[00:00:00] Speaker 01: Case number 20-5284, Shandon Panda et al. [00:00:03] Speaker 01: Appellants versus Michael R. Pompeo, Secretary, U.S. [00:00:07] Speaker 01: Department of State et al. [00:00:09] Speaker 01: Mr. Forney for the appellants, Mr. Glover for the appellees. [00:00:12] Speaker 02: So may I please record Jeffrey Forney on behalf of Shandon Panda and other appellants. [00:00:20] Speaker 02: Each plaintiff in this case is the beneficiary of an approved skilled worker H-1B petition or a derivative, a family member. [00:00:30] Speaker 02: uh, who's been, had been residing in the, and working in the United States for, uh, in many cases in many years in H1B status. [00:00:38] Speaker 02: And many of those plaintiffs have approved permanent labor certifications certified by the department of labor after their employers tested the domestic labor market for their jobs. [00:00:52] Speaker 02: And they've, for that reason, started the, [00:00:55] Speaker 02: the process for gaining permanent residency in the United States. [00:01:01] Speaker 02: But proclamation 10052 undoes all of those settled administrative determinations. [00:01:09] Speaker 02: It negates those determinations by displacing the detailed and articulated statutory framework governing the employment of the plaintiffs in H1B status. [00:01:20] Speaker 02: The proclamation doesn't simply supplement the statute [00:01:24] Speaker 02: it negates the H1B program, which the Department of State then subsequently under the proclamation redefined contrary to statute by imposing novel criteria on the program, further preventing plaintiffs from coming back to the United States to rejoin their family members or take up prior existing employment relationships with their employers in H1B status. [00:01:50] Speaker 02: Now the proclamation stepped into a space that Congress already addressed [00:01:54] Speaker 02: with respect to the H-1B program. [00:01:57] Speaker 02: And for that reason, the proclamation transcends the limitations that were set out in Trump v. Hawaii. [00:02:05] Speaker 02: And accordingly, the plaintiffs have a cause of action to challenge the proclamation as ultra various under this court decision. [00:02:11] Speaker 00: Well, counsel, you've got to remember now, we're not talking about just statute versus proclamation, because the proclamation is based on a statute and the statutory authority given. [00:02:23] Speaker 00: And the question is whether or not [00:02:25] Speaker 00: the statutory authority given in F can be squared with the pre-existing statutory authority. [00:02:34] Speaker 00: I mean, it's not, you're framing your argument as if to suggest the president is acting against a statute. [00:02:41] Speaker 00: The president is acting pursuant to a statute. [00:02:46] Speaker 00: He's acting pursuant to 8 USC 1882 F. [00:02:52] Speaker 02: Exactly. [00:02:54] Speaker 00: All right. [00:02:55] Speaker 00: You can't, both in the prior case and in this case too, you can't forget that there is presidential authority. [00:03:01] Speaker 00: The question is whether it fits. [00:03:06] Speaker 00: You can't assume that the prior visa provisions are the only things on the book. [00:03:12] Speaker 00: They're not. [00:03:14] Speaker 00: The F provision is on the book as well. [00:03:17] Speaker 00: And it says the president can find that the entry of aliens or any class of aliens would be detrimental to the interests of the United States. [00:03:25] Speaker 00: And the Supreme Court said that is broad authority. [00:03:29] Speaker 00: And assuming there's no unlawful delegation thing, you have to square it up. [00:03:33] Speaker 00: You can't just assume that what the president has done is non-statutory as against the provisions covering visas. [00:03:42] Speaker 00: That's not accurate. [00:03:45] Speaker 02: Okay. [00:03:45] Speaker 02: But that wasn't what I was arguing. [00:03:47] Speaker 00: Well, that's the way it's coming across. [00:03:49] Speaker 00: And that's what I've been concerned about. [00:03:50] Speaker 00: The president is acting pursuant to statutory authority. [00:03:53] Speaker 00: So where has he gone off base? [00:03:57] Speaker 02: He's gone off base by entering a proclamation that was entered under 212 F. We understand that, but it then runs up against another statutory provision, which Congress, excuse me, [00:04:12] Speaker 02: several other statutory provisions that are interlock interlocking and reticulated that specifically address and resolve the issue that the proclamation now overrides expressed. [00:04:23] Speaker 02: That in Trump v Hawaii, the Supreme Court said they would assume that could not be done. [00:04:29] Speaker 02: And that's what's happening here. [00:04:31] Speaker 02: Basically the president issued a proclamation that negated the H-1B program and eliminated it. [00:04:40] Speaker 02: He then subsequently, of course, handed it off to the Department of State and authorized them to come up with exceptions. [00:04:47] Speaker 02: But what they did in coming up with those exceptions is they completely redefined and revised the H-1B program to make it appear as something completely contrary to what Congress crafted in a very detailed fashion in a number of interlocking and related statutes. [00:05:06] Speaker 02: And that's the problem here. [00:05:08] Speaker 02: That's the statutory violation. [00:05:10] Speaker 02: It isn't that there wasn't a triggering mechanism. [00:05:14] Speaker 02: Of course, we understand there's 212F, allows the president