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tv   Key Capitol Hill Hearings  CSPAN  April 23, 2016 4:00am-6:01am EDT

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the administration? mr. furman: growth in europe has picked up a little bit, but it is still way too slow. the unemployment rate in the euro zone is above 10%. china has seen its growth slow. japan has seen its growth slow. growth in a number of emerging markets like brazil and russia is negative. so you know, we're not in the year 2009. this is not a global financial crisis, but most anywhere you look in the world outside the united states, growth is coming in a decent amount below what people were expecting and by just about any measure is disappointing. it's pretty much just the low income economies that have seen their growth rates pick up in recent years. just about everyone else has not.
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host: last question quickly, alexis. >> about transition planning, can you describe what the economic team is doing collectively, how far you are in thinking about transition planning, coordination, information gathering? mr. furman: i can tell you for the council of economic advisors that we've had a long standing tradition of we hire our staff mostly one year at a time and they work from summer to summer. so i am right now hiring the staff that will work for me for six months and work for the next president, whoever he or she is for the first six months of their term. certainly in my experience in this administration, president bush as a whole had an extremely
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effective transition and one that we would like to emulate, and i know the council of economic advisors, it's always worked well, and it won't be an exception this time. >> is there one person for the economic team that's coordinated -- who is the designated -- mr. furman: i don't have anything for you on that process. >> you can't say? mr. furman: i could say what we're doing at cea, which is we're hiring people to work hard both in this administration and the next administration. host: thank you for doing this. appreciate it. [captions copyright national cable satellite corp. 2015] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] >> c-span's washington journal live every day with news and policy issues that impact you. coming up this morning, phil galewitz joins us by phone to discuss the impact of the decision of united health to leave most of the health-care exchanges created under the affordable care act by 2017. he will examine the cost of both
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subscribers and insurers. the, sabrina schaeffer, executive director for the independent women's forum, we'll talk about the recent policy proposals geared towards helping working women by shifting responsibilities from paid family leave from companies to the individual. rockymore talks about her group's new report on boosting entrepreneurship. the executive director of the university of arizona national institute for civil discourse discusses the role of stability in politics and ways to restore it. be sure to watch washington journal beginning live at 7 a.m. eastern this morning. join the discussion. american history tv on c-span3 this weekend -- etc. even at 6 p.m. eastern, on the civil war,
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the book of the lost ca why the southuse. office of war and why the north one. speaking to justify this put to the union and their defeat. among the dispute, myths of the civil war including reasons why started and why it ended. >> they are compelled to explain why it was that this devastation ofurred and for example 25% southern white men between the ages of 20 and 45 were dead, not just casualties as a result of the civil war. >> sunday morning at 10:00 on road to the white house rewind, the 1998 campaign with gary hart. we begin with him announcing his candidacy in denver and a news conference where he faced questions about an extramarital affair. finally, his announcement to withdraw. sunday evening at 6:00,
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smithsonian curator on the life of civil rights activist de olores huerta. >> she would david union to -- bag the union to send anyone out. she was at the forefront of the effort for a reason. because --resting when each of them heard about it. >> at 8:00 on the presidency -- >> he just tensed up and said those son of a bitches, those partners of mine, did any of them ever invite me to play golf at there's fancy country clubs? did anybody invite me to their clubs? it goes on and on. >> that is one of the few times
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in my years that i was so close to him that he was a very well contained man. very disciplined. but, he erupted when he was talking to don. he was saying -- he hated them. associate andn bob woodward talk about the former president personality from watergate to vietnam. for the complete weekend schedule, go to c-span.org. >> on monday, this ring court heard oral arguments in the case of u.s. versus texas, a challenge for president obama's executive action on immigration. in 2014, the president ordered a policy of deferring deportation of undocumented immigrants with children who are u.s. citizens or legal residents. texas and 25 other states are challenging this action as unconstitutional.
