 1018 11511 12325 1318
1621 1715 1810 19621 2010
214922 2420 2625 28324 32
923 36125 3810 4520 507 77
3 784 79715 8049
Honors [1] 7522
hoping [1] 7814
however [3] 419 113 2513
humanitarian [2] 1121 464
hypothetical [15] 151323 173
187 191620 205 2323 3812
412223 4223 437 4912
I is [1] 1613
ID [1] 433
idea [1] 454
ideal [2] 81 303
identified [2] 5518 5713
identify [1] 824
identifying [2] 4219 4811
III [1] 136
illustrate [1] 87
illustration [1] 5012
image [1] 464
imagine [7] 2913 412425 5611
19 598 613
imbued [1] 128
immediate [1] 419
immigrant [3] 5923 8011 817
immigrants [3] 11161719
immigration [10] 412 318 4518
4911 67151720 74920 752
impact [1] 4915
impacted [2] 52125
impacts [1] 4919
impediment [1] 4117
implement [3] 422 721 815
important [7] 1324 531 5923 61
15 696 7011 724
importantly [2] 517 6914
impose [3] 617 103 457
imposed [3] 2522 609 6614
imposes [1] 91
imposing [1] 8119
improve [1] 718
impulse [1] 742
in-person [3] 434 5521 562
INA [11] 42225 618 721 816 45
19 5017 5322 76812
inaccurate [2] 3912 561
inadequate [1] 5617
inadmissible [2] 76911
including [9] 320 155 251819
2917 3911 4217 476 8014
incomplete [1] 239
inconsistent [2] 523
indeed [1] 591
independent [1] 2622
indicates [1] 4624
indication [1] 5510
individual [4] 311 781522 806
individualized [4] 3915 4225 46
8 595
individuals [2] 78 322
ineffective [1] 2912
infected [1] 6911
inference [2] 66713
infiltration [1] 5613
information [20] 31625 423 77
23 81319 97 302 3315 3517
3913 407 414 5617 5825 78
1317
inhibition [1] 6219
initial [1] 253
injunction [5] 217 2223 73910
24
injury [1] 2124
INS [1] 2216
instances [2] 734 7715
Instead [5] 3921 4617 4817 62
25
intelligence [3] 406 414 428
intelligent [1] 815
intelligently [1] 7825
intended [1] 7711
intention [1] 8119
interests [4] 1121 315 701115
international [1] 6711
interpretation [1] 604
interrupt [1] 412
interview [4] 435 5522 562 71
13
introduced [4] 4120 421011 49
20
introduces [1] 426
invidious [1] 668
involve [1] 1625
Iran [2] 94 6424
Iraq [3] 923 1010 2917
iron [1] 7424
irrelevant [2] 2822 291
irrespective [1] 147
Islam [1] 8123
isnt [5] 3520 3813 4710 7119
25
Israel [4] 1617 1718 181516
issuance [3] 495 5918 8010
issue [10] 1219 16101011 4911
5511 7313 8171113
issued [7] 54 89 1110 4716 78
22 792025
issues [6] 126 283 533 63518
774
item [1] 4510
itself [5] 2910 69819 713 7325
J Jane [1] 88
Jews [2] 166 242
job [1] 2515
join [1] 2213
joined [1] 576
Judge [2] 4022 612
judges [2] 2623
judgment [6] 43 4524 4717 48
22 7019 8019
judgments [4] 4019 4318 5020
5312
judicial [1] 1620
jump [1] 664
jurisdiction [1] 136
jurisdictional [5] 122413 133
533
jurisprudence [1] 1914
Justice [217] 120 3310 48 56 6
272023 9817 10111922 112
791525 12111721 1311516
19 1431722 151222 16519
171122 18151125 193 2024
1521 21115 2259151921 23
31117222225 2441216 2525
269131619 2712182123 28
1625 30691122 31111422 32
1411141624 3326101620
23 3425812 351111523 363
Heritage Reporting Corporation Sheet 4 FRANCISCO - Justice
87Official
69111720 372111822 382
17182125 404 41182024 42
5 432124 44346813 4515 46
111723 471320 4861020 49
6131421 5015212325 5118
20 52381417 5421218 5611
1924 575619 586121620 60
1220 616101720 6218 63414
1722 642672024 6521221
669 677 68618 6924 709 715
72815 73258121622 742 75
48142024 762125 7791323
786 79591022 8017 824
justiciability [1] 137
justifications [1] 663
K KAGAN [26] 131619 1431722
151222 16519 171122 1815
1125 193 2613 2712182123
5023 5421218 709
Kagans [1] 2323
KATYAL [79] 122 26 38212224
4015 41711 42413 4323 441
1218 4520 46131925 47325
489 49291725 504725 511
141922 52131620 5431117
21 561821 574 585151922
6020 618111922 6222 638
1620 64171923 6514 669 67
713 68612 693 701017 7279
733711152124 75611
keep [3] 241 258 4215
KENNEDY [19] 10111922 204
1521 2220 281625 461723 47
1320 48610 5624 575 807
Kennedys [1] 119
kept [1] 264
kill [1] 4011
kind [8] 142022 1612 186 1913
5415 5924 7012
kinds [1] 165
King [1] 6719
knock [1] 6114
knows [4] 181319 3525 7823
L land [1] 221
language [1] 4325
laptop [1] 4920
large [1] 5922
later [2] 4119 5911
latest [1] 6211
Laughter [5] 188 3411 423 757
10
LAVAS [1] 4023
law [4] 314 3720 403 752
lawfulness [2] 3723 724
laws [2] 411 318
layer [1] 519
lays [1] 273
learns [1] 811
least [1] 1213
leave [1] 512
left [2] 3015 6519
legality [1] 378
Legislation [3] 3923 4121 422
legislative [1] 4117
legitimacy [1] 2511
legitimate [1] 1322
Lemon [2] 67925
less [1] 3112
letters [1] 7225
level [2] 423 77
lies [1] 4316
life [1] 7214
light [1] 5722
likelihood [1] 5525
limit [3] 51 4423 4512
limitations [1] 6017
limited [1] 7312
limits [4] 420 64 545 7421
line [4] 107 2524 4510 8112
lines [1] 699
Lisa [1] 3420
list [10] 47 911 3115 64141625
665610 7720
listed [1] 919
lists [3] 77151724
litigants [1] 266
little [2] 613 141
local [1] 2817
long [3] 415 577 678
long-term [2] 3117 601
longer [2] 101419
look [16] 724 2622 3519 4113
4715 552 6238 6510 661220
671 6822 7021 801
looked [7] 5713 624 3022 6420
7919 805
looking [1] 6823
lot [5] 612 145 167 771921
love [1] 8122
low [1] 916
lower [1] 743
Lukumi [3] 659 682 7024
M made [7] 1215 14912 286 689
811820
main [1] 720
maintain [1] 717
majority [6] 31920 251920 29
15 491
Mandel [18] 1321 1410131822
158141619 16192223 17116
201125 2511 2621
Mandels [1] 1723
many [5] 3013 7255 812222
mark [1] 2811
marks [1] 296
material [1] 261
matter [5] 114 1917 259 297 72
21
mayor [1] 2817
McCreary [3] 159 6399
mean [9] 1820 412 4824 5720
6215 6411 6715 6810 814
meaning [1] 299
means [2] 144 6514
meant [2] 421 103
measures [1] 5615
medical [1] 3421
meet [4] 511 1420 331820
member [3] 2425 251 3119
members [2] 1610 2213
mentioned [2] 49 5616
merits [4] 1214 1312 514 537
message [2] 2124 224
met [1] 321
might [13] 620 181314 2218 26
12 356 4912 5023 511 5222
584 655 7413
migration [1] 458
military [1] 4821
million [2] 325 3618
millions [2] 6733
minimum [11] 316 423 7722 8
218 96 30123 7816
minutes [2] 75516
misunderstanding [1] 4912
moment [1] 7121
month [1] 413
months [1] 488
most [18] 1018 1110 1324 2912
25 352 361313 37141416 53
1 5922 6115 6421 6914 7015
7225
move [3] 107 2523 7214
moved [1] 6224
moves [1] 4212
much [8] 1120 2025 285 446 46
7 6620 71119
multi-agency [3] 312 1921 29
22
Muslim [19] 321 251820 2911
1315 4911619 6410121416
17 65314 663 811922
Muslim-majority [2] 156 2916
Muslims [5] 2715 6421 661819
8120
must [4] 2418 3111 325 7411
N narrow [1] 419
nation [1] 5924
national [14] 43 520 105 1121
129 1323 176 184 571 7011
1518 8019 821
nationality [7] 39424 401721
4315 59318
nationality-based [4] 609 611
793 8023
nationals [4] 317 40813 4415
nationwide [3] 217 2223 739
naturalization [1] 7411
nature [1] 102
nay [1] 416
NEAL [3] 122 26 3822
near [1] 7316
necessarily [1] 4711
necessary [4] 37911 472224
need [6] 420 1717 2622 304 31
20 6113
needed [7] 31725 423 77 819
781217
needs [1] 544
negative [2] 2124 226
Neither [2] 74 4212
neutral [6] 154 1923 2119 2517
292324
never [7] 359 394 4120 5021 72
18 76916
new [4] 3512 4517 5713 7317
next [3] 71 63623
Ninth [2] 262 643
nobody [2] 3422 3525
NOEL [5] 119 239 38 7517
non-immigrant [2] 81811
non-politically-correct [1] 6917
non-reviewability [2] 12114
none [1] 4716
Nope [1] 701
nor [1] 75
normal [1] 3220
nothing [8] 3717 461321 478
493 5713 6023 783
notice [1] 3524
noticed [1] 3018
number [11] 157 2522 329 34
15 361314 6524 6714 694 72
9 744
numbers [2] 3313
O oath [3] 28724 295
objections [2] 6616 7110
objective [4] 621 645 6625 70
22
observer [7] 621 6458 653 66
25 679 7022
observers [1] 1823
obviously [2] 719 7324
occupations [1] 5321
occurred [1] 6825
offer [1] 4312
office [2] 288 3622
officer [3] 7661318
officers [2] 764 7916
official [2] 7024 7113
officially [1] 7114
often [3] 3716 7220 8018
Okay [11] 3114 332323 3412 35
15 3718 5412 6123 755613
omits [2] 319 2915
Once [5] 814 1321 2620 477 81
1
one [39] 41113 52021 915 10
13 114 1220 13524 1616 17
19 2215 2314 278 2913 3015
3312 358 373 4013 4218 51
24 6015 6220 6311 6422 6522
6714 694 71811 7210 7716
7969 801020 8123
ones [3] 518 6511 718
only [17] 322 414 1116 1519 21
Heritage Reporting Corporation Sheet 5 Justice - only
88Official
13 2914 317 329 3423 3524
4218 5514 626 651317 661
6812
opinion [3] 357 577 7417
Opinions [1] 288
oral [5] 114 225 38 3822
order [31] 91 1411 2425 253 29
1921 30181923 3314 3724 39
1920 4614 47714 4822 539
5921 602 6116 621112 655
13 698 712 725 7421 7812
orders [5] 2917 4616 47615 69
10
ordinary [1] 7023
organization [1] 812
other [29] 323 75 99 105 149
311724 3220 3523 416 4319
4424 4525 4714 5510 5615 58
9 656919 663 671525 6913
703 7120 7512 76811
others [2] 915 741
Otherwise [3] 2124 2210 767
ought [1] 4822
out [13] 242 258 27311 2814 35
1616 3618 588 6114 66411
723
out-of-the-box [1] 186
outcome [1] 2417
outer [1] 420
outgrowth [1] 6910
over [5] 1325 167 3615 4723 80
12
overall [1] 915
overwhelmingly [1] 1510
owes [1] 279
own [2] 6816 694
P packed [1] 612
PAGE [6] 22 3614 5011 555 62
8 7212
palsy [4] 527 7212 77216
parameters [1] 516
Parkinsons [1] 7716
PARS [2] 523 7211
part [7] 2925 59222223 601 61
15 7016
participated [1] 692
particular [15] 1016 2117 2589
408 4416 5614 57212225 58
314 664 6919 777
parties [2] 517 7313
parts [1] 7612
party [1] 5224
pass [1] 4114
passed [1] 156
past [4] 522 822 2917 503
people [32] 20121617 225 31
15 32510 3415 355524 3634
6 375 4221 4415 5523 5925
67420 703 7120 7211725 76
11 771720 8016 8118
peoples [1] 802
percent [6] 407 5920 6115 64
17 661919
percentages [1] 7222
perennial [2] 4812 5716
perhaps [2] 5817 717
period [3] 415 244 4722
permanent [1] 4518
permission [1] 523
perpetual [4] 444 4521 4612 48
5
perpetuated [1] 444
person [6] 4325 7114 767 78
1820
personally [2] 517 7912
persons [1] 5110
Petitioners [6] 1521 2410 39
7518
pick [1] 7425
pieces [1] 725
place [6] 2116 2319 7911 8013
1725
placed [1] 3916
plainly [1] 252
plaintiff [1] 5222
plaintiffs [2] 2125 536
please [4] 311 3010 3825 7520
point [23] 1624 1820 294 367
419 4215 4317 446 452 538
5415 6022 66111 68414 718
74818 7814 793 808 8114
points [1] 7522
policy [15] 43 106 129 2319 39
3 4019 4318 451821 462 50
10 5312 6310 8018 821
political [1] 128
polity [1] 601
poorest [1] 746
population [4] 491619 641518
position [1] 5017
possibility [1] 386
possibly [2] 216 2913
potentially [2] 201320
power [11] 4418 1313 4419 45
5 5310 541 5811 607 6720 74
23
practice [1] 2120
praised [1] 8123
precedential [1] 1220
precludes [1] 5710
predominantly [3] 64121316
preference [2] 456 5321
preferences [1] 5318
preliminary [1] 2621
prescient [1] 582
prescribed [1] 558
present [8] 2059 5191221 52
101119
presidency [1] 168
PRESIDENT [86] 13 345 410
14 5913 63916 712 934 11
13131822 1313 162 1758 18
6 191 2381223 257 271525
3513 3712 3834 40612 4217
101214 441121 454 472 487
11212224 4918 508918 5310
101523 54591922 561622 57
321 5810 599 607 6271216
23 632 643 6817 6951520 70
158 712 742224 811517
Presidents [8] 313 44 2421 38
15 4114 69721 704
presidential [1] 6018
Presidents [2] 4716 578
press [2] 141 6214
pressure [8] 324 91 104 1815
252223 3313 7811
presumption [1] 2710
prevent [1] 545
previously [2] 311623
principal [4] 1319 3312 376 78
10
principally [1] 298
private [4] 179 28712 625
pro-Christian [1] 223
probably [2] 3414 7415
problem [16] 261 3413 398 42
1719 481512 497 5315 5517
571216 6925 71419
problems [3] 323 2521 5721
proc [1] 1610
procedures [1] 5817
proceeding [1] 513
process [27] 51515 810 1458
1419 152 1915 2623 274 29
20 3915 5714 6815 69215 72
1020 76123 78161823 7914
17
processes [1] 3221
proclamation [55] 318 42 54 7
24 81721 92022 102121525
111023 1311 14615 161216
191718 211116 231 273519
2910 3313 381114 451617 53
11 5514 611 6217 635718 64
8 6972021 70410 7422 7610
131516 7810 7925 81525
proclamations [1] 421
proclamations [5] 823 1013 11
3 3716 6220
professors [1] 7718
Program [5] 725 56510 596
promulgated [2] 6212 6311
propose [1] 4314
protect [3] 41 2423 304
protest [1] 6718
provide [8] 31625 96 301 3315
3912 566 7812
provides [1] 72
providing [2] 5525 5825
provision [6] 1120 498 5420 76
1920 778
provisions [2] 459 768
provokes [1] 166
publication [1] 7219
publicize [1] 7125
publicized [2] 3621 374
publicly [1] 6511
publish [1] 762
purely [2] 6025 6711
purport [1] 4517
purports [1] 2919
purpose [5] 721 668 701925 78
10
purposes [4] 2216 3312 6114
751
pursuant [2] 89 7822
pursued [1] 215
pushes [1] 431
put [6] 1815 2319 351 4414 66
5 721
puts [5] 161922 6817 695 749
Q qualify [1] 722
qualms [1] 427
question [23] 612 119 1711 18
2122 3015 346 353 3810 41
16 51210 543 5724 61617 62
18 6315 7012 7122 735 7525
8012
questions [3] 5725 751223
quick [1] 7521
quite [4] 922 1915 326 7110
quotas [1] 6010
R race [1] 259
raise [1] 656
raised [1] 1222
raises [2] 6613 735
rate [1] 1524
Rather [1] 2514
rational [3] 17171824
re-upped [1] 483
reach [1] 514
reached [1] 537
read [8] 413 1418 307 3416 44
232324 7713
reading [1] 648
Reagan [8] 94 1012 113 3019
35413 3712 383
Reagans [1] 1113
real [1] 7913
real-time [1] 85
really [14] 720 81721 125 1422
1516 1821 439 4415 6617 71
24 7317 7521 814
reason [9] 132324 1423 2149
3219 339 4511 6822
reasonable [8] 1822 621 6458
652 6625 679 7022
reasons [11] 181315 3116 392
401522 4423 656 7412 802
reassessment [2] 4624 475
REBUTTAL [4] 28 3819 7516
17
receives [1] 289
recent [1] 522
recently [1] 46
recognition [1] 8115
recommendation [3] 153 183
1922
recommendations [2] 319 16
Heritage Reporting Corporation Sheet 6 only - recommendations
89Official
11
recommended [2] 314 2523
red [2] 5011 629
reenter [2] 63723
reexamined [1] 4618
referring [1] 524
reflect [1] 822
reflects [2] 42 101
refuse [1] 251
refused [1] 265
regard [2] 4825 7319
regime [1] 597
regularity [1] 277
rejected [2] 3920 4313
rekindled [1] 628
relatively [1] 197
relatives [1] 2017
relief [1] 7313
religion [6] 211720 259 6525
684 7025
religious [7] 226 651523 6613
1416 675
rely [1] 298
remedy [1] 736
remember [2] 3616 6816
removed [2] 4118 516
repetitive [1] 3013
reply [2] 3612 555
report [2] 462022
reporting [4] 823 402 479
represent [4] 981318 7913
representing [1] 673
required [3] 132 402 4711
requirement [2] 4710 5521
requires [1] 3721
resentment [1] 167
reside [1] 3118
residence [1] 8025
residual [1] 4214
resign [1] 251
respect [13] 945 2120 4020 42
23 4316 529 5513 5614 5825
6124 711820
respond [2] 418 7524
Respondents [5] 1823 27 21
12 3823
response [2] 1320 376
responses [5] 2420 271 3223
3610 371
responsible [2] 411 2413
rest [3] 451 5410 6018
restrictions [3] 315 617 6717
resulted [1] 152
reticulated [3] 4524 55816
reverse [1] 822
review [10] 312 519 1620 1922
2419 2922 5625 5714 6915
reviewability [1] 1219
reviewed [1] 262
rid [2] 531919
rights [2] 51811
rise [1] 739
risk [2] 176 435
riskiest [1] 79
ROBERTS [38] 33 1125 121121
131 309 381821 404 411824
425 4820 4961421 501521
5719 58121620 6012 61610
1720 6218 634141722 7548
14 824
robust [2] 4310 5622
rule [2] 127 7411
rules [1] 8020
run [1] 508
S safe [2] 4215 488
safest [1] 74
sake [2] 19912
Sale [4] 1212 53233
same [15] 920 1410 2824 349
3547 39819 5214 571215 63
10 658 685 6911
sanctions [2] 9125
satisfies [2] 1312 5515
satisfy [3] 171621 3918
save [1] 7213
Savings [1] 551
saying [13] 63 226 4025 426 46
12 5413 635 683 701221 71
10 787
says [28] 16516 237 241 3024
24 319 35824 4115 462020
47721 48241324 5224 5917
604 69810 7010 7217 7410
7724 821
scenario [1] 256
scheme [2] 55916
scholars [3] 2211 3418 7718
score [1] 916
scrutiny [1] 1717
seat [3] 696 741019
second [9] 1216 293 376 3917
557 6724 698 7813 796
second-guess [1] 7018
Secondly [1] 255
secretaries [1] 1924
Secretary [3] 314 524 7115
section [2] 547 749
Security [12] 313 43 105 129
1323 176 184 70111518 80
19 822
see [8] 63 1419 261 3214 367
4415 7710 801
seek [1] 3210
seeking [1] 399
seeks [1] 824
seems [5] 2724 3414 5414 581
666
seen [2] 10815
send [1] 3519
sense [6] 823 5520 5635 7014
7416
sent [1] 223
Sentelle [2] 4022 613
sentences [1] 1014
September [1] 8118
seriously [1] 5818
set [5] 6517 716 1620 2711
sets [1] 8015
seven [1] 322
several [2] 4525 5114
severe [1] 5614
shall [2] 1617 5917
share [3] 265 3016 741
sharing [1] 428
shes [1] 816
shouldnt [1] 623
show [1] 433
shows [3] 8814 7820
side [5] 3523 4319 6056 717
sides [1] 787
significant [2] 2811 3415
similar [1] 1123
simply [2] 52 8113
since [6] 720 1919 2914 678 74
23 7921
single [2] 5517 7624
situation [10] 58 246 3812 40
1224 536 561220 584 599
situations [1] 5722
six [1] 487
slightly [1] 816
small [5] 2521 2925 329 5320
5921
so-called [2] 2911 457
society [1] 673
software [3] 532224 589
Solicitor [1] 119
solid [1] 407
solution [4] 398 4816 5316 55
20
solutions [1] 557
solved [1] 5314
Somalia [2] 922 364
somebody [1] 765
somebodys [1] 8012
someone [1] 425
son [1] 2018
sorry [3] 56 346 8116
sort [1] 5710
sorts [1] 5319
SOTOMAYOR [37] 56 62720
23 9817 112715 202 21115
22591521 23311172225 24
41216 2525 2691619 646 68
618 6924 795922 801
Soviet [1] 4814
space [1] 5314
special [2] 512 72
specialty [1] 5321
specified [1] 397
speech [2] 2011 2219
speech-type [1] 2024
spoken [1] 6217
spokesman [1] 6214
sponsor [3] 436 5824 7115
sponsors [3] 3911 5524 568
squarely [1] 4325
staff [2] 169 627
stage [1] 2621
stake [1] 7012
standard [4] 1724 1917 251217
standing [2] 2123 221
started [1] 144
starting [1] 1624
starts [1] 3015
State [13] 524 1423 3911 436
511725 5524 567 5823 7115
7224 761 7915
statement [2] 258 3616
statements [23] 1910 285614
1820 298 5011 60141623 62
24524 63619 649 6623 688
92020
STATES [20] 11416 36 316 39
11 409 4519 465 511619 52
23 536 56713 5717 591 7213
747 753
statute [16] 53 434 4424 4720
493 5019 54710 5711 6014
16 6710 6817 718 7319 7425
statutes [1] 494
statutes [3] 618 76 4712
statutory [4] 58 511 538 5419
stepped [1] 5314
sticks [2] 3924 405
still [2] 4723 716
stop [2] 412 796
stopping [1] 227
stops [1] 1423
Stormans [2] 661221
strike [5] 482323 4910 6710 73
19
strong [3] 1511 2710 667
stronger [2] 1413 719
struck [1] 6912
struggled [1] 681
students [2] 2212 7720
studying [1] 3117
stuff [1] 624
subject [4] 1210 248 761417
subjected [1] 925
submitted [2] 8257
substance [4] 1414 1916 275
2920
succeed [4] 2014 52151821
successful [2] 45 109
Sudan [1] 2918
sufficiently [1] 916
suggest [1] 1714
suggested [3] 412 516 2220
suggesting [2] 1920 548
suggestion [1] 6824
suggests [1] 7221
summarizing [1] 239
sunsets [2] 477 482
supervision [1] 4723
supplant [1] 5423
supplement [3] 712 4421 5422
supplements [1] 4719
support [2] 217 2223
supported [1] 518
Suppose [3] 87 2816 405
supposed [1] 3423
SUPREME [3] 1115 7415
Heritage Reporting Corporation Sheet 7 recommendations - SUPREME
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suspect [1] 375
suspend [1] 414
suspicion [1] 249
sweeping [3] 4420 455 541
Syria [3] 40924 4823
Syrian [1] 4013
system [6] 58 71314 431 456
4818
T ts [1] 1613
tailored [3] 1023 481
talked [1] 7111
talks [1] 6814
targeted [1] 4915
tens [1] 4011
terms [5] 51 1516 3225 338 37
7
terrorism [10] 519 82 1720 303
3912 437 5524 568 5824 71
16
terrorist [2] 517 812
terrorists [2] 314 5613
test [4] 6125 659 679 7023
tests [2] 6814
Texass [1] 748
text [8] 52 44925 493 5916 60
25 614 655
textual [1] 442
themselves [2] 5124 627
theory [4] 2371415 4922
theres [30] 612 3014 32919 33
24 34161723 3717 40161618
4291118 435 446 461320 47
8 492711 5321 57912 693 72
1719 7717
therefore [1] 1210
theyll [1] 7117
theyve [7] 2416 3117 3422 47
1819 5713 7218
thinking [2] 1516 717
thinks [2] 1812 3520
third [7] 3925 51710 5224 559
6914 792
third-party [1] 5115
thorough [1] 249
though [7] 137 1714 1912 377
4216 543 7418
thousands [1] 4011
threat [1] 5612
three [9] 511 910 2916 392 551
615 6213 693
three-part [1] 398
throughout [1] 174
tied [1] 5010
tiny [1] 157
tobacco [1] 4513
today [2] 34 233
together [2] 325 466
tomorrow [3] 63517 8116
took [2] 517 385
top [1] 6425
tough [2] 173 196
tougher [1] 6916
track [2] 392223
transfer [1] 221
transformation [2] 2812 296
transgresses [1] 7421
transparent [1] 273
treatment [3] 3122 3421 6525
tremendous [1] 7416
trimmed [1] 7325
troubling [1] 739
true [4] 2121 3425 4616 7123
truly [1] 1725
TRUMP [3] 13 345
truth [1] 2711
try [4] 613 106 596 7814
trying [4] 3421 416 4314 526
turn [3] 1316 294 4510
turns [3] 723 761319
tweeted [2] 6213 6916
two [18] 1014 1519 2420 28319
292 3423 3524 36210 3711
401516 557 6517 6713 729
type [3] 2011 2219 4914
types [4] 105 2157 5715
typical [1] 823
U UN [1] 1817
US [3] 525 464 674
UARG [1] 5424
ultimate [1] 4116
unable [2] 4125 7725
unconstitutional [1] 252
under [20] 4424 816 1313 2025
2511 276 288 2924 3815 433
496892123 5325 7118 768
11
undermine [2] 2510 2719
understand [9] 135 1520 2611
3623 375 4214 4910 528 65
21
undo [1] 607
undone [1] 608
undue [2] 31611
uniform [1] 7411
Union [1] 4814
unitary [2] 236 6923
UNITED [20] 11415 35 316 39
10 409 4518 465 511519 52
23 536 56713 5717 591 7213
747 753
universe [2] 8016 811
universities [1] 7718
university [3] 202224 5125
unlawful [1] 391
unless [2] 1724 7522
unlike [1] 4714
unpack [1] 613
until [1] 41
up [10] 715161617 8814 534
6417 771 7820
urge [1] 138
uses [1] 3920
using [1] 6719
V valid [1] 88
validly [1] 7821
Valley [2] 212225
values [1] 6522
variant [1] 1523
variety [1] 671
vast [5] 31920 251920 2914
vehement [1] 162
versus [2] 36 748
vet [1] 317
veto [1] 4510
vetting [18] 51415 71313 3911
15 4225 469 481518 571824
5817 595 6815 78151822
videos [1] 6214
view [2] 286 5421
viewing [1] 621
views [1] 465
vindicate [1] 518
violated [1] 5916
violates [2] 395 614
virtually [1] 53
virulent [3] 1615 193 6213
virus [1] 588
visa [16] 510 725 899 3622 55
2122 56510 595 606 7656 78
21 7918
visa-processing [1] 589
visas [9] 495 59192023 8011
21 817811
visit [1] 3118
visited [1] 521
vituperative [1] 2818
vote [1] 1816
W Waiver [25] 725 1120 3322 341
37825 38666 56510 595 72
1015 7612361920 7747 79
1417
waivers [6] 511 3025 3613 72
18 731 7920
wanted [1] 6916
wants [3] 231820 7213
war [1] 1720
Washington [3] 1112022
wavelength [1] 349
way [12] 1220 135 181617 239
245 2613 4310 4424 475 67
15 816
ways [1] 1514
weak [1] 7222
weapons [1] 4010
website [1] 762
Wednesday [1] 112
week [3] 236 4133
whatever [6] 1416 2319 247 27
7 2821 291
whenever [1] 4410
Whereupon [1] 826
whether [13] 76 816 144 1589
284 4018 4723 571 6219 767
7818 8012
whos [2] 525 702
whole [3] 713 6922 7724
wide [5] 4918 5758 633 671
will [3] 3819 4214 4624
Williamson [1] 5424
willing [3] 19811 5222
window [3] 35921 7910
wiped [1] 588
within [8] 44 1313 32618 3413
3815 4325 7615
without [3] 649 6819 7013
wonder [1] 1417
word [2] 1023 317
words [2] 149 416
work [2] 52911
working [1] 6517
works [2] 87 761
world [19] 32021 7410 15456
1925 25171920 2610 291523
25 488 6412 7320 8124
worlds [1] 6417
worldwide [6] 312 151 1921 29
22 5714 6815
worrisome [1] 49
worry [1] 3010
wrecking [2] 5018 7425
written [1] 3814
Y yea [1] 416
years [2] 4813 5310
Yemen [2] 364 525
Youngstown [2] 4113 5914
yourself [1] 6612
Z zero [3] 5313 566 6010
Heritage Reporting Corporation Sheet 8 suspect - zero
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what I was going to address next Your Honor
The Visa Waiver Program provides a special
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 admissibility of individuals
coming in from some of the riskiest countries
in the world
And 1182(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 Its up to the executive
branch to set it up Its up to the executive
branch to maintain it And its up to the
executive branch to constantly improve it
And here you have something that
really is at the core of 1182(f) since its main
purpose is to help implement the INA by making
sure we have that minimum baseline of
information
And if you look at the proclamation
what were talking about is very basic pieces
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of information Not the ideal but the
minimum Are they reporting terrorism history
information Are they 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 visa 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
doesnt tell us
Once she shows up at the border we
cannot make an intelligent determination as to
whether or not shes admissible under the INA
And thats 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
that it seeks to identify harmful conduct that
a foreign government is engaging in and then
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it imposes sanctions in order to pressure that
government to change
Thats what President Carter did with
respect 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
JUSTICE SOTOMAYOR Can you represent
that no other country that -- that fails all
three of the criteria was excluded from this
list
GENERAL FRANCISCO Well Your Honor
what I can represent is that the -- the -- the
analysis was holistic It wasnt if you failed
any one or the others It was if your overall
score was sufficiently low
JUSTICE SOTOMAYOR So given -shy
GENERAL FRANCISCO 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 below -- below the baseline but was not
subjected to sanctions
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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 weve now seen has been
successful as with the case of the government
of Iraq -- of Chad
JUSTICE KENNEDY In fact if you
compare this proclamation to the Reagan and the
Carter proclamations which I think were one or
two sentences this is longer than any
proclamation that -- that Ive seen in this
particular area
GENERAL FRANCISCO This is Your
Honor the most detailed 1182 -shy
JUSTICE KENNEDY Id say longer
detail -shy
GENERAL FRANCISCO Yes
JUSTICE KENNEDY -- is -- is a better
word
GENERAL FRANCISCO Yes This is the
more detailed 1182(f) proclamation in history
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It is not -shy
JUSTICE SOTOMAYOR General the
proclamations by Reagan and Carter however
were not as broad as this one
GENERAL FRANCISCO Your Honor they
were almost as broad but -shy
JUSTICE SOTOMAYOR And -- and -shy
GENERAL FRANCISCO -- to complete my
answer to Justice Kennedys 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 Reagans or President Carters
covered But its -shy
JUSTICE SOTOMAYOR And more -- and
more immigrants because Carters only applied
to certain immigrants not to all
GENERAL FRANCISCO President Carters
actually applied to all immigrants but then had
an exception much like the waiver provision
here for national interests and humanitarian
concerns So I think President Carters was
actually very similar to the proclamation here
And -shy
CHIEF JUSTICE ROBERTS Is your
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consular non-reviewability argument -- is that
a jurisdictional argument
GENERAL FRANCISCO Your Honor I -shy
yes I think it is a jurisdictional argument
And thats why I dont 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 to -shy
CHIEF JUSTICE ROBERTS I -- I thought
in Sale that we decided that this -- this
wasnt jurisdictional or at least decided the
merits despite the non-reviewability argument
that the government made
GENERAL FRANCISCO I think the second
thing that you just said Mr Chief Justice is
accurate The Court didnt address the
reviewability issue at all And so we dont
think its precedential one way or another
CHIEF JUSTICE ROBERTS Was the -- was
the argument raised in that case by the
government
GENERAL FRANCISCO Yes it was Your
Honor Actually you could -shy
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CHIEF JUSTICE ROBERTS So -- so its
an argument we would have been required to
address if it were in fact jurisdictional
GENERAL FRANCISCO I think so And
so I think one way you could understand it is
that it doesnt go to Article III jurisdiction
though it is a justiciability argument and we
would urge this Court to accept it because we
think its correct
But even if you dont think that its
correct we think that this proclamation
satisfies the merits because it does fall well
within the power of the President under
1182(f)
JUSTICE BREYER If youre about -shy
JUSTICE KAGAN May I turn General
to the constitutional claims in this case
GENERAL FRANCISCO Yes Your Honor
JUSTICE KAGAN And your principal
response to the Establishment Clause claim is
to cite Mandel and to say that once the
government comes forward with a legitimate
reason -- of course national security is the
most important reason one can come forward with
-- the game is over essentially And I just
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want to press on that a little bit
GENERAL FRANCISCO Sure
JUSTICE KAGAN So first I want to
ask whether that means -- you started off by
talking a lot about the process of this
proclamation But I -- I take it that that
argument would apply irrespective of what
process was used
In other words you would have made
the same Mandel argument to the first executive
order in this case or would you not
GENERAL FRANCISCO We would have made
a Mandel argument but it is far stronger given
that you have the process and substance upon
which this proclamation was based because
whatever you -shy
JUSTICE KAGAN Well I guess I wonder
why that is just because when I read Mandel
I dont see anything about process or you have
to meet a certain kind of bar
GENERAL FRANCISCO Uh-huh
JUSTICE KAGAN Mandel really is kind
of you state a reason and this Court stops
GENERAL FRANCISCO And I think that
that is right but I think that when you in
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addition to that have the extensive worldwide
process that we had that resulted in a
cabinet-level recommendation that applied a
neutral baseline to every country in the world
concluded that almost all the world including
almost all of the Muslim-majority world passed
that baseline but a tiny number of countries
didnt I think that whether you apply Mandel
or whether you apply McCreary that makes the
constitutional case in our favor overwhelmingly
strong Its a -shy
JUSTICE KAGAN So let me give you a
hypothetical and its just -- you know I
think that there are ways to distinguish Mandel
in this case but -- but -- but you know just
in terms of thinking about what Mandel really
forecloses here
GENERAL FRANCISCO And I -- because
Mandel there are only two cases in the area
and its -- its hard to understand the full
contours of it
JUSTICE KAGAN I agree So this is a
hypothetical that youve heard a variant of
before that the government has at any rate
but I want to just give you
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So lets say in some future time a -shy
a President gets elected who is a vehement
anti-Semite -shy
GENERAL FRANCISCO Uh-huh
JUSTICE KAGAN -- and says all kinds
of denigrating comments about 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 dot all the
is and they 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
GENERAL FRANCISCO Right
JUSTICE KAGAN Do you say Mandel puts
an end to judicial review of that set of facts
GENERAL FRANCISCO No Your Honor I
dont say Mandel puts an end to it but I do
say that in that context Mandel would be the
starting point of the analysis because it does
involve the exclusion of aliens which is where
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Mandel applies
If his cabinet -- and this is a very
tough hypothetical that weve 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 in his private heart of hearts
he also harbored animus
JUSTICE KAGAN Well the question is
GENERAL FRANCISCO I would also
suggest though -- if I could finish that Your
Honor -- that I think it would be very
difficult for that to even satisfy Mandel
rational basis scrutiny Id need to know what
the rational was Given that Israel happens to
be one of the countrys closest allies in the
war against terrorism its not clear to me
that you actually could satisfy -shy
JUSTICE KAGAN Well -shy
GENERAL FRANCISCO -- Mandels
rational basis standard on that unless it
truly were based -shy
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JUSTICE KAGAN Yes
GENERAL FRANCISCO -- on a
cabinet-level recommendation that was about
national security
JUSTICE KAGAN General Im -- lets
-- this is a out-of-the-box kind of President
in my hypothetical And -shy
(Laughter)
GENERAL FRANCISCO We -- we -- we
dont have those Your Honor
JUSTICE KAGAN And -- and you know
he thinks that there are good diplomatic
reasons and there might -- who knows what the
future holds that there might be good
diplomatic reasons to put pressure on Israel or
to say we want Israel to vote a certain way in
the UN and this is a way to better our
diplomatic hand and so this is what he does
And -- 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 think -shy
GENERAL FRANCISCO Right
JUSTICE KAGAN -- given this context
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in which this hypothetical President -shy
GENERAL FRANCISCO Sure
JUSTICE KAGAN -- is making virulent
anti-Semitic comments
GENERAL FRANCISCO Right And Your
Honor its a tough hypothetical but its why
I also think that this is a relatively easy
case because were 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 though we think that its
wrong that you applied some kind of domestic
establishment clause jurisprudence because
were 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 dont have the extreme
hypothetical that youre suggesting Your
Honor we do have a multi-agency worldwide
review and a cabinet-level recommendation that
applied a neutral baseline And this wasnt
done just by the cabinet secretaries but by the
agencies to every country in the world and
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concluded -shy
JUSTICE SOTOMAYOR Mr General you
just -shy
JUSTICE KENNEDY If -- if you have
that extreme hypothetical would that present a
free exercise or an Establishment Clause claim
or both
GENERAL FRANCISCO It could
definitely present a free exercise clause
challenge Your Honor just as you had a free
speech type claim in the Mandel case
And there would be people who could
bring that claim and who could potentially
succeed on that claim
JUSTICE KENNEDY And -- and the
people that could bring that claim I assume
were relatives of people that were excluded
father son
GENERAL FRANCISCO On free exercise
potentially I think all -shy
JUSTICE KENNEDY Yeah what about a
university
GENERAL FRANCISCO I think a
university could bring a free speech-type claim
under Mandel much -shy
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JUSTICE SOTOMAYOR Why not an
Establishment Clause claim
GENERAL FRANCISCO And -- and -shy
because Your Honor and the reason why I think
they havent pursued those types of claims is
because I dont think they would possibly
support the types of nationwide injunction that
theyre asking for
Your Honor the reason why I dont
think that they could bring an Establishment
Clause claim is because the proclamation
doesnt actually apply to the Respondents It
only applies to aliens abroad who have no
constitutional right to enter
JUSTICE SOTOMAYOR No but the claim
is that it -- that the proclamation is in place
because of a dislike of a particular religion
And I thought the Establishment Clause at its
heart is that we cannot be anything but neutral
with respect to religion or its practice
GENERAL FRANCISCO 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
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standing to challenge the land transfer from
the government to the Christian college on the
ground that it sent a pro-Christian or
anti-atheist message That -shy
JUSTICE SOTOMAYOR But these people
are saying that that negative religious
attitude is stopping them -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- 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
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR Which is one of
the purposes of the INS
GENERAL FRANCISCO And -- and thats
where they might have free exercise or free
speech claims along the type that Justice
Kennedy suggested -shy
JUSTICE SOTOMAYOR Well but I -shy
GENERAL FRANCISCO -- but which
couldnt support a nationwide injunction I
dont think that that gives them an
Establishment Clause claim when the
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proclamation doesnt actually apply to them
because -shy
JUSTICE SOTOMAYOR General today
can we go back to something thats 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 -- Im
summarizing in an incomplete way -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- 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 -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- not extreme
that he can hire or fire anyone he wants and
that he can put in place whatever policy he
wants
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR If we take Justice
Kagans hypothetical President -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- who basically
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says to his review committee I want to keep
out Jews -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- period find a
way Thats their charge
So in that situation why would the
actions of the committee whatever this is
Executive Committee not be subject to great
suspicion and to thorough review -- which
actually wasnt completely -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- done here -shy
given that they are responsible to the
executive -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- and theyve
been told what the outcome of their
deliberations must be
GENERAL FRANCISCO Sure And I have
two responses to that Your Honor
The first is that the Presidents
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
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cabinet member would refuse to comply or resign
in the face of a plainly unconstitutional
order 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 Mandel
standard
Here however you dont have anything
like that Rather you have the cabinet doing
its job through the agencies where they ask
the agencies to construct and apply 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 across the line
JUSTICE SOTOMAYOR General the
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problem is that I dont 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
the litigants or the courts exactly what was
done how what the evaluation and how -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- it was applied
to all those countries in the world
I understand some of the
confidentiality that might concern you but if
the backdrop is the way that Justice Kagan
described it -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- that -- that
heated -shy
GENERAL FRANCISCO Well I -- yeah -shy
JUSTICE SOTOMAYOR -- anti-Semitic
background dont you think that once you get
through the Mandel preliminary 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
GENERAL FRANCISCO Well Your Honor
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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
owes to another coequal branch of the
government there is a very strong presumption
that what is being set out there is the truth
JUSTICE KAGAN You -- you said
something earlier General I want to make sure
that I got it right You said if at the time
the President had said we dont want Muslims
coming into this country -shy
GENERAL FRANCISCO Uh-huh
JUSTICE KAGAN -- that that would
undermine the proclamation
GENERAL FRANCISCO Yes
JUSTICE KAGAN Did I get you right
GENERAL FRANCISCO Yes
JUSTICE KAGAN So I -- I think you
know honestly the difference here then seems
to be is everything that the President said
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effectively that
GENERAL FRANCISCO I think there are
two issues Your Honor 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 embodiment of the executive branch So
that those statements should be out of bounds
But for -shy
JUSTICE KENNEDY But suppose you have
a local mayor and as a candidate he makes
vituperative hate -- hateful statements hes
elected and on day two he takes acts that are
consistent with those hateful statements
Thats -- whatever he said in the campaign is
irrelevant
GENERAL FRANCISCO Your -- Your
Honor if he takes the same oath -shy
JUSTICE KENNEDY You would say
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whatever he said in the campaign is irrelevant
GENERAL FRANCISCO I would say two
things And that was the -- and the second
thing is the point I was about to turn to I
would say yes because we do think that oath
marks a fundamental transformation but I would
also say here it doesnt matter because here
the statements that they principally rely on
dont actually address the meaning of the
proclamation itself
This is not a so-called Muslim ban
If it were it would be the most ineffective
Muslim ban that one could possibly imagine
since not only does it exclude the vast
majority of the Muslim world it also omits
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 multi-agency worldwide review that
applied neutral criteria all across the world
and concluded under those neutral criteria
most of the world was fine but a small part of
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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
JUSTICE BREYER All right Can -shy
can I ask a more -- I did read I think almost
all the 80 briefs Now your time -- what do -shy
CHIEF JUSTICE ROBERTS Yeah dont
worry Please go ahead
JUSTICE BREYER All right All
right All right Almost 80 and I think I -shy
some were repetitive not too many And I
think I know the basic arguments but theres
one question Im left with and it starts with
an assumption which I think you share but I
want to be sure All right
I noticed that the Carter order and
the Reagan order both had case-by-case
exceptions
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER And I looked 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
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individual circumstances such as giving some
examples the following
And then they have to be no
terrorists Well thats the law anyway And
they -- they have to be in the interests of the
United States And there cant be undue
hardship which the only time the word
hardship appears in the immigration laws it
says extreme hardship
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER So undue must be
less than extreme
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER Okay So Im -- then
they have a list people with foreign contacts
previously established business reasons
theyve been here studying or other long-term
activity they want to visit or reside with a
close family member they have a disease or
something that they need -shy
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER -- treatment for
they -- previously been employed And there
are about five other things
GENERAL FRANCISCO Yeah
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JUSTICE BREYER All right Focus on
that class of individuals
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER Now in countries -shy
150 million people all together there must be
quite a few who have -- do fall within that
class So -shy
GENERAL FRANCISCO Well yes Your
Honor but theres only a small number of
people that seek to come into our country
JUSTICE BREYER Well thats what Im
asking about
GENERAL FRANCISCO Yeah
JUSTICE BREYER You see
GENERAL FRANCISCO Yeah
JUSTICE BREYER Thats now -- if you
-- you think -- now as far as were concerned
if they fall within that class there -shy
theres no reason given here why they should be
excluded other than the -- the normal
processes
GENERAL FRANCISCO Well a couple of
responses Your Honor
JUSTICE BREYER What
GENERAL FRANCISCO First in terms of
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the numbers -shy
JUSTICE BREYER Im not asking about
the numbers
GENERAL FRANCISCO Oh oh youre not
asking -shy
JUSTICE BREYER I want to ask about
GENERAL FRANCISCO So -- so in terms
of the reason -shy
JUSTICE BREYER Yeah
GENERAL FRANCISCO -- they should be
excluded one of the principal purposes of the
proclamation is to exert diplomatic pressure on
governments in order to get them to change and
provide us with the information -shy
JUSTICE BREYER So you think they
should be excluded
GENERAL FRANCISCO Not if they meet
the criteria for the -shy
JUSTICE BREYER Not if they meet the
criteria
GENERAL FRANCISCO -- for the waiver
JUSTICE BREYER Okay Okay So
theres -shy
GENERAL FRANCISCO Thats why we have
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-- thats why we have the waiver
JUSTICE BREYER Thats -- thats -shy
thats what I thought you would say
GENERAL FRANCISCO Yeah
JUSTICE BREYER Then I get -- can ask
my question Sorry
GENERAL FRANCISCO Yes
JUSTICE BREYER But I want to be sure
were the same wavelength
GENERAL FRANCISCO Yes
(Laughter)
JUSTICE BREYER Okay 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 theres the
business community complaining theres the
academic community there were 46 scholars at
Harvard there -- there are families in the
Lisa Blatt brief you know that -- that they
say we were trying to get medical treatment and
nobody told us about this and -- and theyve
only admitted two and theres supposed to be
guidance and -shy
GENERAL FRANCISCO Thats not true
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JUSTICE BREYER -- you havent put in
the guidance and -- and -- and the most there
are is 100 And so there is my question If
you have done the same thing that the Reagan
people did and the Carter people did then it
might be -- Im not expressing a definite
opinion -- but well youve got the same thing
here but if this is as one brief says just
window dressing and they never apply it -shy
GENERAL FRANCISCO Right
JUSTICE BREYER -- then you have
something new and different going well beyond
what President Reagan did
GENERAL FRANCISCO Sure
JUSTICE BREYER Okay So I want to
know how do I find out -- how do I find out
when there is not that information in the
brief do we have to -- can we have another
hearing Do we send it back Do we say look
the government of course thinks this isnt
window dressing -shy
GENERAL FRANCISCO Right
JUSTICE BREYER -- but the other side
says there are only two people no notice
nobody knows
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GENERAL FRANCISCO So Your Honor
two -shy
JUSTICE BREYER There are people in
Yemen there are people in Somalia -shy
GENERAL FRANCISCO Yeah
JUSTICE BREYER -- decent people
Business -- you see my point
GENERAL FRANCISCO Yes
JUSTICE BREYER Whats the answer
GENERAL FRANCISCO And two responses
JUSTICE BREYER Yes
GENERAL FRANCISCO Our reply brief
has our most -- most current number on waivers
and I believe the number at page 17 footnote
-- well its -- its over 400 I cant
remember the exact statement
JUSTICE BREYER All right Thats
400 out of 150 million
GENERAL FRANCISCO And then -shy
JUSTICE BREYER And -- and is it well
publicized in these countries that they know
all they have to do is go to the visa office
and say I understand the thing I want an
exception
GENERAL FRANCISCO No Your Honor
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and I have two -- two responses -shy
JUSTICE BREYER Yeah
GENERAL FRANCISCO -- to that One
is I dont know how well publicized it is but
I suspect that people understand how to get it
My second principal response is
though that frankly in terms of the
legality I think that the waiver is not
necessary although it is a very good thing
which is why -shy
JUSTICE BREYER Not necessary There
-- there you have President Reagan -shy
GENERAL FRANCISCO -- which is why
most -- which is why most governments dont -shy
which is why its -- its a good thing which
is why most of these proclamations often have
them But theres nothing in -shy
JUSTICE BREYER Okay So you want me
to consider -shy
GENERAL FRANCISCO -- the law that
actually requires it
JUSTICE BREYER Thats what you want
You want me to consider the lawfulness of this
order on the assumption that there is no
waiver
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GENERAL FRANCISCO I dont -shy
JUSTICE BREYER Which is not what -shy
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 here thats the -shy
thats the -shy
GENERAL FRANCISCO Right The answer
to my -- your question Your Honor is no I
dont want you to consider the proclamation on
the -- on the hypothetical situation that it is
what it isnt but I do think that the
proclamation as written and as applied falls
well within the Presidents authority under
1182(f)
Thank you Mr Chief Justice
CHIEF JUSTICE ROBERTS Thank you
General We will afford you rebuttal time
GENERAL FRANCISCO Thank you
CHIEF JUSTICE ROBERTS Mr Katyal
ORAL ARGUMENT OF NEAL K KATYAL
ON BEHALF OF THE RESPONDENTS
MR KATYAL Thank you Mr Chief
Justice and may it please the Court
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The executive order is unlawful for
three reasons It conflicts with Congresss
policy choices It defies the bar on
nationality discrimination something you never
heard my friend talk about And it violates
the First Amendment
Congress has already specified a
three-part solution to the very same problem
the order addresses Aliens seeking entry from
countries that dont cooperate with the United
States in vetting including state sponsors of
terrorism and countries that provide inaccurate
information
First aliens have to go through the
individualized 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 the order uses Congress rejected a
ban Instead it used carrots When countries
cooperated theyd get extra credit a track -shy
faster track for admission Legislation to use
big sticks like nationality bans failed
And third Congress was aware
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circumstances could change on the ground so it
required reporting to them so it could change
the law
CHIEF JUSTICE ROBERTS Well lets
take big sticks fail Lets suppose that the
intelligence agencies go to the President and
say we have 100 percent solid information
that on a particular day 20 nationals from
Syria are going to enter the United States with
chemical and biological weapons They could
kill tens of thousands of Americans
In that situation could the President
ban the entry of Syrian nationals on that one
day
MR KATYAL He could for two reasons
Theres two different arguments Theres the
nationality discrimination ban 1152 and then
theres you know whether or not this comports
with Congresss policy judgments
And with respect to both I think it
would It wouldnt be nationality
discrimination for the reasons Judge Sentelle
said in LAVAS when you have an emergency
fast-moving situation like the Syria example
youre saying
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CHIEF JUSTICE ROBERTS Well just to
stop interrupt you there I mean what if
its a week What if its a week a month from
now Thats what the intelligence information
is
In other words Im trying to -shy
MR KATYAL Right
CHIEF JUSTICE ROBERTS -- respond to
your point that it has to be an immediate
decision
MR KATYAL Yeah So I think you
know this Courts dealt with that in
Youngstown and Hamdan and said look you know
the Presidents going to get a pass absolutely
on you know what he says the emergency is
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 460 days on -- later
Mr Chief Justice Hes never even introduced
legislation about this So were so far from
that hypothetical well concede the
hypothetical
CHIEF JUSTICE ROBERTS Well imagine
-- imagine if you can that Congress is unable
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to act when the President asked for
legislation
(Laughter)
MR KATYAL Right
CHIEF JUSTICE ROBERTS And someone
introduces a bill saying lets authorize -shy
first of all the President may have qualms
about sharing that absolute intelligence
broadly but lets say theres a bill
introduced to say lets authorize the President
and theres a bill introduced to say lets
block the President and neither bill moves
MR KATYAL 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 -- theres only one
problem hes identifying which is countries
not cooperating
Hes not talking about people coming
in or something like that like your
hypothetical And with respect to that
Congress has said heres how we deal with it
We deal with it with the individualized vetting
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system which pushes all the burdens on a
person coming in Thats 1361
Youve got to show biometric ID under
the statute Youve got to have an in-person
interview if theres any risk that the person
is from a country thats a state sponsor of
terrorism like your hypothetical or anything
else
So Congress has really said in a
robust way heres how we would deal with it
And to the extent countries arent cooperating
we offer carrots
Congress rejected exactly what theyre
trying to propose here which is a flat
nationality ban And thats where I think the
force of our argument lies with respect to the
first point which is this is countermanding
Congresss policy judgments
My friend on the other side actually
in his brief -shy
JUSTICE ALITO Well Congress did -shy
Congress did act It enacted 1182(f)
MR KATYAL Correct
JUSTICE ALITO Why doesnt this fall
squarely within the language of 1182(f)
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MR KATYAL For -- for -- we have
both textual reasons that its not a class for
reasons Justice Breyer was talking about Its
not perpetuated -- its perpetual like Justice
Ginsburg was talking about But we think
theres a much bigger point Justice Alito
which is -shy
JUSTICE ALITO Well maybe you could
talk about the text Its not a class
Doesnt 11 -- doesnt 1182(f) say whenever the
President finds that the entry of any aliens -shy
MR KATYAL Correct
JUSTICE ALITO -- or any class of
aliens So put class aside although I dont
really see why people who are nationals of a
particular country dont constitute a class
What about any aliens
MR KATYAL Right So we think it is
any you know -- because the power in 1182 is
so broad and sweeping and does allow the
President to supplement what Congress has done
we think that you have to -- you have to be
careful and read limit -- you have to read it
just the way you read every other statute to
say how do we harmonize that broad text of
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1182(f) with the rest of the INA
And our point in our briefs which I
dont 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 you know and end so-called chain
migration or anything like that He could do
-- countermand any of the provisions of the INA
and turn it into a line item veto
So for that reason we think there
has to be some limit Thats something this
Courts dealt with in you know the tobacco
case or -shy
JUSTICE ALITO Well does this
proclamation do anything like that Does this
proclamation purport to establish a new
permanent immigration policy for the United
States
MR KATYAL Absolutely Your Honor
This is a perpetual policy that bans It does
exactly what Congress in 1965 said you cant
do And it countermands Congresss
fine-grained reticulated judgment from 2001
2015 and several other times which is to say
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instead of these flat bans were going to have
-- were going to balance foreign policy
considerations economic considerations like
the US companies brief humanitarian image
of the United States views all of that
together and said we wont do the flat ban
Instead were going to have a much
more fine-grained approach with individualized
vetting and carrots for the countries that
dont disagree -- that dont cooperate
JUSTICE ALITO What is your basis for
saying that it is perpetual
MR KATYAL Well theres nothing in
the order that ends it And you heard my
friend say oh that would doom all executive
orders But thats not true Half of these -shy
JUSTICE KENNEDY I thought it had to
be reexamined every 180 days
MR KATYAL No thats not what it
says It says theres a report that has to
come in at 180 days and nothing happens at the
end of the report
JUSTICE KENNEDY Well that -- that
indicates there will be a reassessment
MR KATYAL Well in -shy
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JUSTICE KENNEDY And then the -- and
-- and the President has continuing discretion
MR KATYAL Justice Kennedy this
argument wouldnt be there if there was
anything about reassessment the way there are
in about half the orders including the Cuba
order which says it sunsets once the crisis
ends Theres nothing like that in this
And its just like a reporting
requirement to Congress in which Congress isnt
necessarily required to do anything Congress
has statutes like that all the time
This is that And thats why this is
unlike any other executive order If you go
back and look at all 43 executive orders that
Presidents have issued none of them have even
arguably countermanded Congresss judgment in
the area Theyve all been consistent
Theyve all been supplements
JUSTICE KENNEDY Well the statute
says first that -- that -- that 1182 for such
period as he deems necessary and he can have
continuing supervision over whether its still
necessary
MR KATYAL Again we wouldnt have a
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problem with that if it was tailored to a
crisis it says it sunsets and then you know
could be re-upped or something like that
Thats not what this says This is about a
perpetual problem
JUSTICE KENNEDY So you want the
President to say Im convinced that in six
months were going to have a safe world
MR KATYAL Well -- well -- well no
Justice Kennedy thats not our argument Our
argument is here the President is identifying
something that is a perennial problem Our
brief says it goes back 100 years you know
when the Soviet Union was around we dont 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
CHIEF JUSTICE ROBERTS What if the
military advisors tell the President that in
their judgment the President ought to order a
strike an air strike against Syria and the
President says well -- does that mean he cant
because you would regard that as discrimination
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against a majority Muslim country
MR KATYAL Absolutely not Theres
nothing to do with the text of the statute
The 1152 statutes about discrimination and the
issuance of visas And thats all that -shy
CHIEF JUSTICE ROBERTS So under
1182(f) you would say that theres no problem
under that provision
MR KATYAL Well under 1182 as I
understand it was a strike And so I dont
think theres any immigration issue in your
hypothetical I might be misunderstanding it
Mr Chief Justice
CHIEF JUSTICE ROBERTS Well any type
of targeted action that would have a impact on
the Muslim population
MR KATYAL Absolutely We think the
President has wide authorities to do things
that have impacts on the Muslim population
Take the laptop ban that was introduced -shy
CHIEF JUSTICE ROBERTS Why under your
theory wouldnt that constitute or the argument
would be that thats discrimination under your
Establishment Clause argument -shy
MR KATYAL Oh
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CHIEF JUSTICE ROBERTS -- that thats
discrimination on the basis of faith because he
has said in the past if you accept the -shy
MR KATYAL Yeah
CHIEF JUSTICE ROBERTS -- accept the
arguments that he -- he is anti-Muslim
MR KATYAL Not at all Your Honor
and no President has run afoul of this you
know and thats because here the President
and his advisors have directly tied this policy
to those statements And the red brief at page
70 I think is the greatest illustration of
that
Thats 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 INA is
that the President can take a wrecking ball to
the statute and countermand Congresss
fine-grained judgments that -shy
CHIEF JUSTICE ROBERTS He can never
-shy
JUSTICE KAGAN Well you might think
-shy
JUSTICE GORSUCH Mr Katyal -- Mr
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Katyal if I might on -- on the statutory
question before we leave it Weve been
proceeding so far on the assumption that we can
reach the merits but the government makes the
argument for example that aliens who are
removed from this country have to bring their
claims personally and third parties cant
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
who are not present in this country Whats
the answer to that
MR KATYAL Well several This is
not a third-party case These are United
States citizens bringing this challenge in a
state -shy
JUSTICE GORSUCH Oh behalf of -shy
MR KATYAL -- of the United States
JUSTICE GORSUCH -- aliens not
present in the country
MR KATYAL Well but they are
directly -- they are directly harmed
themselves Let me just give you one example
Not just the State of Hawaii whose university
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is directly impacted but lets just take for
example the Alomari -- Mr Alomari the
10-year-old in the PARS Equality brief Justice
Breyer that you were referring to This is a
10-year-old daughter in Yemen who is -- whos
trying to come here because she has cerebral
palsy
JUSTICE GORSUCH I understand that
but those arguments dont work with respect to
aliens present in the country So why do they
work for aliens who are not present in the
country
MR KATYAL Because I -shy
JUSTICE GORSUCH Those very same
arguments would not succeed
MR KATYAL Well -shy
JUSTICE GORSUCH I think youd
concede that they wouldnt succeed for aliens
present -shy
MR KATYAL Right And they dont
succeed because there you have a better
plaintiff might not be willing to bring them in
the United States and thats why the court
you know says no third party But here
these folks are directly impacted
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And the most important thing to say is
Sale answers this You heard my friend concede
Sale was jurisdictional the issues in Sale
Thats how they briefed it up Thats how he
just described it This Court had exactly that
situation United States plaintiffs and it
reached the merits
Our statutory point to you is that if
you accept this order youre giving the
President a power no President in 100 years has
exercised an executive proclamation that
countermands Congresss policy judgments He
has zero examples to say that when Congress has
stepped into the space and solved the exact
problem that the President can then come in
and say No I want a different solution
If you do that youd -- its not just
family preferences that youre allowing him to
get rid of youd get rid of all sorts of even
small things in the Code or big things like
theres a preference for specialty occupations
like software engineers in the INA The
President could say The economics are such
Im going to ban software engineers from going
to California or something like that under that
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sweeping 1182 power
JUSTICE KAGAN I -- I guess the
question though Mr Katyal is maybe youre
entirely right that 1182(f) needs to have some
limits to prevent the President from doing
something thats completely contrary to another
section of the statute
But youre suggesting well the
President cant do anything thats not
contemplated by the rest of the statute
MR KATYAL That is not our argument
JUSTICE KAGAN Okay 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 -shy
MR KATYAL Right
JUSTICE KAGAN -- between what the
President is doing and another statutory
provision
MR KATYAL So our view is that the
President can supplement he just cant
supplant In this Courts decisions in the
Brown amp Williamson case and the UARG greenhouse
gas and Concepcion and Abilene Cotton the
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Savings Clause cases all say there are three
things you look at And its not a flat bar
It cant be like a direct contravention Even
they say its not a direct contravention in
their reply brief at page 19
So the three things are first can
these two solutions coexist or not Second
has Congress prescribed a reticulated
comprehensive scheme And third you know is
there any other indication that Congress
considered 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 -shy
Congress has a comprehensive reticulated scheme
that deals with the exact single problem that
hes identified which is countries not
cooperating It cant coexist with the
solution of a flat ban It makes no sense for
example to have the in-person visa requirement
-- visa interview which is in 12 -shy
1202(h)(2) which is for -- for people who come
from state sponsors of terrorism or who have a
group with a likelihood of providing
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inaccurate information Congress said there
has to be an in-person interview for that
It doesnt make sense to say well
youre going to have a flat ban It doesnt
make sense to have a Visa Waiver Program which
is all about countries that provide zero
information to the United States -- state
sponsors of terrorism and the like -- and say
were going to give you a carrot and then say
oh no forget about the Visa Waiver Program
JUSTICE ALITO Can -- can you imagine
any situation in which the threat of the
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
MR KATYAL Yes
JUSTICE ALITO You cannot imagine any
such situation
MR KATYAL Yes I can And the
President would have a robust authority to deal
with that That is not our argument So -shy
JUSTICE KENNEDY And your argument is
that courts have the -- the duty to review
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whether or not there is such a national
exigency thats for the courts to do not the
President
MR KATYAL No I think you have
wide deference Justice Kennedy Its exactly
what you said when you joined Justice Breyers
opinion in Hamdan which is as long as -- you
know Presidents have wide berth in this area
but if -- you know certainly if theres any
sort of emergency that precludes it
But when you have a statute that
considers the very same problem and theres
nothing new that theyve identified in this
worldwide review process that Congress didnt
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 the -shy
CHIEF JUSTICE ROBERTS But thats in
the abstract I mean they may have more -shy
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
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And it seems to me a difficult
argument to say that Congress was prescient
enough to address any particular factual
situation that might arise
MR KATYAL Well that again -shy
thats again Mr Chief Justice not our
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 But here -shy
CHIEF JUSTICE ROBERTS What about -shy
what about a change of administration in a
particular country -shy
MR KATYAL Yes
CHIEF JUSTICE ROBERTS -- in which
perhaps the vetting procedures are not going to
be taken seriously
MR KATYAL Right
CHIEF JUSTICE ROBERTS That Congress
could not have anticipated
MR KATYAL Well but again
Congress anticipated a country that is a state
sponsor of terrorism and even for -- with
respect to that providing no information and
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indeed fomenting against the United States
Congress said oh were not going to have a
nationality ban You know they flatly banned
that and said were going to have
individualized vetting and this Visa Waiver
Program carrot to try and deal with that you
know dangerous regime
Now again I can imagine an emergency
situation in which the President would have
even greater authority for that But here we
are 460 days later and I would caution the
Court not to make a decision about the
emergency youre concerned about That can be
bracketed as it was in Youngstown as it was in
Hamdan This is so far from that
The text of 1152 is flatly violated
here It says there shall be no discrimination
on the basis of nationality with the issuance
of visas
That is 39 percent of all the visas
this executive order covers Its not a small
part Its 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
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become part of our long-term polity This
executive order flatly contradicts that
Now if you accept his
interpretation -- he says well you know
were discriminating at the entry side not at
the visa side If you do that you are giving
the President the power to undo -- and hes
actually just done it -- hes undone the ban on
nationality-based discrimination Hes imposed
country quotas of zero for these countries at
the border
CHIEF JUSTICE ROBERTS If your -shy
your argument based on discrimination based on
the campaign statements is there a statute of
-- no the one that you do make based on the
campaign statements is there a statute of
limitations on that or is that a ban from
presidential findings for the rest of the
administration
MR KATYAL So Mr Chief Justice I
first want to be very clear about this Our
point about 1152 and the discrimination has
nothing to do with any campaign statements or
anything else
Its purely the text of the
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proclamation which is nationality-based
discrimination through and through Judge
Sentelle said you couldnt imagine a clearer
text than this And this is -- it violates it
Now -shy
CHIEF JUSTICE ROBERTS My question
was on the -shy
MR KATYAL -- youre asking about
the First Amendment
CHIEF JUSTICE ROBERTS Yes
MR KATYAL I just want to make
absolutely clear that were -- thats not -shy
you know you dont need to do any of that for
purposes of 1152 And that would knock out
39 percent of the most important part of the
executive order
CHIEF JUSTICE ROBERTS My question
of course -shy
MR KATYAL Yes Now Im getting -shy
CHIEF JUSTICE ROBERTS -- was not on
1152
MR KATYAL Yes Im getting there
Okay
With respect to that we dont think
-- we think that the test as this Court has
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said a reasonable objective observer viewing
all the statements and we think absolutely
my friend is right you shouldnt look to
campaign statements in general or stuff like
that 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 70
of our red brief you have a very good example
of this
After the executive order this latest
executive order was promulgated the President
tweeted these three virulent anti-Muslim
videos And then the press spokesman was
asked What does this mean What is this
about And the answer was The President has
spoken about exactly this in the proclamation
CHIEF JUSTICE ROBERTS My question
was whether or not the inhibition on the
ability to -- to enter one of the proclamations
applies forever
MR KATYAL Right No I think the
President could have disclaimed -- you know
easily moved away from all of these statements
you know but instead they embraced them
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Thats the difference
And so absolutely the President
would have wide berth to say thats a -shy
CHIEF JUSTICE ROBERTS So if
tomorrow he issues a proclamation saying hes
disavowing all those statements then the next
day he can reenter this proclamation
MR KATYAL Thats exactly what this
Court said in McCreary This Court in McCreary
said you know the same policy can be
constitutional if said -- if promulgated by one
entity and not by another depending on the
circumstances around it
CHIEF JUSTICE ROBERTS Is your answer
to my question yes
MR KATYAL Yes The answer is -shy
CHIEF JUSTICE ROBERTS Tomorrow he
issues a proclamation disavowing those
statements -shy
MR KATYAL Absolutely And thats a
CHIEF JUSTICE ROBERTS -- then the
next day he could reenter this and your
discrimination argument would not be
applicable
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MR KATYAL And -- and -- and Mr
Chief Justice thats exactly what I told the
Ninth Circuit in May The President didnt do
that Thats whats -- thats -- you know
thats what a reasonable objective observer -shy
JUSTICE SOTOMAYOR So if another -shy
JUSTICE ALITO Mr Katyal would any
reasonable observer reading this proclamation
with -- without taking into account statements
think that this was a Muslim ban
I mean there are -- I think there are
50 predominantly Muslim countries in the world
Five -- five countries -- five predominantly
Muslim countries are on this list
The population of the -- of the
predominantly Muslim countries on this list
make up about 8 percent of the worlds Muslim
population
MR KATYAL Absolutely
JUSTICE ALITO If you looked at the
10 countries with the most Muslims exactly
one -shy
MR KATYAL Right
JUSTICE ALITO -- Iran would be on
that list of the top 10
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MR KATYAL Right
JUSTICE ALITO So would a reasonable
observer think this was a Muslim ban
MR KATYAL If it were -- if it were
just the text of the order alone it might
raise eyebrows for fit and other reasons that
the briefs go into but we wouldnt be here
We absolutely agree that just -- its the same
test as in Lukumi and other cases You have to
look to all the circumstances around it that
are said the publicly available ones
You know and Justice Alito the fact
that the order only come -- encompasses some
Muslim countries I dont think means its not
religious discrimination For example if Im
an employer and I have 10 African-Americans
working for me and I only fire two of them I
dont think -- you know and say well Ive
left the other eight in I dont think anyone
can say thats not discrimination
JUSTICE ALITO No I -- I understand
that And it is one of our fundamental values
that there is religious freedom here for
everybody in that number -- adherence to every
religion are entitled to equal treatment
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My only point is that if you look at
what was done it does not look at all like a
Muslim ban There are other justifications
that jump out as to why these particular
countries were put on -- on the list
So you -- it seems to me the list
creates a strong inference that this was not
done for that invidious purpose
MR KATYAL Justice Alito I think if
it were just the list I think wed be right -shy
youd be right although Id point out that
you yourself in the Stormans case said that
its a religious -- it raises an inference of
religious gerrymander of the burden imposed
falls almost exclusively on those with
religious objections
This is a ban that really does fall
almost exclusively on Muslims between
902 percent and 998 percent Muslims And so
it does look very much like what you said in
Stormans But even then we wouldnt be here
if it werent for all of the different
statements
And the best evidence of this about
what a reasonable objective observer would
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think is to look at the wide variety of amicus
briefs in this case from every corner of
society representing millions and millions of
people from the US Conference of Catholic
Bishops which calls it blatant religious
discrimination
JUSTICE GORSUCH Mr Katyal on that
its been a long time since this Court has used