to do certain things, but it has limits. [00:05:20] Speaker 02: It isn't limitless. [00:05:22] Speaker 02: And those limits were set out by the Supreme Court in Trump v. Hawaii. [00:05:27] Speaker 00: But not in 212F. [00:05:29] Speaker 00: 212F just says, would be detrimental to the interest in the United States. [00:05:34] Speaker 00: Can you imagine anything that might be detrimental to the interest of the United States? [00:05:39] Speaker 00: that would run against what has already been provided in H1B and H2B, there might be some, not where you're repeating or overriding, I understand that argument, because we were discussing it in the prior case, but where the president says, I'm aware of those provisions, but given this circumstance that we now face, it's so bad, it's detrimentally interesting in United States, and therefore I am suspending what H1B and H2B [00:06:07] Speaker 00: based on my authority under 212f. [00:06:11] Speaker 00: I don't know why that's not a perfectly reasonable argument. [00:06:15] Speaker 02: Well, there's two problems. [00:06:17] Speaker 02: One, more generally, the Supreme Court said in Trump v. Hawaii that the president could not enter an area and countermand what Congress had already, the space in which they had already resolved that issue. [00:06:33] Speaker 00: Yeah, but if the fact that the president is pointing to [00:06:38] Speaker 00: has not been considered by Congress. [00:06:41] Speaker 00: The president is saying, what I'm looking at now is detrimental to the interests of the United States. [00:06:46] Speaker 00: And a way to fix it, at least in part, is to suspend the visa provisions. [00:06:54] Speaker 00: And I have that authority by statute. [00:06:56] Speaker 00: I'm not going to redo what those visa provisions say, except I'm not going to let them be in play. [00:07:02] Speaker 00: But I have that authority under the statute. [00:07:04] Speaker 00: Otherwise, what does the statute mean? [00:07:08] Speaker 00: If it's detrimental to the interest of the United States, don't make it this case. [00:07:12] Speaker 00: I'm just trying to see how far you go. [00:07:14] Speaker 00: And I hear what you're saying about Trump, but I'm not sure that's really answering it. [00:07:18] Speaker 00: Suppose it's a circumstance that's just detrimental to the interest of the United States that has not been addressed by Congress, specifically. [00:07:26] Speaker 02: Oh, well, then that's fine under Trump v. Hawaii. [00:07:29] Speaker 00: No, wait. [00:07:30] Speaker 00: No, no. [00:07:30] Speaker 00: Not been addressed. [00:07:31] Speaker 00: It's been addressed in the H1B and H2B provisions. [00:07:36] Speaker 00: Yes. [00:07:37] Speaker 00: Not otherwise. [00:07:38] Speaker 02: Can't the president go right, but right, right. [00:07:40] Speaker 02: But our case, maybe I'm sorry, maybe I didn't make that clear in my opening statement, but all of the plainest appellants in this case, in our case, in the Panda case are H one B workers. [00:07:52] Speaker 02: Full stop. [00:07:53] Speaker 02: We're not concerned about any other programs in our case. [00:07:57] Speaker 02: We're concerned about what the president did with respect to the H one B program and negate that program and prevent the entry of [00:08:05] Speaker 02: the plaintiffs in our case who have long-standing relationships and ties to the United States through family and employment relationships. [00:08:13] Speaker 02: They have employers with whom they've been employed as H1B employees, some of them for many years. [00:08:19] Speaker 02: And on that basis, many of them have gone through the permanent labor certification process. [00:08:23] Speaker 00: Suppose the president found, and it was more than plausible, so forget the facts of the case for a minute. [00:08:30] Speaker 00: It was more than plausible that continuing with the H [00:08:35] Speaker 00: one B program at this moment in our history will seriously exacerbate unemployment in the United States and cause us serious economic harms. [00:08:46] Speaker 00: And you couldn't really, you couldn't beat us. [00:08:49] Speaker 00: So you're arguing to us, we have findings that are sufficient to show that they will seriously exacerbate unemployment in the United States and affect our economic condition. [00:09:00] Speaker 00: You mean to say you couldn't do that under the subject? [00:09:03] Speaker 02: not the way the statute's written currently. [00:09:06] Speaker 02: Couldn't do it. [00:09:10] Speaker 02: Well, but you're not actually presenting a hypothetical with respect to the H-1B program. [00:09:18] Speaker 02: That's what the president has done in this case. [00:09:20] Speaker 02: he's overridden and completely negated the H1B program. [00:09:24] Speaker 00: Yeah, no, no, no, but what I'm trying to, what I'm trying to, you all are debating whether or not he has funding to support the supposition that there is an effective employment, huh? [00:09:33] Speaker 02: No, wait. [00:09:34] Speaker 02: I'm sorry. [00:09:34] Speaker 02: I'm sorry. [00:09:35] Speaker 02: That's not our case, Your Honor. [00:09:37] Speaker 02: Oh, you don't have to. [00:09:38] Speaker 02: No, I agree with the— I thought that was in part there. [00:09:41] Speaker 02: No, I agree with the appellant in Gomez that there are not sufficient factual findings. [00:09:47] Speaker 02: And in fact, the factual findings with respect to the H-1B program as set out in the proclamation contradict the Bureau of Labor Statistics. [00:09:56] Speaker 02: So