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here is the audio of monday's supreme court proceedings. this is an hour and a half. chief justice roberts: we'll hear argument first this morning in case number 15674, united states v. texas, et al. general verrilli? justice, and may it please the court, the secretary of homeland security has decided to defer removal of the class of aliens who are parents of u.s. citizens and lpr's, have lived in the country continuously since 2010, and not committed crimes. that policy is lawful and respondents concede it is lawful. it is fully justified by the fundamental reality that dhs has resources only to remove a fraction of the unlawful aliens, the aliens presently present unlawfully in the country now. this class of aliens is the lowest priority. and there is a pressing humanitarian concern in avoiding the breakup of families that contain u.s. citizen children. the principal --
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justice ginsburg: couldn't the government simply, as was suggested in one of the briefs, have given these children parents of citizens or lpr's, given them identity cards that say "low priority," and would there be any difference between that and what this dapa guidance does? general verrilli: that is that's a very important point, justice ginsburg. that is precisely what deferred action is. deferred action is a decision that you are a low priority for removal, and it's an official notification to you of that decision. and respondents have conceded that we have the lawful authority to do both things: to make that judgment and to give an identification card. justice roberts: general, maybe it would make logical progression if you began with your standing argument first. general verrilli: yes. and i think this does lead right into the standing argument. i think the principal bone of contention between the
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respondents and the united states is over whether the secretary can also authorize these people to work and accrue ancillary benefits, and respondents lack standing to challenge that for three fundamental reasons. first, there's the injury is not redressable, because even if -- even if they achieve the injunction that they want, barring us from providing work authorization ancillary benefits, we can, for the reason justice ginsburg identified, still provide them with deferred action. and under texas law, they still qualify for a license under deferred action, so there's no redressability. second, they have not alleged a concrete particularized injury because the costs that they claim now to be an injury are actually the expected and desired result of the policy that exists in current texas law -- justice roberts: well, but if they change that policy to avoid the injury that they allege, in other words, if they did not
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offer driver's licenses to those who are lawfully present because of your policy, avoided that injury, you would sue them, wouldn't you? general verrilli: i'm not sure at all that we would sue them. it would depend on what they did. but the fundamental -- justice roberts: no, no. what they did i'm hypothesizing is that they offered driver's license to everyone, but not those who were here under your under dapa, under your proposal. , general verrilli: chief justice, the key word in your question is "hypothesize." and that's the point, it seems to me. they have not made that change in their law. what they -- justice roberts: no, because they have what seems to me a perfectly legitimate policy, is they want driver's license to be available to people who are lawfully present here. and if you, the federal government, say, well, these people are lawfully present, that means they have to give a driver's license to however many of them, more than half a million people, who would be potentially eligible for them. and as i understand from your brief, your answer is, well, just don't give them driver's licenses. general verrilli: the current policy is not as your honor describes it.
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the current policy reflected in the existing law and regulation is quite different, and that's the point. they will give a driver's license now to any category of person who has a document from the federal government, not only saying you're lawfully present, but that you're officially -- we're officially tolerating your presence. there are vast numbers of people under existing texas law that are eligible for a license even though they are not lawfully present. for example, the people who receive deferred action for based on childhood arrival. but beyond that, for example, people who are applicants for adjustment of status of whom there are hundreds of thousands -- justice kennedy: but suppose the state of texas said this policy that the government has announced is invalid; it violates separation of powers; therefore, we will not issue licenses to this class of persons? general verrilli: well, i think the point -- justice kennedy: it seems to me that the federal government could say this is not for you to say. general verrilli: that's correct. we could and we probably would. but the point is, they haven't done it. and so in order to establish -- justice alito: but that's the whole point of this suit, isn't it?
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they don't want to give driver's licenses to the beneficiaries of dapa. general verrilli: well, i think -- justice alito: and unless you can tell us that there is some way that they could achieve that, then i don't see how there is not injury in fact. general verrilli: i disagree with that, justice alito, but -- justice alito: you disagree with which part of it? general verrilli: i think all of it. [laughter] general verrilli: texas law and policy now does not express that judgment. you look to their law to tell you what their policy is now, and what the policy is now -- justice sotomayor: general, when you say that, i'm looking at their law. and their law says that they will give licenses to persons granted deferred action on the basis of immigration documentation received with an alien number and from the government. so that's what you're saying they've already made the , determination that they'll give licenses to people with deferred action. general verrilli: yes, justice sotomayor. that's one thing i'm saying that's quite important, but it even goes beyond that. they're -- justice roberts: oh, but they want to do that. is there anything wrong with
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their policy saying if you're lawfully present, you ought to have a driver's license? general verrilli: no, but i guess, mr. chief justice, what i'm trying to get across is that the policy, as it's written down and which, it seems to me, has to be taken as the authoritative statement of the texas policy, is not just that they want to give licenses to people who are lawfully present. they give licenses to all -- to numerous categories of people who, under the substantive theory of law that they are advancing now, would not be eligible-- justice roberts: ok. so what your argument is then, they should take these people out of eligibility, too. general verrilli: no. justice roberts: their argument is, we're going to give driver's license to people subject to deferred action. and you're saying, ok, that's your injury? you can take that away. and i just think that's a real catch 22. if you're injured, you have standing. but you're not injured because you can change your policy and not give driver's license to these people. and i suggest that i think you would sue them instantly if they said, people here lawfully present under the federal authority are being discriminated against. it's a preemption argument the