the Lemon test reasonable observer even to
strike down a domestic statute let alone
something with purely international
application What -- what do we do about that
MR KATYAL Yeah 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 and our protest of
King George which is all about using the
immigration power to exclude people of a
different faith And thats what our
Constitution is about So thats the first
thing
And the second is we dont think you
have to get into Lemon and all these other
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tests that you all have struggled with I
think this Court in Lukumi was very clear in
saying that when youre talking about
denigration of religion all the tests point in
the same direction
JUSTICE SOTOMAYOR Mr Katyal you
said something earlier you said you wouldnt
be here if all of those statements the
background statements were not made Do you
mean that on all of your bases You wouldnt
be here on the Establishment Clause claim
MR KATYAL Only on the Establishment
Clause claim not on anything else And our
point is you know he talks about for
example this worldwide vetting process
Remember his own argument on 1182 is
the statute puts the President -shy
JUSTICE SOTOMAYOR So lets -- lets
go back to not being here without the
statements Clearly the statements even
conceded by your adversary do give you a basis
to look behind all right the reason
So if were looking behind it how do
you deal with the Generals suggestion that
there was a cleansing that occurred because of
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all of the agencies and departments who
participated in this process
MR KATYAL Yeah So theres three
things Number one is that his -- his own
argument is that 1182 puts the President in the
drivers seat so the cabinets not important
Its the Presidents proclamation
Second the order itself says in its
first lines it harkens back to Executive
Orders 1 and 2 and it says its an outgrowth
of that So it was infected by the same thing
that was struck down on Establishment 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 ban
a non-politically-correct ban and the like
So given all of those things but in
particular given the fact that 1182 itself
forces the President to make the proclamation
its the Presidents proclamation so I dont
think you even have to get into this whole
unitary executive thing but I do agree with
you Justice Sotomayor that thats another
problem which is theyre coming before the
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Court and saying Nope its the President
whos in charge And now theyre saying here
Oh no no no its these other people
This is the Presidents proclamation
through and through No President has ever
said anything -- anything like this And
thats what makes this different
And the President -shy
JUSTICE KAGAN And -- and yet Mr
Katyal 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 evaluating the adequacy of those
national security interests which for the most
part weve said courts are not equipped to do
MR KATYAL Right Were not asking
you to second-guess a national security
judgment at all with the purpose of the
Establishment Clause
Were saying you just have to look to
what a reasonable objective observer would do
Thats the ordinary test that youve used in
cases like Lukumi Is there an official
purpose to disparage a religion Here there
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very much is Thats you know everything
that the President has said and that the order
itself embodies Thats our fundamental
problem
JUSTICE BREYER What do you think -shy
its a -- its a -- its still something Im -shy
Im thinking about perhaps to the side but
the statute you point to one of the ones that
is stronger for you There are obviously
objections to what youre saying in quite a few
briefs all right but the one that you talked
about it does say you have to have an
interview with a consular official if the
person is from a country officially designated
by the Secretary as a state sponsor of
terrorism It does say that
So theyll say but we do have that in
respect to everyone under the exception So
there isnt much problem Weve gone beyond
that in respect to other people All right
Take their argument for a moment
Because my question is which I
couldnt find in the briefs is is it true -shy
Im just taking what they say -- that really
that isnt so they dont publicize it they
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havent put forth a guidance people dont know
they can come in and qualify for this
And if it turns out that that is
something that is important to the lawfulness
of the order because there are many many
categories there -shy
MR KATYAL Right
JUSTICE BREYER -- what do we do
MR KATYAL So two things Number
one this waiver process has excluded -- and
you have this in the PARS Equality brief at
page 14 A 10-year-old with cerebral palsy who
wants to come to the United States to save her
life and she cant move or talk The
10-year-old was denied a waiver Justice
Breyer
He says theres 430 people who have
gotten waivers Theyve never told you the
denominator and theres no publication of this
process and how -- how often it is And the
data that we do have suggests as a matter of
percentages its very weak
Just to give you some evidence of
that just the State of Hawaii has gotten about
1000 letters from people most of which say
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were not even getting waivers on the like
JUSTICE GORSUCH That -shy
MR KATYAL Weve heard very few
instances -shy
JUSTICE GORSUCH -- raises a question
of remedy for me
MR KATYAL Yes
JUSTICE GORSUCH We have this
troubling rise of this nationwide injunction
cosmic injunction -shy
MR KATYAL Yeah yeah
JUSTICE GORSUCH -- not limited to
relief for the parties at issue or even a class
action
MR KATYAL Right
JUSTICE GORSUCH And near as I can
tell thats -- thats a really new development
where a district court asserts the right to
strike down a -- a federal statute with regard
to anybody anywhere in the world
MR KATYAL Yeah
JUSTICE GORSUCH What -- what do we
do about that
MR KATYAL Obviously the injunction
here has been trimmed by this Court itself and
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others And I do think -- I -- I share your
impulse Justice Gorsuch Thats something
that I think lower courts are debating right
now in a number of different contexts like the
contraception case and the like
I think this case is the poorest
example to get into it because of United States
versus Texass point which is this is an
immigration case and Article I Section 8 puts
Congress in the drivers 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 doesnt make a
tremendous amount of sense It would almost be
an advisory opinion
Our fundamental point to you though
is that Congress is in the drivers seat when
it comes to immigration and that this
executive order transgresses the limits that
every President has done with this proclamation
power since 1918 And to accept it here is to
accept that the President can take an iron
wrecking ball to the statute and pick and
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choose things that he doesnt want for purposes
of our immigration code That cant be the law
of the United States
CHIEF JUSTICE ROBERTS Take five
extra minutes Okay
MR KATYAL Okay
(Laughter)
CHIEF JUSTICE ROBERTS You dont have
to
(Laughter)
MR KATYAL Well if there are -- if
there are any other questions Im happy to
take anything Okay Thank you
CHIEF JUSTICE ROBERTS Thank you
counsel
Five minutes for rebuttal General
REBUTTAL ARGUMENT OF GENERAL NOEL J FRANCISCO
ON BEHALF OF THE PETITIONERS
GENERAL FRANCISCO Mr Chief -- Mr
Chief Justice and may it please the Court
I -- I really do have just a few quick
points unless Your Honors have additional
questions
Justice Breyer I did want to respond
in more detail to your question about how the
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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
the waiver -- the visa officer first determines
whether the person is otherwise admissible
under other provisions of the INA
If theyre inadmissible you never
even get to the proclamation Then for those
people who are not inadmissible under other
parts of the INA like 1182(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 youre not subject to an exception
then the consular officer him or herself
turns to the waiver provision and applies the
criteria of the waiver provision
JUSTICE GINSBURG How do you deal
with the -shy
GENERAL FRANCISCO So it does get
applied in every single case
JUSTICE GINSBURG How -- how do you
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deal with the example that was brought up of
the child with cerebral palsy
GENERAL FRANCISCO Your Honor the
waiver is built to address those issues I am
not familiar enough with the details of that
case to tell you what happened in that
particular case But thats what the waiver
provision -shy
JUSTICE BREYER But thats -- thats
you see -shy
GENERAL FRANCISCO -- is intended to
address
JUSTICE BREYER Youve read the
briefs as have I All right Now there are
some that lists about 10 or 15 instances like
the cerebral palsy One has Parkinsons Then
theres another brief that lists all the people
who are professors scholars at universities
and there are a lot And -- and then there are
people they list the students from these
countries a lot
GENERAL FRANCISCO Yeah
JUSTICE BREYER And then the business
community lists a -- a whole bunch and says my
goodness they have been unable to get -- we
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dont know whats going on
And then they say Well whats going
on is nothing is going on
GENERAL FRANCISCO Well Your Honor
-shy
JUSTICE BREYER Now I dont -- Im
not taking sides on that Im just saying I
dont know
GENERAL FRANCISCO Right And the
principal purpose of the proclamation is of
course to 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 Im 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
admissible
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 dont and doesnt tell us we
cannot intelligently make the admissibility
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determination
Third Id like to address the
1152(a)(1)(A) point about nationality-based
discrimination
JUSTICE SOTOMAYOR General could you
stop just one second
GENERAL FRANCISCO Yes Your Honor
of course
JUSTICE SOTOMAYOR I for one am like
Justice Breyer concerned about is this window
dressing or not Whats in place to ensure
its not What are you personally doing to
represent to us that it is in fact a real
waiver process -shy
GENERAL FRANCISCO Your Honor State
Department consular officers automatically
apply the waiver process in the course of every
visa application And they are doing that
which is why there have been -- and I looked at
our brief -- 430 waivers that have been issued
since -shy
JUSTICE SOTOMAYOR Have you bothered
-shy
GENERAL FRANCISCO -- the
proclamation was issued
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JUSTICE SOTOMAYOR -- to look to see
if there are reasons for all of those peoples
exclusions
GENERAL FRANCISCO Your Honor I
cannot claim that I have looked into every
individual case
JUSTICE KENNEDY Could you make your
1152 point
GENERAL FRANCISCO Yes Your Honor
1152(a)(1)(A) addresses one thing the issuance
of immigrant visas It doesnt address the
broader question over whether somebodys
allowed to enter in the first place
Thats governed by 1182 including
1182(f) So essentially 1182 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 1152(a)(1)(A) is
one of the rules that governs how we distribute
visas amongst that group thats eligible to
come in
And its not just nationality-based
distinctions that it applies to It also
applies to things like place of residence So
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once you have that universe of eligible people
1152(a)(1)(A) governs how you distribute them
But lets 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 non-immigrant visas to people who
arent allowed to enter but we wouldnt have
to allow anyone to enter and we wouldnt have
to issue any non-immigrant visas
So the bottom line is I think theyre
simply wrong on that case -- on that issue
My final point has to do with my -- my
brothers 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 25 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
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says its about Foreign policy and national
security And we would ask that you reverse
the court below
CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1109 am the case
was submitted)
Heritage Reporting Corporation
83Official
1 998 [1] 6619 39914 44111417 51581120 arise [2] 5725 584
1 [1] 6910 A 52101118
ALITO [16] 432124 446813 45
around [3] 4814 6313 6510
Article [2] 136 749 1000 [1] 7225 am [3] 116 32 826 15 4611 561119 6472024 65 aside [1] 4414 10 [4] 642125 6516 7715 Abilene [1] 5425 21221 669 asks [3] 169 519 7614 10-year-old [4] 5235 721215 ability [1] 6220 allies [2] 73 1719 assert [2] 5111 7811 1002 [2] 116 32 able [2] 2210 5111 allow [3] 413 4420 8110 asserts [1] 7318 100 [4] 353 407 4813 5310 above-entitled [1] 114 allowed [3] 178 8013 819 associate [1] 2211 11 [1] 4410 abroad [1] 2113 allowing [1] 5318 associated [1] 812 1109 [1] 826 absolute [1] 428 almost [8] 116 1556 30712 66 assume [4] 19811 2016 813 1152 [7] 4017 494 5916 6022 61 absolutely [12] 4114 4213 4520 1518 7416 assumption [3] 3016 3724 513 1421 808 49217 5810 6112 622 63220 Alomari [2] 5222 attitude [1] 227
1152(a)(1)(A [4] 793 801019 81 6419 658 alone [2] 655 6710 Attorney [1] 523 2 abstract [1] 5720 already [3] 61024 397 authorities [1] 4918
1182 [10] 1018 4419 4721 499 academic [1] 3418 although [3] 379 4414 6611 authority [7] 6916 712 3815 42 541 6816 69519 801415 accept [8] 138 454 5035 539 Amendment [3] 396 619 6716 15 5622 5910
1182(a [1] 7612 603 742324 American [1] 1111 authorize [2] 42610 1182(f [18] 4591318 54 616 7 acceptability [1] 108 Americans [2] 4011 8121 automatically [2] 764 7916 1120 1025 1314 3816 432225 account [2] 105 649 amicus [1] 671 available [1] 6511 4410 451 497 544 8015 accurate [1] 1218 amongst [1] 8021 aware [2] 391725
12 [1] 5522 across [3] 107 2524 2923 amount [1] 7416 away [2] 6224 8117 1202(h)(2 [1] 5523
1361 [1] 432
act [4] 128 177 421 4322
acting [1] 313 analysis [3] 914 1624 7013
animus [1] 1710 B
14 [1] 7212 action [4] 2511 385 4915 7314 another [10] 519 1220 279 35 back [6] 234 3519 4715 4813
15 [1] 7715 actions [1] 247 18 54619 6312 646 6924 77 6819 699
150 [2] 325 3618 activity [1] 3118 17 backdrop [1] 2613
17 [1] 3614 acts [3] 410 281119 answer [9] 615 119 369 389 45 background [2] 2620 689
17-965 [1] 34 actually [14] 111923 1225 175 3 5113 6216 631416 balance [2] 462 4818
180 [2] 461821 21 2112 231 2410 257 299 37 answers [1] 532 ball [2] 5018 7425
19 [1] 555 21 4319 608 763 anti-atheist [1] 224 ban [22] 291113 3921 401317
1918 [1] 7423 add [1] 64 anti-Muslim [2] 506 6213 4315 466 4817 4920 5324 55
1965 [1] 4522 added [1] 519 anti-Semite [1] 163 20 564 593 60817 6410 653
2 addition [2] 617 151 anti-Semitic [2] 194 2619 66317 691617 8119
2 [1] 6910
20 [1] 408
2001 [1] 4524
2015 [1] 4525
2018 [1] 112
25 [2] 112 8118
additional [1] 7522
address [10] 71 12618 133 299
583 77412 792 8011
addressed [2] 59 5723
addresses [3] 76 399 8010
adequacy [2] 5724 7014
adequate [1] 610
anti-Semitism [1] 1615
anticipated [2] 582123
anybody [1] 7320
anyway [1] 314
APPEARANCES [1] 118
appears [1] 318
applicable [1] 6325
banned [1] 593
bans [3] 3924 4521 461
bar [3] 1420 393 552
bare [1] 303
based [7] 1415 1725 275 2922
60131315
baseline [14] 3162123 722 819
3 adherence [1] 6524 application [2] 6712 7918 972124 1547 1923 302 3919
3 [1] 24 administration [2] 5813 6019 applied [10] 111619 153 1913 7817
38 [1] 27 admissibility [3] 78 820 7825 23 269 2923 3814 76324 bases [1] 6810
39 [2] 5920 6115 admissible [4] 424 816 767 78 applies [9] 322 171 2113 6221 basic [4] 615 725 127 3014
4 19
admission [1] 3923 7651619 802425
apply [9] 147 1589 1918 2112
basically [2] 23725
basis [8] 85 171724 1916 4611
400 [2] 361518 admitted [1] 3423 231 2516 359 7917 502 5918 6821
43 [1] 4715 adopt [1] 314 approach [1] 468 became [1] 3917
430 [2] 7217 7920 adopts [1] 318 appropriate [1] 3025 become [1] 601
46 [1] 3418 adversary [1] 6821 April [1] 112 becomes [1] 5925
460 [2] 4119 5911 advice [2] 179 289 arbiter [1] 2622 began [1] 6915
5 50 [1] 6412
advisors [2] 4821 5010
advisory [1] 7417
affirm [1] 524
area [5] 419 1016 1519 4718 57
8
arent [2] 4311 819
behalf [9] 12122 24710 39 38
23 5118 7518
behind [2] 682223
7 afford [1] 3819 arguably [1] 4717 believe [1] 3614
70 [2] 5012 628 afoul [1] 508 argued [1] 236 below [6] 323 9212424 262 82
75 [1] 210 African-Americans [1] 6516 argument [37] 115 2258 348 3
8 agencies [5] 1925 251516 406
691 121241422 1327 1471013
19912 3822 4316 474 4810
benefit [1] 73
berth [2] 578 633
8 [2] 6417 749 agree [3] 1522 658 6923 11 492224 515 5411 562324 best [1] 6624
80 [2] 30812 ahead [1] 3010 5827 6013 6324 6816 695 71 better [3] 1022 1817 5221
9 air [1] 4823
AL [2] 147 21 7517
arguments [5] 3014 4016 506
between [2] 5418 6618
beyond [2] 3512 7119 902 [1] 6619 aliens [16] 424 128 1625 2113 52915 big [3] 3924 405 5320
Heritage Reporting Corporation Sheet 1 1 - big
84Official
bigger [1] 446
bill [4] 42691112
biological [1] 4010
biometric [1] 433
Bishops [1] 675
bit [2] 614 141
blatant [1] 675
Blatt [1] 3420
block [1] 4212
border [4] 8814 6011 7821
both [5] 207 274 3019 4020 44
2
bothered [1] 7922
bothering [1] 235
bottom [1] 8112
bounds [1] 2814
bracketed [1] 5914
branch [8] 715161718 2312 27
89 2813
BREYER [49] 1315 3061122 31
111422 321411141624 332
610162023 3425812 35111
1523 36369111720 37211
1822 382 443 524 715 72816
7524 7791323 786 7910
Breyers [1] 576
brief [14] 3420 35818 3612 43
20 464 4813 5011 523 555 62
9 7211 7717 7920
briefed [1] 534
briefs [9] 413 308 3416 452 65
7 672 711123 7714
bring [7] 20131624 2110 2212
516 5222
bringing [1] 5116
brings [1] 7813
broad [5] 418 1146 442025
broader [1] 8012
broadly [1] 429
broke [1] 256
brothers [1] 8115
brought [1] 771
Brown [1] 5424
built [1] 774
bunch [1] 7724
burden [2] 3915 6614
burdens [1] 431
business [4] 3116 3417 367 77
23
C cabinet [9] 169 1724 1924 24
2225 25114 2810
cabinets [1] 696
cabinet-level [3] 153 183 1922
California [1] 5325
call [1] 278
calls [1] 675
came [2] 114 587
campaign [9] 168 285621 291
60141623 624
candidate [1] 2817
cannot [5] 815 2119 5619 7825
805
careful [1] 4423
carrot [2] 569 596
carrots [3] 3921 4312 469
Carter [6] 93 1013 113 3018 35
5 384
Carters [4] 1113161822
Case [25] 34 109 1222 1317 14
11 151015 198 2011 236 45
14 5115 5424 6612 672 7456
9 7624 7767 806 8113 8256
case-by-case [5] 30192325 38
77
cases [5] 1519 551 659 6913
7024
categories [1] 726
Catholic [1] 674
Catholics [1] 6718
caution [1] 5911
cerebral [4] 526 7212 77216
certain [3] 1117 1420 1816
certainly [2] 5015 579
Chad [3] 46 1010 2917
chain [1] 457
challenge [4] 2010 2123 221 51
16
change [5] 92 3314 4012 5813
charge [2] 245 702
check [1] 254
chemical [1] 4010
CHIEF [49] 3310 1125 121117
21 131 309 3817182124 404
41182024 425 4820 49613
1421 501521 5719 5861216
20 601220 616101720 6218
634141722 642 75481419
20 824
child [1] 772
choices [1] 393
choose [1] 751
Christian [1] 222
Circuit [3] 2633 643
circumstances [4] 311 401 63
13 6510
cite [2] 76 1321
citizen [3] 28712 625
citizens [1] 5116
claim [15] 1320 20611131416
24 2121115 2225 5014 6811
13 805
claimed [1] 2624
claims [4] 1317 215 2219 517
class [10] 322718 3413 4429
131416 7313
Clause [15] 1320 1914 2069 21
21118 2225 288 4924 551 68
1113 6912 7020
cleansing [1] 6825
clear [8] 923 1720 2123 5016
5415 6021 6112 682
clearer [1] 613
Clearly [1] 6820
close [1] 3119
closest [2] 73 1719
Code [2] 5320 752
coequal [1] 279
coexist [2] 55719
college [1] 222
come [13] 1324 175 3210 4621
526 5315 5523 5925 6513 72
213 801622
comes [3] 1322 5717 7420
coming [5] 79 2716 4221 432
6925
comments [2] 166 194
committee [4] 512 24178
community [3] 341718 7724
companies [1] 464
compare [1] 1012
complaining [1] 3417
complete [1] 118
completely [2] 2410 546
comply [1] 251
comports [1] 4018
comprehensive [2] 55916
concede [3] 4122 5218 532
conceded [1] 6821
Concepcion [1] 5425
concern [2] 59 2612
concerned [3] 3217 5913 7910
concerns [2] 1122 129
concluded [4] 155 201 2518 29
24
conduct [2] 824 95
Conference [1] 674
confident [1] 1915
confidential [1] 265
confidentiality [1] 2612
confirms [1] 2921
conflict [1] 5416
conflicts [1] 392
Congress [40] 41015 5710 64
81024 385 397172025 4117
25 421624 439132122 4421
4522 47101011 4817 5313 55
81016 561 571423 5822023
592 741019
Congresss [7] 392 4019 4318
4523 4717 5019 5312
consequences [1] 5017
consider [6] 199 284 371923
3811 5715
considerations [4] 106 4633
4819
considered [1] 5511
considers [1] 5712
consistent [2] 2820 4718
constantly [1] 718
constitute [2] 4416 4922
Constitution [3] 2424 289 6722
constitutional [6] 1317 1510 19
18 2114 5014 6311
constitutionally [1] 2810
construct [1] 2516
consular [6] 121 7113 76412
18 7916
contacts [1] 3115
contemplated [1] 5410
context [3] 161523 1825
contexts [2] 5725 744
continuing [2] 47223
contours [1] 1521
contraception [1] 745
contradicts [1] 602
contrary [2] 54614
contravention [2] 5534
convinced [1] 487
cooperate [5] 84 3910 4610 48
15 5717
cooperated [1] 3922
cooperating [3] 4220 4311 55
19
core [1] 720
corner [1] 672
correct [4] 13911 4323 4412
cosmic [1] 7310
Cotton [1] 5425
couldnt [3] 2223 613 7123
counsel [2] 7515 825
countermand [2] 459 5019
countermanded [1] 4717
countermanding [1] 4317
countermands [2] 4523 5312
countries [45] 3152225 51821
22 749 91920 1047 1112 15
7 2212 252224 2610 2916 32
4 3621 3910121821 4219 43
11 469 4815 5518 566 5716
5810 6010 641213141621 65
14 665 7721 7811 812224
country [29] 416 811 99 154
1925 251718 2716 305 3210
4215 436 4416 491 516912
21 521012 5615 581423 6010
7114 8017 812123
countrys [1] 1719
couple [2] 271 3222
course [8] 1323 1679 3520 61
18 7811 79817
COURT [22] 1115 311 1218 13
8 1423 3825 5223 535 5912
6125 6399 678 682 701 7318
25 741315 7520 823
Courts [3] 4112 4513 5423
courts [5] 266 5625 572 7016
743
covered [2] 1114 2917
covers [2] 1112 5921
created [2] 5815
creates [1] 667
credit [1] 3922
criminal [2] 83 304
crisis [2] 477 482
criteria [8] 512 910 292324 33
1921 3919 7620
cross [1] 1613
crystal-clear [2] 811820
Cuba [2] 95 476
current [1] 3613
cuts [1] 6715
D DC [3] 1112022
Heritage Reporting Corporation Sheet 2 bigger - DC
85Official
danger [1] 525
dangerous [1] 597
data [1] 7221
daughter [1] 525
day [5] 2819 40814 63723
days [4] 4119 461821 5911
deal [8] 422425 4310 5622 596
6824 7621 771
deals [1] 5517
dealt [3] 173 4112 4513
debating [1] 743
decent [1] 366
decided [3] 610 121213
decision [3] 2122 4110 5912
decisions [1] 5423
deemed [1] 5616
deems [1] 4722
defend [1] 2423
deference [2] 4118 575
defies [1] 393
definite [1] 356
definitely [1] 209
deliberations [1] 2418
denied [1] 7215
denigrating [1] 166
denigration [1] 684
denominator [1] 7219
Department [3] 120 761 7916
departments [1] 691
depending [1] 6312
depends [1] 7816
described [3] 811 2614 535
designated [2] 518 7114
despite [1] 1214
detail [3] 1020 274 7525
detailed [3] 101825 1110
details [1] 775
determination [2] 815 791
determine [4] 424 78 819 7817
determined [1] 714
determines [1] 766
developing [1] 5722
development [1] 7317
difference [2] 2724 631
different [10] 822 3512 4016 53
16 5511 6622 6721 707 744
816
difficult [2] 1716 581
diplomatic [5] 324 18121518
3313
direct [3] 5415 5534
direction [2] 5512 685
directly [6] 5010 512323 52125
5413
disagree [1] 4610
disagreed [1] 813
disavowing [2] 63618
disclaimed [1] 6223
discretion [1] 472
discriminating [1] 605
discrimination [17] 394 401722
4825 49423 502 5917 60913
22 612 6324 651520 676 794
disease [1] 3119
dislike [1] 2117
disparage [1] 7025
distinctions [1] 8024
distinguish [1] 1514
distribute [2] 8020 812
district [1] 7318
Doe [1] 88
doing [8] 63 229 2514 5015 54
519 791218
domestic [2] 1913 6710
DONALD [2] 13 35
done [9] 1924 2412 267 354 44
21 608 6628 7422
doom [1] 4615
dot [1] 1612
down [4] 256 6710 6912 7319
dressing [3] 35921 7911
drivers [3] 696 741019
dropped [1] 46
duty [2] 276 5625
duty-bound [1] 2423
E earlier [2] 2713 687
easily [1] 6224
easy [1] 197
economic [1] 463
economics [1] 5323
effectively [1] 281
eight [1] 6519
either [2] 1112 265
elected [2] 162 2819
eligible [3] 801621 811
embodies [1] 713
embodiment [1] 2813
embraced [1] 6225
emergency [5] 4023 4115 5710
59813
emerges [2] 161416
employed [1] 3123
employer [1] 6516
enacted [1] 4322
encompasses [1] 6513
end [6] 162022 2314 4557 46
22
ends [2] 4614 478
engaging [1] 825
engineers [2] 532224
enough [4] 415 68 583 775
ensure [2] 2623 7911
enter [7] 1617 2114 409 6220
8013 81910
entire [1] 810
entirely [1] 544
entitled [1] 6525
entity [1] 6312
entry [6] 314 414 399 4013 44
11 605
equal [1] 6525
Equality [2] 523 7211
equipped [1] 7016
ESQ [2] 122 26
essentially [3] 714 1325 8015
establish [1] 4517
established [1] 3116
Establishment [12] 1320 1914
206 2121018 2225 4924 68
1112 6912 7020
ET [2] 147
evaluating [1] 7014
evaluation [1] 267
even [20] 1310 17916 19811 25
11 4120 4716 5319 553 5824
5910 6621 679 6820 691522
73113 7610
everybody [2] 2123 6524
everyone [1] 7118
everything [2] 2725 711
evidence [2] 6624 7223
exact [4] 3616 4217 5314 5517
exactly [12] 625 266 4313 4522
535 57515 62817 638 64221
example [14] 86 4024 455 515
24 522 5521 587 629 6515 67
17 6815 747 771
examples [2] 312 5313
exception [7] 92123 1120 3624
7118 761417
exceptions [2] 302023
exclude [2] 2914 6720
excluded [6] 910 2017 3220 33
1217 7210
exclusion [2] 127 1625
exclusions [1] 803
exclusively [2] 661518
executive [23] 715151618 14
10 23712 24814 2813 391 46
15 471415 5311 5921 602 61
16 621112 69923 7421
exercise [4] 206919 2218
exercised [1] 5311
exert [1] 3313
exerts [1] 324
exigency [1] 572
expect [1] 2424
explore [1] 420
expressing [2] 510 356
extensive [1] 151
extent [1] 4311
extra [2] 3922 755
extreme [8] 514 1919 205 2314
17 255 31912
eyebrows [1] 656
F face [1] 252
facial [1] 2510
fact [8] 10311 133 2623 6512
6714 6919 7913
factors [1] 5515
facts [1] 1620
factual [1] 583
fail [1] 405
failed [4] 315 914 301 3924
failing [1] 3918
fails [1] 99
failure [1] 96
fair [1] 55
faith [3] 277 502 6721
fall [7] 323 924 1312 32618 43
24 6617
falling [1] 3412
falls [3] 44 3814 6615
familiar [1] 775
families [1] 3419
family [5] 2212 3119 4566 53
18
far [5] 1413 3217 4121 513 59
15
fast-moving [1] 4024
faster [1] 3923
father [1] 2018
favor [1] 1510
federal [1] 7319
fell [1] 920
few [4] 326 7110 733 7521
final [1] 8114
find [4] 244 351616 7123
findings [1] 6018
finds [1] 4411
fine [3] 2521 2925 7615
fine-grained [4] 4524 468 4818
5020
finish [1] 1714
fire [2] 2318 6517
first [21] 14310 2421 272 283
3225 39614 427 4317 4721
556 6021 619 671622 699 76
614 801317
fit [1] 656
five [6] 3124 64131313 75416
flat [7] 4314 4616 4817 55220
564
flatly [3] 59316 602
flexible [1] 418
Focus [1] 321
folks [1] 5225
follow [1] 178
following [1] 312
fomenting [1] 591
footnote [1] 3614
force [1] 4316
forces [1] 6920
forecloses [1] 1517
foreign [8] 42 825 106 129 31
15 462 8018 821
forever [1] 6221
Forge [2] 212225
forget [1] 5610
form [1] 1916
forth [2] 618 721
forward [2] 132224
founding [1] 6718
four [1] 7814
Fourth [1] 263
FRANCISCO [117] 119 239 37
810 417 616112225 91218
10172124 115818 1231624
13418 142122124 1518 164
1821 171323 182924 1925
2081923 21321 228141722
2310162124 243111519 268
Heritage Reporting Corporation Sheet 3 danger - FRANCISCO
86Official
151825 27172022 28223 292
3021 3110132125 32381315
2225 334811182225 3447
1025 35101422 361581012
1925 3731320 381920 7517
19 7623 7731122 7849 797
1524 8049
frankly [1] 377
free [7] 2069101924 221818
freedom [1] 6523
friend [5] 395 4319 4615 532
623
full [1] 1520
fundamental [5] 2811 296 6522
713 7418
future [2] 161 1814
G game [1] 1325
gas [1] 5425
GEN [3] 119 239
General [127] 119 3810 417 57
23 616112225 91218 1017
2124 1125818 1231624 134
1618 142122124 1518 16418
21 171323 1825924 1925 20
281923 21321 228141722
23310162124 243111519 25
25 268151825 2713172022
28223 292 3021 31101321
25 323813152225 334811
182225 34471025 35101422
3615810121925 3731320
38191920 624 75161719 76
23 7731122 7849 79571524
8049
Generals [1] 6824
George [1] 6719
gerrymander [1] 6614
gets [1] 162
getting [4] 611922 731 7414
GINSBURG [4] 48 445 762125
give [8] 711 86 151225 5124
569 6821 7223
given [10] 917 1413 1718 1825
1915 241325 3219 691819
gives [2] 616 2224
giving [3] 311 539 606
goodness [1] 7725
GORSUCH [14] 5025 511820 52
81417 677 73258121622 74
2
got [4] 2714 357 4334
gotten [2] 721824
governed [1] 8014
government [14] 825 92 109 12
1523 1322 1524 222 264 278
10 3520 514 7823
governments [2] 3314 3714
governs [2] 8020 812
great [4] 248 274 812124
greater [1] 5910
greatest [1] 5012
greenhouse [1] 5424
ground [3] 223 401 5723
grounds [2] 624 6913
group [2] 5525 8021
guess [2] 1417 542
guidance [3] 3424 352 721
H Half [2] 4616 476
Hamdan [3] 4113 577 5915
hand [1] 1818
happened [1] 776
happens [2] 1718 4621
happy [1] 7512
harbored [1] 1710
hard [1] 1520
hardship [3] 31789
harkens [1] 699
harmed [1] 5123
harmful [2] 824 95
harmonize [1] 4425
Harvard [1] 3419
hate [1] 2818
hateful [2] 281820
hatred [1] 167
HAWAII [4] 17 36 5125 7224
head [2] 23812
hear [1] 33
heard [7] 1523 39519 453 4614
532 733
hearing [1] 3519
heart [6] 179 181921 2119 59
24 6716
hearts [3] 179 182021
heated [1] 2617
heightened [1] 514
help [4] 421 721 87 2523
herself [1] 7618
hire [1] 2318
history [6] 824 1025 1111 303
4
holds [1] 1814
holistic [1] 914
home [2] 811 7823
Homeland [1] 313
honestly [2] 176 2724
Honor [38] 417 61319 71 810 9
12 1018 11511 12325 1318
1621 1715 1810 19621 2010
214922 2420 2625 28324 32
923 36125 3810 4520 507 77
3 784 79715 8049
Honors [1] 7522
hoping [1] 7814
however [3] 419 113 2513
humanitarian [2] 1121 464
hypothetical [15] 151323 173
187 191620 205 2323 3812
412223 4223 437 4912
I is [1] 1613
ID [1] 433
idea [1] 454
ideal [2] 81 303
identified [2] 5518 5713
identify [1] 824
identifying [2] 4219 4811
III [1] 136
illustrate [1] 87
illustration [1] 5012
image [1] 464
imagine [7] 2913 412425 5611
19 598 613
imbued [1] 128
immediate [1] 419
immigrant [3] 5923 8011 817
immigrants [3] 11161719
immigration [10] 412 318 4518
4911 67151720 74920 752
impact [1] 4915
impacted [2] 52125
impacts [1] 4919
impediment [1] 4117
implement [3] 422 721 815
important [7] 1324 531 5923 61
15 696 7011 724
importantly [2] 517 6914
impose [3] 617 103 457
imposed [3] 2522 609 6614
imposes [1] 91
imposing [1] 8119
improve [1] 718
impulse [1] 742
in-person [3] 434 5521 562
INA [11] 42225 618 721 816 45
19 5017 5322 76812
inaccurate [2] 3912 561
inadequate [1] 5617
inadmissible [2] 76911
including [9] 320 155 251819
2917 3911 4217 476 8014
incomplete [1] 239
inconsistent [2] 523
indeed [1] 591
independent [1] 2622
indicates [1] 4624
indication [1] 5510
individual [4] 311 781522 806
individualized [4] 3915 4225 46
8 595
individuals [2] 78 322
ineffective [1] 2912
infected [1] 6911
inference [2] 66713
infiltration [1] 5613
information [20] 31625 423 77
23 81319 97 302 3315 3517
3913 407 414 5617 5825 78
1317
inhibition [1] 6219
initial [1] 253
injunction [5] 217 2223 73910
24
injury [1] 2124
INS [1] 2216
instances [2] 734 7715
Instead [5] 3921 4617 4817 62
25
intelligence [3] 406 414 428
intelligent [1] 815
intelligently [1] 7825
intended [1] 7711
intention [1] 8119
interests [4] 1121 315 701115
international [1] 6711
interpretation [1] 604
interrupt [1] 412
interview [4] 435 5522 562 71
13
introduced [4] 4120 421011 49
20
introduces [1] 426
invidious [1] 668
involve [1] 1625
Iran [2] 94 6424
Iraq [3] 923 1010 2917
iron [1] 7424
irrelevant [2] 2822 291
irrespective [1] 147
Islam [1] 8123
isnt [5] 3520 3813 4710 7119
25
Israel [4] 1617 1718 181516
issuance [3] 495 5918 8010
issue [10] 1219 16101011 4911
5511 7313 8171113
issued [7] 54 89 1110 4716 78
22 792025
issues [6] 126 283 533 63518
774
item [1] 4510
itself [5] 2910 69819 713 7325
J Jane [1] 88
Jews [2] 166 242
job [1] 2515
join [1] 2213
joined [1] 576
Judge [2] 4022 612
judges [2] 2623
judgment [6] 43 4524 4717 48
22 7019 8019
judgments [4] 4019 4318 5020
5312
judicial [1] 1620
jump [1] 664
jurisdiction [1] 136
jurisdictional [5] 122413 133
533
jurisprudence [1] 1914
Justice [217] 120 3310 48 56 6
272023 9817 10111922 112
791525 12111721 1311516
19 1431722 151222 16519
171122 18151125 193 2024
1521 21115 2259151921 23
31117222225 2441216 2525
269131619 2712182123 28
1625 30691122 31111422 32
1411141624 3326101620
23 3425812 351111523 363
Heritage Reporting Corporation Sheet 4 FRANCISCO - Justice
87Official
69111720 372111822 382
17182125 404 41182024 42
5 432124 44346813 4515 46
111723 471320 4861020 49
6131421 5015212325 5118
20 52381417 5421218 5611
1924 575619 586121620 60
1220 616101720 6218 63414
1722 642672024 6521221
669 677 68618 6924 709 715
72815 73258121622 742 75
48142024 762125 7791323
786 79591022 8017 824
justiciability [1] 137
justifications [1] 663
K KAGAN [26] 131619 1431722
151222 16519 171122 1815
1125 193 2613 2712182123
5023 5421218 709
Kagans [1] 2323
KATYAL [79] 122 26 38212224
4015 41711 42413 4323 441
1218 4520 46131925 47325
489 49291725 504725 511
141922 52131620 5431117
21 561821 574 585151922
6020 618111922 6222 638
1620 64171923 6514 669 67
713 68612 693 701017 7279
733711152124 75611
keep [3] 241 258 4215
KENNEDY [19] 10111922 204
1521 2220 281625 461723 47
1320 48610 5624 575 807
Kennedys [1] 119
kept [1] 264
kill [1] 4011
kind [8] 142022 1612 186 1913
5415 5924 7012
kinds [1] 165
King [1] 6719
knock [1] 6114
knows [4] 181319 3525 7823
L land [1] 221
language [1] 4325
laptop [1] 4920
large [1] 5922
later [2] 4119 5911
latest [1] 6211
Laughter [5] 188 3411 423 757
10
LAVAS [1] 4023
law [4] 314 3720 403 752
lawfulness [2] 3723 724
laws [2] 411 318
layer [1] 519
lays [1] 273
learns [1] 811
least [1] 1213
leave [1] 512
left [2] 3015 6519
legality [1] 378
Legislation [3] 3923 4121 422
legislative [1] 4117
legitimacy [1] 2511
legitimate [1] 1322
Lemon [2] 67925
less [1] 3112
letters [1] 7225
level [2] 423 77
lies [1] 4316
life [1] 7214
light [1] 5722
likelihood [1] 5525
limit [3] 51 4423 4512
limitations [1] 6017
limited [1] 7312
limits [4] 420 64 545 7421
line [4] 107 2524 4510 8112
lines [1] 699
Lisa [1] 3420
list [10] 47 911 3115 64141625
665610 7720
listed [1] 919
lists [3] 77151724
litigants [1] 266
little [2] 613 141
local [1] 2817
long [3] 415 577 678
long-term [2] 3117 601
longer [2] 101419
look [16] 724 2622 3519 4113
4715 552 6238 6510 661220
671 6822 7021 801
looked [7] 5713 624 3022 6420
7919 805
looking [1] 6823
lot [5] 612 145 167 771921
love [1] 8122
low [1] 916
lower [1] 743
Lukumi [3] 659 682 7024
M made [7] 1215 14912 286 689
811820
main [1] 720
maintain [1] 717
majority [6] 31920 251920 29
15 491
Mandel [18] 1321 1410131822
158141619 16192223 17116
201125 2511 2621
Mandels [1] 1723
many [5] 3013 7255 812222
mark [1] 2811
marks [1] 296
material [1] 261
matter [5] 114 1917 259 297 72
21
mayor [1] 2817
McCreary [3] 159 6399
mean [9] 1820 412 4824 5720
6215 6411 6715 6810 814
meaning [1] 299
means [2] 144 6514
meant [2] 421 103
measures [1] 5615
medical [1] 3421
meet [4] 511 1420 331820
member [3] 2425 251 3119
members [2] 1610 2213
mentioned [2] 49 5616
merits [4] 1214 1312 514 537
message [2] 2124 224
met [1] 321
might [13] 620 181314 2218 26
12 356 4912 5023 511 5222
584 655 7413
migration [1] 458
military [1] 4821
million [2] 325 3618
millions [2] 6733
minimum [11] 316 423 7722 8
218 96 30123 7816
minutes [2] 75516
misunderstanding [1] 4912
moment [1] 7121
month [1] 413
months [1] 488
most [18] 1018 1110 1324 2912
25 352 361313 37141416 53
1 5922 6115 6421 6914 7015
7225
move [3] 107 2523 7214
moved [1] 6224
moves [1] 4212
much [8] 1120 2025 285 446 46
7 6620 71119
multi-agency [3] 312 1921 29
22
Muslim [19] 321 251820 2911
1315 4911619 6410121416
17 65314 663 811922
Muslim-majority [2] 156 2916
Muslims [5] 2715 6421 661819
8120
must [4] 2418 3111 325 7411
N narrow [1] 419
nation [1] 5924
national [14] 43 520 105 1121
129 1323 176 184 571 7011
1518 8019 821
nationality [7] 39424 401721
4315 59318
nationality-based [4] 609 611
793 8023
nationals [4] 317 40813 4415
nationwide [3] 217 2223 739
naturalization [1] 7411
nature [1] 102
nay [1] 416
NEAL [3] 122 26 3822
near [1] 7316
necessarily [1] 4711
necessary [4] 37911 472224
need [6] 420 1717 2622 304 31
20 6113
needed [7] 31725 423 77 819
781217
needs [1] 544
negative [2] 2124 226
Neither [2] 74 4212
neutral [6] 154 1923 2119 2517
292324
never [7] 359 394 4120 5021 72
18 76916
new [4] 3512 4517 5713 7317
next [3] 71 63623
Ninth [2] 262 643
nobody [2] 3422 3525
NOEL [5] 119 239 38 7517
non-immigrant [2] 81811
non-politically-correct [1] 6917
non-reviewability [2] 12114
none [1] 4716
Nope [1] 701
nor [1] 75
normal [1] 3220
nothing [8] 3717 461321 478
493 5713 6023 783
notice [1] 3524
noticed [1] 3018
number [11] 157 2522 329 34
15 361314 6524 6714 694 72
9 744
numbers [2] 3313
O oath [3] 28724 295
objections [2] 6616 7110
objective [4] 621 645 6625 70
22
observer [7] 621 6458 653 66
25 679 7022
observers [1] 1823
obviously [2] 719 7324
occupations [1] 5321
occurred [1] 6825
offer [1] 4312
office [2] 288 3622
officer [3] 7661318
officers [2] 764 7916
official [2] 7024 7113
officially [1] 7114
often [3] 3716 7220 8018
Okay [11] 3114 332323 3412 35
15 3718 5412 6123 755613
omits [2] 319 2915
Once [5] 814 1321 2620 477 81
1
one [39] 41113 52021 915 10
13 114 1220 13524 1616 17
19 2215 2314 278 2913 3015
3312 358 373 4013 4218 51
24 6015 6220 6311 6422 6522
6714 694 71811 7210 7716
7969 801020 8123
ones [3] 518 6511 718
only [17] 322 414 1116 1519 21
Heritage Reporting Corporation Sheet 5 Justice - only
88Official
13 2914 317 329 3423 3524
4218 5514 626 651317 661
6812
opinion [3] 357 577 7417
Opinions [1] 288
oral [5] 114 225 38 3822
order [31] 91 1411 2425 253 29
1921 30181923 3314 3724 39
1920 4614 47714 4822 539
5921 602 6116 621112 655
13 698 712 725 7421 7812
orders [5] 2917 4616 47615 69
10
ordinary [1] 7023
organization [1] 812
other [29] 323 75 99 105 149
311724 3220 3523 416 4319
4424 4525 4714 5510 5615 58
9 656919 663 671525 6913
703 7120 7512 76811
others [2] 915 741
Otherwise [3] 2124 2210 767
ought [1] 4822
out [13] 242 258 27311 2814 35
1616 3618 588 6114 66411
723
out-of-the-box [1] 186
outcome [1] 2417
outer [1] 420
outgrowth [1] 6910
over [5] 1325 167 3615 4723 80
12
overall [1] 915
overwhelmingly [1] 1510
owes [1] 279
own [2] 6816 694
P packed [1] 612
PAGE [6] 22 3614 5011 555 62
8 7212
palsy [4] 527 7212 77216
parameters [1] 516
Parkinsons [1] 7716
PARS [2] 523 7211
part [7] 2925 59222223 601 61
15 7016
participated [1] 692
particular [15] 1016 2117 2589
408 4416 5614 57212225 58
314 664 6919 777
parties [2] 517 7313
parts [1] 7612
party [1] 5224
pass [1] 4114
passed [1] 156
past [4] 522 822 2917 503
people [32] 20121617 225 31
15 32510 3415 355524 3634
6 375 4221 4415 5523 5925
67420 703 7120 7211725 76
11 771720 8016 8118
peoples [1] 802
percent [6] 407 5920 6115 64
17 661919
percentages [1] 7222
perennial [2] 4812 5716
perhaps [2] 5817 717
period [3] 415 244 4722
permanent [1] 4518
permission [1] 523
perpetual [4] 444 4521 4612 48
5
perpetuated [1] 444
person [6] 4325 7114 767 78
1820
personally [2] 517 7912
persons [1] 5110
Petitioners [6] 1521 2410 39
7518
pick [1] 7425
pieces [1] 725
place [6] 2116 2319 7911 8013
1725
placed [1] 3916
plainly [1] 252
plaintiff [1] 5222
plaintiffs [2] 2125 536
please [4] 311 3010 3825 7520
point [23] 1624 1820 294 367
419 4215 4317 446 452 538
5415 6022 66111 68414 718
74818 7814 793 808 8114
points [1] 7522
policy [15] 43 106 129 2319 39
3 4019 4318 451821 462 50
10 5312 6310 8018 821
political [1] 128
polity [1] 601
poorest [1] 746
population [4] 491619 641518
position [1] 5017
possibility [1] 386
possibly [2] 216 2913
potentially [2] 201320
power [11] 4418 1313 4419 45
5 5310 541 5811 607 6720 74
23
practice [1] 2120
praised [1] 8123
precedential [1] 1220
precludes [1] 5710
predominantly [3] 64121316
preference [2] 456 5321
preferences [1] 5318
preliminary [1] 2621
prescient [1] 582
prescribed [1] 558
present [8] 2059 5191221 52
101119
presidency [1] 168
PRESIDENT [86] 13 345 410
14 5913 63916 712 934 11
13131822 1313 162 1758 18
6 191 2381223 257 271525
3513 3712 3834 40612 4217
101214 441121 454 472 487
11212224 4918 508918 5310
101523 54591922 561622 57
321 5810 599 607 6271216
23 632 643 6817 6951520 70
158 712 742224 811517
Presidents [8] 313 44 2421 38
15 4114 69721 704
presidential [1] 6018
Presidents [2] 4716 578
press [2] 141 6214
pressure [8] 324 91 104 1815
252223 3313 7811
presumption [1] 2710
prevent [1] 545
previously [2] 311623
principal [4] 1319 3312 376 78
10
principally [1] 298
private [4] 179 28712 625
pro-Christian [1] 223
probably [2] 3414 7415
problem [16] 261 3413 398 42
1719 481512 497 5315 5517
571216 6925 71419
problems [3] 323 2521 5721
proc [1] 1610
procedures [1] 5817
proceeding [1] 513
process [27] 51515 810 1458
1419 152 1915 2623 274 29
20 3915 5714 6815 69215 72
1020 76123 78161823 7914
17
processes [1] 3221
proclamation [55] 318 42 54 7
24 81721 92022 102121525
111023 1311 14615 161216
191718 211116 231 273519
2910 3313 381114 451617 53
11 5514 611 6217 635718 64
8 6972021 70410 7422 7610
131516 7810 7925 81525
proclamations [1] 421
proclamations [5] 823 1013 11
3 3716 6220
professors [1] 7718
Program [5] 725 56510 596
promulgated [2] 6212 6311
propose [1] 4314
protect [3] 41 2423 304
protest [1] 6718
provide [8] 31625 96 301 3315
3912 566 7812
provides [1] 72
providing [2] 5525 5825
provision [6] 1120 498 5420 76
1920 778
provisions [2] 459 768
provokes [1] 166
publication [1] 7219
publicize [1] 7125
publicized [2] 3621 374
publicly [1] 6511
publish [1] 762
purely [2] 6025 6711
purport [1] 4517
purports [1] 2919
purpose [5] 721 668 701925 78
10
purposes [4] 2216 3312 6114
751
pursuant [2] 89 7822
pursued [1] 215
pushes [1] 431
put [6] 1815 2319 351 4414 66
5 721
puts [5] 161922 6817 695 749
Q qualify [1] 722
qualms [1] 427
question [23] 612 119 1711 18
2122 3015 346 353 3810 41
16 51210 543 5724 61617 62
18 6315 7012 7122 735 7525
8012
questions [3] 5725 751223
quick [1] 7521
quite [4] 922 1915 326 7110
quotas [1] 6010
R race [1] 259
raise [1] 656
raised [1] 1222
raises [2] 6613 735
rate [1] 1524
Rather [1] 2514
rational [3] 17171824
re-upped [1] 483
reach [1] 514
reached [1] 537
read [8] 413 1418 307 3416 44
232324 7713
reading [1] 648
Reagan [8] 94 1012 113 3019
35413 3712 383
Reagans [1] 1113
real [1] 7913
real-time [1] 85
really [14] 720 81721 125 1422
1516 1821 439 4415 6617 71
24 7317 7521 814
reason [9] 132324 1423 2149
3219 339 4511 6822
reasonable [8] 1822 621 6458
652 6625 679 7022
reasons [11] 181315 3116 392
401522 4423 656 7412 802
reassessment [2] 4624 475
REBUTTAL [4] 28 3819 7516
17
receives [1] 289
recent [1] 522
recently [1] 46
recognition [1] 8115
recommendation [3] 153 183
1922
recommendations [2] 319 16
Heritage Reporting Corporation Sheet 6 only - recommendations
89Official
11
recommended [2] 314 2523
red [2] 5011 629
reenter [2] 63723
reexamined [1] 4618
referring [1] 524
reflect [1] 822
reflects [2] 42 101
refuse [1] 251
refused [1] 265
regard [2] 4825 7319
regime [1] 597
regularity [1] 277
rejected [2] 3920 4313
rekindled [1] 628
relatively [1] 197
relatives [1] 2017
relief [1] 7313
religion [6] 211720 259 6525
684 7025
religious [7] 226 651523 6613
1416 675
rely [1] 298
remedy [1] 736
remember [2] 3616 6816
removed [2] 4118 516
repetitive [1] 3013
reply [2] 3612 555
report [2] 462022
reporting [4] 823 402 479
represent [4] 981318 7913
representing [1] 673
required [3] 132 402 4711
requirement [2] 4710 5521
requires [1] 3721
resentment [1] 167
reside [1] 3118
residence [1] 8025
residual [1] 4214
resign [1] 251
respect [13] 945 2120 4020 42
23 4316 529 5513 5614 5825
6124 711820
respond [2] 418 7524
Respondents [5] 1823 27 21
12 3823
response [2] 1320 376
responses [5] 2420 271 3223
3610 371
responsible [2] 411 2413
rest [3] 451 5410 6018
restrictions [3] 315 617 6717
resulted [1] 152
reticulated [3] 4524 55816
reverse [1] 822
review [10] 312 519 1620 1922
2419 2922 5625 5714 6915
reviewability [1] 1219
reviewed [1] 262
rid [2] 531919
rights [2] 51811
rise [1] 739
risk [2] 176 435
riskiest [1] 79
ROBERTS [38] 33 1125 121121
131 309 381821 404 411824
425 4820 4961421 501521
5719 58121620 6012 61610
1720 6218 634141722 7548
14 824
robust [2] 4310 5622
rule [2] 127 7411
rules [1] 8020
run [1] 508
S safe [2] 4215 488
safest [1] 74
sake [2] 19912
Sale [4] 1212 53233
same [15] 920 1410 2824 349
3547 39819 5214 571215 63
10 658 685 6911
sanctions [2] 9125
satisfies [2] 1312 5515
satisfy [3] 171621 3918
save [1] 7213
Savings [1] 551
saying [13] 63 226 4025 426 46
12 5413 635 683 701221 71
10 787
says [28] 16516 237 241 3024
24 319 35824 4115 462020
47721 48241324 5224 5917
604 69810 7010 7217 7410
7724 821
scenario [1] 256
scheme [2] 55916
scholars [3] 2211 3418 7718
score [1] 916
scrutiny [1] 1717
seat [3] 696 741019
second [9] 1216 293 376 3917
557 6724 698 7813 796
second-guess [1] 7018
Secondly [1] 255
secretaries [1] 1924
Secretary [3] 314 524 7115
section [2] 547 749
Security [12] 313 43 105 129
1323 176 184 70111518 80
19 822
see [8] 63 1419 261 3214 367
4415 7710 801
seek [1] 3210
seeking [1] 399
seeks [1] 824
seems [5] 2724 3414 5414 581
666
seen [2] 10815
send [1] 3519
sense [6] 823 5520 5635 7014
7416
sent [1] 223
Sentelle [2] 4022 613
sentences [1] 1014
September [1] 8118
seriously [1] 5818
set [5] 6517 716 1620 2711
sets [1] 8015
seven [1] 322
several [2] 4525 5114
severe [1] 5614
shall [2] 1617 5917
share [3] 265 3016 741
sharing [1] 428
shes [1] 816
shouldnt [1] 623
show [1] 433
shows [3] 8814 7820
side [5] 3523 4319 6056 717
sides [1] 787
significant [2] 2811 3415
similar [1] 1123
simply [2] 52 8113
since [6] 720 1919 2914 678 74
23 7921
single [2] 5517 7624
situation [10] 58 246 3812 40
1224 536 561220 584 599
situations [1] 5722
six [1] 487
slightly [1] 816
small [5] 2521 2925 329 5320
5921
so-called [2] 2911 457
society [1] 673
software [3] 532224 589
Solicitor [1] 119
solid [1] 407
solution [4] 398 4816 5316 55
20
solutions [1] 557
solved [1] 5314
Somalia [2] 922 364
somebody [1] 765
somebodys [1] 8012
someone [1] 425
son [1] 2018
sorry [3] 56 346 8116
sort [1] 5710
sorts [1] 5319
SOTOMAYOR [37] 56 62720
23 9817 112715 202 21115
22591521 23311172225 24
41216 2525 2691619 646 68
618 6924 795922 801
Soviet [1] 4814
space [1] 5314
special [2] 512 72
specialty [1] 5321
specified [1] 397
speech [2] 2011 2219
speech-type [1] 2024
spoken [1] 6217
spokesman [1] 6214
sponsor [3] 436 5824 7115
sponsors [3] 3911 5524 568
squarely [1] 4325
staff [2] 169 627
stage [1] 2621
stake [1] 7012
standard [4] 1724 1917 251217
standing [2] 2123 221
started [1] 144
starting [1] 1624
starts [1] 3015
State [13] 524 1423 3911 436
511725 5524 567 5823 7115
7224 761 7915
statement [2] 258 3616
statements [23] 1910 285614
1820 298 5011 60141623 62
24524 63619 649 6623 688
92020
STATES [20] 11416 36 316 39
11 409 4519 465 511619 52
23 536 56713 5717 591 7213
747 753
statute [16] 53 434 4424 4720
493 5019 54710 5711 6014
16 6710 6817 718 7319 7425
statutes [1] 494
statutes [3] 618 76 4712
statutory [4] 58 511 538 5419
stepped [1] 5314
sticks [2] 3924 405
still [2] 4723 716
stop [2] 412 796
stopping [1] 227
stops [1] 1423
Stormans [2] 661221
strike [5] 482323 4910 6710 73
19
strong [3] 1511 2710 667
stronger [2] 1413 719
struck [1] 6912
struggled [1] 681
students [2] 2212 7720
studying [1] 3117
stuff [1] 624
subject [4] 1210 248 761417
subjected [1] 925
submitted [2] 8257
substance [4] 1414 1916 275
2920
succeed [4] 2014 52151821
successful [2] 45 109
Sudan [1] 2918
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7
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1719 7717
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6914 792
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292 3423 3524 36210 3711
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2511 276 288 2924 3815 433
496892123 5325 7118 768
11
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21
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747 753
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21 7918
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21 817811
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1015 7612361920 7747 79
1417
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of information Not the ideal but the
minimum Are they reporting terrorism history
information Are they 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 visa 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
doesnt tell us
Once she shows up at the border we
cannot make an intelligent determination as to
whether or not shes admissible under the INA
And thats 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
that it seeks to identify harmful conduct that
a foreign government is engaging in and then
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it imposes sanctions in order to pressure that
government to change
Thats what President Carter did with
respect 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
JUSTICE SOTOMAYOR Can you represent
that no other country that -- that fails all
three of the criteria was excluded from this
list
GENERAL FRANCISCO Well Your Honor
what I can represent is that the -- the -- the
analysis was holistic It wasnt if you failed
any one or the others It was if your overall
score was sufficiently low
JUSTICE SOTOMAYOR So given -shy
GENERAL FRANCISCO 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 below -- below the baseline but was not
subjected to sanctions
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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 weve now seen has been
successful as with the case of the government
of Iraq -- of Chad
JUSTICE KENNEDY In fact if you
compare this proclamation to the Reagan and the
Carter proclamations which I think were one or
two sentences this is longer than any
proclamation that -- that Ive seen in this
particular area
GENERAL FRANCISCO This is Your
Honor the most detailed 1182 -shy
JUSTICE KENNEDY Id say longer
detail -shy
GENERAL FRANCISCO Yes
JUSTICE KENNEDY -- is -- is a better
word
GENERAL FRANCISCO Yes This is the
more detailed 1182(f) proclamation in history
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It is not -shy
JUSTICE SOTOMAYOR General the
proclamations by Reagan and Carter however
were not as broad as this one
GENERAL FRANCISCO Your Honor they
were almost as broad but -shy
JUSTICE SOTOMAYOR And -- and -shy
GENERAL FRANCISCO -- to complete my
answer to Justice Kennedys 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 Reagans or President Carters
covered But its -shy
JUSTICE SOTOMAYOR And more -- and
more immigrants because Carters only applied
to certain immigrants not to all
GENERAL FRANCISCO President Carters
actually applied to all immigrants but then had
an exception much like the waiver provision
here for national interests and humanitarian
concerns So I think President Carters was
actually very similar to the proclamation here
And -shy
CHIEF JUSTICE ROBERTS Is your
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consular non-reviewability argument -- is that
a jurisdictional argument
GENERAL FRANCISCO Your Honor I -shy
yes I think it is a jurisdictional argument
And thats why I dont 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 to -shy
CHIEF JUSTICE ROBERTS I -- I thought
in Sale that we decided that this -- this
wasnt jurisdictional or at least decided the
merits despite the non-reviewability argument
that the government made
GENERAL FRANCISCO I think the second
thing that you just said Mr Chief Justice is
accurate The Court didnt address the
reviewability issue at all And so we dont
think its precedential one way or another
CHIEF JUSTICE ROBERTS Was the -- was
the argument raised in that case by the
government
GENERAL FRANCISCO Yes it was Your
Honor Actually you could -shy
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CHIEF JUSTICE ROBERTS So -- so its
an argument we would have been required to
address if it were in fact jurisdictional
GENERAL FRANCISCO I think so And
so I think one way you could understand it is
that it doesnt go to Article III jurisdiction
though it is a justiciability argument and we
would urge this Court to accept it because we
think its correct
But even if you dont think that its
correct we think that this proclamation
satisfies the merits because it does fall well
within the power of the President under
1182(f)
JUSTICE BREYER If youre about -shy
JUSTICE KAGAN May I turn General
to the constitutional claims in this case
GENERAL FRANCISCO Yes Your Honor
JUSTICE KAGAN And your principal
response to the Establishment Clause claim is
to cite Mandel and to say that once the
government comes forward with a legitimate
reason -- of course national security is the
most important reason one can come forward with
-- the game is over essentially And I just
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want to press on that a little bit
GENERAL FRANCISCO Sure
JUSTICE KAGAN So first I want to
ask whether that means -- you started off by
talking a lot about the process of this
proclamation But I -- I take it that that
argument would apply irrespective of what
process was used
In other words you would have made
the same Mandel argument to the first executive
order in this case or would you not
GENERAL FRANCISCO We would have made
a Mandel argument but it is far stronger given
that you have the process and substance upon
which this proclamation was based because
whatever you -shy
JUSTICE KAGAN Well I guess I wonder
why that is just because when I read Mandel
I dont see anything about process or you have
to meet a certain kind of bar
GENERAL FRANCISCO Uh-huh
JUSTICE KAGAN Mandel really is kind
of you state a reason and this Court stops
GENERAL FRANCISCO And I think that
that is right but I think that when you in
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addition to that have the extensive worldwide
process that we had that resulted in a
cabinet-level recommendation that applied a
neutral baseline to every country in the world
concluded that almost all the world including
almost all of the Muslim-majority world passed
that baseline but a tiny number of countries
didnt I think that whether you apply Mandel
or whether you apply McCreary that makes the
constitutional case in our favor overwhelmingly
strong Its a -shy
JUSTICE KAGAN So let me give you a
hypothetical and its just -- you know I
think that there are ways to distinguish Mandel
in this case but -- but -- but you know just
in terms of thinking about what Mandel really
forecloses here
GENERAL FRANCISCO And I -- because
Mandel there are only two cases in the area
and its -- its hard to understand the full
contours of it
JUSTICE KAGAN I agree So this is a
hypothetical that youve heard a variant of
before that the government has at any rate
but I want to just give you
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So lets say in some future time a -shy
a President gets elected who is a vehement
anti-Semite -shy
GENERAL FRANCISCO Uh-huh
JUSTICE KAGAN -- and says all kinds
of denigrating comments about 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 dot all the
is and they 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
GENERAL FRANCISCO Right
JUSTICE KAGAN Do you say Mandel puts
an end to judicial review of that set of facts
GENERAL FRANCISCO No Your Honor I
dont say Mandel puts an end to it but I do
say that in that context Mandel would be the
starting point of the analysis because it does
involve the exclusion of aliens which is where
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Mandel applies
If his cabinet -- and this is a very
tough hypothetical that weve 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 in his private heart of hearts
he also harbored animus
JUSTICE KAGAN Well the question is
GENERAL FRANCISCO I would also
suggest though -- if I could finish that Your
Honor -- that I think it would be very
difficult for that to even satisfy Mandel
rational basis scrutiny Id need to know what
the rational was Given that Israel happens to
be one of the countrys closest allies in the
war against terrorism its not clear to me
that you actually could satisfy -shy
JUSTICE KAGAN Well -shy
GENERAL FRANCISCO -- Mandels
rational basis standard on that unless it
truly were based -shy
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JUSTICE KAGAN Yes
GENERAL FRANCISCO -- on a
cabinet-level recommendation that was about
national security
JUSTICE KAGAN General Im -- lets
-- this is a out-of-the-box kind of President
in my hypothetical And -shy
(Laughter)
GENERAL FRANCISCO We -- we -- we
dont have those Your Honor
JUSTICE KAGAN And -- and you know
he thinks that there are good diplomatic
reasons and there might -- who knows what the
future holds that there might be good
diplomatic reasons to put pressure on Israel or
to say we want Israel to vote a certain way in
the UN and this is a way to better our
diplomatic hand and so this is what he does
And -- 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 think -shy
GENERAL FRANCISCO Right
JUSTICE KAGAN -- given this context
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in which this hypothetical President -shy
GENERAL FRANCISCO Sure
JUSTICE KAGAN -- is making virulent
anti-Semitic comments
GENERAL FRANCISCO Right And Your
Honor its a tough hypothetical but its why
I also think that this is a relatively easy
case because were 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 though we think that its
wrong that you applied some kind of domestic
establishment clause jurisprudence because
were 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 dont have the extreme
hypothetical that youre suggesting Your
Honor we do have a multi-agency worldwide
review and a cabinet-level recommendation that
applied a neutral baseline And this wasnt
done just by the cabinet secretaries but by the
agencies to every country in the world and
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concluded -shy
JUSTICE SOTOMAYOR Mr General you
just -shy
JUSTICE KENNEDY If -- if you have
that extreme hypothetical would that present a
free exercise or an Establishment Clause claim
or both
GENERAL FRANCISCO It could
definitely present a free exercise clause
challenge Your Honor just as you had a free
speech type claim in the Mandel case
And there would be people who could
bring that claim and who could potentially
succeed on that claim
JUSTICE KENNEDY And -- and the
people that could bring that claim I assume
were relatives of people that were excluded
father son
GENERAL FRANCISCO On free exercise
potentially I think all -shy
JUSTICE KENNEDY Yeah what about a
university
GENERAL FRANCISCO I think a
university could bring a free speech-type claim
under Mandel much -shy
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JUSTICE SOTOMAYOR Why not an
Establishment Clause claim
GENERAL FRANCISCO And -- and -shy
because Your Honor and the reason why I think
they havent pursued those types of claims is
because I dont think they would possibly
support the types of nationwide injunction that
theyre asking for
Your Honor the reason why I dont
think that they could bring an Establishment
Clause claim is because the proclamation
doesnt actually apply to the Respondents It
only applies to aliens abroad who have no
constitutional right to enter
JUSTICE SOTOMAYOR No but the claim
is that it -- that the proclamation is in place
because of a dislike of a particular religion
And I thought the Establishment Clause at its
heart is that we cannot be anything but neutral
with respect to religion or its practice
GENERAL FRANCISCO 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
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standing to challenge the land transfer from
the government to the Christian college on the
ground that it sent a pro-Christian or
anti-atheist message That -shy
JUSTICE SOTOMAYOR But these people
are saying that that negative religious
attitude is stopping them -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- 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
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR Which is one of
the purposes of the INS
GENERAL FRANCISCO And -- and thats
where they might have free exercise or free
speech claims along the type that Justice
Kennedy suggested -shy
JUSTICE SOTOMAYOR Well but I -shy
GENERAL FRANCISCO -- but which
couldnt support a nationwide injunction I
dont think that that gives them an
Establishment Clause claim when the
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proclamation doesnt actually apply to them
because -shy
JUSTICE SOTOMAYOR General today
can we go back to something thats 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 -- Im
summarizing in an incomplete way -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- 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 -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- not extreme
that he can hire or fire anyone he wants and
that he can put in place whatever policy he
wants
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR If we take Justice
Kagans hypothetical President -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- who basically
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says to his review committee I want to keep
out Jews -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- period find a
way Thats their charge
So in that situation why would the
actions of the committee whatever this is
Executive Committee not be subject to great
suspicion and to thorough review -- which
actually wasnt completely -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- done here -shy
given that they are responsible to the
executive -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- and theyve
been told what the outcome of their
deliberations must be
GENERAL FRANCISCO Sure And I have
two responses to that Your Honor
The first is that the Presidents
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
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cabinet member would refuse to comply or resign
in the face of a plainly unconstitutional
order 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 Mandel
standard
Here however you dont have anything
like that Rather you have the cabinet doing
its job through the agencies where they ask
the agencies to construct and apply 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 across the line
JUSTICE SOTOMAYOR General the
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problem is that I dont 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
the litigants or the courts exactly what was
done how what the evaluation and how -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- it was applied
to all those countries in the world
I understand some of the
confidentiality that might concern you but if
the backdrop is the way that Justice Kagan
described it -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- that -- that
heated -shy
GENERAL FRANCISCO Well I -- yeah -shy
JUSTICE SOTOMAYOR -- anti-Semitic
background dont you think that once you get
through the Mandel preliminary 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
GENERAL FRANCISCO Well Your Honor
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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
owes to another coequal branch of the
government there is a very strong presumption
that what is being set out there is the truth
JUSTICE KAGAN You -- you said
something earlier General I want to make sure
that I got it right You said if at the time
the President had said we dont want Muslims
coming into this country -shy
GENERAL FRANCISCO Uh-huh
JUSTICE KAGAN -- that that would
undermine the proclamation
GENERAL FRANCISCO Yes
JUSTICE KAGAN Did I get you right
GENERAL FRANCISCO Yes
JUSTICE KAGAN So I -- I think you
know honestly the difference here then seems
to be is everything that the President said
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effectively that
GENERAL FRANCISCO I think there are
two issues Your Honor 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 embodiment of the executive branch So
that those statements should be out of bounds
But for -shy
JUSTICE KENNEDY But suppose you have
a local mayor and as a candidate he makes
vituperative hate -- hateful statements hes
elected and on day two he takes acts that are
consistent with those hateful statements
Thats -- whatever he said in the campaign is
irrelevant
GENERAL FRANCISCO Your -- Your
Honor if he takes the same oath -shy
JUSTICE KENNEDY You would say
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whatever he said in the campaign is irrelevant
GENERAL FRANCISCO I would say two
things And that was the -- and the second
thing is the point I was about to turn to I
would say yes because we do think that oath
marks a fundamental transformation but I would
also say here it doesnt matter because here
the statements that they principally rely on
dont actually address the meaning of the
proclamation itself
This is not a so-called Muslim ban
If it were it would be the most ineffective
Muslim ban that one could possibly imagine
since not only does it exclude the vast
majority of the Muslim world it also omits
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 multi-agency worldwide review that
applied neutral criteria all across the world
and concluded under those neutral criteria
most of the world was fine but a small part of
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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
JUSTICE BREYER All right Can -shy
can I ask a more -- I did read I think almost
all the 80 briefs Now your time -- what do -shy
CHIEF JUSTICE ROBERTS Yeah dont
worry Please go ahead
JUSTICE BREYER All right All
right All right Almost 80 and I think I -shy
some were repetitive not too many And I
think I know the basic arguments but theres
one question Im left with and it starts with
an assumption which I think you share but I
want to be sure All right
I noticed that the Carter order and
the Reagan order both had case-by-case
exceptions
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER And I looked 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
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individual circumstances such as giving some
examples the following
And then they have to be no
terrorists Well thats the law anyway And
they -- they have to be in the interests of the
United States And there cant be undue
hardship which the only time the word
hardship appears in the immigration laws it
says extreme hardship
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER So undue must be
less than extreme
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER Okay So Im -- then
they have a list people with foreign contacts
previously established business reasons
theyve been here studying or other long-term
activity they want to visit or reside with a
close family member they have a disease or
something that they need -shy
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER -- treatment for
they -- previously been employed And there
are about five other things
GENERAL FRANCISCO Yeah
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JUSTICE BREYER All right Focus on
that class of individuals
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER Now in countries -shy
150 million people all together there must be
quite a few who have -- do fall within that
class So -shy
GENERAL FRANCISCO Well yes Your
Honor but theres only a small number of
people that seek to come into our country
JUSTICE BREYER Well thats what Im
asking about
GENERAL FRANCISCO Yeah
JUSTICE BREYER You see
GENERAL FRANCISCO Yeah
JUSTICE BREYER Thats now -- if you
-- you think -- now as far as were concerned
if they fall within that class there -shy
theres no reason given here why they should be
excluded other than the -- the normal
processes
GENERAL FRANCISCO Well a couple of
responses Your Honor
JUSTICE BREYER What
GENERAL FRANCISCO First in terms of
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the numbers -shy
JUSTICE BREYER Im not asking about
the numbers
GENERAL FRANCISCO Oh oh youre not
asking -shy
JUSTICE BREYER I want to ask about
GENERAL FRANCISCO So -- so in terms
of the reason -shy
JUSTICE BREYER Yeah
GENERAL FRANCISCO -- they should be
excluded one of the principal purposes of the
proclamation is to exert diplomatic pressure on
governments in order to get them to change and
provide us with the information -shy
JUSTICE BREYER So you think they
should be excluded
GENERAL FRANCISCO Not if they meet
the criteria for the -shy
JUSTICE BREYER Not if they meet the
criteria
GENERAL FRANCISCO -- for the waiver
JUSTICE BREYER Okay Okay So
theres -shy
GENERAL FRANCISCO Thats why we have
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-- thats why we have the waiver
JUSTICE BREYER Thats -- thats -shy
thats what I thought you would say
GENERAL FRANCISCO Yeah
JUSTICE BREYER Then I get -- can ask
my question Sorry
GENERAL FRANCISCO Yes
JUSTICE BREYER But I want to be sure
were the same wavelength
GENERAL FRANCISCO Yes
(Laughter)
JUSTICE BREYER Okay 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 theres the
business community complaining theres the
academic community there were 46 scholars at
Harvard there -- there are families in the
Lisa Blatt brief you know that -- that they
say we were trying to get medical treatment and
nobody told us about this and -- and theyve
only admitted two and theres supposed to be
guidance and -shy
GENERAL FRANCISCO Thats not true
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JUSTICE BREYER -- you havent put in
the guidance and -- and -- and the most there
are is 100 And so there is my question If
you have done the same thing that the Reagan
people did and the Carter people did then it
might be -- Im not expressing a definite
opinion -- but well youve got the same thing
here but if this is as one brief says just
window dressing and they never apply it -shy
GENERAL FRANCISCO Right
JUSTICE BREYER -- then you have
something new and different going well beyond
what President Reagan did
GENERAL FRANCISCO Sure
JUSTICE BREYER Okay So I want to
know how do I find out -- how do I find out
when there is not that information in the
brief do we have to -- can we have another
hearing Do we send it back Do we say look
the government of course thinks this isnt
window dressing -shy
GENERAL FRANCISCO Right
JUSTICE BREYER -- but the other side
says there are only two people no notice
nobody knows
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GENERAL FRANCISCO So Your Honor
two -shy
JUSTICE BREYER There are people in
Yemen there are people in Somalia -shy
GENERAL FRANCISCO Yeah
JUSTICE BREYER -- decent people
Business -- you see my point
GENERAL FRANCISCO Yes
JUSTICE BREYER Whats the answer
GENERAL FRANCISCO And two responses
JUSTICE BREYER Yes
GENERAL FRANCISCO Our reply brief
has our most -- most current number on waivers
and I believe the number at page 17 footnote
-- well its -- its over 400 I cant
remember the exact statement
JUSTICE BREYER All right Thats
400 out of 150 million
GENERAL FRANCISCO And then -shy
JUSTICE BREYER And -- and is it well
publicized in these countries that they know
all they have to do is go to the visa office
and say I understand the thing I want an
exception
GENERAL FRANCISCO No Your Honor
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and I have two -- two responses -shy
JUSTICE BREYER Yeah
GENERAL FRANCISCO -- to that One
is I dont know how well publicized it is but
I suspect that people understand how to get it
My second principal response is
though that frankly in terms of the
legality I think that the waiver is not
necessary although it is a very good thing
which is why -shy
JUSTICE BREYER Not necessary There
-- there you have President Reagan -shy
GENERAL FRANCISCO -- which is why
most -- which is why most governments dont -shy
which is why its -- its a good thing which
is why most of these proclamations often have
them But theres nothing in -shy
JUSTICE BREYER Okay So you want me
to consider -shy
GENERAL FRANCISCO -- the law that
actually requires it
JUSTICE BREYER Thats what you want
You want me to consider the lawfulness of this
order on the assumption that there is no
waiver
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GENERAL FRANCISCO I dont -shy
JUSTICE BREYER Which is not what -shy
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 here thats the -shy
thats the -shy
GENERAL FRANCISCO Right The answer
to my -- your question Your Honor is no I
dont want you to consider the proclamation on
the -- on the hypothetical situation that it is
what it isnt but I do think that the
proclamation as written and as applied falls
well within the Presidents authority under
1182(f)
Thank you Mr Chief Justice
CHIEF JUSTICE ROBERTS Thank you
General We will afford you rebuttal time
GENERAL FRANCISCO Thank you
CHIEF JUSTICE ROBERTS Mr Katyal
ORAL ARGUMENT OF NEAL K KATYAL
ON BEHALF OF THE RESPONDENTS
MR KATYAL Thank you Mr Chief
Justice and may it please the Court
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The executive order is unlawful for
three reasons It conflicts with Congresss
policy choices It defies the bar on
nationality discrimination something you never
heard my friend talk about And it violates
the First Amendment
Congress has already specified a
three-part solution to the very same problem
the order addresses Aliens seeking entry from
countries that dont cooperate with the United
States in vetting including state sponsors of
terrorism and countries that provide inaccurate
information
First aliens have to go through the
individualized 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 the order uses Congress rejected a
ban Instead it used carrots When countries
cooperated theyd get extra credit a track -shy
faster track for admission Legislation to use
big sticks like nationality bans failed
And third Congress was aware
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circumstances could change on the ground so it
required reporting to them so it could change
the law
CHIEF JUSTICE ROBERTS Well lets
take big sticks fail Lets suppose that the
intelligence agencies go to the President and
say we have 100 percent solid information
that on a particular day 20 nationals from