you have one part of the government contradicting the other, but that's not our case. [00:10:00] Speaker 02: We're not contesting the factual findings. [00:10:04] Speaker 02: We're saying this is just a flat contradiction to the statute, the H-1B program, and that the president has just [00:10:11] Speaker 02: negated that program, and he cannot do that under Trump v. Hawaii. [00:10:17] Speaker 02: That's our argument. [00:10:21] Speaker 04: I'm just looking at the language. [00:10:23] Speaker 04: But let me just ask you one question. [00:10:26] Speaker 04: The statute says, I'm looking at 1182F, right? [00:10:34] Speaker 04: Whenever the president, he makes his findings, he made a proclamation, he says, suspend the entry of all aliens or any class of aliens, suspend. [00:10:49] Speaker 04: Isn't that what he's essentially done here? [00:10:58] Speaker 02: No, he has not suspended. [00:11:01] Speaker 02: He's basically negated the program. [00:11:05] Speaker 02: he's made it so the program doesn't exist, despite the fact that there were already certifications done by the Department of Labor and all of our plaintiffs had approved petitions that were entered by the Homeland Security. [00:11:19] Speaker 04: I understand. [00:11:20] Speaker 04: Thank you. [00:11:20] Speaker 04: I don't have any further questions. [00:11:25] Speaker 02: So I'm out of time, unless there's any other questions from any other judges. [00:11:30] Speaker 00: Tell me again, the language in Trump that you think makes it dispositive, even though he finds something that's detrimentally interests the United States, he can't suspend, not eliminate, suspend the H-1B visa. [00:11:46] Speaker 02: So there's two sections, study from Trump v. Hawaii, 138 Supreme Court at [00:11:54] Speaker 02: 2411, there's a provision there where the Supreme Court indicated that we may assume that 1182F does not allow the president to expressly override particular provisions of the INA. [00:12:08] Speaker 02: And then relatedly, later on, on page 2412. [00:12:14] Speaker 00: 2411 was the first one? [00:12:18] Speaker 02: Yes. [00:12:19] Speaker 02: And then secondly, at 2412, a little further down, [00:12:24] Speaker 02: The Supreme Court said that they would allow the proclamation in that particular case that involved, of course, factual findings about whether there were terrorism-related grounds for excluding particular foreign nationals. [00:12:40] Speaker 02: The Supreme Court said that this is not the situation where, quote, Congress has stepped into the space and solved the exact problem, end quote. [00:12:50] Speaker 02: But that's exactly what happened here. [00:12:52] Speaker 02: Congress did step into the space. [00:12:54] Speaker 02: and spoke in very detailed and interrelated manner through several statutory provisions scattered throughout the INA that relate directly to the H-1B program. [00:13:03] Speaker 00: They stepped into that space. [00:13:05] Speaker 00: See, the thing that's so weird when you say that is that Congress has stepped into this space too, the 12th F space, and they said when the president finds that the entry of aliens [00:13:19] Speaker 00: or of any class of aliens. [00:13:21] Speaker 00: Any class would be detrimental to the interests of the United States. [00:13:25] Speaker 00: So Congress has stepped into all of these spaces, and it looks like the 12F is a larger authority than the H1B, but you want to credit H1B as being superior, and I'm not sure why. [00:13:41] Speaker 00: Judge Tatel's question to me suggests suspension is not elimination, suspension is suspension. [00:13:47] Speaker 00: and it's very different from expiring something. [00:13:51] Speaker 00: You asserted in very strong terms, no, he's just eliminated—no, he suspended it. [00:13:57] Speaker 00: But I'm not understanding how you're squaring the statute in the two provisions that you're citing. [00:14:05] Speaker 00: I don't know how they—what was the second page you gave? [00:14:08] Speaker 02: 2412. [00:14:11] Speaker 02: 138 Supreme Court 2412. [00:14:14] Speaker 02: Right. [00:14:15] Speaker 02: I'm looking at it. [00:14:19] Speaker 00: And how far down is it? [00:14:20] Speaker 00: The paragraph beginning where? [00:14:26] Speaker 02: Paragraph beginning Congress's decision to authorize. [00:14:29] Speaker 00: 2412. [00:14:33] Speaker 00: Let's be looking at different pages. [00:14:39] Speaker 00: I have no such paragraph on 2412. [00:14:42] Speaker 00: I'll look for it later. [00:14:48] Speaker 02: The pagination cuts the paragraph in half. [00:14:50] Speaker 02: So i'm sorry that the paragraph begins on that the end of 2411 continues on to 2412 but the particular quotations So does the paragraph start if anything? [00:15:01] Speaker 03: The drafting history suggests the opposite How does your paragraph begin? [00:15:09] Speaker 02: Okay, i'm sorry my paragraph [00:15:13] Speaker 02: Yeah. [00:15:15] Speaker 02: It's on 2411. [00:15:19] Speaker 02: At the end of 2411, it continues on to 2412, right? [00:15:24] Speaker 03: Okay, so it starts Congress's decision? [00:15:28] Speaker 02: Correct. [00:15:30] Speaker 03: All right. [00:15:33] Speaker 02: Well, I would say that if it's going to judge Edwards' point, that if [00:15:43] Speaker 02: 1182 F is basically supersedes everything else, which only if the condition has been satisfied. [00:15:55] Speaker 00: Well, the finding condition has been satisfied. [00:15:58] Speaker 00: OK. [00:16:00] Speaker 02: But then we still need to deal with the. [00:16:04] Speaker 