tv United States v. Texas Oral Argument CSPAN April 26, 2016 8:21am-9:01am EDT
states. now the executive wants to take the position that that has no legal consequence. of course the memo at j-76, this has been misquoted in their reply brief, said what is going on with tolerated presence is it is deferred action will be toleration of an alien's continued unlawful presence. now if it is continued unlawful presence, they're not authorized to be in the country, we don't have to issue driver's license, they can't get deferred action -- sorry can't get medicare, social security, gun possession. >> you tied the driver's license to work authorization? say somebody is in deferred status that isn't working under texas law do they get driver's license's? >> under texas law, this is our texas statute, if someone is authorized to be in the united states, they're eligible for -- >> they don't have to have any work authorization? >> that's right.
they need to be authorized in the country but to give some context how this works we have to rely on the federal government's immigration classifications. we determine whether someone is eligible for driver's license. we run that through the federal safe background system. we ask the federal government is this individual authorized to be in the country. they say yes or no. >> the government also says you don't have to do that or maybe you don't have to do that, maybe not they won't sue you but why don't you go ahead and not give them driver's license? >> i think as your honor had suggested before he are in a catch 22 here. either we have to not incur millions of dollars of financial harm which is went essential article three injury are or we have change our law. somehow we have to come up with a different background check system. we wouldn't have uniform policy. >> i'm sorry, how does somebody get a license in texas? i know how to do it in new york and washington because i lived in both places. but i don't know how to do it in texas. do you go up and do you do what? >> you would go to department of
motor vehicles. you would show the documentation showing who you are and you're eligible for license. in context of aliens, and this is a j-377 to 382 outlining the process, then the state verifies that the individual has authorization to be in the country. that is under federal i.d. act. >> i do know, because i've experienced it, that lines are very long at the dmvs. sometimes people wait the entire day. and i know they leave the next day when they haven't gotten to them. and they keep coming back. it's not an ideal situation. in most states to avoid the frustration do ramp up but many states don't. people just keep coming back until their license can be processed. so why is it that you have to
spend all this money? why can't you just have your regular process and let people wait on line? >> first of all under the federal real i.d. act if our state's driver's licenses recipient want to be able to use that license to get through airport security, tsa security, there has to be integrity for the license for federal government we have to check whether an alien -- >> fine i'm saying why do you have to ramp up? i think one of the allegations -- i haven't really gone through it carefully enough or assume it's true, claims that your affidavit estimating losses in your process is made up basically because a, there is already a built-in profit from profiting licenses licenses of $25. that you really don't know if you have to add all of this
personnel because every, five million people are not going to walk into dmv in one day. and at that -- and that the numbers will be no matter what, not all five million people will want licenses to start with. so the question i have is, why do you have to ramp up? why can't you just let people wait on line? >> this is a j-37 to 382, the reason there will be a spike in applicants for driver's licenses. there is much more to do than simply granting a license. there has to be processing the paperwork, making other determination about any event -- >> that speed that you do it in, meaning i got a temporary piece of paper when i was there and it took weeks for me to get the regular license while the motor vehicle bureau did what it was going to do faster or slow as it wanted to do it. >> here we have a fact-finding we would incur these costs. neither parties or my friends on other side said this is clear
error. >> there is jurisdictional standing question. >> it is a jurisdictional standing question. we -- >> do we accept at face value something that might, might not be true? >> but we have -- >> give you standing on just basis you saying i'm going to do this when it maybes no sense? >> we have a fact-finding here of the they have not alleged it is clear error. we also have declarations from wisconsin and indiana have not been challenged. bottom line if we have to issue more driver's licenses it will cost more money. >> i would like to ask a question, only thing i found here is money. if something else it is sort of hidden. money is money. i understand that my question is about standing. and this is technical. but it's important, to me. looking at briefs, awful lot of briefses senators both sides.