Syria are going to enter the United States with
chemical and biological weapons They could
kill tens of thousands of Americans
In that situation could the President
ban the entry of Syrian nationals on that one
day
MR KATYAL He could for two reasons
Theres two different arguments Theres the
nationality discrimination ban 1152 and then
theres you know whether or not this comports
with Congresss policy judgments
And with respect to both I think it
would It wouldnt be nationality
discrimination for the reasons Judge Sentelle
said in LAVAS when you have an emergency
fast-moving situation like the Syria example
youre saying
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CHIEF JUSTICE ROBERTS Well just to
stop interrupt you there I mean what if
its a week What if its a week a month from
now Thats what the intelligence information
is
In other words Im trying to -shy
MR KATYAL Right
CHIEF JUSTICE ROBERTS -- respond to
your point that it has to be an immediate
decision
MR KATYAL Yeah So I think you
know this Courts dealt with that in
Youngstown and Hamdan and said look you know
the Presidents going to get a pass absolutely
on you know what he says the emergency is
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 460 days on -- later
Mr Chief Justice Hes never even introduced
legislation about this So were so far from
that hypothetical well concede the
hypothetical
CHIEF JUSTICE ROBERTS Well imagine
-- imagine if you can that Congress is unable
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to act when the President asked for
legislation
(Laughter)
MR KATYAL Right
CHIEF JUSTICE ROBERTS And someone
introduces a bill saying lets authorize -shy
first of all the President may have qualms
about sharing that absolute intelligence
broadly but lets say theres a bill
introduced to say lets authorize the President
and theres a bill introduced to say lets
block the President and neither bill moves
MR KATYAL 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 -- theres only one
problem hes identifying which is countries
not cooperating
Hes not talking about people coming
in or something like that like your
hypothetical And with respect to that
Congress has said heres how we deal with it
We deal with it with the individualized vetting
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system which pushes all the burdens on a
person coming in Thats 1361
Youve got to show biometric ID under
the statute Youve got to have an in-person
interview if theres any risk that the person
is from a country thats a state sponsor of
terrorism like your hypothetical or anything
else
So Congress has really said in a
robust way heres how we would deal with it
And to the extent countries arent cooperating
we offer carrots
Congress rejected exactly what theyre
trying to propose here which is a flat
nationality ban And thats where I think the
force of our argument lies with respect to the
first point which is this is countermanding
Congresss policy judgments
My friend on the other side actually
in his brief -shy
JUSTICE ALITO Well Congress did -shy
Congress did act It enacted 1182(f)
MR KATYAL Correct
JUSTICE ALITO Why doesnt this fall
squarely within the language of 1182(f)
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MR KATYAL For -- for -- we have
both textual reasons that its not a class for
reasons Justice Breyer was talking about Its
not perpetuated -- its perpetual like Justice
Ginsburg was talking about But we think
theres a much bigger point Justice Alito
which is -shy
JUSTICE ALITO Well maybe you could
talk about the text Its not a class
Doesnt 11 -- doesnt 1182(f) say whenever the
President finds that the entry of any aliens -shy
MR KATYAL Correct
JUSTICE ALITO -- or any class of
aliens So put class aside although I dont
really see why people who are nationals of a
particular country dont constitute a class
What about any aliens
MR KATYAL Right So we think it is
any you know -- because the power in 1182 is
so broad and sweeping and does allow the
President to supplement what Congress has done
we think that you have to -- you have to be
careful and read limit -- you have to read it
just the way you read every other statute to
say how do we harmonize that broad text of
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1182(f) with the rest of the INA
And our point in our briefs which I
dont 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 you know and end so-called chain
migration or anything like that He could do
-- countermand any of the provisions of the INA
and turn it into a line item veto
So for that reason we think there
has to be some limit Thats something this
Courts dealt with in you know the tobacco
case or -shy
JUSTICE ALITO Well does this
proclamation do anything like that Does this
proclamation purport to establish a new
permanent immigration policy for the United
States
MR KATYAL Absolutely Your Honor
This is a perpetual policy that bans It does
exactly what Congress in 1965 said you cant
do And it countermands Congresss
fine-grained reticulated judgment from 2001
2015 and several other times which is to say
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instead of these flat bans were going to have
-- were going to balance foreign policy
considerations economic considerations like
the US companies brief humanitarian image
of the United States views all of that
together and said we wont do the flat ban
Instead were going to have a much
more fine-grained approach with individualized
vetting and carrots for the countries that
dont disagree -- that dont cooperate
JUSTICE ALITO What is your basis for
saying that it is perpetual
MR KATYAL Well theres nothing in
the order that ends it And you heard my
friend say oh that would doom all executive
orders But thats not true Half of these -shy
JUSTICE KENNEDY I thought it had to
be reexamined every 180 days
MR KATYAL No thats not what it
says It says theres a report that has to
come in at 180 days and nothing happens at the
end of the report
JUSTICE KENNEDY Well that -- that
indicates there will be a reassessment
MR KATYAL Well in -shy
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JUSTICE KENNEDY And then the -- and
-- and the President has continuing discretion
MR KATYAL Justice Kennedy this
argument wouldnt be there if there was
anything about reassessment the way there are
in about half the orders including the Cuba
order which says it sunsets once the crisis
ends Theres nothing like that in this
And its just like a reporting
requirement to Congress in which Congress isnt
necessarily required to do anything Congress
has statutes like that all the time
This is that And thats why this is
unlike any other executive order If you go
back and look at all 43 executive orders that
Presidents have issued none of them have even
arguably countermanded Congresss judgment in
the area Theyve all been consistent
Theyve all been supplements
JUSTICE KENNEDY Well the statute
says first that -- that -- that 1182 for such
period as he deems necessary and he can have
continuing supervision over whether its still
necessary
MR KATYAL Again we wouldnt have a
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problem with that if it was tailored to a
crisis it says it sunsets and then you know
could be re-upped or something like that
Thats not what this says This is about a
perpetual problem
JUSTICE KENNEDY So you want the
President to say Im convinced that in six
months were going to have a safe world
MR KATYAL Well -- well -- well no
Justice Kennedy thats not our argument Our
argument is here the President is identifying
something that is a perennial problem Our
brief says it goes back 100 years you know
when the Soviet Union was around we dont 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
CHIEF JUSTICE ROBERTS What if the
military advisors tell the President that in
their judgment the President ought to order a
strike an air strike against Syria and the
President says well -- does that mean he cant
because you would regard that as discrimination
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against a majority Muslim country
MR KATYAL Absolutely not Theres
nothing to do with the text of the statute
The 1152 statutes about discrimination and the
issuance of visas And thats all that -shy
CHIEF JUSTICE ROBERTS So under
1182(f) you would say that theres no problem
under that provision
MR KATYAL Well under 1182 as I
understand it was a strike And so I dont
think theres any immigration issue in your
hypothetical I might be misunderstanding it
Mr Chief Justice
CHIEF JUSTICE ROBERTS Well any type
of targeted action that would have a impact on
the Muslim population
MR KATYAL Absolutely We think the
President has wide authorities to do things
that have impacts on the Muslim population
Take the laptop ban that was introduced -shy
CHIEF JUSTICE ROBERTS Why under your
theory wouldnt that constitute or the argument
would be that thats discrimination under your
Establishment Clause argument -shy
MR KATYAL Oh
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CHIEF JUSTICE ROBERTS -- that thats
discrimination on the basis of faith because he
has said in the past if you accept the -shy
MR KATYAL Yeah
CHIEF JUSTICE ROBERTS -- accept the
arguments that he -- he is anti-Muslim
MR KATYAL Not at all Your Honor
and no President has run afoul of this you
know and thats because here the President
and his advisors have directly tied this policy
to those statements And the red brief at page
70 I think is the greatest illustration of
that
Thats 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 INA is
that the President can take a wrecking ball to
the statute and countermand Congresss
fine-grained judgments that -shy
CHIEF JUSTICE ROBERTS He can never
-shy
JUSTICE KAGAN Well you might think
-shy
JUSTICE GORSUCH Mr Katyal -- Mr
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Katyal if I might on -- on the statutory
question before we leave it Weve been
proceeding so far on the assumption that we can
reach the merits but the government makes the
argument for example that aliens who are
removed from this country have to bring their
claims personally and third parties cant
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
who are not present in this country Whats
the answer to that
MR KATYAL Well several This is
not a third-party case These are United
States citizens bringing this challenge in a
state -shy
JUSTICE GORSUCH Oh behalf of -shy
MR KATYAL -- of the United States
JUSTICE GORSUCH -- aliens not
present in the country
MR KATYAL Well but they are
directly -- they are directly harmed
themselves Let me just give you one example
Not just the State of Hawaii whose university
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is directly impacted but lets just take for
example the Alomari -- Mr Alomari the
10-year-old in the PARS Equality brief Justice
Breyer that you were referring to This is a
10-year-old daughter in Yemen who is -- whos
trying to come here because she has cerebral
palsy
JUSTICE GORSUCH I understand that
but those arguments dont work with respect to
aliens present in the country So why do they
work for aliens who are not present in the
country
MR KATYAL Because I -shy
JUSTICE GORSUCH Those very same
arguments would not succeed
MR KATYAL Well -shy
JUSTICE GORSUCH I think youd
concede that they wouldnt succeed for aliens
present -shy
MR KATYAL Right And they dont
succeed because there you have a better
plaintiff might not be willing to bring them in
the United States and thats why the court
you know says no third party But here
these folks are directly impacted
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And the most important thing to say is
Sale answers this You heard my friend concede
Sale was jurisdictional the issues in Sale
Thats how they briefed it up Thats how he
just described it This Court had exactly that
situation United States plaintiffs and it
reached the merits
Our statutory point to you is that if
you accept this order youre giving the
President a power no President in 100 years has
exercised an executive proclamation that
countermands Congresss policy judgments He
has zero examples to say that when Congress has
stepped into the space and solved the exact
problem that the President can then come in
and say No I want a different solution
If you do that youd -- its not just
family preferences that youre allowing him to
get rid of youd get rid of all sorts of even
small things in the Code or big things like
theres a preference for specialty occupations
like software engineers in the INA The
President could say The economics are such
Im going to ban software engineers from going
to California or something like that under that
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sweeping 1182 power
JUSTICE KAGAN I -- I guess the
question though Mr Katyal is maybe youre
entirely right that 1182(f) needs to have some
limits to prevent the President from doing
something thats completely contrary to another
section of the statute
But youre suggesting well the
President cant do anything thats not
contemplated by the rest of the statute
MR KATYAL That is not our argument
JUSTICE KAGAN Okay 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 -shy
MR KATYAL Right
JUSTICE KAGAN -- between what the
President is doing and another statutory
provision
MR KATYAL So our view is that the
President can supplement he just cant
supplant In this Courts decisions in the
Brown amp Williamson case and the UARG greenhouse
gas and Concepcion and Abilene Cotton the
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Savings Clause cases all say there are three
things you look at And its not a flat bar
It cant be like a direct contravention Even
they say its not a direct contravention in
their reply brief at page 19
So the three things are first can
these two solutions coexist or not Second
has Congress prescribed a reticulated
comprehensive scheme And third you know is
there any other indication that Congress
considered 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 -shy
Congress has a comprehensive reticulated scheme
that deals with the exact single problem that
hes identified which is countries not
cooperating It cant coexist with the
solution of a flat ban It makes no sense for
example to have the in-person visa requirement
-- visa interview which is in 12 -shy
1202(h)(2) which is for -- for people who come
from state sponsors of terrorism or who have a
group with a likelihood of providing
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inaccurate information Congress said there
has to be an in-person interview for that
It doesnt make sense to say well
youre going to have a flat ban It doesnt
make sense to have a Visa Waiver Program which
is all about countries that provide zero
information to the United States -- state
sponsors of terrorism and the like -- and say
were going to give you a carrot and then say
oh no forget about the Visa Waiver Program
JUSTICE ALITO Can -- can you imagine
any situation in which the threat of the
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
MR KATYAL Yes
JUSTICE ALITO You cannot imagine any
such situation
MR KATYAL Yes I can And the
President would have a robust authority to deal
with that That is not our argument So -shy
JUSTICE KENNEDY And your argument is
that courts have the -- the duty to review
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whether or not there is such a national
exigency thats for the courts to do not the
President
MR KATYAL No I think you have
wide deference Justice Kennedy Its exactly
what you said when you joined Justice Breyers
opinion in Hamdan which is as long as -- you
know Presidents have wide berth in this area
but if -- you know certainly if theres any
sort of emergency that precludes it
But when you have a statute that
considers the very same problem and theres
nothing new that theyve identified in this
worldwide review process that Congress didnt
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 the -shy
CHIEF JUSTICE ROBERTS But thats in
the abstract I mean they may have more -shy
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
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And it seems to me a difficult
argument to say that Congress was prescient
enough to address any particular factual
situation that might arise
MR KATYAL Well that again -shy
thats again Mr Chief Justice not our
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 But here -shy
CHIEF JUSTICE ROBERTS What about -shy
what about a change of administration in a
particular country -shy
MR KATYAL Yes
CHIEF JUSTICE ROBERTS -- in which
perhaps the vetting procedures are not going to
be taken seriously
MR KATYAL Right
CHIEF JUSTICE ROBERTS That Congress
could not have anticipated
MR KATYAL Well but again
Congress anticipated a country that is a state
sponsor of terrorism and even for -- with
respect to that providing no information and
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indeed fomenting against the United States
Congress said oh were not going to have a
nationality ban You know they flatly banned
that and said were going to have
individualized vetting and this Visa Waiver
Program carrot to try and deal with that you
know dangerous regime
Now again I can imagine an emergency
situation in which the President would have
even greater authority for that But here we
are 460 days later and I would caution the
Court not to make a decision about the
emergency youre concerned about That can be
bracketed as it was in Youngstown as it was in
Hamdan This is so far from that
The text of 1152 is flatly violated
here It says there shall be no discrimination
on the basis of nationality with the issuance
of visas
That is 39 percent of all the visas
this executive order covers Its not a small
part Its 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
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become part of our long-term polity This
executive order flatly contradicts that
Now if you accept his
interpretation -- he says well you know
were discriminating at the entry side not at
the visa side If you do that you are giving
the President the power to undo -- and hes
actually just done it -- hes undone the ban on
nationality-based discrimination Hes imposed
country quotas of zero for these countries at
the border
CHIEF JUSTICE ROBERTS If your -shy
your argument based on discrimination based on
the campaign statements is there a statute of
-- no the one that you do make based on the
campaign statements is there a statute of
limitations on that or is that a ban from
presidential findings for the rest of the
administration
MR KATYAL So Mr Chief Justice I
first want to be very clear about this Our
point about 1152 and the discrimination has
nothing to do with any campaign statements or
anything else
Its purely the text of the
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proclamation which is nationality-based
discrimination through and through Judge
Sentelle said you couldnt imagine a clearer
text than this And this is -- it violates it
Now -shy
CHIEF JUSTICE ROBERTS My question
was on the -shy
MR KATYAL -- youre asking about
the First Amendment
CHIEF JUSTICE ROBERTS Yes
MR KATYAL I just want to make
absolutely clear that were -- thats not -shy
you know you dont need to do any of that for
purposes of 1152 And that would knock out
39 percent of the most important part of the
executive order
CHIEF JUSTICE ROBERTS My question
of course -shy
MR KATYAL Yes Now Im getting -shy
CHIEF JUSTICE ROBERTS -- was not on
1152
MR KATYAL Yes Im getting there
Okay
With respect to that we dont think
-- we think that the test as this Court has
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said a reasonable objective observer viewing
all the statements and we think absolutely
my friend is right you shouldnt look to
campaign statements in general or stuff like
that 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 70
of our red brief you have a very good example
of this
After the executive order this latest
executive order was promulgated the President
tweeted these three virulent anti-Muslim
videos And then the press spokesman was
asked What does this mean What is this
about And the answer was The President has
spoken about exactly this in the proclamation
CHIEF JUSTICE ROBERTS My question
was whether or not the inhibition on the
ability to -- to enter one of the proclamations
applies forever
MR KATYAL Right No I think the
President could have disclaimed -- you know
easily moved away from all of these statements
you know but instead they embraced them
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Thats the difference
And so absolutely the President
would have wide berth to say thats a -shy
CHIEF JUSTICE ROBERTS So if
tomorrow he issues a proclamation saying hes
disavowing all those statements then the next
day he can reenter this proclamation
MR KATYAL Thats exactly what this
Court said in McCreary This Court in McCreary
said you know the same policy can be
constitutional if said -- if promulgated by one
entity and not by another depending on the
circumstances around it
CHIEF JUSTICE ROBERTS Is your answer
to my question yes
MR KATYAL Yes The answer is -shy
CHIEF JUSTICE ROBERTS Tomorrow he
issues a proclamation disavowing those
statements -shy
MR KATYAL Absolutely And thats a
CHIEF JUSTICE ROBERTS -- then the
next day he could reenter this and your
discrimination argument would not be
applicable
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MR KATYAL And -- and -- and Mr
Chief Justice thats exactly what I told the
Ninth Circuit in May The President didnt do
that Thats whats -- thats -- you know
thats what a reasonable objective observer -shy
JUSTICE SOTOMAYOR So if another -shy
JUSTICE ALITO Mr Katyal would any
reasonable observer reading this proclamation
with -- without taking into account statements
think that this was a Muslim ban
I mean there are -- I think there are
50 predominantly Muslim countries in the world
Five -- five countries -- five predominantly
Muslim countries are on this list
The population of the -- of the
predominantly Muslim countries on this list
make up about 8 percent of the worlds Muslim
population
MR KATYAL Absolutely
JUSTICE ALITO If you looked at the
10 countries with the most Muslims exactly
one -shy
MR KATYAL Right
JUSTICE ALITO -- Iran would be on
that list of the top 10
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MR KATYAL Right
JUSTICE ALITO So would a reasonable
observer think this was a Muslim ban
MR KATYAL If it were -- if it were
just the text of the order alone it might
raise eyebrows for fit and other reasons that
the briefs go into but we wouldnt be here
We absolutely agree that just -- its the same
test as in Lukumi and other cases You have to
look to all the circumstances around it that
are said the publicly available ones
You know and Justice Alito the fact
that the order only come -- encompasses some
Muslim countries I dont think means its not
religious discrimination For example if Im
an employer and I have 10 African-Americans
working for me and I only fire two of them I
dont think -- you know and say well Ive
left the other eight in I dont think anyone
can say thats not discrimination
JUSTICE ALITO No I -- I understand
that And it is one of our fundamental values
that there is religious freedom here for
everybody in that number -- adherence to every
religion are entitled to equal treatment
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My only point is that if you look at
what was done it does not look at all like a
Muslim ban There are other justifications
that jump out as to why these particular
countries were put on -- on the list
So you -- it seems to me the list
creates a strong inference that this was not
done for that invidious purpose
MR KATYAL Justice Alito I think if
it were just the list I think wed be right -shy
youd be right although Id point out that
you yourself in the Stormans case said that
its a religious -- it raises an inference of
religious gerrymander of the burden imposed
falls almost exclusively on those with
religious objections
This is a ban that really does fall
almost exclusively on Muslims between
902 percent and 998 percent Muslims And so
it does look very much like what you said in
Stormans But even then we wouldnt be here
if it werent for all of the different
statements
And the best evidence of this about
what a reasonable objective observer would
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think is to look at the wide variety of amicus
briefs in this case from every corner of
society representing millions and millions of
people from the US Conference of Catholic
Bishops which calls it blatant religious
discrimination
JUSTICE GORSUCH Mr Katyal on that
its been a long time since this Court has used
the Lemon test reasonable observer even to
strike down a domestic statute let alone
something with purely international
application What -- what do we do about that
MR KATYAL Yeah 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 and our protest of
King George which is all about using the
immigration power to exclude people of a
different faith And thats what our
Constitution is about So thats the first
thing
And the second is we dont think you
have to get into Lemon and all these other
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tests that you all have struggled with I
think this Court in Lukumi was very clear in
saying that when youre talking about
denigration of religion all the tests point in
the same direction
JUSTICE SOTOMAYOR Mr Katyal you
said something earlier you said you wouldnt
be here if all of those statements the
background statements were not made Do you
mean that on all of your bases You wouldnt
be here on the Establishment Clause claim
MR KATYAL Only on the Establishment
Clause claim not on anything else And our
point is you know he talks about for
example this worldwide vetting process
Remember his own argument on 1182 is
the statute puts the President -shy
JUSTICE SOTOMAYOR So lets -- lets
go back to not being here without the
statements Clearly the statements even
conceded by your adversary do give you a basis
to look behind all right the reason
So if were looking behind it how do
you deal with the Generals suggestion that
there was a cleansing that occurred because of
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all of the agencies and departments who
participated in this process
MR KATYAL Yeah So theres three
things Number one is that his -- his own
argument is that 1182 puts the President in the
drivers seat so the cabinets not important
Its the Presidents proclamation
Second the order itself says in its
first lines it harkens back to Executive
Orders 1 and 2 and it says its an outgrowth
of that So it was infected by the same thing
that was struck down on Establishment 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 ban
a non-politically-correct ban and the like
So given all of those things but in
particular given the fact that 1182 itself
forces the President to make the proclamation
its the Presidents proclamation so I dont
think you even have to get into this whole
unitary executive thing but I do agree with
you Justice Sotomayor that thats another
problem which is theyre coming before the
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Court and saying Nope its the President
whos in charge And now theyre saying here
Oh no no no its these other people
This is the Presidents proclamation
through and through No President has ever
said anything -- anything like this And
thats what makes this different
And the President -shy
JUSTICE KAGAN And -- and yet Mr
Katyal 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 evaluating the adequacy of those
national security interests which for the most
part weve said courts are not equipped to do
MR KATYAL Right Were not asking
you to second-guess a national security
judgment at all with the purpose of the
Establishment Clause
Were saying you just have to look to
what a reasonable objective observer would do
Thats the ordinary test that youve used in
cases like Lukumi Is there an official
purpose to disparage a religion Here there
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very much is Thats you know everything
that the President has said and that the order
itself embodies Thats our fundamental
problem
JUSTICE BREYER What do you think -shy
its a -- its a -- its still something Im -shy
Im thinking about perhaps to the side but
the statute you point to one of the ones that
is stronger for you There are obviously
objections to what youre saying in quite a few
briefs all right but the one that you talked
about it does say you have to have an
interview with a consular official if the
person is from a country officially designated
by the Secretary as a state sponsor of
terrorism It does say that
So theyll say but we do have that in
respect to everyone under the exception So
there isnt much problem Weve gone beyond
that in respect to other people All right
Take their argument for a moment
Because my question is which I
couldnt find in the briefs is is it true -shy
Im just taking what they say -- that really
that isnt so they dont publicize it they
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havent put forth a guidance people dont know
they can come in and qualify for this
And if it turns out that that is
something that is important to the lawfulness
of the order because there are many many
categories there -shy
MR KATYAL Right
JUSTICE BREYER -- what do we do
MR KATYAL So two things Number
one this waiver process has excluded -- and
you have this in the PARS Equality brief at
page 14 A 10-year-old with cerebral palsy who
wants to come to the United States to save her
life and she cant move or talk The
10-year-old was denied a waiver Justice
Breyer
He says theres 430 people who have
gotten waivers Theyve never told you the
denominator and theres no publication of this
process and how -- how often it is And the
data that we do have suggests as a matter of
percentages its very weak
Just to give you some evidence of
that just the State of Hawaii has gotten about
1000 letters from people most of which say
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were not even getting waivers on the like
JUSTICE GORSUCH That -shy
MR KATYAL Weve heard very few
instances -shy
JUSTICE GORSUCH -- raises a question
of remedy for me
MR KATYAL Yes
JUSTICE GORSUCH We have this
troubling rise of this nationwide injunction
cosmic injunction -shy
MR KATYAL Yeah yeah
JUSTICE GORSUCH -- not limited to
relief for the parties at issue or even a class
action
MR KATYAL Right
JUSTICE GORSUCH And near as I can
tell thats -- thats a really new development
where a district court asserts the right to
strike down a -- a federal statute with regard
to anybody anywhere in the world
MR KATYAL Yeah
JUSTICE GORSUCH What -- what do we
do about that
MR KATYAL Obviously the injunction
here has been trimmed by this Court itself and
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others And I do think -- I -- I share your
impulse Justice Gorsuch Thats something
that I think lower courts are debating right
now in a number of different contexts like the
contraception case and the like
I think this case is the poorest
example to get into it because of United States
versus Texass point which is this is an
immigration case and Article I Section 8 puts
Congress in the drivers 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 doesnt make a
tremendous amount of sense It would almost be
an advisory opinion
Our fundamental point to you though
is that Congress is in the drivers seat when
it comes to immigration and that this
executive order transgresses the limits that
every President has done with this proclamation
power since 1918 And to accept it here is to
accept that the President can take an iron
wrecking ball to the statute and pick and
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choose things that he doesnt want for purposes
of our immigration code That cant be the law
of the United States
CHIEF JUSTICE ROBERTS Take five
extra minutes Okay
MR KATYAL Okay
(Laughter)
CHIEF JUSTICE ROBERTS You dont have
to
(Laughter)
MR KATYAL Well if there are -- if
there are any other questions Im happy to
take anything Okay Thank you
CHIEF JUSTICE ROBERTS Thank you
counsel
Five minutes for rebuttal General
REBUTTAL ARGUMENT OF GENERAL NOEL J FRANCISCO
ON BEHALF OF THE PETITIONERS
GENERAL FRANCISCO Mr Chief -- Mr
Chief Justice and may it please the Court
I -- I really do have just a few quick
points unless Your Honors have additional
questions
Justice Breyer I did want to respond
in more detail to your question about how the
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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
the waiver -- the visa officer first determines
whether the person is otherwise admissible
under other provisions of the INA
If theyre inadmissible you never
even get to the proclamation Then for those
people who are not inadmissible under other
parts of the INA like 1182(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 youre not subject to an exception
then the consular officer him or herself
turns to the waiver provision and applies the
criteria of the waiver provision
JUSTICE GINSBURG How do you deal
with the -shy
GENERAL FRANCISCO So it does get
applied in every single case
JUSTICE GINSBURG How -- how do you
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deal with the example that was brought up of
the child with cerebral palsy
GENERAL FRANCISCO Your Honor the
waiver is built to address those issues I am
not familiar enough with the details of that
case to tell you what happened in that
particular case But thats what the waiver
provision -shy
JUSTICE BREYER But thats -- thats
you see -shy
GENERAL FRANCISCO -- is intended to
address
JUSTICE BREYER Youve read the
briefs as have I All right Now there are
some that lists about 10 or 15 instances like
the cerebral palsy One has Parkinsons Then
theres another brief that lists all the people
who are professors scholars at universities
and there are a lot And -- and then there are
people they list the students from these
countries a lot
GENERAL FRANCISCO Yeah
JUSTICE BREYER And then the business
community lists a -- a whole bunch and says my
goodness they have been unable to get -- we
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dont know whats going on
And then they say Well whats going
on is nothing is going on
GENERAL FRANCISCO Well Your Honor
-shy
JUSTICE BREYER Now I dont -- Im
not taking sides on that Im just saying I
dont know
GENERAL FRANCISCO Right And the
principal purpose of the proclamation is of
course to 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 Im 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
admissible
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 dont and doesnt tell us we
cannot intelligently make the admissibility
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determination
Third Id like to address the
1152(a)(1)(A) point about nationality-based
discrimination
JUSTICE SOTOMAYOR General could you
stop just one second
GENERAL FRANCISCO Yes Your Honor
of course
JUSTICE SOTOMAYOR I for one am like
Justice Breyer concerned about is this window
dressing or not Whats in place to ensure
its not What are you personally doing to
represent to us that it is in fact a real
waiver process -shy
GENERAL FRANCISCO Your Honor State
Department consular officers automatically
apply the waiver process in the course of every
visa application And they are doing that
which is why there have been -- and I looked at
our brief -- 430 waivers that have been issued
since -shy
JUSTICE SOTOMAYOR Have you bothered
-shy
GENERAL FRANCISCO -- the
proclamation was issued
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JUSTICE SOTOMAYOR -- to look to see
if there are reasons for all of those peoples
exclusions
GENERAL FRANCISCO Your Honor I
cannot claim that I have looked into every
individual case
JUSTICE KENNEDY Could you make your
1152 point
GENERAL FRANCISCO Yes Your Honor
1152(a)(1)(A) addresses one thing the issuance
of immigrant visas It doesnt address the
broader question over whether somebodys
allowed to enter in the first place
Thats governed by 1182 including
1182(f) So essentially 1182 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 1152(a)(1)(A) is
one of the rules that governs how we distribute
visas amongst that group thats eligible to
come in
And its not just nationality-based
distinctions that it applies to It also
applies to things like place of residence So
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once you have that universe of eligible people
1152(a)(1)(A) governs how you distribute them
But lets 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 non-immigrant visas to people who
arent allowed to enter but we wouldnt have
to allow anyone to enter and we wouldnt have
to issue any non-immigrant visas
So the bottom line is I think theyre
simply wrong on that case -- on that issue
My final point has to do with my -- my
brothers 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 25 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
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says its about Foreign policy and national
security And we would ask that you reverse
the court below
CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1109 am the case
was submitted)
Heritage Reporting Corporation
83Official
1 998 [1] 6619 39914 44111417 51581120 arise [2] 5725 584
1 [1] 6910 A 52101118
ALITO [16] 432124 446813 45
around [3] 4814 6313 6510
Article [2] 136 749 1000 [1] 7225 am [3] 116 32 826 15 4611 561119 6472024 65 aside [1] 4414 10 [4] 642125 6516 7715 Abilene [1] 5425 21221 669 asks [3] 169 519 7614 10-year-old [4] 5235 721215 ability [1] 6220 allies [2] 73 1719 assert [2] 5111 7811 1002 [2] 116 32 able [2] 2210 5111 allow [3] 413 4420 8110 asserts [1] 7318 100 [4] 353 407 4813 5310 above-entitled [1] 114 allowed [3] 178 8013 819 associate [1] 2211 11 [1] 4410 abroad [1] 2113 allowing [1] 5318 associated [1] 812 1109 [1] 826 absolute [1] 428 almost [8] 116 1556 30712 66 assume [4] 19811 2016 813 1152 [7] 4017 494 5916 6022 61 absolutely [12] 4114 4213 4520 1518 7416 assumption [3] 3016 3724 513 1421 808 49217 5810 6112 622 63220 Alomari [2] 5222 attitude [1] 227
1152(a)(1)(A [4] 793 801019 81 6419 658 alone [2] 655 6710 Attorney [1] 523 2 abstract [1] 5720 already [3] 61024 397 authorities [1] 4918
1182 [10] 1018 4419 4721 499 academic [1] 3418 although [3] 379 4414 6611 authority [7] 6916 712 3815 42 541 6816 69519 801415 accept [8] 138 454 5035 539 Amendment [3] 396 619 6716 15 5622 5910
1182(a [1] 7612 603 742324 American [1] 1111 authorize [2] 42610 1182(f [18] 4591318 54 616 7 acceptability [1] 108 Americans [2] 4011 8121 automatically [2] 764 7916 1120 1025 1314 3816 432225 account [2] 105 649 amicus [1] 671 available [1] 6511 4410 451 497 544 8015 accurate [1] 1218 amongst [1] 8021 aware [2] 391725
12 [1] 5522 across [3] 107 2524 2923 amount [1] 7416 away [2] 6224 8117 1202(h)(2 [1] 5523
1361 [1] 432
act [4] 128 177 421 4322
acting [1] 313 analysis [3] 914 1624 7013
animus [1] 1710 B
14 [1] 7212 action [4] 2511 385 4915 7314 another [10] 519 1220 279 35 back [6] 234 3519 4715 4813
15 [1] 7715 actions [1] 247 18 54619 6312 646 6924 77 6819 699
150 [2] 325 3618 activity [1] 3118 17 backdrop [1] 2613
17 [1] 3614 acts [3] 410 281119 answer [9] 615 119 369 389 45 background [2] 2620 689
17-965 [1] 34 actually [14] 111923 1225 175 3 5113 6216 631416 balance [2] 462 4818
180 [2] 461821 21 2112 231 2410 257 299 37 answers [1] 532 ball [2] 5018 7425
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1918 [1] 7423 add [1] 64 anti-Muslim [2] 506 6213 4315 466 4817 4920 5324 55
1965 [1] 4522 added [1] 519 anti-Semite [1] 163 20 564 593 60817 6410 653
2 addition [2] 617 151 anti-Semitic [2] 194 2619 66317 691617 8119
2 [1] 6910
20 [1] 408
2001 [1] 4524
2015 [1] 4525
2018 [1] 112
25 [2] 112 8118
additional [1] 7522
address [10] 71 12618 133 299
583 77412 792 8011
addressed [2] 59 5723
addresses [3] 76 399 8010
adequacy [2] 5724 7014
adequate [1] 610
anti-Semitism [1] 1615
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anybody [1] 7320
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bar [3] 1420 393 552
bare [1] 303
based [7] 1415 1725 275 2922
60131315
baseline [14] 3162123 722 819
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3 [1] 24 administration [2] 5813 6019 applied [10] 111619 153 1913 7817
38 [1] 27 admissibility [3] 78 820 7825 23 269 2923 3814 76324 bases [1] 6810
39 [2] 5920 6115 admissible [4] 424 816 767 78 applies [9] 322 171 2113 6221 basic [4] 615 725 127 3014
4 19
admission [1] 3923 7651619 802425
apply [9] 147 1589 1918 2112
basically [2] 23725
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400 [2] 361518 admitted [1] 3423 231 2516 359 7917 502 5918 6821
43 [1] 4715 adopt [1] 314 approach [1] 468 became [1] 3917
430 [2] 7217 7920 adopts [1] 318 appropriate [1] 3025 become [1] 601
46 [1] 3418 adversary [1] 6821 April [1] 112 becomes [1] 5925
460 [2] 4119 5911 advice [2] 179 289 arbiter [1] 2622 began [1] 6915
5 50 [1] 6412
advisors [2] 4821 5010
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affirm [1] 524
area [5] 419 1016 1519 4718 57
8
arent [2] 4311 819
behalf [9] 12122 24710 39 38
23 5118 7518
behind [2] 682223
7 afford [1] 3819 arguably [1] 4717 believe [1] 3614
70 [2] 5012 628 afoul [1] 508 argued [1] 236 below [6] 323 9212424 262 82
75 [1] 210 African-Americans [1] 6516 argument [37] 115 2258 348 3
8 agencies [5] 1925 251516 406
691 121241422 1327 1471013
19912 3822 4316 474 4810
benefit [1] 73
berth [2] 578 633
8 [2] 6417 749 agree [3] 1522 658 6923 11 492224 515 5411 562324 best [1] 6624
80 [2] 30812 ahead [1] 3010 5827 6013 6324 6816 695 71 better [3] 1022 1817 5221
9 air [1] 4823
AL [2] 147 21 7517
arguments [5] 3014 4016 506
between [2] 5418 6618
beyond [2] 3512 7119 902 [1] 6619 aliens [16] 424 128 1625 2113 52915 big [3] 3924 405 5320
Heritage Reporting Corporation Sheet 1 1 - big
84Official
bigger [1] 446
bill [4] 42691112
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2
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branch [8] 715161718 2312 27
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BREYER [49] 1315 3061122 31
111422 321411141624 332
610162023 3425812 35111
1523 36369111720 37211
1822 382 443 524 715 72816
7524 7791323 786 7910
Breyers [1] 576
brief [14] 3420 35818 3612 43
20 464 4813 5011 523 555 62
9 7211 7717 7920
briefed [1] 534
briefs [9] 413 308 3416 452 65
7 672 711123 7714
bring [7] 20131624 2110 2212
516 5222
bringing [1] 5116
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broad [5] 418 1146 442025
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Brown [1] 5424
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business [4] 3116 3417 367 77
23
C cabinet [9] 169 1724 1924 24
2225 25114 2810
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California [1] 5325
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60141623 624
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805
careful [1] 4423
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Carter [6] 93 1013 113 3018 35
5 384
Carters [4] 1113161822
Case [25] 34 109 1222 1317 14
11 151015 198 2011 236 45
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case-by-case [5] 30192325 38
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cases [5] 1519 551 659 6913
7024
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16
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13 6510
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24 2121115 2225 5014 6811
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131416 7313
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1113 6912 7020
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Clearly [1] 6820
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526 5315 5523 5925 6513 72
213 801622
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committee [4] 512 24178
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Concepcion [1] 5425
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conduct [2] 824 95
Conference [1] 674
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easily [1] 6224
easy [1] 197
economic [1] 463
economics [1] 5323
effectively [1] 281
eight [1] 6519
either [2] 1112 265
elected [2] 162 2819
eligible [3] 801621 811
embodies [1] 713
embodiment [1] 2813
embraced [1] 6225
emergency [5] 4023 4115 5710
59813
emerges [2] 161416
employed [1] 3123
employer [1] 6516
enacted [1] 4322
encompasses [1] 6513
end [6] 162022 2314 4557 46
22
ends [2] 4614 478
engaging [1] 825
engineers [2] 532224
enough [4] 415 68 583 775
ensure [2] 2623 7911
enter [7] 1617 2114 409 6220
8013 81910
entire [1] 810
entirely [1] 544
entitled [1] 6525
entity [1] 6312
entry [6] 314 414 399 4013 44
11 605
equal [1] 6525
Equality [2] 523 7211
equipped [1] 7016
ESQ [2] 122 26
essentially [3] 714 1325 8015
establish [1] 4517
established [1] 3116
Establishment [12] 1320 1914
206 2121018 2225 4924 68
1112 6912 7020
ET [2] 147
evaluating [1] 7014
evaluation [1] 267
even [20] 1310 17916 19811 25
11 4120 4716 5319 553 5824
5910 6621 679 6820 691522
73113 7610
everybody [2] 2123 6524
everyone [1] 7118
everything [2] 2725 711
evidence [2] 6624 7223
exact [4] 3616 4217 5314 5517
exactly [12] 625 266 4313 4522
535 57515 62817 638 64221
example [14] 86 4024 455 515
24 522 5521 587 629 6515 67
17 6815 747 771
examples [2] 312 5313
exception [7] 92123 1120 3624
7118 761417
exceptions [2] 302023
exclude [2] 2914 6720
excluded [6] 910 2017 3220 33
1217 7210
exclusion [2] 127 1625
exclusions [1] 803
exclusively [2] 661518
executive [23] 715151618 14
10 23712 24814 2813 391 46
15 471415 5311 5921 602 61
16 621112 69923 7421
exercise [4] 206919 2218
exercised [1] 5311
exert [1] 3313
exerts [1] 324
exigency [1] 572
expect [1] 2424
explore [1] 420
expressing [2] 510 356
extensive [1] 151
extent [1] 4311
extra [2] 3922 755
extreme [8] 514 1919 205 2314
17 255 31912
eyebrows [1] 656
F face [1] 252
facial [1] 2510
fact [8] 10311 133 2623 6512
6714 6919 7913
factors [1] 5515
facts [1] 1620
factual [1] 583
fail [1] 405
failed [4] 315 914 301 3924
failing [1] 3918
fails [1] 99
failure [1] 96
fair [1] 55
faith [3] 277 502 6721
fall [7] 323 924 1312 32618 43
24 6617
falling [1] 3412
falls [3] 44 3814 6615
familiar [1] 775
families [1] 3419
family [5] 2212 3119 4566 53
18
far [5] 1413 3217 4121 513 59
15
fast-moving [1] 4024
faster [1] 3923
father [1] 2018
favor [1] 1510
federal [1] 7319
fell [1] 920
few [4] 326 7110 733 7521
final [1] 8114
find [4] 244 351616 7123
findings [1] 6018
finds [1] 4411
fine [3] 2521 2925 7615
fine-grained [4] 4524 468 4818
5020
finish [1] 1714
fire [2] 2318 6517
first [21] 14310 2421 272 283
3225 39614 427 4317 4721
556 6021 619 671622 699 76
614 801317
fit [1] 656
five [6] 3124 64131313 75416
flat [7] 4314 4616 4817 55220
564
flatly [3] 59316 602
flexible [1] 418
Focus [1] 321
folks [1] 5225
follow [1] 178
following [1] 312
fomenting [1] 591
footnote [1] 3614
force [1] 4316
forces [1] 6920
forecloses [1] 1517
foreign [8] 42 825 106 129 31
15 462 8018 821
forever [1] 6221
Forge [2] 212225
forget [1] 5610
form [1] 1916
forth [2] 618 721
forward [2] 132224
founding [1] 6718
four [1] 7814
Fourth [1] 263
FRANCISCO [117] 119 239 37
810 417 616112225 91218
10172124 115818 1231624
13418 142122124 1518 164
1821 171323 182924 1925
2081923 21321 228141722
2310162124 243111519 268
Heritage Reporting Corporation Sheet 3 danger - FRANCISCO
86Official
151825 27172022 28223 292
3021 3110132125 32381315
2225 334811182225 3447
1025 35101422 361581012
1925 3731320 381920 7517
19 7623 7731122 7849 797
1524 8049
frankly [1] 377
free [7] 2069101924 221818
freedom [1] 6523
friend [5] 395 4319 4615 532
623
full [1] 1520
fundamental [5] 2811 296 6522
713 7418
future [2] 161 1814
G game [1] 1325
gas [1] 5425
GEN [3] 119 239
General [127] 119 3810 417 57
23 616112225 91218 1017
2124 1125818 1231624 134
1618 142122124 1518 16418
21 171323 1825924 1925 20
281923 21321 228141722
23310162124 243111519 25
25 268151825 2713172022
28223 292 3021 31101321
25 323813152225 334811
182225 34471025 35101422
3615810121925 3731320
38191920 624 75161719 76
23 7731122 7849 79571524
8049
Generals [1] 6824
George [1] 6719
gerrymander [1] 6614
gets [1] 162
getting [4] 611922 731 7414
GINSBURG [4] 48 445 762125
give [8] 711 86 151225 5124
569 6821 7223
given [10] 917 1413 1718 1825
1915 241325 3219 691819
gives [2] 616 2224
giving [3] 311 539 606
goodness [1] 7725
GORSUCH [14] 5025 511820 52
81417 677 73258121622 74
2
got [4] 2714 357 4334
gotten [2] 721824
governed [1] 8014
government [14] 825 92 109 12
1523 1322 1524 222 264 278
10 3520 514 7823
governments [2] 3314 3714
governs [2] 8020 812
great [4] 248 274 812124
greater [1] 5910
greatest [1] 5012
greenhouse [1] 5424
ground [3] 223 401 5723
grounds [2] 624 6913
group [2] 5525 8021
guess [2] 1417 542
guidance [3] 3424 352 721
H Half [2] 4616 476
Hamdan [3] 4113 577 5915
hand [1] 1818
happened [1] 776
happens [2] 1718 4621
happy [1] 7512
harbored [1] 1710
hard [1] 1520
hardship [3] 31789
harkens [1] 699
harmed [1] 5123
harmful [2] 824 95
harmonize [1] 4425
Harvard [1] 3419
hate [1] 2818
hateful [2] 281820
hatred [1] 167
HAWAII [4] 17 36 5125 7224
head [2] 23812
hear [1] 33
heard [7] 1523 39519 453 4614
532 733
hearing [1] 3519
heart [6] 179 181921 2119 59
24 6716
hearts [3] 179 182021
heated [1] 2617
heightened [1] 514
help [4] 421 721 87 2523
herself [1] 7618
hire [1] 2318
history [6] 824 1025 1111 303
4
holds [1] 1814
holistic [1] 914
home [2] 811 7823
Homeland [1] 313
honestly [2] 176 2724
Honor [38] 417 61319 71 810 9
12 1018 11511 12325 1318
1621 1715 1810 19621 2010
214922 2420 2625 28324 32
923 36125 3810 4520 507 77
3 784 79715 8049
Honors [1] 7522
hoping [1] 7814
however [3] 419 113 2513
humanitarian [2] 1121 464
hypothetical [15] 151323 173
187 191620 205 2323 3812
412223 4223 437 4912
I is [1] 1613
ID [1] 433
idea [1] 454
ideal [2] 81 303
identified [2] 5518 5713
identify [1] 824
identifying [2] 4219 4811
III [1] 136
illustrate [1] 87
illustration [1] 5012
image [1] 464
imagine [7] 2913 412425 5611
19 598 613
imbued [1] 128
immediate [1] 419
immigrant [3] 5923 8011 817
immigrants [3] 11161719
immigration [10] 412 318 4518
4911 67151720 74920 752
impact [1] 4915
impacted [2] 52125
impacts [1] 4919
impediment [1] 4117
implement [3] 422 721 815
important [7] 1324 531 5923 61
15 696 7011 724
importantly [2] 517 6914
impose [3] 617 103 457
imposed [3] 2522 609 6614
imposes [1] 91
imposing [1] 8119
improve [1] 718
impulse [1] 742
in-person [3] 434 5521 562
INA [11] 42225 618 721 816 45
19 5017 5322 76812
inaccurate [2] 3912 561
inadequate [1] 5617
inadmissible [2] 76911
including [9] 320 155 251819
2917 3911 4217 476 8014
incomplete [1] 239
inconsistent [2] 523
indeed [1] 591
independent [1] 2622
indicates [1] 4624
indication [1] 5510
individual [4] 311 781522 806
individualized [4] 3915 4225 46
8 595
individuals [2] 78 322
ineffective [1] 2912
infected [1] 6911
inference [2] 66713
infiltration [1] 5613
information [20] 31625 423 77
23 81319 97 302 3315 3517
3913 407 414 5617 5825 78
1317
inhibition [1] 6219
initial [1] 253
injunction [5] 217 2223 73910
24
injury [1] 2124
INS [1] 2216
instances [2] 734 7715
Instead [5] 3921 4617 4817 62
25
intelligence [3] 406 414 428
intelligent [1] 815
intelligently [1] 7825
intended [1] 7711
intention [1] 8119
interests [4] 1121 315 701115
international [1] 6711
interpretation [1] 604
interrupt [1] 412
interview [4] 435 5522 562 71
13
introduced [4] 4120 421011 49
20
introduces [1] 426
invidious [1] 668
involve [1] 1625
Iran [2] 94 6424
Iraq [3] 923 1010 2917
iron [1] 7424
irrelevant [2] 2822 291
irrespective [1] 147
Islam [1] 8123
isnt [5] 3520 3813 4710 7119
25
Israel [4] 1617 1718 181516
issuance [3] 495 5918 8010
issue [10] 1219 16101011 4911
5511 7313 8171113
issued [7] 54 89 1110 4716 78
22 792025
issues [6] 126 283 533 63518
774
item [1] 4510
itself [5] 2910 69819 713 7325
J Jane [1] 88
Jews [2] 166 242
job [1] 2515
join [1] 2213
joined [1] 576
Judge [2] 4022 612
judges [2] 2623
judgment [6] 43 4524 4717 48
22 7019 8019
judgments [4] 4019 4318 5020
5312
judicial [1] 1620
jump [1] 664
jurisdiction [1] 136
jurisdictional [5] 122413 133
533
jurisprudence [1] 1914
Justice [217] 120 3310 48 56 6
272023 9817 10111922 112
791525 12111721 1311516
19 1431722 151222 16519
171122 18151125 193 2024
1521 21115 2259151921 23
31117222225 2441216 2525
269131619 2712182123 28
1625 30691122 31111422 32
1411141624 3326101620
23 3425812 351111523 363
Heritage Reporting Corporation Sheet 4 FRANCISCO - Justice
87Official
69111720 372111822 382
17182125 404 41182024 42
5 432124 44346813 4515 46
111723 471320 4861020 49
6131421 5015212325 5118
20 52381417 5421218 5611
1924 575619 586121620 60
1220 616101720 6218 63414
1722 642672024 6521221
669 677 68618 6924 709 715
72815 73258121622 742 75
48142024 762125 7791323
786 79591022 8017 824
justiciability [1] 137
justifications [1] 663
K KAGAN [26] 131619 1431722
151222 16519 171122 1815
1125 193 2613 2712182123
5023 5421218 709
Kagans [1] 2323
KATYAL [79] 122 26 38212224
4015 41711 42413 4323 441
1218 4520 46131925 47325
489 49291725 504725 511
141922 52131620 5431117
21 561821 574 585151922
6020 618111922 6222 638
1620 64171923 6514 669 67
713 68612 693 701017 7279
733711152124 75611
keep [3] 241 258 4215
KENNEDY [19] 10111922 204
1521 2220 281625 461723 47
1320 48610 5624 575 807
Kennedys [1] 119
kept [1] 264
kill [1] 4011
kind [8] 142022 1612 186 1913
5415 5924 7012
kinds [1] 165
King [1] 6719
knock [1] 6114
knows [4] 181319 3525 7823
L land [1] 221
language [1] 4325
laptop [1] 4920
large [1] 5922
later [2] 4119 5911
latest [1] 6211
Laughter [5] 188 3411 423 757
10
LAVAS [1] 4023
law [4] 314 3720 403 752
lawfulness [2] 3723 724
laws [2] 411 318
layer [1] 519
lays [1] 273
learns [1] 811
least [1] 1213
leave [1] 512
left [2] 3015 6519
legality [1] 378
Legislation [3] 3923 4121 422
legislative [1] 4117
legitimacy [1] 2511
legitimate [1] 1322
Lemon [2] 67925
less [1] 3112
letters [1] 7225
level [2] 423 77
lies [1] 4316
life [1] 7214
light [1] 5722
likelihood [1] 5525
limit [3] 51 4423 4512
limitations [1] 6017
limited [1] 7312
limits [4] 420 64 545 7421
line [4] 107 2524 4510 8112
lines [1] 699
Lisa [1] 3420
list [10] 47 911 3115 64141625
665610 7720
listed [1] 919
lists [3] 77151724
litigants [1] 266
little [2] 613 141
local [1] 2817
long [3] 415 577 678
long-term [2] 3117 601
longer [2] 101419
look [16] 724 2622 3519 4113
4715 552 6238 6510 661220
671 6822 7021 801
looked [7] 5713 624 3022 6420
7919 805
looking [1] 6823
lot [5] 612 145 167 771921
love [1] 8122
low [1] 916
lower [1] 743
Lukumi [3] 659 682 7024
M made [7] 1215 14912 286 689
811820
main [1] 720
maintain [1] 717
majority [6] 31920 251920 29
15 491
Mandel [18] 1321 1410131822
158141619 16192223 17116
201125 2511 2621
Mandels [1] 1723
many [5] 3013 7255 812222
mark [1] 2811
marks [1] 296
material [1] 261
matter [5] 114 1917 259 297 72
21
mayor [1] 2817
McCreary [3] 159 6399
mean [9] 1820 412 4824 5720
6215 6411 6715 6810 814
meaning [1] 299
means [2] 144 6514
meant [2] 421 103
measures [1] 5615
medical [1] 3421
meet [4] 511 1420 331820
member [3] 2425 251 3119
members [2] 1610 2213
mentioned [2] 49 5616
merits [4] 1214 1312 514 537
message [2] 2124 224
met [1] 321
might [13] 620 181314 2218 26
12 356 4912 5023 511 5222
584 655 7413
migration [1] 458
military [1] 4821
million [2] 325 3618
millions [2] 6733
minimum [11] 316 423 7722 8
218 96 30123 7816
minutes [2] 75516
misunderstanding [1] 4912
moment [1] 7121
month [1] 413
months [1] 488
most [18] 1018 1110 1324 2912
25 352 361313 37141416 53
1 5922 6115 6421 6914 7015
7225
move [3] 107 2523 7214
moved [1] 6224
moves [1] 4212
much [8] 1120 2025 285 446 46
7 6620 71119
multi-agency [3] 312 1921 29
22
Muslim [19] 321 251820 2911
1315 4911619 6410121416
17 65314 663 811922
Muslim-majority [2] 156 2916
Muslims [5] 2715 6421 661819
8120
must [4] 2418 3111 325 7411
N narrow [1] 419
nation [1] 5924
national [14] 43 520 105 1121
129 1323 176 184 571 7011
1518 8019 821
nationality [7] 39424 401721
4315 59318
nationality-based [4] 609 611
793 8023
nationals [4] 317 40813 4415
nationwide [3] 217 2223 739
naturalization [1] 7411
nature [1] 102
nay [1] 416
NEAL [3] 122 26 3822
near [1] 7316
necessarily [1] 4711
necessary [4] 37911 472224
need [6] 420 1717 2622 304 31
20 6113
needed [7] 31725 423 77 819
781217
needs [1] 544
negative [2] 2124 226
Neither [2] 74 4212
neutral [6] 154 1923 2119 2517
292324
never [7] 359 394 4120 5021 72
18 76916
new [4] 3512 4517 5713 7317
next [3] 71 63623
Ninth [2] 262 643
nobody [2] 3422 3525
NOEL [5] 119 239 38 7517
non-immigrant [2] 81811
non-politically-correct [1] 6917
non-reviewability [2] 12114
none [1] 4716
Nope [1] 701
nor [1] 75
normal [1] 3220
nothing [8] 3717 461321 478
493 5713 6023 783
notice [1] 3524
noticed [1] 3018
number [11] 157 2522 329 34
15 361314 6524 6714 694 72
9 744
numbers [2] 3313
O oath [3] 28724 295
objections [2] 6616 7110
objective [4] 621 645 6625 70
22
observer [7] 621 6458 653 66
25 679 7022
observers [1] 1823
obviously [2] 719 7324
occupations [1] 5321
occurred [1] 6825
offer [1] 4312
office [2] 288 3622
officer [3] 7661318
officers [2] 764 7916
official [2] 7024 7113
officially [1] 7114
often [3] 3716 7220 8018
Okay [11] 3114 332323 3412 35
15 3718 5412 6123 755613
omits [2] 319 2915
Once [5] 814 1321 2620 477 81
1
one [39] 41113 52021 915 10
13 114 1220 13524 1616 17
19 2215 2314 278 2913 3015
3312 358 373 4013 4218 51
24 6015 6220 6311 6422 6522
6714 694 71811 7210 7716
7969 801020 8123
ones [3] 518 6511 718
only [17] 322 414 1116 1519 21
Heritage Reporting Corporation Sheet 5 Justice - only
88Official
13 2914 317 329 3423 3524
4218 5514 626 651317 661
6812
opinion [3] 357 577 7417
Opinions [1] 288
oral [5] 114 225 38 3822
order [31] 91 1411 2425 253 29
1921 30181923 3314 3724 39
1920 4614 47714 4822 539
5921 602 6116 621112 655
13 698 712 725 7421 7812
orders [5] 2917 4616 47615 69
10
ordinary [1] 7023
organization [1] 812
other [29] 323 75 99 105 149
311724 3220 3523 416 4319
4424 4525 4714 5510 5615 58
9 656919 663 671525 6913
703 7120 7512 76811
others [2] 915 741
Otherwise [3] 2124 2210 767
ought [1] 4822
out [13] 242 258 27311 2814 35
1616 3618 588 6114 66411
723
out-of-the-box [1] 186
outcome [1] 2417
outer [1] 420
outgrowth [1] 6910
over [5] 1325 167 3615 4723 80
12
overall [1] 915
overwhelmingly [1] 1510
owes [1] 279
own [2] 6816 694
P packed [1] 612
PAGE [6] 22 3614 5011 555 62
8 7212
palsy [4] 527 7212 77216
parameters [1] 516
Parkinsons [1] 7716
PARS [2] 523 7211
part [7] 2925 59222223 601 61
15 7016
participated [1] 692
particular [15] 1016 2117 2589
408 4416 5614 57212225 58
314 664 6919 777
parties [2] 517 7313
parts [1] 7612
party [1] 5224
pass [1] 4114
passed [1] 156
past [4] 522 822 2917 503
people [32] 20121617 225 31
15 32510 3415 355524 3634
6 375 4221 4415 5523 5925
67420 703 7120 7211725 76
11 771720 8016 8118
peoples [1] 802
percent [6] 407 5920 6115 64
17 661919
percentages [1] 7222
perennial [2] 4812 5716
perhaps [2] 5817 717
period [3] 415 244 4722
permanent [1] 4518
permission [1] 523
perpetual [4] 444 4521 4612 48
5
perpetuated [1] 444
person [6] 4325 7114 767 78
1820
personally [2] 517 7912
persons [1] 5110
Petitioners [6] 1521 2410 39
7518
pick [1] 7425
pieces [1] 725
place [6] 2116 2319 7911 8013
1725
placed [1] 3916
plainly [1] 252
plaintiff [1] 5222
plaintiffs [2] 2125 536
please [4] 311 3010 3825 7520
point [23] 1624 1820 294 367
419 4215 4317 446 452 538
5415 6022 66111 68414 718
74818 7814 793 808 8114
points [1] 7522
policy [15] 43 106 129 2319 39
3 4019 4318 451821 462 50
10 5312 6310 8018 821
political [1] 128
polity [1] 601
poorest [1] 746
population [4] 491619 641518
position [1] 5017
possibility [1] 386
possibly [2] 216 2913
potentially [2] 201320
power [11] 4418 1313 4419 45
5 5310 541 5811 607 6720 74
23
practice [1] 2120
praised [1] 8123
precedential [1] 1220
precludes [1] 5710
predominantly [3] 64121316
preference [2] 456 5321
preferences [1] 5318
preliminary [1] 2621
prescient [1] 582
prescribed [1] 558
present [8] 2059 5191221 52
101119
presidency [1] 168
PRESIDENT [86] 13 345 410
14 5913 63916 712 934 11
13131822 1313 162 1758 18
6 191 2381223 257 271525
3513 3712 3834 40612 4217
101214 441121 454 472 487
11212224 4918 508918 5310
101523 54591922 561622 57
321 5810 599 607 6271216
23 632 643 6817 6951520 70
158 712 742224 811517
Presidents [8] 313 44 2421 38
15 4114 69721 704
presidential [1] 6018
Presidents [2] 4716 578
press [2] 141 6214
pressure [8] 324 91 104 1815
252223 3313 7811
presumption [1] 2710
prevent [1] 545
previously [2] 311623
principal [4] 1319 3312 376 78
10
principally [1] 298
private [4] 179 28712 625
pro-Christian [1] 223
probably [2] 3414 7415
problem [16] 261 3413 398 42
1719 481512 497 5315 5517
571216 6925 71419
problems [3] 323 2521 5721
proc [1] 1610
procedures [1] 5817
proceeding [1] 513
process [27] 51515 810 1458
1419 152 1915 2623 274 29
20 3915 5714 6815 69215 72
1020 76123 78161823 7914
17
processes [1] 3221
proclamation [55] 318 42 54 7
24 81721 92022 102121525
111023 1311 14615 161216
191718 211116 231 273519
2910 3313 381114 451617 53
11 5514 611 6217 635718 64
8 6972021 70410 7422 7610
131516 7810 7925 81525
proclamations [1] 421
proclamations [5] 823 1013 11
3 3716 6220
professors [1] 7718
Program [5] 725 56510 596
promulgated [2] 6212 6311
propose [1] 4314
protect [3] 41 2423 304
protest [1] 6718
provide [8] 31625 96 301 3315
3912 566 7812
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1920 778
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10
purposes [4] 2216 3312 6114
751
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5 721
puts [5] 161922 6817 695 749
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2122 3015 346 353 3810 41
16 51210 543 5724 61617 62
18 6315 7012 7122 735 7525
8012
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Rather [1] 2514
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232324 7713
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35413 3712 383
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24 7317 7521 814
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652 6625 679 7022
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401522 4423 656 7412 802
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17
receives [1] 289
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1922
recommendations [2] 319 16
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684 7025
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1416 675
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23 4316 529 5513 5614 5825
6124 711820
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12 3823
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3610 371
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425 4820 4961421 501521
5719 58121620 6012 61610
1720 6218 634141722 7548
14 824
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3547 39819 5214 571215 63
10 658 685 6911
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Savings [1] 551
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12 5413 635 683 701221 71
10 787
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24 319 35824 4115 462020
47721 48241324 5224 5917
604 69810 7010 7217 7410
7724 821
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557 6724 698 7813 796
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Secondly [1] 255
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Secretary [3] 314 524 7115
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Security [12] 313 43 105 129
1323 176 184 70111518 80
19 822
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4415 7710 801
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666
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7416
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Sentelle [2] 4022 613
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sharing [1] 428
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side [5] 3523 4319 6056 717
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23 7921
single [2] 5517 7624
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1224 536 561220 584 599
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six [1] 487
slightly [1] 816
small [5] 2521 2925 329 5320
5921
so-called [2] 2911 457
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Solicitor [1] 119
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20
solutions [1] 557
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somebodys [1] 8012
someone [1] 425
son [1] 2018
sorry [3] 56 346 8116
sort [1] 5710
sorts [1] 5319
SOTOMAYOR [37] 56 62720
23 9817 112715 202 21115
22591521 23311172225 24
41216 2525 2691619 646 68
618 6924 795922 801
Soviet [1] 4814
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started [1] 144
starting [1] 1624
starts [1] 3015
State [13] 524 1423 3911 436
511725 5524 567 5823 7115
7224 761 7915
statement [2] 258 3616
statements [23] 1910 285614
1820 298 5011 60141623 62
24524 63619 649 6623 688
92020
STATES [20] 11416 36 316 39
11 409 4519 465 511619 52
23 536 56713 5717 591 7213
747 753
statute [16] 53 434 4424 4720
493 5019 54710 5711 6014
16 6710 6817 718 7319 7425
statutes [1] 494
statutes [3] 618 76 4712
statutory [4] 58 511 538 5419
stepped [1] 5314
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stop [2] 412 796
stopping [1] 227
stops [1] 1423
Stormans [2] 661221
strike [5] 482323 4910 6710 73
19
strong [3] 1511 2710 667
stronger [2] 1413 719
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struggled [1] 681
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stuff [1] 624
subject [4] 1210 248 761417
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2920
succeed [4] 2014 52151821
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Sudan [1] 2918
sufficiently [1] 916
suggest [1] 1714
suggested [3] 412 516 2220
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suggestion [1] 6824
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summarizing [1] 239
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supervision [1] 4723
supplant [1] 5423
supplement [3] 712 4421 5422
supplements [1] 4719
support [2] 217 2223
supported [1] 518
Suppose [3] 87 2816 405
supposed [1] 3423
SUPREME [3] 1115 7415
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suspect [1] 375
suspend [1] 414
suspicion [1] 249
sweeping [3] 4420 455 541
Syria [3] 40924 4823
Syrian [1] 4013
system [6] 58 71314 431 456
4818
T ts [1] 1613
tailored [3] 1023 481
talked [1] 7111
talks [1] 6814
targeted [1] 4915
tens [1] 4011
terms [5] 51 1516 3225 338 37
7
terrorism [10] 519 82 1720 303
3912 437 5524 568 5824 71
16
terrorist [2] 517 812
terrorists [2] 314 5613
test [4] 6125 659 679 7023
tests [2] 6814
Texass [1] 748
text [8] 52 44925 493 5916 60
25 614 655
textual [1] 442
themselves [2] 5124 627
theory [4] 2371415 4922
theres [30] 612 3014 32919 33
24 34161723 3717 40161618
4291118 435 446 461320 47
8 492711 5321 57912 693 72
1719 7717
therefore [1] 1210
theyll [1] 7117
theyve [7] 2416 3117 3422 47
1819 5713 7218
thinking [2] 1516 717
thinks [2] 1812 3520
third [7] 3925 51710 5224 559
6914 792
third-party [1] 5115
thorough [1] 249
though [7] 137 1714 1912 377
4216 543 7418
thousands [1] 4011
threat [1] 5612
three [9] 511 910 2916 392 551
615 6213 693
three-part [1] 398
throughout [1] 174
tied [1] 5010
tiny [1] 157
tobacco [1] 4513
today [2] 34 233
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tomorrow [3] 63517 8116
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top [1] 6425
tough [2] 173 196
tougher [1] 6916
track [2] 392223
transfer [1] 221
transformation [2] 2812 296
transgresses [1] 7421
transparent [1] 273
treatment [3] 3122 3421 6525
tremendous [1] 7416
trimmed [1] 7325
troubling [1] 739
true [4] 2121 3425 4616 7123
truly [1] 1725
TRUMP [3] 13 345
truth [1] 2711
try [4] 613 106 596 7814
trying [4] 3421 416 4314 526
turn [3] 1316 294 4510
turns [3] 723 761319
tweeted [2] 6213 6916
two [18] 1014 1519 2420 28319
292 3423 3524 36210 3711
401516 557 6517 6713 729
type [3] 2011 2219 4914
types [4] 105 2157 5715
typical [1] 823
U UN [1] 1817
US [3] 525 464 674
UARG [1] 5424
ultimate [1] 4116
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unconstitutional [1] 252
under [20] 4424 816 1313 2025
2511 276 288 2924 3815 433
496892123 5325 7118 768
11
undermine [2] 2510 2719
understand [9] 135 1520 2611
3623 375 4214 4910 528 65
21
undo [1] 607
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Union [1] 4814
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UNITED [20] 11415 35 316 39
10 409 4518 465 511519 52
23 536 56713 5717 591 7213
747 753
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unless [2] 1724 7522
unlike [1] 4714
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until [1] 41
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6417 771 7820
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using [1] 6719
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Valley [2] 212225
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vast [5] 31920 251920 2914
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15 4225 469 481518 571824
5817 595 6815 78151822
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2122 56510 595 606 7656 78
21 7918
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21 817811
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W Waiver [25] 725 1120 3322 341
37825 38666 56510 595 72
1015 7612361920 7747 79
1417
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18 731 7920
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Washington [3] 1112022
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245 2613 4310 4424 475 67
15 816
ways [1] 1514
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website [1] 762
Wednesday [1] 112
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whatever [6] 1416 2319 247 27
7 2821 291
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Whereupon [1] 826
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284 4018 4723 571 6219 767
7818 8012
whos [2] 525 702
whole [3] 713 6922 7724
wide [5] 4918 5758 633 671
will [3] 3819 4214 4624
Williamson [1] 5424
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window [3] 35921 7910
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3815 4325 7615
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1925 25171920 2610 291523
25 488 6412 7320 8124
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22 5714 6815
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Y yea [1] 416
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Youngstown [2] 4113 5914
yourself [1] 6612
Z zero [3] 5313 566 6010
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it imposes sanctions in order to pressure that
government to change
Thats what President Carter did with
respect 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
JUSTICE SOTOMAYOR Can you represent
that no other country that -- that fails all
three of the criteria was excluded from this
list
GENERAL FRANCISCO Well Your Honor
what I can represent is that the -- the -- the
analysis was holistic It wasnt if you failed
any one or the others It was if your overall
score was sufficiently low
JUSTICE SOTOMAYOR So given -shy
GENERAL FRANCISCO 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 below -- below the baseline but was not
subjected to sanctions
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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 weve now seen has been
successful as with the case of the government
of Iraq -- of Chad
JUSTICE KENNEDY In fact if you
compare this proclamation to the Reagan and the
Carter proclamations which I think were one or
two sentences this is longer than any
proclamation that -- that Ive seen in this
particular area
GENERAL FRANCISCO This is Your
Honor the most detailed 1182 -shy
JUSTICE KENNEDY Id say longer
detail -shy
GENERAL FRANCISCO Yes
JUSTICE KENNEDY -- is -- is a better
word
GENERAL FRANCISCO Yes This is the
more detailed 1182(f) proclamation in history
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It is not -shy
JUSTICE SOTOMAYOR General the
proclamations by Reagan and Carter however
were not as broad as this one
GENERAL FRANCISCO Your Honor they
were almost as broad but -shy
JUSTICE SOTOMAYOR And -- and -shy
GENERAL FRANCISCO -- to complete my
answer to Justice Kennedys 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 Reagans or President Carters
covered But its -shy
JUSTICE SOTOMAYOR And more -- and
more immigrants because Carters only applied
to certain immigrants not to all
GENERAL FRANCISCO President Carters
actually applied to all immigrants but then had
an exception much like the waiver provision
here for national interests and humanitarian
concerns So I think President Carters was
actually very similar to the proclamation here
And -shy
CHIEF JUSTICE ROBERTS Is your
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consular non-reviewability argument -- is that
a jurisdictional argument
GENERAL FRANCISCO Your Honor I -shy
yes I think it is a jurisdictional argument
And thats why I dont 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 to -shy
CHIEF JUSTICE ROBERTS I -- I thought
in Sale that we decided that this -- this
wasnt jurisdictional or at least decided the
merits despite the non-reviewability argument
that the government made
GENERAL FRANCISCO I think the second
thing that you just said Mr Chief Justice is
accurate The Court didnt address the
reviewability issue at all And so we dont
think its precedential one way or another
CHIEF JUSTICE ROBERTS Was the -- was
the argument raised in that case by the
government
GENERAL FRANCISCO Yes it was Your
Honor Actually you could -shy
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CHIEF JUSTICE ROBERTS So -- so its
an argument we would have been required to
address if it were in fact jurisdictional
GENERAL FRANCISCO I think so And
so I think one way you could understand it is
that it doesnt go to Article III jurisdiction
though it is a justiciability argument and we
would urge this Court to accept it because we
think its correct
But even if you dont think that its
correct we think that this proclamation
satisfies the merits because it does fall well
within the power of the President under
1182(f)
JUSTICE BREYER If youre about -shy
JUSTICE KAGAN May I turn General