02: statement in Trump v. Hawaii that says we may assume that 1182F does not allow the president to expressly override particular provisions. [00:16:11] Speaker 04: Oh, that still leaves the question open. [00:16:14] Speaker 04: That's why we're asking you this. [00:16:16] Speaker 04: It doesn't decide, it just assumes it. [00:16:19] Speaker 02: Well, that's true, but I think it's... I'm sorry. [00:16:24] Speaker 03: Because in that case, the Supreme Court went on to say that no conflict had been identified. [00:16:31] Speaker 02: That's true. [00:16:32] Speaker 02: But I think, as one of your honors pointed out in the last panel, this is a lower court, and you have to follow what the Supreme Court, I mean, even if it just suggested it. [00:16:41] Speaker 02: We don't have to make an assumption. [00:16:43] Speaker 04: No, we don't have to make an assumption that the Supreme Court does. [00:16:45] Speaker 04: We're bound by the Supreme Court's holdings. [00:16:48] Speaker 04: If the Supreme Court says, we're going to assume A because we can decide the case on the basis of B, we're still free to decide A. That's open to us. [00:17:01] Speaker 02: Well, if you're saying that the antecedent was assumed without deciding, which appears to be in this case, it's still strong dicta. [00:17:09] Speaker 02: And I think there's... It's not dicta. [00:17:11] Speaker 04: It isn't dicta. [00:17:12] Speaker 04: It's just an assumption. [00:17:14] Speaker 00: Say where Congress has stepped into the space and solved the exact problem. [00:17:21] Speaker 00: Congress hasn't solved the exact problem that we're talking about now. [00:17:26] Speaker 02: But it has it solved the exact problem. [00:17:29] Speaker 00: No, no, no detrimental to the interests of the United States. [00:17:35] Speaker 00: In the prior right in the prior right it was an apparent overlap because they had [00:17:42] Speaker 00: you can argue, they had in a way dealt with detrimental interest to the United States with respect to unemployment. [00:17:50] Speaker 00: So you could make the argument there. [00:17:52] Speaker 00: You're making a much more sweeping, you're saying F just doesn't exist in so far as 1B is concerned. [00:18:00] Speaker 02: And we're- Right, but I think your honor made the point in the last panel, which is that [00:18:07] Speaker 02: If natural interest is the trigger, okay, that's fine. [00:18:11] Speaker 02: But Congress already addressed that natural interest in this case regarding the H-1B program because it listed the conditions for domestic employment. [00:18:21] Speaker 04: That's why I focused on the word suspend. [00:18:26] Speaker 00: And you seem to be arguing it differently. [00:18:28] Speaker 00: That's why I've stopped and started pressing you. [00:18:30] Speaker 00: Go ahead. [00:18:32] Speaker 00: All right. [00:18:33] Speaker 00: Okay. [00:18:34] Speaker 00: We're done. [00:18:37] Speaker 03: All right, Council, thank you. [00:18:39] Speaker 03: We'll give you a couple of minutes in rebuttal. [00:18:44] Speaker 03: So Council, for our please. [00:18:47] Speaker 01: Thank you. [00:18:48] Speaker 01: Good morning again, I'm Matthew Glover and I represent the United States. [00:18:53] Speaker 01: Picking up off of some of the discussion that the court just had with Mr. Forney, I would emphasize that 1182F talks about suspending. [00:19:01] Speaker 01: And what the president has done here is impose limitations in addition to those that exist in the INA. [00:19:07] Speaker 01: He has tied them temporally to the pandemic. [00:19:11] Speaker 01: And as the Supreme Court noted in Hawaii, the 43- We still have the finding problem. [00:19:18] Speaker 04: Your Honor, I think- All this takes care of, all this takes care of. [00:19:21] Speaker 04: I'm not saying it does. [00:19:23] Speaker 04: but your argument is, okay, there's no override problem, but you still have a finding issue, and I'm not, you still have to have a finding. [00:19:31] Speaker 01: Yes, and the proclamation includes findings, including mentioning H-1B and Jamie's. [00:19:36] Speaker 04: I know it has findings, but that's not the question. [00:19:38] Speaker 04: The question is, are they adequate findings? [00:19:42] Speaker 01: Yes, so the Supreme Court pointed out that it's not a searching inquiry, and just to clarify what I, [00:19:50] Speaker 01: I may have mistakenly said previously, the government's position is that all of these findings are clearly factually accurate. [00:19:58] Speaker 01: These are predictive judgments and so I understood the hypothetical about something false to be if the president, you know, used incorrect math or something clearly demonstrably false, then you might say that the findings fall short [00:20:10] Speaker 01: even under the Supreme Court's limited inquiry under Hawaii. [00:20:14] Speaker 01: But as the Supreme Court noted, whether the president's chosen method of addressing the perceived risks is justified from a policy perspective, that's irrelevant to the scope of his 1182f authority. [00:20:26] Speaker 01: Here you're talking about predictive findings about the labor and labor economics. [00:20:30] Speaker 01: Imagine Congress passed a statute in the middle of COVID-19 saying, given the pandemic, [00:20:36] Speaker 01: were repealing or were, you know, barring entry under these classifications for a certain period of time because, you know, we make the findings the President's made here. [00:20:44] Speaker 01: On a rational basis review, I think that would clearly pass muster as