[00:00:00] Speaker 01: Case number 20-5292, Domingo Ariquin Gomez, a lawful permanent resident of the U.S. [00:00:06] Speaker 01: Ed Al, 3Q Digital Ed Al, a balance, versus Donald J. Trump in his official capacity as president of the United States of America, Ed Al. [00:00:16] Speaker 01: Mr. Welton for the balance, Mr. Glover for the appellees. [00:00:23] Speaker 03: Good morning, counsel. [00:00:25] Speaker 06: Good morning, your honors, and may it please the court, it's Cleland Welton for the plaintiffs. [00:00:29] Speaker 06: The proclamations at issue in this case have massively disrupted the immigration system for more than nine months. [00:00:34] Speaker 06: They prevented hundreds of thousands of families from reuniting. [00:00:37] Speaker 06: They have functionally canceled more than half the diversity visa program. [00:00:41] Speaker 06: And they prevented tens of thousands of American businesses from hiring foreign workers, even when those workers are legally prohibited from competing with US citizens. [00:00:49] Speaker 06: The president's authority under section 1182F is not unlimited. [00:00:53] Speaker 06: And the statute does not authorize the proclamations in this case. [00:00:57] Speaker 06: First, the proclamations do not satisfy the express prerequisite to find, as a matter of fact, that permitting immigration would be detrimental to the national interest. [00:01:06] Speaker 06: The proclamations are based on irrational and plainly false conjecture that does not rise to the level of a finding. [00:01:12] Speaker 04: Lloyd, can we separate those two for a minute? [00:01:15] Speaker 04: Let's separate. [00:01:18] Speaker 04: You use throughout your brief words like rational and supported by evidence. [00:01:26] Speaker 04: And that sounds like APA review. [00:01:29] Speaker 04: So, I mean, that's not consistent with what the court said in Trump versus Hawaii, right? [00:01:37] Speaker 06: Well, Your Honor, we think that the word findings needs to have some meaning. [00:01:41] Speaker 04: Right. [00:01:42] Speaker 04: I get your point about false. [00:01:44] Speaker 04: I get that. [00:01:46] Speaker 04: And I understand your argument that, obviously, if it's false, it can't be an adequate finding. [00:01:53] Speaker 04: But I'm just asking whether [00:01:56] Speaker 04: whether you can really go so far as your language does, rational, supported by substantial evidence, that just, you're turning this into an APA case, which this clearly isn't that. [00:02:09] Speaker 06: Right, Your Honor. [00:02:10] Speaker 06: We're not asking for APA. [00:02:11] Speaker 04: So how do you define the standard here? [00:02:16] Speaker 04: I mean, [00:02:19] Speaker 04: Well, let me ask you this. [00:02:23] Speaker 04: Suppose we didn't agree with you that at least say with respect to immigrants, as opposed to non-immigrants, that the findings were false. [00:02:34] Speaker 04: Suppose we didn't think they were false. [00:02:39] Speaker 04: How would we evaluate them? [00:02:40] Speaker 04: What lens would you argue that we look through? [00:02:46] Speaker 06: May I just clarify, if you do not think that the findings were false, what would you look at? [00:02:52] Speaker 04: Yeah, no. [00:02:53] Speaker 04: If I think with respect to immigrants, immigrant visas, that the findings are not false, how do I evaluate? [00:03:01] Speaker 04: You still would argue that they're not adequate findings, but what's the standard if it isn't rational and substantial evidence? [00:03:11] Speaker 06: Your honor, we would think that, at least as to a subset of those individuals who cannot compete, cannot be expected to compete with foreign, excuse me, with US workers if they're irrational and they don't make any sense. [00:03:23] Speaker 04: Yeah, but that's the non-immigrant category, isn't it? [00:03:27] Speaker 06: In part, but also with respect to the immigrants, there are, for example, [00:03:31] Speaker 06: minor children who were barred from entering the country. [00:03:33] Speaker 04: Okay, good. [00:03:36] Speaker 04: I take that point. [00:03:36] Speaker 04: I take that point. [00:03:37] Speaker 04: But okay, let me refine my question. [00:03:40] Speaker 04: With respect to immigrants who under the INA are not blocked by the kinds of provisions that limit the immigration of non-immigrants. [00:03:55] Speaker 04: What about those? [00:03:58] Speaker 04: Well, here, let me just ask you this. [00:04:02] Speaker 04: Okay. [00:04:04] Speaker 04: So the president said, he says, the government says that this with respect to immigrants, with respect to given the current emergency, the suspension will ameliorate U.S. [00:04:22] Speaker 04: unemployment in some measure. [00:04:25] Speaker 04: That's their argument. [00:04:29] Speaker 04: That's their position. [00:04:30] Speaker 04: What's the argument for us setting that aside? [00:04:34] Speaker 06: Well, Your Honor, there's no evidence and there's not even any rational explanation of how he reached that, quote unquote, finding. [00:04:44] Speaker 06: On that same page of their brief, they agree with us that immigrants contribute to economic growth and thus to the jobs and wages of US workers. [00:04:53] Speaker 06: They agree that that's true in the ordinary course, and they don't offer any evidence. [00:04:58] Speaker 06: And even if you think that asking for evidence is too much, they don't offer even any rational explanation of how things would be different in the context of a recession. [00:05:10] Speaker 06: And we have piles of evidence that is unrebutted that shows that even in a recession, adding immigrants, adding non-immigrant workers to the workforce is good for the economy. [00:05:20] Speaker 06: It adds jobs. [00:05:21] Speaker 06: It adds demand. [00:05:23] Speaker 06: And so it doesn't square with the way the economy works. [00:05:27] Speaker 06: And they haven't put down any evidence in favor of the government, in favor of the president's finding, and haven't put on any evidence contrary to what we have in the record. [00:05:37] Speaker 06: And so it's false, but it's not just false, but irrational and reasoned. [00:05:42] Speaker 00: Go ahead, Judy, I'm sorry. [00:05:45] Speaker 03: OK, so are you suggesting that [00:05:52] Speaker 03: some sort of factual predetermination is required as existed in Trump v. Hawaii, so that while ultimately the president could reach the conclusion he reached, there has to be some evidence to support it. [00:06:17] Speaker 03: I'm a little concerned about the requirement that the president has to explain how he reached the decision, because I thought the Supreme Court pushed back on that fairly hard. [00:06:30] Speaker 06: Well, Your Honor, with respect to the latter point, the Supreme Court was, I thought, clear in Hawaii saying that he's not required to link his every piece in the puzzle in the specific context of foreign policy and national security. [00:06:44] Speaker 06: And there are reasons for that. [00:06:45] Speaker 06: The president has his own power in that area. [00:06:47] Speaker 06: He probably shouldn't be required to disclose confidential information, state secrets, et cetera, in that context. [00:06:55] Speaker 06: But in the purely domestic context, there's no reason not to ask him to explain his findings and give a reason for them. [00:07:01] Speaker 06: And in fact, Congress put the word fines into the legislation for a reason. [00:07:06] Speaker 06: We point out at page 2930 of the blue brief, Congress chose fines instead of deans specifically [00:07:15] Speaker 06: So that he would have to base his entry suspension on some facts and not on an opinion or a guess. [00:07:23] Speaker 06: And what he's done here is he's just made an opinion or a guess about what might happen in the case of a recession. [00:07:30] Speaker 06: He's admitted that we're right in the general course, but he hasn't put in anything to support his attempt to distinguish the recession context from [00:07:42] Speaker 06: the ordinary one. [00:07:44] Speaker 06: And so there's no rational connection between the facts that he wants to rely on and the finding of a detriment that he purports to have made. [00:07:54] Speaker 04: By the way, the December 31 proclamation, that expires March 31st? [00:08:05] Speaker 06: Yes, Your Honor. [00:08:08] Speaker 04: So if that happens, is this case en route? [00:08:12] Speaker 06: At that point, it would likely become moot with respect to most of, at least the appeal would be moot with respect to most of the plaintiffs. [00:08:22] Speaker 06: The problem though is that our diversity visa plaintiffs, they receive their visas in September and they only last for six months. [00:08:30] Speaker 06: And so they would all expire by the end of March. [00:08:34] Speaker 06: And so they need to come in and it's not clear that they can be renewed. [00:08:37] Speaker 06: And so they need to come in on their visas before the end of March. [00:08:40] Speaker 06: So the proclamations need to be lifted one way or the other in order for them to use the visas that they have, or they may well be out of luck. [00:08:48] Speaker 04: So there's no- Wait, I lost you. [00:08:50] Speaker 04: I just didn't get that. [00:08:51] Speaker 04: If the proclamation... Oh, you mean they may have to use them before March 31st? [00:08:57] Speaker 06: Yes, Your Honor. [00:08:58] Speaker 06: So they have their visas, the diversity visa plaintiffs, and some of the class members have their visas, but they only last for six months. [00:09:04] Speaker 04: Okay, but that issue, they'd have to go back to the district court on that, right? [00:09:08] Speaker 06: Well, not at... [00:09:10] Speaker 06: For them to be reissued yes, but if the what we're asking for is for the proclamations to be lifted and if they're lifted if they're enjoined and plaintiffs could come in on their visas that they know but I'm asking you what happens if we don't decide this case before March 31. [00:09:26] Speaker 06: If that were to happen, the issue about the proclamations would and they were to expire, they would become moot and yes, they'd be moved. [00:09:35] Speaker 06: Yeah. [00:09:35] Speaker 06: Yes. [00:09:35] Speaker 06: As to the commission, we would have to seek additional relief to get the yes. [00:09:39] Speaker 04: Okay. [00:09:40] Speaker 04: Thanks. [00:09:42] Speaker ?: Right. [00:09:42] Speaker 06: Right. [00:09:42] Speaker 06: I'm just circling back. [00:09:43] Speaker 06: I just wanted to make another point with respect to the findings issue. [00:09:47] Speaker 06: I think that one way to look at this is that the president there's got to be some floor above which the findings have to have to satisfy. [00:09:56] Speaker 06: Right. [00:09:56] Speaker 06: And otherwise it wouldn't be a finding. [00:09:58] Speaker 06: And the president couldn't, for example, find the [00:10:01] Speaker 06: all foreigners are criminals and therefore I'm going to exclude all aliens from entering the country. [00:10:08] Speaker 06: That wouldn't constitute a finding. [00:10:10] Speaker 06: It would be just made up and just contrary to all the evidence. [00:10:13] Speaker 06: And that's really the situation that we're in here. [00:10:18] Speaker 06: The president has not given any support for his purported findings and he's not explained what he's done, not given a justification for it. [00:10:30] Speaker 00: You know, you face a steep mountain to climb with the Trump decision. [00:10:37] Speaker 00: It's unbelievably deferential. [00:10:39] Speaker 00: I'll suggest that the president has to do great deference and suggest that there is statutory support for that. [00:10:48] Speaker 00: And, you know, it's a situation, if I'm understanding you correctly, I think what the best reading for the president's side of this is that they're saying that [00:11:00] Speaker 00: In the aggregate, there's persistently high unemployment, when there's persistently high unemployment and labor's supply outpaces labor demand, in that situation, which is dire, we can act to block any competition, even though there are individual employment sectors that might not fit it, because there are workers there who really may not compete against American workers, but we don't have to go to that detail. [00:11:30] Speaker 00: we're making, and this is our theory, this is our policy, they seem to be saying, if you assume the level of unemployment is as high as it is, it is okay to block a group that potentially competes, and they do compete in certain areas for sure, it is okay as a matter of policy for us to do it, even under APA terms. [00:11:55] Speaker 00: We allow an agency some room to move. [00:11:57] Speaker 00: I know this is not an agency. [00:11:59] Speaker 00: We allow an agency some deference in saying, that's our prediction. [00:12:05] Speaker 06: Well, your honor, the problem is that there's no evidentiary basis for that prediction. [00:12:10] Speaker 06: I don't want to say that the president has to provide evidence in every case. [00:12:13] Speaker 00: Well, wait, for which prediction? [00:12:16] Speaker 06: For the prediction. [00:12:18] Speaker 06: Sorry, let me step back. [00:12:19] Speaker 06: There's no evidentiary basis for the conclusion that admitting immigrants in particular [00:12:25] Speaker 06: would exacerbate the unemployment issue. [00:12:29] Speaker 00: Well, but the immigrants in certain areas will certainly compete against American workers. [00:12:34] Speaker 00: They're not wrong on that. [00:12:35] Speaker 00: I think your argument is they're not showing that in every sector. [00:12:39] Speaker 00: And I think that's certainly true. [00:12:40] Speaker 00: You hear that over and over again. [00:12:42] Speaker 00: I don't know what the exact details are. [00:12:44] Speaker 00: It is true that in some sectors, immigrants really are not competing directly against American workers. [00:12:50] Speaker 00: And your argument is, well, I can't [00:12:52] Speaker 00: that can adversely affect the unemployment situation. [00:12:55] Speaker 00: But I think what the president's side is saying, the aggregate numbers are sufficiently severe. [00:13:00] Speaker 00: We can take an approach which says we're not going to allow competition in at this point. [00:13:05] Speaker 06: Well, your honor, there's two points. [00:13:07] Speaker 06: Many of the immigrants here are going into sectors where not only don't they compete, but their unemployment has gone down. [00:13:14] Speaker 06: For example, H1B visas, unemployment has gone down because those are [00:13:18] Speaker 00: I agree, but what I'm asking you is, is the president required to go through each and every employment sector and say, we're making the determination in all of these areas and we can support it with facts? [00:13:32] Speaker 00: Is that what you're saying? [00:13:32] Speaker 00: I'm not reading the Trump cases suggesting that. [00:13:36] Speaker 06: What we're saying is, number one, he's got to make findings with respect to each class he's excluding. [00:13:42] Speaker 06: And so he's got to make findings with respect to H1Bs because that's a class he's excluded. [00:13:47] Speaker 06: more broadly, he needs to have a rational basis to conclude that he, the individuals who are coming in are gonna actually not just compete, but impact and cause more unemployment to exist. [00:14:04] Speaker 00: But suppose the response from then is that is our theory, that it will have a positive effect [00:14:12] Speaker 00: We can't tell you for sure, but that is our theory. [00:14:16] Speaker 00: And we see lots of cases like that, certainly in the APA arena and the agencies are allowed to protect because they have a starting foundation. [00:14:24] Speaker 00: That is the numbers are wrong in our view. [00:14:27] Speaker 00: And we think that the best way to protect the class who we're trying to protect is to avoid all competition, even though we understand that in some places it