to the constitutional claims in this case
GENERAL FRANCISCO Yes Your Honor
JUSTICE KAGAN And your principal
response to the Establishment Clause claim is
to cite Mandel and to say that once the
government comes forward with a legitimate
reason -- of course national security is the
most important reason one can come forward with
-- the game is over essentially And I just
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want to press on that a little bit
GENERAL FRANCISCO Sure
JUSTICE KAGAN So first I want to
ask whether that means -- you started off by
talking a lot about the process of this
proclamation But I -- I take it that that
argument would apply irrespective of what
process was used
In other words you would have made
the same Mandel argument to the first executive
order in this case or would you not
GENERAL FRANCISCO We would have made
a Mandel argument but it is far stronger given
that you have the process and substance upon
which this proclamation was based because
whatever you -shy
JUSTICE KAGAN Well I guess I wonder
why that is just because when I read Mandel
I dont see anything about process or you have
to meet a certain kind of bar
GENERAL FRANCISCO Uh-huh
JUSTICE KAGAN Mandel really is kind
of you state a reason and this Court stops
GENERAL FRANCISCO And I think that
that is right but I think that when you in
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addition to that have the extensive worldwide
process that we had that resulted in a
cabinet-level recommendation that applied a
neutral baseline to every country in the world
concluded that almost all the world including
almost all of the Muslim-majority world passed
that baseline but a tiny number of countries
didnt I think that whether you apply Mandel
or whether you apply McCreary that makes the
constitutional case in our favor overwhelmingly
strong Its a -shy
JUSTICE KAGAN So let me give you a
hypothetical and its just -- you know I
think that there are ways to distinguish Mandel
in this case but -- but -- but you know just
in terms of thinking about what Mandel really
forecloses here
GENERAL FRANCISCO And I -- because
Mandel there are only two cases in the area
and its -- its hard to understand the full
contours of it
JUSTICE KAGAN I agree So this is a
hypothetical that youve heard a variant of
before that the government has at any rate
but I want to just give you
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So lets say in some future time a -shy
a President gets elected who is a vehement
anti-Semite -shy
GENERAL FRANCISCO Uh-huh
JUSTICE KAGAN -- and says all kinds
of denigrating comments about 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 dot all the
is and they 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
GENERAL FRANCISCO Right
JUSTICE KAGAN Do you say Mandel puts
an end to judicial review of that set of facts
GENERAL FRANCISCO No Your Honor I
dont say Mandel puts an end to it but I do
say that in that context Mandel would be the
starting point of the analysis because it does
involve the exclusion of aliens which is where
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Mandel applies
If his cabinet -- and this is a very
tough hypothetical that weve 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 in his private heart of hearts
he also harbored animus
JUSTICE KAGAN Well the question is
GENERAL FRANCISCO I would also
suggest though -- if I could finish that Your
Honor -- that I think it would be very
difficult for that to even satisfy Mandel
rational basis scrutiny Id need to know what
the rational was Given that Israel happens to
be one of the countrys closest allies in the
war against terrorism its not clear to me
that you actually could satisfy -shy
JUSTICE KAGAN Well -shy
GENERAL FRANCISCO -- Mandels
rational basis standard on that unless it
truly were based -shy
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JUSTICE KAGAN Yes
GENERAL FRANCISCO -- on a
cabinet-level recommendation that was about
national security
JUSTICE KAGAN General Im -- lets
-- this is a out-of-the-box kind of President
in my hypothetical And -shy
(Laughter)
GENERAL FRANCISCO We -- we -- we
dont have those Your Honor
JUSTICE KAGAN And -- and you know
he thinks that there are good diplomatic
reasons and there might -- who knows what the
future holds that there might be good
diplomatic reasons to put pressure on Israel or
to say we want Israel to vote a certain way in
the UN and this is a way to better our
diplomatic hand and so this is what he does
And -- 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 think -shy
GENERAL FRANCISCO Right
JUSTICE KAGAN -- given this context
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in which this hypothetical President -shy
GENERAL FRANCISCO Sure
JUSTICE KAGAN -- is making virulent
anti-Semitic comments
GENERAL FRANCISCO Right And Your
Honor its a tough hypothetical but its why
I also think that this is a relatively easy
case because were 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 though we think that its
wrong that you applied some kind of domestic
establishment clause jurisprudence because
were 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 dont have the extreme
hypothetical that youre suggesting Your
Honor we do have a multi-agency worldwide
review and a cabinet-level recommendation that
applied a neutral baseline And this wasnt
done just by the cabinet secretaries but by the
agencies to every country in the world and
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concluded -shy
JUSTICE SOTOMAYOR Mr General you
just -shy
JUSTICE KENNEDY If -- if you have
that extreme hypothetical would that present a
free exercise or an Establishment Clause claim
or both
GENERAL FRANCISCO It could
definitely present a free exercise clause
challenge Your Honor just as you had a free
speech type claim in the Mandel case
And there would be people who could
bring that claim and who could potentially
succeed on that claim
JUSTICE KENNEDY And -- and the
people that could bring that claim I assume
were relatives of people that were excluded
father son
GENERAL FRANCISCO On free exercise
potentially I think all -shy
JUSTICE KENNEDY Yeah what about a
university
GENERAL FRANCISCO I think a
university could bring a free speech-type claim
under Mandel much -shy
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JUSTICE SOTOMAYOR Why not an
Establishment Clause claim
GENERAL FRANCISCO And -- and -shy
because Your Honor and the reason why I think
they havent pursued those types of claims is
because I dont think they would possibly
support the types of nationwide injunction that
theyre asking for
Your Honor the reason why I dont
think that they could bring an Establishment
Clause claim is because the proclamation
doesnt actually apply to the Respondents It
only applies to aliens abroad who have no
constitutional right to enter
JUSTICE SOTOMAYOR No but the claim
is that it -- that the proclamation is in place
because of a dislike of a particular religion
And I thought the Establishment Clause at its
heart is that we cannot be anything but neutral
with respect to religion or its practice
GENERAL FRANCISCO 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
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standing to challenge the land transfer from
the government to the Christian college on the
ground that it sent a pro-Christian or
anti-atheist message That -shy
JUSTICE SOTOMAYOR But these people
are saying that that negative religious
attitude is stopping them -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- 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
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR Which is one of
the purposes of the INS
GENERAL FRANCISCO And -- and thats
where they might have free exercise or free
speech claims along the type that Justice
Kennedy suggested -shy
JUSTICE SOTOMAYOR Well but I -shy
GENERAL FRANCISCO -- but which
couldnt support a nationwide injunction I
dont think that that gives them an
Establishment Clause claim when the
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proclamation doesnt actually apply to them
because -shy
JUSTICE SOTOMAYOR General today
can we go back to something thats 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 -- Im
summarizing in an incomplete way -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- 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 -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- not extreme
that he can hire or fire anyone he wants and
that he can put in place whatever policy he
wants
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR If we take Justice
Kagans hypothetical President -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- who basically
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says to his review committee I want to keep
out Jews -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- period find a
way Thats their charge
So in that situation why would the
actions of the committee whatever this is
Executive Committee not be subject to great
suspicion and to thorough review -- which
actually wasnt completely -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- done here -shy
given that they are responsible to the
executive -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- and theyve
been told what the outcome of their
deliberations must be
GENERAL FRANCISCO Sure And I have
two responses to that Your Honor
The first is that the Presidents
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
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cabinet member would refuse to comply or resign
in the face of a plainly unconstitutional
order 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 Mandel
standard
Here however you dont have anything
like that Rather you have the cabinet doing
its job through the agencies where they ask
the agencies to construct and apply 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 across the line
JUSTICE SOTOMAYOR General the
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problem is that I dont 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
the litigants or the courts exactly what was
done how what the evaluation and how -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- it was applied
to all those countries in the world
I understand some of the
confidentiality that might concern you but if
the backdrop is the way that Justice Kagan
described it -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- that -- that
heated -shy
GENERAL FRANCISCO Well I -- yeah -shy
JUSTICE SOTOMAYOR -- anti-Semitic
background dont you think that once you get
through the Mandel preliminary 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
GENERAL FRANCISCO Well Your Honor
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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
owes to another coequal branch of the
government there is a very strong presumption
that what is being set out there is the truth
JUSTICE KAGAN You -- you said
something earlier General I want to make sure
that I got it right You said if at the time
the President had said we dont want Muslims
coming into this country -shy
GENERAL FRANCISCO Uh-huh
JUSTICE KAGAN -- that that would
undermine the proclamation
GENERAL FRANCISCO Yes
JUSTICE KAGAN Did I get you right
GENERAL FRANCISCO Yes
JUSTICE KAGAN So I -- I think you
know honestly the difference here then seems
to be is everything that the President said
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effectively that
GENERAL FRANCISCO I think there are
two issues Your Honor 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 embodiment of the executive branch So
that those statements should be out of bounds
But for -shy
JUSTICE KENNEDY But suppose you have
a local mayor and as a candidate he makes
vituperative hate -- hateful statements hes
elected and on day two he takes acts that are
consistent with those hateful statements
Thats -- whatever he said in the campaign is
irrelevant
GENERAL FRANCISCO Your -- Your
Honor if he takes the same oath -shy
JUSTICE KENNEDY You would say
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whatever he said in the campaign is irrelevant
GENERAL FRANCISCO I would say two
things And that was the -- and the second
thing is the point I was about to turn to I
would say yes because we do think that oath
marks a fundamental transformation but I would
also say here it doesnt matter because here
the statements that they principally rely on
dont actually address the meaning of the
proclamation itself
This is not a so-called Muslim ban
If it were it would be the most ineffective
Muslim ban that one could possibly imagine
since not only does it exclude the vast
majority of the Muslim world it also omits
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 multi-agency worldwide review that
applied neutral criteria all across the world
and concluded under those neutral criteria
most of the world was fine but a small part of
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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
JUSTICE BREYER All right Can -shy
can I ask a more -- I did read I think almost
all the 80 briefs Now your time -- what do -shy
CHIEF JUSTICE ROBERTS Yeah dont
worry Please go ahead
JUSTICE BREYER All right All
right All right Almost 80 and I think I -shy
some were repetitive not too many And I
think I know the basic arguments but theres
one question Im left with and it starts with
an assumption which I think you share but I
want to be sure All right
I noticed that the Carter order and
the Reagan order both had case-by-case
exceptions
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER And I looked 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
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individual circumstances such as giving some
examples the following
And then they have to be no
terrorists Well thats the law anyway And
they -- they have to be in the interests of the
United States And there cant be undue
hardship which the only time the word
hardship appears in the immigration laws it
says extreme hardship
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER So undue must be
less than extreme
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER Okay So Im -- then
they have a list people with foreign contacts
previously established business reasons
theyve been here studying or other long-term
activity they want to visit or reside with a
close family member they have a disease or
something that they need -shy
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER -- treatment for
they -- previously been employed And there
are about five other things
GENERAL FRANCISCO Yeah
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JUSTICE BREYER All right Focus on
that class of individuals
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER Now in countries -shy
150 million people all together there must be
quite a few who have -- do fall within that
class So -shy
GENERAL FRANCISCO Well yes Your
Honor but theres only a small number of
people that seek to come into our country
JUSTICE BREYER Well thats what Im
asking about
GENERAL FRANCISCO Yeah
JUSTICE BREYER You see
GENERAL FRANCISCO Yeah
JUSTICE BREYER Thats now -- if you
-- you think -- now as far as were concerned
if they fall within that class there -shy
theres no reason given here why they should be
excluded other than the -- the normal
processes
GENERAL FRANCISCO Well a couple of
responses Your Honor
JUSTICE BREYER What
GENERAL FRANCISCO First in terms of
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the numbers -shy
JUSTICE BREYER Im not asking about
the numbers
GENERAL FRANCISCO Oh oh youre not
asking -shy
JUSTICE BREYER I want to ask about
GENERAL FRANCISCO So -- so in terms
of the reason -shy
JUSTICE BREYER Yeah
GENERAL FRANCISCO -- they should be
excluded one of the principal purposes of the
proclamation is to exert diplomatic pressure on
governments in order to get them to change and
provide us with the information -shy
JUSTICE BREYER So you think they
should be excluded
GENERAL FRANCISCO Not if they meet
the criteria for the -shy
JUSTICE BREYER Not if they meet the
criteria
GENERAL FRANCISCO -- for the waiver
JUSTICE BREYER Okay Okay So
theres -shy
GENERAL FRANCISCO Thats why we have
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-- thats why we have the waiver
JUSTICE BREYER Thats -- thats -shy
thats what I thought you would say
GENERAL FRANCISCO Yeah
JUSTICE BREYER Then I get -- can ask
my question Sorry
GENERAL FRANCISCO Yes
JUSTICE BREYER But I want to be sure
were the same wavelength
GENERAL FRANCISCO Yes
(Laughter)
JUSTICE BREYER Okay 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 theres the
business community complaining theres the
academic community there were 46 scholars at
Harvard there -- there are families in the
Lisa Blatt brief you know that -- that they
say we were trying to get medical treatment and
nobody told us about this and -- and theyve
only admitted two and theres supposed to be
guidance and -shy
GENERAL FRANCISCO Thats not true
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JUSTICE BREYER -- you havent put in
the guidance and -- and -- and the most there
are is 100 And so there is my question If
you have done the same thing that the Reagan
people did and the Carter people did then it
might be -- Im not expressing a definite
opinion -- but well youve got the same thing
here but if this is as one brief says just
window dressing and they never apply it -shy
GENERAL FRANCISCO Right
JUSTICE BREYER -- then you have
something new and different going well beyond
what President Reagan did
GENERAL FRANCISCO Sure
JUSTICE BREYER Okay So I want to
know how do I find out -- how do I find out
when there is not that information in the
brief do we have to -- can we have another
hearing Do we send it back Do we say look
the government of course thinks this isnt
window dressing -shy
GENERAL FRANCISCO Right
JUSTICE BREYER -- but the other side
says there are only two people no notice
nobody knows
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GENERAL FRANCISCO So Your Honor
two -shy
JUSTICE BREYER There are people in
Yemen there are people in Somalia -shy
GENERAL FRANCISCO Yeah
JUSTICE BREYER -- decent people
Business -- you see my point
GENERAL FRANCISCO Yes
JUSTICE BREYER Whats the answer
GENERAL FRANCISCO And two responses
JUSTICE BREYER Yes
GENERAL FRANCISCO Our reply brief
has our most -- most current number on waivers
and I believe the number at page 17 footnote
-- well its -- its over 400 I cant
remember the exact statement
JUSTICE BREYER All right Thats
400 out of 150 million
GENERAL FRANCISCO And then -shy
JUSTICE BREYER And -- and is it well
publicized in these countries that they know
all they have to do is go to the visa office
and say I understand the thing I want an
exception
GENERAL FRANCISCO No Your Honor
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and I have two -- two responses -shy
JUSTICE BREYER Yeah
GENERAL FRANCISCO -- to that One
is I dont know how well publicized it is but
I suspect that people understand how to get it
My second principal response is
though that frankly in terms of the
legality I think that the waiver is not
necessary although it is a very good thing
which is why -shy
JUSTICE BREYER Not necessary There
-- there you have President Reagan -shy
GENERAL FRANCISCO -- which is why
most -- which is why most governments dont -shy
which is why its -- its a good thing which
is why most of these proclamations often have
them But theres nothing in -shy
JUSTICE BREYER Okay So you want me
to consider -shy
GENERAL FRANCISCO -- the law that
actually requires it
JUSTICE BREYER Thats what you want
You want me to consider the lawfulness of this
order on the assumption that there is no
waiver
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GENERAL FRANCISCO I dont -shy
JUSTICE BREYER Which is not what -shy
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 here thats the -shy
thats the -shy
GENERAL FRANCISCO Right The answer
to my -- your question Your Honor is no I
dont want you to consider the proclamation on
the -- on the hypothetical situation that it is
what it isnt but I do think that the
proclamation as written and as applied falls
well within the Presidents authority under
1182(f)
Thank you Mr Chief Justice
CHIEF JUSTICE ROBERTS Thank you
General We will afford you rebuttal time
GENERAL FRANCISCO Thank you
CHIEF JUSTICE ROBERTS Mr Katyal
ORAL ARGUMENT OF NEAL K KATYAL
ON BEHALF OF THE RESPONDENTS
MR KATYAL Thank you Mr Chief
Justice and may it please the Court
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The executive order is unlawful for
three reasons It conflicts with Congresss
policy choices It defies the bar on
nationality discrimination something you never
heard my friend talk about And it violates
the First Amendment
Congress has already specified a
three-part solution to the very same problem
the order addresses Aliens seeking entry from
countries that dont cooperate with the United
States in vetting including state sponsors of
terrorism and countries that provide inaccurate
information
First aliens have to go through the
individualized 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 the order uses Congress rejected a
ban Instead it used carrots When countries
cooperated theyd get extra credit a track -shy
faster track for admission Legislation to use
big sticks like nationality bans failed
And third Congress was aware
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circumstances could change on the ground so it
required reporting to them so it could change
the law
CHIEF JUSTICE ROBERTS Well lets
take big sticks fail Lets suppose that the
intelligence agencies go to the President and
say we have 100 percent solid information
that on a particular day 20 nationals from
Syria are going to enter the United States with
chemical and biological weapons They could
kill tens of thousands of Americans
In that situation could the President
ban the entry of Syrian nationals on that one
day
MR KATYAL He could for two reasons
Theres two different arguments Theres the
nationality discrimination ban 1152 and then
theres you know whether or not this comports
with Congresss policy judgments
And with respect to both I think it
would It wouldnt be nationality
discrimination for the reasons Judge Sentelle
said in LAVAS when you have an emergency
fast-moving situation like the Syria example
youre saying
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CHIEF JUSTICE ROBERTS Well just to
stop interrupt you there I mean what if
its a week What if its a week a month from
now Thats what the intelligence information
is
In other words Im trying to -shy
MR KATYAL Right
CHIEF JUSTICE ROBERTS -- respond to
your point that it has to be an immediate
decision
MR KATYAL Yeah So I think you
know this Courts dealt with that in
Youngstown and Hamdan and said look you know
the Presidents going to get a pass absolutely
on you know what he says the emergency is
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 460 days on -- later
Mr Chief Justice Hes never even introduced
legislation about this So were so far from
that hypothetical well concede the
hypothetical
CHIEF JUSTICE ROBERTS Well imagine
-- imagine if you can that Congress is unable
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to act when the President asked for
legislation
(Laughter)
MR KATYAL Right
CHIEF JUSTICE ROBERTS And someone
introduces a bill saying lets authorize -shy
first of all the President may have qualms
about sharing that absolute intelligence
broadly but lets say theres a bill
introduced to say lets authorize the President
and theres a bill introduced to say lets
block the President and neither bill moves
MR KATYAL 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 -- theres only one
problem hes identifying which is countries
not cooperating
Hes not talking about people coming
in or something like that like your
hypothetical And with respect to that
Congress has said heres how we deal with it
We deal with it with the individualized vetting
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system which pushes all the burdens on a
person coming in Thats 1361
Youve got to show biometric ID under
the statute Youve got to have an in-person
interview if theres any risk that the person
is from a country thats a state sponsor of
terrorism like your hypothetical or anything
else
So Congress has really said in a
robust way heres how we would deal with it
And to the extent countries arent cooperating
we offer carrots
Congress rejected exactly what theyre
trying to propose here which is a flat
nationality ban And thats where I think the
force of our argument lies with respect to the
first point which is this is countermanding
Congresss policy judgments
My friend on the other side actually
in his brief -shy
JUSTICE ALITO Well Congress did -shy
Congress did act It enacted 1182(f)
MR KATYAL Correct
JUSTICE ALITO Why doesnt this fall
squarely within the language of 1182(f)
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MR KATYAL For -- for -- we have
both textual reasons that its not a class for
reasons Justice Breyer was talking about Its
not perpetuated -- its perpetual like Justice
Ginsburg was talking about But we think
theres a much bigger point Justice Alito
which is -shy
JUSTICE ALITO Well maybe you could
talk about the text Its not a class
Doesnt 11 -- doesnt 1182(f) say whenever the
President finds that the entry of any aliens -shy
MR KATYAL Correct
JUSTICE ALITO -- or any class of
aliens So put class aside although I dont
really see why people who are nationals of a
particular country dont constitute a class
What about any aliens
MR KATYAL Right So we think it is
any you know -- because the power in 1182 is
so broad and sweeping and does allow the
President to supplement what Congress has done
we think that you have to -- you have to be
careful and read limit -- you have to read it
just the way you read every other statute to
say how do we harmonize that broad text of
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1182(f) with the rest of the INA
And our point in our briefs which I
dont 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 you know and end so-called chain
migration or anything like that He could do
-- countermand any of the provisions of the INA
and turn it into a line item veto
So for that reason we think there
has to be some limit Thats something this
Courts dealt with in you know the tobacco
case or -shy
JUSTICE ALITO Well does this
proclamation do anything like that Does this
proclamation purport to establish a new
permanent immigration policy for the United
States
MR KATYAL Absolutely Your Honor
This is a perpetual policy that bans It does
exactly what Congress in 1965 said you cant
do And it countermands Congresss
fine-grained reticulated judgment from 2001
2015 and several other times which is to say
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instead of these flat bans were going to have
-- were going to balance foreign policy
considerations economic considerations like
the US companies brief humanitarian image
of the United States views all of that
together and said we wont do the flat ban
Instead were going to have a much
more fine-grained approach with individualized
vetting and carrots for the countries that
dont disagree -- that dont cooperate
JUSTICE ALITO What is your basis for
saying that it is perpetual
MR KATYAL Well theres nothing in
the order that ends it And you heard my
friend say oh that would doom all executive
orders But thats not true Half of these -shy
JUSTICE KENNEDY I thought it had to
be reexamined every 180 days
MR KATYAL No thats not what it
says It says theres a report that has to
come in at 180 days and nothing happens at the
end of the report
JUSTICE KENNEDY Well that -- that
indicates there will be a reassessment
MR KATYAL Well in -shy
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JUSTICE KENNEDY And then the -- and
-- and the President has continuing discretion
MR KATYAL Justice Kennedy this
argument wouldnt be there if there was
anything about reassessment the way there are
in about half the orders including the Cuba
order which says it sunsets once the crisis
ends Theres nothing like that in this
And its just like a reporting
requirement to Congress in which Congress isnt
necessarily required to do anything Congress
has statutes like that all the time
This is that And thats why this is
unlike any other executive order If you go
back and look at all 43 executive orders that
Presidents have issued none of them have even
arguably countermanded Congresss judgment in
the area Theyve all been consistent
Theyve all been supplements
JUSTICE KENNEDY Well the statute
says first that -- that -- that 1182 for such
period as he deems necessary and he can have
continuing supervision over whether its still
necessary
MR KATYAL Again we wouldnt have a
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problem with that if it was tailored to a
crisis it says it sunsets and then you know
could be re-upped or something like that
Thats not what this says This is about a
perpetual problem
JUSTICE KENNEDY So you want the
President to say Im convinced that in six
months were going to have a safe world
MR KATYAL Well -- well -- well no
Justice Kennedy thats not our argument Our
argument is here the President is identifying
something that is a perennial problem Our
brief says it goes back 100 years you know
when the Soviet Union was around we dont 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
CHIEF JUSTICE ROBERTS What if the
military advisors tell the President that in
their judgment the President ought to order a
strike an air strike against Syria and the
President says well -- does that mean he cant
because you would regard that as discrimination
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against a majority Muslim country
MR KATYAL Absolutely not Theres
nothing to do with the text of the statute
The 1152 statutes about discrimination and the
issuance of visas And thats all that -shy
CHIEF JUSTICE ROBERTS So under
1182(f) you would say that theres no problem
under that provision
MR KATYAL Well under 1182 as I
understand it was a strike And so I dont
think theres any immigration issue in your
hypothetical I might be misunderstanding it
Mr Chief Justice
CHIEF JUSTICE ROBERTS Well any type
of targeted action that would have a impact on
the Muslim population
MR KATYAL Absolutely We think the
President has wide authorities to do things
that have impacts on the Muslim population
Take the laptop ban that was introduced -shy
CHIEF JUSTICE ROBERTS Why under your
theory wouldnt that constitute or the argument
would be that thats discrimination under your
Establishment Clause argument -shy
MR KATYAL Oh
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CHIEF JUSTICE ROBERTS -- that thats
discrimination on the basis of faith because he
has said in the past if you accept the -shy
MR KATYAL Yeah
CHIEF JUSTICE ROBERTS -- accept the
arguments that he -- he is anti-Muslim
MR KATYAL Not at all Your Honor
and no President has run afoul of this you
know and thats because here the President
and his advisors have directly tied this policy
to those statements And the red brief at page
70 I think is the greatest illustration of
that
Thats 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 INA is
that the President can take a wrecking ball to
the statute and countermand Congresss
fine-grained judgments that -shy
CHIEF JUSTICE ROBERTS He can never
-shy
JUSTICE KAGAN Well you might think
-shy
JUSTICE GORSUCH Mr Katyal -- Mr
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Katyal if I might on -- on the statutory
question before we leave it Weve been
proceeding so far on the assumption that we can
reach the merits but the government makes the
argument for example that aliens who are
removed from this country have to bring their
claims personally and third parties cant
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
who are not present in this country Whats
the answer to that
MR KATYAL Well several This is
not a third-party case These are United
States citizens bringing this challenge in a
state -shy
JUSTICE GORSUCH Oh behalf of -shy
MR KATYAL -- of the United States
JUSTICE GORSUCH -- aliens not
present in the country
MR KATYAL Well but they are
directly -- they are directly harmed
themselves Let me just give you one example
Not just the State of Hawaii whose university
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is directly impacted but lets just take for
example the Alomari -- Mr Alomari the
10-year-old in the PARS Equality brief Justice
Breyer that you were referring to This is a
10-year-old daughter in Yemen who is -- whos
trying to come here because she has cerebral
palsy
JUSTICE GORSUCH I understand that
but those arguments dont work with respect to
aliens present in the country So why do they
work for aliens who are not present in the
country
MR KATYAL Because I -shy
JUSTICE GORSUCH Those very same
arguments would not succeed
MR KATYAL Well -shy
JUSTICE GORSUCH I think youd
concede that they wouldnt succeed for aliens
present -shy
MR KATYAL Right And they dont
succeed because there you have a better
plaintiff might not be willing to bring them in
the United States and thats why the court
you know says no third party But here
these folks are directly impacted
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And the most important thing to say is
Sale answers this You heard my friend concede
Sale was jurisdictional the issues in Sale
Thats how they briefed it up Thats how he
just described it This Court had exactly that
situation United States plaintiffs and it
reached the merits
Our statutory point to you is that if
you accept this order youre giving the
President a power no President in 100 years has
exercised an executive proclamation that
countermands Congresss policy judgments He
has zero examples to say that when Congress has
stepped into the space and solved the exact
problem that the President can then come in
and say No I want a different solution
If you do that youd -- its not just
family preferences that youre allowing him to
get rid of youd get rid of all sorts of even
small things in the Code or big things like
theres a preference for specialty occupations
like software engineers in the INA The
President could say The economics are such
Im going to ban software engineers from going
to California or something like that under that
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sweeping 1182 power
JUSTICE KAGAN I -- I guess the
question though Mr Katyal is maybe youre
entirely right that 1182(f) needs to have some
limits to prevent the President from doing
something thats completely contrary to another
section of the statute
But youre suggesting well the
President cant do anything thats not
contemplated by the rest of the statute
MR KATYAL That is not our argument
JUSTICE KAGAN Okay 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 -shy
MR KATYAL Right
JUSTICE KAGAN -- between what the
President is doing and another statutory
provision
MR KATYAL So our view is that the
President can supplement he just cant
supplant In this Courts decisions in the
Brown amp Williamson case and the UARG greenhouse
gas and Concepcion and Abilene Cotton the
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Savings Clause cases all say there are three
things you look at And its not a flat bar
It cant be like a direct contravention Even
they say its not a direct contravention in
their reply brief at page 19
So the three things are first can
these two solutions coexist or not Second
has Congress prescribed a reticulated
comprehensive scheme And third you know is
there any other indication that Congress
considered 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 -shy
Congress has a comprehensive reticulated scheme
that deals with the exact single problem that
hes identified which is countries not
cooperating It cant coexist with the
solution of a flat ban It makes no sense for
example to have the in-person visa requirement
-- visa interview which is in 12 -shy
1202(h)(2) which is for -- for people who come
from state sponsors of terrorism or who have a
group with a likelihood of providing
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inaccurate information Congress said there
has to be an in-person interview for that
It doesnt make sense to say well
youre going to have a flat ban It doesnt
make sense to have a Visa Waiver Program which
is all about countries that provide zero
information to the United States -- state
sponsors of terrorism and the like -- and say
were going to give you a carrot and then say
oh no forget about the Visa Waiver Program
JUSTICE ALITO Can -- can you imagine
any situation in which the threat of the
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
MR KATYAL Yes
JUSTICE ALITO You cannot imagine any
such situation
MR KATYAL Yes I can And the
President would have a robust authority to deal
with that That is not our argument So -shy
JUSTICE KENNEDY And your argument is
that courts have the -- the duty to review
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whether or not there is such a national
exigency thats for the courts to do not the
President
MR KATYAL No I think you have
wide deference Justice Kennedy Its exactly
what you said when you joined Justice Breyers
opinion in Hamdan which is as long as -- you
know Presidents have wide berth in this area
but if -- you know certainly if theres any
sort of emergency that precludes it
But when you have a statute that
considers the very same problem and theres
nothing new that theyve identified in this
worldwide review process that Congress didnt
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 the -shy
CHIEF JUSTICE ROBERTS But thats in
the abstract I mean they may have more -shy
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
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And it seems to me a difficult
argument to say that Congress was prescient
enough to address any particular factual
situation that might arise
MR KATYAL Well that again -shy
thats again Mr Chief Justice not our
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 But here -shy
CHIEF JUSTICE ROBERTS What about -shy
what about a change of administration in a
particular country -shy
MR KATYAL Yes
CHIEF JUSTICE ROBERTS -- in which
perhaps the vetting procedures are not going to
be taken seriously
MR KATYAL Right
CHIEF JUSTICE ROBERTS That Congress
could not have anticipated
MR KATYAL Well but again
Congress anticipated a country that is a state
sponsor of terrorism and even for -- with
respect to that providing no information and
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indeed fomenting against the United States
Congress said oh were not going to have a
nationality ban You know they flatly banned
that and said were going to have
individualized vetting and this Visa Waiver
Program carrot to try and deal with that you
know dangerous regime
Now again I can imagine an emergency
situation in which the President would have
even greater authority for that But here we
are 460 days later and I would caution the
Court not to make a decision about the
emergency youre concerned about That can be
bracketed as it was in Youngstown as it was in
Hamdan This is so far from that
The text of 1152 is flatly violated
here It says there shall be no discrimination
on the basis of nationality with the issuance
of visas
That is 39 percent of all the visas
this executive order covers Its not a small
part Its 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
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become part of our long-term polity This
executive order flatly contradicts that
Now if you accept his
interpretation -- he says well you know
were discriminating at the entry side not at
the visa side If you do that you are giving
the President the power to undo -- and hes
actually just done it -- hes undone the ban on
nationality-based discrimination Hes imposed
country quotas of zero for these countries at
the border
CHIEF JUSTICE ROBERTS If your -shy
your argument based on discrimination based on
the campaign statements is there a statute of
-- no the one that you do make based on the
campaign statements is there a statute of
limitations on that or is that a ban from
presidential findings for the rest of the
administration
MR KATYAL So Mr Chief Justice I
first want to be very clear about this Our
point about 1152 and the discrimination has
nothing to do with any campaign statements or
anything else
Its purely the text of the
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proclamation which is nationality-based
discrimination through and through Judge
Sentelle said you couldnt imagine a clearer
text than this And this is -- it violates it
Now -shy
CHIEF JUSTICE ROBERTS My question
was on the -shy
MR KATYAL -- youre asking about
the First Amendment
CHIEF JUSTICE ROBERTS Yes
MR KATYAL I just want to make
absolutely clear that were -- thats not -shy
you know you dont need to do any of that for
purposes of 1152 And that would knock out
39 percent of the most important part of the
executive order
CHIEF JUSTICE ROBERTS My question
of course -shy
MR KATYAL Yes Now Im getting -shy
CHIEF JUSTICE ROBERTS -- was not on
1152
MR KATYAL Yes Im getting there
Okay
With respect to that we dont think
-- we think that the test as this Court has
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said a reasonable objective observer viewing
all the statements and we think absolutely
my friend is right you shouldnt look to
campaign statements in general or stuff like
that 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 70
of our red brief you have a very good example
of this
After the executive order this latest
executive order was promulgated the President
tweeted these three virulent anti-Muslim
videos And then the press spokesman was
asked What does this mean What is this
about And the answer was The President has
spoken about exactly this in the proclamation
CHIEF JUSTICE ROBERTS My question
was whether or not the inhibition on the
ability to -- to enter one of the proclamations
applies forever
MR KATYAL Right No I think the
President could have disclaimed -- you know
easily moved away from all of these statements
you know but instead they embraced them
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Thats the difference
And so absolutely the President
would have wide berth to say thats a -shy
CHIEF JUSTICE ROBERTS So if
tomorrow he issues a proclamation saying hes
disavowing all those statements then the next
day he can reenter this proclamation
MR KATYAL Thats exactly what this
Court said in McCreary This Court in McCreary
said you know the same policy can be
constitutional if said -- if promulgated by one
entity and not by another depending on the
circumstances around it
CHIEF JUSTICE ROBERTS Is your answer
to my question yes
MR KATYAL Yes The answer is -shy
CHIEF JUSTICE ROBERTS Tomorrow he
issues a proclamation disavowing those
statements -shy
MR KATYAL Absolutely And thats a
CHIEF JUSTICE ROBERTS -- then the
next day he could reenter this and your
discrimination argument would not be
applicable
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MR KATYAL And -- and -- and Mr
Chief Justice thats exactly what I told the
Ninth Circuit in May The President didnt do
that Thats whats -- thats -- you know
thats what a reasonable objective observer -shy
JUSTICE SOTOMAYOR So if another -shy
JUSTICE ALITO Mr Katyal would any
reasonable observer reading this proclamation
with -- without taking into account statements
think that this was a Muslim ban
I mean there are -- I think there are
50 predominantly Muslim countries in the world
Five -- five countries -- five predominantly
Muslim countries are on this list
The population of the -- of the
predominantly Muslim countries on this list
make up about 8 percent of the worlds Muslim
population
MR KATYAL Absolutely
JUSTICE ALITO If you looked at the
10 countries with the most Muslims exactly
one -shy
MR KATYAL Right
JUSTICE ALITO -- Iran would be on
that list of the top 10
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MR KATYAL Right
JUSTICE ALITO So would a reasonable
observer think this was a Muslim ban
MR KATYAL If it were -- if it were
just the text of the order alone it might
raise eyebrows for fit and other reasons that
the briefs go into but we wouldnt be here
We absolutely agree that just -- its the same
test as in Lukumi and other cases You have to
look to all the circumstances around it that
are said the publicly available ones
You know and Justice Alito the fact
that the order only come -- encompasses some
Muslim countries I dont think means its not
religious discrimination For example if Im
an employer and I have 10 African-Americans
working for me and I only fire two of them I
dont think -- you know and say well Ive
left the other eight in I dont think anyone
can say thats not discrimination
JUSTICE ALITO No I -- I understand
that And it is one of our fundamental values
that there is religious freedom here for
everybody in that number -- adherence to every
religion are entitled to equal treatment
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My only point is that if you look at
what was done it does not look at all like a
Muslim ban There are other justifications
that jump out as to why these particular
countries were put on -- on the list
So you -- it seems to me the list
creates a strong inference that this was not
done for that invidious purpose
MR KATYAL Justice Alito I think if
it were just the list I think wed be right -shy
youd be right although Id point out that
you yourself in the Stormans case said that
its a religious -- it raises an inference of
religious gerrymander of the burden imposed
falls almost exclusively on those with
religious objections
This is a ban that really does fall
almost exclusively on Muslims between
902 percent and 998 percent Muslims And so
it does look very much like what you said in
Stormans But even then we wouldnt be here
if it werent for all of the different
statements
And the best evidence of this about
what a reasonable objective observer would
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think is to look at the wide variety of amicus
briefs in this case from every corner of
society representing millions and millions of
people from the US Conference of Catholic
Bishops which calls it blatant religious
discrimination
JUSTICE GORSUCH Mr Katyal on that
its been a long time since this Court has used
the Lemon test reasonable observer even to
strike down a domestic statute let alone
something with purely international
application What -- what do we do about that
MR KATYAL Yeah 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 and our protest of
King George which is all about using the
immigration power to exclude people of a
different faith And thats what our
Constitution is about So thats the first
thing
And the second is we dont think you
have to get into Lemon and all these other
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tests that you all have struggled with I
think this Court in Lukumi was very clear in
saying that when youre talking about
denigration of religion all the tests point in
the same direction
JUSTICE SOTOMAYOR Mr Katyal you
said something earlier you said you wouldnt
be here if all of those statements the
background statements were not made Do you
mean that on all of your bases You wouldnt
be here on the Establishment Clause claim
MR KATYAL Only on the Establishment
Clause claim not on anything else And our
point is you know he talks about for
example this worldwide vetting process
Remember his own argument on 1182 is
the statute puts the President -shy
JUSTICE SOTOMAYOR So lets -- lets
go back to not being here without the
statements Clearly the statements even
conceded by your adversary do give you a basis
to look behind all right the reason
So if were looking behind it how do
you deal with the Generals suggestion that
there was a cleansing that occurred because of
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all of the agencies and departments who
participated in this process
MR KATYAL Yeah So theres three
things Number one is that his -- his own
argument is that 1182 puts the President in the
drivers seat so the cabinets not important
Its the Presidents proclamation
Second the order itself says in its
first lines it harkens back to Executive
Orders 1 and 2 and it says its an outgrowth
of that So it was infected by the same thing
that was struck down on Establishment 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 ban
a non-politically-correct ban and the like
So given all of those things but in
particular given the fact that 1182 itself
forces the President to make the proclamation
its the Presidents proclamation so I dont
think you even have to get into this whole
unitary executive thing but I do agree with
you Justice Sotomayor that thats another
problem which is theyre coming before the
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Court and saying Nope its the President
whos in charge And now theyre saying here
Oh no no no its these other people
This is the Presidents proclamation
through and through No President has ever
said anything -- anything like this And
thats what makes this different
And the President -shy
JUSTICE KAGAN And -- and yet Mr
Katyal 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 evaluating the adequacy of those
national security interests which for the most
part weve said courts are not equipped to do
MR KATYAL Right Were not asking
you to second-guess a national security
judgment at all with the purpose of the
Establishment Clause
Were saying you just have to look to
what a reasonable objective observer would do
Thats the ordinary test that youve used in
cases like Lukumi Is there an official
purpose to disparage a religion Here there
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very much is Thats you know everything
that the President has said and that the order
itself embodies Thats our fundamental
problem
JUSTICE BREYER What do you think -shy
its a -- its a -- its still something Im -shy
Im thinking about perhaps to the side but
the statute you point to one of the ones that
is stronger for you There are obviously
objections to what youre saying in quite a few
briefs all right but the one that you talked
about it does say you have to have an
interview with a consular official if the
person is from a country officially designated
by the Secretary as a state sponsor of
terrorism It does say that
So theyll say but we do have that in
respect to everyone under the exception So
there isnt much problem Weve gone beyond
that in respect to other people All right
Take their argument for a moment
Because my question is which I
couldnt find in the briefs is is it true -shy
Im just taking what they say -- that really
that isnt so they dont publicize it they
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havent put forth a guidance people dont know
they can come in and qualify for this
And if it turns out that that is
something that is important to the lawfulness
of the order because there are many many
categories there -shy
MR KATYAL Right
JUSTICE BREYER -- what do we do
MR KATYAL So two things Number
one this waiver process has excluded -- and
you have this in the PARS Equality brief at
page 14 A 10-year-old with cerebral palsy who
wants to come to the United States to save her
life and she cant move or talk The
10-year-old was denied a waiver Justice
Breyer
He says theres 430 people who have
gotten waivers Theyve never told you the
denominator and theres no publication of this
process and how -- how often it is And the
data that we do have suggests as a matter of
percentages its very weak
Just to give you some evidence of
that just the State of Hawaii has gotten about
1000 letters from people most of which say
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were not even getting waivers on the like
JUSTICE GORSUCH That -shy
MR KATYAL Weve heard very few
instances -shy
JUSTICE GORSUCH -- raises a question
of remedy for me
MR KATYAL Yes
JUSTICE GORSUCH We have this
troubling rise of this nationwide injunction
cosmic injunction -shy
MR KATYAL Yeah yeah
JUSTICE GORSUCH -- not limited to
relief for the parties at issue or even a class
action
MR KATYAL Right
JUSTICE GORSUCH And near as I can
tell thats -- thats a really new development
where a district court asserts the right to
strike down a -- a federal statute with regard
to anybody anywhere in the world
MR KATYAL Yeah
JUSTICE GORSUCH What -- what do we
do about that
MR KATYAL Obviously the injunction
here has been trimmed by this Court itself and
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others And I do think -- I -- I share your
impulse Justice Gorsuch Thats something
that I think lower courts are debating right
now in a number of different contexts like the
contraception case and the like
I think this case is the poorest
example to get into it because of United States
versus Texass point which is this is an
immigration case and Article I Section 8 puts
Congress in the drivers 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 doesnt make a
tremendous amount of sense It would almost be
an advisory opinion
Our fundamental point to you though
is that Congress is in the drivers seat when
it comes to immigration and that this
executive order transgresses the limits that
every President has done with this proclamation
power since 1918 And to accept it here is to
accept that the President can take an iron
wrecking ball to the statute and pick and
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choose things that he doesnt want for purposes
of our immigration code That cant be the law
of the United States
CHIEF JUSTICE ROBERTS Take five
extra minutes Okay
MR KATYAL Okay
(Laughter)
CHIEF JUSTICE ROBERTS You dont have
to
(Laughter)
MR KATYAL Well if there are -- if
there are any other questions Im happy to
take anything Okay Thank you
CHIEF JUSTICE ROBERTS Thank you
counsel
Five minutes for rebuttal General
REBUTTAL ARGUMENT OF GENERAL NOEL J FRANCISCO
ON BEHALF OF THE PETITIONERS
GENERAL FRANCISCO Mr Chief -- Mr
Chief Justice and may it please the Court
I -- I really do have just a few quick
points unless Your Honors have additional
questions
Justice Breyer I did want to respond
in more detail to your question about how the
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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
the waiver -- the visa officer first determines
whether the person is otherwise admissible
under other provisions of the INA
If theyre inadmissible you never
even get to the proclamation Then for those
people who are not inadmissible under other
parts of the INA like 1182(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 youre not subject to an exception
then the consular officer him or herself
turns to the waiver provision and applies the
criteria of the waiver provision
JUSTICE GINSBURG How do you deal
with the -shy
GENERAL FRANCISCO So it does get
applied in every single case
JUSTICE GINSBURG How -- how do you
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deal with the example that was brought up of
the child with cerebral palsy
GENERAL FRANCISCO Your Honor the
waiver is built to address those issues I am
not familiar enough with the details of that
case to tell you what happened in that
particular case But thats what the waiver
provision -shy
JUSTICE BREYER But thats -- thats
you see -shy
GENERAL FRANCISCO -- is intended to
address
JUSTICE BREYER Youve read the
briefs as have I All right Now there are
some that lists about 10 or 15 instances like
the cerebral palsy One has Parkinsons Then
theres another brief that lists all the people
who are professors scholars at universities
and there are a lot And -- and then there are
people they list the students from these
countries a lot
GENERAL FRANCISCO Yeah
JUSTICE BREYER And then the business
community lists a -- a whole bunch and says my
goodness they have been unable to get -- we
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dont know whats going on
And then they say Well whats going
on is nothing is going on
GENERAL FRANCISCO Well Your Honor
-shy
JUSTICE BREYER Now I dont -- Im
not taking sides on that Im just saying I
dont know
GENERAL FRANCISCO Right And the
principal purpose of the proclamation is of
course to 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 Im 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
admissible
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 dont and doesnt tell us we
cannot intelligently make the admissibility
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determination
Third Id like to address the
1152(a)(1)(A) point about nationality-based
discrimination
JUSTICE SOTOMAYOR General could you
stop just one second
GENERAL FRANCISCO Yes Your Honor
of course
JUSTICE SOTOMAYOR I for one am like
Justice Breyer concerned about is this window
dressing or not Whats in place to ensure
its not What are you personally doing to
represent to us that it is in fact a real
waiver process -shy
GENERAL FRANCISCO Your Honor State
Department consular officers automatically
apply the waiver process in the course of every
visa application And they are doing that
which is why there have been -- and I looked at
our brief -- 430 waivers that have been issued
since -shy
JUSTICE SOTOMAYOR Have you bothered
-shy
GENERAL FRANCISCO -- the
proclamation was issued
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JUSTICE SOTOMAYOR -- to look to see
if there are reasons for all of those peoples
exclusions
GENERAL FRANCISCO Your Honor I
cannot claim that I have looked into every
individual case
JUSTICE KENNEDY Could you make your
1152 point
GENERAL FRANCISCO Yes Your Honor
1152(a)(1)(A) addresses one thing the issuance
of immigrant visas It doesnt address the
broader question over whether somebodys
allowed to enter in the first place
Thats governed by 1182 including
1182(f) So essentially 1182 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 1152(a)(1)(A) is
one of the rules that governs how we distribute
visas amongst that group thats eligible to
come in
And its not just nationality-based
distinctions that it applies to It also
applies to things like place of residence So
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once you have that universe of eligible people
1152(a)(1)(A) governs how you distribute them
But lets 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 non-immigrant visas to people who
arent allowed to enter but we wouldnt have
to allow anyone to enter and we wouldnt have
to issue any non-immigrant visas
So the bottom line is I think theyre
simply wrong on that case -- on that issue
My final point has to do with my -- my
brothers 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 25 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
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says its about Foreign policy and national
security And we would ask that you reverse
the court below
CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1109 am the case
was submitted)
Heritage Reporting Corporation
83Official
1 998 [1] 6619 39914 44111417 51581120 arise [2] 5725 584
1 [1] 6910 A 52101118
ALITO [16] 432124 446813 45
around [3] 4814 6313 6510
Article [2] 136 749 1000 [1] 7225 am [3] 116 32 826 15 4611 561119 6472024 65 aside [1] 4414 10 [4] 642125 6516 7715 Abilene [1] 5425 21221 669 asks [3] 169 519 7614 10-year-old [4] 5235 721215 ability [1] 6220 allies [2] 73 1719 assert [2] 5111 7811 1002 [2] 116 32 able [2] 2210 5111 allow [3] 413 4420 8110 asserts [1] 7318 100 [4] 353 407 4813 5310 above-entitled [1] 114 allowed [3] 178 8013 819 associate [1] 2211 11 [1] 4410 abroad [1] 2113 allowing [1] 5318 associated [1] 812 1109 [1] 826 absolute [1] 428 almost [8] 116 1556 30712 66 assume [4] 19811 2016 813 1152 [7] 4017 494 5916 6022 61 absolutely [12] 4114 4213 4520 1518 7416 assumption [3] 3016 3724 513 1421 808 49217 5810 6112 622 63220 Alomari [2] 5222 attitude [1] 227
1152(a)(1)(A [4] 793 801019 81 6419 658 alone [2] 655 6710 Attorney [1] 523 2 abstract [1] 5720 already [3] 61024 397 authorities [1] 4918
1182 [10] 1018 4419 4721 499 academic [1] 3418 although [3] 379 4414 6611 authority [7] 6916 712 3815 42 541 6816 69519 801415 accept [8] 138 454 5035 539 Amendment [3] 396 619 6716 15 5622 5910
1182(a [1] 7612 603 742324 American [1] 1111 authorize [2] 42610 1182(f [18] 4591318 54 616 7 acceptability [1] 108 Americans [2] 4011 8121 automatically [2] 764 7916 1120 1025 1314 3816 432225 account [2] 105 649 amicus [1] 671 available [1] 6511 4410 451 497 544 8015 accurate [1] 1218 amongst [1] 8021 aware [2] 391725
12 [1] 5522 across [3] 107 2524 2923 amount [1] 7416 away [2] 6224 8117 1202(h)(2 [1] 5523
1361 [1] 432
act [4] 128 177 421 4322
acting [1] 313 analysis [3] 914 1624 7013
animus [1] 1710 B
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1965 [1] 4522 added [1] 519 anti-Semite [1] 163 20 564 593 60817 6410 653
2 addition [2] 617 151 anti-Semitic [2] 194 2619 66317 691617 8119
2 [1] 6910
20 [1] 408
2001 [1] 4524
2015 [1] 4525
2018 [1] 112
25 [2] 112 8118
additional [1] 7522
address [10] 71 12618 133 299
583 77412 792 8011
addressed [2] 59 5723
addresses [3] 76 399 8010
adequacy [2] 5724 7014
adequate [1] 610
anti-Semitism [1] 1615
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anybody [1] 7320
anyway [1] 314
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applicable [1] 6325
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bar [3] 1420 393 552
bare [1] 303
based [7] 1415 1725 275 2922
60131315
baseline [14] 3162123 722 819
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3 [1] 24 administration [2] 5813 6019 applied [10] 111619 153 1913 7817
38 [1] 27 admissibility [3] 78 820 7825 23 269 2923 3814 76324 bases [1] 6810
39 [2] 5920 6115 admissible [4] 424 816 767 78 applies [9] 322 171 2113 6221 basic [4] 615 725 127 3014
4 19
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basically [2] 23725
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400 [2] 361518 admitted [1] 3423 231 2516 359 7917 502 5918 6821
43 [1] 4715 adopt [1] 314 approach [1] 468 became [1] 3917
430 [2] 7217 7920 adopts [1] 318 appropriate [1] 3025 become [1] 601
46 [1] 3418 adversary [1] 6821 April [1] 112 becomes [1] 5925
460 [2] 4119 5911 advice [2] 179 289 arbiter [1] 2622 began [1] 6915
5 50 [1] 6412
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affirm [1] 524
area [5] 419 1016 1519 4718 57
8
arent [2] 4311 819
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23 5118 7518
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70 [2] 5012 628 afoul [1] 508 argued [1] 236 below [6] 323 9212424 262 82
75 [1] 210 African-Americans [1] 6516 argument [37] 115 2258 348 3
8 agencies [5] 1925 251516 406
691 121241422 1327 1471013
19912 3822 4316 474 4810
benefit [1] 73
berth [2] 578 633
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80 [2] 30812 ahead [1] 3010 5827 6013 6324 6816 695 71 better [3] 1022 1817 5221
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Heritage Reporting Corporation Sheet 1 1 - big
84Official
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2
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805
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11 151015 198 2011 236 45
14 5115 5424 6612 672 7456
9 7624 7767 806 8113 8256
case-by-case [5] 30192325 38
77
cases [5] 1519 551 659 6913
7024
categories [1] 726
Catholic [1] 674
Catholics [1] 6718
caution [1] 5911
cerebral [4] 526 7212 77216
certain [3] 1117 1420 1816
certainly [2] 5015 579
Chad [3] 46 1010 2917
chain [1] 457
challenge [4] 2010 2123 221 51
16
change [5] 92 3314 4012 5813
charge [2] 245 702
check [1] 254
chemical [1] 4010
CHIEF [49] 3310 1125 121117
21 131 309 3817182124 404
41182024 425 4820 49613
1421 501521 5719 5861216
20 601220 616101720 6218
634141722 642 75481419
20 824
child [1] 772
choices [1] 393
choose [1] 751
Christian [1] 222
Circuit [3] 2633 643
circumstances [4] 311 401 63
13 6510
cite [2] 76 1321
citizen [3] 28712 625
citizens [1] 5116
claim [15] 1320 20611131416
24 2121115 2225 5014 6811
13 805
claimed [1] 2624
claims [4] 1317 215 2219 517
class [10] 322718 3413 4429
131416 7313
Clause [15] 1320 1914 2069 21
21118 2225 288 4924 551 68
1113 6912 7020
cleansing [1] 6825
clear [8] 923 1720 2123 5016
5415 6021 6112 682
clearer [1] 613
Clearly [1] 6820
close [1] 3119
closest [2] 73 1719
Code [2] 5320 752
coequal [1] 279
coexist [2] 55719
college [1] 222
come [13] 1324 175 3210 4621
526 5315 5523 5925 6513 72
213 801622
comes [3] 1322 5717 7420
coming [5] 79 2716 4221 432
6925
comments [2] 166 194
committee [4] 512 24178
community [3] 341718 7724
companies [1] 464
compare [1] 1012
complaining [1] 3417
complete [1] 118
completely [2] 2410 546
comply [1] 251
comports [1] 4018
comprehensive [2] 55916
concede [3] 4122 5218 532
conceded [1] 6821
Concepcion [1] 5425
concern [2] 59 2612
concerned [3] 3217 5913 7910
concerns [2] 1122 129
concluded [4] 155 201 2518 29
24
conduct [2] 824 95
Conference [1] 674
confident [1] 1915
confidential [1] 265
confidentiality [1] 2612
confirms [1] 2921
conflict [1] 5416
conflicts [1] 392
Congress [40] 41015 5710 64
81024 385 397172025 4117
25 421624 439132122 4421
4522 47101011 4817 5313 55
81016 561 571423 5822023
592 741019
Congresss [7] 392 4019 4318
4523 4717 5019 5312
consequences [1] 5017
consider [6] 199 284 371923
3811 5715
considerations [4] 106 4633
4819
considered [1] 5511
considers [1] 5712
consistent [2] 2820 4718
constantly [1] 718
constitute [2] 4416 4922
Constitution [3] 2424 289 6722
constitutional [6] 1317 1510 19
18 2114 5014 6311
constitutionally [1] 2810
construct [1] 2516
consular [6] 121 7113 76412
18 7916
contacts [1] 3115
contemplated [1] 5410
context [3] 161523 1825
contexts [2] 5725 744
continuing [2] 47223
contours [1] 1521
contraception [1] 745
contradicts [1] 602
contrary [2] 54614
contravention [2] 5534
convinced [1] 487
cooperate [5] 84 3910 4610 48
15 5717
cooperated [1] 3922
cooperating [3] 4220 4311 55
19
core [1] 720
corner [1] 672
correct [4] 13911 4323 4412
cosmic [1] 7310
Cotton [1] 5425
couldnt [3] 2223 613 7123
counsel [2] 7515 825
countermand [2] 459 5019
countermanded [1] 4717
countermanding [1] 4317
countermands [2] 4523 5312
countries [45] 3152225 51821
22 749 91920 1047 1112 15
7 2212 252224 2610 2916 32
4 3621 3910121821 4219 43
11 469 4815 5518 566 5716
5810 6010 641213141621 65
14 665 7721 7811 812224
country [29] 416 811 99 154
1925 251718 2716 305 3210
4215 436 4416 491 516912
21 521012 5615 581423 6010
7114 8017 812123
countrys [1] 1719
couple [2] 271 3222
course [8] 1323 1679 3520 61
18 7811 79817
COURT [22] 1115 311 1218 13
8 1423 3825 5223 535 5912
6125 6399 678 682 701 7318
25 741315 7520 823
Courts [3] 4112 4513 5423
courts [5] 266 5625 572 7016
743
covered [2] 1114 2917
covers [2] 1112 5921
created [2] 5815
creates [1] 667
credit [1] 3922
criminal [2] 83 304
crisis [2] 477 482
criteria [8] 512 910 292324 33
1921 3919 7620
cross [1] 1613
crystal-clear [2] 811820
Cuba [2] 95 476
current [1] 3613
cuts [1] 6715
D DC [3] 1112022
Heritage Reporting Corporation Sheet 2 bigger - DC
85Official
danger [1] 525
dangerous [1] 597
data [1] 7221
daughter [1] 525
day [5] 2819 40814 63723
days [4] 4119 461821 5911
deal [8] 422425 4310 5622 596
6824 7621 771
deals [1] 5517
dealt [3] 173 4112 4513
debating [1] 743
decent [1] 366
decided [3] 610 121213
decision [3] 2122 4110 5912
decisions [1] 5423
deemed [1] 5616
deems [1] 4722
defend [1] 2423
deference [2] 4118 575
defies [1] 393
definite [1] 356
definitely [1] 209
deliberations [1] 2418
denied [1] 7215
denigrating [1] 166
denigration [1] 684
denominator [1] 7219
Department [3] 120 761 7916
departments [1] 691
depending [1] 6312
depends [1] 7816
described [3] 811 2614 535
designated [2] 518 7114
despite [1] 1214
detail [3] 1020 274 7525
detailed [3] 101825 1110
details [1] 775
determination [2] 815 791
determine [4] 424 78 819 7817
determined [1] 714
determines [1] 766
developing [1] 5722
development [1] 7317
difference [2] 2724 631
different [10] 822 3512 4016 53
16 5511 6622 6721 707 744
816
difficult [2] 1716 581
diplomatic [5] 324 18121518
3313
direct [3] 5415 5534
direction [2] 5512 685
directly [6] 5010 512323 52125
5413
disagree [1] 4610
disagreed [1] 813
disavowing [2] 63618
disclaimed [1] 6223
discretion [1] 472
discriminating [1] 605
discrimination [17] 394 401722
4825 49423 502 5917 60913
22 612 6324 651520 676 794
disease [1] 3119
dislike [1] 2117
disparage [1] 7025
distinctions [1] 8024
distinguish [1] 1514
distribute [2] 8020 812
district [1] 7318
Doe [1] 88
doing [8] 63 229 2514 5015 54
519 791218
domestic [2] 1913 6710
DONALD [2] 13 35
done [9] 1924 2412 267 354 44
21 608 6628 7422
doom [1] 4615
dot [1] 1612
down [4] 256 6710 6912 7319
dressing [3] 35921 7911
drivers [3] 696 741019
dropped [1] 46
duty [2] 276 5625
duty-bound [1] 2423
E earlier [2] 2713 687
easily [1] 6224
easy [1] 197
economic [1] 463
economics [1] 5323
effectively [1] 281
eight [1] 6519
either [2] 1112 265
elected [2] 162 2819
eligible [3] 801621 811
embodies [1] 713
embodiment [1] 2813
embraced [1] 6225
emergency [5] 4023 4115 5710
59813
emerges [2] 161416
employed [1] 3123
employer [1] 6516
enacted [1] 4322
encompasses [1] 6513
end [6] 162022 2314 4557 46
22
ends [2] 4614 478
engaging [1] 825
engineers [2] 532224
enough [4] 415 68 583 775
ensure [2] 2623 7911
enter [7] 1617 2114 409 6220
8013 81910
entire [1] 810
entirely [1] 544
entitled [1] 6525
entity [1] 6312
entry [6] 314 414 399 4013 44
11 605
equal [1] 6525
Equality [2] 523 7211
equipped [1] 7016
ESQ [2] 122 26
essentially [3] 714 1325 8015
establish [1] 4517
established [1] 3116
Establishment [12] 1320 1914
206 2121018 2225 4924 68
1112 6912 7020
ET [2] 147
evaluating [1] 7014
evaluation [1] 267
even [20] 1310 17916 19811 25
11 4120 4716 5319 553 5824
5910 6621 679 6820 691522
73113 7610
everybody [2] 2123 6524
everyone [1] 7118
everything [2] 2725 711
evidence [2] 6624 7223
exact [4] 3616 4217 5314 5517
exactly [12] 625 266 4313 4522
535 57515 62817 638 64221
example [14] 86 4024 455 515
24 522 5521 587 629 6515 67
17 6815 747 771
examples [2] 312 5313
exception [7] 92123 1120 3624
7118 761417
exceptions [2] 302023
exclude [2] 2914 6720
excluded [6] 910 2017 3220 33
1217 7210
exclusion [2] 127 1625
exclusions [1] 803
exclusively [2] 661518
executive [23] 715151618 14
10 23712 24814 2813 391 46
15 471415 5311 5921 602 61
16 621112 69923 7421
exercise [4] 206919 2218
exercised [1] 5311
exert [1] 3313
exerts [1] 324
exigency [1] 572
expect [1] 2424
explore [1] 420
expressing [2] 510 356
extensive [1] 151
extent [1] 4311
extra [2] 3922 755
extreme [8] 514 1919 205 2314
17 255 31912
eyebrows [1] 656
F face [1] 252
facial [1] 2510
fact [8] 10311 133 2623 6512
6714 6919 7913
factors [1] 5515
facts [1] 1620
factual [1] 583
fail [1] 405
failed [4] 315 914 301 3924
failing [1] 3918
fails [1] 99
failure [1] 96
fair [1] 55
faith [3] 277 502 6721
fall [7] 323 924 1312 32618 43
24 6617
falling [1] 3412
falls [3] 44 3814 6615
familiar [1] 775
families [1] 3419
family [5] 2212 3119 4566 53
18
far [5] 1413 3217 4121 513 59
15
fast-moving [1] 4024
faster [1] 3923
father [1] 2018
favor [1] 1510
federal [1] 7319
fell [1] 920
few [4] 326 7110 733 7521
final [1] 8114
find [4] 244 351616 7123
findings [1] 6018
finds [1] 4411
fine [3] 2521 2925 7615
fine-grained [4] 4524 468 4818
5020
finish [1] 1714
fire [2] 2318 6517
first [21] 14310 2421 272 283
3225 39614 427 4317 4721
556 6021 619 671622 699 76
614 801317
fit [1] 656
five [6] 3124 64131313 75416
flat [7] 4314 4616 4817 55220
564
flatly [3] 59316 602
flexible [1] 418
Focus [1] 321
folks [1] 5225
follow [1] 178
following [1] 312
fomenting [1] 591
footnote [1] 3614
force [1] 4316
forces [1] 6920
forecloses [1] 1517
foreign [8] 42 825 106 129 31
15 462 8018 821
forever [1] 6221
Forge [2] 212225
forget [1] 5610
form [1] 1916
forth [2] 618 721
forward [2] 132224
founding [1] 6718
four [1] 7814
Fourth [1] 263
FRANCISCO [117] 119 239 37
810 417 616112225 91218
10172124 115818 1231624
13418 142122124 1518 164
1821 171323 182924 1925
2081923 21321 228141722
2310162124 243111519 268
Heritage Reporting Corporation Sheet 3 danger - FRANCISCO
86Official
151825 27172022 28223 292
3021 3110132125 32381315
2225 334811182225 3447
1025 35101422 361581012
1925 3731320 381920 7517
19 7623 7731122 7849 797
1524 8049
frankly [1] 377
free [7] 2069101924 221818
freedom [1] 6523
friend [5] 395 4319 4615 532
623
full [1] 1520
fundamental [5] 2811 296 6522
713 7418
future [2] 161 1814
G game [1] 1325
gas [1] 5425
GEN [3] 119 239
General [127] 119 3810 417 57
23 616112225 91218 1017
2124 1125818 1231624 134
1618 142122124 1518 16418
21 171323 1825924 1925 20
281923 21321 228141722
23310162124 243111519 25
25 268151825 2713172022
28223 292 3021 31101321
25 323813152225 334811
182225 34471025 35101422
3615810121925 3731320
38191920 624 75161719 76
23 7731122 7849 79571524
8049
Generals [1] 6824
George [1] 6719
gerrymander [1] 6614
gets [1] 162
getting [4] 611922 731 7414
GINSBURG [4] 48 445 762125
give [8] 711 86 151225 5124
569 6821 7223
given [10] 917 1413 1718 1825
1915 241325 3219 691819
gives [2] 616 2224
giving [3] 311 539 606
goodness [1] 7725
GORSUCH [14] 5025 511820 52
81417 677 73258121622 74
2
got [4] 2714 357 4334
gotten [2] 721824
governed [1] 8014
government [14] 825 92 109 12
1523 1322 1524 222 264 278
10 3520 514 7823
governments [2] 3314 3714
governs [2] 8020 812
great [4] 248 274 812124
greater [1] 5910
greatest [1] 5012
greenhouse [1] 5424
ground [3] 223 401 5723
grounds [2] 624 6913
group [2] 5525 8021
guess [2] 1417 542
guidance [3] 3424 352 721
H Half [2] 4616 476
Hamdan [3] 4113 577 5915
hand [1] 1818
happened [1] 776
happens [2] 1718 4621
happy [1] 7512
harbored [1] 1710
hard [1] 1520
hardship [3] 31789
harkens [1] 699
harmed [1] 5123
harmful [2] 824 95
harmonize [1] 4425
Harvard [1] 3419
hate [1] 2818
hateful [2] 281820
hatred [1] 167
HAWAII [4] 17 36 5125 7224
head [2] 23812
hear [1] 33
heard [7] 1523 39519 453 4614
532 733
hearing [1] 3519
heart [6] 179 181921 2119 59
24 6716
hearts [3] 179 182021
heated [1] 2617
heightened [1] 514
help [4] 421 721 87 2523
herself [1] 7618
hire [1] 2318