awful lot of briefs from state, both sides. members of congress. why? because this has tremendous political daliance. keep that in mind. now keeping that in mind, let's go back to two old cases which are scarcely mentioned but old supreme court cases never die. unless luckily they're overruled and a few have been. that they're submerged like icebergs. the one i'm thinking is rothing ham v. mellon, massachusetts v. mellon. and there in those cases the federal government had given something to some people. they were beneficiaries. other people wanted to sue because they said that means we're going to have to pay more money. and the court said, you other people from massachusetts, i'm
sorry, massachusetts lost but lo and behold it did. that is because i'm from massachusetts but the point is they lost, because says the court, we can't let you just sue on the basis, that you as a taxpayer will have to spend more money. because if we do, taxpayers all over the country will be suing in all kinds of cases, many of which will involve nothing more than political disagreements of all kinds and before you know it, power will be transferred from the president and the congress where power belongs, to a group of unelected judges. and for that reason we say, you individuals who will have to pay more money, will, can not just sue on that basis. and as for the state it can not represent you parens, patri,
this is between the federal government and the citizens. they're the ones who have to pay. as far as massachusetts is concerned, bringing up a case which they won. david: that was their own coastline. that is not money. that is the physical territory belonging to massachusetts and of course they have standing to protect that now i want your -- think for a second. i'm finished. you see my point. and i want to know how you get around that frothingham, massachusetts v. mellon, when you give a benefit here, hurt taxpayer by money over there, he doesn't have the kind of interest that gives him standing. >> first, we're raising financial harms for our own states fisc that is not a parens pattry eye. we're raising harms. that we receded federal government to determine who is lawfully present within the borders of the 26 states.
>> sovereign harms you realize would follow aforci. if a state can not sue and its citizens can not sue to stop the feds from giving somebody a benefit, on the ground that it will cost the state or the individuals more money, surely they can not sue just by announcing it requires a change in law in general or because it requires or hurts our sovereign interest for then every case of political disagreement where states disagree could come before the court. >> but i think a lot of those cases would be taken care of through causation requirements, injury requirements and -- for instance adjusted gross income example and veterans benefits example the other side brought up i think those cases would be screened out through the zone of interest test. here we put four ward 1000 pages evidence in the preliminary
injunction evidence and fact-finding exactly what arizona versus united states said that states bear consequences illegal immigration. when we come to court to show a concrete injury and policy causing that injury, by enjoining that policy we wouldn't have to incur the financial harm or the sovereign harm that is precisely what the article case -- >> that hits the states against every federal agency and any harm, financial harm, that indirectly flows from the change in policy would be subject to attack. let me give you a prime example. okay? imagine texas passed a law forbidding its state pension plan from investing in any financial company, whatsoever, that the federal stability oversight council declares systematically important. to big to fail. texas reasonably doesn't want to
invest money in companies if they fail are going to tank the economy. now let's say the federal government sets out a policy memorandum that says in our discretion we are not going to declare some insurance firms under a certain size as too big to fail. we just think we should, okay? why can't the state sue that federal agency and say, the lawman dates -- the law mandates, that you tell us who is too big to fail? >> i don't think states would be protected by laws give earning which banks are too big to fail but states absolutely are protected by immigration laws saying who is lawfully present within our borders. we did that under the zone of interest tests so -- >> weave already said in arizona versus whiting, that you can't tell the federal government who
to say is legally or not legally present here. you don't have a right to set immigration policy. >> that is -- >> you're not in the zone of interests of the immigration law. >> oh, we absolutely are. that is precisely why we have standing here because as the court recognized in arizona, just because the federal government pervasively regulates immigration that doesn't mean the states don't have a significant interest who within their borders. we have easily identifiable sovereign interest who is within our borders. >> but the state can't remove anyone and we still go back to the basic problem, 11.3 million people, congress not appropriating money, to remove more than what is it, four million of them. so there are these people who are here to stay no matter what. and you have conceded the federal government can say, low priority, visa card, not going to deport you have unless we change our mind.