might not, there might not be competition. [00:14:42] Speaker 06: Well, Your Honor, the problem for the government there is that the statute doesn't allow the president to proceed on a theory or on a guess. [00:14:50] Speaker 06: He's got to have a finding. [00:14:52] Speaker 06: And that has to be a finding of fact. [00:14:54] Speaker 06: And it can't be a mere guess or an opinion. [00:14:58] Speaker 06: And so without a finding with respect to the particular issue that there would be an actual detriment, he hasn't satisfied the statutory prerequisite. [00:15:11] Speaker 06: OK. [00:15:12] Speaker 06: All right. [00:15:13] Speaker 06: I'm sorry? [00:15:14] Speaker 00: No, go ahead. [00:15:15] Speaker 00: I'm listening. [00:15:15] Speaker 06: I was just going to add that even if the findings were satisfied, beyond that, he has violated the statute because he has exceeded the authority that the Congress gave him by overriding the various statutes that authorize the visa programs that are at issue. [00:15:32] Speaker 06: He's thrown out the J visa program, the H visa program, all the immigrant visa program. [00:15:38] Speaker 06: And he's just not allowed to do that. [00:15:40] Speaker 06: He's allowed to supplement [00:15:42] Speaker 06: some restrictions that Congress may have enacted as he did in Hawaii. [00:15:47] Speaker 06: But he's not allowed to just take out visa categories wholesale, which is what he's done here. [00:15:52] Speaker 00: And what are you relying on to support that claim? [00:15:56] Speaker 06: It's Hawaii, the language in Hawaii supports that. [00:15:59] Speaker 06: And then subsequent decisions, the Ninth Circuit said the state panel decision in Doe and subsequent district court decisions. [00:16:07] Speaker 00: And I think the later Ninth Circuit opinion does not support that. [00:16:11] Speaker 06: Well, to be clear, the later opinion does not, but the Ninth Circuit has really split 3-3 on this issue. [00:16:17] Speaker 06: There were two judges on the majority on the stay, and then there was Judge Shishima's dissent in the mayor's opinion. [00:16:25] Speaker 06: And so there was really a division of authority even within the Ninth Circuit, and that opinion is still subject to a rehearing petition. [00:16:34] Speaker 06: So in our view, the more persuasive authority is the stay opinion and then the subsequent decisions in the [00:16:41] Speaker 06: National Association of Manufacturers case, which says that the president is not allowed to throw out, not allowed to eviscerate the statutory scheme by throwing out these whole visa categories. [00:16:53] Speaker 06: The other thing I would say is that the opinion in the proclamation in Doe did not throw out whole visa categories. [00:17:00] Speaker 06: It put on additional limitations similar to what the president did in Hawaii. [00:17:06] Speaker 06: Here, it's different. [00:17:08] Speaker 06: The court, I'm sorry, the president has not [00:17:11] Speaker 06: added new limitations. [00:17:12] Speaker 06: He's thrown out entire visa categories and the statute doesn't allow him to do that. [00:17:17] Speaker 06: And if it did, it would create a serious non-delegation problem because it would allow him to act contrary to Congress's will and without any congressional guidance as to how he is to exercise the discretion that is purportedly granted in the statute. [00:17:34] Speaker 06: I see my time has expired. [00:17:35] Speaker 06: If there are further questions. [00:17:39] Speaker 06: Nope. [00:17:41] Speaker 03: Judge Tatel, did you have a question? [00:17:43] Speaker 04: No, I didn't. [00:17:44] Speaker 04: Thank you. [00:17:45] Speaker 03: All right. [00:17:48] Speaker 03: Thank you. [00:17:49] Speaker 03: Let us hear from counsel for at police. [00:17:57] Speaker 02: Good morning. [00:17:58] Speaker 02: Excuse me. [00:17:59] Speaker 02: Good morning and may it please the court. [00:18:01] Speaker 02: I'm Matthew Glover and I represent the United States. [00:18:04] Speaker 02: COVID-19 has had an unprecedented and devastating impact on the United States and the United States labor market. [00:18:11] Speaker 02: COVID-19 has caused a genuine national emergency and put millions of Americans out of work. [00:18:16] Speaker 02: The presidential proclamations at issue here are a response to that emergency. [00:18:21] Speaker 02: The president appropriately exercised his authority under section 1182f, and the district court correctly found that the proclamations are lawful. [00:18:30] Speaker 02: This court can affirm either on the threshold ground of non-reviewability or in applying the extremely limited and highly deferential review of the proclamation that the Supreme Court laid out in Hawaii. [00:18:41] Speaker 04: Well, non-reviewability wouldn't be consistent with Trump v. Hawaii, would it? [00:18:45] Speaker 02: Your honor, I would disagree. [00:18:47] Speaker 02: If you look at Roman to have the opinion in Trump versus Hawaii the Supreme Court described the government's non review ability argument there, which is the same argument we make here, as I think it was a difficult question or a tough case I can get the exact language for you if you'd like. [00:19:05] Speaker 02: And so it said in light of both the concession by the solicitor general argument winning to the prior opinion of sale or Sally I'm not sure how to pronounce that that because non review ability was non jurisdictional it could proceed to the merits applying the test it laid out in Hawaii. [00:19:22] Speaker 02: So I don't think ruling in the government's favor on non-reviewability here would conflict with Hawaii. [00:19:30] Speaker 02: It would just be taking a different approach than the Supreme Court took in Hawaii because the Supreme Court didn't lay down a position on non-reviewability in Hawaii, if I understood your question correctly. [00:19:39] Speaker 04: So what's your alternative basis for reference? [00:19:42] Speaker 02: The non review ability argument in our brief that is the Supreme Court explained in Hawaii for more than a century. [00:19:49] Speaker 04: No, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, [00:19:58] Speaker 02: I apologize. [00:20:00] Speaker 02: I'm applying the extremely limited and highly differential review of the proclamation that the Supreme Court laid out in Hawaii. [00:20:08] Speaker 02: And I was confused when you said alternative basis because that's the basis that Judge made a gave in his opinion and so that would be affirming for the same grounds that he provided. [00:20:17] Speaker 02: You know, so, would you like me to start there with the Hawaii. [00:20:23] Speaker 04: Let me just ask you this. [00:20:24] Speaker 04: Okay, let's assume you're right that it's extremely differential. [00:20:27] Speaker 02: Right. [00:20:27] Speaker 04: I mean, you obviously are right about that. [00:20:31] Speaker 04: Suppose, suppose the findings are false. [00:20:36] Speaker 02: a couple of points. [00:20:37] Speaker 04: I'm not suggesting this is separate from the question of whether they are. [00:20:42] Speaker 04: In fact, take Mr. Welton's hypothetical. [00:20:44] Speaker 04: I mean, suppose the president issues a proclamation banning all immigrants because crime rates are increasing and because immigrants are likely to commit crimes. [00:20:54] Speaker 04: Now, that's false. [00:20:56] Speaker 04: We know that's false. [00:20:58] Speaker 04: Suppose that was this case. [00:21:00] Speaker 04: Is your position that we would have to [00:21:06] Speaker 04: that we couldn't second guess that because it's false. [00:21:09] Speaker 02: So we would have the same non-reviewability arguments. [00:21:12] Speaker 04: No, no, no. [00:21:13] Speaker 00: We're going beyond that. [00:21:15] Speaker 02: We're beyond non-reviewability. [00:21:18] Speaker 02: I just wanted to open by saying that would be. [00:21:21] Speaker 00: We understand. [00:21:22] Speaker 00: Trust us. [00:21:23] Speaker 00: We know you would