Get started. This panel is about executive power and immigration. Our own Peter Margulis is going to lead off and give, I think, an overview of the travel ban. And then we'll hear from Josh Blackman and then Sahar Aziz. And then back to Peter. So he's both leading off and cleaning up. So Peter, if you could. Thanks very much, Sharon. So my job here, at first, is to give you just a very brief overview of the travel ban. I say ban, and that's really incorrect because there have been bans. It's a plural. And so what I'll give you is not really an overview, but it's more of a roadmap to what's happened since January when the first ban was announced. So that ban, we'll call 1.0. In that ban, the president issued an executive order that said that nationals of seven countries, and that included Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, nationals of those countries will be banned from entering the United States for a period of 90 days. In addition, all refugees from all of the world will be banned from entering the United States for a period of under 20 days. That ban, as you probably know, led to a great deal of chaos. For example, people were turned away at airports. They were detained. Sometimes they were removed from this country. That included many people, at least some who had visas to be here. For example, students who had left after the fall semester to visit family abroad, tried to come back for the spring semester, and were detained at an airport or sent back to their country of origin. The chaos there led to courts enjoining the first travel ban. As a result of the chaos and the poor reception that the first ban encountered in court, we had travel ban 2.0. That was rolled out in March on the theory that if you don't get it once right, try again.  So I'll tell you what they are. One is that current visa holders were no longer included. So you wouldn't have the same chaos they had with students trying to come back and being turned away at the door. In addition, Iraq was dropped as a country from the list. And it was also made clear that lawful permanent residents were not part of this ban. But they'd be able to come and go as they pleased. That then also encountered a difficult reception in court. And by the way, I need to tell you that the premise of the underlying ban here is that a number of countries are conflict zones. And one country at least, Iran, is a state sponsor of terrorism. So the administration has said, we are not positioned to be able to properly vet all nationals from these countries. We need to have a temporary ban to figure out how we can improve our vetting. And in the meantime, we're not going to admit anyone because better safe than sorry basically was the premise. So as I mentioned, the second ban, 2.0, also encountered a very difficult reception in the courts. There were nationwide injunctions entered, both in the fourth circuit and the ninth circuit. Ultimately, the Supreme Court granted cert in the case an issue to stay order, which said that people could come into the country, even if they otherwise would be subject to the ban. But they would have to show what the court called a bona fide relationship with a US personal entity. That could include a relative that could be as close as a spouse, parent, or child, or it could be a nephew or a cousin and pretty much anyone in between. For entities, it conclude a school that had made an offer of admission to a student, a group that had invited someone to speak, or an employer that had invited someone to get a job for which that person was otherwise eligible under immigration law. The Supreme Court took this case and scheduled argument for early this week for October 10th. People were very excited about that, including my wonderful fellow panelist, Josh Blackman, who was going to attend the argument at the Supreme Court. It wasn't meant to be. But as Josh said, it was not meant to be because we just turned around and then we had travel ban 3.0. That was announced in late September. On the theory, well, you don't get it right twice. The third time must be the charm. The third ban is different in the following respects. It includes a country of Chad. Very few people even paid attention to Chad before this, or maybe as a boy's name or something like that. But in fact, for those of you who know, it is a country in Africa. It's a majority Muslim country. But it also is 40% Christian. It has been the site of armed conflict. And so the premise here was that you had an interagency process that came to the conclusion that there were some countries where we couldn't properly verify the information you received about those countries' nationals. And so for that reason, there was an indefinite ban, not just a temporary ban of 90 days or 20 days, but an indefinite ban, subject to review every 180 days, for Chad, for Iran, for Libya, largely for Somalia. Sudan was now dropped from the list. You also had North Korea included, although we received very few immigrants from North Korea, because North Korea does not let people out, as much as I think maybe you would like to get out of there. In addition, it was included with Venezuela, but only in a very small sense that its families of senior government officials were not allowed in. So that's a tiny percentage of Venezuelans. In addition, Yemen remained on the list as did Syria. So this is a permanent ban on immigrant visas. That is folks who, by virtue of a family relationship, or perhaps an offer of employment, would be eligible to come here and become lawful permanent residents to get green cards. But the new ban did not affect students who would still be able to come here from virtually all of these countries. So it was really a ban on immigrants, an indefinite ban at that, but not a ban on non-immigrants, such as students and, in some cases, business visitors. The Supreme Court decided to cancel the oral argument as scheduled for earlier this week, so Josh had to find other things to do. I kept busy. Kept busy as usual, very industrious. But, and the Supreme Court also declared that at least one of the existing challenges to travel ban 2.0, that is the challenge brought by organizations in the Fourth Circuit, that that challenge was moot. It's expected that the Supreme Court also hold that the other challenge from the Ninth Circuit is moot, and that'll tee up lawsuits against travel ban 3.0, complete our roadmap here. There are a couple of challenges already pending in federal district courts around the country. It's anticipated those challenges will work their way up through the federal courts, and may well get back to the Supreme Court, perhaps as early as the spring of 2018. So that's your roadmap on the travel ban's existing iterations to date. Our next presenter is Professor Josh Blackman of the South Texas College of. Why don't we, can we go to Sahara and say that's not okay? Oh, that's fine. All right, so let's do that. All right, our next presenter, I take it back, is not Josh Blackman of the South Texas College of Law, but Sahara Zeese of the Rutgers University Law School, she's also the founder and director of the Rutgers Center for Security, Race, and Civil Rights. Sure, thank you. I'm gonna take a stand. By thanking Roger Williams University Law School for inviting me, this is my first time here, you have a beautiful campus in a beautiful town, and thank you so much to Professor Margules for inviting me and for mentoring the students through this process. I've been to many symposiums, this is a great attendance, so it's a testament to the hard work of the Law Review students. Okay, so I'm gonna start with, I wanna focus on the role of, well, the relationship, I should say, between judicial deference in the national security context, which tends to be very high, and when it intersects with religious freedom, particularly the establishment clause in this case, but perhaps even religious free exercise clause in future cases. And these cases, particularly the Ninth Circuit and the Fourth Circuit, I say the Fourth Circuit in particular, the IRAP, the Trump, was for those of us who researched this intersection, was very telling about some potential changes and, or I said erosions or decreases in the judicial deference doctrine. So I'll just start with a quote from the Washington v. Trump case, which is, whatever deference we accord to the President's Immigration National Security Policy judgments does not preclude us from reviewing the policy at all, and they cited a couple cases, Rasker v. Goldberg, which was related to conscription of men only and challenging it on equal protection, Fifth Amendment, excuse me, due process claims, and then holder of a humanitarian law project. So the point is there is always rhetoric about, well, just because we grant judicial deference doesn't mean that we're not going to review or advocate our role in judicial review. And at the same time, you have, here is another quote from the Fourth Circuit, which is, the core objectives of modern establishment clause jurisprudence has been to prevent the state from sending a message of non-adherence of a particular religion, that they are not outsiders and not full members of the political community. So in this