Thread by @NicoletteGlazer

Big day at the 9th Circuit! Oral argument is underway in the #healthcareban proclamation case. 1/

In this case the government seeks a stay pending appeal of the district court's order preliminarily enjoining Presidential Proclamation No. 9945, "Suspension of Entry of Immigrants Who Will Financially Burden the United States Health Care System."

Judge Berzon is on fire: she is just chopping Govt counsel into pieces. And she now brings ACA and subsidized care as a direct contradiction in the proclamation. Govt counsel is swarming but has no response other than conclusory "there is no contradiction". 3/

Judge Berzon: "they have to pay for a coverage that does not provide much coverage and then pay again under ACA subsidized?" [the intonation is priceless....] she sounds absolute apoplectic.

Govt: "ACA allows subsidized coverage yet a third of qualified LPRs are not getting it" 5/

Govt just said that there are "wide variety of options to get coverage from outside of the US" ... Are these ppl insane?!?

Govt: if person is healthy and there is AS ...
Judge Thomas: we just got this my point if there is no forceable medical need why are we denying visa to these applicants?
Govt: huh?

Judge Berzon is boxing them into a corner by pointing out that there is an overlap between the Proclamation and the #publiccharge rule and it appears that they are trying to avoid notice & public comments requirements to avoid APA review.

Judge Berzon: how isn't arbitrary and capricious to force ppl to buy insurance which will only burden ppl even further ... thus crossing into #publiccharge.

Govt response so far is that noncitizens covered by the proclamation do not have insurance to start and having them buy a plan that is not comparable to ACA is better for them coz Uncle Sam knows best. Then harps on conclusory declarations in support of Prelim Inj

Judge Berzon can't let them go even after Judge Thomas said 'you are over your time'! She is so bothered by the overlap between Proclamation and #publicCharge but it seems than part of her frustration is really w SCOTUS decision in travelban.

Judge Berzon: Govt has offered no evidence to respond to Plaintiffs' Declarations ... "you submitted NOTHING, you put nothing in the record. So the declarations are undisputed. these are the facts in the record then." It is hysterical.

Plaintiffs' counsel is now up: I think she should say: "What judge Berzon said" and just sit down. Just kidding.

The issue here if a stay should be issued pending appeal.

Judge Thomas brings the broad discretion given to the President under the INA. It may be broad but it is not limitless and cannot overrule other statutes that address it such as ACA and VAWA.

Plaintiffs are focusing on the fact that the sweeping assertions in the Proclamation that lawful immigrants are 3 times more likely to not have insurance misses the mark as the Proc actually is targeting ppl who would have subsidized care under ACA.

Judge Thomas is inquiring how do court walk a line between domestic & foreign affairs issues. Not satisfied by the answer of 'look at the motivation'.

Judge Thomas: "I look at the district court order and at your complaint but they do not seems to match". Outch! He gives counsel a life-line: maybe it is under ultra vires. Phew.

Judge Bress: how is not that the public charge provision in the INA not relate so that give the president the authority to do anything as long as it is "related" .... well we know where he stands.

We're now on harm: "no evidence substantiating the harm alleged"

Judge Thomas: "what is our review for review of facts with respect to a Proclamation [where there is not admin record]?"

Judge Berzon to the rescue: Govt have to come forward w evidence it is an injunction. Counsel: Yes!

I'm back ... missed a part of the argument. Damn!

We are now on issue of class allegations. There is no certified class yet so we are having a "putative class" Judge Thomas is probing on this for purposes of nationwide injunction with respect to ppl who have not yet filed I-130.
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this is a strange proposed class definition

Wow ... the judges managed to confuse even plaintiffs' counsel on the issue who is covered/affected by the alleged harm.

nooo please do not go to the court's "inherent equitable power" ....

REBUTAL by Govt: Judge Thomas "If we limit the scope of the stay what is the harm to the US if it is limited to the handful ppl with approved I-130?"
Govt: "Institutional harm is ...
Judge Berzon: Wait a minute .. you have no grounds here.

Interesting. District court has allowed Govern to conduct class related discovery. Im not getting it unless it is for the organizational plaintiff's harm. Why would Govt need to conduct discovery: they know who has I-130 approved, who is at the NVC ... what are they looking 4?

IT IS submitted:
-- key will be scope of presidential power
-- harm
-- scope of review.

Not that any one cares but I think there is no way this panel grants a stay.

NOW we have @AlOtroLado_Org v Wolf!🦾

@AlOtroLado_Org here the govt is seeking a stay pending appeal of district court's order provisionally certifying a class and preliminarily enjoining enforcement of Third Country Transit Ban against non-Mexicans who were in the process of arriving before 7/16/19 when rule went into effect

@AlOtroLado_Org The issue here is really #metering. It affects ppl who arrived before 16 July and then they got hammered by the #TransitCountry Ban. Equitable argument is front and center.