so the only thank that is involved, is the work. and you haven't challenged that separately. you're challenging dapa. >> and dapa it solve purports to grant not only work authorization but to transform unlawful conduct into lawful conduct. >> we've already gone through that. we have agreed that means tolerated presence. the government has said, take out that word. it was unfortunate that we used it. what we mean is, tolerated presence. >> but it is not just an unfortunate slip. when they're granting deferred action status, under their regulations that is lawful presence. they want you to take outlaw full presence from the dapa memo and prevend unlawful presence isn't there. but when you go into the regulations -- >> i understand what you're saying that dapa in some sense triggers the regulations but only because the regulations say what they say. that your real challenge is not
to dapa which is the non-enforcement part of this. your real challenge is to the regulations. the fact that non-enforcement leads to a certain set of results. yet you're not here challenging those regulations. >> well insofar you could conceive of our case challenging those regulations we would be challenging them as applied to dapa but when congress -- >> the problem is, you haven't exhausted administratively and we always require you to do that. there isn't a exception as i understand it under the apa for your failure to exhaust your avenues in the agency first. >> well, but this, we are challenging today past we're challenging that memo. >> please, go ahead. >> when we bring forth that suit, which only occurred as of november 20th, 2014, just because we're challenging dapa granting of deferred action doesn't mean in the four narrow categories congress passed statutes for allowing deferred action for widows and widowers
we somehow have to be challenging -- >> do you think this, suppose instead of doing dapa dhs decided to go one by one by one. it sent a notice to each person. do you think at that point that the dhs could also say, and this will include work authorization because of our preexisting regulations? >> insofar they were granting lawful presence, no. work authorization i think at most you would look what has there been congressional acquiescence to the deferred action program. >> i'm not sure i understood the first part of that. take out the labels. it notifies a single person. you're low priority. we're not going to deport you unless we change our minds. by virtue of preexisting regulations you now can work on the books. is that legal? could dhs do that. >> i don't think there is statutory authorization there may have been congressional
acquiescence to practice in very small cases that is bridging -- >> that is interesting because i thought, as you said there is not statutory authorization with respect to that i thought your entire argument they can't do this except for statutory authorization. and now you're saying, well in some cases they can do it. >> justice kagan. we have multiple arguments. the first is the statutory argument. our backup argument which is the response to the executive's congressional acquiescence argument, at most congress would acquiesce to practice of very small uses -- >> how about this? dhs doesn't do it one by one. how about dhs says, it is senseless to do it one by one. we should use categories. here is the category. you've been here for 25 years. you're entitled to, not entitled you can stay unless we change our mind. so that's the category. so smaller category, but you know, there is some, there is a lot of people in it. >> if there was no previous lawful status or eminent lawful
status no way congress acquiesced to that. >> wait a minute. that is important. dhs could not say to all people been here for 25 years and perfectly law-abiding, congress can not say to those, you know, tens of thousands of people let's say, not millions, tens of thousands, you, we won't deport you unless we change our minds and you can work, you can feed your families. you can do that. >> justice -- >> dhs coo not do that. >> congress could. >> dhs can not? >> does not have statutory authority, cart blanche to grant -- >> this has nothing to do with the scope of this policy this has nothing to do with oh, how many millions of people in this policy you're saying with respect to much smaller policy that kind dhs or predecessor agencies have done literally every year for the last three decades, that all of that was ultravirus.
>> justice, my time is expired. >> you may inches a the question. >> when we're talking about the scope of the program as opposed to bridging lawful status, the scope goes to, is this a question of deep economic significance? goes to when the 1987 work authorization was justified the executive was telling everyone through the administrative process this was for a minuscule number of people and wouldn't affect labor market. this brings to light, executive didn't use notice in comment, promulgating, their theory is, they grant deferred action whether or not being lawful status. no court can review it. didn't use notice and comment procedure. unprecedented is sweeping assertion, justice jackson said in youngstown. duty of court to be last not first to give up separation of powers. >> thank you. general? miss murphy.