case, the non-adherence were Muslims, right, non-adherence to the Christian faith, because at least thus far in history, Christianity is in fact, and also normatively viewed as the dominant religion of American society, notwithstanding First Amendment protections. So here are some of the questions that I think that I want to explore and that I'd like you to think about. I don't necessarily have answers for you today, but it's something that these cases, particularly the IRA case has brought to our attention. So the first is, to what extent is the political environment, and in this case, political environment rising Islamophobia, and I'll bring in a few facts to prove that conclusion, and the president's rhetorical attacks on the judiciary, how is that affecting the judge's willingness not to be, or perhaps unwillingness to be as deferential on national security, and in this case, national security and immigration? Two areas where courts are highly deferential. The second is, is the consideration of extrinsic evidence in determining whether the executive action is legitimate and bonafide, which is under the Mandel case, it's kind of a doctrine when you're particularly in the national security context, is this a new doctrine or is it really limited to the religious freedom slash establishment clause cases? And then finally, what can we learn about this litigation and the court's rulings? I mean, we were looking forward to seeing what the Supreme Court was gonna say, so at this point we've got the Ninth Circuit and the Fourth Circuit, the Ninth Circuit focused primarily on the statutory claims, claiming that the executive actions violated the Immigration Nationality Act, the Fourth Amendment, the Fourth Circuit was mainly on establishment clause. So I'm not, I'm gonna pass through this, I'm not gonna focus on this, I provided this because just in case there wasn't anyone to provide, but this is the litigation. So as you can see, this has been very, very active and lawyers working on this have been very, very busy keeping up with it, but I will skip through this because Professor Margulis did a great job of summarizing it. So generally, I would take the position that religious freedom, which includes both free exercise and establishment clause, is privileged in law and normatively in terms of the way we accommodate the way in which we protect and that if you contrast it with racial justice laws or race, equal protection based on race and ethnicity, religion tends to be protected more. And these are the two tests. The test that came up in this case was the lemon test because it was facially neutral. The executive orders were facially neutral. There was not withstanding Trump's statements, there was nothing on them that says, this is for you Muslims, this is, there wasn't anything that said Muslim or Islam on the executive orders, so it was facially neutral and that was part of the government's argument. However, the lemon test says, well, it has to have a secular legislative purpose and so the challengers of the executive order were arguing, this is not a secular legislative purpose, this is actually based on anti-Muslim animus. This is a anti-religion purpose as opposed to a national security purpose. And another interesting kind of outcome, at least in the Fourth Circuit's ruling or finding, I should say, is that they recognize that stigmatization, stress, and anxiety caused by anti-Muslim animus as a cognizable injury for purposes of standing. Now, all of these cases thus far had been about whether to uphold the preliminary injunctions, right? And presumably the Supreme Court was going to rule, perhaps on the merits of the case as well, on the merits of the executive order. But everything that had gone up to the Fourth and Ninth Circuit was really just about the temporary, excuse me, the preliminary injunction, so standing was a big part of that as well. Separation from family and experiencing significant fear, anxiety, and insecurity regarding their future. Now, this had been actually recognized in prior immigration cases. But the reason I'm highlighting number two is because this could lead to more favorable litigation, or I should say litigation that's more favorable to individuals who are of the Muslim faith, who have thus far unsuccessfully brought claims, arguing that the rise in Islamophobia is causing them harm, right? The courts have not been very sympathetic because they're usually in the national security context, so then you're dealing with deference. Now, what's interesting here, again, I'm going very doctrinal because this is where I think these cases are very interesting. So the government argued, relied on Mandel, to say that courts should not look behind facially legitimate and bona fide exercises of executive discretion in the immigration context to discern other possible purposes. And Mandel was a case of a Belgian scholar academic who was officially ascribed to communism and world communism, and even invited by university professors to speak at multiple places. And there was a statute, well, there was a provision in the INA that says if you subscribe to world communism, you cannot enter, but the AG can grant a waiver, the AG did not grant a waiver in his case, and so the university professor sued and challenged that, okay? So this was, again, a national security slash immigration case. However, you've got other cases that counter that. Okay, so let me now go to, this is the end of the doctrinal setup. Now, let me look at, let me go to why the courts decided, no, we're not going to follow the Mandel, we're going to look behind the executive order, which doctrinally is very new for us who have been studying national security. Usually the courts, or if the government says it, we don't see anything facially unconstitutional or we're going to just defer. So the first thing that the courts did is they said, you have not proven to us, we're not just going to take the conclusion that you're claiming that allowing these individuals, there's over 180 million people potentially from the seven countries in the first order, that their entry would be detrimental to the interests of the United States, and that language comes from the Immigration Nationality Act, where that grants the president discretion and authority to exclude individuals if he makes that determination. And the courts, rather than saying, okay, if you say so, we will defer to you. They said, no, you haven't really brought any evidence forward to show that in fact, there is going to be a detrimental interest to the US. There was no mention of instances of domestic terrorism involving nationals from Iran, Libya, Sudan, Syria, or Yemen. There was no finding that vetting standards were inadequate. There was no evidence that refugees' entries is a threat to the United States national interest. And there were two DHS reports that ultimately concluded that citizenship is simply not a reliable indicator of a terrorism threat, and that foreign-born-based terrorists would so, quote, unquote, become radicalized, had actually done so years after they'd been in the United States. And they were very few, a number, and very few of them were from those seven countries. So there was a disconnect between the claims of the government and the facts, at least in the national security context. So ultimately, the Fourth Circuit said, national security is clearly a secondary post-hoc rationale. And this is really about anti-Muslim animus. Now, why did they, what was the other evidence they used for that? Before I go to the direct evidence with Trump, let's look a little bit at these numbers that many of you in the audience may not be familiar with, and these are things I've been working on for pretty much 16 years now since, with communities and as an academic and as a former litigator. So the polls show that there is a very high level of distrust, suspicion, and negative opinions about Muslims and about Islam in ways that connect the religion and the adherence of the religion to violence, to terrorism, to disloyalty. And this was something that many of us who worked on this thought it was going to last two, three, four years as backlash to a very, very major terrorist attack.  And it's something that we just have to accept as a reality of our political system at this point. So there are multiple polls that have shown that have essentially proven that. And I bring these not necessarily to say this poll is particularly accurate, but just to show the trends that every poll is showing the same thing. So this is 2010 and if you see what is your opinion at each of the following religions, you see that when you look at Islam, it's not too favorable, 22%, not favorable at all, 31%, and 33% somewhat favorable. And if you compare it to other religions, it stands out in terms of having, people having negative opinions. When you ask Muslim Americans themselves about their experiences, because those opinions we're not concerned about, I personally don't care what other people's opinions are. We live in a country where we have freedom of thought and association. But we do care if people act on those opinions in ways that violate other people's rights.  