open that way, but let's go on. [00:21:26] Speaker 02: I just wanted to make sure that I didn't sound like we would waive that. [00:21:31] Speaker 00: No, no, no. [00:21:33] Speaker 00: You're wasting time. [00:21:34] Speaker 00: Come on. [00:21:34] Speaker 02: My apologies. [00:21:36] Speaker 02: I think in that case, you might have even under the limited review, it might be, you know, [00:21:42] Speaker 02: a truly false, purely incorrect finding, but we are far afield from that. [00:21:47] Speaker 02: And I would point out that in most of these cases, certainly in this proclamation, you're talking about a predictive judgment. [00:21:52] Speaker 02: I think Judge Edwards used a phrasing similar to that. [00:21:56] Speaker 02: You're predicting whether after entry, this will have a negative impact on the national interest because the proclamation is suspending entry. [00:22:04] Speaker 00: And so here- Well, some predictions can be positively wrong. [00:22:08] Speaker 00: if they're premised on assumptions that are absurd or factually unsupported. [00:22:15] Speaker 00: So, I mean, that's kind of what you're struggling with in this case. [00:22:20] Speaker 00: There are certain employment sectors. [00:22:22] Speaker 00: I don't think anyone would disagree. [00:22:24] Speaker 00: There are certain employment sectors where there is not a direct hit on American workers if you bring in immigrants or non-immigrants. [00:22:34] Speaker 00: I mean, we've known that for a long time before COVID. [00:22:37] Speaker 00: And so the question is, must the president take account of that? [00:22:42] Speaker 00: That is that some of those assumptions are simply wrong or is it enough to say there are enough places where the hit will be detrimental and so we're not gonna worry about the particulars. [00:22:54] Speaker 02: So I think here we're in the midst of an unprecedented pandemic and an unprecedented shock to the labor market. [00:23:01] Speaker 02: And I think the president has the authority to make determinations about [00:23:06] Speaker 02: You know, he says in the proclamation in June, and that after consulting with the Secretaries of Labor and Homeland Security, they found that the president admission of workers within several non immigrant visa categories also poses a risk of displacing and disadvantaging United States workers during the current economic recovery, and they set the proclamation to those categories, but I think the tailoring that your question suggests is seen in the exceptions right. [00:23:31] Speaker 02: The President directed the Secretary of State in conjunction with the Secretary of Labor and Secretary of Homeland Security to issue sort of a mechanism for national interest exemptions for those individuals that it's shown, barring their entry, wouldn't be against the national interest. [00:23:47] Speaker 00: Really? [00:23:47] Speaker 00: What kind of exceptions have been put into play? [00:23:50] Speaker 00: I read that as being unbelievably narrow and not likely that we'll see it employed but what are we talking about. [00:23:57] Speaker 02: So, in August, the State Department laid out a series of things one that I would use I think because it's kind of a clear and easy example and I think it's actually the first one on the State Department web page is. [00:24:08] Speaker 02: The H1B category covers a lot of things, including medical professionals. [00:24:12] Speaker 02: And so the first exception there is for travel as a, I guess they don't use medical, sorry, but as a public health or healthcare professional or researcher to alleviate the effects of the COVID-19 pandemic or to conduct ongoing medical research in an area with a substantial public health benefit. [00:24:29] Speaker 02: And the paren example they give there is EG cancer or communicable disease research. [00:24:34] Speaker 02: This includes those traveling to alleviate the effects of the COVID-19 pandemic that may be secondary of the pandemic. [00:24:41] Speaker 02: And the example they give in a parentheses there is travel by a public health or healthcare professional or researcher in an area of public health or healthcare that's not directly related to COVID-19, but has been adversely impacted by the pandemic. [00:24:53] Speaker 02: So, you know, that's a good example of you need all hands on deck to help fight the COVID-19 pandemic, barring H1B, [00:25:01] Speaker 00: visa holders who would be in these medical fields helping to fight the pandemic or researching and helping to get to- Okay, what about in the H2B category where even before COVID, there were lots of areas and employers and workers would attest to it. [00:25:20] Speaker 00: Lots of areas where for any of a number of reasons, the employers could not get adequate labor. [00:25:27] Speaker 00: They continued into COVID for sure. [00:25:30] Speaker 00: And so there was no competition when you brought in these non-immigrant H2B persons to perform that work because otherwise it wouldn't get done. [00:25:41] Speaker 02: So the exceptions there, I'm happy to walk through all of them. [00:25:45] Speaker 02: The first one is travel based on a request from a US government agency or entity that meets a critical foreign policy objective or to satisfy it. [00:25:53] Speaker 00: No, no, no. [00:25:53] Speaker 00: I'm talking about, let's go to nitty-gritty employment that you and I understand. [00:25:57] Speaker 00: There are a lot of employers across the country in the H2B category who are saying, you're killing us. [00:26:02] Speaker 02: Okay, so there are three additional factors you need to meet, two of them. [00:26:07] Speaker 02: So the first of those would be travel when the person was previously employed and trained by the employer and they've previously worked for the petitioning employer. [00:26:16] Speaker 02: That's one of the, you need two out of these three. [00:26:18] Speaker 02: The second one is the applicant's traveling based on a temporary labor certification that the Department of Labor gives that reflects a continued need for the worker [00:26:27] Speaker 02: and it needs to have been approved by the Department of Labor after July 2020. [00:26:31] Speaker 02: So approved after the pandemic has caused this shock. [00:26:33] Speaker 02: I think that's the example you're giving me Judge Edwards is, you know, even post pandemic, you're causing the shock. [00:26:39] Speaker 02: And the third would be the denial of the visa would cause financial hardship to the employer. [00:26:44] Speaker 02: Examples given would, you know, illustrating why the hardship is difficult if the employer can't meet a financial or contractual obligation, its inability to continue its business. [00:26:53] Speaker 02: So I think the example you were giving me [00:26:55] Speaker 02: where you couldn't find anyone to fill this job without this H2B person. [00:27:02] Speaker 02: And you can show that this is going to be a hardship. [00:27:04] Speaker 02: We need someone that would meet that second one. [00:27:07] Speaker 02: And I think you would get a labor certification after July to meet the first. [00:27:10] Speaker 02: So that's the H2B exemptions. [00:27:13] Speaker 02: And I think that those show an attempt at narrow tailoring. [00:27:16] Speaker 02: If I can step back and just say. [00:27:18] Speaker 04: Can I interrupt? [00:27:20] Speaker 04: I'm afraid I don't want to repeat the question Judge Edgewood asked. [00:27:25] Speaker 04: Maybe I'm asking his question slightly different way. [00:27:29] Speaker 04: The proclamation prohibits non-immigrants from entering the country because of their impact, because they might take jobs from Americans, right? [00:27:39] Speaker 04: That's what this is all about. [00:27:41] Speaker 02: Or impact wages. [00:27:43] Speaker 02: I apologize for interrupting. [00:27:44] Speaker 02: No, no, no, I get it. [00:27:45] Speaker 02: Or working conditions. [00:27:47] Speaker 04: But they can't get H1B or H2B visas if that would