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government makes on a regular basis. and if you don't, the interveners will sue them. they've already said that they think that's illegal. general verrilli: the fundamental problem, mr. chief justice, is with that theory is that it requires this court essentially to issue an advisory opinion about whether this new law of theirs would, in fact, be preempted. after all, we might think it's preempted, but it's up to the judiciary ultimately to decide whether it's preempted. so in order for that injury to occur, the judiciary would have to decide it's preempted. justice roberts: so you're saying they would not have injury because they can do this, and you might lose the suit. general verrilli: that's correct. it's hypothetical at this point. justice kagan: i mean, general, i don't understand why you wouldn't lose the suit. i mean, section 1621 says, "states aren't required to give state benefits to nonqualified aliens, including deferred action recipients." i guess i don't really understand what the basis of a preemption suit would be given that section. general verrilli: justice kagan, i'd like to be able to agree with you about that. we don't think 1621 actually
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applies to driver's licenses. depending on what they did, we might or might not think the law is preempted. but until they actually take that step, which would be a significant change from texas law as it now exists, they really are asking you for an advisory opinion about whether the thing they want to do would be preempted. i mean, if you think about it -- justice alito: you're saying they have inflicted this injury on themselves because they have options. and one of the options, and i assume the one that they would like to pursue, is to deny driver's licenses to the beneficiaries of dapa. and if you're going to make the argument that they lack standing because they have a viable legal option, i think you have to tell us whether, in the view of the united states, it would be lawful for them to do that. general verrilli: so, it would -- justice alito: i think the chief justice asked you that question before, and you didn't get a chance to answer it. maybe you could answer it now. general verrilli: it would depend on what they did and why they did it. but it does seem to me, it's fundamental that they have to do it. i mean, think about it this way -- justice alito: i mean, if you're
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saying to you're saying to us they lack standing because they have an option, but we're not going to tell you now whether it's a lawful option. you'll have to wait down the wait to some point in the future. general verrilli: we might depending on what they, we might well think it's unlawful. for example, if they did try to enact this new law that said, we're going to give licenses to everybody we're giving them to now -- justice kennedy: but there's article iii standing for declaratory relief all the time. you say this course of action is being compelled on me. i want a declaratory suit that says that it's void. general verrilli: and i think that gets to the point, justice kennedy. if right now, tomorrow, today instead of suing us they had come into court and said we want a declaratory judgment, we are thinking about in light of this change in federal law, we're thinking about changing our state law to a different law, and we want a declaratory judgment that if we do so, it won't be preempted, i think you would throw that case out in a nanosecond as hypothetical, and that is this case. that is precisely the situation we are in right now. you have to render a judgment on that issue to decide whether they have injury in fact with respect to -- justice roberts: do we really,
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or is it enough is it enough that they would have to be put through litigation in order to escape the policy? you say, well, they can just not do this. and i think it's you won't dispute, i think, that they will be put through litigation if they do take that out. general verrilli: i don't think that could be enough, mr. chief justice, because you could have said that in pennsylvania v. new jersey or in any number of cases, that they may have to incur some cost with respect to -- justice roberts: well, how is that different? if i if i own, say, a parcel of land and it's subject to some government regulatory program that i think is a taking under existing law, why isn't the answer, well, you should go buy some other land that's not subject to it. you can avoid the injury by your own action. and it seems to me that's what you're saying here. texas says, our injury is we have to give driver's license here, and that costs us money. and your answer is, well, maybe you don't have to give driver's license. go change the policy. general verrilli: it's a difference between in your in , your proposed hypothetical, mr. chief justice, that's a direct action against the land owner by the government. in this case, we're not acting directly against texas.
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we're regulating individual aliens, and there's an indirect and incidental effect on texas. and that gets to, it seems to me, the deeper and broader point of importance here, which is that if you're going to recognize and it would be the first time, i think, in our history you're going to recognize that kind of incidental/indirect effect as a basis for allowing one government to sue another, then there's really no limit on the kinds of -- justice sotomayor: mr. general, in the normal course of things, let's assume that texas decides tomorrow to change its law, and it says, now, contrary to what the its law says right at this moment that it's not going to , give licenses to immigrants with deferred action. presumably, the immigrant who wants that license would sue the state, correct? general verrilli: precisely. justice sotomayor: and make either an equal protection or any number of preemption argument, whatever. the state could then defend that action, correct?
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general verrilli: of course. justice sotomayor: and it could raise legitimately full standing to raise any defense in law, correct? general verrilli: yes. justice sotomayor: it could then say that dapa is illegal -- general verrilli: yes. justice sotomayor: correct? so there is a cause. it is there is a way for it to defend its actions and a way that it will defends its actions. general verrilli: and i think that points out i mean, it really goes to what the court said in raines v. byrd. you know, it may seem like this is an important issue that is teed up in front of you, and it is an important issue. but, you know, the point is that the legitimacy of deciding issues of this importance come from deciding the context of a concrete case or controversy, and you don't have that here yet -- justice breyer: your argument is do i have this right? , imagine a federal statute. every state must give a driver's license to a member of the federal armed forces. that's a statute. second statute -- we are transferring one quarter of a
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million soldiers to rhode island. now, rhode island thinks the first statute is unconstitutional, and it also thinks that the second statute, for some technical reason, is unlawful. we're only talking about standing. in that circumstance, does rhode island have standing? see, totally analogous. i'm trying to say there is a law, which you say is vague. i'm imagining it's there. it says, texas, you have to give a driver's license to certain people. and then there's a second law which says, we are sending you a million of those people. now, all i want to know is, can texas, under those circumstances , your argument is we don't know if that's true here or not but under the ones i hypothesize, is there standing, in your opinion?