So you can see that the numbers are, they're troubling, that's a high percentage of people who are actually experiencing it. Similarly, this is another agallate poll of people who have experienced religious discrimination. Of course Muslims are not the only ones, but they have 48% have reported that compared to other persons who were interviewed. And we also have seen rises in hate crimes. So the very large block there is 2001 right after the terrorist attacks. And if you notice before that how low it was, and since then it hasn't really subsided. In 2015 we saw a huge uptick, and this was at the peak of a lot of the anti-Muslim rhetoric among the presidential Republican candidates. And so people started acting on what they were hearing on Fox News and other conservative media outlets where Muslims were effectively scapegoats just as immigrants are in general. So people were being targeted, mosques were being attacked, and their livelihoods were being threatened. And here's one from the Council on American Islamic Relations showing mosque incidences. So mosques have been targeted because they are where Islam is practiced. Now, and I just bring this up because this is where I do think it matters, partisan politics matters because Trump is a Republican, he ran as a Republican candidate and he won, those are the people who voted for him. And there are many polls that show that this negative perceptions, these negative opinions, and these stereotypical opinions of Muslims is predominantly within people who identify as Republican. And we can have a conversation about why that is, but his base, the people who voted for him, they're a pretty anti-Muslim. So when he speaks they listen to the extent he's still popular among his base. Okay, so that's the political environment. And then how does that affect Trump, which how does that affect the executive ban? This is all this is extrinsic evidence. The courts did not look at these polls that I just highlighted. I'm bringing that just for your attention. What the court did do in the Fourth Circuit is it said, okay, we're going to look at what Trump has said in the past and what led to this at least first executive order, which was maybe a little over a week after he was inaugurated. So this was on the Trump campaign website until February 12th, 2017, which I think shows incompetence by the president's administration because that's kind of smoking gun evidence if you're issuing an executive order that's being challenged legally as a Muslim ban. But it was on his website, says Donald Trump's calling for a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on. March 9th, 2016, so this is during election season, I think Islam hates us. There's a tremendous hatred there. There's an unbelievable hatred of us. We can't allow people coming into this country of this hatred of the United States and of people that are not Muslim. This is March 22nd. We're having problems with Muslims and we're having problems with Muslims coming into the country. You need surveillance. You have to deal with the mosque whether we like it or not. These attacks aren't done by Swedish people that I can tell you. I called for a ban after San Bernardino and was met with great scorn and anger, but now many are saying that I was right to do so. Now there's a big debate as to whether this extrinsic evidence should even be permissible to analyze the purpose of the executive order and that is a legitimate legal discussion in terms of should the court have gone back a year while he was candidate because as you can imagine, this can create some chilling effects on campaign rhetoric and the ability for candidates to be brutally honest about their views. However, again, this is someone who is essentially making, keeping his promise, keeping his campaign promises, the president of the United States and the courts decided and they didn't have to decide this and this is where I think it was quite remarkable in the Fourth Circuit. They could have just ignored this and that's what the government's position was. The other thing that didn't lend was not in his favor in terms of the purpose of the executive order was the prioritization of refugees. This is in the first one then for religious-based, religious minorities in these countries. Well, in refugees altogether but including in these countries and who are the religious minorities? Most of them are Christian. There are some Zoroastrians or some Jews. There are some other smaller faiths, Bahá'ís but Christians are the largest religious minority and he had gone on Christian broadcast television saying, I really wanna help the Christians in the Middle East from all the persecution that they're experiencing from Muslims and so this is for that purpose and in fact, 82% of Muslim refugees from 2014 to 2016 were from those seven countries. So all that put together, in contrast to the lack of evidence that there was a threat from those seven countries, at least a threat that would have warranted banning 180 million people potentially from entering was a major mismatch to his disfavor. And then the other thing which is interesting and this is something I just throw out there maybe as an academic point to look at the future is to what extent has his rhetorical attacks on the judiciary which is really problematic from a rule of law perspective and respecting the preserving legitimacy of the courts as an institution is to what extent did that cause individual judges without admitting it to be more scrutinous and say, you know, we're not gonna defer. We're not going to defer to you. We don't know that, I'm speculating but he is not hitting that. Okay, I'm not gonna go over executive order three because that was already done very well. I just wanted to highlight because executive order three is in contrast to executive order one and to some extent executive order two is much more properly, it has gone through more proper procedure but the question is, does it still have the same purpose? And the fact that you have this extensive record while he was campaigning for executive order one and executive order two, does that, are the courts gonna still connect that and see that as a spectrum or are they going to take what I presume as the government's position is just look at the third executive order and don't look at anything else and we went through the interagency process this time, we went, did factual investigations, there's much more information about the basis and it's a lot more narrow in terms of its scope, not by countries per se but by, for example, now students can come and workers can come from these countries and that's because there were amicai briefs by businesses and by universities who were very upset by this ban who have students and there's many other exemptions for legal permanent residence, dual nationals, et cetera so he did rectify many of the problems at least that could be easily challenged legally from executive order one but that doesn't take away from the fact that there is a long record to what culminated in this and so the question I think will be what will the record be? If it does go before the appellate court, if it does even go to the Supreme Court which I'm not sure if it will grant right a second time, will they, how big will the record be? And so just some concluding remarks is if we have another terrorist attack in light of this background will we see more extreme responses? Will we start seeing massive immigration detention? Will we start seeing Muslim registries which is something that I'm working on, a paper I'm working on, internment, expansion of the admissions ban and have or, and if that is the case has this travel ban litigation effectively kind of turn the corner on judicial reference in national security? Some argued it's already been turned on immigration, Kevin Johnson of UC Davis has already argued the plenary power doctrine is starting to be eroded and be narrowed but in national security we haven't really seen much of that so those of us who take my position it's tends to be more individual rights focused and more scrutinous of executive authority visit within national security. Perhaps the Fourth Circuit's opinion may be evidence of more favorable decisions for individuals who are caught in the dragnet of the post-911 security paradigm many of whom are Muslim, Arab and South Asian. So with that I will end and thank you very much. Next up is Professor Josh Blackman of the South Texas College of Law who can also be found blogging at joshblackman.com. Professor Blackman. I'm a blogger first and a professor second. This needs to be true. Thank you so much. Give Peter a round of applause and he's been an absolute treasure to work with and also the editors of LRV thank you for having me my esteemed colleagues and people in the audience speaking later. There's a lot to say about the travel ban. I'm going to focus on one small part which is the interaction between immigration law and the establishment clause. All the decisions in the Fourth Circuit and elsewhere have simply presumed that our domestic establishment clause case law applies with full force to the government. My talk today will suggest that might not be the case. Two decades ago immigration scholar Enid Trucio