happen under the INA. [00:27:54] Speaker 04: In other words, the employers have to certify that bringing someone in on an H1B or H2B visa will not have an adverse effect on domestic workers. [00:28:08] Speaker 04: So I don't understand how the president can find that [00:28:16] Speaker 04: can bar people eligible for H1 or H2B visas because they're already blocked if they would have an adverse effect on domestic workers. [00:28:27] Speaker 02: I see that I am over time. [00:28:29] Speaker 02: The first would be the president in the June proclamation specifically stated that in the normal labor market, he understands that the labor certification would cover that. [00:28:43] Speaker 02: But given the shock of the pandemic in COVID-19, the labor certification may not. [00:28:50] Speaker 04: That makes no sense. [00:28:51] Speaker 04: The employer [00:28:54] Speaker 04: The employers to be able to bring in an H1B or H2B applicant must certify that it won't have adverse impact on domestic because of the COVID and the dire employment situation. [00:29:12] Speaker 04: I assume that under the INA, it will be really, really hard for an employer to make this certification because there are so many unemployed Americans. [00:29:20] Speaker 02: Sorry, what am I missing? [00:29:22] Speaker 04: What am I missing? [00:29:23] Speaker 02: I think that that goes to the labor certification occurring July or later as one of the grounds for which you would be able to get a national interest exception because that labor certification has taken account of the unemployment [00:29:35] Speaker 02: that COVID caused, a labor certification granted in March would not have taken account of the labor market in June when the president issued his proclamation and after COVID it had a devastating impact. [00:29:47] Speaker 02: So I think the national interest exceptions actually work sort of directly with what you and Judge Edwards have been asking me about for these labor certifications. [00:29:56] Speaker 03: If I could make a second point on this and that's- I want to just piggyback on something here. [00:30:01] Speaker 03: In other words, [00:30:03] Speaker 03: even though Congress has already set limitations quite specific. [00:30:12] Speaker 03: The proclamation says, essentially COVID, we wanna redo the scheme and we're gonna bar everyone and the agencies can come up with guidance [00:30:33] Speaker 03: as to the exceptions. [00:30:37] Speaker 03: So the burden and the power has shifted. [00:30:43] Speaker 03: And the question is, can the president do that under the authority he cites? [00:30:55] Speaker 03: And I say that in the context of, I certainly agree that [00:31:00] Speaker 03: Trump v. Hawaii makes very clear the limited scope of any judicial review assuming such exists, at least in an international context. [00:31:19] Speaker 03: But in that case, there was this extensive report that set out [00:31:32] Speaker 03: the factual basis for the finding. [00:31:37] Speaker 03: And that's what's troubling to me here. [00:31:41] Speaker 03: Can you just act on the basis of a common sense assumption here, essentially, look, we have a pandemic, there are lots of people unemployed, and while there are other ways to address that, and we can go to Congress regarding that, instead, we're going to issue a proclamation [00:32:04] Speaker 03: and redo the scheme. [00:32:06] Speaker 03: And you say this is unprecedented. [00:32:07] Speaker 03: Well, there have been pandemics, there's been recessions, depressions before. [00:32:16] Speaker 03: So why isn't this an extraordinary situation way beyond what the Supreme Court was dealing with in Trump v. Hawaii? [00:32:26] Speaker 03: And that's leaving open the question, and we have to be clear about this, as to whether or not [00:32:33] Speaker 03: it's rational or reasonable to do what the proclamation did. [00:32:39] Speaker 03: I'm just trying to understand that. [00:32:40] Speaker 03: Do you just say as the majority in the Ninth Circuit went one way and the dissent went the other way, that there is some limitation here. [00:32:59] Speaker 03: And we're talking domestically now, we're not talking [00:33:02] Speaker 03: with regard to the international implications. [00:33:07] Speaker 03: And you don't think any of that is relevant here? [00:33:11] Speaker 02: So I think there's a lot to unpack in that question. [00:33:14] Speaker 02: I'll start with the last point. [00:33:16] Speaker 02: We agree with the Ninth Circuit that there's no distinction between domestic and foreign impacts. [00:33:20] Speaker 02: I think the text of the statute talking about the ability to suspend when you determine entry, because entry is what you're suspending, [00:33:26] Speaker 02: when it would not be in the national interest. [00:33:29] Speaker 02: Given that you are stopping someone from entering the United States, some of that harm to the national interest may naturally occur in the United States. [00:33:36] Speaker 02: The second point I would make on that is, as the Supreme Court said in Fiala and they followed up in Hawaii, any policy pertaining to allowing or not allowing foreign nationals to enter the United States is, I think the line was inextricably intertwined with our foreign relations. [00:33:52] Speaker 02: And one way you might see that is, [00:33:53] Speaker 02: You know, we bar entry of workers in these categories, other countries might bar entry of American citizens from being workers. [00:34:01] Speaker 02: And so, barring the entry of foreign nationals is always going to be tied up with our foreign relations. [00:34:07] Speaker 03: I think the factual basis that the Supreme Court had. [00:34:11] Speaker 02: So in Hawaii, the Supreme Court noted that the finding there was far more robust than in many prior proclamations. [00:34:20] Speaker 02: It pointed to a couple proclamations that had a paragraph or a very short finding. [00:34:24] Speaker 02: Here, we do have a couple pages of findings. [00:34:28] Speaker 02: You know, I discussed before a little bit, the president, you know, laid out that more than 20 million US workers lost their jobs in industries where employers were requesting H1B [00:34:36] Speaker 02: and L visas and so here you had a lot more findings than you've seen traditionally in proclamations. [00:34:43] Speaker 02: I think you also mentioned redoing the scheme textually under 1182f the president could bar all entry of all immigrants and doing so would obviously cut off all immigrant classifications and all categories and so the statute allowed for any reason that's what we kind of understand. [00:35:03] Speaker 02: No, no, I wasn't talking about sides today. [00:35:06] Speaker 03: He doesn't want any more immigrants coming into the country. [00:35:08] Speaker 00: Talking about detrimental to the interests of the United States. [00:35:12] Speaker 00: The question that leaps out on the age to be, for example, we've already Congress has already accounted for detrimental in one respect. [00:35:22] Speaker 00: That is, if unemployed persons capable of performing such service or labor cannot be found in this country. [00:35:29] Speaker 00: That's the condition. [00:35:31] Speaker 00: Now, other things that are detrimental to the country, the president obviously may be able to address under a proclamation. [00:35:38] Speaker 00: But what we're trying to understand is why can the president override what the statute already says with respect to H2B, for example, non-immigrant aliens, if the employer has to make that assertion, why isn't that the end of it? [00:35:54] Speaker 00: You can't say that same thing is detrimental to the interests of the United States. [00:35:59] Speaker 00: That thing, the unemployment, it's already been accounted for. [00:36:03] Speaker 02: Your honor, a couple of points. [00:36:05] Speaker 00: Do you understand what we're saying? [00:36:06] Speaker 00: That has been accounted for. [00:36:07] Speaker 02: I understand the statute, the