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texas would say the first law is wrong, unconstitutional for some reason. the second is wrong because it technically failed for some reason. do they have standing to say that? general verrilli: i have to i caveat my answer, because i think if the second law is an immigration law that says we're going to make an immigration policy judgment that's going to result in additional people being in the state, then i don't think they would have standing. but the fundamental point, i think, of importance here is that the premise that the first law that they are required to give driver's licenses is not present here. justice breyer: i have no doubt it isn't present here. i asked the question to clarify what it is i'm supposed to say if i agree with you. general verrilli: and i tried to answer that and tell you why i think the premise is different. i did try to answer you and then tell you why i think the premise is different. i do think and i think this is you know, there's a sort of a shoe-on-the-other-foot issue here. if you really think that a state can sue the federal government
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based on these kinds of indirect and incidental effects, then it seems to me you'd have to also say that if a state decided, for example, that it wasn't going to enforce its minimum wage law anymore, and as a result, the federal government had to increase its enforcement costs for federal minimum wage laws in that state, that the federal government would then have standing to go into state court and say that the state is violating state law? i don't think anybody would think that's a valid claim. but that's just the flip side of this kind of a claim. justice roberts: is the injury here any more indirect and speculative than the injury in massachusetts against epa? general verrilli: yes. yes. i think definitely, mr. chief justice. i mean, that was obviously a closely divided court in that case, but with respect to the majority opinion, it seems to me there were there are two fundamental differences, at least two fundamental differences. one is what the court said is that under the clean air act, that congress had charged the epa with protecting states and others from the effects of air pollution and then given a specific cause of action to the
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people whose protection epa was charged with to sue if epa wasn't doing its job. i think this is at page 520 of the opinion the court said was indispensable, was critical to the finding that states got special solicitude and were allowed to sue in a manner where, under article iii, they normally wouldn't be able to sue. in addition, i do think that you do have a quite different situation in that there was no way for massachusetts to avoid the effects about which it was complaining, and there is a way here. so there is a difference. justice roberts: maybe i could ask you to switch. general verrilli: i was just going to ask whether i could. thank you. so i think it's important, again, to frame where we are on the merits here, that the texas agrees that dhs has the authority to defer removal of this class of alien parents of u.s. citizens and lpr's. they agree that that judgment is unreviewable. what we disagree about is whether principally -- whether
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we also have the authority to authorize them to work and to accrue some ancillary benefits based on that work. justice roberts: before you get to that, could i ask you a question about the scope of your argument? general verrilli: sure. justice roberts: under your argument, could the president grant deferred removal to every unlawfully present alien in the united states right now? general verrilli: definitely not. justice roberts: why not? general verrilli: here are the limits. because the deferred action has over time, there have been built up a set of administrative limits, which i'll talk about, some administrative policy limits, and then there's substantive statutory limits. the administrative policy limits are these: deferred action has always been for the lowest priorities for removal. and everybody agrees -- justice roberts: i'm sorry. by "administrative," you mean by the executive branch? general verrilli: correct, yes, but -- justice roberts: so that somehow binds the executive branch now, the fact that i mean, this hasn't been approved by the executive branch prior to this point, either, and yet it's a fairly significant departure. general verrilli: i don't i
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wouldn't agree with that premise, mr. chief justice, but let me walk through it. you've got to be the lowest priority. there are the regulations going back decades that talk about work authorization related to people at deferred action say that there's got to be a tie to , a statutory policy that the secretary has the authority to implement, such things as foreign relations, humanitarian concerns, or keeping or family unity when one family member or more is a u.s. citizen. so you've got to ground it 6 they've got to be lowest priority; it's got to be grounded in those policy concerns; and then are a number of -- justice sotomayor: but the chief is going more fundamentally, general. those are the parameters that the executive has set for itself now. he's asking what keeps you from changing those parameters in the future and simply saying, i have under your theory of the case, i have discretion to defer action on everybody? i think that's his question. general verrilli: a couple a things about that. one is there are statutory constraints that exist now.
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for example, congress has told dhs that it has to prioritize the removal of criminal aliens and aliens detained at the border. there's no way we could give deferred action to those populations consistent with -- justice roberts: ok, so not criminals. who else? general verrilli: not aliens detained at the border. justice roberts: ok. so that's another criminals -- general verrilli: seems to me it would follow from that, that people who are recently arrived recently made it into the , country, if they aren't detained at the border, we couldn't give deferred action to them either, because seems to me that would undermine the policy judgment of trying to maximize -- justice roberts: ok. so you have to everyone has been here for two years. general verrilli: and then and there are specific statutory provisions that cover some categories of aliens like people with asylum. so then a whole host of things that impose manageable limits. if the court were to conclude that there is standing obviously, we don't think there , is, but if the court were to conclude -- justice roberts: i'm sorry. just so the categories you say would have to be excluded are criminals, people detained at the border, and people who've