Haynes observed that applying the Supreme Court's establishment clause jurisprudence to immigration law is quote particularly awkward. Why? Under either the so-called lemon test or the related endorsement test a facially neutral law with a non-secular purpose is constitutionally suspect. That is a law that prefers religion over non-religion is probably unconstitutional. A law that overtly prefers certain religious sect over others is almost certainly unconstitutional. Yet immigration law routinely does all of the above and either Congress nor the courts have expressed even the slightest concern for the establishment clause until Donald Trump. It seems where President Trump is a common law fact pattern in the making. Everything does test various boundaries but I wanna walk through my talk, some history on this suggests that there's probably a good reason why our immigration laws not subject to the establishment clause. Since 1952 when Congress first codified the Immigration and Nationality Act our laws afforded quote special immigrant status to aliens that seek to enter the United States quote solely for the purpose of carrying on the vocation of a minister of that religious denomination. Here Congress gives a benefit exclusively in the fact that the alien is a minister. Atheists need not apply and for those who check such things one scholar observed that the legislative history of the 1952 amendment is replete with references religious purposes. Referencing the role that religion plays in shaping American culture. The purpose and effect of this provision is unmistakable it's advancing religion. Countless BIA, the Board of Immigration Appeals decisions have construed this provision. None raised even the slightest establishment clause doubts. Were the doubts about the statute not strong enough take a look at the regulations they implement them. The regulation I'll read it to. Religious vocation means a formal lifetime commitment says this in the right. Examples of vocations include nuns, monks and religious brothers and sisters. Wow, that's pretty specific isn't it? This is clearly framed to reflect the religious structure similar to that of the Roman Catholic Church where officials have a lifetime commitment. It doesn't apply to other faiths which have some less permanent approach to devotion, right? This is a very explicit endorsement of Catholicism without any shame. Professor Triseos Haynes observed that non-traditional religions that are not organized in comparison to the Catholic Church with nuns and monks have to now explain their doctrine to some government official. And these other faiths are now subject to a far more searching inquiry by bureaucratic decision makers. So if you're Catholic, you waltz right in. If you're a minister of another faith you gotta justify yourself. And if you're an atheist, good luck. Professor Triseos Haynes' study of the legislative history reels a preference to explicitly admit Roman Catholic members because there's a shortage of priests in the United States back then. In any other context where Congress would so nakedly prefer religion over non-religion and Catholics over non-Catholics the law would have been enjoined decades ago. Yet this provision has been in effect for a half century. No one has ever doubted it was unconstitutional. Though the vocation statute favors religious aliens over non-religious aliens, it is facially non-denominational. That is on its face, the law doesn't actually prefer Catholic priests over Jewish rabbis. So maybe the regs are unconstitutional but the statutes fine. The same cannot be said for the so-called Lautenberg amendment. What are these? During the 1980s, as more Jewish people were admitted to immigrate from the Soviet Union, there was a movement afoot in the Reagan administration to rethink this almost automatic granting of refugee status to Jewish aliens. In 1989, Senator Frank Lautenberg of New Jersey introduced a response to this that became known as the Lautenberg amendment. And this statute stated, I'll read it to you, aliens who are or were nationals and residents of the Soviet Union and who are Jews or evangelical Christians shall be deemed to be subject to persecution unless there was sufficient evidence to contrary. It says it right there in the statute, Jews, evangelical Christians. That's a very explicit endorsement of religion and specific faiths, Buddhists need not apply, right? Muslims need not apply. There's an explicit reference to specific faiths and their evangelical Christians and Jews, right there in the statute. No one ever suggested that this was unconstitutional. This gives a benefit that they now presume to be persecuted and often, if you do a silent law, making that case is very difficult to show has a person actually been subject to a persecution. This rebuts the usual framework. Several people objected to this bill, but no one as far as I can tell in the history thought it raised any establishment clause concerns and it passed 97 to zero in the Senate and it passed 358 to 44 in the House. So as a general matter, many core aspects of refugee law raised establishment clause concerns. For example, a determination of whether an alien faces a quote, well-founded fear of persecution based on religion, this unnecessarily entangles the government deciding the contours of spiritual doctrines. The Lautenberg amendment, however, does not merely prefer claims of religious aliens or non-religious aliens, it grants preferential treatment to two specific sects within the Soviet Union, Jews and evangelicals. There is no mistake to purpose the law and its effect was patent. As a result of the amendment, the rate of applicants interviewed in Moscow that were proof refugee status increased from 78% to 98%. The reason the prospect that Jews and evangelicals would get refugee status. Under the lemon test, this is facially invalid, yet I've never found even the slightest concern about the statute. So my tentative conclusion, I've been working on this for months, is that there is no establishment clause applied to foreign policy and immigration. Simply does not apply as a structural matter, this makes sense, our rights to our own people. We don't extend our bill of rights abroad. Indeed, the reason why the travel ban cases are establishment clause cases and not free exercise places is that aliens abroad have no free exercise rights. They don't have them. They don't have equal protection rights. They don't have due process rights. The reason why they brought this as establishment clause is it's structural as well.  It's a very bad fit. These are really free exercise cases or maybe due process cases, but the aliens that actually simply do not have these rights. So this entire case is trying to shoehorn, where it really doesn't fit. Now, this observation that my tentative conclusion, I think is buttressed by the now familiar statute, eight USC 1152A1A. This was enacted as part of the 65 Immigration and Nationality Act and it was designed to eliminate quotas in immigration policy. And what this statute says is when the government is issuing visas, they cannot discriminate on the basis of race, sex, nationality, place of birth, or place of residence. Now, if you read that quickly, you may gloss over something that's missing. I'll do it again. Race, sex, nationality, place of birth, or place of residence. What's missing there? Religion, yeah, you hear that grouping so often you think you take it for granted. This choice is deliberate. It is perfectly permissible under the statute to discriminate on the basis of religion when deciding whether to issue an immigrant visa. Not immigrant visas aren't even subject to the statute at all, but immigrant visas are. So I reiterate, this is tentative, right? This has never been confronted by any court but there's a long, unconspirated practice that should give the courts pause before extending lemon to this context of which Congress has at least some plenary powers. I first raised this on a blog post back maybe February, March and I started using the phrase domestic establishment clause cases. The governments are using a similar phrase and I don't know if they got it from me or if it's just great minds think alike, but I think ultimately the courts will have to address the fact does the establishment clause apply? And if it does, are there other aspects of immigration law that are now unconstitutional? And if they are, are there gonna be new raft of challenges whenever someone gets to deny a visaing? Ah, you're denying my visa because of a disfavor of my religion. So it creates an entire new wing of immigration law that will create lots of jobs for law students, no doubt, I'm sure. But I think the court should hesitate before extending this doctrine at all. If the establishment clause doesn't apply, these cases are very easy to resolve, very easy to resolve. And it's, I think, important that neither the fourth or the district court in the Ninth Circuit address the fact that this clause that constitution may be totally inapplicable. I'll stop here and I'll turn it back over to my good friend Peter and they welcome your questions later. Thank you so much. Thanks very much. I'm gonna at least assume as a