history [6] 824 1025 1111 303
4
holds [1] 1814
holistic [1] 914
home [2] 811 7823
Homeland [1] 313
honestly [2] 176 2724
Honor [38] 417 61319 71 810 9
12 1018 11511 12325 1318
1621 1715 1810 19621 2010
214922 2420 2625 28324 32
923 36125 3810 4520 507 77
3 784 79715 8049
Honors [1] 7522
hoping [1] 7814
however [3] 419 113 2513
humanitarian [2] 1121 464
hypothetical [15] 151323 173
187 191620 205 2323 3812
412223 4223 437 4912
I is [1] 1613
ID [1] 433
idea [1] 454
ideal [2] 81 303
identified [2] 5518 5713
identify [1] 824
identifying [2] 4219 4811
III [1] 136
illustrate [1] 87
illustration [1] 5012
image [1] 464
imagine [7] 2913 412425 5611
19 598 613
imbued [1] 128
immediate [1] 419
immigrant [3] 5923 8011 817
immigrants [3] 11161719
immigration [10] 412 318 4518
4911 67151720 74920 752
impact [1] 4915
impacted [2] 52125
impacts [1] 4919
impediment [1] 4117
implement [3] 422 721 815
important [7] 1324 531 5923 61
15 696 7011 724
importantly [2] 517 6914
impose [3] 617 103 457
imposed [3] 2522 609 6614
imposes [1] 91
imposing [1] 8119
improve [1] 718
impulse [1] 742
in-person [3] 434 5521 562
INA [11] 42225 618 721 816 45
19 5017 5322 76812
inaccurate [2] 3912 561
inadequate [1] 5617
inadmissible [2] 76911
including [9] 320 155 251819
2917 3911 4217 476 8014
incomplete [1] 239
inconsistent [2] 523
indeed [1] 591
independent [1] 2622
indicates [1] 4624
indication [1] 5510
individual [4] 311 781522 806
individualized [4] 3915 4225 46
8 595
individuals [2] 78 322
ineffective [1] 2912
infected [1] 6911
inference [2] 66713
infiltration [1] 5613
information [20] 31625 423 77
23 81319 97 302 3315 3517
3913 407 414 5617 5825 78
1317
inhibition [1] 6219
initial [1] 253
injunction [5] 217 2223 73910
24
injury [1] 2124
INS [1] 2216
instances [2] 734 7715
Instead [5] 3921 4617 4817 62
25
intelligence [3] 406 414 428
intelligent [1] 815
intelligently [1] 7825
intended [1] 7711
intention [1] 8119
interests [4] 1121 315 701115
international [1] 6711
interpretation [1] 604
interrupt [1] 412
interview [4] 435 5522 562 71
13
introduced [4] 4120 421011 49
20
introduces [1] 426
invidious [1] 668
involve [1] 1625
Iran [2] 94 6424
Iraq [3] 923 1010 2917
iron [1] 7424
irrelevant [2] 2822 291
irrespective [1] 147
Islam [1] 8123
isnt [5] 3520 3813 4710 7119
25
Israel [4] 1617 1718 181516
issuance [3] 495 5918 8010
issue [10] 1219 16101011 4911
5511 7313 8171113
issued [7] 54 89 1110 4716 78
22 792025
issues [6] 126 283 533 63518
774
item [1] 4510
itself [5] 2910 69819 713 7325
J Jane [1] 88
Jews [2] 166 242
job [1] 2515
join [1] 2213
joined [1] 576
Judge [2] 4022 612
judges [2] 2623
judgment [6] 43 4524 4717 48
22 7019 8019
judgments [4] 4019 4318 5020
5312
judicial [1] 1620
jump [1] 664
jurisdiction [1] 136
jurisdictional [5] 122413 133
533
jurisprudence [1] 1914
Justice [217] 120 3310 48 56 6
272023 9817 10111922 112
791525 12111721 1311516
19 1431722 151222 16519
171122 18151125 193 2024
1521 21115 2259151921 23
31117222225 2441216 2525
269131619 2712182123 28
1625 30691122 31111422 32
1411141624 3326101620
23 3425812 351111523 363
Heritage Reporting Corporation Sheet 4 FRANCISCO - Justice
87Official
69111720 372111822 382
17182125 404 41182024 42
5 432124 44346813 4515 46
111723 471320 4861020 49
6131421 5015212325 5118
20 52381417 5421218 5611
1924 575619 586121620 60
1220 616101720 6218 63414
1722 642672024 6521221
669 677 68618 6924 709 715
72815 73258121622 742 75
48142024 762125 7791323
786 79591022 8017 824
justiciability [1] 137
justifications [1] 663
K KAGAN [26] 131619 1431722
151222 16519 171122 1815
1125 193 2613 2712182123
5023 5421218 709
Kagans [1] 2323
KATYAL [79] 122 26 38212224
4015 41711 42413 4323 441
1218 4520 46131925 47325
489 49291725 504725 511
141922 52131620 5431117
21 561821 574 585151922
6020 618111922 6222 638
1620 64171923 6514 669 67
713 68612 693 701017 7279
733711152124 75611
keep [3] 241 258 4215
KENNEDY [19] 10111922 204
1521 2220 281625 461723 47
1320 48610 5624 575 807
Kennedys [1] 119
kept [1] 264
kill [1] 4011
kind [8] 142022 1612 186 1913
5415 5924 7012
kinds [1] 165
King [1] 6719
knock [1] 6114
knows [4] 181319 3525 7823
L land [1] 221
language [1] 4325
laptop [1] 4920
large [1] 5922
later [2] 4119 5911
latest [1] 6211
Laughter [5] 188 3411 423 757
10
LAVAS [1] 4023
law [4] 314 3720 403 752
lawfulness [2] 3723 724
laws [2] 411 318
layer [1] 519
lays [1] 273
learns [1] 811
least [1] 1213
leave [1] 512
left [2] 3015 6519
legality [1] 378
Legislation [3] 3923 4121 422
legislative [1] 4117
legitimacy [1] 2511
legitimate [1] 1322
Lemon [2] 67925
less [1] 3112
letters [1] 7225
level [2] 423 77
lies [1] 4316
life [1] 7214
light [1] 5722
likelihood [1] 5525
limit [3] 51 4423 4512
limitations [1] 6017
limited [1] 7312
limits [4] 420 64 545 7421
line [4] 107 2524 4510 8112
lines [1] 699
Lisa [1] 3420
list [10] 47 911 3115 64141625
665610 7720
listed [1] 919
lists [3] 77151724
litigants [1] 266
little [2] 613 141
local [1] 2817
long [3] 415 577 678
long-term [2] 3117 601
longer [2] 101419
look [16] 724 2622 3519 4113
4715 552 6238 6510 661220
671 6822 7021 801
looked [7] 5713 624 3022 6420
7919 805
looking [1] 6823
lot [5] 612 145 167 771921
love [1] 8122
low [1] 916
lower [1] 743
Lukumi [3] 659 682 7024
M made [7] 1215 14912 286 689
811820
main [1] 720
maintain [1] 717
majority [6] 31920 251920 29
15 491
Mandel [18] 1321 1410131822
158141619 16192223 17116
201125 2511 2621
Mandels [1] 1723
many [5] 3013 7255 812222
mark [1] 2811
marks [1] 296
material [1] 261
matter [5] 114 1917 259 297 72
21
mayor [1] 2817
McCreary [3] 159 6399
mean [9] 1820 412 4824 5720
6215 6411 6715 6810 814
meaning [1] 299
means [2] 144 6514
meant [2] 421 103
measures [1] 5615
medical [1] 3421
meet [4] 511 1420 331820
member [3] 2425 251 3119
members [2] 1610 2213
mentioned [2] 49 5616
merits [4] 1214 1312 514 537
message [2] 2124 224
met [1] 321
might [13] 620 181314 2218 26
12 356 4912 5023 511 5222
584 655 7413
migration [1] 458
military [1] 4821
million [2] 325 3618
millions [2] 6733
minimum [11] 316 423 7722 8
218 96 30123 7816
minutes [2] 75516
misunderstanding [1] 4912
moment [1] 7121
month [1] 413
months [1] 488
most [18] 1018 1110 1324 2912
25 352 361313 37141416 53
1 5922 6115 6421 6914 7015
7225
move [3] 107 2523 7214
moved [1] 6224
moves [1] 4212
much [8] 1120 2025 285 446 46
7 6620 71119
multi-agency [3] 312 1921 29
22
Muslim [19] 321 251820 2911
1315 4911619 6410121416
17 65314 663 811922
Muslim-majority [2] 156 2916
Muslims [5] 2715 6421 661819
8120
must [4] 2418 3111 325 7411
N narrow [1] 419
nation [1] 5924
national [14] 43 520 105 1121
129 1323 176 184 571 7011
1518 8019 821
nationality [7] 39424 401721
4315 59318
nationality-based [4] 609 611
793 8023
nationals [4] 317 40813 4415
nationwide [3] 217 2223 739
naturalization [1] 7411
nature [1] 102
nay [1] 416
NEAL [3] 122 26 3822
near [1] 7316
necessarily [1] 4711
necessary [4] 37911 472224
need [6] 420 1717 2622 304 31
20 6113
needed [7] 31725 423 77 819
781217
needs [1] 544
negative [2] 2124 226
Neither [2] 74 4212
neutral [6] 154 1923 2119 2517
292324
never [7] 359 394 4120 5021 72
18 76916
new [4] 3512 4517 5713 7317
next [3] 71 63623
Ninth [2] 262 643
nobody [2] 3422 3525
NOEL [5] 119 239 38 7517
non-immigrant [2] 81811
non-politically-correct [1] 6917
non-reviewability [2] 12114
none [1] 4716
Nope [1] 701
nor [1] 75
normal [1] 3220
nothing [8] 3717 461321 478
493 5713 6023 783
notice [1] 3524
noticed [1] 3018
number [11] 157 2522 329 34
15 361314 6524 6714 694 72
9 744
numbers [2] 3313
O oath [3] 28724 295
objections [2] 6616 7110
objective [4] 621 645 6625 70
22
observer [7] 621 6458 653 66
25 679 7022
observers [1] 1823
obviously [2] 719 7324
occupations [1] 5321
occurred [1] 6825
offer [1] 4312
office [2] 288 3622
officer [3] 7661318
officers [2] 764 7916
official [2] 7024 7113
officially [1] 7114
often [3] 3716 7220 8018
Okay [11] 3114 332323 3412 35
15 3718 5412 6123 755613
omits [2] 319 2915
Once [5] 814 1321 2620 477 81
1
one [39] 41113 52021 915 10
13 114 1220 13524 1616 17
19 2215 2314 278 2913 3015
3312 358 373 4013 4218 51
24 6015 6220 6311 6422 6522
6714 694 71811 7210 7716
7969 801020 8123
ones [3] 518 6511 718
only [17] 322 414 1116 1519 21
Heritage Reporting Corporation Sheet 5 Justice - only
88Official
13 2914 317 329 3423 3524
4218 5514 626 651317 661
6812
opinion [3] 357 577 7417
Opinions [1] 288
oral [5] 114 225 38 3822
order [31] 91 1411 2425 253 29
1921 30181923 3314 3724 39
1920 4614 47714 4822 539
5921 602 6116 621112 655
13 698 712 725 7421 7812
orders [5] 2917 4616 47615 69
10
ordinary [1] 7023
organization [1] 812
other [29] 323 75 99 105 149
311724 3220 3523 416 4319
4424 4525 4714 5510 5615 58
9 656919 663 671525 6913
703 7120 7512 76811
others [2] 915 741
Otherwise [3] 2124 2210 767
ought [1] 4822
out [13] 242 258 27311 2814 35
1616 3618 588 6114 66411
723
out-of-the-box [1] 186
outcome [1] 2417
outer [1] 420
outgrowth [1] 6910
over [5] 1325 167 3615 4723 80
12
overall [1] 915
overwhelmingly [1] 1510
owes [1] 279
own [2] 6816 694
P packed [1] 612
PAGE [6] 22 3614 5011 555 62
8 7212
palsy [4] 527 7212 77216
parameters [1] 516
Parkinsons [1] 7716
PARS [2] 523 7211
part [7] 2925 59222223 601 61
15 7016
participated [1] 692
particular [15] 1016 2117 2589
408 4416 5614 57212225 58
314 664 6919 777
parties [2] 517 7313
parts [1] 7612
party [1] 5224
pass [1] 4114
passed [1] 156
past [4] 522 822 2917 503
people [32] 20121617 225 31
15 32510 3415 355524 3634
6 375 4221 4415 5523 5925
67420 703 7120 7211725 76
11 771720 8016 8118
peoples [1] 802
percent [6] 407 5920 6115 64
17 661919
percentages [1] 7222
perennial [2] 4812 5716
perhaps [2] 5817 717
period [3] 415 244 4722
permanent [1] 4518
permission [1] 523
perpetual [4] 444 4521 4612 48
5
perpetuated [1] 444
person [6] 4325 7114 767 78
1820
personally [2] 517 7912
persons [1] 5110
Petitioners [6] 1521 2410 39
7518
pick [1] 7425
pieces [1] 725
place [6] 2116 2319 7911 8013
1725
placed [1] 3916
plainly [1] 252
plaintiff [1] 5222
plaintiffs [2] 2125 536
please [4] 311 3010 3825 7520
point [23] 1624 1820 294 367
419 4215 4317 446 452 538
5415 6022 66111 68414 718
74818 7814 793 808 8114
points [1] 7522
policy [15] 43 106 129 2319 39
3 4019 4318 451821 462 50
10 5312 6310 8018 821
political [1] 128
polity [1] 601
poorest [1] 746
population [4] 491619 641518
position [1] 5017
possibility [1] 386
possibly [2] 216 2913
potentially [2] 201320
power [11] 4418 1313 4419 45
5 5310 541 5811 607 6720 74
23
practice [1] 2120
praised [1] 8123
precedential [1] 1220
precludes [1] 5710
predominantly [3] 64121316
preference [2] 456 5321
preferences [1] 5318
preliminary [1] 2621
prescient [1] 582
prescribed [1] 558
present [8] 2059 5191221 52
101119
presidency [1] 168
PRESIDENT [86] 13 345 410
14 5913 63916 712 934 11
13131822 1313 162 1758 18
6 191 2381223 257 271525
3513 3712 3834 40612 4217
101214 441121 454 472 487
11212224 4918 508918 5310
101523 54591922 561622 57
321 5810 599 607 6271216
23 632 643 6817 6951520 70
158 712 742224 811517
Presidents [8] 313 44 2421 38
15 4114 69721 704
presidential [1] 6018
Presidents [2] 4716 578
press [2] 141 6214
pressure [8] 324 91 104 1815
252223 3313 7811
presumption [1] 2710
prevent [1] 545
previously [2] 311623
principal [4] 1319 3312 376 78
10
principally [1] 298
private [4] 179 28712 625
pro-Christian [1] 223
probably [2] 3414 7415
problem [16] 261 3413 398 42
1719 481512 497 5315 5517
571216 6925 71419
problems [3] 323 2521 5721
proc [1] 1610
procedures [1] 5817
proceeding [1] 513
process [27] 51515 810 1458
1419 152 1915 2623 274 29
20 3915 5714 6815 69215 72
1020 76123 78161823 7914
17
processes [1] 3221
proclamation [55] 318 42 54 7
24 81721 92022 102121525
111023 1311 14615 161216
191718 211116 231 273519
2910 3313 381114 451617 53
11 5514 611 6217 635718 64
8 6972021 70410 7422 7610
131516 7810 7925 81525
proclamations [1] 421
proclamations [5] 823 1013 11
3 3716 6220
professors [1] 7718
Program [5] 725 56510 596
promulgated [2] 6212 6311
propose [1] 4314
protect [3] 41 2423 304
protest [1] 6718
provide [8] 31625 96 301 3315
3912 566 7812
provides [1] 72
providing [2] 5525 5825
provision [6] 1120 498 5420 76
1920 778
provisions [2] 459 768
provokes [1] 166
publication [1] 7219
publicize [1] 7125
publicized [2] 3621 374
publicly [1] 6511
publish [1] 762
purely [2] 6025 6711
purport [1] 4517
purports [1] 2919
purpose [5] 721 668 701925 78
10
purposes [4] 2216 3312 6114
751
pursuant [2] 89 7822
pursued [1] 215
pushes [1] 431
put [6] 1815 2319 351 4414 66
5 721
puts [5] 161922 6817 695 749
Q qualify [1] 722
qualms [1] 427
question [23] 612 119 1711 18
2122 3015 346 353 3810 41
16 51210 543 5724 61617 62
18 6315 7012 7122 735 7525
8012
questions [3] 5725 751223
quick [1] 7521
quite [4] 922 1915 326 7110
quotas [1] 6010
R race [1] 259
raise [1] 656
raised [1] 1222
raises [2] 6613 735
rate [1] 1524
Rather [1] 2514
rational [3] 17171824
re-upped [1] 483
reach [1] 514
reached [1] 537
read [8] 413 1418 307 3416 44
232324 7713
reading [1] 648
Reagan [8] 94 1012 113 3019
35413 3712 383
Reagans [1] 1113
real [1] 7913
real-time [1] 85
really [14] 720 81721 125 1422
1516 1821 439 4415 6617 71
24 7317 7521 814
reason [9] 132324 1423 2149
3219 339 4511 6822
reasonable [8] 1822 621 6458
652 6625 679 7022
reasons [11] 181315 3116 392
401522 4423 656 7412 802
reassessment [2] 4624 475
REBUTTAL [4] 28 3819 7516
17
receives [1] 289
recent [1] 522
recently [1] 46
recognition [1] 8115
recommendation [3] 153 183
1922
recommendations [2] 319 16
Heritage Reporting Corporation Sheet 6 only - recommendations
89Official
11
recommended [2] 314 2523
red [2] 5011 629
reenter [2] 63723
reexamined [1] 4618
referring [1] 524
reflect [1] 822
reflects [2] 42 101
refuse [1] 251
refused [1] 265
regard [2] 4825 7319
regime [1] 597
regularity [1] 277
rejected [2] 3920 4313
rekindled [1] 628
relatively [1] 197
relatives [1] 2017
relief [1] 7313
religion [6] 211720 259 6525
684 7025
religious [7] 226 651523 6613
1416 675
rely [1] 298
remedy [1] 736
remember [2] 3616 6816
removed [2] 4118 516
repetitive [1] 3013
reply [2] 3612 555
report [2] 462022
reporting [4] 823 402 479
represent [4] 981318 7913
representing [1] 673
required [3] 132 402 4711
requirement [2] 4710 5521
requires [1] 3721
resentment [1] 167
reside [1] 3118
residence [1] 8025
residual [1] 4214
resign [1] 251
respect [13] 945 2120 4020 42
23 4316 529 5513 5614 5825
6124 711820
respond [2] 418 7524
Respondents [5] 1823 27 21
12 3823
response [2] 1320 376
responses [5] 2420 271 3223
3610 371
responsible [2] 411 2413
rest [3] 451 5410 6018
restrictions [3] 315 617 6717
resulted [1] 152
reticulated [3] 4524 55816
reverse [1] 822
review [10] 312 519 1620 1922
2419 2922 5625 5714 6915
reviewability [1] 1219
reviewed [1] 262
rid [2] 531919
rights [2] 51811
rise [1] 739
risk [2] 176 435
riskiest [1] 79
ROBERTS [38] 33 1125 121121
131 309 381821 404 411824
425 4820 4961421 501521
5719 58121620 6012 61610
1720 6218 634141722 7548
14 824
robust [2] 4310 5622
rule [2] 127 7411
rules [1] 8020
run [1] 508
S safe [2] 4215 488
safest [1] 74
sake [2] 19912
Sale [4] 1212 53233
same [15] 920 1410 2824 349
3547 39819 5214 571215 63
10 658 685 6911
sanctions [2] 9125
satisfies [2] 1312 5515
satisfy [3] 171621 3918
save [1] 7213
Savings [1] 551
saying [13] 63 226 4025 426 46
12 5413 635 683 701221 71
10 787
says [28] 16516 237 241 3024
24 319 35824 4115 462020
47721 48241324 5224 5917
604 69810 7010 7217 7410
7724 821
scenario [1] 256
scheme [2] 55916
scholars [3] 2211 3418 7718
score [1] 916
scrutiny [1] 1717
seat [3] 696 741019
second [9] 1216 293 376 3917
557 6724 698 7813 796
second-guess [1] 7018
Secondly [1] 255
secretaries [1] 1924
Secretary [3] 314 524 7115
section [2] 547 749
Security [12] 313 43 105 129
1323 176 184 70111518 80
19 822
see [8] 63 1419 261 3214 367
4415 7710 801
seek [1] 3210
seeking [1] 399
seeks [1] 824
seems [5] 2724 3414 5414 581
666
seen [2] 10815
send [1] 3519
sense [6] 823 5520 5635 7014
7416
sent [1] 223
Sentelle [2] 4022 613
sentences [1] 1014
September [1] 8118
seriously [1] 5818
set [5] 6517 716 1620 2711
sets [1] 8015
seven [1] 322
several [2] 4525 5114
severe [1] 5614
shall [2] 1617 5917
share [3] 265 3016 741
sharing [1] 428
shes [1] 816
shouldnt [1] 623
show [1] 433
shows [3] 8814 7820
side [5] 3523 4319 6056 717
sides [1] 787
significant [2] 2811 3415
similar [1] 1123
simply [2] 52 8113
since [6] 720 1919 2914 678 74
23 7921
single [2] 5517 7624
situation [10] 58 246 3812 40
1224 536 561220 584 599
situations [1] 5722
six [1] 487
slightly [1] 816
small [5] 2521 2925 329 5320
5921
so-called [2] 2911 457
society [1] 673
software [3] 532224 589
Solicitor [1] 119
solid [1] 407
solution [4] 398 4816 5316 55
20
solutions [1] 557
solved [1] 5314
Somalia [2] 922 364
somebody [1] 765
somebodys [1] 8012
someone [1] 425
son [1] 2018
sorry [3] 56 346 8116
sort [1] 5710
sorts [1] 5319
SOTOMAYOR [37] 56 62720
23 9817 112715 202 21115
22591521 23311172225 24
41216 2525 2691619 646 68
618 6924 795922 801
Soviet [1] 4814
space [1] 5314
special [2] 512 72
specialty [1] 5321
specified [1] 397
speech [2] 2011 2219
speech-type [1] 2024
spoken [1] 6217
spokesman [1] 6214
sponsor [3] 436 5824 7115
sponsors [3] 3911 5524 568
squarely [1] 4325
staff [2] 169 627
stage [1] 2621
stake [1] 7012
standard [4] 1724 1917 251217
standing [2] 2123 221
started [1] 144
starting [1] 1624
starts [1] 3015
State [13] 524 1423 3911 436
511725 5524 567 5823 7115
7224 761 7915
statement [2] 258 3616
statements [23] 1910 285614
1820 298 5011 60141623 62
24524 63619 649 6623 688
92020
STATES [20] 11416 36 316 39
11 409 4519 465 511619 52
23 536 56713 5717 591 7213
747 753
statute [16] 53 434 4424 4720
493 5019 54710 5711 6014
16 6710 6817 718 7319 7425
statutes [1] 494
statutes [3] 618 76 4712
statutory [4] 58 511 538 5419
stepped [1] 5314
sticks [2] 3924 405
still [2] 4723 716
stop [2] 412 796
stopping [1] 227
stops [1] 1423
Stormans [2] 661221
strike [5] 482323 4910 6710 73
19
strong [3] 1511 2710 667
stronger [2] 1413 719
struck [1] 6912
struggled [1] 681
students [2] 2212 7720
studying [1] 3117
stuff [1] 624
subject [4] 1210 248 761417
subjected [1] 925
submitted [2] 8257
substance [4] 1414 1916 275
2920
succeed [4] 2014 52151821
successful [2] 45 109
Sudan [1] 2918
sufficiently [1] 916
suggest [1] 1714
suggested [3] 412 516 2220
suggesting [2] 1920 548
suggestion [1] 6824
suggests [1] 7221
summarizing [1] 239
sunsets [2] 477 482
supervision [1] 4723
supplant [1] 5423
supplement [3] 712 4421 5422
supplements [1] 4719
support [2] 217 2223
supported [1] 518
Suppose [3] 87 2816 405
supposed [1] 3423
SUPREME [3] 1115 7415
Heritage Reporting Corporation Sheet 7 recommendations - SUPREME
90Official
suspect [1] 375
suspend [1] 414
suspicion [1] 249
sweeping [3] 4420 455 541
Syria [3] 40924 4823
Syrian [1] 4013
system [6] 58 71314 431 456
4818
T ts [1] 1613
tailored [3] 1023 481
talked [1] 7111
talks [1] 6814
targeted [1] 4915
tens [1] 4011
terms [5] 51 1516 3225 338 37
7
terrorism [10] 519 82 1720 303
3912 437 5524 568 5824 71
16
terrorist [2] 517 812
terrorists [2] 314 5613
test [4] 6125 659 679 7023
tests [2] 6814
Texass [1] 748
text [8] 52 44925 493 5916 60
25 614 655
textual [1] 442
themselves [2] 5124 627
theory [4] 2371415 4922
theres [30] 612 3014 32919 33
24 34161723 3717 40161618
4291118 435 446 461320 47
8 492711 5321 57912 693 72
1719 7717
therefore [1] 1210
theyll [1] 7117
theyve [7] 2416 3117 3422 47
1819 5713 7218
thinking [2] 1516 717
thinks [2] 1812 3520
third [7] 3925 51710 5224 559
6914 792
third-party [1] 5115
thorough [1] 249
though [7] 137 1714 1912 377
4216 543 7418
thousands [1] 4011
threat [1] 5612
three [9] 511 910 2916 392 551
615 6213 693
three-part [1] 398
throughout [1] 174
tied [1] 5010
tiny [1] 157
tobacco [1] 4513
today [2] 34 233
together [2] 325 466
tomorrow [3] 63517 8116
took [2] 517 385
top [1] 6425
tough [2] 173 196
tougher [1] 6916
track [2] 392223
transfer [1] 221
transformation [2] 2812 296
transgresses [1] 7421
transparent [1] 273
treatment [3] 3122 3421 6525
tremendous [1] 7416
trimmed [1] 7325
troubling [1] 739
true [4] 2121 3425 4616 7123
truly [1] 1725
TRUMP [3] 13 345
truth [1] 2711
try [4] 613 106 596 7814
trying [4] 3421 416 4314 526
turn [3] 1316 294 4510
turns [3] 723 761319
tweeted [2] 6213 6916
two [18] 1014 1519 2420 28319
292 3423 3524 36210 3711
401516 557 6517 6713 729
type [3] 2011 2219 4914
types [4] 105 2157 5715
typical [1] 823
U UN [1] 1817
US [3] 525 464 674
UARG [1] 5424
ultimate [1] 4116
unable [2] 4125 7725
unconstitutional [1] 252
under [20] 4424 816 1313 2025
2511 276 288 2924 3815 433
496892123 5325 7118 768
11
undermine [2] 2510 2719
understand [9] 135 1520 2611
3623 375 4214 4910 528 65
21
undo [1] 607
undone [1] 608
undue [2] 31611
uniform [1] 7411
Union [1] 4814
unitary [2] 236 6923
UNITED [20] 11415 35 316 39
10 409 4518 465 511519 52
23 536 56713 5717 591 7213
747 753
universe [2] 8016 811
universities [1] 7718
university [3] 202224 5125
unlawful [1] 391
unless [2] 1724 7522
unlike [1] 4714
unpack [1] 613
until [1] 41
up [10] 715161617 8814 534
6417 771 7820
urge [1] 138
uses [1] 3920
using [1] 6719
V valid [1] 88
validly [1] 7821
Valley [2] 212225
values [1] 6522
variant [1] 1523
variety [1] 671
vast [5] 31920 251920 2914
vehement [1] 162
versus [2] 36 748
vet [1] 317
veto [1] 4510
vetting [18] 51415 71313 3911
15 4225 469 481518 571824
5817 595 6815 78151822
videos [1] 6214
view [2] 286 5421
viewing [1] 621
views [1] 465
vindicate [1] 518
violated [1] 5916
violates [2] 395 614
virtually [1] 53
virulent [3] 1615 193 6213
virus [1] 588
visa [16] 510 725 899 3622 55
2122 56510 595 606 7656 78
21 7918
visa-processing [1] 589
visas [9] 495 59192023 8011
21 817811
visit [1] 3118
visited [1] 521
vituperative [1] 2818
vote [1] 1816
W Waiver [25] 725 1120 3322 341
37825 38666 56510 595 72
1015 7612361920 7747 79
1417
waivers [6] 511 3025 3613 72
18 731 7920
wanted [1] 6916
wants [3] 231820 7213
war [1] 1720
Washington [3] 1112022
wavelength [1] 349
way [12] 1220 135 181617 239
245 2613 4310 4424 475 67
15 816
ways [1] 1514
weak [1] 7222
weapons [1] 4010
website [1] 762
Wednesday [1] 112
week [3] 236 4133
whatever [6] 1416 2319 247 27
7 2821 291
whenever [1] 4410
Whereupon [1] 826
whether [13] 76 816 144 1589
284 4018 4723 571 6219 767
7818 8012
whos [2] 525 702
whole [3] 713 6922 7724
wide [5] 4918 5758 633 671
will [3] 3819 4214 4624
Williamson [1] 5424
willing [3] 19811 5222
window [3] 35921 7910
wiped [1] 588
within [8] 44 1313 32618 3413
3815 4325 7615
without [3] 649 6819 7013
wonder [1] 1417
word [2] 1023 317
words [2] 149 416
work [2] 52911
working [1] 6517
works [2] 87 761
world [19] 32021 7410 15456
1925 25171920 2610 291523
25 488 6412 7320 8124
worlds [1] 6417
worldwide [6] 312 151 1921 29
22 5714 6815
worrisome [1] 49
worry [1] 3010
wrecking [2] 5018 7425
written [1] 3814
Y yea [1] 416
years [2] 4813 5310
Yemen [2] 364 525
Youngstown [2] 4113 5914
yourself [1] 6612
Z zero [3] 5313 566 6010
Heritage Reporting Corporation Sheet 8 suspect - zero
1
2
3
4
5
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8
9
10
11
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Official
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 weve now seen has been
successful as with the case of the government
of Iraq -- of Chad
JUSTICE KENNEDY In fact if you
compare this proclamation to the Reagan and the
Carter proclamations which I think were one or
two sentences this is longer than any
proclamation that -- that Ive seen in this
particular area
GENERAL FRANCISCO This is Your
Honor the most detailed 1182 -shy
JUSTICE KENNEDY Id say longer
detail -shy
GENERAL FRANCISCO Yes
JUSTICE KENNEDY -- is -- is a better
word
GENERAL FRANCISCO Yes This is the
more detailed 1182(f) proclamation in history
Heritage Reporting Corporation
1
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It is not -shy
JUSTICE SOTOMAYOR General the
proclamations by Reagan and Carter however
were not as broad as this one
GENERAL FRANCISCO Your Honor they
were almost as broad but -shy
JUSTICE SOTOMAYOR And -- and -shy
GENERAL FRANCISCO -- to complete my
answer to Justice Kennedys 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 Reagans or President Carters
covered But its -shy
JUSTICE SOTOMAYOR And more -- and
more immigrants because Carters only applied
to certain immigrants not to all
GENERAL FRANCISCO President Carters
actually applied to all immigrants but then had
an exception much like the waiver provision
here for national interests and humanitarian
concerns So I think President Carters was
actually very similar to the proclamation here
And -shy
CHIEF JUSTICE ROBERTS Is your
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consular non-reviewability argument -- is that
a jurisdictional argument
GENERAL FRANCISCO Your Honor I -shy
yes I think it is a jurisdictional argument
And thats why I dont 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 to -shy
CHIEF JUSTICE ROBERTS I -- I thought
in Sale that we decided that this -- this
wasnt jurisdictional or at least decided the
merits despite the non-reviewability argument
that the government made
GENERAL FRANCISCO I think the second
thing that you just said Mr Chief Justice is
accurate The Court didnt address the
reviewability issue at all And so we dont
think its precedential one way or another
CHIEF JUSTICE ROBERTS Was the -- was
the argument raised in that case by the
government
GENERAL FRANCISCO Yes it was Your
Honor Actually you could -shy
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CHIEF JUSTICE ROBERTS So -- so its
an argument we would have been required to
address if it were in fact jurisdictional
GENERAL FRANCISCO I think so And
so I think one way you could understand it is
that it doesnt go to Article III jurisdiction
though it is a justiciability argument and we
would urge this Court to accept it because we
think its correct
But even if you dont think that its
correct we think that this proclamation
satisfies the merits because it does fall well
within the power of the President under
1182(f)
JUSTICE BREYER If youre about -shy
JUSTICE KAGAN May I turn General
to the constitutional claims in this case
GENERAL FRANCISCO Yes Your Honor
JUSTICE KAGAN And your principal
response to the Establishment Clause claim is
to cite Mandel and to say that once the
government comes forward with a legitimate
reason -- of course national security is the
most important reason one can come forward with
-- the game is over essentially And I just
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want to press on that a little bit
GENERAL FRANCISCO Sure
JUSTICE KAGAN So first I want to
ask whether that means -- you started off by
talking a lot about the process of this
proclamation But I -- I take it that that
argument would apply irrespective of what
process was used
In other words you would have made
the same Mandel argument to the first executive
order in this case or would you not
GENERAL FRANCISCO We would have made
a Mandel argument but it is far stronger given
that you have the process and substance upon
which this proclamation was based because
whatever you -shy
JUSTICE KAGAN Well I guess I wonder
why that is just because when I read Mandel
I dont see anything about process or you have
to meet a certain kind of bar
GENERAL FRANCISCO Uh-huh
JUSTICE KAGAN Mandel really is kind
of you state a reason and this Court stops
GENERAL FRANCISCO And I think that
that is right but I think that when you in
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addition to that have the extensive worldwide
process that we had that resulted in a
cabinet-level recommendation that applied a
neutral baseline to every country in the world
concluded that almost all the world including
almost all of the Muslim-majority world passed
that baseline but a tiny number of countries
didnt I think that whether you apply Mandel
or whether you apply McCreary that makes the
constitutional case in our favor overwhelmingly
strong Its a -shy
JUSTICE KAGAN So let me give you a
hypothetical and its just -- you know I
think that there are ways to distinguish Mandel
in this case but -- but -- but you know just
in terms of thinking about what Mandel really
forecloses here
GENERAL FRANCISCO And I -- because
Mandel there are only two cases in the area
and its -- its hard to understand the full
contours of it
JUSTICE KAGAN I agree So this is a
hypothetical that youve heard a variant of
before that the government has at any rate
but I want to just give you
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So lets say in some future time a -shy
a President gets elected who is a vehement
anti-Semite -shy
GENERAL FRANCISCO Uh-huh
JUSTICE KAGAN -- and says all kinds
of denigrating comments about 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 dot all the
is and they 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
GENERAL FRANCISCO Right
JUSTICE KAGAN Do you say Mandel puts
an end to judicial review of that set of facts
GENERAL FRANCISCO No Your Honor I
dont say Mandel puts an end to it but I do
say that in that context Mandel would be the
starting point of the analysis because it does
involve the exclusion of aliens which is where
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Mandel applies
If his cabinet -- and this is a very
tough hypothetical that weve 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 in his private heart of hearts
he also harbored animus
JUSTICE KAGAN Well the question is
GENERAL FRANCISCO I would also
suggest though -- if I could finish that Your
Honor -- that I think it would be very
difficult for that to even satisfy Mandel
rational basis scrutiny Id need to know what
the rational was Given that Israel happens to
be one of the countrys closest allies in the
war against terrorism its not clear to me
that you actually could satisfy -shy
JUSTICE KAGAN Well -shy
GENERAL FRANCISCO -- Mandels
rational basis standard on that unless it
truly were based -shy
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JUSTICE KAGAN Yes
GENERAL FRANCISCO -- on a
cabinet-level recommendation that was about
national security
JUSTICE KAGAN General Im -- lets
-- this is a out-of-the-box kind of President
in my hypothetical And -shy
(Laughter)
GENERAL FRANCISCO We -- we -- we
dont have those Your Honor
JUSTICE KAGAN And -- and you know
he thinks that there are good diplomatic
reasons and there might -- who knows what the
future holds that there might be good
diplomatic reasons to put pressure on Israel or
to say we want Israel to vote a certain way in
the UN and this is a way to better our
diplomatic hand and so this is what he does
And -- 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 think -shy
GENERAL FRANCISCO Right
JUSTICE KAGAN -- given this context
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in which this hypothetical President -shy
GENERAL FRANCISCO Sure
JUSTICE KAGAN -- is making virulent
anti-Semitic comments
GENERAL FRANCISCO Right And Your
Honor its a tough hypothetical but its why
I also think that this is a relatively easy
case because were 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 though we think that its
wrong that you applied some kind of domestic
establishment clause jurisprudence because
were 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 dont have the extreme
hypothetical that youre suggesting Your
Honor we do have a multi-agency worldwide
review and a cabinet-level recommendation that
applied a neutral baseline And this wasnt
done just by the cabinet secretaries but by the
agencies to every country in the world and
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concluded -shy
JUSTICE SOTOMAYOR Mr General you
just -shy
JUSTICE KENNEDY If -- if you have
that extreme hypothetical would that present a
free exercise or an Establishment Clause claim
or both
GENERAL FRANCISCO It could
definitely present a free exercise clause
challenge Your Honor just as you had a free
speech type claim in the Mandel case
And there would be people who could
bring that claim and who could potentially
succeed on that claim
JUSTICE KENNEDY And -- and the
people that could bring that claim I assume
were relatives of people that were excluded
father son
GENERAL FRANCISCO On free exercise
potentially I think all -shy
JUSTICE KENNEDY Yeah what about a
university
GENERAL FRANCISCO I think a
university could bring a free speech-type claim
under Mandel much -shy
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JUSTICE SOTOMAYOR Why not an
Establishment Clause claim
GENERAL FRANCISCO And -- and -shy
because Your Honor and the reason why I think
they havent pursued those types of claims is
because I dont think they would possibly
support the types of nationwide injunction that
theyre asking for
Your Honor the reason why I dont
think that they could bring an Establishment
Clause claim is because the proclamation
doesnt actually apply to the Respondents It
only applies to aliens abroad who have no
constitutional right to enter
JUSTICE SOTOMAYOR No but the claim
is that it -- that the proclamation is in place
because of a dislike of a particular religion
And I thought the Establishment Clause at its
heart is that we cannot be anything but neutral
with respect to religion or its practice
GENERAL FRANCISCO 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
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standing to challenge the land transfer from
the government to the Christian college on the
ground that it sent a pro-Christian or
anti-atheist message That -shy
JUSTICE SOTOMAYOR But these people
are saying that that negative religious
attitude is stopping them -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- 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
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR Which is one of
the purposes of the INS
GENERAL FRANCISCO And -- and thats
where they might have free exercise or free
speech claims along the type that Justice
Kennedy suggested -shy
JUSTICE SOTOMAYOR Well but I -shy
GENERAL FRANCISCO -- but which
couldnt support a nationwide injunction I
dont think that that gives them an
Establishment Clause claim when the
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proclamation doesnt actually apply to them
because -shy
JUSTICE SOTOMAYOR General today
can we go back to something thats 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 -- Im
summarizing in an incomplete way -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- 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 -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- not extreme
that he can hire or fire anyone he wants and
that he can put in place whatever policy he
wants
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR If we take Justice
Kagans hypothetical President -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- who basically
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says to his review committee I want to keep
out Jews -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- period find a
way Thats their charge
So in that situation why would the
actions of the committee whatever this is
Executive Committee not be subject to great
suspicion and to thorough review -- which
actually wasnt completely -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- done here -shy
given that they are responsible to the
executive -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- and theyve
been told what the outcome of their
deliberations must be
GENERAL FRANCISCO Sure And I have
two responses to that Your Honor
The first is that the Presidents
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
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cabinet member would refuse to comply or resign
in the face of a plainly unconstitutional
order 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 Mandel
standard
Here however you dont have anything
like that Rather you have the cabinet doing
its job through the agencies where they ask
the agencies to construct and apply 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 across the line
JUSTICE SOTOMAYOR General the
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problem is that I dont 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
the litigants or the courts exactly what was
done how what the evaluation and how -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- it was applied
to all those countries in the world
I understand some of the
confidentiality that might concern you but if
the backdrop is the way that Justice Kagan
described it -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- that -- that
heated -shy
GENERAL FRANCISCO Well I -- yeah -shy
JUSTICE SOTOMAYOR -- anti-Semitic
background dont you think that once you get
through the Mandel preliminary 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
GENERAL FRANCISCO Well Your Honor
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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
owes to another coequal branch of the
government there is a very strong presumption
that what is being set out there is the truth
JUSTICE KAGAN You -- you said
something earlier General I want to make sure
that I got it right You said if at the time
the President had said we dont want Muslims
coming into this country -shy
GENERAL FRANCISCO Uh-huh
JUSTICE KAGAN -- that that would
undermine the proclamation
GENERAL FRANCISCO Yes
JUSTICE KAGAN Did I get you right
GENERAL FRANCISCO Yes
JUSTICE KAGAN So I -- I think you
know honestly the difference here then seems
to be is everything that the President said
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effectively that
GENERAL FRANCISCO I think there are
two issues Your Honor 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 embodiment of the executive branch So
that those statements should be out of bounds
But for -shy
JUSTICE KENNEDY But suppose you have
a local mayor and as a candidate he makes
vituperative hate -- hateful statements hes
elected and on day two he takes acts that are
consistent with those hateful statements
Thats -- whatever he said in the campaign is
irrelevant
GENERAL FRANCISCO Your -- Your
Honor if he takes the same oath -shy
JUSTICE KENNEDY You would say
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whatever he said in the campaign is irrelevant
GENERAL FRANCISCO I would say two
things And that was the -- and the second
thing is the point I was about to turn to I
would say yes because we do think that oath
marks a fundamental transformation but I would
also say here it doesnt matter because here
the statements that they principally rely on
dont actually address the meaning of the
proclamation itself
This is not a so-called Muslim ban
If it were it would be the most ineffective
Muslim ban that one could possibly imagine
since not only does it exclude the vast
majority of the Muslim world it also omits
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 multi-agency worldwide review that
applied neutral criteria all across the world
and concluded under those neutral criteria
most of the world was fine but a small part of
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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
JUSTICE BREYER All right Can -shy
can I ask a more -- I did read I think almost
all the 80 briefs Now your time -- what do -shy
CHIEF JUSTICE ROBERTS Yeah dont
worry Please go ahead
JUSTICE BREYER All right All
right All right Almost 80 and I think I -shy
some were repetitive not too many And I
think I know the basic arguments but theres
one question Im left with and it starts with
an assumption which I think you share but I
want to be sure All right
I noticed that the Carter order and
the Reagan order both had case-by-case
exceptions
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER And I looked 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
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individual circumstances such as giving some
examples the following
And then they have to be no
terrorists Well thats the law anyway And
they -- they have to be in the interests of the
United States And there cant be undue
hardship which the only time the word
hardship appears in the immigration laws it
says extreme hardship
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER So undue must be
less than extreme
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER Okay So Im -- then
they have a list people with foreign contacts
previously established business reasons
theyve been here studying or other long-term
activity they want to visit or reside with a
close family member they have a disease or
something that they need -shy
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER -- treatment for
they -- previously been employed And there
are about five other things
GENERAL FRANCISCO Yeah
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JUSTICE BREYER All right Focus on
that class of individuals
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER Now in countries -shy
150 million people all together there must be
quite a few who have -- do fall within that
class So -shy
GENERAL FRANCISCO Well yes Your
Honor but theres only a small number of
people that seek to come into our country
JUSTICE BREYER Well thats what Im
asking about
GENERAL FRANCISCO Yeah
JUSTICE BREYER You see
GENERAL FRANCISCO Yeah
JUSTICE BREYER Thats now -- if you
-- you think -- now as far as were concerned
if they fall within that class there -shy
theres no reason given here why they should be
excluded other than the -- the normal
processes
GENERAL FRANCISCO Well a couple of
responses Your Honor
JUSTICE BREYER What
GENERAL FRANCISCO First in terms of
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the numbers -shy
JUSTICE BREYER Im not asking about
the numbers
GENERAL FRANCISCO Oh oh youre not
asking -shy
JUSTICE BREYER I want to ask about
GENERAL FRANCISCO So -- so in terms
of the reason -shy
JUSTICE BREYER Yeah
GENERAL FRANCISCO -- they should be
excluded one of the principal purposes of the
proclamation is to exert diplomatic pressure on
governments in order to get them to change and
provide us with the information -shy
JUSTICE BREYER So you think they
should be excluded
GENERAL FRANCISCO Not if they meet
the criteria for the -shy
JUSTICE BREYER Not if they meet the
criteria
GENERAL FRANCISCO -- for the waiver
JUSTICE BREYER Okay Okay So
theres -shy
GENERAL FRANCISCO Thats why we have
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-- thats why we have the waiver
JUSTICE BREYER Thats -- thats -shy
thats what I thought you would say
GENERAL FRANCISCO Yeah
JUSTICE BREYER Then I get -- can ask
my question Sorry
GENERAL FRANCISCO Yes
JUSTICE BREYER But I want to be sure
were the same wavelength
GENERAL FRANCISCO Yes
(Laughter)
JUSTICE BREYER Okay 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 theres the
business community complaining theres the
academic community there were 46 scholars at
Harvard there -- there are families in the
Lisa Blatt brief you know that -- that they
say we were trying to get medical treatment and
nobody told us about this and -- and theyve
only admitted two and theres supposed to be
guidance and -shy
GENERAL FRANCISCO Thats not true
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JUSTICE BREYER -- you havent put in
the guidance and -- and -- and the most there
are is 100 And so there is my question If
you have done the same thing that the Reagan
people did and the Carter people did then it
might be -- Im not expressing a definite
opinion -- but well youve got the same thing
here but if this is as one brief says just
window dressing and they never apply it -shy
GENERAL FRANCISCO Right
JUSTICE BREYER -- then you have
something new and different going well beyond
what President Reagan did
GENERAL FRANCISCO Sure
JUSTICE BREYER Okay So I want to
know how do I find out -- how do I find out
when there is not that information in the
brief do we have to -- can we have another
hearing Do we send it back Do we say look
the government of course thinks this isnt
window dressing -shy
GENERAL FRANCISCO Right
JUSTICE BREYER -- but the other side
says there are only two people no notice
nobody knows
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GENERAL FRANCISCO So Your Honor
two -shy
JUSTICE BREYER There are people in
Yemen there are people in Somalia -shy
GENERAL FRANCISCO Yeah
JUSTICE BREYER -- decent people
Business -- you see my point
GENERAL FRANCISCO Yes
JUSTICE BREYER Whats the answer
GENERAL FRANCISCO And two responses
JUSTICE BREYER Yes
GENERAL FRANCISCO Our reply brief
has our most -- most current number on waivers
and I believe the number at page 17 footnote
-- well its -- its over 400 I cant
remember the exact statement
JUSTICE BREYER All right Thats
400 out of 150 million
GENERAL FRANCISCO And then -shy
JUSTICE BREYER And -- and is it well
publicized in these countries that they know
all they have to do is go to the visa office
and say I understand the thing I want an
exception
GENERAL FRANCISCO No Your Honor
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and I have two -- two responses -shy
JUSTICE BREYER Yeah
GENERAL FRANCISCO -- to that One
is I dont know how well publicized it is but
I suspect that people understand how to get it
My second principal response is
though that frankly in terms of the
legality I think that the waiver is not
necessary although it is a very good thing
which is why -shy
JUSTICE BREYER Not necessary There
-- there you have President Reagan -shy
GENERAL FRANCISCO -- which is why
most -- which is why most governments dont -shy
which is why its -- its a good thing which
is why most of these proclamations often have
them But theres nothing in -shy
JUSTICE BREYER Okay So you want me
to consider -shy
GENERAL FRANCISCO -- the law that
actually requires it
JUSTICE BREYER Thats what you want
You want me to consider the lawfulness of this
order on the assumption that there is no
waiver
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GENERAL FRANCISCO I dont -shy
JUSTICE BREYER Which is not what -shy
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 here thats the -shy
thats the -shy
GENERAL FRANCISCO Right The answer
to my -- your question Your Honor is no I
dont want you to consider the proclamation on
the -- on the hypothetical situation that it is
what it isnt but I do think that the
proclamation as written and as applied falls
well within the Presidents authority under
1182(f)
Thank you Mr Chief Justice
CHIEF JUSTICE ROBERTS Thank you
General We will afford you rebuttal time
GENERAL FRANCISCO Thank you
CHIEF JUSTICE ROBERTS Mr Katyal
ORAL ARGUMENT OF NEAL K KATYAL
ON BEHALF OF THE RESPONDENTS
MR KATYAL Thank you Mr Chief
Justice and may it please the Court
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The executive order is unlawful for
three reasons It conflicts with Congresss
policy choices It defies the bar on
nationality discrimination something you never
heard my friend talk about And it violates
the First Amendment
Congress has already specified a
three-part solution to the very same problem
the order addresses Aliens seeking entry from
countries that dont cooperate with the United
States in vetting including state sponsors of
terrorism and countries that provide inaccurate
information
First aliens have to go through the
individualized 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 the order uses Congress rejected a
ban Instead it used carrots When countries
cooperated theyd get extra credit a track -shy
faster track for admission Legislation to use
big sticks like nationality bans failed
And third Congress was aware
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circumstances could change on the ground so it
required reporting to them so it could change
the law
CHIEF JUSTICE ROBERTS Well lets
take big sticks fail Lets suppose that the
intelligence agencies go to the President and
say we have 100 percent solid information
that on a particular day 20 nationals from
Syria are going to enter the United States with
chemical and biological weapons They could
kill tens of thousands of Americans
In that situation could the President
ban the entry of Syrian nationals on that one
day
MR KATYAL He could for two reasons
Theres two different arguments Theres the
nationality discrimination ban 1152 and then
theres you know whether or not this comports
with Congresss policy judgments
And with respect to both I think it
would It wouldnt be nationality
discrimination for the reasons Judge Sentelle
said in LAVAS when you have an emergency
fast-moving situation like the Syria example
youre saying
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CHIEF JUSTICE ROBERTS Well just to
stop interrupt you there I mean what if
its a week What if its a week a month from
now Thats what the intelligence information
is
In other words Im trying to -shy
MR KATYAL Right
CHIEF JUSTICE ROBERTS -- respond to
your point that it has to be an immediate
decision
MR KATYAL Yeah So I think you
know this Courts dealt with that in
Youngstown and Hamdan and said look you know
the Presidents going to get a pass absolutely
on you know what he says the emergency is
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 460 days on -- later
Mr Chief Justice Hes never even introduced
legislation about this So were so far from
that hypothetical well concede the
hypothetical
CHIEF JUSTICE ROBERTS Well imagine
-- imagine if you can that Congress is unable
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to act when the President asked for
legislation
(Laughter)
MR KATYAL Right
CHIEF JUSTICE ROBERTS And someone
introduces a bill saying lets authorize -shy
first of all the President may have qualms
about sharing that absolute intelligence
broadly but lets say theres a bill
introduced to say lets authorize the President
and theres a bill introduced to say lets
block the President and neither bill moves
MR KATYAL 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 -- theres only one
problem hes identifying which is countries
not cooperating
Hes not talking about people coming
in or something like that like your
hypothetical And with respect to that
Congress has said heres how we deal with it
We deal with it with the individualized vetting
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system which pushes all the burdens on a
person coming in Thats 1361
Youve got to show biometric ID under
the statute Youve got to have an in-person
interview if theres any risk that the person
is from a country thats a state sponsor of
terrorism like your hypothetical or anything
else
So Congress has really said in a
robust way heres how we would deal with it
And to the extent countries arent cooperating
we offer carrots
Congress rejected exactly what theyre
trying to propose here which is a flat
nationality ban And thats where I think the
force of our argument lies with respect to the
first point which is this is countermanding
Congresss policy judgments
My friend on the other side actually
in his brief -shy
JUSTICE ALITO Well Congress did -shy
Congress did act It enacted 1182(f)
MR KATYAL Correct
JUSTICE ALITO Why doesnt this fall
squarely within the language of 1182(f)
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MR KATYAL For -- for -- we have
both textual reasons that its not a class for
reasons Justice Breyer was talking about Its
not perpetuated -- its perpetual like Justice
Ginsburg was talking about But we think
theres a much bigger point Justice Alito
which is -shy
JUSTICE ALITO Well maybe you could
talk about the text Its not a class
Doesnt 11 -- doesnt 1182(f) say whenever the
President finds that the entry of any aliens -shy
MR KATYAL Correct
JUSTICE ALITO -- or any class of
aliens So put class aside although I dont
really see why people who are nationals of a
particular country dont constitute a class
What about any aliens
MR KATYAL Right So we think it is
any you know -- because the power in 1182 is
so broad and sweeping and does allow the
President to supplement what Congress has done
we think that you have to -- you have to be
careful and read limit -- you have to read it
just the way you read every other statute to
say how do we harmonize that broad text of
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1182(f) with the rest of the INA
And our point in our briefs which I
dont 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 you know and end so-called chain
migration or anything like that He could do
-- countermand any of the provisions of the INA
and turn it into a line item veto
So for that reason we think there
has to be some limit Thats something this
Courts dealt with in you know the tobacco
case or -shy
JUSTICE ALITO Well does this
proclamation do anything like that Does this
proclamation purport to establish a new
permanent immigration policy for the United
States
MR KATYAL Absolutely Your Honor
This is a perpetual policy that bans It does
exactly what Congress in 1965 said you cant
do And it countermands Congresss
fine-grained reticulated judgment from 2001
2015 and several other times which is to say
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instead of these flat bans were going to have
-- were going to balance foreign policy
considerations economic considerations like
the US companies brief humanitarian image
of the United States views all of that
together and said we wont do the flat ban
Instead were going to have a much
more fine-grained approach with individualized
vetting and carrots for the countries that
dont disagree -- that dont cooperate
JUSTICE ALITO What is your basis for
saying that it is perpetual
MR KATYAL Well theres nothing in
the order that ends it And you heard my
friend say oh that would doom all executive
orders But thats not true Half of these -shy
JUSTICE KENNEDY I thought it had to
be reexamined every 180 days
MR KATYAL No thats not what it
says It says theres a report that has to
come in at 180 days and nothing happens at the
end of the report
JUSTICE KENNEDY Well that -- that
indicates there will be a reassessment
MR KATYAL Well in -shy
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JUSTICE KENNEDY And then the -- and
-- and the President has continuing discretion
MR KATYAL Justice Kennedy this
argument wouldnt be there if there was
anything about reassessment the way there are
in about half the orders including the Cuba
order which says it sunsets once the crisis
ends Theres nothing like that in this
And its just like a reporting
requirement to Congress in which Congress isnt
necessarily required to do anything Congress
has statutes like that all the time
This is that And thats why this is
unlike any other executive order If you go
back and look at all 43 executive orders that
Presidents have issued none of them have even
arguably countermanded Congresss judgment in
the area Theyve all been consistent
Theyve all been supplements
JUSTICE KENNEDY Well the statute
says first that -- that -- that 1182 for such
period as he deems necessary and he can have
continuing supervision over whether its still
necessary
MR KATYAL Again we wouldnt have a
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problem with that if it was tailored to a
crisis it says it sunsets and then you know
could be re-upped or something like that
Thats not what this says This is about a
perpetual problem
JUSTICE KENNEDY So you want the
President to say Im convinced that in six
months were going to have a safe world
MR KATYAL Well -- well -- well no
Justice Kennedy thats not our argument Our
argument is here the President is identifying
something that is a perennial problem Our
brief says it goes back 100 years you know
when the Soviet Union was around we dont 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
CHIEF JUSTICE ROBERTS What if the
military advisors tell the President that in
their judgment the President ought to order a
strike an air strike against Syria and the
President says well -- does that mean he cant
because you would regard that as discrimination
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against a majority Muslim country
MR KATYAL Absolutely not Theres
nothing to do with the text of the statute
The 1152 statutes about discrimination and the
issuance of visas And thats all that -shy
CHIEF JUSTICE ROBERTS So under
1182(f) you would say that theres no problem
under that provision
MR KATYAL Well under 1182 as I
understand it was a strike And so I dont
think theres any immigration issue in your
hypothetical I might be misunderstanding it
Mr Chief Justice
CHIEF JUSTICE ROBERTS Well any type
of targeted action that would have a impact on
the Muslim population
MR KATYAL Absolutely We think the
President has wide authorities to do things
that have impacts on the Muslim population
Take the laptop ban that was introduced -shy
CHIEF JUSTICE ROBERTS Why under your
theory wouldnt that constitute or the argument
would be that thats discrimination under your
Establishment Clause argument -shy
MR KATYAL Oh
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CHIEF JUSTICE ROBERTS -- that thats
discrimination on the basis of faith because he
has said in the past if you accept the -shy
MR KATYAL Yeah
CHIEF JUSTICE ROBERTS -- accept the
arguments that he -- he is anti-Muslim
MR KATYAL Not at all Your Honor
and no President has run afoul of this you
know and thats because here the President
and his advisors have directly tied this policy
to those statements And the red brief at page
70 I think is the greatest illustration of
that
Thats 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 INA is
that the President can take a wrecking ball to
the statute and countermand Congresss
fine-grained judgments that -shy
CHIEF JUSTICE ROBERTS He can never
-shy
JUSTICE KAGAN Well you might think
-shy
JUSTICE GORSUCH Mr Katyal -- Mr
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Katyal if I might on -- on the statutory
question before we leave it Weve been
proceeding so far on the assumption that we can
reach the merits but the government makes the
argument for example that aliens who are
removed from this country have to bring their
claims personally and third parties cant
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
who are not present in this country Whats
the answer to that
MR KATYAL Well several This is
not a third-party case These are United
States citizens bringing this challenge in a
state -shy
JUSTICE GORSUCH Oh behalf of -shy
MR KATYAL -- of the United States
JUSTICE GORSUCH -- aliens not
present in the country
MR KATYAL Well but they are
directly -- they are directly harmed
themselves Let me just give you one example
Not just the State of Hawaii whose university
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is directly impacted but lets just take for
example the Alomari -- Mr Alomari the
10-year-old in the PARS Equality brief Justice
Breyer that you were referring to This is a
10-year-old daughter in Yemen who is -- whos
trying to come here because she has cerebral
palsy
JUSTICE GORSUCH I understand that
but those arguments dont work with respect to
aliens present in the country So why do they
work for aliens who are not present in the
country
MR KATYAL Because I -shy
JUSTICE GORSUCH Those very same
arguments would not succeed
MR KATYAL Well -shy
JUSTICE GORSUCH I think youd
concede that they wouldnt succeed for aliens
present -shy
MR KATYAL Right And they dont
succeed because there you have a better
plaintiff might not be willing to bring them in
the United States and thats why the court
you know says no third party But here
these folks are directly impacted
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And the most important thing to say is
Sale answers this You heard my friend concede
Sale was jurisdictional the issues in Sale
Thats how they briefed it up Thats how he
just described it This Court had exactly that
situation United States plaintiffs and it
reached the merits
Our statutory point to you is that if
you accept this order youre giving the
President a power no President in 100 years has
exercised an executive proclamation that
countermands Congresss policy judgments He
has zero examples to say that when Congress has
stepped into the space and solved the exact
problem that the President can then come in
and say No I want a different solution
If you do that youd -- its not just
family preferences that youre allowing him to
get rid of youd get rid of all sorts of even
small things in the Code or big things like
theres a preference for specialty occupations
like software engineers in the INA The
President could say The economics are such
Im going to ban software engineers from going
to California or something like that under that
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sweeping 1182 power
JUSTICE KAGAN I -- I guess the
question though Mr Katyal is maybe youre
entirely right that 1182(f) needs to have some
limits to prevent the President from doing
something thats completely contrary to another
section of the statute
But youre suggesting well the
President cant do anything thats not
contemplated by the rest of the statute
MR KATYAL That is not our argument
JUSTICE KAGAN Okay 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 -shy
MR KATYAL Right
JUSTICE KAGAN -- between what the
President is doing and another statutory
provision
MR KATYAL So our view is that the
President can supplement he just cant
supplant In this Courts decisions in the
Brown amp Williamson case and the UARG greenhouse
gas and Concepcion and Abilene Cotton the
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Savings Clause cases all say there are three
things you look at And its not a flat bar
It cant be like a direct contravention Even
they say its not a direct contravention in
their reply brief at page 19
So the three things are first can
these two solutions coexist or not Second
has Congress prescribed a reticulated
comprehensive scheme And third you know is
there any other indication that Congress
considered 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 -shy
Congress has a comprehensive reticulated scheme
that deals with the exact single problem that
hes identified which is countries not
cooperating It cant coexist with the
solution of a flat ban It makes no sense for
example to have the in-person visa requirement
-- visa interview which is in 12 -shy
1202(h)(2) which is for -- for people who come
from state sponsors of terrorism or who have a
group with a likelihood of providing
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inaccurate information Congress said there
has to be an in-person interview for that
It doesnt make sense to say well
youre going to have a flat ban It doesnt
make sense to have a Visa Waiver Program which
is all about countries that provide zero
information to the United States -- state
sponsors of terrorism and the like -- and say
were going to give you a carrot and then say
oh no forget about the Visa Waiver Program
JUSTICE ALITO Can -- can you imagine
any situation in which the threat of the
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
MR KATYAL Yes
JUSTICE ALITO You cannot imagine any
such situation
MR KATYAL Yes I can And the
President would have a robust authority to deal
with that That is not our argument So -shy
JUSTICE KENNEDY And your argument is
that courts have the -- the duty to review
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whether or not there is such a national
exigency thats for the courts to do not the
President
MR KATYAL No I think you have
wide deference Justice Kennedy Its exactly
what you said when you joined Justice Breyers
opinion in Hamdan which is as long as -- you
know Presidents have wide berth in this area
but if -- you know certainly if theres any
sort of emergency that precludes it
But when you have a statute that
considers the very same problem and theres
nothing new that theyve identified in this
worldwide review process that Congress didnt
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 the -shy
CHIEF JUSTICE ROBERTS But thats in
the abstract I mean they may have more -shy
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
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And it seems to me a difficult
argument to say that Congress was prescient
enough to address any particular factual
situation that might arise
MR KATYAL Well that again -shy
thats again Mr Chief Justice not our
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 But here -shy
CHIEF JUSTICE ROBERTS What about -shy
what about a change of administration in a
particular country -shy
MR KATYAL Yes
CHIEF JUSTICE ROBERTS -- in which
perhaps the vetting procedures are not going to
be taken seriously
MR KATYAL Right
CHIEF JUSTICE ROBERTS That Congress
could not have anticipated
MR KATYAL Well but again
Congress anticipated a country that is a state
sponsor of terrorism and even for -- with
respect to that providing no information and
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indeed fomenting against the United States
Congress said oh were not going to have a
nationality ban You know they flatly banned
that and said were going to have
individualized vetting and this Visa Waiver
Program carrot to try and deal with that you
know dangerous regime
Now again I can imagine an emergency
situation in which the President would have
even greater authority for that But here we
are 460 days later and I would caution the
Court not to make a decision about the
emergency youre concerned about That can be
bracketed as it was in Youngstown as it was in
Hamdan This is so far from that
The text of 1152 is flatly violated
here It says there shall be no discrimination
on the basis of nationality with the issuance
of visas
That is 39 percent of all the visas
this executive order covers Its not a small
part Its 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
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become part of our long-term polity This
executive order flatly contradicts that
Now if you accept his
interpretation -- he says well you know
were discriminating at the entry side not at
the visa side If you do that you are giving
the President the power to undo -- and hes
actually just done it -- hes undone the ban on
nationality-based discrimination Hes imposed
country quotas of zero for these countries at
the border
CHIEF JUSTICE ROBERTS If your -shy
your argument based on discrimination based on
the campaign statements is there a statute of
-- no the one that you do make based on the
campaign statements is there a statute of
limitations on that or is that a ban from
presidential findings for the rest of the
administration
MR KATYAL So Mr Chief Justice I
first want to be very clear about this Our
point about 1152 and the discrimination has
nothing to do with any campaign statements or
anything else
Its purely the text of the
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proclamation which is nationality-based
discrimination through and through Judge
Sentelle said you couldnt imagine a clearer
text than this And this is -- it violates it
Now -shy
CHIEF JUSTICE ROBERTS My question
was on the -shy
MR KATYAL -- youre asking about
the First Amendment
CHIEF JUSTICE ROBERTS Yes
MR KATYAL I just want to make
absolutely clear that were -- thats not -shy
you know you dont need to do any of that for
purposes of 1152 And that would knock out
39 percent of the most important part of the
executive order
CHIEF JUSTICE ROBERTS My question
of course -shy
MR KATYAL Yes Now Im getting -shy
CHIEF JUSTICE ROBERTS -- was not on
1152
MR KATYAL Yes Im getting there
Okay
With respect to that we dont think
-- we think that the test as this Court has
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said a reasonable objective observer viewing
all the statements and we think absolutely
my friend is right you shouldnt look to
campaign statements in general or stuff like
that 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 70
of our red brief you have a very good example
of this
After the executive order this latest
executive order was promulgated the President
tweeted these three virulent anti-Muslim
videos And then the press spokesman was
asked What does this mean What is this
about And the answer was The President has
spoken about exactly this in the proclamation
CHIEF JUSTICE ROBERTS My question
was whether or not the inhibition on the
ability to -- to enter one of the proclamations
applies forever
MR KATYAL Right No I think the
President could have disclaimed -- you know
easily moved away from all of these statements
you know but instead they embraced them
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Thats the difference
And so absolutely the President
would have wide berth to say thats a -shy
CHIEF JUSTICE ROBERTS So if
tomorrow he issues a proclamation saying hes
disavowing all those statements then the next
day he can reenter this proclamation
MR KATYAL Thats exactly what this
Court said in McCreary This Court in McCreary
said you know the same policy can be
constitutional if said -- if promulgated by one
entity and not by another depending on the
circumstances around it
CHIEF JUSTICE ROBERTS Is your answer
to my question yes
MR KATYAL Yes The answer is -shy
CHIEF JUSTICE ROBERTS Tomorrow he
issues a proclamation disavowing those
statements -shy
MR KATYAL Absolutely And thats a
CHIEF JUSTICE ROBERTS -- then the
next day he could reenter this and your
discrimination argument would not be
applicable
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MR KATYAL And -- and -- and Mr
Chief Justice thats exactly what I told the
Ninth Circuit in May The President didnt do
that Thats whats -- thats -- you know
thats what a reasonable objective observer -shy
JUSTICE SOTOMAYOR So if another -shy
JUSTICE ALITO Mr Katyal would any
reasonable observer reading this proclamation
with -- without taking into account statements
think that this was a Muslim ban
I mean there are -- I think there are
50 predominantly Muslim countries in the world
Five -- five countries -- five predominantly
Muslim countries are on this list
The population of the -- of the
predominantly Muslim countries on this list
make up about 8 percent of the worlds Muslim
population
MR KATYAL Absolutely
JUSTICE ALITO If you looked at the
10 countries with the most Muslims exactly
one -shy
MR KATYAL Right
JUSTICE ALITO -- Iran would be on
that list of the top 10
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MR KATYAL Right
JUSTICE ALITO So would a reasonable
observer think this was a Muslim ban
MR KATYAL If it were -- if it were
just the text of the order alone it might
raise eyebrows for fit and other reasons that
the briefs go into but we wouldnt be here
We absolutely agree that just -- its the same
test as in Lukumi and other cases You have to
look to all the circumstances around it that
are said the publicly available ones
You know and Justice Alito the fact
that the order only come -- encompasses some
Muslim countries I dont think means its not
religious discrimination For example if Im
an employer and I have 10 African-Americans
working for me and I only fire two of them I
dont think -- you know and say well Ive
left the other eight in I dont think anyone
can say thats not discrimination
JUSTICE ALITO No I -- I understand
that And it is one of our fundamental values
that there is religious freedom here for
everybody in that number -- adherence to every
religion are entitled to equal treatment
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My only point is that if you look at
what was done it does not look at all like a
Muslim ban There are other justifications
that jump out as to why these particular
countries were put on -- on the list
So you -- it seems to me the list
creates a strong inference that this was not
done for that invidious purpose
MR KATYAL Justice Alito I think if
it were just the list I think wed be right -shy
youd be right although Id point out that
you yourself in the Stormans case said that
its a religious -- it raises an inference of
religious gerrymander of the burden imposed
falls almost exclusively on those with
religious objections
This is a ban that really does fall
almost exclusively on Muslims between
902 percent and 998 percent Muslims And so
it does look very much like what you said in
Stormans But even then we wouldnt be here
if it werent for all of the different
statements
And the best evidence of this about
what a reasonable objective observer would
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think is to look at the wide variety of amicus
briefs in this case from every corner of
society representing millions and millions of
people from the US Conference of Catholic
Bishops which calls it blatant religious
discrimination
JUSTICE GORSUCH Mr Katyal on that
its been a long time since this Court has used
the Lemon test reasonable observer even to
strike down a domestic statute let alone
something with purely international
application What -- what do we do about that
MR KATYAL Yeah 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 and our protest of
King George which is all about using the
immigration power to exclude people of a
different faith And thats what our
Constitution is about So thats the first
thing
And the second is we dont think you
have to get into Lemon and all these other
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tests that you all have struggled with I
think this Court in Lukumi was very clear in
saying that when youre talking about
denigration of religion all the tests point in
the same direction
JUSTICE SOTOMAYOR Mr Katyal you
said something earlier you said you wouldnt
be here if all of those statements the
background statements were not made Do you
mean that on all of your bases You wouldnt
be here on the Establishment Clause claim
MR KATYAL Only on the Establishment
Clause claim not on anything else And our
point is you know he talks about for
example this worldwide vetting process
Remember his own argument on 1182 is
the statute puts the President -shy
JUSTICE SOTOMAYOR So lets -- lets
go back to not being here without the
statements Clearly the statements even
conceded by your adversary do give you a basis
to look behind all right the reason
So if were looking behind it how do
you deal with the Generals suggestion that
there was a cleansing that occurred because of
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all of the agencies and departments who
participated in this process
MR KATYAL Yeah So theres three
things Number one is that his -- his own
argument is that 1182 puts the President in the
drivers seat so the cabinets not important
Its the Presidents proclamation