a statute. [00:20:49] Speaker 01: The President has done at least that, and a number of prior proclamations have included very, very limited findings. [00:20:56] Speaker 01: The President, you know, had fairly fulsome findings here. [00:20:59] Speaker 01: I think the arguments attacking the findings that plaintiffs. [00:21:02] Speaker 03: Could I be clear that in the manufacturing case, the statement was made that the government had conceded that all the facts, findings appear in the proclamations, that it's not as in Hawaii where they had this study. [00:21:21] Speaker 01: Um, Your Honor, if I could clarify in Hawaii, the, the proclamation discussed a study and DHS and other agencies doing that here the president cites to, and I'll get the exact language just so that I'm not imprecise. [00:21:38] Speaker 01: The president says that the secretaries of Labor and Homeland Security quote found that the president admission of workers within several non immigrant visa categories also poses and he's talking also because he was talking about his prior proclamation also poses a risk of displacing and disavanging United States workers during the current recovery. [00:21:57] Speaker 01: And then he goes on to say, American workers compete against foreign nationals for jobs in every sector of our economy, including against millions of aliens who enter the United States to perform temporary work. [00:22:08] Speaker 03: I know that, but it's not as though there's a footnote or anything citing on what basis he says the secretaries say this, but on the basis of what? [00:22:20] Speaker 01: Your honor, I think this goes to the Supreme Court's language in Hawaii that the president is not required to connect every dot or two. [00:22:26] Speaker 03: No, this is not connecting dots. [00:22:28] Speaker 03: This is I have two secretaries who made these findings. [00:22:35] Speaker 01: Um, I have two secretaries that made these recommendations and I find the president's the one making the finding for purposes of 212 F. Um, but your honor, so at a casual five p.m. [00:22:47] Speaker 03: cocktail hour, the secretary said, oh, yes, Mr. President, you ought to issue these proclamations. [00:22:55] Speaker 03: That's very different than what the Supreme Court had in Hawaii. [00:23:01] Speaker 03: I'm just trying to understand, because in the last argument you mentioned, there are all these, it's all this evidence. [00:23:07] Speaker 03: But then on the bottle, counsel said, but the government had conceded that all the evidence on which the government is relying [00:23:18] Speaker 03: is included in the proclamation. [00:23:20] Speaker 03: So let's assume that the secretaries made these recommendations. [00:23:27] Speaker 03: Suppose, just suppose that there's no basis for these recommendations. [00:23:35] Speaker 03: That's one. [00:23:36] Speaker 03: And two is that literally my hypothetical is correct. [00:23:41] Speaker 03: That the secretaries did make these recommendations at a 5 p.m. [00:23:44] Speaker 03: cocktail hour. [00:23:47] Speaker 01: So your honor, 212 F requires the president to make a finding. [00:23:51] Speaker 01: In Hawaii, there was similar arguments made that the president hasn't shown his work and the secretaries haven't shown their work. [00:23:57] Speaker 01: The court not only rejected that argument, but it noted that in the 43 prior proclamations, or many of them, it could be as limited as a paragraph or a couple of sentences that were findings. [00:24:08] Speaker 03: How about my hypothetical? [00:24:10] Speaker 01: I think the finding needs to be contained in the proclamation. [00:24:13] Speaker 01: That's what I understand Hawaii to say. [00:24:15] Speaker 01: Here we have findings in the proclamation that are sufficient. [00:24:19] Speaker 01: The president has made predictive findings related to labor economics and the labor market in light of this unprecedented, I mean, maybe the court doesn't like that word, but this- So you think in Hawaii that the Supreme Court just ignored the study? [00:24:36] Speaker 01: I'm not saying that the Supreme Court ignored the study. [00:24:38] Speaker 01: I'm saying the Supreme Court was clear [00:24:40] Speaker 01: That inciting to other proclamations that had limited findings without, you know, putting forward the background evidence. [00:24:49] Speaker 01: I apologize. [00:24:50] Speaker 03: I just want to be clear where the government is on that. [00:24:53] Speaker 01: The government's position is that the proclamation itself must include the finding. [00:24:58] Speaker 03: And no, that's not my medical [00:25:02] Speaker 01: Your honor, I would need to see the finding in the proclamation in your hypothetical. [00:25:06] Speaker 03: I apologize if I forgot what the- My hypothetical is the two secretaries at a 5 p.m. [00:25:12] Speaker 03: cocktail hour recommended the president issue a proclamation barring immigration, period. [00:25:23] Speaker 01: And that's what the proclamation states? [00:25:27] Speaker 03: The proclamation states exactly what it states here. [00:25:31] Speaker 03: The two secretaries recommended [00:25:35] Speaker 03: That's all I'm trying to understand is I think that the context in which the Supreme Court was dealing in Hawaii was so different. [00:25:43] Speaker 03: It doesn't necessarily mean that it fails here, but it was a very different. [00:25:48] Speaker 03: The court didn't need to have any doubts about was this a 5 p.m. [00:25:53] Speaker 03: cocktail casual recommendation or not. [00:25:56] Speaker 