>> mr. chief justice, may it please the court. three years ago the executive asked congress to enact legislation would have given the power to more rise most of the people living in this country unlawfully, to stay, work and receive benefits. and congress declined. now the executive comes before this court with the extraordinary claim it has had the power to achieve -- >> excuse me. was that part of the package for a pathway to citizenship? >> it was not a pathway to citizenship. it was a pathway to lawful presence in the country would have allowed individuals to have legal status to remain in this country and congress has not created a legal status for the category of individuals covered by dapa. >> that's correct. why do you think this is a legal status in the way that that bill imagines? >> it is a legal status because under the agency's own regulations it is a status that has consequences. and i would point you in particular to 8 cfr 1.3.
this is the statute that defines the term, lawfully present. under that statute if you are in deferred action status, you are lawfully present and eligible for benefits. now that statute goes on to say, if you are just an individual, as to whom dhs has declined to pursue, removal proceedings you are not lawfully present. so whether you are in deferred action status, makes a difference under the agency's own regulation. it is that affirmative act of not just forbearing and making the decision not to remove somebody but putting them into deferred action status that triggers the availability of work authorization and eligibility to receive benefits. >> so why don't we just cross outlaw fully present as the sga suggested? >> you can't cross it out and achieve what dapa is supposed to achieve because what really matters in dapa it is allowing the grant of deferred action
status. whatever the executive wants to label that under its own regulations, deferred action status is equated with lawful presence. if you cross it out of the dapa memo, it is still part of the regulatory scheme at that says, once we have taken this extra step, not just of deferring the removal of you, but of putting you into the status, that changes your eligibility for work authorization and benefits in this country. and once the executive is doing that we are far outside the notion of mere enforcement discretion. >> you agree with the card that says low priority? that nothing about work authorization, nothing about social security but you are low priority which means we'll probably never get to you because congress hasn't given us the money to remove you? >> we would not necessarily concede that you could actually grant people cards that say we're not going to enforce the law as to you.
but that is not at issue in this case because what the executive wants to do is something much more than that. if all they wanted to do was say we're not going to enforce stu, the only memo they would have issued is the enforcement priorities memo. because in order to qualify for dapa you have to already not be an enforcement priority under the enforcement priorities memorandum. what the executive wanted to accomplish was something more, to say, not only are you not an enforcement priority, but we want you to be eligible to work and to receive benefits and the way that we do that is by taking this affirmative act of converting you into a status under our own regulation changes your eligibility for -- >> the appropriate way for texas to proceed had been to challenge the regulation under the apa? i think section 553 and then, if they were concerned about notice and comment taking too long, asking for a preliminary
injunction? >> i don't think that's the way it actually makes sense for this to proceed because there is nothing inherently problematic about a regulation that tied deferred action status to work authorization. congress has passed multiple statutes. >> the point of the suit, i will not tell people how to design their suit the point of suit the areas of discretion have been so vastly changed the regulation now has been superseded? >> i don't mean to suggest that is not a way you could challenge it but i don't think its the way you have to challenge this because to me the real problem is not the linking of deferred action status and work authorization. it is abuse of deferred action status. that is not a power at that includes the power to grant deferred action status to individuals who are on a class-based program -- >> then you disagree with general keller because i think he did say, came up a few times, it is in his brief, you could
give an i.d. card to these people saying, low priority, the whole category of people, give them that but you can't give them work authorization or social security? >> what i would say is, we would have concerns if this case were challenging just the enforcement priorities memorandum. we would have the same concerns if you had that and invited people in and gave them enforcement priority card. that is not what it case ising chaing. so ultimately whether the house has concerns about enforcement priorities memorandum is really besides the point here. what this case is challenging, is the dapa memorandum that men dumb that goes beyond mere enforcement. >> so can we break it down? >> sure. >> are you arguing that the executive does not have the power to defer, to defer action
of removal against this class of aliens? >> it all depends by what you mean by deferred action. >> i just said deferred action. >> i can't answer the question whether you're talking about mere forbearance or putting them into deferred action status. we don't believe the executive has the power to put this class of individuals into deferred action status. first of all, there's plainly no statutory authority to do so. but even if you get into the world of their congressional acquiescence theory, the types of deferred action status programs that existed in the past are fundamentally different both in kind and in scope from this one. before 1997, you didn't even have class-based deferred action programs. all of the programs they're talking about pre-1997 are exercises of different powers, powers pursuant to statutes that existed at time such as voluntary departure statute that no longer is a path for executive --