given that Josh is right, that the establishment clause is kind of a blunt instrument for dealing with issues of foreign policy because of the complexity of that area and the mix of motives that inevitably creep into foreign policy and national security decisions and they trigger judicial deference. Does that mean that there's no basis for challenging travel ban 3.0? That's the ban that is on the table now. It's the TIDA for judicial adjudication. The short answer for me is no. There are ways of challenging the ban. And you need to know frankly that when it comes to the second travel ban, the one that was issued in March, I was somewhat grudgingly willing to support its legality. Why? Because it was temporary in nature. And I think that the executive does have the right under the immigration statute to at least enact a temporary ban to make sure that vetting of foreign nationals is consistent with American national security. The touchstone though is the immigration statute and it's a statutory argument that I think is the most powerful weapon against the third iteration of the travel ban. Let me talk a little bit about the provisions of the statute that I think are most directly relevant. First, the provision that the president has relied on. That is section 1182 F of the Immigration and Nationality Act, which we'll call the INA. That provision allows the president to suspend entry of any alien, that's the statutory terms, I'll use that, any alien or class of aliens when entry would be detrimental to the interests of the United States. In theory, that's a pretty wide-ranging weapon for the president, but it's not the only provision that is relevant. You also have to consider the provision that Josh mentioned before in a slightly different context, which is 1152 A1A, which bars discrimination in the issuance of immigrant visas. You need to realize the context for the enactment of that provision, unlike 1182 F, which is enacted in 1952 at the height of the Cold War. 1152 A1A comes from the 1965 act that I mentioned when I opened the conference. That is a landmark legislation with Senator Ted Kennedy spearheaded that got rid of national origin quotas. It said, we don't want to discriminate on the basis of nationality, particularly with respect to the countries in the so-called Asian Pacific Triangle that it received just a tiny number of visas in the 40 years before the 1965 act. Senator Kennedy said, and both his brother JFK and President Lyndon Johnson upon signing the act said the same thing. That's a legacy of discrimination that we need badly to live down. We need badly to transition from that to a much more neutral system that is based on values we all can share, like family reunification, making sure that kids can be their parents, spouses can be together. That is the value that underlies the 1965 act, that crucial value of family reunification. So any measure by the president under 1182 F needs to be informed by those anti-discrimination values in 1152 A1A. And that is the problem with travel ban 3.0. It amounts to an indefinite and arguably a de facto permanent ban on immigration from particular countries. It's not the Asian Pacific Triangle, it's a newer version of that, sort of version 2.0 of that, if you will, which is countries largely in the Middle East or in North Africa. Those countries are targeted by the ban. Why are they targeted? Well, the administration says in the ban that they're targeted because the administration has applied what it says are neutral criteria, identity management, which might include, for example, do you have electronic passports? It's a prudent measure for ensuring that people are who they say they are. Or do you make sure you report passports that are lost or stolen? Because we know those can be used by criminals and by terrorists. The administration also said and considered risk indicators. For example, do you cooperate with the US for the removal of nationals of your country? Do you take them back once they engage in conduct that the United States wants to get rid of, including a conduct like criminal offenses of the kind that Mayor Laws had talked about earlier in the panel? The problem with the travel ban is that it doesn't really live up to examination of those criteria. So for example, when it comes to electronic passports, there are many countries that don't issue electronic passports and there's at least one country, Somalia, that is on the list in the travel ban that does issue electronic passports. But there are many countries that, in fact, don't issue them, they are not on the ban. What else? There are at least 170 countries that rarely or never report lost or stolen passports. Why? It's kind of embarrassing. So they want to do it. That's most of the countries in the world. I thought that most of those countries are not on the list. Similarly, there are many countries that, the better or worse, don't cooperate with the United States efforts to remove their nationals. That includes countries like Cambodia, Cuba, Unaman. A whole bunch of countries, as many immigration lawyers know, because they deal with folks who come from those countries. Those countries are, for the most part, not on the list either. Well, in short, the travel ban is markedly, radically, under-inclusive when it comes to dealing with the problems that it identifies. Most of the countries that have those problems are not on the list. And that radical under-inclusiveness is a traditional hallmark of discrimination. Couple other facts. When you look at foreign nationals who engage in terrorism-related offenses. What the Department of Homeland Security found in a couple of draft studies that were issued several months ago was that most of the folks from foreign countries who commit those offenses have been here for many years. So that means it'd be very difficult to screen them at entry to determine whether or not they're threats. In addition, most terrorism offenses that are centered in the U.S. are actually committed by folks who are born in the good old USA. They're not committed by foreign nationals at all. And finally, the measures in travel 1.3.0 will target not just adults who might commit crimes, certainly some do, but also target kids of any age. A two-year-old is not gonna have a criminal record. Not gonna have committed terrorist offenses. But those folks, if they try to emigrate, are subject to that same ban. That's why I think that this is basically a de facto ski for cutting down on legal immigration, which the administration has announced it actually wants to do. And cutting down on legal immigration from specific countries, which the INA forbids the government from doing. That is also fundamentally antithetical to Congress's plan. As Chief Justice Roberts talked about, a plan in King v. Burwell, Obamacare case. Congress's plan was to further immigration, particularly for family reunification. And it's that value that is undermined by travel ban 3.0. That's why I think it's vulnerable to challenging the courts. I do believe also the courts will resolve this matter through recourse to statutory analysis. They won't have to get to the Establishment Clause issue, which as Josh rightly pointed out, does have some problems. The statute itself gives the answer. I'm gonna give the panelists a chance to respond to each other or to ask questions to each other. And since you went first, Professor Z, you can respond or ask questions. Okay, so first I wanna say Professor Blackman, you brought up some interesting points and it certainly triggers some more research that I'll be looking into. Just on its face, without having looked at the Blackburn Amendment in detail, the way you described it, I see it more as a preference for a prioritization of particular persecuted individuals for purposes of asylum, as opposed to a ban or a barring of those who are not of those face. At least, and to the extent that that, I think that's very different than what we're saying here. I'm not conceding that your analysis is dispositive. I think it's relevant and it's something we should consider. I don't know if it's kind of a slam dunk that therefore Establishment Clause doesn't apply to the immigration context, but I do see it as distinguishable from what's happening here, which was no one could come in at all unless you were non-Muslim effectively. But putting that aside, I think what you're raising is whether or not there is standing and whether it's a cognizable injury, right? I didn't mention standing at all. Well, when you said that, for example, the individuals that are abroad do not have Establishment Clause rights, that they can't even come and bring a claim. I said they don't have free exercise rights. And Establishment Clause rights. The Establishment Clause is domestic, right? And the Establishment Clause doesn't apply to the present decisions abroad. Right, but you were critiquing the executive order saying that those who are abroad don't have Establishment Clause rights. No one has established, it's a structural provision of the Constitution. Right, I understand, but I'm just trying to respond to why there was at least standing and that which means there was an actionable claim under the Establishment Clause