Second the order itself says in its
first lines it harkens back to Executive
Orders 1 and 2 and it says its an outgrowth
of that So it was infected by the same thing
that was struck down on Establishment 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 ban
a non-politically-correct ban and the like
So given all of those things but in
particular given the fact that 1182 itself
forces the President to make the proclamation
its the Presidents proclamation so I dont
think you even have to get into this whole
unitary executive thing but I do agree with
you Justice Sotomayor that thats another
problem which is theyre coming before the
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Court and saying Nope its the President
whos in charge And now theyre saying here
Oh no no no its these other people
This is the Presidents proclamation
through and through No President has ever
said anything -- anything like this And
thats what makes this different
And the President -shy
JUSTICE KAGAN And -- and yet Mr
Katyal 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 evaluating the adequacy of those
national security interests which for the most
part weve said courts are not equipped to do
MR KATYAL Right Were not asking
you to second-guess a national security
judgment at all with the purpose of the
Establishment Clause
Were saying you just have to look to
what a reasonable objective observer would do
Thats the ordinary test that youve used in
cases like Lukumi Is there an official
purpose to disparage a religion Here there
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very much is Thats you know everything
that the President has said and that the order
itself embodies Thats our fundamental
problem
JUSTICE BREYER What do you think -shy
its a -- its a -- its still something Im -shy
Im thinking about perhaps to the side but
the statute you point to one of the ones that
is stronger for you There are obviously
objections to what youre saying in quite a few
briefs all right but the one that you talked
about it does say you have to have an
interview with a consular official if the
person is from a country officially designated
by the Secretary as a state sponsor of
terrorism It does say that
So theyll say but we do have that in
respect to everyone under the exception So
there isnt much problem Weve gone beyond
that in respect to other people All right
Take their argument for a moment
Because my question is which I
couldnt find in the briefs is is it true -shy
Im just taking what they say -- that really
that isnt so they dont publicize it they
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havent put forth a guidance people dont know
they can come in and qualify for this
And if it turns out that that is
something that is important to the lawfulness
of the order because there are many many
categories there -shy
MR KATYAL Right
JUSTICE BREYER -- what do we do
MR KATYAL So two things Number
one this waiver process has excluded -- and
you have this in the PARS Equality brief at
page 14 A 10-year-old with cerebral palsy who
wants to come to the United States to save her
life and she cant move or talk The
10-year-old was denied a waiver Justice
Breyer
He says theres 430 people who have
gotten waivers Theyve never told you the
denominator and theres no publication of this
process and how -- how often it is And the
data that we do have suggests as a matter of
percentages its very weak
Just to give you some evidence of
that just the State of Hawaii has gotten about
1000 letters from people most of which say
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were not even getting waivers on the like
JUSTICE GORSUCH That -shy
MR KATYAL Weve heard very few
instances -shy
JUSTICE GORSUCH -- raises a question
of remedy for me
MR KATYAL Yes
JUSTICE GORSUCH We have this
troubling rise of this nationwide injunction
cosmic injunction -shy
MR KATYAL Yeah yeah
JUSTICE GORSUCH -- not limited to
relief for the parties at issue or even a class
action
MR KATYAL Right
JUSTICE GORSUCH And near as I can
tell thats -- thats a really new development
where a district court asserts the right to
strike down a -- a federal statute with regard
to anybody anywhere in the world
MR KATYAL Yeah
JUSTICE GORSUCH What -- what do we
do about that
MR KATYAL Obviously the injunction
here has been trimmed by this Court itself and
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others And I do think -- I -- I share your
impulse Justice Gorsuch Thats something
that I think lower courts are debating right
now in a number of different contexts like the
contraception case and the like
I think this case is the poorest
example to get into it because of United States
versus Texass point which is this is an
immigration case and Article I Section 8 puts
Congress in the drivers 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 doesnt make a
tremendous amount of sense It would almost be
an advisory opinion
Our fundamental point to you though
is that Congress is in the drivers seat when
it comes to immigration and that this
executive order transgresses the limits that
every President has done with this proclamation
power since 1918 And to accept it here is to
accept that the President can take an iron
wrecking ball to the statute and pick and
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choose things that he doesnt want for purposes
of our immigration code That cant be the law
of the United States
CHIEF JUSTICE ROBERTS Take five
extra minutes Okay
MR KATYAL Okay
(Laughter)
CHIEF JUSTICE ROBERTS You dont have
to
(Laughter)
MR KATYAL Well if there are -- if
there are any other questions Im happy to
take anything Okay Thank you
CHIEF JUSTICE ROBERTS Thank you
counsel
Five minutes for rebuttal General
REBUTTAL ARGUMENT OF GENERAL NOEL J FRANCISCO
ON BEHALF OF THE PETITIONERS
GENERAL FRANCISCO Mr Chief -- Mr
Chief Justice and may it please the Court
I -- I really do have just a few quick
points unless Your Honors have additional
questions
Justice Breyer I did want to respond
in more detail to your question about how the
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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
the waiver -- the visa officer first determines
whether the person is otherwise admissible
under other provisions of the INA
If theyre inadmissible you never
even get to the proclamation Then for those
people who are not inadmissible under other
parts of the INA like 1182(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 youre not subject to an exception
then the consular officer him or herself
turns to the waiver provision and applies the
criteria of the waiver provision
JUSTICE GINSBURG How do you deal
with the -shy
GENERAL FRANCISCO So it does get
applied in every single case
JUSTICE GINSBURG How -- how do you
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deal with the example that was brought up of
the child with cerebral palsy
GENERAL FRANCISCO Your Honor the
waiver is built to address those issues I am
not familiar enough with the details of that
case to tell you what happened in that
particular case But thats what the waiver
provision -shy
JUSTICE BREYER But thats -- thats
you see -shy
GENERAL FRANCISCO -- is intended to
address
JUSTICE BREYER Youve read the
briefs as have I All right Now there are
some that lists about 10 or 15 instances like
the cerebral palsy One has Parkinsons Then
theres another brief that lists all the people
who are professors scholars at universities
and there are a lot And -- and then there are
people they list the students from these
countries a lot
GENERAL FRANCISCO Yeah
JUSTICE BREYER And then the business
community lists a -- a whole bunch and says my
goodness they have been unable to get -- we
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dont know whats going on
And then they say Well whats going
on is nothing is going on
GENERAL FRANCISCO Well Your Honor
-shy
JUSTICE BREYER Now I dont -- Im
not taking sides on that Im just saying I
dont know
GENERAL FRANCISCO Right And the
principal purpose of the proclamation is of
course to 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 Im 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
admissible
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 dont and doesnt tell us we
cannot intelligently make the admissibility
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determination
Third Id like to address the
1152(a)(1)(A) point about nationality-based
discrimination
JUSTICE SOTOMAYOR General could you
stop just one second
GENERAL FRANCISCO Yes Your Honor
of course
JUSTICE SOTOMAYOR I for one am like
Justice Breyer concerned about is this window
dressing or not Whats in place to ensure
its not What are you personally doing to
represent to us that it is in fact a real
waiver process -shy
GENERAL FRANCISCO Your Honor State
Department consular officers automatically
apply the waiver process in the course of every
visa application And they are doing that
which is why there have been -- and I looked at
our brief -- 430 waivers that have been issued
since -shy
JUSTICE SOTOMAYOR Have you bothered
-shy
GENERAL FRANCISCO -- the
proclamation was issued
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JUSTICE SOTOMAYOR -- to look to see
if there are reasons for all of those peoples
exclusions
GENERAL FRANCISCO Your Honor I
cannot claim that I have looked into every
individual case
JUSTICE KENNEDY Could you make your
1152 point
GENERAL FRANCISCO Yes Your Honor
1152(a)(1)(A) addresses one thing the issuance
of immigrant visas It doesnt address the
broader question over whether somebodys
allowed to enter in the first place
Thats governed by 1182 including
1182(f) So essentially 1182 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 1152(a)(1)(A) is
one of the rules that governs how we distribute
visas amongst that group thats eligible to
come in
And its not just nationality-based
distinctions that it applies to It also
applies to things like place of residence So
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once you have that universe of eligible people
1152(a)(1)(A) governs how you distribute them
But lets 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 non-immigrant visas to people who
arent allowed to enter but we wouldnt have
to allow anyone to enter and we wouldnt have
to issue any non-immigrant visas
So the bottom line is I think theyre
simply wrong on that case -- on that issue
My final point has to do with my -- my
brothers 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 25 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
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says its about Foreign policy and national
security And we would ask that you reverse
the court below
CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1109 am the case
was submitted)
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1 998 [1] 6619 39914 44111417 51581120 arise [2] 5725 584
1 [1] 6910 A 52101118
ALITO [16] 432124 446813 45
around [3] 4814 6313 6510
Article [2] 136 749 1000 [1] 7225 am [3] 116 32 826 15 4611 561119 6472024 65 aside [1] 4414 10 [4] 642125 6516 7715 Abilene [1] 5425 21221 669 asks [3] 169 519 7614 10-year-old [4] 5235 721215 ability [1] 6220 allies [2] 73 1719 assert [2] 5111 7811 1002 [2] 116 32 able [2] 2210 5111 allow [3] 413 4420 8110 asserts [1] 7318 100 [4] 353 407 4813 5310 above-entitled [1] 114 allowed [3] 178 8013 819 associate [1] 2211 11 [1] 4410 abroad [1] 2113 allowing [1] 5318 associated [1] 812 1109 [1] 826 absolute [1] 428 almost [8] 116 1556 30712 66 assume [4] 19811 2016 813 1152 [7] 4017 494 5916 6022 61 absolutely [12] 4114 4213 4520 1518 7416 assumption [3] 3016 3724 513 1421 808 49217 5810 6112 622 63220 Alomari [2] 5222 attitude [1] 227
1152(a)(1)(A [4] 793 801019 81 6419 658 alone [2] 655 6710 Attorney [1] 523 2 abstract [1] 5720 already [3] 61024 397 authorities [1] 4918
1182 [10] 1018 4419 4721 499 academic [1] 3418 although [3] 379 4414 6611 authority [7] 6916 712 3815 42 541 6816 69519 801415 accept [8] 138 454 5035 539 Amendment [3] 396 619 6716 15 5622 5910
1182(a [1] 7612 603 742324 American [1] 1111 authorize [2] 42610 1182(f [18] 4591318 54 616 7 acceptability [1] 108 Americans [2] 4011 8121 automatically [2] 764 7916 1120 1025 1314 3816 432225 account [2] 105 649 amicus [1] 671 available [1] 6511 4410 451 497 544 8015 accurate [1] 1218 amongst [1] 8021 aware [2] 391725
12 [1] 5522 across [3] 107 2524 2923 amount [1] 7416 away [2] 6224 8117 1202(h)(2 [1] 5523
1361 [1] 432
act [4] 128 177 421 4322
acting [1] 313 analysis [3] 914 1624 7013
animus [1] 1710 B
14 [1] 7212 action [4] 2511 385 4915 7314 another [10] 519 1220 279 35 back [6] 234 3519 4715 4813
15 [1] 7715 actions [1] 247 18 54619 6312 646 6924 77 6819 699
150 [2] 325 3618 activity [1] 3118 17 backdrop [1] 2613
17 [1] 3614 acts [3] 410 281119 answer [9] 615 119 369 389 45 background [2] 2620 689
17-965 [1] 34 actually [14] 111923 1225 175 3 5113 6216 631416 balance [2] 462 4818
180 [2] 461821 21 2112 231 2410 257 299 37 answers [1] 532 ball [2] 5018 7425
19 [1] 555 21 4319 608 763 anti-atheist [1] 224 ban [22] 291113 3921 401317
1918 [1] 7423 add [1] 64 anti-Muslim [2] 506 6213 4315 466 4817 4920 5324 55
1965 [1] 4522 added [1] 519 anti-Semite [1] 163 20 564 593 60817 6410 653
2 addition [2] 617 151 anti-Semitic [2] 194 2619 66317 691617 8119
2 [1] 6910
20 [1] 408
2001 [1] 4524
2015 [1] 4525
2018 [1] 112
25 [2] 112 8118
additional [1] 7522
address [10] 71 12618 133 299
583 77412 792 8011
addressed [2] 59 5723
addresses [3] 76 399 8010
adequacy [2] 5724 7014
adequate [1] 610
anti-Semitism [1] 1615
anticipated [2] 582123
anybody [1] 7320
anyway [1] 314
APPEARANCES [1] 118
appears [1] 318
applicable [1] 6325
banned [1] 593
bans [3] 3924 4521 461
bar [3] 1420 393 552
bare [1] 303
based [7] 1415 1725 275 2922
60131315
baseline [14] 3162123 722 819
3 adherence [1] 6524 application [2] 6712 7918 972124 1547 1923 302 3919
3 [1] 24 administration [2] 5813 6019 applied [10] 111619 153 1913 7817
38 [1] 27 admissibility [3] 78 820 7825 23 269 2923 3814 76324 bases [1] 6810
39 [2] 5920 6115 admissible [4] 424 816 767 78 applies [9] 322 171 2113 6221 basic [4] 615 725 127 3014
4 19
admission [1] 3923 7651619 802425
apply [9] 147 1589 1918 2112
basically [2] 23725
basis [8] 85 171724 1916 4611
400 [2] 361518 admitted [1] 3423 231 2516 359 7917 502 5918 6821
43 [1] 4715 adopt [1] 314 approach [1] 468 became [1] 3917
430 [2] 7217 7920 adopts [1] 318 appropriate [1] 3025 become [1] 601
46 [1] 3418 adversary [1] 6821 April [1] 112 becomes [1] 5925
460 [2] 4119 5911 advice [2] 179 289 arbiter [1] 2622 began [1] 6915
5 50 [1] 6412
advisors [2] 4821 5010
advisory [1] 7417
affirm [1] 524
area [5] 419 1016 1519 4718 57
8
arent [2] 4311 819
behalf [9] 12122 24710 39 38
23 5118 7518
behind [2] 682223
7 afford [1] 3819 arguably [1] 4717 believe [1] 3614
70 [2] 5012 628 afoul [1] 508 argued [1] 236 below [6] 323 9212424 262 82
75 [1] 210 African-Americans [1] 6516 argument [37] 115 2258 348 3
8 agencies [5] 1925 251516 406
691 121241422 1327 1471013
19912 3822 4316 474 4810
benefit [1] 73
berth [2] 578 633
8 [2] 6417 749 agree [3] 1522 658 6923 11 492224 515 5411 562324 best [1] 6624
80 [2] 30812 ahead [1] 3010 5827 6013 6324 6816 695 71 better [3] 1022 1817 5221
9 air [1] 4823
AL [2] 147 21 7517
arguments [5] 3014 4016 506
between [2] 5418 6618
beyond [2] 3512 7119 902 [1] 6619 aliens [16] 424 128 1625 2113 52915 big [3] 3924 405 5320
Heritage Reporting Corporation Sheet 1 1 - big
84Official
bigger [1] 446
bill [4] 42691112
biological [1] 4010
biometric [1] 433
Bishops [1] 675
bit [2] 614 141
blatant [1] 675
Blatt [1] 3420
block [1] 4212
border [4] 8814 6011 7821
both [5] 207 274 3019 4020 44
2
bothered [1] 7922
bothering [1] 235
bottom [1] 8112
bounds [1] 2814
bracketed [1] 5914
branch [8] 715161718 2312 27
89 2813
BREYER [49] 1315 3061122 31
111422 321411141624 332
610162023 3425812 35111
1523 36369111720 37211
1822 382 443 524 715 72816
7524 7791323 786 7910
Breyers [1] 576
brief [14] 3420 35818 3612 43
20 464 4813 5011 523 555 62
9 7211 7717 7920
briefed [1] 534
briefs [9] 413 308 3416 452 65
7 672 711123 7714
bring [7] 20131624 2110 2212
516 5222
bringing [1] 5116
brings [1] 7813
broad [5] 418 1146 442025
broader [1] 8012
broadly [1] 429
broke [1] 256
brothers [1] 8115
brought [1] 771
Brown [1] 5424
built [1] 774
bunch [1] 7724
burden [2] 3915 6614
burdens [1] 431
business [4] 3116 3417 367 77
23
C cabinet [9] 169 1724 1924 24
2225 25114 2810
cabinets [1] 696
cabinet-level [3] 153 183 1922
California [1] 5325
call [1] 278
calls [1] 675
came [2] 114 587
campaign [9] 168 285621 291
60141623 624
candidate [1] 2817
cannot [5] 815 2119 5619 7825
805
careful [1] 4423
carrot [2] 569 596
carrots [3] 3921 4312 469
Carter [6] 93 1013 113 3018 35
5 384
Carters [4] 1113161822
Case [25] 34 109 1222 1317 14
11 151015 198 2011 236 45
14 5115 5424 6612 672 7456
9 7624 7767 806 8113 8256
case-by-case [5] 30192325 38
77
cases [5] 1519 551 659 6913
7024
categories [1] 726
Catholic [1] 674
Catholics [1] 6718
caution [1] 5911
cerebral [4] 526 7212 77216
certain [3] 1117 1420 1816
certainly [2] 5015 579
Chad [3] 46 1010 2917
chain [1] 457
challenge [4] 2010 2123 221 51
16
change [5] 92 3314 4012 5813
charge [2] 245 702
check [1] 254
chemical [1] 4010
CHIEF [49] 3310 1125 121117
21 131 309 3817182124 404
41182024 425 4820 49613
1421 501521 5719 5861216
20 601220 616101720 6218
634141722 642 75481419
20 824
child [1] 772
choices [1] 393
choose [1] 751
Christian [1] 222
Circuit [3] 2633 643
circumstances [4] 311 401 63
13 6510
cite [2] 76 1321
citizen [3] 28712 625
citizens [1] 5116
claim [15] 1320 20611131416
24 2121115 2225 5014 6811
13 805
claimed [1] 2624
claims [4] 1317 215 2219 517
class [10] 322718 3413 4429
131416 7313
Clause [15] 1320 1914 2069 21
21118 2225 288 4924 551 68
1113 6912 7020
cleansing [1] 6825
clear [8] 923 1720 2123 5016
5415 6021 6112 682
clearer [1] 613
Clearly [1] 6820
close [1] 3119
closest [2] 73 1719
Code [2] 5320 752
coequal [1] 279
coexist [2] 55719
college [1] 222
come [13] 1324 175 3210 4621
526 5315 5523 5925 6513 72
213 801622
comes [3] 1322 5717 7420
coming [5] 79 2716 4221 432
6925
comments [2] 166 194
committee [4] 512 24178
community [3] 341718 7724
companies [1] 464
compare [1] 1012
complaining [1] 3417
complete [1] 118
completely [2] 2410 546
comply [1] 251
comports [1] 4018
comprehensive [2] 55916
concede [3] 4122 5218 532
conceded [1] 6821
Concepcion [1] 5425
concern [2] 59 2612
concerned [3] 3217 5913 7910
concerns [2] 1122 129
concluded [4] 155 201 2518 29
24
conduct [2] 824 95
Conference [1] 674
confident [1] 1915
confidential [1] 265
confidentiality [1] 2612
confirms [1] 2921
conflict [1] 5416
conflicts [1] 392
Congress [40] 41015 5710 64
81024 385 397172025 4117
25 421624 439132122 4421
4522 47101011 4817 5313 55
81016 561 571423 5822023
592 741019
Congresss [7] 392 4019 4318
4523 4717 5019 5312
consequences [1] 5017
consider [6] 199 284 371923
3811 5715
considerations [4] 106 4633
4819
considered [1] 5511
considers [1] 5712
consistent [2] 2820 4718
constantly [1] 718
constitute [2] 4416 4922
Constitution [3] 2424 289 6722
constitutional [6] 1317 1510 19
18 2114 5014 6311
constitutionally [1] 2810
construct [1] 2516
consular [6] 121 7113 76412
18 7916
contacts [1] 3115
contemplated [1] 5410
context [3] 161523 1825
contexts [2] 5725 744
continuing [2] 47223
contours [1] 1521
contraception [1] 745
contradicts [1] 602
contrary [2] 54614
contravention [2] 5534
convinced [1] 487
cooperate [5] 84 3910 4610 48
15 5717
cooperated [1] 3922
cooperating [3] 4220 4311 55
19
core [1] 720
corner [1] 672
correct [4] 13911 4323 4412
cosmic [1] 7310
Cotton [1] 5425
couldnt [3] 2223 613 7123
counsel [2] 7515 825
countermand [2] 459 5019
countermanded [1] 4717
countermanding [1] 4317
countermands [2] 4523 5312
countries [45] 3152225 51821
22 749 91920 1047 1112 15
7 2212 252224 2610 2916 32
4 3621 3910121821 4219 43
11 469 4815 5518 566 5716
5810 6010 641213141621 65
14 665 7721 7811 812224
country [29] 416 811 99 154
1925 251718 2716 305 3210
4215 436 4416 491 516912
21 521012 5615 581423 6010
7114 8017 812123
countrys [1] 1719
couple [2] 271 3222
course [8] 1323 1679 3520 61
18 7811 79817
COURT [22] 1115 311 1218 13
8 1423 3825 5223 535 5912
6125 6399 678 682 701 7318
25 741315 7520 823
Courts [3] 4112 4513 5423
courts [5] 266 5625 572 7016
743
covered [2] 1114 2917
covers [2] 1112 5921
created [2] 5815
creates [1] 667
credit [1] 3922
criminal [2] 83 304
crisis [2] 477 482
criteria [8] 512 910 292324 33
1921 3919 7620
cross [1] 1613
crystal-clear [2] 811820
Cuba [2] 95 476
current [1] 3613
cuts [1] 6715
D DC [3] 1112022
Heritage Reporting Corporation Sheet 2 bigger - DC
85Official
danger [1] 525
dangerous [1] 597
data [1] 7221
daughter [1] 525
day [5] 2819 40814 63723
days [4] 4119 461821 5911
deal [8] 422425 4310 5622 596
6824 7621 771
deals [1] 5517
dealt [3] 173 4112 4513
debating [1] 743
decent [1] 366
decided [3] 610 121213
decision [3] 2122 4110 5912
decisions [1] 5423
deemed [1] 5616
deems [1] 4722
defend [1] 2423
deference [2] 4118 575
defies [1] 393
definite [1] 356
definitely [1] 209
deliberations [1] 2418
denied [1] 7215
denigrating [1] 166
denigration [1] 684
denominator [1] 7219
Department [3] 120 761 7916
departments [1] 691
depending [1] 6312
depends [1] 7816
described [3] 811 2614 535
designated [2] 518 7114
despite [1] 1214
detail [3] 1020 274 7525
detailed [3] 101825 1110
details [1] 775
determination [2] 815 791
determine [4] 424 78 819 7817
determined [1] 714
determines [1] 766
developing [1] 5722
development [1] 7317
difference [2] 2724 631
different [10] 822 3512 4016 53
16 5511 6622 6721 707 744
816
difficult [2] 1716 581
diplomatic [5] 324 18121518
3313
direct [3] 5415 5534
direction [2] 5512 685
directly [6] 5010 512323 52125
5413
disagree [1] 4610
disagreed [1] 813
disavowing [2] 63618
disclaimed [1] 6223
discretion [1] 472
discriminating [1] 605
discrimination [17] 394 401722
4825 49423 502 5917 60913
22 612 6324 651520 676 794
disease [1] 3119
dislike [1] 2117
disparage [1] 7025
distinctions [1] 8024
distinguish [1] 1514
distribute [2] 8020 812
district [1] 7318
Doe [1] 88
doing [8] 63 229 2514 5015 54
519 791218
domestic [2] 1913 6710
DONALD [2] 13 35
done [9] 1924 2412 267 354 44
21 608 6628 7422
doom [1] 4615
dot [1] 1612
down [4] 256 6710 6912 7319
dressing [3] 35921 7911
drivers [3] 696 741019
dropped [1] 46
duty [2] 276 5625
duty-bound [1] 2423
E earlier [2] 2713 687
easily [1] 6224
easy [1] 197
economic [1] 463
economics [1] 5323
effectively [1] 281
eight [1] 6519
either [2] 1112 265
elected [2] 162 2819
eligible [3] 801621 811
embodies [1] 713
embodiment [1] 2813
embraced [1] 6225
emergency [5] 4023 4115 5710
59813
emerges [2] 161416
employed [1] 3123
employer [1] 6516
enacted [1] 4322
encompasses [1] 6513
end [6] 162022 2314 4557 46
22
ends [2] 4614 478
engaging [1] 825
engineers [2] 532224
enough [4] 415 68 583 775
ensure [2] 2623 7911
enter [7] 1617 2114 409 6220
8013 81910
entire [1] 810
entirely [1] 544
entitled [1] 6525
entity [1] 6312
entry [6] 314 414 399 4013 44
11 605
equal [1] 6525
Equality [2] 523 7211
equipped [1] 7016
ESQ [2] 122 26
essentially [3] 714 1325 8015
establish [1] 4517
established [1] 3116
Establishment [12] 1320 1914
206 2121018 2225 4924 68
1112 6912 7020
ET [2] 147
evaluating [1] 7014
evaluation [1] 267
even [20] 1310 17916 19811 25
11 4120 4716 5319 553 5824
5910 6621 679 6820 691522
73113 7610
everybody [2] 2123 6524
everyone [1] 7118
everything [2] 2725 711
evidence [2] 6624 7223
exact [4] 3616 4217 5314 5517
exactly [12] 625 266 4313 4522
535 57515 62817 638 64221
example [14] 86 4024 455 515
24 522 5521 587 629 6515 67
17 6815 747 771
examples [2] 312 5313
exception [7] 92123 1120 3624
7118 761417
exceptions [2] 302023
exclude [2] 2914 6720
excluded [6] 910 2017 3220 33
1217 7210
exclusion [2] 127 1625
exclusions [1] 803
exclusively [2] 661518
executive [23] 715151618 14
10 23712 24814 2813 391 46
15 471415 5311 5921 602 61
16 621112 69923 7421
exercise [4] 206919 2218
exercised [1] 5311
exert [1] 3313
exerts [1] 324
exigency [1] 572
expect [1] 2424
explore [1] 420
expressing [2] 510 356
extensive [1] 151
extent [1] 4311
extra [2] 3922 755
extreme [8] 514 1919 205 2314
17 255 31912
eyebrows [1] 656
F face [1] 252
facial [1] 2510
fact [8] 10311 133 2623 6512
6714 6919 7913
factors [1] 5515
facts [1] 1620
factual [1] 583
fail [1] 405
failed [4] 315 914 301 3924
failing [1] 3918
fails [1] 99
failure [1] 96
fair [1] 55
faith [3] 277 502 6721
fall [7] 323 924 1312 32618 43
24 6617
falling [1] 3412
falls [3] 44 3814 6615
familiar [1] 775
families [1] 3419
family [5] 2212 3119 4566 53
18
far [5] 1413 3217 4121 513 59
15
fast-moving [1] 4024
faster [1] 3923
father [1] 2018
favor [1] 1510
federal [1] 7319
fell [1] 920
few [4] 326 7110 733 7521
final [1] 8114
find [4] 244 351616 7123
findings [1] 6018
finds [1] 4411
fine [3] 2521 2925 7615
fine-grained [4] 4524 468 4818
5020
finish [1] 1714
fire [2] 2318 6517
first [21] 14310 2421 272 283
3225 39614 427 4317 4721
556 6021 619 671622 699 76
614 801317
fit [1] 656
five [6] 3124 64131313 75416
flat [7] 4314 4616 4817 55220
564
flatly [3] 59316 602
flexible [1] 418
Focus [1] 321
folks [1] 5225
follow [1] 178
following [1] 312
fomenting [1] 591
footnote [1] 3614
force [1] 4316
forces [1] 6920
forecloses [1] 1517
foreign [8] 42 825 106 129 31
15 462 8018 821
forever [1] 6221
Forge [2] 212225
forget [1] 5610
form [1] 1916
forth [2] 618 721
forward [2] 132224
founding [1] 6718
four [1] 7814
Fourth [1] 263
FRANCISCO [117] 119 239 37
810 417 616112225 91218
10172124 115818 1231624
13418 142122124 1518 164
1821 171323 182924 1925
2081923 21321 228141722
2310162124 243111519 268
Heritage Reporting Corporation Sheet 3 danger - FRANCISCO
86Official
151825 27172022 28223 292
3021 3110132125 32381315
2225 334811182225 3447
1025 35101422 361581012
1925 3731320 381920 7517
19 7623 7731122 7849 797
1524 8049
frankly [1] 377
free [7] 2069101924 221818
freedom [1] 6523
friend [5] 395 4319 4615 532
623
full [1] 1520
fundamental [5] 2811 296 6522
713 7418
future [2] 161 1814
G game [1] 1325
gas [1] 5425
GEN [3] 119 239
General [127] 119 3810 417 57
23 616112225 91218 1017
2124 1125818 1231624 134
1618 142122124 1518 16418
21 171323 1825924 1925 20
281923 21321 228141722
23310162124 243111519 25
25 268151825 2713172022
28223 292 3021 31101321
25 323813152225 334811
182225 34471025 35101422
3615810121925 3731320
38191920 624 75161719 76
23 7731122 7849 79571524
8049
Generals [1] 6824
George [1] 6719
gerrymander [1] 6614
gets [1] 162
getting [4] 611922 731 7414
GINSBURG [4] 48 445 762125
give [8] 711 86 151225 5124
569 6821 7223
given [10] 917 1413 1718 1825
1915 241325 3219 691819
gives [2] 616 2224
giving [3] 311 539 606
goodness [1] 7725
GORSUCH [14] 5025 511820 52
81417 677 73258121622 74
2
got [4] 2714 357 4334
gotten [2] 721824
governed [1] 8014
government [14] 825 92 109 12
1523 1322 1524 222 264 278
10 3520 514 7823
governments [2] 3314 3714
governs [2] 8020 812
great [4] 248 274 812124
greater [1] 5910
greatest [1] 5012
greenhouse [1] 5424
ground [3] 223 401 5723
grounds [2] 624 6913
group [2] 5525 8021
guess [2] 1417 542
guidance [3] 3424 352 721
H Half [2] 4616 476
Hamdan [3] 4113 577 5915
hand [1] 1818
happened [1] 776
happens [2] 1718 4621
happy [1] 7512
harbored [1] 1710
hard [1] 1520
hardship [3] 31789
harkens [1] 699
harmed [1] 5123
harmful [2] 824 95
harmonize [1] 4425
Harvard [1] 3419
hate [1] 2818
hateful [2] 281820
hatred [1] 167
HAWAII [4] 17 36 5125 7224
head [2] 23812
hear [1] 33
heard [7] 1523 39519 453 4614
532 733
hearing [1] 3519
heart [6] 179 181921 2119 59
24 6716
hearts [3] 179 182021
heated [1] 2617
heightened [1] 514
help [4] 421 721 87 2523
herself [1] 7618
hire [1] 2318
history [6] 824 1025 1111 303
4
holds [1] 1814
holistic [1] 914
home [2] 811 7823
Homeland [1] 313
honestly [2] 176 2724
Honor [38] 417 61319 71 810 9
12 1018 11511 12325 1318
1621 1715 1810 19621 2010
214922 2420 2625 28324 32
923 36125 3810 4520 507 77
3 784 79715 8049
Honors [1] 7522
hoping [1] 7814
however [3] 419 113 2513
humanitarian [2] 1121 464
hypothetical [15] 151323 173
187 191620 205 2323 3812
412223 4223 437 4912
I is [1] 1613
ID [1] 433
idea [1] 454
ideal [2] 81 303
identified [2] 5518 5713
identify [1] 824
identifying [2] 4219 4811
III [1] 136
illustrate [1] 87
illustration [1] 5012
image [1] 464
imagine [7] 2913 412425 5611
19 598 613
imbued [1] 128
immediate [1] 419
immigrant [3] 5923 8011 817
immigrants [3] 11161719
immigration [10] 412 318 4518
4911 67151720 74920 752
impact [1] 4915
impacted [2] 52125
impacts [1] 4919
impediment [1] 4117
implement [3] 422 721 815
important [7] 1324 531 5923 61
15 696 7011 724
importantly [2] 517 6914
impose [3] 617 103 457
imposed [3] 2522 609 6614
imposes [1] 91
imposing [1] 8119
improve [1] 718
impulse [1] 742
in-person [3] 434 5521 562
INA [11] 42225 618 721 816 45
19 5017 5322 76812
inaccurate [2] 3912 561
inadequate [1] 5617
inadmissible [2] 76911
including [9] 320 155 251819
2917 3911 4217 476 8014
incomplete [1] 239
inconsistent [2] 523
indeed [1] 591
independent [1] 2622
indicates [1] 4624
indication [1] 5510
individual [4] 311 781522 806
individualized [4] 3915 4225 46
8 595
individuals [2] 78 322
ineffective [1] 2912
infected [1] 6911
inference [2] 66713
infiltration [1] 5613
information [20] 31625 423 77
23 81319 97 302 3315 3517
3913 407 414 5617 5825 78
1317
inhibition [1] 6219
initial [1] 253
injunction [5] 217 2223 73910
24
injury [1] 2124
INS [1] 2216
instances [2] 734 7715
Instead [5] 3921 4617 4817 62
25
intelligence [3] 406 414 428
intelligent [1] 815
intelligently [1] 7825
intended [1] 7711
intention [1] 8119
interests [4] 1121 315 701115
international [1] 6711
interpretation [1] 604
interrupt [1] 412
interview [4] 435 5522 562 71
13
introduced [4] 4120 421011 49
20
introduces [1] 426
invidious [1] 668
involve [1] 1625
Iran [2] 94 6424
Iraq [3] 923 1010 2917
iron [1] 7424
irrelevant [2] 2822 291
irrespective [1] 147
Islam [1] 8123
isnt [5] 3520 3813 4710 7119
25
Israel [4] 1617 1718 181516
issuance [3] 495 5918 8010
issue [10] 1219 16101011 4911
5511 7313 8171113
issued [7] 54 89 1110 4716 78
22 792025
issues [6] 126 283 533 63518
774
item [1] 4510
itself [5] 2910 69819 713 7325
J Jane [1] 88
Jews [2] 166 242
job [1] 2515
join [1] 2213
joined [1] 576
Judge [2] 4022 612
judges [2] 2623
judgment [6] 43 4524 4717 48
22 7019 8019
judgments [4] 4019 4318 5020
5312
judicial [1] 1620
jump [1] 664
jurisdiction [1] 136
jurisdictional [5] 122413 133
533
jurisprudence [1] 1914
Justice [217] 120 3310 48 56 6
272023 9817 10111922 112
791525 12111721 1311516
19 1431722 151222 16519
171122 18151125 193 2024
1521 21115 2259151921 23
31117222225 2441216 2525
269131619 2712182123 28
1625 30691122 31111422 32
1411141624 3326101620
23 3425812 351111523 363
Heritage Reporting Corporation Sheet 4 FRANCISCO - Justice
87Official
69111720 372111822 382
17182125 404 41182024 42
5 432124 44346813 4515 46
111723 471320 4861020 49
6131421 5015212325 5118
20 52381417 5421218 5611
1924 575619 586121620 60
1220 616101720 6218 63414
1722 642672024 6521221
669 677 68618 6924 709 715
72815 73258121622 742 75
48142024 762125 7791323
786 79591022 8017 824
justiciability [1] 137
justifications [1] 663
K KAGAN [26] 131619 1431722
151222 16519 171122 1815
1125 193 2613 2712182123
5023 5421218 709
Kagans [1] 2323
KATYAL [79] 122 26 38212224
4015 41711 42413 4323 441
1218 4520 46131925 47325
489 49291725 504725 511
141922 52131620 5431117
21 561821 574 585151922
6020 618111922 6222 638
1620 64171923 6514 669 67
713 68612 693 701017 7279
733711152124 75611
keep [3] 241 258 4215
KENNEDY [19] 10111922 204
1521 2220 281625 461723 47
1320 48610 5624 575 807
Kennedys [1] 119
kept [1] 264
kill [1] 4011
kind [8] 142022 1612 186 1913
5415 5924 7012
kinds [1] 165
King [1] 6719
knock [1] 6114
knows [4] 181319 3525 7823
L land [1] 221
language [1] 4325
laptop [1] 4920
large [1] 5922
later [2] 4119 5911
latest [1] 6211
Laughter [5] 188 3411 423 757
10
LAVAS [1] 4023
law [4] 314 3720 403 752
lawfulness [2] 3723 724
laws [2] 411 318
layer [1] 519
lays [1] 273
learns [1] 811
least [1] 1213
leave [1] 512
left [2] 3015 6519
legality [1] 378
Legislation [3] 3923 4121 422
legislative [1] 4117
legitimacy [1] 2511
legitimate [1] 1322
Lemon [2] 67925
less [1] 3112
letters [1] 7225
level [2] 423 77
lies [1] 4316
life [1] 7214
light [1] 5722
likelihood [1] 5525
limit [3] 51 4423 4512
limitations [1] 6017
limited [1] 7312
limits [4] 420 64 545 7421
line [4] 107 2524 4510 8112
lines [1] 699
Lisa [1] 3420
list [10] 47 911 3115 64141625
665610 7720
listed [1] 919
lists [3] 77151724
litigants [1] 266
little [2] 613 141
local [1] 2817
long [3] 415 577 678
long-term [2] 3117 601
longer [2] 101419
look [16] 724 2622 3519 4113
4715 552 6238 6510 661220
671 6822 7021 801
looked [7] 5713 624 3022 6420
7919 805
looking [1] 6823
lot [5] 612 145 167 771921
love [1] 8122
low [1] 916
lower [1] 743
Lukumi [3] 659 682 7024
M made [7] 1215 14912 286 689
811820
main [1] 720
maintain [1] 717
majority [6] 31920 251920 29
15 491
Mandel [18] 1321 1410131822
158141619 16192223 17116
201125 2511 2621
Mandels [1] 1723
many [5] 3013 7255 812222
mark [1] 2811
marks [1] 296
material [1] 261
matter [5] 114 1917 259 297 72
21
mayor [1] 2817
McCreary [3] 159 6399
mean [9] 1820 412 4824 5720
6215 6411 6715 6810 814
meaning [1] 299
means [2] 144 6514
meant [2] 421 103
measures [1] 5615
medical [1] 3421
meet [4] 511 1420 331820
member [3] 2425 251 3119
members [2] 1610 2213
mentioned [2] 49 5616
merits [4] 1214 1312 514 537
message [2] 2124 224
met [1] 321
might [13] 620 181314 2218 26
12 356 4912 5023 511 5222
584 655 7413
migration [1] 458
military [1] 4821
million [2] 325 3618
millions [2] 6733
minimum [11] 316 423 7722 8
218 96 30123 7816
minutes [2] 75516
misunderstanding [1] 4912
moment [1] 7121
month [1] 413
months [1] 488
most [18] 1018 1110 1324 2912
25 352 361313 37141416 53
1 5922 6115 6421 6914 7015
7225
move [3] 107 2523 7214
moved [1] 6224
moves [1] 4212
much [8] 1120 2025 285 446 46
7 6620 71119
multi-agency [3] 312 1921 29
22
Muslim [19] 321 251820 2911
1315 4911619 6410121416
17 65314 663 811922
Muslim-majority [2] 156 2916
Muslims [5] 2715 6421 661819
8120
must [4] 2418 3111 325 7411
N narrow [1] 419
nation [1] 5924
national [14] 43 520 105 1121
129 1323 176 184 571 7011
1518 8019 821
nationality [7] 39424 401721
4315 59318
nationality-based [4] 609 611
793 8023
nationals [4] 317 40813 4415
nationwide [3] 217 2223 739
naturalization [1] 7411
nature [1] 102
nay [1] 416
NEAL [3] 122 26 3822
near [1] 7316
necessarily [1] 4711
necessary [4] 37911 472224
need [6] 420 1717 2622 304 31
20 6113
needed [7] 31725 423 77 819
781217
needs [1] 544
negative [2] 2124 226
Neither [2] 74 4212
neutral [6] 154 1923 2119 2517
292324
never [7] 359 394 4120 5021 72
18 76916
new [4] 3512 4517 5713 7317
next [3] 71 63623
Ninth [2] 262 643
nobody [2] 3422 3525
NOEL [5] 119 239 38 7517
non-immigrant [2] 81811
non-politically-correct [1] 6917
non-reviewability [2] 12114
none [1] 4716
Nope [1] 701
nor [1] 75
normal [1] 3220
nothing [8] 3717 461321 478
493 5713 6023 783
notice [1] 3524
noticed [1] 3018
number [11] 157 2522 329 34
15 361314 6524 6714 694 72
9 744
numbers [2] 3313
O oath [3] 28724 295
objections [2] 6616 7110
objective [4] 621 645 6625 70
22
observer [7] 621 6458 653 66
25 679 7022
observers [1] 1823
obviously [2] 719 7324
occupations [1] 5321
occurred [1] 6825
offer [1] 4312
office [2] 288 3622
officer [3] 7661318
officers [2] 764 7916
official [2] 7024 7113
officially [1] 7114
often [3] 3716 7220 8018
Okay [11] 3114 332323 3412 35
15 3718 5412 6123 755613
omits [2] 319 2915
Once [5] 814 1321 2620 477 81
1
one [39] 41113 52021 915 10
13 114 1220 13524 1616 17
19 2215 2314 278 2913 3015
3312 358 373 4013 4218 51
24 6015 6220 6311 6422 6522
6714 694 71811 7210 7716
7969 801020 8123
ones [3] 518 6511 718
only [17] 322 414 1116 1519 21
Heritage Reporting Corporation Sheet 5 Justice - only
88Official
13 2914 317 329 3423 3524
4218 5514 626 651317 661
6812
opinion [3] 357 577 7417
Opinions [1] 288
oral [5] 114 225 38 3822
order [31] 91 1411 2425 253 29
1921 30181923 3314 3724 39
1920 4614 47714 4822 539
5921 602 6116 621112 655
13 698 712 725 7421 7812
orders [5] 2917 4616 47615 69
10
ordinary [1] 7023
organization [1] 812
other [29] 323 75 99 105 149
311724 3220 3523 416 4319
4424 4525 4714 5510 5615 58
9 656919 663 671525 6913
703 7120 7512 76811
others [2] 915 741
Otherwise [3] 2124 2210 767
ought [1] 4822
out [13] 242 258 27311 2814 35
1616 3618 588 6114 66411
723
out-of-the-box [1] 186
outcome [1] 2417
outer [1] 420
outgrowth [1] 6910
over [5] 1325 167 3615 4723 80
12
overall [1] 915
overwhelmingly [1] 1510
owes [1] 279
own [2] 6816 694
P packed [1] 612
PAGE [6] 22 3614 5011 555 62
8 7212
palsy [4] 527 7212 77216
parameters [1] 516
Parkinsons [1] 7716
PARS [2] 523 7211
part [7] 2925 59222223 601 61
15 7016
participated [1] 692
particular [15] 1016 2117 2589
408 4416 5614 57212225 58
314 664 6919 777
parties [2] 517 7313
parts [1] 7612
party [1] 5224
pass [1] 4114
passed [1] 156
past [4] 522 822 2917 503
people [32] 20121617 225 31
15 32510 3415 355524 3634
6 375 4221 4415 5523 5925
67420 703 7120 7211725 76
11 771720 8016 8118
peoples [1] 802
percent [6] 407 5920 6115 64
17 661919
percentages [1] 7222
perennial [2] 4812 5716
perhaps [2] 5817 717
period [3] 415 244 4722
permanent [1] 4518
permission [1] 523
perpetual [4] 444 4521 4612 48
5
perpetuated [1] 444
person [6] 4325 7114 767 78
1820
personally [2] 517 7912
persons [1] 5110
Petitioners [6] 1521 2410 39
7518
pick [1] 7425
pieces [1] 725
place [6] 2116 2319 7911 8013
1725
placed [1] 3916
plainly [1] 252
plaintiff [1] 5222
plaintiffs [2] 2125 536
please [4] 311 3010 3825 7520
point [23] 1624 1820 294 367
419 4215 4317 446 452 538
5415 6022 66111 68414 718
74818 7814 793 808 8114
points [1] 7522
policy [15] 43 106 129 2319 39
3 4019 4318 451821 462 50
10 5312 6310 8018 821
political [1] 128
polity [1] 601
poorest [1] 746
population [4] 491619 641518
position [1] 5017
possibility [1] 386
possibly [2] 216 2913
potentially [2] 201320
power [11] 4418 1313 4419 45
5 5310 541 5811 607 6720 74
23
practice [1] 2120
praised [1] 8123
precedential [1] 1220
precludes [1] 5710
predominantly [3] 64121316
preference [2] 456 5321
preferences [1] 5318
preliminary [1] 2621
prescient [1] 582
prescribed [1] 558
present [8] 2059 5191221 52
101119
presidency [1] 168
PRESIDENT [86] 13 345 410
14 5913 63916 712 934 11
13131822 1313 162 1758 18
6 191 2381223 257 271525
3513 3712 3834 40612 4217
101214 441121 454 472 487
11212224 4918 508918 5310
101523 54591922 561622 57
321 5810 599 607 6271216
23 632 643 6817 6951520 70
158 712 742224 811517
Presidents [8] 313 44 2421 38
15 4114 69721 704
presidential [1] 6018
Presidents [2] 4716 578
press [2] 141 6214
pressure [8] 324 91 104 1815
252223 3313 7811
presumption [1] 2710
prevent [1] 545
previously [2] 311623
principal [4] 1319 3312 376 78
10
principally [1] 298
private [4] 179 28712 625
pro-Christian [1] 223
probably [2] 3414 7415
problem [16] 261 3413 398 42
1719 481512 497 5315 5517
571216 6925 71419
problems [3] 323 2521 5721
proc [1] 1610
procedures [1] 5817
proceeding [1] 513
process [27] 51515 810 1458
1419 152 1915 2623 274 29
20 3915 5714 6815 69215 72
1020 76123 78161823 7914
17
processes [1] 3221
proclamation [55] 318 42 54 7
24 81721 92022 102121525
111023 1311 14615 161216
191718 211116 231 273519
2910 3313 381114 451617 53
11 5514 611 6217 635718 64
8 6972021 70410 7422 7610
131516 7810 7925 81525
proclamations [1] 421
proclamations [5] 823 1013 11
3 3716 6220
professors [1] 7718
Program [5] 725 56510 596
promulgated [2] 6212 6311
propose [1] 4314
protect [3] 41 2423 304
protest [1] 6718
provide [8] 31625 96 301 3315
3912 566 7812
provides [1] 72
providing [2] 5525 5825
provision [6] 1120 498 5420 76
1920 778
provisions [2] 459 768
provokes [1] 166
publication [1] 7219
publicize [1] 7125
publicized [2] 3621 374
publicly [1] 6511
publish [1] 762
purely [2] 6025 6711
purport [1] 4517
purports [1] 2919
purpose [5] 721 668 701925 78
10
purposes [4] 2216 3312 6114
751
pursuant [2] 89 7822
pursued [1] 215
pushes [1] 431
put [6] 1815 2319 351 4414 66
5 721
puts [5] 161922 6817 695 749
Q qualify [1] 722
qualms [1] 427
question [23] 612 119 1711 18
2122 3015 346 353 3810 41
16 51210 543 5724 61617 62
18 6315 7012 7122 735 7525
8012
questions [3] 5725 751223
quick [1] 7521
quite [4] 922 1915 326 7110
quotas [1] 6010
R race [1] 259
raise [1] 656
raised [1] 1222
raises [2] 6613 735
rate [1] 1524
Rather [1] 2514
rational [3] 17171824
re-upped [1] 483
reach [1] 514
reached [1] 537
read [8] 413 1418 307 3416 44
232324 7713
reading [1] 648
Reagan [8] 94 1012 113 3019
35413 3712 383
Reagans [1] 1113
real [1] 7913
real-time [1] 85
really [14] 720 81721 125 1422
1516 1821 439 4415 6617 71
24 7317 7521 814
reason [9] 132324 1423 2149
3219 339 4511 6822
reasonable [8] 1822 621 6458
652 6625 679 7022
reasons [11] 181315 3116 392
401522 4423 656 7412 802
reassessment [2] 4624 475
REBUTTAL [4] 28 3819 7516
17
receives [1] 289
recent [1] 522
recently [1] 46
recognition [1] 8115
recommendation [3] 153 183
1922
recommendations [2] 319 16
Heritage Reporting Corporation Sheet 6 only - recommendations
89Official
11
recommended [2] 314 2523
red [2] 5011 629
reenter [2] 63723
reexamined [1] 4618
referring [1] 524
reflect [1] 822
reflects [2] 42 101
refuse [1] 251
refused [1] 265
regard [2] 4825 7319
regime [1] 597
regularity [1] 277
rejected [2] 3920 4313
rekindled [1] 628
relatively [1] 197
relatives [1] 2017
relief [1] 7313
religion [6] 211720 259 6525
684 7025
religious [7] 226 651523 6613
1416 675
rely [1] 298
remedy [1] 736
remember [2] 3616 6816
removed [2] 4118 516
repetitive [1] 3013
reply [2] 3612 555
report [2] 462022
reporting [4] 823 402 479
represent [4] 981318 7913
representing [1] 673
required [3] 132 402 4711
requirement [2] 4710 5521
requires [1] 3721
resentment [1] 167
reside [1] 3118
residence [1] 8025
residual [1] 4214
resign [1] 251
respect [13] 945 2120 4020 42
23 4316 529 5513 5614 5825
6124 711820
respond [2] 418 7524
Respondents [5] 1823 27 21
12 3823
response [2] 1320 376
responses [5] 2420 271 3223
3610 371
responsible [2] 411 2413
rest [3] 451 5410 6018
restrictions [3] 315 617 6717
resulted [1] 152
reticulated [3] 4524 55816
reverse [1] 822
review [10] 312 519 1620 1922
2419 2922 5625 5714 6915
reviewability [1] 1219
reviewed [1] 262
rid [2] 531919
rights [2] 51811
rise [1] 739
risk [2] 176 435
riskiest [1] 79
ROBERTS [38] 33 1125 121121
131 309 381821 404 411824
425 4820 4961421 501521
5719 58121620 6012 61610
1720 6218 634141722 7548
14 824
robust [2] 4310 5622
rule [2] 127 7411
rules [1] 8020
run [1] 508
S safe [2] 4215 488
safest [1] 74
sake [2] 19912
Sale [4] 1212 53233
same [15] 920 1410 2824 349
3547 39819 5214 571215 63
10 658 685 6911
sanctions [2] 9125
satisfies [2] 1312 5515
satisfy [3] 171621 3918
save [1] 7213
Savings [1] 551
saying [13] 63 226 4025 426 46
12 5413 635 683 701221 71
10 787
says [28] 16516 237 241 3024
24 319 35824 4115 462020
47721 48241324 5224 5917
604 69810 7010 7217 7410
7724 821
scenario [1] 256
scheme [2] 55916
scholars [3] 2211 3418 7718
score [1] 916
scrutiny [1] 1717
seat [3] 696 741019
second [9] 1216 293 376 3917
557 6724 698 7813 796
second-guess [1] 7018
Secondly [1] 255
secretaries [1] 1924
Secretary [3] 314 524 7115
section [2] 547 749
Security [12] 313 43 105 129
1323 176 184 70111518 80
19 822
see [8] 63 1419 261 3214 367
4415 7710 801
seek [1] 3210
seeking [1] 399
seeks [1] 824
seems [5] 2724 3414 5414 581
666
seen [2] 10815
send [1] 3519
sense [6] 823 5520 5635 7014
7416
sent [1] 223
Sentelle [2] 4022 613
sentences [1] 1014
September [1] 8118
seriously [1] 5818
set [5] 6517 716 1620 2711
sets [1] 8015
seven [1] 322
several [2] 4525 5114
severe [1] 5614
shall [2] 1617 5917
share [3] 265 3016 741
sharing [1] 428
shes [1] 816
shouldnt [1] 623
show [1] 433
shows [3] 8814 7820
side [5] 3523 4319 6056 717
sides [1] 787
significant [2] 2811 3415
similar [1] 1123
simply [2] 52 8113
since [6] 720 1919 2914 678 74
23 7921
single [2] 5517 7624
situation [10] 58 246 3812 40
1224 536 561220 584 599
situations [1] 5722
six [1] 487
slightly [1] 816
small [5] 2521 2925 329 5320
5921
so-called [2] 2911 457
society [1] 673
software [3] 532224 589
Solicitor [1] 119
solid [1] 407
solution [4] 398 4816 5316 55
20
solutions [1] 557
solved [1] 5314
Somalia [2] 922 364
somebody [1] 765
somebodys [1] 8012
someone [1] 425
son [1] 2018
sorry [3] 56 346 8116
sort [1] 5710
sorts [1] 5319
SOTOMAYOR [37] 56 62720
23 9817 112715 202 21115
22591521 23311172225 24
41216 2525 2691619 646 68
618 6924 795922 801
Soviet [1] 4814
space [1] 5314
special [2] 512 72
specialty [1] 5321
specified [1] 397
speech [2] 2011 2219
speech-type [1] 2024
spoken [1] 6217
spokesman [1] 6214
sponsor [3] 436 5824 7115
sponsors [3] 3911 5524 568
squarely [1] 4325
staff [2] 169 627
stage [1] 2621
stake [1] 7012
standard [4] 1724 1917 251217
standing [2] 2123 221
started [1] 144
starting [1] 1624
starts [1] 3015
State [13] 524 1423 3911 436
511725 5524 567 5823 7115
7224 761 7915
statement [2] 258 3616
statements [23] 1910 285614
1820 298 5011 60141623 62
24524 63619 649 6623 688
92020
STATES [20] 11416 36 316 39
11 409 4519 465 511619 52
23 536 56713 5717 591 7213
747 753
statute [16] 53 434 4424 4720
493 5019 54710 5711 6014
16 6710 6817 718 7319 7425
statutes [1] 494
statutes [3] 618 76 4712
statutory [4] 58 511 538 5419
stepped [1] 5314
sticks [2] 3924 405
still [2] 4723 716
stop [2] 412 796
stopping [1] 227
stops [1] 1423
Stormans [2] 661221
strike [5] 482323 4910 6710 73
19
strong [3] 1511 2710 667
stronger [2] 1413 719
struck [1] 6912
struggled [1] 681
students [2] 2212 7720
studying [1] 3117
stuff [1] 624
subject [4] 1210 248 761417
subjected [1] 925
submitted [2] 8257
substance [4] 1414 1916 275
2920
succeed [4] 2014 52151821
successful [2] 45 109
Sudan [1] 2918
sufficiently [1] 916
suggest [1] 1714
suggested [3] 412 516 2220
suggesting [2] 1920 548
suggestion [1] 6824
suggests [1] 7221
summarizing [1] 239
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Heritage Reporting Corporation Sheet 7 recommendations - SUPREME
90Official
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7
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3912 437 5524 568 5824 71
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1719 7717
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6914 792
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292 3423 3524 36210 3711
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496892123 5325 7118 768
11
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6417 771 7820
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7 2821 291
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284 4018 4723 571 6219 767
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It is not -shy
JUSTICE SOTOMAYOR General the
proclamations by Reagan and Carter however
were not as broad as this one
GENERAL FRANCISCO Your Honor they
were almost as broad but -shy
JUSTICE SOTOMAYOR And -- and -shy
GENERAL FRANCISCO -- to complete my
answer to Justice Kennedys 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 Reagans or President Carters
covered But its -shy
JUSTICE SOTOMAYOR And more -- and
more immigrants because Carters only applied
to certain immigrants not to all
GENERAL FRANCISCO President Carters
actually applied to all immigrants but then had
an exception much like the waiver provision
here for national interests and humanitarian
concerns So I think President Carters was
actually very similar to the proclamation here
And -shy
CHIEF JUSTICE ROBERTS Is your
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consular non-reviewability argument -- is that
a jurisdictional argument
GENERAL FRANCISCO Your Honor I -shy
yes I think it is a jurisdictional argument
And thats why I dont 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 to -shy
CHIEF JUSTICE ROBERTS I -- I thought
in Sale that we decided that this -- this
wasnt jurisdictional or at least decided the
merits despite the non-reviewability argument
that the government made
GENERAL FRANCISCO I think the second
thing that you just said Mr Chief Justice is
accurate The Court didnt address the
reviewability issue at all And so we dont
think its precedential one way or another
CHIEF JUSTICE ROBERTS Was the -- was
the argument raised in that case by the
government
GENERAL FRANCISCO Yes it was Your
Honor Actually you could -shy
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CHIEF JUSTICE ROBERTS So -- so its
an argument we would have been required to
address if it were in fact jurisdictional
GENERAL FRANCISCO I think so And
so I think one way you could understand it is
that it doesnt go to Article III jurisdiction
though it is a justiciability argument and we
would urge this Court to accept it because we
think its correct
But even if you dont think that its
correct we think that this proclamation
satisfies the merits because it does fall well
within the power of the President under
1182(f)
JUSTICE BREYER If youre about -shy
JUSTICE KAGAN May I turn General
to the constitutional claims in this case
GENERAL FRANCISCO Yes Your Honor
JUSTICE KAGAN And your principal
response to the Establishment Clause claim is
to cite Mandel and to say that once the
government comes forward with a legitimate
reason -- of course national security is the
most important reason one can come forward with
-- the game is over essentially And I just
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want to press on that a little bit
GENERAL FRANCISCO Sure
JUSTICE KAGAN So first I want to
ask whether that means -- you started off by
talking a lot about the process of this
proclamation But I -- I take it that that
argument would apply irrespective of what
process was used
In other words you would have made
the same Mandel argument to the first executive
order in this case or would you not
GENERAL FRANCISCO We would have made
a Mandel argument but it is far stronger given
that you have the process and substance upon
which this proclamation was based because
whatever you -shy
JUSTICE KAGAN Well I guess I wonder
why that is just because when I read Mandel
I dont see anything about process or you have
to meet a certain kind of bar
GENERAL FRANCISCO Uh-huh
JUSTICE KAGAN Mandel really is kind
of you state a reason and this Court stops
GENERAL FRANCISCO And I think that
that is right but I think that when you in
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addition to that have the extensive worldwide
process that we had that resulted in a
cabinet-level recommendation that applied a
neutral baseline to every country in the world
concluded that almost all the world including
almost all of the Muslim-majority world passed
that baseline but a tiny number of countries
didnt I think that whether you apply Mandel
or whether you apply McCreary that makes the
constitutional case in our favor overwhelmingly
strong Its a -shy
JUSTICE KAGAN So let me give you a
hypothetical and its just -- you know I
think that there are ways to distinguish Mandel
in this case but -- but -- but you know just
in terms of thinking about what Mandel really
forecloses here
GENERAL FRANCISCO And I -- because
Mandel there are only two cases in the area
and its -- its hard to understand the full
contours of it
JUSTICE KAGAN I agree So this is a
hypothetical that youve heard a variant of
before that the government has at any rate
but I want to just give you
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So lets say in some future time a -shy
a President gets elected who is a vehement
anti-Semite -shy
GENERAL FRANCISCO Uh-huh
JUSTICE KAGAN -- and says all kinds
of denigrating comments about 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 dot all the
is and they 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
GENERAL FRANCISCO Right
JUSTICE KAGAN Do you say Mandel puts
an end to judicial review of that set of facts
GENERAL FRANCISCO No Your Honor I
dont say Mandel puts an end to it but I do
say that in that context Mandel would be the
starting point of the analysis because it does
involve the exclusion of aliens which is where
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Mandel applies
If his cabinet -- and this is a very
tough hypothetical that weve 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 in his private heart of hearts
he also harbored animus
JUSTICE KAGAN Well the question is
GENERAL FRANCISCO I would also
suggest though -- if I could finish that Your
Honor -- that I think it would be very
difficult for that to even satisfy Mandel
rational basis scrutiny Id need to know what
the rational was Given that Israel happens to
be one of the countrys closest allies in the
war against terrorism its not clear to me
that you actually could satisfy -shy
JUSTICE KAGAN Well -shy
GENERAL FRANCISCO -- Mandels
rational basis standard on that unless it
truly were based -shy
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JUSTICE KAGAN Yes
GENERAL FRANCISCO -- on a
cabinet-level recommendation that was about
national security
JUSTICE KAGAN General Im -- lets
-- this is a out-of-the-box kind of President
in my hypothetical And -shy
(Laughter)
GENERAL FRANCISCO We -- we -- we
dont have those Your Honor
JUSTICE KAGAN And -- and you know
he thinks that there are good diplomatic
reasons and there might -- who knows what the
future holds that there might be good
diplomatic reasons to put pressure on Israel or
to say we want Israel to vote a certain way in
the UN and this is a way to better our
diplomatic hand and so this is what he does
And -- 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 think -shy
GENERAL FRANCISCO Right
JUSTICE KAGAN -- given this context
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in which this hypothetical President -shy
GENERAL FRANCISCO Sure
JUSTICE KAGAN -- is making virulent
anti-Semitic comments
GENERAL FRANCISCO Right And Your
Honor its a tough hypothetical but its why
I also think that this is a relatively easy
case because were 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 though we think that its
wrong that you applied some kind of domestic
establishment clause jurisprudence because
were 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 dont have the extreme
hypothetical that youre suggesting Your
Honor we do have a multi-agency worldwide
review and a cabinet-level recommendation that
applied a neutral baseline And this wasnt
done just by the cabinet secretaries but by the
agencies to every country in the world and
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concluded -shy
JUSTICE SOTOMAYOR Mr General you
just -shy
JUSTICE KENNEDY If -- if you have
that extreme hypothetical would that present a
free exercise or an Establishment Clause claim
or both
GENERAL FRANCISCO It could
definitely present a free exercise clause
challenge Your Honor just as you had a free
speech type claim in the Mandel case
And there would be people who could
bring that claim and who could potentially
succeed on that claim
JUSTICE KENNEDY And -- and the
people that could bring that claim I assume
were relatives of people that were excluded
father son
GENERAL FRANCISCO On free exercise
potentially I think all -shy
JUSTICE KENNEDY Yeah what about a
university
GENERAL FRANCISCO I think a
university could bring a free speech-type claim
under Mandel much -shy
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JUSTICE SOTOMAYOR Why not an
Establishment Clause claim
GENERAL FRANCISCO And -- and -shy
because Your Honor and the reason why I think
they havent pursued those types of claims is
because I dont think they would possibly
support the types of nationwide injunction that
theyre asking for
Your Honor the reason why I dont
think that they could bring an Establishment
Clause claim is because the proclamation
doesnt actually apply to the Respondents It
only applies to aliens abroad who have no
constitutional right to enter
JUSTICE SOTOMAYOR No but the claim
is that it -- that the proclamation is in place
because of a dislike of a particular religion
And I thought the Establishment Clause at its
heart is that we cannot be anything but neutral
with respect to religion or its practice
GENERAL FRANCISCO 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
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standing to challenge the land transfer from
the government to the Christian college on the
ground that it sent a pro-Christian or
anti-atheist message That -shy
JUSTICE SOTOMAYOR But these people
are saying that that negative religious
attitude is stopping them -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- 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
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR Which is one of
the purposes of the INS
GENERAL FRANCISCO And -- and thats
where they might have free exercise or free
speech claims along the type that Justice
Kennedy suggested -shy
JUSTICE SOTOMAYOR Well but I -shy
GENERAL FRANCISCO -- but which
couldnt support a nationwide injunction I
dont think that that gives them an
Establishment Clause claim when the
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proclamation doesnt actually apply to them
because -shy
JUSTICE SOTOMAYOR General today
can we go back to something thats 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 -- Im
summarizing in an incomplete way -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- 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 -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- not extreme
that he can hire or fire anyone he wants and
that he can put in place whatever policy he
wants
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR If we take Justice
Kagans hypothetical President -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- who basically
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says to his review committee I want to keep
out Jews -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- period find a
way Thats their charge
So in that situation why would the
actions of the committee whatever this is
Executive Committee not be subject to great
suspicion and to thorough review -- which
actually wasnt completely -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- done here -shy
given that they are responsible to the
executive -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- and theyve
been told what the outcome of their
deliberations must be
GENERAL FRANCISCO Sure And I have
two responses to that Your Honor
The first is that the Presidents
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
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cabinet member would refuse to comply or resign
in the face of a plainly unconstitutional
order 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 Mandel
standard
Here however you dont have anything
like that Rather you have the cabinet doing
its job through the agencies where they ask
the agencies to construct and apply 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 across the line
JUSTICE SOTOMAYOR General the
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problem is that I dont 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
the litigants or the courts exactly what was
done how what the evaluation and how -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- it was applied
to all those countries in the world
I understand some of the
confidentiality that might concern you but if
the backdrop is the way that Justice Kagan
described it -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- that -- that
heated -shy
GENERAL FRANCISCO Well I -- yeah -shy
JUSTICE SOTOMAYOR -- anti-Semitic
background dont you think that once you get
through the Mandel preliminary 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
GENERAL FRANCISCO Well Your Honor
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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
owes to another coequal branch of the
government there is a very strong presumption
that what is being set out there is the truth
JUSTICE KAGAN You -- you said
something earlier General I want to make sure
that I got it right You said if at the time
the President had said we dont want Muslims
coming into this country -shy
GENERAL FRANCISCO Uh-huh
JUSTICE KAGAN -- that that would
undermine the proclamation
GENERAL FRANCISCO Yes
JUSTICE KAGAN Did I get you right
GENERAL FRANCISCO Yes
JUSTICE KAGAN So I -- I think you
know honestly the difference here then seems
to be is everything that the President said
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effectively that
GENERAL FRANCISCO I think there are
two issues Your Honor 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 embodiment of the executive branch So
that those statements should be out of bounds
But for -shy
JUSTICE KENNEDY But suppose you have
a local mayor and as a candidate he makes
vituperative hate -- hateful statements hes
elected and on day two he takes acts that are
consistent with those hateful statements
Thats -- whatever he said in the campaign is
irrelevant
GENERAL FRANCISCO Your -- Your
Honor if he takes the same oath -shy
JUSTICE KENNEDY You would say
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whatever he said in the campaign is irrelevant
GENERAL FRANCISCO I would say two
things And that was the -- and the second
thing is the point I was about to turn to I
would say yes because we do think that oath
marks a fundamental transformation but I would
also say here it doesnt matter because here
the statements that they principally rely on
dont actually address the meaning of the
proclamation itself
This is not a so-called Muslim ban
If it were it would be the most ineffective
Muslim ban that one could possibly imagine
since not only does it exclude the vast
majority of the Muslim world it also omits
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 multi-agency worldwide review that
applied neutral criteria all across the world
and concluded under those neutral criteria
most of the world was fine but a small part of
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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
JUSTICE BREYER All right Can -shy
can I ask a more -- I did read I think almost
all the 80 briefs Now your time -- what do -shy
CHIEF JUSTICE ROBERTS Yeah dont
worry Please go ahead
JUSTICE BREYER All right All
right All right Almost 80 and I think I -shy
some were repetitive not too many And I
think I know the basic arguments but theres
one question Im left with and it starts with
an assumption which I think you share but I
want to be sure All right
I noticed that the Carter order and
the Reagan order both had case-by-case
exceptions
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER And I looked 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
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individual circumstances such as giving some
examples the following
And then they have to be no
terrorists Well thats the law anyway And
they -- they have to be in the interests of the
United States And there cant be undue
hardship which the only time the word
hardship appears in the immigration laws it
says extreme hardship
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER So undue must be
less than extreme
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER Okay So Im -- then
they have a list people with foreign contacts
previously established business reasons
theyve been here studying or other long-term
activity they want to visit or reside with a
close family member they have a disease or
something that they need -shy
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER -- treatment for
they -- previously been employed And there
are about five other things
GENERAL FRANCISCO Yeah
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JUSTICE BREYER All right Focus on
that class of individuals
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER Now in countries -shy
150 million people all together there must be
quite a few who have -- do fall within that
class So -shy
GENERAL FRANCISCO Well yes Your
Honor but theres only a small number of
people that seek to come into our country
JUSTICE BREYER Well thats what Im
asking about
GENERAL FRANCISCO Yeah
JUSTICE BREYER You see
GENERAL FRANCISCO Yeah
JUSTICE BREYER Thats now -- if you
-- you think -- now as far as were concerned
if they fall within that class there -shy
theres no reason given here why they should be
excluded other than the -- the normal
processes
GENERAL FRANCISCO Well a couple of
responses Your Honor
JUSTICE BREYER What
GENERAL FRANCISCO First in terms of
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the numbers -shy
JUSTICE BREYER Im not asking about
the numbers
GENERAL FRANCISCO Oh oh youre not
asking -shy
JUSTICE BREYER I want to ask about
GENERAL FRANCISCO So -- so in terms
of the reason -shy
JUSTICE BREYER Yeah
GENERAL FRANCISCO -- they should be
excluded one of the principal purposes of the
proclamation is to exert diplomatic pressure on
governments in order to get them to change and
provide us with the information -shy
JUSTICE BREYER So you think they
should be excluded
GENERAL FRANCISCO Not if they meet
the criteria for the -shy
JUSTICE BREYER Not if they meet the
criteria
GENERAL FRANCISCO -- for the waiver
JUSTICE BREYER Okay Okay So
theres -shy
GENERAL FRANCISCO Thats why we have
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-- thats why we have the waiver
JUSTICE BREYER Thats -- thats -shy
thats what I thought you would say
GENERAL FRANCISCO Yeah
JUSTICE BREYER Then I get -- can ask
my question Sorry
GENERAL FRANCISCO Yes
JUSTICE BREYER But I want to be sure
were the same wavelength
GENERAL FRANCISCO Yes
(Laughter)
JUSTICE BREYER Okay 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 theres the
business community complaining theres the
academic community there were 46 scholars at
Harvard there -- there are families in the
Lisa Blatt brief you know that -- that they
say we were trying to get medical treatment and
nobody told us about this and -- and theyve
only admitted two and theres supposed to be
guidance and -shy
GENERAL FRANCISCO Thats not true
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JUSTICE BREYER -- you havent put in
the guidance and -- and -- and the most there
are is 100 And so there is my question If
you have done the same thing that the Reagan
people did and the Carter people did then it
might be -- Im not expressing a definite
opinion -- but well youve got the same thing
here but if this is as one brief says just
window dressing and they never apply it -shy
GENERAL FRANCISCO Right
JUSTICE BREYER -- then you have
something new and different going well beyond
what President Reagan did
GENERAL FRANCISCO Sure
JUSTICE BREYER Okay So I want to
know how do I find out -- how do I find out
when there is not that information in the
brief do we have to -- can we have another
hearing Do we send it back Do we say look
the government of course thinks this isnt
window dressing -shy
GENERAL FRANCISCO Right
JUSTICE BREYER -- but the other side
says there are only two people no notice
nobody knows
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GENERAL FRANCISCO So Your Honor
two -shy
JUSTICE BREYER There are people in
Yemen there are people in Somalia -shy
GENERAL FRANCISCO Yeah
JUSTICE BREYER -- decent people
Business -- you see my point
GENERAL FRANCISCO Yes
JUSTICE BREYER Whats the answer
GENERAL FRANCISCO And two responses
JUSTICE BREYER Yes
GENERAL FRANCISCO Our reply brief
has our most -- most current number on waivers
and I believe the number at page 17 footnote
-- well its -- its over 400 I cant
remember the exact statement
JUSTICE BREYER All right Thats
400 out of 150 million
GENERAL FRANCISCO And then -shy
JUSTICE BREYER And -- and is it well
publicized in these countries that they know
all they have to do is go to the visa office
and say I understand the thing I want an
exception
GENERAL FRANCISCO No Your Honor
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and I have two -- two responses -shy
JUSTICE BREYER Yeah
GENERAL FRANCISCO -- to that One
is I dont know how well publicized it is but
I suspect that people understand how to get it
My second principal response is
though that frankly in terms of the
legality I think that the waiver is not
necessary although it is a very good thing
which is why -shy
JUSTICE BREYER Not necessary There
-- there you have President Reagan -shy
GENERAL FRANCISCO -- which is why
most -- which is why most governments dont -shy
which is why its -- its a good thing which
is why most of these proclamations often have
them But theres nothing in -shy
JUSTICE BREYER Okay So you want me
to consider -shy
GENERAL FRANCISCO -- the law that
actually requires it
JUSTICE BREYER Thats what you want
You want me to consider the lawfulness of this
order on the assumption that there is no
waiver
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GENERAL FRANCISCO I dont -shy
JUSTICE BREYER Which is not what -shy
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 here thats the -shy
thats the -shy
GENERAL FRANCISCO Right The answer
to my -- your question Your Honor is no I
dont want you to consider the proclamation on
the -- on the hypothetical situation that it is
what it isnt but I do think that the
proclamation as written and as applied falls
well within the Presidents authority under
1182(f)
Thank you Mr Chief Justice
CHIEF JUSTICE ROBERTS Thank you
General We will afford you rebuttal time
GENERAL FRANCISCO Thank you
CHIEF JUSTICE ROBERTS Mr Katyal
ORAL ARGUMENT OF NEAL K KATYAL
ON BEHALF OF THE RESPONDENTS
MR KATYAL Thank you Mr Chief
Justice and may it please the Court
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The executive order is unlawful for
three reasons It conflicts with Congresss
policy choices It defies the bar on
nationality discrimination something you never
heard my friend talk about And it violates
the First Amendment
Congress has already specified a
three-part solution to the very same problem
the order addresses Aliens seeking entry from
countries that dont cooperate with the United
States in vetting including state sponsors of
terrorism and countries that provide inaccurate
information
First aliens have to go through the
individualized 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 the order uses Congress rejected a
ban Instead it used carrots When countries
cooperated theyd get extra credit a track -shy
faster track for admission Legislation to use
big sticks like nationality bans failed
And third Congress was aware
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circumstances could change on the ground so it
required reporting to them so it could change
the law
CHIEF JUSTICE ROBERTS Well lets
take big sticks fail Lets suppose that the
intelligence agencies go to the President and
say we have 100 percent solid information
that on a particular day 20 nationals from
Syria are going to enter the United States with
chemical and biological weapons They could
kill tens of thousands of Americans
In that situation could the President
ban the entry of Syrian nationals on that one
day
MR KATYAL He could for two reasons
Theres two different arguments Theres the
nationality discrimination ban 1152 and then
theres you know whether or not this comports
with Congresss policy judgments
And with respect to both I think it
would It wouldnt be nationality
discrimination for the reasons Judge Sentelle
said in LAVAS when you have an emergency
fast-moving situation like the Syria example
youre saying
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CHIEF JUSTICE ROBERTS Well just to
stop interrupt you there I mean what if
its a week What if its a week a month from
now Thats what the intelligence information
is
In other words Im trying to -shy
MR KATYAL Right
CHIEF JUSTICE ROBERTS -- respond to
your point that it has to be an immediate
decision
MR KATYAL Yeah So I think you
know this Courts dealt with that in
Youngstown and Hamdan and said look you know
the Presidents going to get a pass absolutely
on you know what he says the emergency is
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 460 days on -- later
Mr Chief Justice Hes never even introduced
legislation about this So were so far from
that hypothetical well concede the
hypothetical
CHIEF JUSTICE ROBERTS Well imagine
-- imagine if you can that Congress is unable
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to act when the President asked for
legislation
(Laughter)
MR KATYAL Right
CHIEF JUSTICE ROBERTS And someone
introduces a bill saying lets authorize -shy
first of all the President may have qualms
about sharing that absolute intelligence
broadly but lets say theres a bill
introduced to say lets authorize the President
and theres a bill introduced to say lets
block the President and neither bill moves
MR KATYAL 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 -- theres only one
problem hes identifying which is countries
not cooperating
Hes not talking about people coming
in or something like that like your
hypothetical And with respect to that
Congress has said heres how we deal with it
We deal with it with the individualized vetting
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system which pushes all the burdens on a
person coming in Thats 1361
Youve got to show biometric ID under
the statute Youve got to have an in-person
interview if theres any risk that the person
is from a country thats a state sponsor of
terrorism like your hypothetical or anything
else
So Congress has really said in a
robust way heres how we would deal with it
And to the extent countries arent cooperating
we offer carrots
Congress rejected exactly what theyre
trying to propose here which is a flat
nationality ban And thats where I think the
force of our argument lies with respect to the
first point which is this is countermanding
Congresss policy judgments
My friend on the other side actually
in his brief -shy
JUSTICE ALITO Well Congress did -shy
Congress did act It enacted 1182(f)
MR KATYAL Correct
JUSTICE ALITO Why doesnt this fall
squarely within the language of 1182(f)
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MR KATYAL For -- for -- we have
both textual reasons that its not a class for
reasons Justice Breyer was talking about Its
not perpetuated -- its perpetual like Justice
Ginsburg was talking about But we think
theres a much bigger point Justice Alito
which is -shy