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been granted asylum. and other than that, the president could grant deferred removal to everyone here. general verrilli: no. i'm not saying that. you've got to ground it in affirmative policies like the one here. and that you know, for example, if you look it the olc opinion, olc reached the conclusion that dhs couldn't grant deferred action to the parents of the parents who of people who got , deferred action for childhood arrival -- justice alito: but if the president did what the chief justice hypothesized, suppose the president said, you know, there was a time when we had open borders in the united states, and i think that's the right policy, so we're just not going to remove anybody. who could challenge that? general verrilli: well, obviously, we're doing more or less the opposite now in terms of what we're doing -- justice alito: i understand. it's a hypothetical question. could anybody, in your view, challenge that? general verrilli: yeah, yes. i think that would be challengeable under the, you know, the footnote in heckler against chaney. it says if you just decide that you're not going to enforce the law at all, then there may well be a cause of action to
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challenge it there, and but that's a million miles from where we are now. and i think the key point is that the policy -- justice kennedy: well, it's four million people from where we are now. general verrilli: well, you know, that's a big number. you're right, justice kennedy. justice kennedy: and that's and that's the whole point, is that you've talked about discretion here. what we're doing is defining the limits of discretion. and it seems to me that that is a legislative, not an executive act. general verrilli: so -- justice kennedy: all of the briefs go on for pages to the effect that the president has admitted a certain number of people and then congress approves it. that seems to me to have it backwards. it's as if that the president is setting the policy and the congress is executing it. that's just upside down. general verrilli: i don't i don't think it's upside down. i think it's different, and it's different in recognition of the of the unique nature of immigration policy. justice ginsburg: general verrilli, how much -- please, how much of a factor is the
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reality that we have 11.3 million undocumented aliens in the country, and congress, the legislature, has provided funds for removing about four million? so inevitably, priorities have to be set. general verrilli: right, exactly. justice roberts: you started out telling us that the enforcement priorities were not at issue, that that the problem was the benefits that flow from that, the work authorization, the earned income tax credit, the social security benefits, the medicare benefits. so as i understand it and i think this is the point you made the other side is not disputing , the fact that you have authority to exercise discretion. general verrilli: correct. and that, i think is the answer to that i was going to give to your question, justice kennedy. and it seems to me, with respect to this -- justice sotomayor: mr. general, before you go on, i just to make sure we have we're on the same page, you only deport 400,000, not four million. general verrilli: it's not four million. forgive me. justice sotomayor: so we have -- general verrilli: yes, we have resources for about 400,000, right. justice sotomayor: so we have we have basically 10,900,000 people
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that cannot be deported because there's not enough resources, correct? general verrilli: that's correct. justice sotomayor: so they are here whether we want them or not. general verrilli: and the key point is that we have always had a policy that says when you have -- when your presence is going to be officially tolerated, you're not here, you're violating the immigration laws by being here. you don't have any rights, but your presence is going to be officially tolerated. when you're in that circumstance, we allow you to work because it makes sense to allow you to work. because otherwise you're going to be here, and otherwise, if you can't work lawfully, you're going to either not be able to support yourself and be forced into the underground economy. we've had -- justice roberts: i have to ask you about two pages in your reply brief. on page 16, you quote the guidance that says, "the individuals covered are lawfully present in the united states." and less than a page later, you say, "aliens with deferred action are present in violation of the law." now, that must have been a hard sentence to write. i mean, they're lawfully present, and yet, they're
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present in violation of the law. general verrilli: i actually had no trouble writing it, mr. chief justice. [laughter] general verrilli: the reason i had no problem writing it is because that phrase, "lawful presence," has caused a terrible amount of confusion in this case; i realize it. but the reality is it means something different to people in the immigration world. what it means in the immigration world is not that you have a legal right to be in the united states, thatour status has changed in any way. that you have any defense to mova it doesn't mean any of those things, and it never has. so at that fundamental level, we are not trying to change anybody's legal status on the immigration -- justice roberts: lawfully present does not mean you're legally present in the united states. general verrilli: right, tolerated -- justice roberts: i'm sorry, that -- just so i get that right. general verrilli: yes. justice roberts: lawfully present does not mean you're legally present. general verrilli: correct. justice alito: but they are the dapa beneficiaries may lawfully work in the united states; isn't that correct? general verrilli: that's right. justice alito: and how is it possible to lawfully work in the united states without lawfully
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being in the united states? general verrilli: there are millions of people, millions of people other than the dapa recipients about whom this is true right now. and this gets to the point of why their reading of section 1324 is completely wrong. justice alito: i'm just talking about the english language. i just don't understand it. how can you be -- general verrilli: well, let me -- justice alito: how can you how can it be lawful to work here but not lawful to be here? general verrilli: let me just go through the reality here, and i'll give you some sense of just how disruptive a ruling would be to accept their theory on who can lawfully work in the united states. right now, since 2008, one tegory of people who can get work authorization are people applying for adjustment of status. we've given out 3.5 million of those to that category of people since 2008, and in the decades before, it was hundreds of thousands of people a year. they are not lawfully present in the united states on theory of having lawful status. people who have applied for cancellation of removal, those are people in removal proceedings now since 2008, we've given out 325,000 of those.