for the executive order, challenging the executive order, which was primarily by those who were in the United States who were family members or who had the bona fide relationships for those who were going to be harmed who were abroad. And so I don't think that we're disagreeing as to whether some person who has no visa has never entered the U.S., would be otherwise an initial entry into the U.S., has Establishment Clause rights or standing to file the claim. I think we agree on that. I think the issue is, when you have an executive order that effectively stigmatizes or shows that one faith is disfavored over another, and I think the point is disfavored, then, and those people are in the U.S., then I think you do have an Establishment Clause problem even if it's in an immigration enforcement context. Does that make sense? The Establishment Clause is a structural provision. None of us have Establishment Clause rights. We have free exercise rights. So when the government tells us that we can't worship, we can't do various things, that's something that we can bring back on our own. The Establishment Clause is a weird constitutional provision because it limits what government can do. You have standing to assert it because maybe you see a crash or you see a tank commandment's monument, it's alike. But it's just, it's a misnomerancy of rights under the Establishment Clause, I just, that's, yeah. But if you can't enforce it by filing regulations and how? You're standing because, for example, you witness a tank commandment display or a crash for the rights action they have for the government. You don't assert your own Establishment Clause rights. Okay, I think this is more of a legal terminology debate. I mean, this is more of a legal debate. But my point is, if you're arguing that the executive action is not violating the Establishment Clause, I don't, because it's an immigration related action, I'm not convinced that the Establishment Clause doesn't apply categorically. If you have individuals in the United States who are then going to be, who will suffer harm, a cognizable injury. Now I think that the issue then is, is there injury, and this is why I brought it up, is this is the first time we've seen a court say the stigmatization effect could be a cognizable injury. And that's actually quite radical. And I don't know, I mean, if the Supreme Court had reviewed the case, and they could have reversed that. If they had affirmed it, it would have created more litigation, individual rights litigation. I agree it was radical. I think it was quite radical. Can I first, just for a second, because if I understand your point is, you might agree that there was standing, that is that people suffer injury. Some of the plaintiffs are standing, yes. Right, but you think just on the merits, the Establishment Clause doesn't apply to. This is an argument about, another immigration case, Verdugo, Riquitas, right? Who are the polity, right? Who are the people protected by the Constitution? The case last year, the Cross Porter shooting case, right? Who's protected by the Fourth Amendment? These are very tough questions. And my reading of half a century of American law is that people abroad seeking entry are not going to benefit from our polity in the sense that they're subject to the Establishment Clause. The stigmatization argument I think was, she's right, it's quite radical, that people here feel stigmatized based on how decision-affecting those abroad makes them feel, that I don't think works under Clapper and other standing cases. But as a general matter, I need to see something from the Supreme Court before I'm going to jump and rule that McCreary County applies. That the same way we treat a tank can explain to courthouse, we treat the decision for overseas decisions. I would want to know. But it's not just affecting those abroad, it's affecting those here, their family members. But I think their effect under the INA, not under the Establishment Clause. I think the stigmatization argument that's been advanced quite well by a number of the briefs, I think just has no grounding in case law. Could I ask a question about, just to probe your view on the merits, that is your view that the Establishment Clause just doesn't limit the president's or I take the Congress's authority to decide who can come into the country. And I take it then the campaign Muslim ban could have been adopted without any constitutions from that. He could have issued an executive order that said no Muslims can come into the country. We wouldn't have to go through the whole charade. Well, I think Mandel does allow for facial review. And if on its face it lacks, this is a due process case. Let me finish this. I don't think the Establishment Clause would have stopped the Muslim ban. I think it's actually a violation of due process because it lacks any rational basis. Say that we're going to simply stop an entire religion, Vilnan. I think that actually flunks rational basis review. And that does apply domestically to challenge it. And I think family members who would have had relatives enter would have stand to challenge it. I think a lot of the people, Dr. Oshik for example, his mother-in-law want to enter. I think he has saying her behalf. And irrespective of stigmatization. Now the other claim was the mosque that Dr. Oshik worked at, the members of that congregation, they also had standing irrespective of the pleaded individual family members. That I think is a little bit over broad but individual members would have had standing if they were denied entry for a close relative. I just want to probe a little bit of the stigmatization. So if you have, let's take the Landberg amendment and flip it. And it says that if you were a evangelical Christian or Jewish, you were presumed not to be persecuted unless you could prune them otherwise. And everyone else didn't have to have this kind of additional burden. You don't think that that would signal a message to the Jews and the evangelical Christians in the United States that the government is essentially favoring or disfavoring your faith over other faiths. And there isn't, I mean, what's the purpose of the establishment? Is it that narrow to just simply say, we put the 10 commandments and we have to put everybody else or we can't put anything? Or is it also the more broader normative idea of we don't want to make certain individuals who are lawfully present in the US, whatever their citizenship status is, to feel like they're outsiders, they're inferior, that they are disfavored by the state. That's the monk and sister in non-provision, exactly described. It's been the books for 50 years. That if you're not a Catholic minister, then you get disfavored status for applying for this visa. Isn't there a difference though between the Lautenberg amendment and the minister amendment, both of which basically put out a welcome mat to certain groups and this provision, which is a ban. I mean, isn't there a difference between a welcome mat? But it's not actually a ban on religion though. But I mean, we keep saying it's a ban. You said that the establishment clause would have allowed the muscle ban itself. Not a, yes. So that's why we just, let's finish the question. I'm just trying to get to understand your view. That's all I'm trying to prove. So I wanted to just lay out what you're saying. That the precedents for laying out a welcome mat should also justify a complete ban on a religion. That's what you're saying. The case law doesn't draw a distinction. A favored religion is disfavoring of others. The two sides of the same coin. By welcoming some excluding others. And under the establishment clause, that's no good. But the broader question is, we've had these statues in the book for years, for decades. Maybe they're wrong. Maybe these statues are unconstitutional. But the idea that making people full stigmatized based on how certain immigration decisions either admit or don't admit people, that is indeed a radical change in law. And one that I think the Fourth Circuit didn't even acknowledge. All right. I wanna at least be able to take a few, do we have a few minutes to take questions from the audience? All right. Well, let me open that up. Well, I'd like to focus on Josh's question as well. No gathering that includes both Josh and me would be complete without our arguing with each other. We're not at our own, no. Last time we spoke, we're both under oaths. I guess we have to agree to it right now. So now I can lie. Your arguments about the history of the establishment clause were extremely thoughtful and I have to confess, I had never considered that line of argument before. And by the way, there's another case you could even add to your arsenal. The Supreme Court, I wanna say in the 1920s decided a case called Holy Trinity Church. I cite that one in my article, yeah. Okay, yeah. Where the Supreme Court created out of thin air an exemption for religious ministers from the express statutory bar on contract laborers. So your point is very well taken. Nonetheless, I don't know that it follows that the immigration field is immune from attacks based on the establishment clause because I'm sure we could think of examples in fields that