>> can i ask you this then? you're in amicus. you're not a party. texas is the party and they made their objection but suppose we played suppose i picked up your thought and coupled with what the sg said, cross out words that say special status and suppose that would it work to say, look the question is whether texas has standing to complain about simply the change in priorities for action. we don't know yet if that affects driver's licenses or could. or could affect benefit, or will, but should the administration do so? then they might have a case that they could bring challenging that aspect of the situation. all we're saying, is that they do not have that case now given the sg's concession or desire to
strike those words out. does that work or not in your opinion? >> i'm not sure i completely -- >> if i have not been clear i will not repeat it but you can forget it. >> no, no. i want to be i understand the question. i mean, i think, i guess my point is i don't think anything, either in texas's view of the case or in our view of the case have turned on these words, lawful presence being in the dapa memoranda because what matters is the dapa memorandum as it says is designed to make it a path for individuals to be eligible for work authorization. and without dapa they're not. and it is also a path to make them -- i mean once they are in deferred action status, that is why they are considered lawfully present. you're not considered lawfully present just because the executive is not actively
pursuing removal proceedings against you. again 8 cfr 1.3, it exist says the decision not to pursue a v. move proceeding does not render you lawfully present. so it matters, the words that were used here and the program that's being created matters. it is enough to have mere forbearance of the you need the additional step to achieve what the executive -- >> your position is, in 1989 when george h.w. bush granted deferred forced departure for chinese residents after the tianamen square situation that he acted illegal? >> no. because that program was justified on a different power than the power here. it was deferred -- that, the deferred enforce the departure was article ii -- >> there was no statutory authority? >> that is power executive
always grounded in article 2, foreign affairs nationality at this. now there is currently a statute on the books, temporary protected status statute, that says exclusive authority through which the executive can grant nationality based -- >> that came after this? >> right. at the time that statute was -- >> at the time there was no statutory authority? >> whatever was happening before 1990 doesn't tell you very much about what congress has axe we esed in when congress pass ad statute in 1990 that said these are the circumstance under which you can -- >> i appreciate that. maybe what congress does here, it may come back and say deferred action is limited in this way but it hasn't yet. so assuming we have a history of deferred action for categories of people, then what you're really arguing about, and i stopped, you got interrupted
when you were answering me earlier. why are you, are you arguing that the 1986 regulation, which gives the attorney general the right to grant work authorizations to individuals, who have been provided deferred action, are you arguing that is unconstitutional? >> no. because, there are statutes on the books that say deferred action status also comes with work authorization. so of course -- >> except that the statute says that the, those people, deferred action, can be granted under the statute. >> yes. >> or by the attorney general. the ones, you're striking out, by the attorney general? >> i was talking about the different statutes, not 1324
ah-3 i was talked about statutes talking about differented action. they say the executive can grant deferred action and work authorization. there is nothing inherently problematic in the circumstances where the executive is authorized to grant -- >> something that is not statutorily authorized, suppose this is the version of hypothetical i gave to general keller. suppose dhs decided to do this one by one by one and in doing it one by one by one also said, and you're entitled to work on the books, could dhs do that? >> i think it would, it would ultimately, in that instance start to become a question of scope and a point at which you have a policy that is inconsistent with the use of deferred action status. in the past there have been this kind of ad hoc diminimus case-by-case use of deferred action status. >> suppose then, again, same kind of question that i gave to general keller, suppose there was a policy but it was of much
less significant scope. let's say a policy said if you've been in the united states for 30 years and you have children here, we're not going to deport you unless we decide otherwise, and you're entitled to work on the books. could dhs do that? >> no. there is not any congressional authority that allows it. there is no path or practice like it. >> this is very significant, right? no past practice like it? >> there is not any -- >> that was not voluntary departure. there was a statute on the books at the time that permitted extended voluntary departure. you no longer can do that. there is no path deferred action program was for a category of individuals that had no path to lawful status. >> this is important. you're basically saying dhs going forward, any administration can not have any kind of policy, even if it's limited, much more limited than this kind of policy is, that
allows undocumented aliens to work? >> congress has pass ad statute that says, if you are living in this country without legal authority you can not work. that is congress's policy judgment in 1324-a you may disagree -- >> i understand the point. i guess i'm just saying this would be enormous change in practice. >> not at all, your honor. because the past practices there are none. they have not pointed to a single deferred action program that granted it to a class of individuals who had no lawful path to status in it country. >> is that true of all of the deferred action mentioned in the appendix, the one that the congressional research service did? >> yes. most of those are not deferred action programs. they're extended voluntary -- >> there is -- >> there is only about four deferred action programs that were class based. those were all passed to lawful status. u visas.