JUSTICE ALITO Well maybe you could
talk about the text Its not a class
Doesnt 11 -- doesnt 1182(f) say whenever the
President finds that the entry of any aliens -shy
MR KATYAL Correct
JUSTICE ALITO -- or any class of
aliens So put class aside although I dont
really see why people who are nationals of a
particular country dont constitute a class
What about any aliens
MR KATYAL Right So we think it is
any you know -- because the power in 1182 is
so broad and sweeping and does allow the
President to supplement what Congress has done
we think that you have to -- you have to be
careful and read limit -- you have to read it
just the way you read every other statute to
say how do we harmonize that broad text of
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1182(f) with the rest of the INA
And our point in our briefs which I
dont 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 you know and end so-called chain
migration or anything like that He could do
-- countermand any of the provisions of the INA
and turn it into a line item veto
So for that reason we think there
has to be some limit Thats something this
Courts dealt with in you know the tobacco
case or -shy
JUSTICE ALITO Well does this
proclamation do anything like that Does this
proclamation purport to establish a new
permanent immigration policy for the United
States
MR KATYAL Absolutely Your Honor
This is a perpetual policy that bans It does
exactly what Congress in 1965 said you cant
do And it countermands Congresss
fine-grained reticulated judgment from 2001
2015 and several other times which is to say
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instead of these flat bans were going to have
-- were going to balance foreign policy
considerations economic considerations like
the US companies brief humanitarian image
of the United States views all of that
together and said we wont do the flat ban
Instead were going to have a much
more fine-grained approach with individualized
vetting and carrots for the countries that
dont disagree -- that dont cooperate
JUSTICE ALITO What is your basis for
saying that it is perpetual
MR KATYAL Well theres nothing in
the order that ends it And you heard my
friend say oh that would doom all executive
orders But thats not true Half of these -shy
JUSTICE KENNEDY I thought it had to
be reexamined every 180 days
MR KATYAL No thats not what it
says It says theres a report that has to
come in at 180 days and nothing happens at the
end of the report
JUSTICE KENNEDY Well that -- that
indicates there will be a reassessment
MR KATYAL Well in -shy
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JUSTICE KENNEDY And then the -- and
-- and the President has continuing discretion
MR KATYAL Justice Kennedy this
argument wouldnt be there if there was
anything about reassessment the way there are
in about half the orders including the Cuba
order which says it sunsets once the crisis
ends Theres nothing like that in this
And its just like a reporting
requirement to Congress in which Congress isnt
necessarily required to do anything Congress
has statutes like that all the time
This is that And thats why this is
unlike any other executive order If you go
back and look at all 43 executive orders that
Presidents have issued none of them have even
arguably countermanded Congresss judgment in
the area Theyve all been consistent
Theyve all been supplements
JUSTICE KENNEDY Well the statute
says first that -- that -- that 1182 for such
period as he deems necessary and he can have
continuing supervision over whether its still
necessary
MR KATYAL Again we wouldnt have a
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problem with that if it was tailored to a
crisis it says it sunsets and then you know
could be re-upped or something like that
Thats not what this says This is about a
perpetual problem
JUSTICE KENNEDY So you want the
President to say Im convinced that in six
months were going to have a safe world
MR KATYAL Well -- well -- well no
Justice Kennedy thats not our argument Our
argument is here the President is identifying
something that is a perennial problem Our
brief says it goes back 100 years you know
when the Soviet Union was around we dont 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
CHIEF JUSTICE ROBERTS What if the
military advisors tell the President that in
their judgment the President ought to order a
strike an air strike against Syria and the
President says well -- does that mean he cant
because you would regard that as discrimination
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against a majority Muslim country
MR KATYAL Absolutely not Theres
nothing to do with the text of the statute
The 1152 statutes about discrimination and the
issuance of visas And thats all that -shy
CHIEF JUSTICE ROBERTS So under
1182(f) you would say that theres no problem
under that provision
MR KATYAL Well under 1182 as I
understand it was a strike And so I dont
think theres any immigration issue in your
hypothetical I might be misunderstanding it
Mr Chief Justice
CHIEF JUSTICE ROBERTS Well any type
of targeted action that would have a impact on
the Muslim population
MR KATYAL Absolutely We think the
President has wide authorities to do things
that have impacts on the Muslim population
Take the laptop ban that was introduced -shy
CHIEF JUSTICE ROBERTS Why under your
theory wouldnt that constitute or the argument
would be that thats discrimination under your
Establishment Clause argument -shy
MR KATYAL Oh
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CHIEF JUSTICE ROBERTS -- that thats
discrimination on the basis of faith because he
has said in the past if you accept the -shy
MR KATYAL Yeah
CHIEF JUSTICE ROBERTS -- accept the
arguments that he -- he is anti-Muslim
MR KATYAL Not at all Your Honor
and no President has run afoul of this you
know and thats because here the President
and his advisors have directly tied this policy
to those statements And the red brief at page
70 I think is the greatest illustration of
that
Thats 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 INA is
that the President can take a wrecking ball to
the statute and countermand Congresss
fine-grained judgments that -shy
CHIEF JUSTICE ROBERTS He can never
-shy
JUSTICE KAGAN Well you might think
-shy
JUSTICE GORSUCH Mr Katyal -- Mr
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Katyal if I might on -- on the statutory
question before we leave it Weve been
proceeding so far on the assumption that we can
reach the merits but the government makes the
argument for example that aliens who are
removed from this country have to bring their
claims personally and third parties cant
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
who are not present in this country Whats
the answer to that
MR KATYAL Well several This is
not a third-party case These are United
States citizens bringing this challenge in a
state -shy
JUSTICE GORSUCH Oh behalf of -shy
MR KATYAL -- of the United States
JUSTICE GORSUCH -- aliens not
present in the country
MR KATYAL Well but they are
directly -- they are directly harmed
themselves Let me just give you one example
Not just the State of Hawaii whose university
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is directly impacted but lets just take for
example the Alomari -- Mr Alomari the
10-year-old in the PARS Equality brief Justice
Breyer that you were referring to This is a
10-year-old daughter in Yemen who is -- whos
trying to come here because she has cerebral
palsy
JUSTICE GORSUCH I understand that
but those arguments dont work with respect to
aliens present in the country So why do they
work for aliens who are not present in the
country
MR KATYAL Because I -shy
JUSTICE GORSUCH Those very same
arguments would not succeed
MR KATYAL Well -shy
JUSTICE GORSUCH I think youd
concede that they wouldnt succeed for aliens
present -shy
MR KATYAL Right And they dont
succeed because there you have a better
plaintiff might not be willing to bring them in
the United States and thats why the court
you know says no third party But here
these folks are directly impacted
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And the most important thing to say is
Sale answers this You heard my friend concede
Sale was jurisdictional the issues in Sale
Thats how they briefed it up Thats how he
just described it This Court had exactly that
situation United States plaintiffs and it
reached the merits
Our statutory point to you is that if
you accept this order youre giving the
President a power no President in 100 years has
exercised an executive proclamation that
countermands Congresss policy judgments He
has zero examples to say that when Congress has
stepped into the space and solved the exact
problem that the President can then come in
and say No I want a different solution
If you do that youd -- its not just
family preferences that youre allowing him to
get rid of youd get rid of all sorts of even
small things in the Code or big things like
theres a preference for specialty occupations
like software engineers in the INA The
President could say The economics are such
Im going to ban software engineers from going
to California or something like that under that
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sweeping 1182 power
JUSTICE KAGAN I -- I guess the
question though Mr Katyal is maybe youre
entirely right that 1182(f) needs to have some
limits to prevent the President from doing
something thats completely contrary to another
section of the statute
But youre suggesting well the
President cant do anything thats not
contemplated by the rest of the statute
MR KATYAL That is not our argument
JUSTICE KAGAN Okay 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 -shy
MR KATYAL Right
JUSTICE KAGAN -- between what the
President is doing and another statutory
provision
MR KATYAL So our view is that the
President can supplement he just cant
supplant In this Courts decisions in the
Brown amp Williamson case and the UARG greenhouse
gas and Concepcion and Abilene Cotton the
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Savings Clause cases all say there are three
things you look at And its not a flat bar
It cant be like a direct contravention Even
they say its not a direct contravention in
their reply brief at page 19
So the three things are first can
these two solutions coexist or not Second
has Congress prescribed a reticulated
comprehensive scheme And third you know is
there any other indication that Congress
considered 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 -shy
Congress has a comprehensive reticulated scheme
that deals with the exact single problem that
hes identified which is countries not
cooperating It cant coexist with the
solution of a flat ban It makes no sense for
example to have the in-person visa requirement
-- visa interview which is in 12 -shy
1202(h)(2) which is for -- for people who come
from state sponsors of terrorism or who have a
group with a likelihood of providing
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inaccurate information Congress said there
has to be an in-person interview for that
It doesnt make sense to say well
youre going to have a flat ban It doesnt
make sense to have a Visa Waiver Program which
is all about countries that provide zero
information to the United States -- state
sponsors of terrorism and the like -- and say
were going to give you a carrot and then say
oh no forget about the Visa Waiver Program
JUSTICE ALITO Can -- can you imagine
any situation in which the threat of the
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
MR KATYAL Yes
JUSTICE ALITO You cannot imagine any
such situation
MR KATYAL Yes I can And the
President would have a robust authority to deal
with that That is not our argument So -shy
JUSTICE KENNEDY And your argument is
that courts have the -- the duty to review
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whether or not there is such a national
exigency thats for the courts to do not the
President
MR KATYAL No I think you have
wide deference Justice Kennedy Its exactly
what you said when you joined Justice Breyers
opinion in Hamdan which is as long as -- you
know Presidents have wide berth in this area
but if -- you know certainly if theres any
sort of emergency that precludes it
But when you have a statute that
considers the very same problem and theres
nothing new that theyve identified in this
worldwide review process that Congress didnt
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 the -shy
CHIEF JUSTICE ROBERTS But thats in
the abstract I mean they may have more -shy
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
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And it seems to me a difficult
argument to say that Congress was prescient
enough to address any particular factual
situation that might arise
MR KATYAL Well that again -shy
thats again Mr Chief Justice not our
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 But here -shy
CHIEF JUSTICE ROBERTS What about -shy
what about a change of administration in a
particular country -shy
MR KATYAL Yes
CHIEF JUSTICE ROBERTS -- in which
perhaps the vetting procedures are not going to
be taken seriously
MR KATYAL Right
CHIEF JUSTICE ROBERTS That Congress
could not have anticipated
MR KATYAL Well but again
Congress anticipated a country that is a state
sponsor of terrorism and even for -- with
respect to that providing no information and
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indeed fomenting against the United States
Congress said oh were not going to have a
nationality ban You know they flatly banned
that and said were going to have
individualized vetting and this Visa Waiver
Program carrot to try and deal with that you
know dangerous regime
Now again I can imagine an emergency
situation in which the President would have
even greater authority for that But here we
are 460 days later and I would caution the
Court not to make a decision about the
emergency youre concerned about That can be
bracketed as it was in Youngstown as it was in
Hamdan This is so far from that
The text of 1152 is flatly violated
here It says there shall be no discrimination
on the basis of nationality with the issuance
of visas
That is 39 percent of all the visas
this executive order covers Its not a small
part Its 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
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become part of our long-term polity This
executive order flatly contradicts that
Now if you accept his
interpretation -- he says well you know
were discriminating at the entry side not at
the visa side If you do that you are giving
the President the power to undo -- and hes
actually just done it -- hes undone the ban on
nationality-based discrimination Hes imposed
country quotas of zero for these countries at
the border
CHIEF JUSTICE ROBERTS If your -shy
your argument based on discrimination based on
the campaign statements is there a statute of
-- no the one that you do make based on the
campaign statements is there a statute of
limitations on that or is that a ban from
presidential findings for the rest of the
administration
MR KATYAL So Mr Chief Justice I
first want to be very clear about this Our
point about 1152 and the discrimination has
nothing to do with any campaign statements or
anything else
Its purely the text of the
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proclamation which is nationality-based
discrimination through and through Judge
Sentelle said you couldnt imagine a clearer
text than this And this is -- it violates it
Now -shy
CHIEF JUSTICE ROBERTS My question
was on the -shy
MR KATYAL -- youre asking about
the First Amendment
CHIEF JUSTICE ROBERTS Yes
MR KATYAL I just want to make
absolutely clear that were -- thats not -shy
you know you dont need to do any of that for
purposes of 1152 And that would knock out
39 percent of the most important part of the
executive order
CHIEF JUSTICE ROBERTS My question
of course -shy
MR KATYAL Yes Now Im getting -shy
CHIEF JUSTICE ROBERTS -- was not on
1152
MR KATYAL Yes Im getting there
Okay
With respect to that we dont think
-- we think that the test as this Court has
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said a reasonable objective observer viewing
all the statements and we think absolutely
my friend is right you shouldnt look to
campaign statements in general or stuff like
that 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 70
of our red brief you have a very good example
of this
After the executive order this latest
executive order was promulgated the President
tweeted these three virulent anti-Muslim
videos And then the press spokesman was
asked What does this mean What is this
about And the answer was The President has
spoken about exactly this in the proclamation
CHIEF JUSTICE ROBERTS My question
was whether or not the inhibition on the
ability to -- to enter one of the proclamations
applies forever
MR KATYAL Right No I think the
President could have disclaimed -- you know
easily moved away from all of these statements
you know but instead they embraced them
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Thats the difference
And so absolutely the President
would have wide berth to say thats a -shy
CHIEF JUSTICE ROBERTS So if
tomorrow he issues a proclamation saying hes
disavowing all those statements then the next
day he can reenter this proclamation
MR KATYAL Thats exactly what this
Court said in McCreary This Court in McCreary
said you know the same policy can be
constitutional if said -- if promulgated by one
entity and not by another depending on the
circumstances around it
CHIEF JUSTICE ROBERTS Is your answer
to my question yes
MR KATYAL Yes The answer is -shy
CHIEF JUSTICE ROBERTS Tomorrow he
issues a proclamation disavowing those
statements -shy
MR KATYAL Absolutely And thats a
CHIEF JUSTICE ROBERTS -- then the
next day he could reenter this and your
discrimination argument would not be
applicable
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MR KATYAL And -- and -- and Mr
Chief Justice thats exactly what I told the
Ninth Circuit in May The President didnt do
that Thats whats -- thats -- you know
thats what a reasonable objective observer -shy
JUSTICE SOTOMAYOR So if another -shy
JUSTICE ALITO Mr Katyal would any
reasonable observer reading this proclamation
with -- without taking into account statements
think that this was a Muslim ban
I mean there are -- I think there are
50 predominantly Muslim countries in the world
Five -- five countries -- five predominantly
Muslim countries are on this list
The population of the -- of the
predominantly Muslim countries on this list
make up about 8 percent of the worlds Muslim
population
MR KATYAL Absolutely
JUSTICE ALITO If you looked at the
10 countries with the most Muslims exactly
one -shy
MR KATYAL Right
JUSTICE ALITO -- Iran would be on
that list of the top 10
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MR KATYAL Right
JUSTICE ALITO So would a reasonable
observer think this was a Muslim ban
MR KATYAL If it were -- if it were
just the text of the order alone it might
raise eyebrows for fit and other reasons that
the briefs go into but we wouldnt be here
We absolutely agree that just -- its the same
test as in Lukumi and other cases You have to
look to all the circumstances around it that
are said the publicly available ones
You know and Justice Alito the fact
that the order only come -- encompasses some
Muslim countries I dont think means its not
religious discrimination For example if Im
an employer and I have 10 African-Americans
working for me and I only fire two of them I
dont think -- you know and say well Ive
left the other eight in I dont think anyone
can say thats not discrimination
JUSTICE ALITO No I -- I understand
that And it is one of our fundamental values
that there is religious freedom here for
everybody in that number -- adherence to every
religion are entitled to equal treatment
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My only point is that if you look at
what was done it does not look at all like a
Muslim ban There are other justifications
that jump out as to why these particular
countries were put on -- on the list
So you -- it seems to me the list
creates a strong inference that this was not
done for that invidious purpose
MR KATYAL Justice Alito I think if
it were just the list I think wed be right -shy
youd be right although Id point out that
you yourself in the Stormans case said that
its a religious -- it raises an inference of
religious gerrymander of the burden imposed
falls almost exclusively on those with
religious objections
This is a ban that really does fall
almost exclusively on Muslims between
902 percent and 998 percent Muslims And so
it does look very much like what you said in
Stormans But even then we wouldnt be here
if it werent for all of the different
statements
And the best evidence of this about
what a reasonable objective observer would
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think is to look at the wide variety of amicus
briefs in this case from every corner of
society representing millions and millions of
people from the US Conference of Catholic
Bishops which calls it blatant religious
discrimination
JUSTICE GORSUCH Mr Katyal on that
its been a long time since this Court has used
the Lemon test reasonable observer even to
strike down a domestic statute let alone
something with purely international
application What -- what do we do about that
MR KATYAL Yeah 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 and our protest of
King George which is all about using the
immigration power to exclude people of a
different faith And thats what our
Constitution is about So thats the first
thing
And the second is we dont think you
have to get into Lemon and all these other
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tests that you all have struggled with I
think this Court in Lukumi was very clear in
saying that when youre talking about
denigration of religion all the tests point in
the same direction
JUSTICE SOTOMAYOR Mr Katyal you
said something earlier you said you wouldnt
be here if all of those statements the
background statements were not made Do you
mean that on all of your bases You wouldnt
be here on the Establishment Clause claim
MR KATYAL Only on the Establishment
Clause claim not on anything else And our
point is you know he talks about for
example this worldwide vetting process
Remember his own argument on 1182 is
the statute puts the President -shy
JUSTICE SOTOMAYOR So lets -- lets
go back to not being here without the
statements Clearly the statements even
conceded by your adversary do give you a basis
to look behind all right the reason
So if were looking behind it how do
you deal with the Generals suggestion that
there was a cleansing that occurred because of
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all of the agencies and departments who
participated in this process
MR KATYAL Yeah So theres three
things Number one is that his -- his own
argument is that 1182 puts the President in the
drivers seat so the cabinets not important
Its the Presidents proclamation
Second the order itself says in its
first lines it harkens back to Executive
Orders 1 and 2 and it says its an outgrowth
of that So it was infected by the same thing
that was struck down on Establishment 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 ban
a non-politically-correct ban and the like
So given all of those things but in
particular given the fact that 1182 itself
forces the President to make the proclamation
its the Presidents proclamation so I dont
think you even have to get into this whole
unitary executive thing but I do agree with
you Justice Sotomayor that thats another
problem which is theyre coming before the
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Court and saying Nope its the President
whos in charge And now theyre saying here
Oh no no no its these other people
This is the Presidents proclamation
through and through No President has ever
said anything -- anything like this And
thats what makes this different
And the President -shy
JUSTICE KAGAN And -- and yet Mr
Katyal 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 evaluating the adequacy of those
national security interests which for the most
part weve said courts are not equipped to do
MR KATYAL Right Were not asking
you to second-guess a national security
judgment at all with the purpose of the
Establishment Clause
Were saying you just have to look to
what a reasonable objective observer would do
Thats the ordinary test that youve used in
cases like Lukumi Is there an official
purpose to disparage a religion Here there
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very much is Thats you know everything
that the President has said and that the order
itself embodies Thats our fundamental
problem
JUSTICE BREYER What do you think -shy
its a -- its a -- its still something Im -shy
Im thinking about perhaps to the side but
the statute you point to one of the ones that
is stronger for you There are obviously
objections to what youre saying in quite a few
briefs all right but the one that you talked
about it does say you have to have an
interview with a consular official if the
person is from a country officially designated
by the Secretary as a state sponsor of
terrorism It does say that
So theyll say but we do have that in
respect to everyone under the exception So
there isnt much problem Weve gone beyond
that in respect to other people All right
Take their argument for a moment
Because my question is which I
couldnt find in the briefs is is it true -shy
Im just taking what they say -- that really
that isnt so they dont publicize it they
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havent put forth a guidance people dont know
they can come in and qualify for this
And if it turns out that that is
something that is important to the lawfulness
of the order because there are many many
categories there -shy
MR KATYAL Right
JUSTICE BREYER -- what do we do
MR KATYAL So two things Number
one this waiver process has excluded -- and
you have this in the PARS Equality brief at
page 14 A 10-year-old with cerebral palsy who
wants to come to the United States to save her
life and she cant move or talk The
10-year-old was denied a waiver Justice
Breyer
He says theres 430 people who have
gotten waivers Theyve never told you the
denominator and theres no publication of this
process and how -- how often it is And the
data that we do have suggests as a matter of
percentages its very weak
Just to give you some evidence of
that just the State of Hawaii has gotten about
1000 letters from people most of which say
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were not even getting waivers on the like
JUSTICE GORSUCH That -shy
MR KATYAL Weve heard very few
instances -shy
JUSTICE GORSUCH -- raises a question
of remedy for me
MR KATYAL Yes
JUSTICE GORSUCH We have this
troubling rise of this nationwide injunction
cosmic injunction -shy
MR KATYAL Yeah yeah
JUSTICE GORSUCH -- not limited to
relief for the parties at issue or even a class
action
MR KATYAL Right
JUSTICE GORSUCH And near as I can
tell thats -- thats a really new development
where a district court asserts the right to
strike down a -- a federal statute with regard
to anybody anywhere in the world
MR KATYAL Yeah
JUSTICE GORSUCH What -- what do we
do about that
MR KATYAL Obviously the injunction
here has been trimmed by this Court itself and
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others And I do think -- I -- I share your
impulse Justice Gorsuch Thats something
that I think lower courts are debating right
now in a number of different contexts like the
contraception case and the like
I think this case is the poorest
example to get into it because of United States
versus Texass point which is this is an
immigration case and Article I Section 8 puts
Congress in the drivers 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 doesnt make a
tremendous amount of sense It would almost be
an advisory opinion
Our fundamental point to you though
is that Congress is in the drivers seat when
it comes to immigration and that this
executive order transgresses the limits that
every President has done with this proclamation
power since 1918 And to accept it here is to
accept that the President can take an iron
wrecking ball to the statute and pick and
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choose things that he doesnt want for purposes
of our immigration code That cant be the law
of the United States
CHIEF JUSTICE ROBERTS Take five
extra minutes Okay
MR KATYAL Okay
(Laughter)
CHIEF JUSTICE ROBERTS You dont have
to
(Laughter)
MR KATYAL Well if there are -- if
there are any other questions Im happy to
take anything Okay Thank you
CHIEF JUSTICE ROBERTS Thank you
counsel
Five minutes for rebuttal General
REBUTTAL ARGUMENT OF GENERAL NOEL J FRANCISCO
ON BEHALF OF THE PETITIONERS
GENERAL FRANCISCO Mr Chief -- Mr
Chief Justice and may it please the Court
I -- I really do have just a few quick
points unless Your Honors have additional
questions
Justice Breyer I did want to respond
in more detail to your question about how the
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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
the waiver -- the visa officer first determines
whether the person is otherwise admissible
under other provisions of the INA
If theyre inadmissible you never
even get to the proclamation Then for those
people who are not inadmissible under other
parts of the INA like 1182(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 youre not subject to an exception
then the consular officer him or herself
turns to the waiver provision and applies the
criteria of the waiver provision
JUSTICE GINSBURG How do you deal
with the -shy
GENERAL FRANCISCO So it does get
applied in every single case
JUSTICE GINSBURG How -- how do you
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deal with the example that was brought up of
the child with cerebral palsy
GENERAL FRANCISCO Your Honor the
waiver is built to address those issues I am
not familiar enough with the details of that
case to tell you what happened in that
particular case But thats what the waiver
provision -shy
JUSTICE BREYER But thats -- thats
you see -shy
GENERAL FRANCISCO -- is intended to
address
JUSTICE BREYER Youve read the
briefs as have I All right Now there are
some that lists about 10 or 15 instances like
the cerebral palsy One has Parkinsons Then
theres another brief that lists all the people
who are professors scholars at universities
and there are a lot And -- and then there are
people they list the students from these
countries a lot
GENERAL FRANCISCO Yeah
JUSTICE BREYER And then the business
community lists a -- a whole bunch and says my
goodness they have been unable to get -- we
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dont know whats going on
And then they say Well whats going
on is nothing is going on
GENERAL FRANCISCO Well Your Honor
-shy
JUSTICE BREYER Now I dont -- Im
not taking sides on that Im just saying I
dont know
GENERAL FRANCISCO Right And the
principal purpose of the proclamation is of
course to 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 Im 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
admissible
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 dont and doesnt tell us we
cannot intelligently make the admissibility
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determination
Third Id like to address the
1152(a)(1)(A) point about nationality-based
discrimination
JUSTICE SOTOMAYOR General could you
stop just one second
GENERAL FRANCISCO Yes Your Honor
of course
JUSTICE SOTOMAYOR I for one am like
Justice Breyer concerned about is this window
dressing or not Whats in place to ensure
its not What are you personally doing to
represent to us that it is in fact a real
waiver process -shy
GENERAL FRANCISCO Your Honor State
Department consular officers automatically
apply the waiver process in the course of every
visa application And they are doing that
which is why there have been -- and I looked at
our brief -- 430 waivers that have been issued
since -shy
JUSTICE SOTOMAYOR Have you bothered
-shy
GENERAL FRANCISCO -- the
proclamation was issued
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JUSTICE SOTOMAYOR -- to look to see
if there are reasons for all of those peoples
exclusions
GENERAL FRANCISCO Your Honor I
cannot claim that I have looked into every
individual case
JUSTICE KENNEDY Could you make your
1152 point
GENERAL FRANCISCO Yes Your Honor
1152(a)(1)(A) addresses one thing the issuance
of immigrant visas It doesnt address the
broader question over whether somebodys
allowed to enter in the first place
Thats governed by 1182 including
1182(f) So essentially 1182 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 1152(a)(1)(A) is
one of the rules that governs how we distribute
visas amongst that group thats eligible to
come in
And its not just nationality-based
distinctions that it applies to It also
applies to things like place of residence So
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once you have that universe of eligible people
1152(a)(1)(A) governs how you distribute them
But lets 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 non-immigrant visas to people who
arent allowed to enter but we wouldnt have
to allow anyone to enter and we wouldnt have
to issue any non-immigrant visas
So the bottom line is I think theyre
simply wrong on that case -- on that issue
My final point has to do with my -- my
brothers 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 25 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
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says its about Foreign policy and national
security And we would ask that you reverse
the court below
CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1109 am the case
was submitted)
Heritage Reporting Corporation
83Official
1 998 [1] 6619 39914 44111417 51581120 arise [2] 5725 584
1 [1] 6910 A 52101118
ALITO [16] 432124 446813 45
around [3] 4814 6313 6510
Article [2] 136 749 1000 [1] 7225 am [3] 116 32 826 15 4611 561119 6472024 65 aside [1] 4414 10 [4] 642125 6516 7715 Abilene [1] 5425 21221 669 asks [3] 169 519 7614 10-year-old [4] 5235 721215 ability [1] 6220 allies [2] 73 1719 assert [2] 5111 7811 1002 [2] 116 32 able [2] 2210 5111 allow [3] 413 4420 8110 asserts [1] 7318 100 [4] 353 407 4813 5310 above-entitled [1] 114 allowed [3] 178 8013 819 associate [1] 2211 11 [1] 4410 abroad [1] 2113 allowing [1] 5318 associated [1] 812 1109 [1] 826 absolute [1] 428 almost [8] 116 1556 30712 66 assume [4] 19811 2016 813 1152 [7] 4017 494 5916 6022 61 absolutely [12] 4114 4213 4520 1518 7416 assumption [3] 3016 3724 513 1421 808 49217 5810 6112 622 63220 Alomari [2] 5222 attitude [1] 227
1152(a)(1)(A [4] 793 801019 81 6419 658 alone [2] 655 6710 Attorney [1] 523 2 abstract [1] 5720 already [3] 61024 397 authorities [1] 4918
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1182(a [1] 7612 603 742324 American [1] 1111 authorize [2] 42610 1182(f [18] 4591318 54 616 7 acceptability [1] 108 Americans [2] 4011 8121 automatically [2] 764 7916 1120 1025 1314 3816 432225 account [2] 105 649 amicus [1] 671 available [1] 6511 4410 451 497 544 8015 accurate [1] 1218 amongst [1] 8021 aware [2] 391725
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1361 [1] 432
act [4] 128 177 421 4322
acting [1] 313 analysis [3] 914 1624 7013
animus [1] 1710 B
14 [1] 7212 action [4] 2511 385 4915 7314 another [10] 519 1220 279 35 back [6] 234 3519 4715 4813
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2 [1] 6910
20 [1] 408
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2015 [1] 4525
2018 [1] 112
25 [2] 112 8118
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address [10] 71 12618 133 299
583 77412 792 8011
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60131315
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38 [1] 27 admissibility [3] 78 820 7825 23 269 2923 3814 76324 bases [1] 6810
39 [2] 5920 6115 admissible [4] 424 816 767 78 applies [9] 322 171 2113 6221 basic [4] 615 725 127 3014
4 19
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43 [1] 4715 adopt [1] 314 approach [1] 468 became [1] 3917
430 [2] 7217 7920 adopts [1] 318 appropriate [1] 3025 become [1] 601
46 [1] 3418 adversary [1] 6821 April [1] 112 becomes [1] 5925
460 [2] 4119 5911 advice [2] 179 289 arbiter [1] 2622 began [1] 6915
5 50 [1] 6412
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area [5] 419 1016 1519 4718 57
8
arent [2] 4311 819
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23 5118 7518
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7 afford [1] 3819 arguably [1] 4717 believe [1] 3614
70 [2] 5012 628 afoul [1] 508 argued [1] 236 below [6] 323 9212424 262 82
75 [1] 210 African-Americans [1] 6516 argument [37] 115 2258 348 3
8 agencies [5] 1925 251516 406
691 121241422 1327 1471013
19912 3822 4316 474 4810
benefit [1] 73
berth [2] 578 633
8 [2] 6417 749 agree [3] 1522 658 6923 11 492224 515 5411 562324 best [1] 6624
80 [2] 30812 ahead [1] 3010 5827 6013 6324 6816 695 71 better [3] 1022 1817 5221
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AL [2] 147 21 7517
arguments [5] 3014 4016 506
between [2] 5418 6618
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Heritage Reporting Corporation Sheet 1 1 - big
84Official
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2
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BREYER [49] 1315 3061122 31
111422 321411141624 332
610162023 3425812 35111
1523 36369111720 37211
1822 382 443 524 715 72816
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Breyers [1] 576
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20 464 4813 5011 523 555 62
9 7211 7717 7920
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7 672 711123 7714
bring [7] 20131624 2110 2212
516 5222
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Brown [1] 5424
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23
C cabinet [9] 169 1724 1924 24
2225 25114 2810
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California [1] 5325
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60141623 624
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805
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Carter [6] 93 1013 113 3018 35
5 384
Carters [4] 1113161822
Case [25] 34 109 1222 1317 14
11 151015 198 2011 236 45
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cases [5] 1519 551 659 6913
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16
change [5] 92 3314 4012 5813
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21 131 309 3817182124 404
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13 6510
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1113 6912 7020
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Clearly [1] 6820
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526 5315 5523 5925 6513 72
213 801622
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Concepcion [1] 5425
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Conference [1] 674
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15 5717
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85Official
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24 6617
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18
far [5] 1413 3217 4121 513 59
15
fast-moving [1] 4024
faster [1] 3923
father [1] 2018
favor [1] 1510
federal [1] 7319
fell [1] 920
few [4] 326 7110 733 7521
final [1] 8114
find [4] 244 351616 7123
findings [1] 6018
finds [1] 4411
fine [3] 2521 2925 7615
fine-grained [4] 4524 468 4818
5020
finish [1] 1714
fire [2] 2318 6517
first [21] 14310 2421 272 283
3225 39614 427 4317 4721
556 6021 619 671622 699 76
614 801317
fit [1] 656
five [6] 3124 64131313 75416
flat [7] 4314 4616 4817 55220
564
flatly [3] 59316 602
flexible [1] 418
Focus [1] 321
folks [1] 5225
follow [1] 178
following [1] 312
fomenting [1] 591
footnote [1] 3614
force [1] 4316
forces [1] 6920
forecloses [1] 1517
foreign [8] 42 825 106 129 31
15 462 8018 821
forever [1] 6221
Forge [2] 212225
forget [1] 5610
form [1] 1916
forth [2] 618 721
forward [2] 132224
founding [1] 6718
four [1] 7814
Fourth [1] 263
FRANCISCO [117] 119 239 37
810 417 616112225 91218
10172124 115818 1231624
13418 142122124 1518 164
1821 171323 182924 1925
2081923 21321 228141722
2310162124 243111519 268
Heritage Reporting Corporation Sheet 3 danger - FRANCISCO
86Official
151825 27172022 28223 292
3021 3110132125 32381315
2225 334811182225 3447
1025 35101422 361581012
1925 3731320 381920 7517
19 7623 7731122 7849 797
1524 8049
frankly [1] 377
free [7] 2069101924 221818
freedom [1] 6523
friend [5] 395 4319 4615 532
623
full [1] 1520
fundamental [5] 2811 296 6522
713 7418
future [2] 161 1814
G game [1] 1325
gas [1] 5425
GEN [3] 119 239
General [127] 119 3810 417 57
23 616112225 91218 1017
2124 1125818 1231624 134
1618 142122124 1518 16418
21 171323 1825924 1925 20
281923 21321 228141722
23310162124 243111519 25
25 268151825 2713172022
28223 292 3021 31101321
25 323813152225 334811
182225 34471025 35101422
3615810121925 3731320
38191920 624 75161719 76
23 7731122 7849 79571524
8049
Generals [1] 6824
George [1] 6719
gerrymander [1] 6614
gets [1] 162
getting [4] 611922 731 7414
GINSBURG [4] 48 445 762125
give [8] 711 86 151225 5124
569 6821 7223
given [10] 917 1413 1718 1825
1915 241325 3219 691819
gives [2] 616 2224
giving [3] 311 539 606
goodness [1] 7725
GORSUCH [14] 5025 511820 52
81417 677 73258121622 74
2
got [4] 2714 357 4334
gotten [2] 721824
governed [1] 8014
government [14] 825 92 109 12
1523 1322 1524 222 264 278
10 3520 514 7823
governments [2] 3314 3714
governs [2] 8020 812
great [4] 248 274 812124
greater [1] 5910
greatest [1] 5012
greenhouse [1] 5424
ground [3] 223 401 5723
grounds [2] 624 6913
group [2] 5525 8021
guess [2] 1417 542
guidance [3] 3424 352 721
H Half [2] 4616 476
Hamdan [3] 4113 577 5915
hand [1] 1818
happened [1] 776
happens [2] 1718 4621
happy [1] 7512
harbored [1] 1710
hard [1] 1520
hardship [3] 31789
harkens [1] 699
harmed [1] 5123
harmful [2] 824 95
harmonize [1] 4425
Harvard [1] 3419
hate [1] 2818
hateful [2] 281820
hatred [1] 167
HAWAII [4] 17 36 5125 7224
head [2] 23812
hear [1] 33
heard [7] 1523 39519 453 4614
532 733
hearing [1] 3519
heart [6] 179 181921 2119 59
24 6716
hearts [3] 179 182021
heated [1] 2617
heightened [1] 514
help [4] 421 721 87 2523
herself [1] 7618
hire [1] 2318
history [6] 824 1025 1111 303
4
holds [1] 1814
holistic [1] 914
home [2] 811 7823
Homeland [1] 313
honestly [2] 176 2724
Honor [38] 417 61319 71 810 9
12 1018 11511 12325 1318
1621 1715 1810 19621 2010
214922 2420 2625 28324 32
923 36125 3810 4520 507 77
3 784 79715 8049
Honors [1] 7522
hoping [1] 7814
however [3] 419 113 2513
humanitarian [2] 1121 464
hypothetical [15] 151323 173
187 191620 205 2323 3812
412223 4223 437 4912
I is [1] 1613
ID [1] 433
idea [1] 454
ideal [2] 81 303
identified [2] 5518 5713
identify [1] 824
identifying [2] 4219 4811
III [1] 136
illustrate [1] 87
illustration [1] 5012
image [1] 464
imagine [7] 2913 412425 5611
19 598 613
imbued [1] 128
immediate [1] 419
immigrant [3] 5923 8011 817
immigrants [3] 11161719
immigration [10] 412 318 4518
4911 67151720 74920 752
impact [1] 4915
impacted [2] 52125
impacts [1] 4919
impediment [1] 4117
implement [3] 422 721 815
important [7] 1324 531 5923 61
15 696 7011 724
importantly [2] 517 6914
impose [3] 617 103 457
imposed [3] 2522 609 6614
imposes [1] 91
imposing [1] 8119
improve [1] 718
impulse [1] 742
in-person [3] 434 5521 562
INA [11] 42225 618 721 816 45
19 5017 5322 76812
inaccurate [2] 3912 561
inadequate [1] 5617
inadmissible [2] 76911
including [9] 320 155 251819
2917 3911 4217 476 8014
incomplete [1] 239
inconsistent [2] 523
indeed [1] 591
independent [1] 2622
indicates [1] 4624
indication [1] 5510
individual [4] 311 781522 806
individualized [4] 3915 4225 46
8 595
individuals [2] 78 322
ineffective [1] 2912
infected [1] 6911
inference [2] 66713
infiltration [1] 5613
information [20] 31625 423 77
23 81319 97 302 3315 3517
3913 407 414 5617 5825 78
1317
inhibition [1] 6219
initial [1] 253
injunction [5] 217 2223 73910
24
injury [1] 2124
INS [1] 2216
instances [2] 734 7715
Instead [5] 3921 4617 4817 62
25
intelligence [3] 406 414 428
intelligent [1] 815
intelligently [1] 7825
intended [1] 7711
intention [1] 8119
interests [4] 1121 315 701115
international [1] 6711
interpretation [1] 604
interrupt [1] 412
interview [4] 435 5522 562 71
13
introduced [4] 4120 421011 49
20
introduces [1] 426
invidious [1] 668
involve [1] 1625
Iran [2] 94 6424
Iraq [3] 923 1010 2917
iron [1] 7424
irrelevant [2] 2822 291
irrespective [1] 147
Islam [1] 8123
isnt [5] 3520 3813 4710 7119
25
Israel [4] 1617 1718 181516
issuance [3] 495 5918 8010
issue [10] 1219 16101011 4911
5511 7313 8171113
issued [7] 54 89 1110 4716 78
22 792025
issues [6] 126 283 533 63518
774
item [1] 4510
itself [5] 2910 69819 713 7325
J Jane [1] 88
Jews [2] 166 242
job [1] 2515
join [1] 2213
joined [1] 576
Judge [2] 4022 612
judges [2] 2623
judgment [6] 43 4524 4717 48
22 7019 8019
judgments [4] 4019 4318 5020
5312
judicial [1] 1620
jump [1] 664
jurisdiction [1] 136
jurisdictional [5] 122413 133
533
jurisprudence [1] 1914
Justice [217] 120 3310 48 56 6
272023 9817 10111922 112
791525 12111721 1311516
19 1431722 151222 16519
171122 18151125 193 2024
1521 21115 2259151921 23
31117222225 2441216 2525
269131619 2712182123 28
1625 30691122 31111422 32
1411141624 3326101620
23 3425812 351111523 363
Heritage Reporting Corporation Sheet 4 FRANCISCO - Justice
87Official
69111720 372111822 382
17182125 404 41182024 42
5 432124 44346813 4515 46
111723 471320 4861020 49
6131421 5015212325 5118
20 52381417 5421218 5611
1924 575619 586121620 60
1220 616101720 6218 63414
1722 642672024 6521221
669 677 68618 6924 709 715
72815 73258121622 742 75
48142024 762125 7791323
786 79591022 8017 824
justiciability [1] 137
justifications [1] 663
K KAGAN [26] 131619 1431722
151222 16519 171122 1815
1125 193 2613 2712182123
5023 5421218 709
Kagans [1] 2323
KATYAL [79] 122 26 38212224
4015 41711 42413 4323 441
1218 4520 46131925 47325
489 49291725 504725 511
141922 52131620 5431117
21 561821 574 585151922
6020 618111922 6222 638
1620 64171923 6514 669 67
713 68612 693 701017 7279
733711152124 75611
keep [3] 241 258 4215
KENNEDY [19] 10111922 204
1521 2220 281625 461723 47
1320 48610 5624 575 807
Kennedys [1] 119
kept [1] 264
kill [1] 4011
kind [8] 142022 1612 186 1913
5415 5924 7012
kinds [1] 165
King [1] 6719
knock [1] 6114
knows [4] 181319 3525 7823
L land [1] 221
language [1] 4325
laptop [1] 4920
large [1] 5922
later [2] 4119 5911
latest [1] 6211
Laughter [5] 188 3411 423 757
10
LAVAS [1] 4023
law [4] 314 3720 403 752
lawfulness [2] 3723 724
laws [2] 411 318
layer [1] 519
lays [1] 273
learns [1] 811
least [1] 1213
leave [1] 512
left [2] 3015 6519
legality [1] 378
Legislation [3] 3923 4121 422
legislative [1] 4117
legitimacy [1] 2511
legitimate [1] 1322
Lemon [2] 67925
less [1] 3112
letters [1] 7225
level [2] 423 77
lies [1] 4316
life [1] 7214
light [1] 5722
likelihood [1] 5525
limit [3] 51 4423 4512
limitations [1] 6017
limited [1] 7312
limits [4] 420 64 545 7421
line [4] 107 2524 4510 8112
lines [1] 699
Lisa [1] 3420
list [10] 47 911 3115 64141625
665610 7720
listed [1] 919
lists [3] 77151724
litigants [1] 266
little [2] 613 141
local [1] 2817
long [3] 415 577 678
long-term [2] 3117 601
longer [2] 101419
look [16] 724 2622 3519 4113
4715 552 6238 6510 661220
671 6822 7021 801
looked [7] 5713 624 3022 6420
7919 805
looking [1] 6823
lot [5] 612 145 167 771921
love [1] 8122
low [1] 916
lower [1] 743
Lukumi [3] 659 682 7024
M made [7] 1215 14912 286 689
811820
main [1] 720
maintain [1] 717
majority [6] 31920 251920 29
15 491
Mandel [18] 1321 1410131822
158141619 16192223 17116
201125 2511 2621
Mandels [1] 1723
many [5] 3013 7255 812222
mark [1] 2811
marks [1] 296
material [1] 261
matter [5] 114 1917 259 297 72
21
mayor [1] 2817
McCreary [3] 159 6399
mean [9] 1820 412 4824 5720
6215 6411 6715 6810 814
meaning [1] 299
means [2] 144 6514
meant [2] 421 103
measures [1] 5615
medical [1] 3421
meet [4] 511 1420 331820
member [3] 2425 251 3119
members [2] 1610 2213
mentioned [2] 49 5616
merits [4] 1214 1312 514 537
message [2] 2124 224
met [1] 321
might [13] 620 181314 2218 26
12 356 4912 5023 511 5222
584 655 7413
migration [1] 458
military [1] 4821
million [2] 325 3618
millions [2] 6733
minimum [11] 316 423 7722 8
218 96 30123 7816
minutes [2] 75516
misunderstanding [1] 4912
moment [1] 7121
month [1] 413
months [1] 488
most [18] 1018 1110 1324 2912
25 352 361313 37141416 53
1 5922 6115 6421 6914 7015
7225
move [3] 107 2523 7214
moved [1] 6224
moves [1] 4212
much [8] 1120 2025 285 446 46
7 6620 71119
multi-agency [3] 312 1921 29
22
Muslim [19] 321 251820 2911
1315 4911619 6410121416
17 65314 663 811922
Muslim-majority [2] 156 2916
Muslims [5] 2715 6421 661819
8120
must [4] 2418 3111 325 7411
N narrow [1] 419
nation [1] 5924
national [14] 43 520 105 1121
129 1323 176 184 571 7011
1518 8019 821
nationality [7] 39424 401721
4315 59318
nationality-based [4] 609 611
793 8023
nationals [4] 317 40813 4415
nationwide [3] 217 2223 739
naturalization [1] 7411
nature [1] 102
nay [1] 416
NEAL [3] 122 26 3822
near [1] 7316
necessarily [1] 4711
necessary [4] 37911 472224
need [6] 420 1717 2622 304 31
20 6113
needed [7] 31725 423 77 819
781217
needs [1] 544
negative [2] 2124 226
Neither [2] 74 4212
neutral [6] 154 1923 2119 2517
292324
never [7] 359 394 4120 5021 72
18 76916
new [4] 3512 4517 5713 7317
next [3] 71 63623
Ninth [2] 262 643
nobody [2] 3422 3525
NOEL [5] 119 239 38 7517
non-immigrant [2] 81811
non-politically-correct [1] 6917
non-reviewability [2] 12114
none [1] 4716
Nope [1] 701
nor [1] 75
normal [1] 3220
nothing [8] 3717 461321 478
493 5713 6023 783
notice [1] 3524
noticed [1] 3018
number [11] 157 2522 329 34
15 361314 6524 6714 694 72
9 744
numbers [2] 3313
O oath [3] 28724 295
objections [2] 6616 7110
objective [4] 621 645 6625 70
22
observer [7] 621 6458 653 66
25 679 7022
observers [1] 1823
obviously [2] 719 7324
occupations [1] 5321
occurred [1] 6825
offer [1] 4312
office [2] 288 3622
officer [3] 7661318
officers [2] 764 7916
official [2] 7024 7113
officially [1] 7114
often [3] 3716 7220 8018
Okay [11] 3114 332323 3412 35
15 3718 5412 6123 755613
omits [2] 319 2915
Once [5] 814 1321 2620 477 81
1
one [39] 41113 52021 915 10
13 114 1220 13524 1616 17
19 2215 2314 278 2913 3015
3312 358 373 4013 4218 51
24 6015 6220 6311 6422 6522
6714 694 71811 7210 7716
7969 801020 8123
ones [3] 518 6511 718
only [17] 322 414 1116 1519 21
Heritage Reporting Corporation Sheet 5 Justice - only
88Official
13 2914 317 329 3423 3524
4218 5514 626 651317 661
6812
opinion [3] 357 577 7417
Opinions [1] 288
oral [5] 114 225 38 3822
order [31] 91 1411 2425 253 29
1921 30181923 3314 3724 39
1920 4614 47714 4822 539
5921 602 6116 621112 655
13 698 712 725 7421 7812
orders [5] 2917 4616 47615 69
10
ordinary [1] 7023
organization [1] 812
other [29] 323 75 99 105 149
311724 3220 3523 416 4319
4424 4525 4714 5510 5615 58
9 656919 663 671525 6913
703 7120 7512 76811
others [2] 915 741
Otherwise [3] 2124 2210 767
ought [1] 4822
out [13] 242 258 27311 2814 35
1616 3618 588 6114 66411
723
out-of-the-box [1] 186
outcome [1] 2417
outer [1] 420
outgrowth [1] 6910
over [5] 1325 167 3615 4723 80
12
overall [1] 915
overwhelmingly [1] 1510
owes [1] 279
own [2] 6816 694
P packed [1] 612
PAGE [6] 22 3614 5011 555 62
8 7212
palsy [4] 527 7212 77216
parameters [1] 516
Parkinsons [1] 7716
PARS [2] 523 7211
part [7] 2925 59222223 601 61
15 7016
participated [1] 692
particular [15] 1016 2117 2589
408 4416 5614 57212225 58
314 664 6919 777
parties [2] 517 7313
parts [1] 7612
party [1] 5224
pass [1] 4114
passed [1] 156
past [4] 522 822 2917 503
people [32] 20121617 225 31
15 32510 3415 355524 3634
6 375 4221 4415 5523 5925
67420 703 7120 7211725 76
11 771720 8016 8118
peoples [1] 802
percent [6] 407 5920 6115 64
17 661919
percentages [1] 7222
perennial [2] 4812 5716
perhaps [2] 5817 717
period [3] 415 244 4722
permanent [1] 4518
permission [1] 523
perpetual [4] 444 4521 4612 48
5
perpetuated [1] 444
person [6] 4325 7114 767 78
1820
personally [2] 517 7912
persons [1] 5110
Petitioners [6] 1521 2410 39
7518
pick [1] 7425
pieces [1] 725
place [6] 2116 2319 7911 8013
1725
placed [1] 3916
plainly [1] 252
plaintiff [1] 5222
plaintiffs [2] 2125 536
please [4] 311 3010 3825 7520
point [23] 1624 1820 294 367
419 4215 4317 446 452 538
5415 6022 66111 68414 718
74818 7814 793 808 8114
points [1] 7522
policy [15] 43 106 129 2319 39
3 4019 4318 451821 462 50
10 5312 6310 8018 821
political [1] 128
polity [1] 601
poorest [1] 746
population [4] 491619 641518
position [1] 5017
possibility [1] 386
possibly [2] 216 2913
potentially [2] 201320
power [11] 4418 1313 4419 45
5 5310 541 5811 607 6720 74
23
practice [1] 2120
praised [1] 8123
precedential [1] 1220
precludes [1] 5710
predominantly [3] 64121316
preference [2] 456 5321
preferences [1] 5318
preliminary [1] 2621
prescient [1] 582
prescribed [1] 558
present [8] 2059 5191221 52
101119
presidency [1] 168
PRESIDENT [86] 13 345 410
14 5913 63916 712 934 11
13131822 1313 162 1758 18
6 191 2381223 257 271525
3513 3712 3834 40612 4217
101214 441121 454 472 487
11212224 4918 508918 5310
101523 54591922 561622 57
321 5810 599 607 6271216
23 632 643 6817 6951520 70
158 712 742224 811517
Presidents [8] 313 44 2421 38
15 4114 69721 704
presidential [1] 6018
Presidents [2] 4716 578
press [2] 141 6214
pressure [8] 324 91 104 1815
252223 3313 7811
presumption [1] 2710
prevent [1] 545
previously [2] 311623
principal [4] 1319 3312 376 78
10
principally [1] 298
private [4] 179 28712 625
pro-Christian [1] 223
probably [2] 3414 7415
problem [16] 261 3413 398 42
1719 481512 497 5315 5517
571216 6925 71419
problems [3] 323 2521 5721
proc [1] 1610
procedures [1] 5817
proceeding [1] 513
process [27] 51515 810 1458
1419 152 1915 2623 274 29
20 3915 5714 6815 69215 72
1020 76123 78161823 7914
17
processes [1] 3221
proclamation [55] 318 42 54 7
24 81721 92022 102121525
111023 1311 14615 161216
191718 211116 231 273519
2910 3313 381114 451617 53
11 5514 611 6217 635718 64
8 6972021 70410 7422 7610
131516 7810 7925 81525
proclamations [1] 421
proclamations [5] 823 1013 11
3 3716 6220
professors [1] 7718
Program [5] 725 56510 596
promulgated [2] 6212 6311
propose [1] 4314
protect [3] 41 2423 304
protest [1] 6718
provide [8] 31625 96 301 3315
3912 566 7812
provides [1] 72
providing [2] 5525 5825
provision [6] 1120 498 5420 76
1920 778
provisions [2] 459 768
provokes [1] 166
publication [1] 7219
publicize [1] 7125
publicized [2] 3621 374
publicly [1] 6511
publish [1] 762
purely [2] 6025 6711
purport [1] 4517
purports [1] 2919
purpose [5] 721 668 701925 78
10
purposes [4] 2216 3312 6114
751
pursuant [2] 89 7822
pursued [1] 215
pushes [1] 431
put [6] 1815 2319 351 4414 66
5 721
puts [5] 161922 6817 695 749
Q qualify [1] 722
qualms [1] 427
question [23] 612 119 1711 18
2122 3015 346 353 3810 41
16 51210 543 5724 61617 62
18 6315 7012 7122 735 7525
8012
questions [3] 5725 751223
quick [1] 7521
quite [4] 922 1915 326 7110
quotas [1] 6010
R race [1] 259
raise [1] 656
raised [1] 1222
raises [2] 6613 735
rate [1] 1524
Rather [1] 2514
rational [3] 17171824
re-upped [1] 483
reach [1] 514
reached [1] 537
read [8] 413 1418 307 3416 44
232324 7713
reading [1] 648
Reagan [8] 94 1012 113 3019
35413 3712 383
Reagans [1] 1113
real [1] 7913
real-time [1] 85
really [14] 720 81721 125 1422
1516 1821 439 4415 6617 71
24 7317 7521 814
reason [9] 132324 1423 2149
3219 339 4511 6822
reasonable [8] 1822 621 6458
652 6625 679 7022
reasons [11] 181315 3116 392
401522 4423 656 7412 802
reassessment [2] 4624 475
REBUTTAL [4] 28 3819 7516
17
receives [1] 289
recent [1] 522
recently [1] 46
recognition [1] 8115
recommendation [3] 153 183
1922
recommendations [2] 319 16
Heritage Reporting Corporation Sheet 6 only - recommendations
89Official
11
recommended [2] 314 2523
red [2] 5011 629
reenter [2] 63723
reexamined [1] 4618
referring [1] 524
reflect [1] 822
reflects [2] 42 101
refuse [1] 251
refused [1] 265
regard [2] 4825 7319
regime [1] 597
regularity [1] 277
rejected [2] 3920 4313
rekindled [1] 628
relatively [1] 197
relatives [1] 2017
relief [1] 7313
religion [6] 211720 259 6525
684 7025
religious [7] 226 651523 6613
1416 675
rely [1] 298
remedy [1] 736
remember [2] 3616 6816
removed [2] 4118 516
repetitive [1] 3013
reply [2] 3612 555
report [2] 462022
reporting [4] 823 402 479
represent [4] 981318 7913
representing [1] 673
required [3] 132 402 4711
requirement [2] 4710 5521
requires [1] 3721
resentment [1] 167
reside [1] 3118
residence [1] 8025
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6124 711820
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12 3823
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3610 371
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10 658 685 6911
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2920
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Williamson [1] 5424
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3815 4325 7615
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consular non-reviewability argument -- is that
a jurisdictional argument
GENERAL FRANCISCO Your Honor I -shy
yes I think it is a jurisdictional argument
And thats why I dont 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 to -shy
CHIEF JUSTICE ROBERTS I -- I thought
in Sale that we decided that this -- this
wasnt jurisdictional or at least decided the
merits despite the non-reviewability argument
that the government made
GENERAL FRANCISCO I think the second
thing that you just said Mr Chief Justice is
accurate The Court didnt address the
reviewability issue at all And so we dont
think its precedential one way or another
CHIEF JUSTICE ROBERTS Was the -- was
the argument raised in that case by the
government
GENERAL FRANCISCO Yes it was Your
Honor Actually you could -shy
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CHIEF JUSTICE ROBERTS So -- so its
an argument we would have been required to
address if it were in fact jurisdictional
GENERAL FRANCISCO I think so And
so I think one way you could understand it is
that it doesnt go to Article III jurisdiction
though it is a justiciability argument and we
would urge this Court to accept it because we
think its correct
But even if you dont think that its
correct we think that this proclamation
satisfies the merits because it does fall well
within the power of the President under
1182(f)
JUSTICE BREYER If youre about -shy
JUSTICE KAGAN May I turn General
to the constitutional claims in this case
GENERAL FRANCISCO Yes Your Honor
JUSTICE KAGAN And your principal
response to the Establishment Clause claim is
to cite Mandel and to say that once the
government comes forward with a legitimate
reason -- of course national security is the
most important reason one can come forward with
-- the game is over essentially And I just
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want to press on that a little bit
GENERAL FRANCISCO Sure
JUSTICE KAGAN So first I want to
ask whether that means -- you started off by
talking a lot about the process of this
proclamation But I -- I take it that that
argument would apply irrespective of what
process was used
In other words you would have made
the same Mandel argument to the first executive
order in this case or would you not
GENERAL FRANCISCO We would have made
a Mandel argument but it is far stronger given
that you have the process and substance upon
which this proclamation was based because
whatever you -shy
JUSTICE KAGAN Well I guess I wonder
why that is just because when I read Mandel
I dont see anything about process or you have
to meet a certain kind of bar
GENERAL FRANCISCO Uh-huh
JUSTICE KAGAN Mandel really is kind
of you state a reason and this Court stops
GENERAL FRANCISCO And I think that
that is right but I think that when you in
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addition to that have the extensive worldwide
process that we had that resulted in a
cabinet-level recommendation that applied a
neutral baseline to every country in the world
concluded that almost all the world including
almost all of the Muslim-majority world passed
that baseline but a tiny number of countries
didnt I think that whether you apply Mandel
or whether you apply McCreary that makes the
constitutional case in our favor overwhelmingly
strong Its a -shy
JUSTICE KAGAN So let me give you a
hypothetical and its just -- you know I
think that there are ways to distinguish Mandel
in this case but -- but -- but you know just
in terms of thinking about what Mandel really
forecloses here
GENERAL FRANCISCO And I -- because
Mandel there are only two cases in the area
and its -- its hard to understand the full
contours of it
JUSTICE KAGAN I agree So this is a
hypothetical that youve heard a variant of
before that the government has at any rate
but I want to just give you
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So lets say in some future time a -shy
a President gets elected who is a vehement
anti-Semite -shy
GENERAL FRANCISCO Uh-huh
JUSTICE KAGAN -- and says all kinds
of denigrating comments about 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 dot all the
is and they 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
GENERAL FRANCISCO Right
JUSTICE KAGAN Do you say Mandel puts
an end to judicial review of that set of facts
GENERAL FRANCISCO No Your Honor I
dont say Mandel puts an end to it but I do
say that in that context Mandel would be the
starting point of the analysis because it does
involve the exclusion of aliens which is where
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Mandel applies
If his cabinet -- and this is a very
tough hypothetical that weve 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 in his private heart of hearts
he also harbored animus
JUSTICE KAGAN Well the question is
GENERAL FRANCISCO I would also
suggest though -- if I could finish that Your
Honor -- that I think it would be very
difficult for that to even satisfy Mandel
rational basis scrutiny Id need to know what
the rational was Given that Israel happens to
be one of the countrys closest allies in the
war against terrorism its not clear to me
that you actually could satisfy -shy
JUSTICE KAGAN Well -shy
GENERAL FRANCISCO -- Mandels
rational basis standard on that unless it
truly were based -shy
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JUSTICE KAGAN Yes
GENERAL FRANCISCO -- on a
cabinet-level recommendation that was about
national security
JUSTICE KAGAN General Im -- lets
-- this is a out-of-the-box kind of President
in my hypothetical And -shy
(Laughter)
GENERAL FRANCISCO We -- we -- we
dont have those Your Honor
JUSTICE KAGAN And -- and you know
he thinks that there are good diplomatic
reasons and there might -- who knows what the
future holds that there might be good
diplomatic reasons to put pressure on Israel or
to say we want Israel to vote a certain way in
the UN and this is a way to better our
diplomatic hand and so this is what he does
And -- 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 think -shy
GENERAL FRANCISCO Right
JUSTICE KAGAN -- given this context
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in which this hypothetical President -shy
GENERAL FRANCISCO Sure
JUSTICE KAGAN -- is making virulent
anti-Semitic comments
GENERAL FRANCISCO Right And Your
Honor its a tough hypothetical but its why
I also think that this is a relatively easy
case because were 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 though we think that its
wrong that you applied some kind of domestic
establishment clause jurisprudence because
were 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 dont have the extreme
hypothetical that youre suggesting Your
Honor we do have a multi-agency worldwide
review and a cabinet-level recommendation that
applied a neutral baseline And this wasnt
done just by the cabinet secretaries but by the
agencies to every country in the world and
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concluded -shy
JUSTICE SOTOMAYOR Mr General you
just -shy
JUSTICE KENNEDY If -- if you have
that extreme hypothetical would that present a
free exercise or an Establishment Clause claim
or both
GENERAL FRANCISCO It could
definitely present a free exercise clause
challenge Your Honor just as you had a free
speech type claim in the Mandel case
And there would be people who could
bring that claim and who could potentially
succeed on that claim
JUSTICE KENNEDY And -- and the
people that could bring that claim I assume
were relatives of people that were excluded
father son
GENERAL FRANCISCO On free exercise
potentially I think all -shy
JUSTICE KENNEDY Yeah what about a
university
GENERAL FRANCISCO I think a
university could bring a free speech-type claim
under Mandel much -shy
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JUSTICE SOTOMAYOR Why not an
Establishment Clause claim
GENERAL FRANCISCO And -- and -shy
because Your Honor and the reason why I think
they havent pursued those types of claims is
because I dont think they would possibly
support the types of nationwide injunction that
theyre asking for
Your Honor the reason why I dont
think that they could bring an Establishment
Clause claim is because the proclamation
doesnt actually apply to the Respondents It
only applies to aliens abroad who have no
constitutional right to enter
JUSTICE SOTOMAYOR No but the claim
is that it -- that the proclamation is in place
because of a dislike of a particular religion
And I thought the Establishment Clause at its
heart is that we cannot be anything but neutral
with respect to religion or its practice
GENERAL FRANCISCO 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
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standing to challenge the land transfer from
the government to the Christian college on the
ground that it sent a pro-Christian or
anti-atheist message That -shy
JUSTICE SOTOMAYOR But these people
are saying that that negative religious
attitude is stopping them -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- 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
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR Which is one of
the purposes of the INS
GENERAL FRANCISCO And -- and thats
where they might have free exercise or free
speech claims along the type that Justice
Kennedy suggested -shy
JUSTICE SOTOMAYOR Well but I -shy
GENERAL FRANCISCO -- but which
couldnt support a nationwide injunction I
dont think that that gives them an
Establishment Clause claim when the
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proclamation doesnt actually apply to them
because -shy
JUSTICE SOTOMAYOR General today
can we go back to something thats 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 -- Im
summarizing in an incomplete way -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- 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 -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- not extreme
that he can hire or fire anyone he wants and
that he can put in place whatever policy he
wants
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR If we take Justice
Kagans hypothetical President -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- who basically
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says to his review committee I want to keep
out Jews -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- period find a
way Thats their charge
So in that situation why would the
actions of the committee whatever this is
Executive Committee not be subject to great
suspicion and to thorough review -- which
actually wasnt completely -shy
GENERAL FRANCISCO Uh-huh
JUSTICE SOTOMAYOR -- done here -shy
given that they are responsible to the
executive -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- and theyve
been told what the outcome of their
deliberations must be
GENERAL FRANCISCO Sure And I have
two responses to that Your Honor
The first is that the Presidents
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
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cabinet member would refuse to comply or resign
in the face of a plainly unconstitutional
order 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 Mandel
standard
Here however you dont have anything
like that Rather you have the cabinet doing
its job through the agencies where they ask
the agencies to construct and apply 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 across the line
JUSTICE SOTOMAYOR General the
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problem is that I dont 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
the litigants or the courts exactly what was
done how what the evaluation and how -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- it was applied
to all those countries in the world
I understand some of the
confidentiality that might concern you but if
the backdrop is the way that Justice Kagan
described it -shy
GENERAL FRANCISCO Right
JUSTICE SOTOMAYOR -- that -- that
heated -shy
GENERAL FRANCISCO Well I -- yeah -shy
JUSTICE SOTOMAYOR -- anti-Semitic
background dont you think that once you get
through the Mandel preliminary 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
GENERAL FRANCISCO Well Your Honor
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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
owes to another coequal branch of the
government there is a very strong presumption
that what is being set out there is the truth
JUSTICE KAGAN You -- you said
something earlier General I want to make sure
that I got it right You said if at the time
the President had said we dont want Muslims
coming into this country -shy
GENERAL FRANCISCO Uh-huh
JUSTICE KAGAN -- that that would
undermine the proclamation
GENERAL FRANCISCO Yes
JUSTICE KAGAN Did I get you right
GENERAL FRANCISCO Yes
JUSTICE KAGAN So I -- I think you
know honestly the difference here then seems
to be is everything that the President said
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effectively that
GENERAL FRANCISCO I think there are
two issues Your Honor 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 embodiment of the executive branch So
that those statements should be out of bounds
But for -shy
JUSTICE KENNEDY But suppose you have
a local mayor and as a candidate he makes
vituperative hate -- hateful statements hes
elected and on day two he takes acts that are
consistent with those hateful statements
Thats -- whatever he said in the campaign is
irrelevant
GENERAL FRANCISCO Your -- Your
Honor if he takes the same oath -shy
JUSTICE KENNEDY You would say
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whatever he said in the campaign is irrelevant
GENERAL FRANCISCO I would say two
things And that was the -- and the second
thing is the point I was about to turn to I
would say yes because we do think that oath
marks a fundamental transformation but I would
also say here it doesnt matter because here
the statements that they principally rely on
dont actually address the meaning of the
proclamation itself
This is not a so-called Muslim ban
If it were it would be the most ineffective
Muslim ban that one could possibly imagine
since not only does it exclude the vast
majority of the Muslim world it also omits
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 multi-agency worldwide review that
applied neutral criteria all across the world
and concluded under those neutral criteria
most of the world was fine but a small part of
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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
JUSTICE BREYER All right Can -shy
can I ask a more -- I did read I think almost
all the 80 briefs Now your time -- what do -shy
CHIEF JUSTICE ROBERTS Yeah dont
worry Please go ahead
JUSTICE BREYER All right All
right All right Almost 80 and I think I -shy
some were repetitive not too many And I
think I know the basic arguments but theres
one question Im left with and it starts with
an assumption which I think you share but I
want to be sure All right
I noticed that the Carter order and
the Reagan order both had case-by-case
exceptions
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER And I looked 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
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individual circumstances such as giving some
examples the following
And then they have to be no
terrorists Well thats the law anyway And
they -- they have to be in the interests of the
United States And there cant be undue
hardship which the only time the word
hardship appears in the immigration laws it
says extreme hardship
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER So undue must be
less than extreme
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER Okay So Im -- then
they have a list people with foreign contacts
previously established business reasons
theyve been here studying or other long-term
activity they want to visit or reside with a
close family member they have a disease or
something that they need -shy
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER -- treatment for
they -- previously been employed And there
are about five other things
GENERAL FRANCISCO Yeah
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JUSTICE BREYER All right Focus on
that class of individuals
GENERAL FRANCISCO Uh-huh
JUSTICE BREYER Now in countries -shy
150 million people all together there must be
quite a few who have -- do fall within that
class So -shy
GENERAL FRANCISCO Well yes Your
Honor but theres only a small number of
people that seek to come into our country
JUSTICE BREYER Well thats what Im
asking about
GENERAL FRANCISCO Yeah
JUSTICE BREYER You see
GENERAL FRANCISCO Yeah
JUSTICE BREYER Thats now -- if you
-- you think -- now as far as were concerned
if they fall within that class there -shy
theres no reason given here why they should be
excluded other than the -- the normal
processes
GENERAL FRANCISCO Well a couple of
responses Your Honor
JUSTICE BREYER What
GENERAL FRANCISCO First in terms of
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the numbers -shy
JUSTICE BREYER Im not asking about
the numbers
GENERAL FRANCISCO Oh oh youre not
asking -shy
JUSTICE BREYER I want to ask about
GENERAL FRANCISCO So -- so in terms
of the reason -shy
JUSTICE BREYER Yeah
GENERAL FRANCISCO -- they should be