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justice alito: but those are statutory categories, are they not? general verrilli: no, no. there's no statutory authority to do either one of two things: either to say that they're lawfully present in the united states; there's no authority for that. and this is the key thing for their work authorization argument. there is no statutory authority to grant work authorization to those categories of people -- justice roberts: in those other categories, did you say that those people were lawfully present in the united states? general verrilli: no, but -- justice roberts: but you said that here. verrilli: the key point is that their argument about why we can't give work authorization is a statutory argument. they say that it's under that 1324 passed in 1986 extinguished our right to give our authority to give work authorization to people whose presence we are officially tolerating. what i'm saying is that that is not a plausible reading of the text. there's a 1987 regulation that ins promulgated which considered that very question of whether passage of that statute restricted ins to giving out work authorization only to
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people who are in the category specifically identified in the statute. ins rejected that as implausible and inconsistent with theory. that's been on the books for 30 years. it's a part of the chevron deference. and then the third point -- justice kagan: general, please. i'm sorry. go ahead. general verrilli: the third point is the consequences point. this argument they are making says you know, if you if you go through the reg that's in the petition, the appendix that lists all the different categories of people who get work authorization, their reading of 1324 knocks out like 15 or 16 of those categories. it doesn't just apply here. justice sotomayor: do they have a way of attacking that 1986 -- general verrilli: yes, they could -- justice sotomayor: regulation? general verrilli: absolutely. they could petition for rulemaking. justice sotomayor: and that would be under section 553(c)? general verrilli: right. they could petition the -- justice sotomayor: did they do that here? general verrilli: no, they did not do that here. justice kagan: could you have done the exact same thing without using that phrase in the dapa documents? general verrilli: yeah, absolutely. and, in fact, if the court thinks it's a problem and wants to put a red pencil through it, it's totally fine. really. i understand the issues that
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it's caused. but its legal significance is a technical legal significance with respect to eligibility for social security benefits and for this tolling provision, and that , that's the tail on the dog and the flea on the tail of the dog. justice kennedy: you were asked about an apa action. if they brought an apa action, would they be entitled at least to ask for a preliminary injunction while the notice-and-comment procedure was -- general verrilli: i don't -- forgive me, justice kennedy. i have my doubts if they would be entitled to get a preliminary injunction under those circumstances. justice kennedy: they would have they would have standing to object if the rulemaking hearing came out the wrong way. general verrilli: oh, i think if we're talking about whether there's a notice-and-comment issue here, i you've decided that they have standing. so if they have standing if you have standing to get to the notice-and-comment issue here, they'd have standing in a notice-and-comment proceeding, sure.
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justice roberts: general, when he announced -- justice breyer: but they don't have standing in the court, necessarily. i mean, loads of people have standing -- general verrilli: yeah, no -- justice breyer: to bring actions in -- general verrilli: sorry, i wasn't clear, justice breyer. if this court decides if this court gets to the notice-and-comment issue here, this court will have decided that they have article iii standing. and if they do, then they would then, too. justice roberts: when he announced -- the president announced daca, the predecessor provision, he said that if you broadened it -- this is a quote -- "then, essentially, i would be ignoring the law in a way that i think would be very difficult to defend legally." what was he talking about? general verrilli: so i think there's two possible things. one is what daca does is what dapa does, which is provide tolerated presence and essentially the ability to work. if he had said, i'm actually going to give these people lawful permanent resident status or legal status, that would be going further. justice roberts: or say or say they were lawfully present. general verrilli: and, well, but as i said, you know, i really think that -- and then and then second, the other thing is, you know, maybe he thought he couldn't extend it at that time and couldn't extend it at that time to dapa.
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but, you know, what happened here is that the president and the secretary went to the office of legal counsel and asked for an opinion about the scope of their authority to the scope of this discretionary authority, and they got one. and they exercised it consistently with that and up to the limits of that and no further. and so, you know, i do think whatever the president may have met meant, we went through that process, we came to that conclusion, and we and acted on that conclusion and respecting the limits that olc decided. justice ginsburg: there's no challenge to dapa in it? general verrilli: no, right, which, as a legal matter is no different. if i might reserve the balance of my time. thank you. justice roberts: thank you, general. mr. saenz. mr. saenz: mr. chief justice, and may it please the court, the jane does, three texas mothers of u.s. citizen children, seek the opportunity to apply for discretionary, temporary and a revocable relief from the daily fear that they will be separated from their families and detained or removed from a their homes under the current nonuniform and frequently arbitrary federal immigration
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enforcement system, which fails to provide any reliable a opportunity to be identified as low priority. their own state of texas, through this suit, has blocked the guidance that would secure the jane does an opportunity to step forward, register and apply and obtain a timely decision with respect to deferred action. texas does so based on asserted indirect and speculative budgetary injury that contradicts the state's own legislative decision, after balancing all policy considerations to subsidize and and encourage the acquisition of driver's licenses with no annual or cumulative limit on subsidies in that form. justice roberts: do you think it would be illegal if texas adopted a policy saying everyone lawfully present in texas except people subject to dapa get a driver's license?