03: This thing had been studied elaborately. [00:26:00] Speaker 01: Your honor, the purpose of 1182 F is to allow the president to react to, you know, wars pandemics sudden, you know, it doesn't matter if the president acted on the basis of a 5pm cocktail. [00:26:15] Speaker 01: casual recommendation if the president had the exact same findings he has here the test in hawaii is looking at the findings that are in the proclamation because that's the sole prerequisite for it and these findings are clearly in excess of many of the others if i could give one example of proclamation 65 but council you know the weight of something and the fact that you have you know a thousand findings that are all irrational that doesn't help your case i'm just trying to understand what you understand [00:26:44] Speaker 03: The Congress intended when it said the president must find that he needs to act because failing to do so by proclamation would be detrimental to the interests of the United States. [00:27:04] Speaker 01: So Congress said whenever the President finds the entry of aliens or any class of aliens to the United States would be detrimental to the interests. [00:27:11] Speaker 01: He may issue a proclamation. [00:27:14] Speaker 01: I think Hawaii pointed out that this exudes deference. [00:27:17] Speaker 01: It grants sweeping authority whether to suspend entry, whose entry to suspend for help. [00:27:22] Speaker 03: All right, I understand. [00:27:23] Speaker 03: You're not going to answer my question. [00:27:25] Speaker 03: I've asked it three different ways. [00:27:27] Speaker 03: and you don't wanna answer it and that's fine, but I just wanna be clear that the government has not addressed this question, all right? [00:27:36] Speaker 03: It doesn't want to address this question. [00:27:40] Speaker 03: And I think that's relevant to how our limited review is conducted. [00:27:49] Speaker 01: Let me have one more attempt and cut me off. [00:27:53] Speaker 01: The government's position is that you don't look behind the finding and when you're conducting the Hawaii 212F analysis, you don't look behind the finding that's on the face of the proclamation. [00:28:04] Speaker 01: And so in your hypothetical, you had the same findings here. [00:28:07] Speaker 01: Those findings should be upheld. [00:28:09] Speaker 01: And the findings are often much more limited than what we have here. [00:28:15] Speaker 01: You know, Hawaii noted you're not required to sort of spell out every discussion. [00:28:20] Speaker 01: The stat. [00:28:22] Speaker 01: I'm trying to think if there's anything else I'd like to hit, you know, as to [00:28:25] Speaker 01: The discussion about something being clearly false. [00:28:28] Speaker 01: These are predictive findings, they are not clearly false. [00:28:32] Speaker 01: And the President is making judgments about what he thinks the labor market would be appropriate. [00:28:37] Speaker 01: And I think this goes to some of the questions Judge Edwards had for plaintiffs council about being aware of the H1B and H2B, but determining in light of the current factual situation that you know admission of those aliens is detrimental. [00:28:48] Speaker 00: I see that I'm- Doesn't the court say we would be concerned if you have statutory provisions and you're using F to step into a space and solve a problem that has already been addressed by Congress? [00:29:04] Speaker 01: F is designed for unexpected change circumstances. [00:29:09] Speaker 00: No, no, but we went through this again before. [00:29:13] Speaker 00: I don't want to do it again, but I just want you to understand my concern. [00:29:16] Speaker 00: Are you stepping into a statutory space? [00:29:20] Speaker 00: It's something like into the space and solve the exact problem. [00:29:25] Speaker 00: And if the reason given is unemployment, both [00:29:30] Speaker 00: And that's the only thing we're talking about. [00:29:32] Speaker 00: And that's what the detrimental to the interest of the United States is about. [00:29:38] Speaker 00: That has been addressed in 1B and 2B, because there are certification procedures that address that. [00:29:48] Speaker 00: So that's the strange thing. [00:29:50] Speaker 00: I think you agree that if, I think you can tell me if you don't agree, [00:29:54] Speaker 00: that if what the president is doing is invoking F to step into a space that has already been handled by Congress, then we got a concern. [00:30:05] Speaker 01: No, I think F provides the president, assuming that he makes findings and you have this suspension, it's a suspension, it's not a permanent bar, to add to the prior requirements. [00:30:17] Speaker 01: And so I would disagree. [00:30:19] Speaker 01: We think F, which exudes deference, provides that authority to suspend based on categories. [00:30:26] Speaker 00: But then what you're really effectively doing is saying for those two categories where you're arguing they're adding two. [00:30:33] Speaker 00: So your findings have to deal with that, too. [00:30:36] Speaker 00: The unemployment has already been addressed in the 1B and 2B categories. [00:30:41] Speaker 00: Congress has explained how that should be handled. [00:30:44] Speaker 00: Wait a minute. [00:30:45] Speaker 00: You're saying, but the president's invoking F now because there's an even greater unemployment problem of some sort. [00:30:53] Speaker 00: And that causes us to wonder, well, where has that finding been made? [00:30:58] Speaker 00: What's the greater because 1B and 2B address [00:31:03] Speaker 00: unemployment as it might or displacing American workers that might be a threat to the American economy because there's an arrangement to deal with it. [00:31:12] Speaker 00: So how can you use F to step into that space that's been dealt with? [00:31:17] Speaker 01: because you're reacting to an unforeseen circumstance. [00:31:21] Speaker 01: The president discusses unemployment in light of the COVID-19 sort of impact on the labor market. [00:31:26] Speaker 00: And we think just like with the certification procedure would take that all into account because you have to certified and no one's available. [00:31:35] Speaker 01: There's a temporal lag in the certification procedure. [00:31:38] Speaker 00: There's the coming back your argument, your argument, at least to my concern is this temporal lag argument because [00:31:46] Speaker 00: Trump does express concerns about dealing with exactly the same space. [00:31:51] Speaker 00: In other words, it's kind of like a normal statutory interpretation. [00:31:54] Speaker 00: If you're dealing with a space that's already been dealt with by Congress, then we have to worry a little bit about you're using F to kind of override something and Congress didn't give you the authority to do it. [00:32:04] Speaker 00: And your answer to that is no, no, no, they didn't really deal with it because now there's a temporal lag that's not gonna address our concern here. [00:32:13] Speaker 01: I also have the textual answer and I know I gave this before so I'll make it briefly and it's just that when in 1182f they allowed suspending all or classes of aliens that [00:32:23] Speaker 01: would include in situations where you suspend a class of aliens, based on a classification or a visa classification, or if you suspend all aliens, because of concerns about, you know, labor or concerns about communicable diseases, you know, with COVID-19, there's already an exclusion provision in, I think 212A5. [00:32:43] Speaker 01: The Ninth Circuit discusses this in Doe, and I think I didn't get to this particular example, but [00:32:48] Speaker 01: 212FA4 or 5, you know, allows you to suspend people because of concerns about communicable diseases or not being immunized. [00:32:56] Speaker 01: I don't know which is which. [00:32:58] Speaker 01: And as the Ninth Circuit pointed out in Doe, you're still allowed to suspend in light of a pandemic, even though, you know, we have concerns about immunization or concerns about communicable diseases, 212F still gives additional authority to, you know, [00:33:12] Speaker 01: suspend in a space that Congress has already addressed. [00:33:15] Speaker 01: In the proclamation at Doe, it had to do with the public charge rule, having a provision about health care. [00:33:21] Speaker 01: But so, you know, we think 212 F gives the president broad authority, it exudes deference in every clause, and he needs to make a finding based on the situation. [00:33:29] Speaker 01: And I apologize, I know I'm over time. [00:33:32] Speaker 00: Okay, I don't have any more questions. [00:33:35] Speaker 03: Council, did you have anything you needed to add? [00:33:39] Speaker 01: No, as in the prior case, I'd be happy to talk about the non-delegation issue, but I'm also happy to rest on our, oh, sorry. [00:33:46] Speaker 04: I have a question. [00:33:47] Speaker 03: That's something to be clear. [00:33:49] Speaker 03: Yes, you'd be happy to rest on your brief as to non-delegation? [00:33:53] Speaker 01: Yeah, yes. [00:33:54] Speaker 03: I just want to have that in the record. [00:33:56] Speaker 03: All right. [00:33:57] Speaker 03: So Judge fatal has a question. [00:33:59] Speaker 04: Yeah, so maybe you can help me, Mr. Forney. [00:34:06] Speaker 03: Before this morning, who are you talking to now? [00:34:10] Speaker 03: We're speaking with counsel for the government now. [00:34:12] Speaker 04: Oh, I'm sorry. [00:34:13] Speaker 04: I thought we had switched. [00:34:14] Speaker 04: Excuse me. [00:34:14] Speaker 03: Not yet. [00:34:15] Speaker 04: Thank you. [00:34:17] Speaker 01: If there are no further questions, we would ask that you affirm it in both cases. [00:34:20] Speaker 01: I think I didn't get that last time. [00:34:21] Speaker 03: Thank you very much, counsel. [00:34:22] Speaker 04: I'm sorry about that. [00:34:24] Speaker 04: I'm sorry, Judy. [00:34:25] Speaker 04: No, it's fine. [00:34:26] Speaker 04: Counsel for appellant. [00:34:28] Speaker 00: Now you can ask David. [00:34:30] Speaker 04: OK, now I'm going to ask you my question. [00:34:34] Speaker 00: Whoa, wait, you're going dead. [00:34:37] Speaker 00: Wait, council's going dead again. [00:34:42] Speaker 02: Can you hear me now? [00:34:43] Speaker 02: Yeah, okay. [00:34:44] Speaker 02: Yeah. [00:34:44] Speaker 04: Okay, thank you. [00:34:46] Speaker 04: So the way I had been thinking about this before this morning, before the oral argument was, as I looked at the finding question, your argument, as I understood it was, is that the finding [00:34:59] Speaker 04: here is false because with respect to HB1 visa holders, the statute itself provides protection for the US labor market, right? [00:35:11] Speaker 00: Right. [00:35:13] Speaker 04: But the statute says, it says the president may, if he finds it's detrimental, he may make a confirmation [00:35:25] Speaker 04: And for such a period of time, the theme is suspend the entry. [00:35:31] Speaker 04: So why isn't the way to look at this to say, yes, Congress created, let's just talk about HB1. [00:35:38] Speaker 