INA sets forward provisions for H-1B, labor certification, etc. [00:36:15] Speaker 02: It also provides the president to [00:36:17] Speaker 02: suspend entry and as the Supreme Court said in Hawaii it can impose restrictions in addition to those already in the statute. [00:36:23] Speaker 00: That would be detrimental to the interests of the United States and what we're saying is how can they be detrimental the interests of the United States with respect to this one point when the statute and there's nothing that's changed already takes into account unemployed persons. [00:36:38] Speaker 02: The president is making a predictive, you know, a predictive finding based on the changed circumstances of our labor market. [00:36:47] Speaker 00: No, you know, it's what Judge Tatel started with 15 minutes ago. [00:36:51] Speaker 00: We're going around in circles. [00:36:52] Speaker 00: It's bizarre. [00:36:53] Speaker 00: Congress has already made, with respect to one detrimental circumstance, Congress has already said the employer has to show that unemployed persons capable of performing such service cannot be found. [00:37:07] Speaker 00: All right, so we've accounted for that. [00:37:10] Speaker 00: And so why should the president be able to come back and say, no, just ignore that. [00:37:15] Speaker 00: Now we're barring everybody, but we'll make exceptions. [00:37:19] Speaker 00: And then you go back and try and redo some what's in H2B and switch the burden of proof. [00:37:25] Speaker 02: Your Honor, a couple of points. [00:37:28] Speaker 02: Again, I think the temporal lag between when the employer makes that certification and when the visa is issued is something that the President was addressing in June, and it's something the Secretary of State has addressed in the requirement that the certification. [00:37:41] Speaker 04: What is that? [00:37:41] Speaker 04: Could you just say that once more? [00:37:42] Speaker 04: What's the temporal gap? [00:37:44] Speaker 02: So before to get an H1B visa, as the example is, or maybe H2B if Judge Edwards was asking about that, I can't recall. [00:37:53] Speaker 04: H1 and H2 both require certifications, so it's the same answer for both. [00:37:59] Speaker 02: The employer applies to the Department of Labor for a certification. [00:38:02] Speaker 02: They get a certification. [00:38:03] Speaker 02: And that occurs before the visa applicant is then adjudicated by the Department of State. [00:38:08] Speaker 02: And so there's going to be certification at time one and then the application is occurring at time two. [00:38:14] Speaker 02: And so in the proclamation, when the president mentioned that in normal circumstances, [00:38:19] Speaker 02: the certification has taken account of our current economic situation. [00:38:23] Speaker 02: We had a shock in mid-March to the labor market and a continuing shock and so the certification that had occurred before then wouldn't have taken account of that shock. [00:38:34] Speaker 04: Why couldn't the proclamation have just been the easy way to solve that? [00:38:38] Speaker 04: To just limit the proclamation [00:38:40] Speaker 04: to all certifications issued prior to the proclamation. [00:38:46] Speaker 04: Any certification after the proclamation is obviously going to take account of COVID and the collapse of the economy because there'll be more Americans looking for jobs. [00:38:56] Speaker 04: There'll be no lag. [00:38:58] Speaker 04: It could have had a very surgical answer to this question, but instead all non-immigrants have been barred regardless of whether [00:39:07] Speaker 02: a couple of points to that. [00:39:11] Speaker 02: The first one, and I apologize for not having mentioned this earlier, but even in spite of the labor certification, this court held in save jobs, USA versus Department of Homeland Security, that the plaintiffs there, you know, stating that they had been replaced for their computer jobs by H1B recipients. [00:39:27] Speaker 02: And the government's defense was that they're not competing. [00:39:30] Speaker 02: It was a competitor standing case because the US citizens can't compete with H1B applicants. [00:39:35] Speaker 02: And this court said [00:39:36] Speaker 02: That, you know, even in spite of the labor certification process, it might not be perfect and that they had put enough at summary judgment to show they were competing. [00:39:44] Speaker 02: But, you know, so this court said there that at least there was a factual scenario where people us workers were competing with h1 b workers, but the president. [00:39:54] Speaker 02: gave the Secretary of State authority to, you know, find these cases that I think you're trying to drill down on, where allowing entry would not negatively impact the national interest. [00:40:05] Speaker 04: Our point is, maybe we're going in circles. [00:40:07] Speaker 04: My point, and Judge Edwards' point, is Congress has already done all that. [00:40:10] Speaker 00: Yeah, that's my point. [00:40:11] Speaker 00: And Judge Rogers' point. [00:40:14] Speaker 00: Yeah, we all, three of us, Congress has already addressed it, and we're sitting here going in circles and not understanding [00:40:21] Speaker 00: the answer if Congress hadn't addressed it, it has addressed it. [00:40:25] Speaker 00: And you're saying your only answer, as far as I can tell, is that there is a temporal lag, and that justifies the president essentially overriding the congressional directive with respect to certification. [00:40:39] Speaker 02: I'd like to make two points that I think it sounds like I haven't gotten across in previous in response to this. [00:40:45] Speaker 02: The first is that the Supreme Court assumed in Hawaii that there might be some issue of conflicting or overriding the INA, but made clear that 11A2F, which is also part of the INA, allows you to impose restrictions in addition to what already exists. [00:40:59] Speaker 02: And so when the president imposed restrictions on the entry of H1B people, those were in addition to [00:41:04] Speaker 03: the process, the labor certification process we've been discussing that already I don't know how there can be additional restrictions when the original right way is taken away. [00:41:16] Speaker 03: Yeah, that's what we're trying to get you to address. [00:41:21] Speaker 02: So your honor, I would quibble a little bit with your description of the original right there. [00:41:27] Speaker 03: I don't they can't come in. [00:41:29] Speaker 00: They can't come in. [00:41:30] Speaker 02: I don't [00:41:31] Speaker 02: I think it would be very different if there were a provision of the INA saying, you know, we shall permit in the, you know, people who meet the, rather than a permissible process for applying and being permitted to receive a visa. [00:41:45] Speaker 02: But the, I don't read the INA to say you must allow in, you know, without other limitation or without 1182F providing the president additional authority. [00:41:55] Speaker 03: I think if there were- All right, we get your point. [00:41:58] Speaker 03: Go ahead. [00:41:58] Speaker 02: Go ahead. [00:41:59] Speaker 02: I'm happy to discuss non-delegation. [00:42:01] Speaker 02: I think opposing counsel mentioned it briefly, but I'm also happy to rest on the papers on that. [00:42:07] Speaker 04: Before you, I was gonna ask you about non-delegation, but am I wrong? [00:42:10] Speaker 04: In Trump v. Hawaii, didn't the court assume that an 1182 proclamation cannot override other provisions of the INA? [00:42:23] Speaker 04: It can supplement them, but it can't override. [00:42:26] Speaker 04: Didn't it say that? [00:42:27] Speaker 02: It said we're assuming that you could make such a claim. [00:42:31] Speaker 04: Well, we are a lower federal court, right? [00:42:35] Speaker 04: It says we assume that they can't override. [00:42:38] Speaker 04: So we can make the same assumption here. [00:42:40] Speaker 04: And the plaintiff's argument is this isn't a