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mr. saenz: i think it would be, in candor, subject to a challenge that would revolve around the circumstances and the reasoning behind that new legislation. it's important, of course, to note that texas has not done that. and there's no indication that its legislative process would result in determining that its previous decision that subsidized licenses make sense without limit has some endpoint. the circumstance that you've described where it specifically targets one set of deferred action recipients would certainly raise questions. it would be resolved if -- justice sotomayor: how about if they just said, let's take it out of dapa if they just said, you know something? there's too many deferred action people. it doesn't matter why you're deferred. political refugee, the people waiting for a different status we're just going to do it for everybody. mr. saenz: in that circumstance, i think it, too, would be subject to challenge. it would be a different challenge because of
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circumstances, and the reasoning would be different. there would be equal protection claims. there might be preemption claims. and those would be resolved in the kind of concrete clash of real interest that this court has indicated article iii supports. you would have the state of texas defending a decision it has made to change its law and to keep that law in place. then you would have aggrieved individuals who would have been denied a driver's license because of that change. justice sotomayor: not every state grants licenses to deferred action individuals, do they? mr. saenz: that's correct, your honor. in this case, it would arise in the context of a change which could raise equal protection concerns to be resolved in the kind of concrete clash of interest that this court has indicated are behind article iii. i think it's important to note that not only has texas not changed its policy -- justice kagan: do i take it from the way you are phrasing this that you actually think that the equal protection concerns would be more serious than the preemption concerns? mr. saenz: i think it depends on the circumstances of how texas is to make its decision. all the more reason to wait until it's actually made a
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decision through a legislative process where there would be a record of why the legislators chose to change from a policy that currently provides licenses to anyone who can demonstrate that they are authorized to be in the united states, to something that would leave some folks in that category out. if they would decide that tolerated presence is not authorization, for example, we would have a record of why they made that decision. of course, we are not there yet because texas has not made a decision to change what its current policy is, and there is no indication that -- justice breyer: in the record, that you're more familiar with than i, and i would ask the other side the same question, i've read in the briefs quite a lot that the reason that they don't want to give driver's licenses to these 500,000 extra people is it's expensive. is there any other reason that's in this record, such as we could imagine other reasons. is there any serious effort to rest their claim?
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we don't want to give them licenses on anything other than money? mr. saenz: yes, your honor. justice breyer: what? mr. saenz: governor abbot has indicated that, in the record -- justice breyer: in the record here. mr. saenz: yes, it's in the record here, i believe, your honor, that, in fact, this is a political dispute. they do not agree with the policy adopted by the administration, though they have conceded in this case that it is within the executive's discretionary authority. justice breyer: you're talking about in general. i'm focusing on the narrow question of how texas is hurt, specifically, not a political disagreement. how are they specifically hurt by giving these people driver's licenses? mr. saenz: your honor, they -- justice breyer: one way is it costs them money. mr. saenz: yes. justice breyer: are there other ways? mr. saenz: no, your honor. that's the only thing they put forward in one -- justice breyer: that's the answer. mr. saenz: and, in fact, it shows that they believe they would face additional expenses, though there's not really enough
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to conclude that it would change the state's previous determination, taking into account those costs from every subsidized license -- justice roberts: isn't losing money the classic case for standing? mr. saenz: it's a classic case for a private individual, your honor, but here, we're talking about a state that has made a decision, as states often do, to spend money by subsidizing licenses because it's balanced other considerations, including -- justice roberts: we said in massachusetts against epa that we have a special solicitude for the claims of the states. mr. saenz: yes. in that case, it was not a financial claim. as you know, your honor, it was a claim related to the state's quasi-sovereign interest over land. in addition, as general verrilli has indicated, there was a procedural right within the clean air act that does not exist here. indeed, if a procedural right were to be established under the apa itself, there is no limit to the number of states that could come forward to challenge any domestic policy of any kind by this or any future administration. justice alito: if an employer took the position that the employer was not going to hire a
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dapa beneficiary because the employer believes that they are not that they are not lawfully authorized to work, would prefer someone else over them, could that person sue on any theory of discrimination, for example, under section 1981? mr. saenz: they could, your honor. and the outcome of that case, i think, has not been clearly established by precedent so far. but it would be a clash between folks with concrete interest, an employer who wants to hire someone, not the individual who -- justice alito: if that's true then, dapa gives them a legal right. it's more than just putting them in a low-priority prosecution status. mr. saenz: i think it's important to note, your honor, that work authorization is a separate determination from deferred action itself. not everyone who receives deferred action will receive work authorization. i also think -- justice alito: but work authorization, in your view, gives them a legal right they did not have before.
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mr. saenz: it gives them the right to work with authorization, certainly. however, i also need to go back to standing and point out that work authorization has nothing whatsoever to do with driver's licenses in texas, where the test is authorized to be in the u.s. -- justice ginsburg: when you when you answered the question about you said there might be a 1981 suit. you are not saying who would win that suit. mr. saenz: that's correct. justice ginsburg: you're saying it's a question. not that they have a legal right, but anyone can sue. you can always sue. mr. saenz: it's far from clear, i think. the precedent is not clear enough to determine the outcome of that case. justice alito: what is but what is your position on that? mr. saenz: our position would be that it is something to be litigated. in fact, to be in all candor, we have litigated it to a settlement. so, no, no established precedent to make it clear one way or the other. justice alito: but you believe they do have the right? mr. saenz: they do have work authorization, and that certainly means that they ought not be subject to unreasonable discriminatory bases for denying their work.