04: That's it for the time being, because that's what this is about. [00:35:42] Speaker 04: So Congress created this provision that allows people with HB1 visas to come in if it's certified properly. [00:35:51] Speaker 04: That is, if the certification, if the employer has a certification that won't adversely affect domestic workers, fine. [00:35:59] Speaker 04: But what this says, this is kind of an override. [00:36:03] Speaker 04: This is giving the president authority if he makes this finding to suspend that provision. [00:36:10] Speaker 04: Why isn't that the way to look at the statute? [00:36:13] Speaker 04: It's not an override. [00:36:15] Speaker 04: He's simply suspending it because of unforeseen serious circumstances that the United States falls, finds itself in right now. [00:36:26] Speaker 04: So in other words, what I'm saying is, as you think about whether the findings are adequate, I'm no longer sure you can take account of the fact that [00:36:38] Speaker 04: that the statute, that the INN statute already protects the domestic employment market or domestic workers, because all he's doing is suspending that provision. [00:36:51] Speaker 04: Do you see what I'm saying? [00:36:52] Speaker 04: I probably didn't say it very clearly, but what's your answer to that? [00:36:59] Speaker 02: I take the distinction to be drawn, which is, if I understand your question, is the distinction between overriding a statute [00:37:07] Speaker 02: eliminating a program and simply suspending it. [00:37:14] Speaker 04: Well, what's the answer? [00:37:18] Speaker 04: In other words, how can its finding be false if your argument for it being false rests on the existence of the HB1 program's protection from domestic workers? [00:37:31] Speaker 04: Because all he's doing is suspending it. [00:37:32] Speaker 04: He's not overriding it. [00:37:36] Speaker 04: So therefore the question is, the question therefore is, has he articulated, has he given an adequate reason, let's set aside the standard of review, but has he provided information to suggest that the HB1 program is not adequately protecting domestic workers because of the unusual circumstances the United States finds itself in? [00:37:56] Speaker 04: That's my question. [00:37:59] Speaker 02: Okay, I think there's two points here. [00:38:03] Speaker 02: One is that [00:38:04] Speaker 02: the, with respect to the H1B program, which is a skilled work for program in which Congress gave much more enhanced detail about how that program would operate. [00:38:16] Speaker 02: Then for example, the H2B program, which is issuing the Gomez case, this has much more fulsome statutory provisions 212 N lays out in great detail, the wages working conditions for [00:38:32] Speaker 02: those workers and the certification process. [00:38:35] Speaker 04: Yeah, sure. [00:38:36] Speaker 04: It's detailed. [00:38:36] Speaker 04: But the statute says he may by proclamation and for such period of time as he needs necessary suspend the entry of all entries or any class. [00:38:49] Speaker 04: So HB1. [00:38:51] Speaker 04: I'm just no longer confident in the way I was looking at this an hour ago. [00:39:00] Speaker 04: So can you help me regain my confidence? [00:39:06] Speaker 04: Tell me what's wrong with this doubt that I have. [00:39:11] Speaker 02: Well, I guess if you get into the granular detail, you should have significant doubt in how this was rolled out. [00:39:19] Speaker 02: The proclamation simply said, [00:39:23] Speaker 02: No entry, full stop, end the program with respect to people entering. [00:39:28] Speaker 04: No, no, no, suspend, suspend, suspend. [00:39:31] Speaker 02: I know, but it's basically eliminating with respect to those individuals. [00:39:37] Speaker 02: And I think the reasoning of the NAMM court was pretty clear on that, that it just simply, for these classes of individuals, it's eliminated. [00:39:45] Speaker 02: But more specifically, the proclamation then handed [00:39:52] Speaker 02: this issue off to the secretary of state to publish exceptions under a national interest guideline. [00:40:04] Speaker 02: Those exceptions, which appear in the appendix 95 to 96, completely redefine the H-1B program, impose conditions on it that Congress rejected. [00:40:20] Speaker 02: and transport other conditions from other visa programs and incorporate them into the H1B program and make them necessary conditions for obtaining a visa and reentering the United States. [00:40:32] Speaker 02: So that's exactly how this thing was rolled out, shows that that's not a suspension. [00:40:37] Speaker 02: That was simply replacing the H1B program, redefining it, putting in criteria that Congress had either rejected or put into other programs [00:40:50] Speaker 02: and to the Secretary of State's actions, turned it into something that it's not, and made those necessary conditions for individuals who were otherwise to be classified as H-1B workers who had been approved by the Department of Labor and the Department of Homeland Security already, imposed new conditions redefining that program and making those necessary conditions for their entry. [00:41:12] Speaker 02: That goes beyond suspension. [00:41:14] Speaker 02: That is recharacterization and elimination. [00:41:21] Speaker 04: I don't have any other questions. [00:41:23] Speaker 04: I don't, Judy. [00:41:24] Speaker 04: Yeah. [00:41:25] Speaker 03: All right. [00:41:25] Speaker 03: Thank you, counsel, very much. [00:41:27] Speaker 03: Thank you. [00:41:28] Speaker 03: Thank you.