@AlOtroLado_Org Panel is much less active in this case.

@AlOtroLado_Org Judge Thomas: "walk me through what is harm to the Govt if honor the injunction until we decide the case on the merits" Then he ask "how long will asylum adjud take"
Govt: few months.
J Thomas: so, what is the harm. If you let them in & Transit Country applies. They get denial

@AlOtroLado_Org I know what he is saying but damn when you hear this ... I get chills: it is a asylum denial churning machine and nothing is stopping it.

@AlOtroLado_Org Back to argument: Judge Berzon is focusing on #metering and what record did the government establish to contest the claims of the Class.
Govt: is pivoting to the fact that legality of #metering per se has not been addressed.Trying to avoid a finding that there is a legal ruling

@AlOtroLado_Org What is significant here is that this is Class-wide Injunction and the issue really now boils down to whether metering is legal. Questions seem to imply that metering may have not been briefed and yet this is what at issue here -- likelihood of success.

@AlOtroLado_Org Plaintiffs are now up: 1st, irreparable harm. Class members here did exactly what CBP told them to do. They waited and then in a classic bait&switch Govt hit them with the #transitcountry rule. STRONG!!!

@AlOtroLado_Org Yet, Judge Berzon: Give me best argmt in support of position that District court got it right.
Plfs: All Writs Act and statutory interpretation of INA ... ultimately we will win on the #metring claim. But then back paddles since metering appears not to have been in Comp/briefing

@AlOtroLado_Org Judge Berzon: keeps talking about a mysterious All Writs Act decision that came few days ago ... it seems to be relevant in her view but I am not following how exactly. Anyone knows what case is this?

@AlOtroLado_Org Plfs. now are trying to get into jurisdictional analysis to bolster irreparable harm ... puzzling.

@AlOtroLado_Org Judge Bress: District court granted prelim judgment that #ThirdCountrytransit ban does not apply to Class members not because #metering is unlawful. Suggesting that unless the issue of metering as addressed (which is part of a different case) there is no basis for injunction.

@AlOtroLado_Org Judge Bress: SCOTUS already let the #transitcountryban go into effect how do we carve exemptions for the class members here to comply with the injunction here.
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Practical issues are bothering both JJ Thomas & Bress. Judge Berzon is focusing on the narrow issue before the Ct

@AlOtroLado_Org Outch! The answer given [how you weed out the class members] is not going well with the judges based on the eyebrows raised.

@AlOtroLado_Org Melissa Crow is next for Plaintiffs: no strong showing made by govt here. Those who attempted to seek asylum were "arriving" and had the right to apply for asylum. Judge Bress: Even if this correct we have here an erroneous reading of the #TransitCountry rule.

@AlOtroLado_Org J Berzon: we will get at some point on both metering and MPP -- but how we avoid the need to address legality of metering here-- to get to the arguments plaintiffs are raising.

@AlOtroLado_Org So, it seems that point that is going to be difficult 2 overcome here is that in view of the panel, the district court skipped addressing metering and without this there is no way to get favorable decision in the appellate court. Ms. Crow frankly admitted she is not getting it.

@AlOtroLado_Org It is kind of, judge Berzon is saying both the Plaintiffs & District Court put the cart before the horse (or what ever the proper expression is) ... and Plaintiffs is not able to grasp the concern she is having.

@AlOtroLado_Org But the issue was not before the district court because it was not necessary to the question that was before the district court -- the concept of "arriving".

@AlOtroLado_Org Sh*t! Judge Berzon: if the govmt engaged in 'lawful' obstructive conduct -- no issues.

Good that Judge Thomas stepped in to bring the train back on the rails ... cause we went off, majorly off.

@AlOtroLado_Org REBUTTAL: Govt starts again with admin stay pointed out that there will be practical issues to administer the crisis at the border ... Judge Berzon: don't read much into our admin stay decision! CLAP!

@AlOtroLado_Org SUBMITTED: this is going to be a tough decision.
-- there is possibly a shortcut that the district court took that is bothering the panel
-- "arriving" is going to be a key: is it a term of art or Ct must give it a common sense
-- based on the panel Qs we're getting into murky

@AlOtroLado_Org ... water of "entry", "arriving" and "admission". And if they really go down that road ... they gonna hit IIRIRA and the whole thing is gonna blow up.

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Panel may request supplemental briefing as there appears to be a disconnect between what panel sees & what is in complaint.

@AlOtroLado_Org A hope they do so as it allows Plaintiffs to refocus the arguments & case as the orals did not appear to necessarily satisfy the court. Still, this is a good panel so they may allow the injunction to stay in place and rule on the merits, but I am not feeling great as to merits.

@AlOtroLado_Org So this is it and just in time for me to get on the plane. Ahhh the relief of wasted time waiting that @twitter provides.