supplement to the INA. [00:42:44] Speaker 04: This is overriding it because it is actually overriding the actual provisions that Congress put into the statute to protect domestic workers. [00:42:55] Speaker 00: And you say detrimental to the interests of the United States. [00:42:58] Speaker 00: And what we're saying is Congress already addressed that, for example, in the H2B, that what's detrimental to the interests of the United States is whether they're unemployed persons who will or will not take the job. [00:43:09] Speaker 00: They've already addressed it. [00:43:10] Speaker 00: And we're asking, well, how can the president say, no, no, no, no, we're just going to assume that doesn't exist. [00:43:17] Speaker 00: And here's the way it's going to work. [00:43:19] Speaker 00: So we don't get that. [00:43:21] Speaker 02: I would have two textual responses and I'll apologize if I've made them before but in 1182 f Congress also provided the president authority to bar entry and of all aliens if he barred entry of all aliens that would override in the plaintiff's terminology, all classifications for which someone [00:43:39] Speaker 02: would be permitted to enter and it also allowed him to specify classes and specifying classes based on the visa classifications is a perfectly logical aspect of that would be my first thing. [00:43:51] Speaker 00: The problem you have is you know I hear that and I think instinctively that's what you would assume but the problem you have is you're saying but look we have exceptions [00:44:02] Speaker 00: and the exceptions do exactly you go back and try and redo what congress has already done and it's not it doesn't make any sense so you're essentially agreeing that you can't in any way support or not in any way you can't really support your assertion that there is an unemployment hit here because you're agreeing we have exceptions that'll do exactly what h2b allows which is allow the employer to certify [00:44:31] Speaker 02: Your honor, I apologize if I've been unclear, but I don't mean to agree with that. [00:44:36] Speaker 02: I was taking, I had understood you and Judge Tatel in both laying out your hypothetical to say when the person will clearly not compete. [00:44:43] Speaker 02: I do not agree. [00:44:44] Speaker 02: The president made findings after consulting with the secretary of labor and secretary of homeland security that allowing non-immigrants in these categories would not be in the national interest. [00:44:53] Speaker 02: He also gave the authority to the secretary of state to outline circumstances in which allowing entry would [00:45:00] Speaker 00: or I don't hate to use the double negative, but would be in the national interest or would not not be in the national interest would not be in the national interest because the because is the point is the impact cause there it would cause continued or exacerbate the unemployment problem. [00:45:18] Speaker 00: Right. [00:45:18] Speaker 00: Yes. [00:45:19] Speaker 00: And what we're saying is that appears not to be accurate. [00:45:23] Speaker 00: And or if there is an issue, Congress already dealt with it. [00:45:28] Speaker 00: And so why do we need the president [00:45:30] Speaker 00: under 2F to say anything on that point the unemployment hit. [00:45:37] Speaker 00: It's already been spoken to. [00:45:38] Speaker 02: So on the second point about the Congress having already dealt with it, Congress also dealt with situations where there might be a national emergency or a pandemic or a war by giving the president authority to temporarily suspend entry of certain people. [00:45:52] Speaker 02: And so this is the president carrying out that delegation from Congress. [00:45:57] Speaker 02: And so that would be my response there. [00:46:03] Speaker 02: Sorry. [00:46:04] Speaker 00: No, no, go ahead. [00:46:05] Speaker 02: No, I was just saying as to the exceptions, that shows an attempt to narrowly tailor the proclamation to those, you know, to the employment harm. [00:46:15] Speaker 00: Okay. [00:46:17] Speaker 03: All right. [00:46:17] Speaker 03: Any further questions? [00:46:19] Speaker 00: No. [00:46:20] Speaker 03: Thank you, Council. [00:46:23] Speaker 03: All right. [00:46:25] Speaker 03: Council for Pellin, give you a couple of minutes. [00:46:29] Speaker 06: Thank you, Your Honor. [00:46:30] Speaker 06: I thought it was interesting and [00:46:32] Speaker 06: that council conceded that a purely incorrect finding could not be upheld. [00:46:38] Speaker 06: And as I think the panel recognizes the findings here are purely incorrect in several respects. [00:46:45] Speaker 04: Well, he conceded that only with respect to his second argument, not [00:46:50] Speaker 04: I mean, I take it his first argument is that it's unreviewable no matter what. [00:46:55] Speaker 04: But you don't agree with that, obviously. [00:46:57] Speaker 06: Certainly not. [00:46:57] Speaker 06: No, Your Honor, I think it's clearly reviewable. [00:47:01] Speaker 06: The non-reviewability decisions that they rely on don't apply in this context. [00:47:06] Speaker 06: Those are about not reviewing the president's discretion. [00:47:08] Speaker 04: Well, go ahead. [00:47:09] Speaker 04: I didn't mean to interrupt you, but I did. [00:47:11] Speaker 06: A purely incorrect finding can't be upheld because it wouldn't be a finding. [00:47:17] Speaker 06: It would just be made up. [00:47:20] Speaker 06: He pointed out that asserted that the recession here is unprecedented. [00:47:25] Speaker 06: But as Judge Rogers pointed out, that's just not true. [00:47:27] Speaker 06: Recessions happen all the time. [00:47:29] Speaker 06: There was one in 2008. [00:47:30] Speaker 06: They happen frequently. [00:47:32] Speaker 06: Congress was surely aware that recessions occur when it wrote the INA. [00:47:37] Speaker 06: It clearly considered economic implications of what it was doing. [00:47:41] Speaker 06: in 1990 when it enacted the immigrant visa provision. [00:47:45] Speaker 04: But you don't even have to make that argument, do you? [00:47:47] Speaker 04: I mean, with respect to the non-immigrant visas, if there's a recession, there'll be fewer certifications, right? [00:47:54] Speaker 04: That's built into the law, correct? [00:47:57] Speaker 06: Exactly, Your Honor. [00:47:57] Speaker 06: And a key point here that- What about his argument about the timelines? [00:48:03] Speaker 06: Well, that's what I was just getting to, Your Honor. [00:48:06] Speaker 06: He's mistaken on a number of fronts, one of which is that [00:48:09] Speaker 06: H2B visas, the certifications happen every six months. [00:48:14] Speaker 06: So the most recent ones would have been in October, this past October, and the one before that would have been in April of last year, both of which were during the pandemic. [00:48:23] Speaker 06: And so any certification that would have happened before in the period immediately before the June proclamation would have accounted for the pandemic. [00:48:33] Speaker 06: And any certifications that were made in October certainly would have accounted for the pandemic. [00:48:37] Speaker 06: So it doesn't make any sense for them to say, [00:48:39] Speaker 06: there's a detriment to the national interest based on those. [00:48:44] Speaker 06: And with respect to, for example, H1B visas, the requirements there with respect to the prevailing wage rate that must be paid, the employer must certify that and they must continue paying that wage rate and continue providing the benefits and so on that are certified throughout the employment period. [00:49:06] Speaker 06: And so it's not the [00:49:08] Speaker 06: the certification happens once and then it's over, they have to continue doing that throughout the entire period. [00:49:13] Speaker 06: So that the temporal lag argument really does not save them. [00:49:17] Speaker 04: Let me ask you this. [00:49:20] Speaker 04: You have two basic arguments here. [00:49:21] Speaker 04: One, that