tvs sass. people who held f-1 visas during hurricane katrina. >> five minutes, general verrilli. >> on standing they have no note answer to our addressability point. they don't have one. second, if you think they got over the article three hurdle there is no way this license cost injury constitutes something within the zone of interest of any provision in the apa. they haven't tried to establish that. third with respect to standing justice breyer's point the kind of theory they are advocates here and taxpayer status is dead on correct this would invite exactly the same kind of flood of litigation you always said article three is designed to prevent. if you want proof of that, it already exists. texas is using this based on united states resettlement of syrian refugees and it is only beginning.
i want to get to some specificses. you asked about whether a employee with deferred action work authorization could sue if an employer refused to hire. i would direct your honor, to 8 usc 1324-b. actually congress determined situations in which an employee, alien with work authorization has a discrimination claim and when the employee doesn't. that statute says if you're a lawful public resident you do deferred action as the side or -- >> i was asking about section 1981. >> but i think, you would have a hard time exclamationing that claim given congress made that kind of a judgment. with respect to another point your honor made -- >> your position there could not be a suit under 1981? >> what i'm i'm saying congress made a judgment there that bears very directly on it. with respect to another point your honor raised about specific statutory references to lawful presence my friends on other side made a huge deal about this in particular 89 cfr 1.3 they cited seven or eight times.
i urge you to go look at it and look at rule make order that went along with it from 19 the 6. you see what it says, applies to one thing and one thing only. that is accruel of social security benefits under section 1611-b rule making order, we quoted this in our reply brief specifically says although we're counting deferred action as lawful presence for purpose of accruing social security benefits, for reason if you can work lawfully you ought to be able to receive benefits, this does not confer any lawful status under the immigration law. it specifically says that and so, we can argue about whether executive has the authority to consider people with deferred action as lawfully present in that narrow sense. we think we're right. maybe they're right but that is the tail on the dog here. >> if the phrase, lawful presence, were stricken from the guidance, would you take the position that dapa beneficiaries are not lawfully present for
purposes of, under certain statutes that use interest phrase for the reentry bar, for eligibility, for federal benefits? >> the only federal benefit is social security and -- >> would you say they were lawfully present for those two statutory -- >> regulations say that they are but we, we can fight about that, but that, as i said that is the tail on the dog. now if i could go to the merits, that, repeatedly you heard the family fairness policy was pursuant to statutory authorization. that is just flat wrong. there is d.c. circuit case, you can read judge silberman's opinion in that case we cite in page 49 in our brief, describes it as extra statutory which is what it was. now the other key point, i think this is really important. their theory about the scope of who can get work authorization is that either congress has to specifically say you get work authorization or congress has specifically authorized attorney general and now dhs to decide
whether people in this particular category can get work authorization. forget about deferred action. there are millions of people who get work authorization under existing law now who couldn't get it if that were the proper interpretation of the law. these millions of people are in proceedings for adjustment of status. hundreds of thousands of people in proceedings for cancellation of removal. hundreds of thousands of people have parole. none of those people qualify under their reading of statute. that is why in 198when ins had rule making proceeding about they rejected it. would completely totally upend administration of immigration laws an frankly it is a reckless suggestion -- >> people who have asylum don't have pathway to citizenship. >> exactly. all kinds of statuses that don't qualify as lawful status people always been allowed to get work authorization during which presence it tolerated. >> how many people are we talking about with those?
>> millions, millions. >> asylum applications? >> no, adjustment of status, 4.5 million since 2008. and cancellation of removal, 325,000 since 2008. huge numbers. thank you. >> thank you, general. the commission is submitted. >> we're live on this tuesday morning as senate judiciary committee ranking member patrick leahy and senator orrin hatch of utah will be delivering remarks at the edward m. kennedy institute on the roll senate plays with judicial nominations. . .