have nothing whatsoever to do with immigration, in which you could also see religion being favored or disfavored. For example, in Congress, as far as I'm aware, they still begin with a religious message from. The chaplain. From the chaplain, exactly. I think it was Congress by statutes that added the phrase under God to the Pledge of Allegiance. I'm not sure whether that's still in effect. So I don't know that your examples prove that the establishment clause doesn't apply to immigration any more than it would prove that the establishment clause doesn't apply to any other field, which we know it does. But the second thing is I wanted to push you a little bit on this and Professor Goldstein raised part of this issue as well. Could Congress, under your logic, constitutionally pass a statute which says all Jewish aliens shall be removed from the United States immediately. We'll respect due process. You'll have the right to go to a hearing and prove that you're not really Jewish. I know, I understand you might argue that's not. In the United States or outside the United States? Even in the United States. Because you said that's a different story. They have rights. Well then you're defining immigration to mean just exclusion, not deportation. I said outside the borders. I mean you have Miranda rights, right? If you're in the United States and you're undocumented, you get pulled over, you have the right to an attorney, you get a right to a right. So I think there's a big dichotomy inside and outside. Okay, so just to clarify then, would you, your assertion that the establishment clause doesn't apply to immigration, you would recognize that it applies to deportation and not just to the mission. Oh yeah, once you're in the US you get a panoply of rights that you don't have outside, absolutely. What if you're a lawful permanent resident and it happens to be outside the States? No, and I think that applies to you as well. I think you have a new process clause, you have a vested property right. That's why the version one point was such a mess, because LPRs, the green card holders, they were stopped to the border. They have a vested property right, they do have two process rights, and that's why the Havies corpus positions were properly granted. Okay, but what about the argument then that the various counter examples you've mentioned don't prove that immigration is immune from the establishment clause any more than other non-immigration examples. So I also teach common law, not just, I don't teach immigration law, there have been challenges to the flag, there have been challenges to prayer in Congress, there have been challenges to prayer at graduation, there have been challenges under God, those have all been appelled. There was, immediately, those things were challenged. There have been dozens and dozens of challenges. These sorts of things have simply never been challenged, but the Trinity case is good, I actually have an entire discussion. The 1952 reg that I, or statute, derives from the Trinity case, because Congress, like you said, holy crap, Supreme Court made this up, let's actually codify it. So the 52 act actually codified the Church of the Holy Trinity decision. That was like the genesis of it, but very good. So help me God. Thank you. Thank you. I have to admit, one, it's extraordinarily provocative. Also, a little daunting. Obviously you folks probably have superior knowledge. But one of the things I was thinking, by the way, some of your history, the 50s Catholics were not a favorite group in this country. Kennedy kind of surprised everybody by winning election. Under God did come in in the 50s during the Red Scare. A term that almost we never use anymore, I was a legislator, now I'm a judge, is that the legislature actually has the authority over a lot of these things, and then delegates it to the executive. I think that the legislature has every authority, and by the way, this isn't a question, really, it's probably more of a comment, to make legislative findings with regard to certain things. For instance, who is being prejudiced against, who is being persecuted, or they can just give that to the executive to determine. I think the legislature has every authority before they delegate the authority to the executive to make a determination of what in particular they want the executive to do. In this instance, the president of the United States has taken broad authority that was not limited by legislation and expanded it, I think, way beyond, well, let's halt way beyond what anybody intended. And therefore, I think it is perfectly appropriate for a court to look into the blanket authorization, the purposes of that authorization, and whether or not the executive is in fact following through on that authorization. And in that instance, as long as they have standing, which I do believe is quite frankly a very major issue here, they should be able to assert, obviously, free expression. And in the context, I would also say establishment, in that as people have suggested, if there were a provisional presidential order that said only Christians may come in, then I believe that would almost inevitably trigger some sort of response under the establishment clause. But again, very provocative, very interesting. I tried. I actually admire that you were willing to say these. So I'll answer the question, I think, in two ways. There's a legitimate non-delegation doctrine question here.  There's no time constraint, right? There's no findings of fact. It's really open-ended. If it was just a statutory question, I think there are legitimate non-delegation doctrines, but there's not. There's Article II, and I've written this before. I think under the Article II inherent powers, the president doesn't need the statute. And I think it brings us to the first year of Youngstown. I think he has a statute and he has his own powers, and that's a pretty good ground for the courts giving minimal scrutiny in this regard. I disagree with you. I just think, and the courts showed it in Maryland, in Hawaii, in Washington, in the Fourth Circuit. I mean, the NICER was a more statute story, but that's also a limitation. I don't think that he has a blank check. He can't just claim national security and without any factual basis. I don't think we're disagreeing. Has any president ever made findings before in the past? Has any president one? Who invoked 112F ever made any findings? That's not the only thing that he invoked. The answer is no. Carter, Reagan, presidents have invoked 112F with no findings of fact. But that wasn't the only thing that he was invoking. It's also a much more sweeping use of that section than ever before. Those, President Carter and the other uses of these sections were for very narrow circumstances. This is country-wide ban. So it may require greater justification. And it also affects people who are also permanent residents. I realize you may be arguing based on the third executive order. I'm arguing based on the first executive order with the assumption that one, two, and three are connected and that effectively, Trump is covering himself because the judiciary held him to account and said you cannot abuse your authority to this extent. Kurt. Good morning, Curtis T. Haynes, class of 2019. Thank you for the panelists for coming and having this discussion. I have two questions. One for Professor Margulies and the next question is for the other two panelists. Professor Margulies, I believe you said that the executive ban, in a way, hinders legal immigration, if I'm correct. Correct. Could you, I guess, address the question about immigration law in general and whether immigration law, as a whole, I've heard the argument that, as a whole, it hinders legal immigration? Well, we allow in hundreds of thousands of legal immigrants every year. And the 1965 act that I spoke of is probably the greatest experiment in the possibilities of legal immigration in the history of the world. It's resulted in somewhere around 40 million people coming to this country legally. Of course, we don't let everyone in and there are strong national security and other reasons why we can't do that. But we do better legal immigration than just about any other country. There is an issue about refugees. So one thing we haven't really talked about is that although refugees are exempted from travel ban 3.0, the administration has also taken action that will result in substantially fewer refugees entering this country. Namely, the administration has dropped the ceiling for refugees from 100,000, which was under President Obama, to 45,000. That's pretty much a historic low for the emission of refugees at a time when hundreds of thousands and perhaps millions of people are at risk all around the world. So to that extent, the president has that authority under the law. But to me, exercising authority in this way was really a very ill-considered move given the needs of folks around the world for some relief. And so to that extent, I think there's an additional problem that certainly bears examination. Are there other issues about immigration law? For example, should we remove people who've committed crimes here, which is the issue that we've talked about before? Or