this is not an adequate finding because in your view it's false, and also because it overrides the INA. [00:49:29] Speaker 04: Those are two independent arguments. [00:49:32] Speaker 04: Do you have a view about which is stronger from your perspective? [00:49:36] Speaker 06: I obviously think that they're both quite strong. [00:49:38] Speaker 04: I think the findings are... Which is most defendable on appeal? [00:49:46] Speaker 06: From here. [00:49:48] Speaker 06: It's a difficult position you're putting me in. [00:49:51] Speaker 04: Defensible. [00:49:51] Speaker 04: I don't mean defendable. [00:49:52] Speaker 06: Defensible on appeal. [00:49:56] Speaker 06: There's a clear textual hook for the findings argument. [00:49:58] Speaker 06: The president has to find a detriment to the national interest. [00:50:03] Speaker 04: But of course, when you look at that, you're immediately walking into the realm of what's our standard of review. [00:50:12] Speaker 04: Whereas with the override, it's just a question of statutory interpretation. [00:50:19] Speaker 04: Does this or doesn't it override the statute? [00:50:23] Speaker 06: Right, yeah, you're right, Your Honor. [00:50:24] Speaker 06: Then we would have to get into the question of what the standard of review is, but I don't think it really matters all that much here exactly how you articulate it because he's conceded that a false factual finding is- Well, that depends on, that only becomes easy if we agree with you that it's false. [00:50:42] Speaker 04: If it's something between, if it's not false, but still something else, but not, [00:50:51] Speaker 04: irrational, if it's something in between, something more searching than APA review, but not false, then what do we do? [00:51:03] Speaker 06: Well, I don't think it even needs to be as searching as APA review. [00:51:05] Speaker 06: There's no... No, I said less searching. [00:51:09] Speaker 04: It can't be as searching. [00:51:10] Speaker 04: Oh, I'm sorry. [00:51:11] Speaker 04: That's hardly searching at all. [00:51:17] Speaker 06: I'm sorry. [00:51:18] Speaker 06: I've sort of lost the thread of that. [00:51:19] Speaker 04: Oh, no. [00:51:20] Speaker 04: Okay. [00:51:20] Speaker 04: I'm sorry about that. [00:51:21] Speaker 04: Yes. [00:51:22] Speaker 04: That was my fault. [00:51:23] Speaker 04: My question is, how do you make your case if we don't think it's false, but we still think it's questionable? [00:51:31] Speaker 06: Well, there's two things. [00:51:33] Speaker 06: It's not supported by anything in the proclamations. [00:51:38] Speaker 06: There's no justification or explanation for what he's done. [00:51:42] Speaker 06: It's contrary to the INA. [00:51:45] Speaker 06: which makes the finding false, but then at the same time that puts it in conflict with what Congress has done and Congress's judgments about how these programs work. [00:51:55] Speaker 04: That's your override argument, right? [00:51:57] Speaker 06: Right, Your Honor. [00:51:59] Speaker 04: Aren't the two of them awfully related to each other, aren't they? [00:52:03] Speaker 04: Yeah. [00:52:03] Speaker 04: I mean, they're not really separate arguments. [00:52:05] Speaker 04: It seems to me your argument that these findings are false is based on the fact that the INA already takes care of this stuff, right? [00:52:13] Speaker 06: Yes, in part that's true. [00:52:16] Speaker 03: I thought the distinction was where if we get beyond the government's first objection to our reviewability, if we get to what is our limited reviewability, we don't have to get into this sensitive area of what is an adequate finding, how much evidence does [00:52:46] Speaker 03: the president have before him. [00:52:50] Speaker 03: What does he need for a rational prediction? [00:52:55] Speaker 03: And we've gone through a lot of that. [00:52:57] Speaker 03: And then the other one is, well, if Congress has already addressed this, isn't that an easier path for the court, a lower court, [00:53:15] Speaker 03: And I suppose the response is, yes, but that only takes care of part of my appeal. [00:53:22] Speaker 06: Well, I would say that Congress has taken care of the labor market considerations with respect to the entire class, not just part of it. [00:53:32] Speaker 06: It's more explicit with respect to the non-immigrant visas. [00:53:36] Speaker 06: But Congress did take into account labor market considerations. [00:53:39] Speaker 06: It's quite clear from the legislative history that we cited in our brief. [00:53:43] Speaker 06: They lay out the considerations that [00:53:45] Speaker 03: Let me just press you a little bit so I understand. [00:53:49] Speaker 03: Suppose you're president and you have an economic calamity on your hands as a result of a pandemic. [00:54:00] Speaker 03: And you're trying to figure out what to do on a temporary basis. [00:54:06] Speaker 03: And you decide, let's just maintain the status quo for 60 or 90 days. [00:54:16] Speaker 03: No authority to do that. [00:54:21] Speaker 06: Well, Your Honor, the status quo would be to continue allowing the visa programs to operate and for those people to come in. [00:54:29] Speaker 06: And I would point out that to deal with the pandemic specifically, there are different proclamations that prevent people from areas with high rates of infection coming in. [00:54:38] Speaker 06: So we're not dealing with that. [00:54:39] Speaker 06: We're just dealing with the recession aspects of it. [00:54:42] Speaker 06: And so the status quo is allowing the visa programs to operate [00:54:46] Speaker 06: And for example, with respect to the H2Bs, allowing them to come in according to the labor certifications which require. [00:54:54] Speaker 03: So basically your response is no, he'd have to go back to Congress. [00:55:01] Speaker 03: And of course. [00:55:04] Speaker 06: You're saying that if you wanted to restrict immigration with respect to the recession, I'm not saying he would necessarily have to go back to Congress if he could make [00:55:16] Speaker 06: a finding that supported what he was doing, then he might be able to make that decision. [00:55:23] Speaker 06: I think probably that would still run into the override issue because Congress has made this call and has not put in, it could have put in triggers or it could have put in specific provisions allowing for changes in immigration levels in the event of a recession, but it didn't do that. [00:55:38] Speaker 06: And it clearly knew that recessions were possible when it enacted the INA. [00:55:45] Speaker 03: Yes. [00:55:45] Speaker 03: And of course, the president's own comments as to COVID-19 undercut some of the conclusions in the proclamation, but they do reference discussions with two other members of the cabinet. [00:56:02] Speaker 06: The proclamations do reference those. [00:56:05] Speaker 06: It's not clear what discussions occurred or what the content of them was or what findings were made. [00:56:11] Speaker 06: Those aren't in the administrative record and they've not otherwise been produced or put in front of the courts here. [00:56:18] Speaker 06: I think the government conceded in the National Association of Manufacturers case. [00:56:22] Speaker 06: If you look at that opinion, the government conceded that the entire scope of the findings was within the proclamations themselves. [00:56:28] Speaker 06: So it's not clear that they're even, despite what the proclamation says, it's not clear that that actually occurred or that there was anything substantive there. [00:56:35] Speaker 06: Um, and certainly it's not in front of the court and it was hard to use that as a ground to, to support his findings. [00:56:46] Speaker 03: Anything further? [00:56:47] Speaker 04: Nope. [00:56:49] Speaker 03: Thank you. [00:56:50] Speaker 06: I would ask you to enter an injunction and direct the district court to do so. [00:56:54] Speaker 03: Thank you, counsel. [00:56:55] Speaker 03: We'll take the case under advisement.