excluded one of the principal purposes of the
proclamation is to exert diplomatic pressure on
governments in order to get them to change and
provide us with the information -shy
JUSTICE BREYER So you think they
should be excluded
GENERAL FRANCISCO Not if they meet
the criteria for the -shy
JUSTICE BREYER Not if they meet the
criteria
GENERAL FRANCISCO -- for the waiver
JUSTICE BREYER Okay Okay So
theres -shy
GENERAL FRANCISCO Thats why we have
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-- thats why we have the waiver
JUSTICE BREYER Thats -- thats -shy
thats what I thought you would say
GENERAL FRANCISCO Yeah
JUSTICE BREYER Then I get -- can ask
my question Sorry
GENERAL FRANCISCO Yes
JUSTICE BREYER But I want to be sure
were the same wavelength
GENERAL FRANCISCO Yes
(Laughter)
JUSTICE BREYER Okay 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 theres the
business community complaining theres the
academic community there were 46 scholars at
Harvard there -- there are families in the
Lisa Blatt brief you know that -- that they
say we were trying to get medical treatment and
nobody told us about this and -- and theyve
only admitted two and theres supposed to be
guidance and -shy
GENERAL FRANCISCO Thats not true
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JUSTICE BREYER -- you havent put in
the guidance and -- and -- and the most there
are is 100 And so there is my question If
you have done the same thing that the Reagan
people did and the Carter people did then it
might be -- Im not expressing a definite
opinion -- but well youve got the same thing
here but if this is as one brief says just
window dressing and they never apply it -shy
GENERAL FRANCISCO Right
JUSTICE BREYER -- then you have
something new and different going well beyond
what President Reagan did
GENERAL FRANCISCO Sure
JUSTICE BREYER Okay So I want to
know how do I find out -- how do I find out
when there is not that information in the
brief do we have to -- can we have another
hearing Do we send it back Do we say look
the government of course thinks this isnt
window dressing -shy
GENERAL FRANCISCO Right
JUSTICE BREYER -- but the other side
says there are only two people no notice
nobody knows
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GENERAL FRANCISCO So Your Honor
two -shy
JUSTICE BREYER There are people in
Yemen there are people in Somalia -shy
GENERAL FRANCISCO Yeah
JUSTICE BREYER -- decent people
Business -- you see my point
GENERAL FRANCISCO Yes
JUSTICE BREYER Whats the answer
GENERAL FRANCISCO And two responses
JUSTICE BREYER Yes
GENERAL FRANCISCO Our reply brief
has our most -- most current number on waivers
and I believe the number at page 17 footnote
-- well its -- its over 400 I cant
remember the exact statement
JUSTICE BREYER All right Thats
400 out of 150 million
GENERAL FRANCISCO And then -shy
JUSTICE BREYER And -- and is it well
publicized in these countries that they know
all they have to do is go to the visa office
and say I understand the thing I want an
exception
GENERAL FRANCISCO No Your Honor
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and I have two -- two responses -shy
JUSTICE BREYER Yeah
GENERAL FRANCISCO -- to that One
is I dont know how well publicized it is but
I suspect that people understand how to get it
My second principal response is
though that frankly in terms of the
legality I think that the waiver is not
necessary although it is a very good thing
which is why -shy
JUSTICE BREYER Not necessary There
-- there you have President Reagan -shy
GENERAL FRANCISCO -- which is why
most -- which is why most governments dont -shy
which is why its -- its a good thing which
is why most of these proclamations often have
them But theres nothing in -shy
JUSTICE BREYER Okay So you want me
to consider -shy
GENERAL FRANCISCO -- the law that
actually requires it
JUSTICE BREYER Thats what you want
You want me to consider the lawfulness of this
order on the assumption that there is no
waiver
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GENERAL FRANCISCO I dont -shy
JUSTICE BREYER Which is not what -shy
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 here thats the -shy
thats the -shy
GENERAL FRANCISCO Right The answer
to my -- your question Your Honor is no I
dont want you to consider the proclamation on
the -- on the hypothetical situation that it is
what it isnt but I do think that the
proclamation as written and as applied falls
well within the Presidents authority under
1182(f)
Thank you Mr Chief Justice
CHIEF JUSTICE ROBERTS Thank you
General We will afford you rebuttal time
GENERAL FRANCISCO Thank you
CHIEF JUSTICE ROBERTS Mr Katyal
ORAL ARGUMENT OF NEAL K KATYAL
ON BEHALF OF THE RESPONDENTS
MR KATYAL Thank you Mr Chief
Justice and may it please the Court
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The executive order is unlawful for
three reasons It conflicts with Congresss
policy choices It defies the bar on
nationality discrimination something you never
heard my friend talk about And it violates
the First Amendment
Congress has already specified a
three-part solution to the very same problem
the order addresses Aliens seeking entry from
countries that dont cooperate with the United
States in vetting including state sponsors of
terrorism and countries that provide inaccurate
information
First aliens have to go through the
individualized 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 the order uses Congress rejected a
ban Instead it used carrots When countries
cooperated theyd get extra credit a track -shy
faster track for admission Legislation to use
big sticks like nationality bans failed
And third Congress was aware
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circumstances could change on the ground so it
required reporting to them so it could change
the law
CHIEF JUSTICE ROBERTS Well lets
take big sticks fail Lets suppose that the
intelligence agencies go to the President and
say we have 100 percent solid information
that on a particular day 20 nationals from
Syria are going to enter the United States with
chemical and biological weapons They could
kill tens of thousands of Americans
In that situation could the President
ban the entry of Syrian nationals on that one
day
MR KATYAL He could for two reasons
Theres two different arguments Theres the
nationality discrimination ban 1152 and then
theres you know whether or not this comports
with Congresss policy judgments
And with respect to both I think it
would It wouldnt be nationality
discrimination for the reasons Judge Sentelle
said in LAVAS when you have an emergency
fast-moving situation like the Syria example
youre saying
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CHIEF JUSTICE ROBERTS Well just to
stop interrupt you there I mean what if
its a week What if its a week a month from
now Thats what the intelligence information
is
In other words Im trying to -shy
MR KATYAL Right
CHIEF JUSTICE ROBERTS -- respond to
your point that it has to be an immediate
decision
MR KATYAL Yeah So I think you
know this Courts dealt with that in
Youngstown and Hamdan and said look you know
the Presidents going to get a pass absolutely
on you know what he says the emergency is
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 460 days on -- later
Mr Chief Justice Hes never even introduced
legislation about this So were so far from
that hypothetical well concede the
hypothetical
CHIEF JUSTICE ROBERTS Well imagine
-- imagine if you can that Congress is unable
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to act when the President asked for
legislation
(Laughter)
MR KATYAL Right
CHIEF JUSTICE ROBERTS And someone
introduces a bill saying lets authorize -shy
first of all the President may have qualms
about sharing that absolute intelligence
broadly but lets say theres a bill
introduced to say lets authorize the President
and theres a bill introduced to say lets
block the President and neither bill moves
MR KATYAL 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 -- theres only one
problem hes identifying which is countries
not cooperating
Hes not talking about people coming
in or something like that like your
hypothetical And with respect to that
Congress has said heres how we deal with it
We deal with it with the individualized vetting
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system which pushes all the burdens on a
person coming in Thats 1361
Youve got to show biometric ID under
the statute Youve got to have an in-person
interview if theres any risk that the person
is from a country thats a state sponsor of
terrorism like your hypothetical or anything
else
So Congress has really said in a
robust way heres how we would deal with it
And to the extent countries arent cooperating
we offer carrots
Congress rejected exactly what theyre
trying to propose here which is a flat
nationality ban And thats where I think the
force of our argument lies with respect to the
first point which is this is countermanding
Congresss policy judgments
My friend on the other side actually
in his brief -shy
JUSTICE ALITO Well Congress did -shy
Congress did act It enacted 1182(f)
MR KATYAL Correct
JUSTICE ALITO Why doesnt this fall
squarely within the language of 1182(f)
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MR KATYAL For -- for -- we have
both textual reasons that its not a class for
reasons Justice Breyer was talking about Its
not perpetuated -- its perpetual like Justice
Ginsburg was talking about But we think
theres a much bigger point Justice Alito
which is -shy
JUSTICE ALITO Well maybe you could
talk about the text Its not a class
Doesnt 11 -- doesnt 1182(f) say whenever the
President finds that the entry of any aliens -shy
MR KATYAL Correct
JUSTICE ALITO -- or any class of
aliens So put class aside although I dont
really see why people who are nationals of a
particular country dont constitute a class
What about any aliens
MR KATYAL Right So we think it is
any you know -- because the power in 1182 is
so broad and sweeping and does allow the
President to supplement what Congress has done
we think that you have to -- you have to be
careful and read limit -- you have to read it
just the way you read every other statute to
say how do we harmonize that broad text of
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1182(f) with the rest of the INA
And our point in our briefs which I
dont 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 you know and end so-called chain
migration or anything like that He could do
-- countermand any of the provisions of the INA
and turn it into a line item veto
So for that reason we think there
has to be some limit Thats something this
Courts dealt with in you know the tobacco
case or -shy
JUSTICE ALITO Well does this
proclamation do anything like that Does this
proclamation purport to establish a new
permanent immigration policy for the United
States
MR KATYAL Absolutely Your Honor
This is a perpetual policy that bans It does
exactly what Congress in 1965 said you cant
do And it countermands Congresss
fine-grained reticulated judgment from 2001
2015 and several other times which is to say
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instead of these flat bans were going to have
-- were going to balance foreign policy
considerations economic considerations like
the US companies brief humanitarian image
of the United States views all of that
together and said we wont do the flat ban
Instead were going to have a much
more fine-grained approach with individualized
vetting and carrots for the countries that
dont disagree -- that dont cooperate
JUSTICE ALITO What is your basis for
saying that it is perpetual
MR KATYAL Well theres nothing in
the order that ends it And you heard my
friend say oh that would doom all executive
orders But thats not true Half of these -shy
JUSTICE KENNEDY I thought it had to
be reexamined every 180 days
MR KATYAL No thats not what it
says It says theres a report that has to
come in at 180 days and nothing happens at the
end of the report
JUSTICE KENNEDY Well that -- that
indicates there will be a reassessment
MR KATYAL Well in -shy
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JUSTICE KENNEDY And then the -- and
-- and the President has continuing discretion
MR KATYAL Justice Kennedy this
argument wouldnt be there if there was
anything about reassessment the way there are
in about half the orders including the Cuba
order which says it sunsets once the crisis
ends Theres nothing like that in this
And its just like a reporting
requirement to Congress in which Congress isnt
necessarily required to do anything Congress
has statutes like that all the time
This is that And thats why this is
unlike any other executive order If you go
back and look at all 43 executive orders that
Presidents have issued none of them have even
arguably countermanded Congresss judgment in
the area Theyve all been consistent
Theyve all been supplements
JUSTICE KENNEDY Well the statute
says first that -- that -- that 1182 for such
period as he deems necessary and he can have
continuing supervision over whether its still
necessary
MR KATYAL Again we wouldnt have a
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problem with that if it was tailored to a
crisis it says it sunsets and then you know
could be re-upped or something like that
Thats not what this says This is about a
perpetual problem
JUSTICE KENNEDY So you want the
President to say Im convinced that in six
months were going to have a safe world
MR KATYAL Well -- well -- well no
Justice Kennedy thats not our argument Our
argument is here the President is identifying
something that is a perennial problem Our
brief says it goes back 100 years you know
when the Soviet Union was around we dont 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
CHIEF JUSTICE ROBERTS What if the
military advisors tell the President that in
their judgment the President ought to order a
strike an air strike against Syria and the
President says well -- does that mean he cant
because you would regard that as discrimination
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against a majority Muslim country
MR KATYAL Absolutely not Theres
nothing to do with the text of the statute
The 1152 statutes about discrimination and the
issuance of visas And thats all that -shy
CHIEF JUSTICE ROBERTS So under
1182(f) you would say that theres no problem
under that provision
MR KATYAL Well under 1182 as I
understand it was a strike And so I dont
think theres any immigration issue in your
hypothetical I might be misunderstanding it
Mr Chief Justice
CHIEF JUSTICE ROBERTS Well any type
of targeted action that would have a impact on
the Muslim population
MR KATYAL Absolutely We think the
President has wide authorities to do things
that have impacts on the Muslim population
Take the laptop ban that was introduced -shy
CHIEF JUSTICE ROBERTS Why under your
theory wouldnt that constitute or the argument
would be that thats discrimination under your
Establishment Clause argument -shy
MR KATYAL Oh
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CHIEF JUSTICE ROBERTS -- that thats
discrimination on the basis of faith because he
has said in the past if you accept the -shy
MR KATYAL Yeah
CHIEF JUSTICE ROBERTS -- accept the
arguments that he -- he is anti-Muslim
MR KATYAL Not at all Your Honor
and no President has run afoul of this you
know and thats because here the President
and his advisors have directly tied this policy
to those statements And the red brief at page
70 I think is the greatest illustration of
that
Thats 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 INA is
that the President can take a wrecking ball to
the statute and countermand Congresss
fine-grained judgments that -shy
CHIEF JUSTICE ROBERTS He can never
-shy
JUSTICE KAGAN Well you might think
-shy
JUSTICE GORSUCH Mr Katyal -- Mr
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Katyal if I might on -- on the statutory
question before we leave it Weve been
proceeding so far on the assumption that we can
reach the merits but the government makes the
argument for example that aliens who are
removed from this country have to bring their
claims personally and third parties cant
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
who are not present in this country Whats
the answer to that
MR KATYAL Well several This is
not a third-party case These are United
States citizens bringing this challenge in a
state -shy
JUSTICE GORSUCH Oh behalf of -shy
MR KATYAL -- of the United States
JUSTICE GORSUCH -- aliens not
present in the country
MR KATYAL Well but they are
directly -- they are directly harmed
themselves Let me just give you one example
Not just the State of Hawaii whose university
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is directly impacted but lets just take for
example the Alomari -- Mr Alomari the
10-year-old in the PARS Equality brief Justice
Breyer that you were referring to This is a
10-year-old daughter in Yemen who is -- whos
trying to come here because she has cerebral
palsy
JUSTICE GORSUCH I understand that
but those arguments dont work with respect to
aliens present in the country So why do they
work for aliens who are not present in the
country
MR KATYAL Because I -shy
JUSTICE GORSUCH Those very same
arguments would not succeed
MR KATYAL Well -shy
JUSTICE GORSUCH I think youd
concede that they wouldnt succeed for aliens
present -shy
MR KATYAL Right And they dont
succeed because there you have a better
plaintiff might not be willing to bring them in
the United States and thats why the court
you know says no third party But here
these folks are directly impacted
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And the most important thing to say is
Sale answers this You heard my friend concede
Sale was jurisdictional the issues in Sale
Thats how they briefed it up Thats how he
just described it This Court had exactly that
situation United States plaintiffs and it
reached the merits
Our statutory point to you is that if
you accept this order youre giving the
President a power no President in 100 years has
exercised an executive proclamation that
countermands Congresss policy judgments He
has zero examples to say that when Congress has
stepped into the space and solved the exact
problem that the President can then come in
and say No I want a different solution
If you do that youd -- its not just
family preferences that youre allowing him to
get rid of youd get rid of all sorts of even
small things in the Code or big things like
theres a preference for specialty occupations
like software engineers in the INA The
President could say The economics are such
Im going to ban software engineers from going
to California or something like that under that
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sweeping 1182 power
JUSTICE KAGAN I -- I guess the
question though Mr Katyal is maybe youre
entirely right that 1182(f) needs to have some
limits to prevent the President from doing
something thats completely contrary to another
section of the statute
But youre suggesting well the
President cant do anything thats not
contemplated by the rest of the statute
MR KATYAL That is not our argument
JUSTICE KAGAN Okay 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 -shy
MR KATYAL Right
JUSTICE KAGAN -- between what the
President is doing and another statutory
provision
MR KATYAL So our view is that the
President can supplement he just cant
supplant In this Courts decisions in the
Brown amp Williamson case and the UARG greenhouse
gas and Concepcion and Abilene Cotton the
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Savings Clause cases all say there are three
things you look at And its not a flat bar
It cant be like a direct contravention Even
they say its not a direct contravention in
their reply brief at page 19
So the three things are first can
these two solutions coexist or not Second
has Congress prescribed a reticulated
comprehensive scheme And third you know is
there any other indication that Congress
considered 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 -shy
Congress has a comprehensive reticulated scheme
that deals with the exact single problem that
hes identified which is countries not
cooperating It cant coexist with the
solution of a flat ban It makes no sense for
example to have the in-person visa requirement
-- visa interview which is in 12 -shy
1202(h)(2) which is for -- for people who come
from state sponsors of terrorism or who have a
group with a likelihood of providing
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inaccurate information Congress said there
has to be an in-person interview for that
It doesnt make sense to say well
youre going to have a flat ban It doesnt
make sense to have a Visa Waiver Program which
is all about countries that provide zero
information to the United States -- state
sponsors of terrorism and the like -- and say
were going to give you a carrot and then say
oh no forget about the Visa Waiver Program
JUSTICE ALITO Can -- can you imagine
any situation in which the threat of the
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
MR KATYAL Yes
JUSTICE ALITO You cannot imagine any
such situation
MR KATYAL Yes I can And the
President would have a robust authority to deal
with that That is not our argument So -shy
JUSTICE KENNEDY And your argument is
that courts have the -- the duty to review
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whether or not there is such a national
exigency thats for the courts to do not the
President
MR KATYAL No I think you have
wide deference Justice Kennedy Its exactly
what you said when you joined Justice Breyers
opinion in Hamdan which is as long as -- you
know Presidents have wide berth in this area
but if -- you know certainly if theres any
sort of emergency that precludes it
But when you have a statute that
considers the very same problem and theres
nothing new that theyve identified in this
worldwide review process that Congress didnt
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 the -shy
CHIEF JUSTICE ROBERTS But thats in
the abstract I mean they may have more -shy
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
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And it seems to me a difficult
argument to say that Congress was prescient
enough to address any particular factual
situation that might arise
MR KATYAL Well that again -shy
thats again Mr Chief Justice not our
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 But here -shy
CHIEF JUSTICE ROBERTS What about -shy
what about a change of administration in a
particular country -shy
MR KATYAL Yes
CHIEF JUSTICE ROBERTS -- in which
perhaps the vetting procedures are not going to
be taken seriously
MR KATYAL Right
CHIEF JUSTICE ROBERTS That Congress
could not have anticipated
MR KATYAL Well but again
Congress anticipated a country that is a state
sponsor of terrorism and even for -- with
respect to that providing no information and
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indeed fomenting against the United States
Congress said oh were not going to have a
nationality ban You know they flatly banned
that and said were going to have
individualized vetting and this Visa Waiver
Program carrot to try and deal with that you
know dangerous regime
Now again I can imagine an emergency
situation in which the President would have
even greater authority for that But here we
are 460 days later and I would caution the
Court not to make a decision about the
emergency youre concerned about That can be
bracketed as it was in Youngstown as it was in
Hamdan This is so far from that
The text of 1152 is flatly violated
here It says there shall be no discrimination
on the basis of nationality with the issuance
of visas
That is 39 percent of all the visas
this executive order covers Its not a small
part Its 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
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become part of our long-term polity This
executive order flatly contradicts that
Now if you accept his
interpretation -- he says well you know
were discriminating at the entry side not at
the visa side If you do that you are giving
the President the power to undo -- and hes
actually just done it -- hes undone the ban on
nationality-based discrimination Hes imposed
country quotas of zero for these countries at
the border
CHIEF JUSTICE ROBERTS If your -shy
your argument based on discrimination based on
the campaign statements is there a statute of
-- no the one that you do make based on the
campaign statements is there a statute of
limitations on that or is that a ban from
presidential findings for the rest of the
administration
MR KATYAL So Mr Chief Justice I
first want to be very clear about this Our
point about 1152 and the discrimination has
nothing to do with any campaign statements or
anything else
Its purely the text of the
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proclamation which is nationality-based
discrimination through and through Judge
Sentelle said you couldnt imagine a clearer
text than this And this is -- it violates it
Now -shy
CHIEF JUSTICE ROBERTS My question
was on the -shy
MR KATYAL -- youre asking about
the First Amendment
CHIEF JUSTICE ROBERTS Yes
MR KATYAL I just want to make
absolutely clear that were -- thats not -shy
you know you dont need to do any of that for
purposes of 1152 And that would knock out
39 percent of the most important part of the
executive order
CHIEF JUSTICE ROBERTS My question
of course -shy
MR KATYAL Yes Now Im getting -shy
CHIEF JUSTICE ROBERTS -- was not on
1152
MR KATYAL Yes Im getting there
Okay
With respect to that we dont think
-- we think that the test as this Court has
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said a reasonable objective observer viewing
all the statements and we think absolutely
my friend is right you shouldnt look to
campaign statements in general or stuff like
that 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 70
of our red brief you have a very good example
of this
After the executive order this latest
executive order was promulgated the President
tweeted these three virulent anti-Muslim
videos And then the press spokesman was
asked What does this mean What is this
about And the answer was The President has
spoken about exactly this in the proclamation
CHIEF JUSTICE ROBERTS My question
was whether or not the inhibition on the
ability to -- to enter one of the proclamations
applies forever
MR KATYAL Right No I think the
President could have disclaimed -- you know
easily moved away from all of these statements
you know but instead they embraced them
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Thats the difference
And so absolutely the President
would have wide berth to say thats a -shy
CHIEF JUSTICE ROBERTS So if
tomorrow he issues a proclamation saying hes
disavowing all those statements then the next
day he can reenter this proclamation
MR KATYAL Thats exactly what this
Court said in McCreary This Court in McCreary
said you know the same policy can be
constitutional if said -- if promulgated by one
entity and not by another depending on the
circumstances around it
CHIEF JUSTICE ROBERTS Is your answer
to my question yes
MR KATYAL Yes The answer is -shy
CHIEF JUSTICE ROBERTS Tomorrow he
issues a proclamation disavowing those
statements -shy
MR KATYAL Absolutely And thats a
CHIEF JUSTICE ROBERTS -- then the
next day he could reenter this and your
discrimination argument would not be
applicable
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MR KATYAL And -- and -- and Mr
Chief Justice thats exactly what I told the
Ninth Circuit in May The President didnt do
that Thats whats -- thats -- you know
thats what a reasonable objective observer -shy
JUSTICE SOTOMAYOR So if another -shy
JUSTICE ALITO Mr Katyal would any
reasonable observer reading this proclamation
with -- without taking into account statements
think that this was a Muslim ban
I mean there are -- I think there are
50 predominantly Muslim countries in the world
Five -- five countries -- five predominantly
Muslim countries are on this list
The population of the -- of the
predominantly Muslim countries on this list
make up about 8 percent of the worlds Muslim
population
MR KATYAL Absolutely
JUSTICE ALITO If you looked at the
10 countries with the most Muslims exactly
one -shy
MR KATYAL Right
JUSTICE ALITO -- Iran would be on
that list of the top 10
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MR KATYAL Right
JUSTICE ALITO So would a reasonable
observer think this was a Muslim ban
MR KATYAL If it were -- if it were
just the text of the order alone it might
raise eyebrows for fit and other reasons that
the briefs go into but we wouldnt be here
We absolutely agree that just -- its the same
test as in Lukumi and other cases You have to
look to all the circumstances around it that
are said the publicly available ones
You know and Justice Alito the fact
that the order only come -- encompasses some
Muslim countries I dont think means its not
religious discrimination For example if Im
an employer and I have 10 African-Americans
working for me and I only fire two of them I
dont think -- you know and say well Ive
left the other eight in I dont think anyone
can say thats not discrimination
JUSTICE ALITO No I -- I understand
that And it is one of our fundamental values
that there is religious freedom here for
everybody in that number -- adherence to every
religion are entitled to equal treatment
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My only point is that if you look at
what was done it does not look at all like a
Muslim ban There are other justifications
that jump out as to why these particular
countries were put on -- on the list
So you -- it seems to me the list
creates a strong inference that this was not
done for that invidious purpose
MR KATYAL Justice Alito I think if
it were just the list I think wed be right -shy
youd be right although Id point out that
you yourself in the Stormans case said that
its a religious -- it raises an inference of
religious gerrymander of the burden imposed
falls almost exclusively on those with
religious objections
This is a ban that really does fall
almost exclusively on Muslims between
902 percent and 998 percent Muslims And so
it does look very much like what you said in
Stormans But even then we wouldnt be here
if it werent for all of the different
statements
And the best evidence of this about
what a reasonable objective observer would
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think is to look at the wide variety of amicus
briefs in this case from every corner of
society representing millions and millions of
people from the US Conference of Catholic
Bishops which calls it blatant religious
discrimination
JUSTICE GORSUCH Mr Katyal on that
its been a long time since this Court has used
the Lemon test reasonable observer even to
strike down a domestic statute let alone
something with purely international
application What -- what do we do about that
MR KATYAL Yeah 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 and our protest of
King George which is all about using the
immigration power to exclude people of a
different faith And thats what our
Constitution is about So thats the first
thing
And the second is we dont think you
have to get into Lemon and all these other
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tests that you all have struggled with I
think this Court in Lukumi was very clear in
saying that when youre talking about
denigration of religion all the tests point in
the same direction
JUSTICE SOTOMAYOR Mr Katyal you
said something earlier you said you wouldnt
be here if all of those statements the
background statements were not made Do you
mean that on all of your bases You wouldnt
be here on the Establishment Clause claim
MR KATYAL Only on the Establishment
Clause claim not on anything else And our
point is you know he talks about for
example this worldwide vetting process
Remember his own argument on 1182 is
the statute puts the President -shy
JUSTICE SOTOMAYOR So lets -- lets
go back to not being here without the
statements Clearly the statements even
conceded by your adversary do give you a basis
to look behind all right the reason
So if were looking behind it how do
you deal with the Generals suggestion that
there was a cleansing that occurred because of
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all of the agencies and departments who
participated in this process
MR KATYAL Yeah So theres three
things Number one is that his -- his own
argument is that 1182 puts the President in the
drivers seat so the cabinets not important
Its the Presidents proclamation
Second the order itself says in its
first lines it harkens back to Executive
Orders 1 and 2 and it says its an outgrowth
of that So it was infected by the same thing
that was struck down on Establishment 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 ban
a non-politically-correct ban and the like
So given all of those things but in
particular given the fact that 1182 itself
forces the President to make the proclamation
its the Presidents proclamation so I dont
think you even have to get into this whole
unitary executive thing but I do agree with
you Justice Sotomayor that thats another
problem which is theyre coming before the
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Court and saying Nope its the President
whos in charge And now theyre saying here
Oh no no no its these other people
This is the Presidents proclamation
through and through No President has ever
said anything -- anything like this And
thats what makes this different
And the President -shy
JUSTICE KAGAN And -- and yet Mr
Katyal 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 evaluating the adequacy of those
national security interests which for the most
part weve said courts are not equipped to do
MR KATYAL Right Were not asking
you to second-guess a national security
judgment at all with the purpose of the
Establishment Clause
Were saying you just have to look to
what a reasonable objective observer would do
Thats the ordinary test that youve used in
cases like Lukumi Is there an official
purpose to disparage a religion Here there
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very much is Thats you know everything
that the President has said and that the order
itself embodies Thats our fundamental
problem
JUSTICE BREYER What do you think -shy
its a -- its a -- its still something Im -shy
Im thinking about perhaps to the side but
the statute you point to one of the ones that
is stronger for you There are obviously
objections to what youre saying in quite a few
briefs all right but the one that you talked
about it does say you have to have an
interview with a consular official if the
person is from a country officially designated
by the Secretary as a state sponsor of
terrorism It does say that
So theyll say but we do have that in
respect to everyone under the exception So
there isnt much problem Weve gone beyond
that in respect to other people All right
Take their argument for a moment
Because my question is which I
couldnt find in the briefs is is it true -shy
Im just taking what they say -- that really
that isnt so they dont publicize it they
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havent put forth a guidance people dont know
they can come in and qualify for this
And if it turns out that that is
something that is important to the lawfulness
of the order because there are many many
categories there -shy
MR KATYAL Right
JUSTICE BREYER -- what do we do
MR KATYAL So two things Number
one this waiver process has excluded -- and
you have this in the PARS Equality brief at
page 14 A 10-year-old with cerebral palsy who
wants to come to the United States to save her
life and she cant move or talk The
10-year-old was denied a waiver Justice
Breyer
He says theres 430 people who have
gotten waivers Theyve never told you the
denominator and theres no publication of this
process and how -- how often it is And the
data that we do have suggests as a matter of
percentages its very weak
Just to give you some evidence of
that just the State of Hawaii has gotten about
1000 letters from people most of which say
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were not even getting waivers on the like
JUSTICE GORSUCH That -shy
MR KATYAL Weve heard very few
instances -shy
JUSTICE GORSUCH -- raises a question
of remedy for me
MR KATYAL Yes
JUSTICE GORSUCH We have this
troubling rise of this nationwide injunction
cosmic injunction -shy
MR KATYAL Yeah yeah
JUSTICE GORSUCH -- not limited to
relief for the parties at issue or even a class
action
MR KATYAL Right
JUSTICE GORSUCH And near as I can
tell thats -- thats a really new development
where a district court asserts the right to
strike down a -- a federal statute with regard
to anybody anywhere in the world
MR KATYAL Yeah
JUSTICE GORSUCH What -- what do we
do about that
MR KATYAL Obviously the injunction
here has been trimmed by this Court itself and
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others And I do think -- I -- I share your
impulse Justice Gorsuch Thats something
that I think lower courts are debating right
now in a number of different contexts like the
contraception case and the like
I think this case is the poorest
example to get into it because of United States
versus Texass point which is this is an
immigration case and Article I Section 8 puts
Congress in the drivers 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 doesnt make a
tremendous amount of sense It would almost be
an advisory opinion
Our fundamental point to you though
is that Congress is in the drivers seat when
it comes to immigration and that this
executive order transgresses the limits that
every President has done with this proclamation
power since 1918 And to accept it here is to
accept that the President can take an iron
wrecking ball to the statute and pick and
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choose things that he doesnt want for purposes
of our immigration code That cant be the law
of the United States
CHIEF JUSTICE ROBERTS Take five
extra minutes Okay
MR KATYAL Okay
(Laughter)
CHIEF JUSTICE ROBERTS You dont have
to
(Laughter)
MR KATYAL Well if there are -- if
there are any other questions Im happy to
take anything Okay Thank you
CHIEF JUSTICE ROBERTS Thank you
counsel
Five minutes for rebuttal General
REBUTTAL ARGUMENT OF GENERAL NOEL J FRANCISCO
ON BEHALF OF THE PETITIONERS
GENERAL FRANCISCO Mr Chief -- Mr
Chief Justice and may it please the Court
I -- I really do have just a few quick
points unless Your Honors have additional
questions
Justice Breyer I did want to respond
in more detail to your question about how the
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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
the waiver -- the visa officer first determines
whether the person is otherwise admissible
under other provisions of the INA
If theyre inadmissible you never
even get to the proclamation Then for those
people who are not inadmissible under other
parts of the INA like 1182(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 youre not subject to an exception
then the consular officer him or herself
turns to the waiver provision and applies the
criteria of the waiver provision
JUSTICE GINSBURG How do you deal
with the -shy
GENERAL FRANCISCO So it does get
applied in every single case
JUSTICE GINSBURG How -- how do you
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deal with the example that was brought up of
the child with cerebral palsy
GENERAL FRANCISCO Your Honor the
waiver is built to address those issues I am
not familiar enough with the details of that
case to tell you what happened in that
particular case But thats what the waiver
provision -shy
JUSTICE BREYER But thats -- thats
you see -shy
GENERAL FRANCISCO -- is intended to
address
JUSTICE BREYER Youve read the
briefs as have I All right Now there are
some that lists about 10 or 15 instances like
the cerebral palsy One has Parkinsons Then
theres another brief that lists all the people
who are professors scholars at universities
and there are a lot And -- and then there are
people they list the students from these
countries a lot
GENERAL FRANCISCO Yeah
JUSTICE BREYER And then the business
community lists a -- a whole bunch and says my
goodness they have been unable to get -- we
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dont know whats going on
And then they say Well whats going
on is nothing is going on
GENERAL FRANCISCO Well Your Honor
-shy
JUSTICE BREYER Now I dont -- Im
not taking sides on that Im just saying I
dont know
GENERAL FRANCISCO Right And the
principal purpose of the proclamation is of
course to 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 Im 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
admissible
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 dont and doesnt tell us we
cannot intelligently make the admissibility
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determination
Third Id like to address the
1152(a)(1)(A) point about nationality-based
discrimination
JUSTICE SOTOMAYOR General could you
stop just one second
GENERAL FRANCISCO Yes Your Honor
of course
JUSTICE SOTOMAYOR I for one am like
Justice Breyer concerned about is this window
dressing or not Whats in place to ensure
its not What are you personally doing to
represent to us that it is in fact a real
waiver process -shy
GENERAL FRANCISCO Your Honor State
Department consular officers automatically
apply the waiver process in the course of every
visa application And they are doing that
which is why there have been -- and I looked at
our brief -- 430 waivers that have been issued
since -shy
JUSTICE SOTOMAYOR Have you bothered
-shy
GENERAL FRANCISCO -- the
proclamation was issued
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JUSTICE SOTOMAYOR -- to look to see
if there are reasons for all of those peoples
exclusions
GENERAL FRANCISCO Your Honor I
cannot claim that I have looked into every
individual case
JUSTICE KENNEDY Could you make your
1152 point
GENERAL FRANCISCO Yes Your Honor
1152(a)(1)(A) addresses one thing the issuance
of immigrant visas It doesnt address the
broader question over whether somebodys
allowed to enter in the first place
Thats governed by 1182 including
1182(f) So essentially 1182 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 1152(a)(1)(A) is
one of the rules that governs how we distribute
visas amongst that group thats eligible to
come in
And its not just nationality-based
distinctions that it applies to It also
applies to things like place of residence So
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once you have that universe of eligible people
1152(a)(1)(A) governs how you distribute them
But lets 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 non-immigrant visas to people who
arent allowed to enter but we wouldnt have
to allow anyone to enter and we wouldnt have
to issue any non-immigrant visas
So the bottom line is I think theyre
simply wrong on that case -- on that issue
My final point has to do with my -- my
brothers 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 25 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
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says its about Foreign policy and national
security And we would ask that you reverse
the court below
CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1109 am the case
was submitted)
Heritage Reporting Corporation
83Official
1 998 [1] 6619 39914 44111417 51581120 arise [2] 5725 584
1 [1] 6910 A 52101118
ALITO [16] 432124 446813 45
around [3] 4814 6313 6510
Article [2] 136 749 1000 [1] 7225 am [3] 116 32 826 15 4611 561119 6472024 65 aside [1] 4414 10 [4] 642125 6516 7715 Abilene [1] 5425 21221 669 asks [3] 169 519 7614 10-year-old [4] 5235 721215 ability [1] 6220 allies [2] 73 1719 assert [2] 5111 7811 1002 [2] 116 32 able [2] 2210 5111 allow [3] 413 4420 8110 asserts [1] 7318 100 [4] 353 407 4813 5310 above-entitled [1] 114 allowed [3] 178 8013 819 associate [1] 2211 11 [1] 4410 abroad [1] 2113 allowing [1] 5318 associated [1] 812 1109 [1] 826 absolute [1] 428 almost [8] 116 1556 30712 66 assume [4] 19811 2016 813 1152 [7] 4017 494 5916 6022 61 absolutely [12] 4114 4213 4520 1518 7416 assumption [3] 3016 3724 513 1421 808 49217 5810 6112 622 63220 Alomari [2] 5222 attitude [1] 227
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1361 [1] 432
act [4] 128 177 421 4322
acting [1] 313 analysis [3] 914 1624 7013
animus [1] 1710 B
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25 [2] 112 8118
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583 77412 792 8011
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60131315
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4 19
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23 5118 7518
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Heritage Reporting Corporation Sheet 1 1 - big
84Official
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85Official
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denominator [1] 7219
Department [3] 120 761 7916
departments [1] 691
depending [1] 6312
depends [1] 7816
described [3] 811 2614 535
designated [2] 518 7114
despite [1] 1214
detail [3] 1020 274 7525
detailed [3] 101825 1110
details [1] 775
determination [2] 815 791
determine [4] 424 78 819 7817
determined [1] 714
determines [1] 766
developing [1] 5722
development [1] 7317
difference [2] 2724 631
different [10] 822 3512 4016 53
16 5511 6622 6721 707 744
816
difficult [2] 1716 581
diplomatic [5] 324 18121518
3313
direct [3] 5415 5534
direction [2] 5512 685
directly [6] 5010 512323 52125
5413
disagree [1] 4610
disagreed [1] 813
disavowing [2] 63618
disclaimed [1] 6223
discretion [1] 472
discriminating [1] 605
discrimination [17] 394 401722
4825 49423 502 5917 60913
22 612 6324 651520 676 794
disease [1] 3119
dislike [1] 2117
disparage [1] 7025
distinctions [1] 8024
distinguish [1] 1514
distribute [2] 8020 812
district [1] 7318
Doe [1] 88
doing [8] 63 229 2514 5015 54
519 791218
domestic [2] 1913 6710
DONALD [2] 13 35
done [9] 1924 2412 267 354 44
21 608 6628 7422
doom [1] 4615
dot [1] 1612
down [4] 256 6710 6912 7319
dressing [3] 35921 7911
drivers [3] 696 741019
dropped [1] 46
duty [2] 276 5625
duty-bound [1] 2423
E earlier [2] 2713 687
easily [1] 6224
easy [1] 197
economic [1] 463
economics [1] 5323
effectively [1] 281
eight [1] 6519
either [2] 1112 265
elected [2] 162 2819
eligible [3] 801621 811
embodies [1] 713
embodiment [1] 2813
embraced [1] 6225
emergency [5] 4023 4115 5710
59813
emerges [2] 161416
employed [1] 3123
employer [1] 6516
enacted [1] 4322
encompasses [1] 6513
end [6] 162022 2314 4557 46
22
ends [2] 4614 478
engaging [1] 825
engineers [2] 532224
enough [4] 415 68 583 775
ensure [2] 2623 7911
enter [7] 1617 2114 409 6220
8013 81910
entire [1] 810
entirely [1] 544
entitled [1] 6525
entity [1] 6312
entry [6] 314 414 399 4013 44
11 605
equal [1] 6525
Equality [2] 523 7211
equipped [1] 7016
ESQ [2] 122 26
essentially [3] 714 1325 8015
establish [1] 4517
established [1] 3116
Establishment [12] 1320 1914
206 2121018 2225 4924 68
1112 6912 7020
ET [2] 147
evaluating [1] 7014
evaluation [1] 267
even [20] 1310 17916 19811 25
11 4120 4716 5319 553 5824
5910 6621 679 6820 691522
73113 7610
everybody [2] 2123 6524
everyone [1] 7118
everything [2] 2725 711
evidence [2] 6624 7223
exact [4] 3616 4217 5314 5517
exactly [12] 625 266 4313 4522
535 57515 62817 638 64221
example [14] 86 4024 455 515
24 522 5521 587 629 6515 67
17 6815 747 771
examples [2] 312 5313
exception [7] 92123 1120 3624
7118 761417
exceptions [2] 302023
exclude [2] 2914 6720
excluded [6] 910 2017 3220 33
1217 7210
exclusion [2] 127 1625
exclusions [1] 803
exclusively [2] 661518
executive [23] 715151618 14
10 23712 24814 2813 391 46
15 471415 5311 5921 602 61
16 621112 69923 7421
exercise [4] 206919 2218
exercised [1] 5311
exert [1] 3313
exerts [1] 324
exigency [1] 572
expect [1] 2424
explore [1] 420
expressing [2] 510 356
extensive [1] 151
extent [1] 4311
extra [2] 3922 755
extreme [8] 514 1919 205 2314
17 255 31912
eyebrows [1] 656
F face [1] 252
facial [1] 2510
fact [8] 10311 133 2623 6512
6714 6919 7913
factors [1] 5515
facts [1] 1620
factual [1] 583
fail [1] 405
failed [4] 315 914 301 3924
failing [1] 3918
fails [1] 99
failure [1] 96
fair [1] 55
faith [3] 277 502 6721
fall [7] 323 924 1312 32618 43
24 6617
falling [1] 3412
falls [3] 44 3814 6615
familiar [1] 775
families [1] 3419
family [5] 2212 3119 4566 53
18
far [5] 1413 3217 4121 513 59
15
fast-moving [1] 4024
faster [1] 3923
father [1] 2018
favor [1] 1510
federal [1] 7319
fell [1] 920
few [4] 326 7110 733 7521
final [1] 8114
find [4] 244 351616 7123
findings [1] 6018
finds [1] 4411
fine [3] 2521 2925 7615
fine-grained [4] 4524 468 4818
5020
finish [1] 1714
fire [2] 2318 6517
first [21] 14310 2421 272 283
3225 39614 427 4317 4721
556 6021 619 671622 699 76
614 801317
fit [1] 656
five [6] 3124 64131313 75416
flat [7] 4314 4616 4817 55220
564
flatly [3] 59316 602
flexible [1] 418
Focus [1] 321
folks [1] 5225
follow [1] 178
following [1] 312
fomenting [1] 591
footnote [1] 3614
force [1] 4316
forces [1] 6920
forecloses [1] 1517
foreign [8] 42 825 106 129 31
15 462 8018 821
forever [1] 6221
Forge [2] 212225
forget [1] 5610
form [1] 1916
forth [2] 618 721
forward [2] 132224
founding [1] 6718
four [1] 7814
Fourth [1] 263
FRANCISCO [117] 119 239 37
810 417 616112225 91218
10172124 115818 1231624
13418 142122124 1518 164
1821 171323 182924 1925
2081923 21321 228141722
2310162124 243111519 268
Heritage Reporting Corporation Sheet 3 danger - FRANCISCO
86Official
151825 27172022 28223 292
3021 3110132125 32381315
2225 334811182225 3447
1025 35101422 361581012
1925 3731320 381920 7517
19 7623 7731122 7849 797
1524 8049
frankly [1] 377
free [7] 2069101924 221818
freedom [1] 6523
friend [5] 395 4319 4615 532
623
full [1] 1520
fundamental [5] 2811 296 6522
713 7418
future [2] 161 1814
G game [1] 1325
gas [1] 5425
GEN [3] 119 239
General [127] 119 3810 417 57
23 616112225 91218 1017
2124 1125818 1231624 134
1618 142122124 1518 16418
21 171323 1825924 1925 20
281923 21321 228141722
23310162124 243111519 25
25 268151825 2713172022
28223 292 3021 31101321
25 323813152225 334811
182225 34471025 35101422
3615810121925 3731320
38191920 624 75161719 76
23 7731122 7849 79571524
8049
Generals [1] 6824
George [1] 6719
gerrymander [1] 6614
gets [1] 162
getting [4] 611922 731 7414
GINSBURG [4] 48 445 762125
give [8] 711 86 151225 5124
569 6821 7223
given [10] 917 1413 1718 1825
1915 241325 3219 691819
gives [2] 616 2224
giving [3] 311 539 606
goodness [1] 7725
GORSUCH [14] 5025 511820 52
81417 677 73258121622 74
2
got [4] 2714 357 4334
gotten [2] 721824
governed [1] 8014
government [14] 825 92 109 12
1523 1322 1524 222 264 278
10 3520 514 7823
governments [2] 3314 3714
governs [2] 8020 812
great [4] 248 274 812124
greater [1] 5910
greatest [1] 5012
greenhouse [1] 5424
ground [3] 223 401 5723
grounds [2] 624 6913
group [2] 5525 8021
guess [2] 1417 542
guidance [3] 3424 352 721
H Half [2] 4616 476
Hamdan [3] 4113 577 5915
hand [1] 1818
happened [1] 776
happens [2] 1718 4621
happy [1] 7512
harbored [1] 1710
hard [1] 1520
hardship [3] 31789
harkens [1] 699
harmed [1] 5123
harmful [2] 824 95
harmonize [1] 4425
Harvard [1] 3419
hate [1] 2818
hateful [2] 281820
hatred [1] 167
HAWAII [4] 17 36 5125 7224
head [2] 23812
hear [1] 33
heard [7] 1523 39519 453 4614
532 733
hearing [1] 3519
heart [6] 179 181921 2119 59
24 6716
hearts [3] 179 182021
heated [1] 2617
heightened [1] 514
help [4] 421 721 87 2523
herself [1] 7618
hire [1] 2318
history [6] 824 1025 1111 303
4
holds [1] 1814
holistic [1] 914
home [2] 811 7823
Homeland [1] 313
honestly [2] 176 2724
Honor [38] 417 61319 71 810 9
12 1018 11511 12325 1318
1621 1715 1810 19621 2010
214922 2420 2625 28324 32
923 36125 3810 4520 507 77
3 784 79715 8049
Honors [1] 7522
hoping [1] 7814
however [3] 419 113 2513
humanitarian [2] 1121 464
hypothetical [15] 151323 173
187 191620 205 2323 3812
412223 4223 437 4912
I is [1] 1613
ID [1] 433
idea [1] 454
ideal [2] 81 303
identified [2] 5518 5713
identify [1] 824
identifying [2] 4219 4811
III [1] 136
illustrate [1] 87
illustration [1] 5012
image [1] 464
imagine [7] 2913 412425 5611
19 598 613
imbued [1] 128
immediate [1] 419
immigrant [3] 5923 8011 817
immigrants [3] 11161719
immigration [10] 412 318 4518
4911 67151720 74920 752
impact [1] 4915
impacted [2] 52125
impacts [1] 4919
impediment [1] 4117
implement [3] 422 721 815
important [7] 1324 531 5923 61
15 696 7011 724
importantly [2] 517 6914
impose [3] 617 103 457
imposed [3] 2522 609 6614
imposes [1] 91
imposing [1] 8119
improve [1] 718
impulse [1] 742
in-person [3] 434 5521 562
INA [11] 42225 618 721 816 45
19 5017 5322 76812
inaccurate [2] 3912 561
inadequate [1] 5617
inadmissible [2] 76911
including [9] 320 155 251819
2917 3911 4217 476 8014
incomplete [1] 239
inconsistent [2] 523
indeed [1] 591
independent [1] 2622
indicates [1] 4624
indication [1] 5510
individual [4] 311 781522 806
individualized [4] 3915 4225 46
8 595
individuals [2] 78 322
ineffective [1] 2912
infected [1] 6911
inference [2] 66713
infiltration [1] 5613
information [20] 31625 423 77
23 81319 97 302 3315 3517
3913 407 414 5617 5825 78
1317
inhibition [1] 6219
initial [1] 253
injunction [5] 217 2223 73910
24
injury [1] 2124
INS [1] 2216
instances [2] 734 7715
Instead [5] 3921 4617 4817 62
25
intelligence [3] 406 414 428
intelligent [1] 815
intelligently [1] 7825
intended [1] 7711
intention [1] 8119
interests [4] 1121 315 701115
international [1] 6711
interpretation [1] 604
interrupt [1] 412
interview [4] 435 5522 562 71
13
introduced [4] 4120 421011 49
20
introduces [1] 426
invidious [1] 668
involve [1] 1625
Iran [2] 94 6424
Iraq [3] 923 1010 2917
iron [1] 7424
irrelevant [2] 2822 291
irrespective [1] 147
Islam [1] 8123
isnt [5] 3520 3813 4710 7119
25
Israel [4] 1617 1718 181516
issuance [3] 495 5918 8010
issue [10] 1219 16101011 4911
5511 7313 8171113
issued [7] 54 89 1110 4716 78
22 792025
issues [6] 126 283 533 63518
774
item [1] 4510
itself [5] 2910 69819 713 7325
J Jane [1] 88
Jews [2] 166 242
job [1] 2515
join [1] 2213
joined [1] 576
Judge [2] 4022 612
judges [2] 2623
judgment [6] 43 4524 4717 48
22 7019 8019
judgments [4] 4019 4318 5020
5312
judicial [1] 1620
jump [1] 664
jurisdiction [1] 136
jurisdictional [5] 122413 133
533
jurisprudence [1] 1914
Justice [217] 120 3310 48 56 6
272023 9817 10111922 112
791525 12111721 1311516
19 1431722 151222 16519
171122 18151125 193 2024
1521 21115 2259151921 23
31117222225 2441216 2525
269131619 2712182123 28
1625 30691122 31111422 32
1411141624 3326101620
23 3425812 351111523 363
Heritage Reporting Corporation Sheet 4 FRANCISCO - Justice
87Official
69111720 372111822 382
17182125 404 41182024 42
5 432124 44346813 4515 46
111723 471320 4861020 49
6131421 5015212325 5118
20 52381417 5421218 5611
1924 575619 586121620 60
1220 616101720 6218 63414
1722 642672024 6521221
669 677 68618 6924 709 715
72815 73258121622 742 75
48142024 762125 7791323
786 79591022 8017 824
justiciability [1] 137
justifications [1] 663
K KAGAN [26] 131619 1431722
151222 16519 171122 1815
1125 193 2613 2712182123
5023 5421218 709
Kagans [1] 2323
KATYAL [79] 122 26 38212224
4015 41711 42413 4323 441
1218 4520 46131925 47325
489 49291725 504725 511
141922 52131620 5431117
21 561821 574 585151922
6020 618111922 6222 638
1620 64171923 6514 669 67
713 68612 693 701017 7279
733711152124 75611
keep [3] 241 258 4215
KENNEDY [19] 10111922 204
1521 2220 281625 461723 47
1320 48610 5624 575 807
Kennedys [1] 119
kept [1] 264
kill [1] 4011
kind [8] 142022 1612 186 1913
5415 5924 7012
kinds [1] 165
King [1] 6719
knock [1] 6114
knows [4] 181319 3525 7823
L land [1] 221
language [1] 4325
laptop [1] 4920
large [1] 5922
later [2] 4119 5911
latest [1] 6211
Laughter [5] 188 3411 423 757
10
LAVAS [1] 4023
law [4] 314 3720 403 752
lawfulness [2] 3723 724
laws [2] 411 318
layer [1] 519
lays [1] 273
learns [1] 811
least [1] 1213
leave [1] 512
left [2] 3015 6519
legality [1] 378
Legislation [3] 3923 4121 422
legislative [1] 4117
legitimacy [1] 2511
legitimate [1] 1322
Lemon [2] 67925
less [1] 3112
letters [1] 7225
level [2] 423 77
lies [1] 4316
life [1] 7214
light [1] 5722
likelihood [1] 5525
limit [3] 51 4423 4512
limitations [1] 6017
limited [1] 7312
limits [4] 420 64 545 7421
line [4] 107 2524 4510 8112
lines [1] 699
Lisa [1] 3420
list [10] 47 911 3115 64141625
665610 7720
listed [1] 919
lists [3] 77151724
litigants [1] 266
little [2] 613 141
local [1] 2817
long [3] 415 577 678
long-term [2] 3117 601
longer [2] 101419
look [16] 724 2622 3519 4113
4715 552 6238 6510 661220
671 6822 7021 801
looked [7] 5713 624 3022 6420
7919 805
looking [1] 6823
lot [5] 612 145 167 771921
love [1] 8122
low [1] 916
lower [1] 743
Lukumi [3] 659 682 7024
M made [7] 1215 14912 286 689
811820
main [1] 720
maintain [1] 717
majority [6] 31920 251920 29
15 491
Mandel [18] 1321 1410131822
158141619 16192223 17116
201125 2511 2621
Mandels [1] 1723
many [5] 3013 7255 812222
mark [1] 2811
marks [1] 296
material [1] 261
matter [5] 114 1917 259 297 72
21
mayor [1] 2817
McCreary [3] 159 6399
mean [9] 1820 412 4824 5720
6215 6411 6715 6810 814
meaning [1] 299
means [2] 144 6514
meant [2] 421 103
measures [1] 5615
medical [1] 3421
meet [4] 511 1420 331820
member [3] 2425 251 3119
members [2] 1610 2213
mentioned [2] 49 5616
merits [4] 1214 1312 514 537
message [2] 2124 224
met [1] 321
might [13] 620 181314 2218 26
12 356 4912 5023 511 5222
584 655 7413
migration [1] 458
military [1] 4821
million [2] 325 3618
millions [2] 6733
minimum [11] 316 423 7722 8
218 96 30123 7816
minutes [2] 75516
misunderstanding [1] 4912
moment [1] 7121
month [1] 413
months [1] 488
most [18] 1018 1110 1324 2912
25 352 361313 37141416 53
1 5922 6115 6421 6914 7015
7225
move [3] 107 2523 7214
moved [1] 6224
moves [1] 4212
much [8] 1120 2025 285 446 46
7 6620 71119
multi-agency [3] 312 1921 29
22
Muslim [19] 321 251820 2911
1315 4911619 6410121416
17 65314 663 811922
Muslim-majority [2] 156 2916
Muslims [5] 2715 6421 661819
8120
must [4] 2418 3111 325 7411
N narrow [1] 419
nation [1] 5924
national [14] 43 520 105 1121
129 1323 176 184 571 7011
1518 8019 821
nationality [7] 39424 401721
4315 59318
nationality-based [4] 609 611
793 8023
nationals [4] 317 40813 4415
nationwide [3] 217 2223 739
naturalization [1] 7411
nature [1] 102
nay [1] 416
NEAL [3] 122 26 3822
near [1] 7316
necessarily [1] 4711
necessary [4] 37911 472224
need [6] 420 1717 2622 304 31
20 6113
needed [7] 31725 423 77 819
781217
needs [1] 544
negative [2] 2124 226
Neither [2] 74 4212
neutral [6] 154 1923 2119 2517
292324
never [7] 359 394 4120 5021 72
18 76916
new [4] 3512 4517 5713 7317
next [3] 71 63623
Ninth [2] 262 643
nobody [2] 3422 3525
NOEL [5] 119 239 38 7517
non-immigrant [2] 81811
non-politically-correct [1] 6917
non-reviewability [2] 12114
none [1] 4716
Nope [1] 701
nor [1] 75
normal [1] 3220
nothing [8] 3717 461321 478
493 5713 6023 783
notice [1] 3524
noticed [1] 3018
number [11] 157 2522 329 34
15 361314 6524 6714 694 72
9 744
numbers [2] 3313
O oath [3] 28724 295
objections [2] 6616 7110
objective [4] 621 645 6625 70
22
observer [7] 621 6458 653 66
25 679 7022
observers [1] 1823
obviously [2] 719 7324
occupations [1] 5321
occurred [1] 6825
offer [1] 4312
office [2] 288 3622
officer [3] 7661318
officers [2] 764 7916
official [2] 7024 7113
officially [1] 7114
often [3] 3716 7220 8018
Okay [11] 3114 332323 3412 35
15 3718 5412 6123 755613
omits [2] 319 2915
Once [5] 814 1321 2620 477 81
1
one [39] 41113 52021 915 10
13 114 1220 13524 1616 17
19 2215 2314 278 2913 3015
3312 358 373 4013 4218 51
24 6015 6220 6311 6422 6522
6714 694 71811 7210 7716
7969 801020 8123
ones [3] 518 6511 718
only [17] 322 414 1116 1519 21
Heritage Reporting Corporation Sheet 5 Justice - only
88Official
13 2914 317 329 3423 3524
4218 5514 626 651317 661
6812
opinion [3] 357 577 7417
Opinions [1] 288
oral [5] 114 225 38 3822
order [31] 91 1411 2425 253 29
1921 30181923 3314 3724 39
1920 4614 47714 4822 539
5921 602 6116 621112 655
13 698 712 725 7421 7812
orders [5] 2917 4616 47615 69
10
ordinary [1] 7023
organization [1] 812
other [29] 323 75 99 105 149
311724 3220 3523 416 4319
4424 4525 4714 5510 5615 58
9 656919 663 671525 6913
703 7120 7512 76811
others [2] 915 741
Otherwise [3] 2124 2210 767
ought [1] 4822
out [13] 242 258 27311 2814 35
1616 3618 588 6114 66411
723
out-of-the-box [1] 186
outcome [1] 2417
outer [1] 420
outgrowth [1] 6910
over [5] 1325 167 3615 4723 80
12
overall [1] 915
overwhelmingly [1] 1510
owes [1] 279
own [2] 6816 694
P packed [1] 612
PAGE [6] 22 3614 5011 555 62
8 7212
palsy [4] 527 7212 77216
parameters [1] 516
Parkinsons [1] 7716
PARS [2] 523 7211
part [7] 2925 59222223 601 61
15 7016
participated [1] 692
particular [15] 1016 2117 2589
408 4416 5614 57212225 58
314 664 6919 777
parties [2] 517 7313
parts [1] 7612
party [1] 5224
pass [1] 4114
passed [1] 156
past [4] 522 822 2917 503
people [32] 20121617 225 31
15 32510 3415 355524 3634
6 375 4221 4415 5523 5925
67420 703 7120 7211725 76
11 771720 8016 8118
peoples [1] 802
percent [6] 407 5920 6115 64
17 661919
percentages [1] 7222
perennial [2] 4812 5716
perhaps [2] 5817 717
period [3] 415 244 4722
permanent [1] 4518
permission [1] 523
perpetual [4] 444 4521 4612 48
5
perpetuated [1] 444
person [6] 4325 7114 767 78
1820
personally [2] 517 7912
persons [1] 5110
Petitioners [6] 1521 2410 39
7518
pick [1] 7425
pieces [1] 725
place [6] 2116 2319 7911 8013
1725
placed [1] 3916
plainly [1] 252
plaintiff [1] 5222
plaintiffs [2] 2125 536
please [4] 311 3010 3825 7520
point [23] 1624 1820 294 367
419 4215 4317 446 452 538
5415 6022 66111 68414 718
74818 7814 793 808 8114
points [1] 7522
policy [15] 43 106 129 2319 39
3 4019 4318 451821 462 50
10 5312 6310 8018 821
political [1] 128
polity [1] 601
poorest [1] 746
population [4] 491619 641518
position [1] 5017
possibility [1] 386
possibly [2] 216 2913
potentially [2] 201320
power [11] 4418 1313 4419 45
5 5310 541 5811 607 6720 74
23
practice [1] 2120
praised [1] 8123
precedential [1] 1220
precludes [1] 5710
predominantly [3] 64121316
preference [2] 456 5321
preferences [1] 5318
preliminary [1] 2621
prescient [1] 582
prescribed [1] 558
present [8] 2059 5191221 52
101119
presidency [1] 168
PRESIDENT [86] 13 345 410
14 5913 63916 712 934 11
13131822 1313 162 1758 18
6 191 2381223 257 271525
3513 3712 3834 40612 4217
101214 441121 454 472 487
11212224 4918 508918 5310
101523 54591922 561622 57
321 5810 599 607 6271216
23 632 643 6817 6951520 70
158 712 742224 811517
Presidents [8] 313 44 2421 38
15 4114 69721 704
presidential [1] 6018
Presidents [2] 4716 578
press [2] 141 6214
pressure [8] 324 91 104 1815
252223 3313 7811
presumption [1] 2710
prevent [1] 545
previously [2] 311623
principal [4] 1319 3312 376 78
10
principally [1] 298
private [4] 179 28712 625
pro-Christian [1] 223
probably [2] 3414 7415
problem [16] 261 3413 398 42
1719 481512 497 5315 5517
571216 6925 71419
problems [3] 323 2521 5721
proc [1] 1610
procedures [1] 5817
proceeding [1] 513
process [27] 51515 810 1458
1419 152 1915 2623 274 29
20 3915 5714 6815 69215 72
1020 76123 78161823 7914
17
processes [1] 3221
proclamation [55] 318 42 54 7
24 81721 92022 102121525
111023 1311 14615 161216
191718 211116 231 273519
2910 3313 381114 451617 53
11 5514 611 6217 635718 64
8 6972021 70410 7422 7610
131516 7810 7925 81525
proclamations [1] 421
proclamations [5] 823 1013 11
3 3716 6220
professors [1] 7718
Program [5] 725 56510 596
promulgated [2] 6212 6311
propose [1] 4314
protect [3] 41 2423 304
protest [1] 6718
provide [8] 31625 96 301 3315
3912 566 7812
provides [1] 72
providing [2] 5525 5825
provision [6] 1120 498 5420 76
1920 778
provisions [2] 459 768
provokes [1] 166
publication [1] 7219
publicize [1] 7125
publicized [2] 3621 374
publicly [1] 6511
publish [1] 762
purely [2] 6025 6711
purport [1] 4517
purports [1] 2919
purpose [5] 721 668 701925 78
10
purposes [4] 2216 3312 6114
751
pursuant [2] 89 7822
pursued [1] 215
pushes [1] 431
put [6] 1815 2319 351 4414 66
5 721
puts [5] 161922 6817 695 749
Q qualify [1] 722
qualms [1] 427
question [23] 612 119 1711 18
2122 3015 346 353 3810 41
16 51210 543 5724 61617 62
18 6315 7012 7122 735 7525
8012
questions [3] 5725 751223
quick [1] 7521
quite [4] 922 1915 326 7110
quotas [1] 6010
R race [1] 259
raise [1] 656
raised [1] 1222
raises [2] 6613 735
rate [1] 1524
Rather [1] 2514
rational [3] 17171824
re-upped [1] 483
reach [1] 514
reached [1] 537
read [8] 413 1418 307 3416 44
232324 7713
reading [1] 648
Reagan [8] 94 1012 113 3019
35413 3712 383
Reagans [1] 1113
real [1] 7913
real-time [1] 85
really [14] 720 81721 125 1422
1516 1821 439 4415 6617 71
24 7317 7521 814
reason [9] 132324 1423 2149
3219 339 4511 6822
reasonable [8] 1822 621 6458
652 6625 679 7022
reasons [11] 181315 3116 392
401522 4423 656 7412 802
reassessment [2] 4624 475
REBUTTAL [4] 28 3819 7516
17
receives [1] 289
recent [1] 522
recently [1] 46
recognition [1] 8115
recommendation [3] 153 183
1922
recommendations [2] 319 16
Heritage Reporting Corporation Sheet 6 only - recommendations
89Official
11
recommended [2] 314 2523
red [2] 5011 629
reenter [2] 63723
reexamined [1] 4618
referring [1] 524
reflect [1] 822
reflects [2] 42 101
refuse [1] 251
refused [1] 265
regard [2] 4825 7319
regime [1] 597
regularity [1] 277
rejected [2] 3920 4313
rekindled [1] 628
relatively [1] 197
relatives [1] 2017
relief [1] 7313
religion [6] 211720 259 6525
684 7025
religious [7] 226 651523 6613
1416 675
rely [1] 298
remedy [1] 736
remember [2] 3616 6816
removed [2] 4118 516
repetitive [1] 3013
reply [2] 3612 555
report [2] 462022
reporting [4] 823 402 479
represent [4] 981318 7913
representing [1] 673
required [3] 132 402 4711
requirement [2] 4710 5521
requires [1] 3721
resentment [1] 167
reside [1] 3118
residence [1] 8025
residual [1] 4214
resign [1] 251
respect [13] 945 2120 4020 42
23 4316 529 5513 5614 5825
6124 711820
respond [2] 418 7524
Respondents [5] 1823 27 21
12 3823
response [2] 1320 376
responses [5] 2420 271 3223
3610 371
responsible [2] 411 2413
rest [3] 451 5410 6018
restrictions [3] 315 617 6717
resulted [1] 152
reticulated [3] 4524 55816
reverse [1] 822
review [10] 312 519 1620 1922
2419 2922 5625 5714 6915
reviewability [1] 1219
reviewed [1] 262
rid [2] 531919
rights [2] 51811
rise [1] 739
risk [2] 176 435
riskiest [1] 79
ROBERTS [38] 33 1125 121121
131 309 381821 404 411824
425 4820 4961421 501521
5719 58121620 6012 61610
1720 6218 634141722 7548
14 824
robust [2] 4310 5622
rule [2] 127 7411
rules [1] 8020
run [1] 508
S safe [2] 4215 488
safest [1] 74
sake [2] 19912
Sale [4] 1212 53233
same [15] 920 1410 2824 349
3547 39819 5214 571215 63
10 658 685 6911
sanctions [2] 9125
satisfies [2] 1312 5515
satisfy [3] 171621 3918
save [1] 7213
Savings [1] 551
saying [13] 63 226 4025 426 46
12 5413 635 683 701221 71
10 787
says [28] 16516 237 241 3024
24 319 35824 4115 462020
47721 48241324 5224 5917
604 69810 7010 7217 7410
7724 821
scenario [1] 256
scheme [2] 55916
scholars [3] 2211 3418 7718
score [1] 916
scrutiny [1] 1717
seat [3] 696 741019
second [9] 1216 293 376 3917
557 6724 698 7813 796
second-guess [1] 7018
Secondly [1] 255
secretaries [1] 1924
Secretary [3] 314 524 7115
section [2] 547 749
Security [12] 313 43 105 129
1323 176 184 70111518 80
19 822
see [8] 63 1419 261 3214 367
4415 7710 801
seek [1] 3210
seeking [1] 399
seeks [1] 824
seems [5] 2724 3414 5414 581
666
seen [2] 10815
send [1] 3519
sense [6] 823 5520 5635 7014
7416
sent [1] 223
Sentelle [2] 4022 613
sentences [1] 1014
September [1] 8118
seriously [1] 5818
set [5] 6517 716 1620 2711
sets [1] 8015
seven [1] 322
several [2] 4525 5114
severe [1] 5614
shall [2] 1617 5917
share [3] 265 3016 741
sharing [1] 428
shes [1] 816
shouldnt [1] 623
show [1] 433
shows [3] 8814 7820
side [5] 3523 4319 6056 717
sides [1] 787
significant [2] 2811 3415
similar [1] 1123
simply [2] 52 8113
since [6] 720 1919 2914 678 74
23 7921
single [2] 5517 7624
situation [10] 58 246 3812 40
1224 536 561220 584 599
situations [1] 5722
six [1] 487
slightly [1] 816
small [5] 2521 2925 329 5320
5921
so-called [2] 2911 457
society [1] 673
software [3] 532224 589
Solicitor [1] 119
solid [1] 407
solution [4] 398 4816 5316 55
20
solutions [1] 557
solved [1] 5314
Somalia [2] 922 364
somebody [1] 765
somebodys [1] 8012
someone [1] 425
son [1] 2018
sorry [3] 56 346 8116
sort [1] 5710
sorts [1] 5319
SOTOMAYOR [37] 56 62720
23 9817 112715 202 21115
22591521 23311172225 24
41216 2525 2691619 646 68
618 6924 795922 801
Soviet [1] 4814
space [1] 5314
special [2] 512 72
specialty [1] 5321
specified [1] 397
speech [2] 2011 2219
speech-type [1] 2024
spoken [1] 6217
spokesman [1] 6214
sponsor [3] 436 5824 7115
sponsors [3] 3911 5524 568
squarely [1] 4325
staff [2] 169 627
stage [1] 2621
stake [1] 7012
standard [4] 1724 1917 251217
standing [2] 2123 221
started [1] 144
starting [1] 1624
starts [1] 3015
State [13] 524 1423 3911 436
511725 5524 567 5823 7115
7224 761 7915
statement [2] 258 3616
statements [23] 1910 285614
1820 298 5011 60141623 62
24524 63619 649 6623 688
92020
STATES [20] 11416 36 316 39
11 409 4519 465 511619 52
23 536 56713 5717 591 7213
747 753
statute [16] 53 434 4424 4720
493 5019 54710 5711 6014
16 6710 6817 718 7319 7425
statutes [1] 494
statutes [3] 618 76 4712
statutory [4] 58 511 538 5419
stepped [1] 5314
sticks [2] 3924 405
still [2] 4723 716
stop [2] 412 796
stopping [1] 227
stops [1] 1423
Stormans [2] 661221
strike [5] 482323 4910 6710 73
19
strong [3] 1511 2710 667
stronger [2] 1413 719
struck [1] 6912
struggled [1] 681
students [2] 2212 7720
studying [1] 3117
stuff [1] 624
subject [4] 1210 248 761417
subjected [1] 925
submitted [2] 8257
substance [4] 1414 1916 275
2920
succeed [4] 2014 52151821
successful [2] 45 109
Sudan [1] 2918
sufficiently [1] 916
suggest [1] 1714
suggested [3] 412 516 2220
suggesting [2] 1920 548
suggestion [1] 6824
suggests [1] 7221
summarizing [1] 239
sunsets [2] 477 482
supervision [1] 4723
supplant [1] 5423
supplement [3] 712 4421 5422
supplements [1] 4719
support [2] 217 2223
supported [1] 518
Suppose [3] 87 2816 405
supposed [1] 3423
SUPREME [3] 1115 7415
Heritage Reporting Corporation Sheet 7 recommendations - SUPREME
90Official
suspect [1] 375
suspend [1] 414
suspicion [1] 249
sweeping [3] 4420 455 541
Syria [3] 40924 4823
Syrian [1] 4013
system [6] 58 71314 431 456
4818
T ts [1] 1613
tailored [3] 1023 481
talked [1] 7111
talks [1] 6814
targeted [1] 4915
tens [1] 4011
terms [5] 51 1516 3225 338 37
7
terrorism [10] 519 82 1720 303
3912 437 5524 568 5824 71
16
terrorist [2] 517 812
terrorists [2] 314 5613
test [4] 6125 659 679 7023
tests [2] 6814
Texass [1] 748
text [8] 52 44925 493 5916 60
25 614 655
textual [1] 442
themselves [2] 5124 627
theory [4] 2371415 4922
theres [30] 612 3014 32919 33
24 34161723 3717 40161618
4291118 435 446 461320 47
8 492711 5321 57912 693 72
1719 7717
therefore [1] 1210
theyll [1] 7117
theyve [7] 2416 3117 3422 47
1819 5713 7218
thinking [2] 1516 717
thinks [2] 1812 3520
third [7] 3925 51710 5224 559
6914 792
third-party [1] 5115
thorough [1] 249
though [7] 137 1714 1912 377
4216 543 7418
thousands [1] 4011
threat [1] 5612
three [9] 511 910 2916 392 551
615 6213 693
three-part [1] 398
throughout [1] 174
tied [1] 5010
tiny [1] 157
tobacco [1] 4513
today [2] 34 233
together [2] 325 466
tomorrow [3] 63517 8116
took [2] 517 385
top [1] 6425
tough [2] 173 196
tougher [1] 6916
track [2] 392223
transfer [1] 221
transformation [2] 2812 296
transgresses [1] 7421
transparent [1] 273
treatment [3] 3122 3421 6525
tremendous [1] 7416
trimmed [1] 7325
troubling [1] 739
true [4] 2121 3425 4616 7123
truly [1] 1725
TRUMP [3] 13 345
truth [1] 2711
try [4] 613 106 596 7814
trying [4] 3421 416 4314 526
turn [3] 1316 294 4510
turns [3] 723 761319
tweeted [2] 6213 6916
two [18] 1014 1519 2420 28319
292 3423 3524 36210 3711
401516 557 6517 6713 729
type [3] 2011 2219 4914
types [4] 105 2157 5715
typical [1] 823
U UN [1] 1817
US [3] 525 464 674
UARG [1] 5424
ultimate [1] 4116
unable [2] 4125 7725
unconstitutional [1] 252
under [20] 4424 816 1313 2025
2511 276 288 2924 3815 433
496892123 5325 7118 768
11
undermine [2] 2510 2719
understand [9] 135 1520 2611
3623 375 4214 4910 528 65
21
undo [1] 607
undone [1] 608
undue [2] 31611
uniform [1] 7411
Union [1] 4814
unitary [2] 236 6923
UNITED [20] 11415 35 316 39
10 409 4518 465 511519 52
23 536 56713 5717 591 7213
747 753
universe [2] 8016 811
universities [1] 7718
university [3] 202224 5125
unlawful [1] 391
unless [2] 1724 7522
unlike [1] 4714
unpack [1] 613
until [1] 41
up [10] 715161617 8814 534
6417 771 7820
urge [1] 138
uses [1] 3920
using [1] 6719
V valid [1] 88
validly [1] 7821
Valley [2] 212225
values [1] 6522
variant [1] 1523
variety [1] 671
vast [5] 31920 251920 2914
vehement [1] 162
versus [2] 36 748
vet [1] 317
veto [1] 4510
vetting [18] 51415 71313 3911
15 4225 469 481518 571824
5817 595 6815 78151822
videos [1] 6214
view [2] 286 5421
viewing [1] 621
views [1] 465
vindicate [1] 518
violated [1] 5916
violates [2] 395 614
virtually [1] 53
virulent [3] 1615 193 6213
virus [1] 588
visa [16] 510 725 899 3622 55
2122 56510 595 606 7656 78
21 7918
visa-processing [1] 589
visas [9] 495 59192023 8011
21 817811
visit [1] 3118
visited [1] 521
vituperative [1] 2818
vote [1] 1816
W Waiver [25] 725 1120 3322 341
37825 38666 56510 595 72
1015 7612361920 7747 79
1417
waivers [6] 511 3025 3613 72
18 731 7920
wanted [1] 6916
wants [3] 231820 7213
war [1] 1720
Washington [3] 1112022
wavelength [1] 349
way [12] 1220 135 181617 239
245 2613 4310 4424 475 67
15 816
ways [1] 1514
weak [1] 7222
weapons [1] 4010
website [1] 762
Wednesday [1] 112
week [3] 236 4133
whatever [6] 1416 2319 247 27
7 2821 291
whenever [1] 4410
Whereupon [1] 826
whether [13] 76 816 144 1589
284 4018 4723 571 6219 767
7818 8012
whos [2] 525 702
whole [3] 713 6922 7724
wide [5] 4918 5758 633 671
will [3] 3819 4214 4624
Williamson [1] 5424
willing [3] 19811 5222
window [3] 35921 7910
wiped [1] 588
within [8] 44 1313 32618 3413
3815 4325 7615
without [3] 649 6819 7013
wonder [1] 1417
word [2] 1023 317
words [2] 149 416
work [2] 52911
working [1] 6517
works [2] 87 761
world [19] 32021 7410 15456
1925 25171920 2610 291523
25 488 6412 7320 8124
worlds [1] 6417
worldwide [6] 312 151 1921 29
22 5714 6815
worrisome [1] 49
worry [1] 3010
wrecking [2] 5018 7425
written [1] 3814
Y yea [1] 416
years [2] 4813 5310
Yemen [2] 364 525
Youngstown [2] 4113 5914
yourself [1] 6612
Z zero [3] 5313 566 6010
Heritage Reporting Corporation Sheet 8 suspect - zero