should we say they paid their debt to society and then they really sat in the same shoes as a U.S. citizen who's committed a crime? That person should be allowed to reintegrate into society. Those are legitimate issues as well, which we need to discuss. Thank you for your response. Just one more question for the other two panelists. How do you think illegal immigration and this idea of globalization are related? I'll pass. It's not my every expertise, but I defer to my colleague. Can you elaborate on that question? It's a very broad question. Just the idea of illegal immigration and this idea of having a global community and interrelated that every country kind of interacts with each other and the idea of a capitalist society and markets touching each other in different directions. Kind of. A very big question. I think what you may be implying is do we need to change the legal and regulatory mechanisms through which we cross borders and whether the concept of citizenship in a formalistic sense is impeding our ability if we seek to have more interaction with each other, whether it's through travel, through business, through tourism, is to what extent is all of the different, the mechanisms we have in place that allows people to come in or out. I mean, think of, for example, the Leviso waiver program and the way that the EU operates in allowing citizens to easily cross the border and work in different countries where the legal significance of a border or your citizenship is minimized for purposes of work and travel. And yeah, the US is not on board thus far. We have not been on board in that regard. And if we were, we would probably have much more free flow of labor and tourism and students between, for example, Central America and the United States. And so people would be coming and going rather than having to make the decision to come and stay and be legal and then go and come. But perhaps, and I'm sure people have suggested that maybe we should be like Europe with regard to Canada. And we all, we do to some extent have that with Canada which raises the point of why Canada and not Mexico. And some people argue there's some cultural racial issues involved. But whether we should have that free flow. And I think some libertarians may agree with that. I would. We need to let Professor Blackman, he's got a plane to catch. So it's not because we're beating him up. We actually. I come here in peace. I would know. I'm always when I enter Rhode Island in enemy territory but I greatly welcome Peter's invitation. I'm sorry, Jared. I'm grateful to be here. Thank you so much. Thank you. Do we have time for a question? We can still take another. No, no, you can leave. You can take a question. I will step outside. Well, this was about immigration law. So Professor. John. Thank you so much. Thank you. Thank you. Should we thank him? Thank you.  Yeah, let's be clear. So what I have open in my computer is the State Department's lists that they give every year of who they're actually excluding from the United States formally under the existing INA, Immigration and Nationality Act, Grounds of Inemissibility. And sometimes I forget to look at these because they're really interesting. And I thought they might go to something, Professor Markleys was talking about about the use of 12F, right? 212F, section F. And it looks like last year no immigrant was refused under that statute in 2016. So that would have been the fiscal year ending in October of 2016. And 24 non-immigrants, but 12 of those were able to overcome the ground. Now this report which is posted on the State Department's website doesn't always tell you why. But I wondered what you make. This is my question. There's a much more specific provision about terrorism and national security in other provisions of the INA added by the Real ID Act and the IRA, IRA amendments, et cetera. So 212A3 and then provisions of other laws, very specific such as Iranian citizens studying in certain energy related fields. In other words, the statute has a lot of specificity. Are there any arguments the non-specialists who are doing a lot of the litigation are missing? That the president doesn't have blanket authority under 12F because Congress has made specific authority when it's about terrorism or assisting terrorism or national security that you should actually have to tie it to the provisions of 212A3. That's a great question. So I personally am wary of that argument which has been raised in some of the litigation, particularly in the Hawaii case. Neal Katyal, former Solicitor General, represents Hawaii, made that argument. The difficulty with that argument seems to me is that the case law isn't really uniform in support of that. So for example, in the case called Aberasky Regan from the 1980s when the president had authority to exclude folks who may have been members of the Communist Party after Congress had repealed that particular exclusion. What the DC circuit said in an opinion by then Judge Ruth Mader Ginsburg, now of course Supreme Court Justice, is the president did have sweeping power. That's the word that Justice Ginsburg used under 1182F. What does that mean exactly? Well I do think it means you gotta read 1182F together with other provisions of the act like 1152 on discrimination. But it does suggest that the president isn't necessarily limited to specific grounds for exclusion like the various terrorist and national security exclusions in the INA today. So the president I think can go beyond that. You're absolutely right though Lenny that typically the president's gone beyond that through naming specific individuals or pretty tightly tailored groups. So for example, people who were relatives of friends of the Nicaraguan regime in the 80s or the regime of former Panamanian dictator Manuel New York. So those are tailored uses of this presidential authority. And so the very sweeping ban as Jared indicated that we have today is a departure from that more. Like one last question and then we'll get to you. Okay, it's a quick question, it's for Sarr. And Peter if he's interested. Concern about the extrinsic evidence issue. Which you sort of seem to assume that that's legitimate inquiry for the court but you're doing so in a context in which first of all the offender is very clear about his motives. And secondly, one in which the extrinsic evidence is relatively straightforward. But as a general matter, it seems to be a very dangerous doctrine to allow the courts or to invite the courts to try to put together a coherent view based on a campaign rhetoric of himself or his staff or opponents imputing views to him or her. So I'm wondering as a general matter whether you have the same concerns that I do. So I think in this case I am not as concerned but perhaps it's because the evidence is so strong but the precedent that it sets I acknowledge. So and this is my opinion. I do not think that in general campaign rhetoric should be included and I realize those who are on my side of the political line may not agree with me but if I had to, I would rather there be open and fair debate in campaigns. I'm a little disappointed that not withstanding that rhetoric someone was still elected but that's just a political, that just reflects on our country in other ways. So I don't think that the campaign rhetoric, I think I'm more comfortable saying the campaign rhetoric in general barring this what I think is quite an exceptional case on the facts should be considered. However, I admittedly am not, I tend not to favor the kind of formalist approach where we just look at the four corners of a document or we just take for face value what the executive says in a world that's much more complicated than that and in a world where law is being used, when you think of the term ball fare where law is being used and manipulated to create certain types of inequalities in society that I think delegitimizes law. It makes people lack respect for law because if the law is so, is manipulated in a way where certain groups of people, particularly suspect classes or it creates invidious discrimination that the courts may not recognize what society does, those groups start to see the law as legitimate. They start to look at the courts as not their courts. So I think we have to balance between looking at context, including in foreign policy, including in immigration law and I realize that could be quite heretic in the doctrinal sense, but I'm looking at the big picture is I think our ultimate goal as lawyers and law professors, judges is to ensure we create a system where people who are not, who are the losers in the system accept their losses and see it as part of a legitimate process, not one where the law is used to manipulate to produce the outcome that will always be the losers. And that's what my concern is with what we're seeing on various issues, not just the so-called Muslim ban. And so I would just caution against having this very narrow doctrinal view and looking more at the big picture, but this is a law and society argument, so I acknowledge that. I'll leave it with Sahar's comments, which I think were excellent. Thank you to our panelists. Thank you. Thank you.


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