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it's different from when they don't have work authorization. but going back to the work authorization, it has no relationship to the driver's licenses. in fact, they could receive licenses without ever applying or receiving work authorization. there's no connection between the two. therefore, any concerns about work authorization would not redress the injury behind standing of the state of texas. justice alito: in the whiting case a few terms ago, the court upheld an arizona statute that imposed pretty severe civil penalties on an employer who employed individuals who were not authorized to work. so if an employer in arizona hires dapa beneficiaries and the state attempts to impose those civil penalties on that employer, i assume that you believe that dapa would provide a legal defense to that?
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mr. saenz: i believe there would be a defense, but before that, because the whiting case involved a requirement to use either by system under the verified system, those who were work authorized, whether through deferred action or otherwise, should come back as authorized workers. so i think the state of arizona, which premised its statute in part to receive this court's blessing of that statute on relying on federal decision makers, would not be in a position to engage in what you've described. justice alito: well, prior to dapa, if the employer had employed these individuals, the employer would be subject to those penalties, would it not? mr. saenz: that is correct. justice alito: and after dapa, it would not be. mr. saenz: work authorization is an authorization to work that is separate from the deferred-action determination. basically, the state of texas has conceded the deferred-action determination and seems to be focusing on work authorization. but that work authorization has absolutely no relationship to the alleged injury of driver's licenses. i see my time is up, your honor. justice roberts: thank you, mr. saenz. general keller. general keller: thank you, mr. chief justice, and may it please the court, dapa is an
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unprecedented unlawful assertion of executive power. dapa would be one of the largest changes in immigration policy in our nation's history -- justice sotomayor: how can you say that? i mean, we have the fairness act that happened in 1990. it granted basically the same thing, deferred action and work authorization, to 1.5 million people out of 4 million. that was a 40% of the immigrant population of the time was affected. here, the best estimate is that only 35% are affected. so at least once before, the president has taken action that has a greater percentage effect than now. so why is it the largest? is it the number of people? general keller: well, the family fairness program, first of all, was done pursuant to statutory authority. it was a voluntary departure
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program. it was not an extra statutory deferred action program. also, i believe only 47,000 people actually got relief there. and what congress did in 1996 after the family fairness program -- justice sotomayor: well, that's because congress decided to step in. here, we have a congress that's decided some members of the congress have decided they don't like it, and so congress has remained silent. it doesn't mean that at some later point after the election or whenever, congress can't step in and do what it wants to do. general keller: but, justice sotomayor, i think that's backwards. congress has to grant the statutory authority first for the executive to be able to act. and to do so, on a question that's of this deep economic significance, it would have to do so expressly. justice sotomayor: you know, you keep saying that, "deep economic significance." those nearly 11 million unauthorized aliens are here in the shadows. they are affecting the economy whether we want to or not. the answer is, if congress really wanted not to have an
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economic impact, it would it would allot the amount of money necessary to deport them, but it hasn't. general keller: but what congress did in 1986 with work authorization, and 1996 with benefits, is it restricted work and benefits as an alternative mechanism to enforce immigration law. those judgments acknowledge there are going to be people in the country that are unlawfully present, and yet, congress put forward those barriers to work and to benefits precisely to deter unlawful immigration. what the executive is trying to do here is flout that determination. justice sotomayor: except that the work authorization ability of the attorney general to do has been clearly stated since 1986, and congress hasn't taken that away. it may at some later point, but it still has not undone the 1986 regulation. general keller: but in 1986, congress passed a comprehensive
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framework for combating the employment of unauthorized aliens. that was a decision to repudiate the past practice and enact a general federal ban on the employment of unauthorized aliens. justice sotomayor: and the regulation permitting the attorney general to give work authorization to deferred-action individuals has stood since that time. general keller: but when that regulation was passed in 1987, the executive said that the number covered by that regulation was so small as "to be not worth recording statistically," and, "the impact on the labor market is minimal." so regardless of what congress may have acquiesced to afterwards, that regulation has always been known as being for a small class of individuals for deferred action. justice sotomayor: but it's been applied to a large class. it was applied to a large class in 1990. 1.5 million out of 4 million. 40% of the illegal population. that was a fairly significant number, and congress didn't act thereafter. in fact, it expanded the program
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the president had started. general keller: no. the 1990 family fairness program was voluntary departure with statutory authority. congress responded in 1996 by capping it at 120 days. and the executive acknowledged that when congress did that, it could no longer authorize employment under that voluntary departure program. justice sotomayor: exactly. general keller: but here, with deferred action, when they've only the executive has only been granting 500 to 1000 deferred action permits a year, there's no way congress would have acquiesced to granting four million permits than in a program like this - justice sotomayor: well, it has it has acquiesced to larger numbers of salvadorians, guatemalans, hondurans, haitians, chinese, the tnu visa applications, those numbers have been much larger than the limited numbers you're quoting right now. general keller: and those programs would have been under temporary protective status; humanitarian parole, deferred enforced departure, which is justified and has been, at least, under the president's
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article ii power, and there's no suggestion that here dapa is unprecedented because this is a extra statutory deferred action program that is not bridging lawful status. the aliens do not have a preexisting status, and they don't have an eminent status. justice kagan: general, could i take you back a few steps? general verrilli said a couple of times that you've essentially conceded the legality of dapa taking out the work authorization and the social security benefits. is that correct? general keller: no. i'll be very clear. when the executive is forbearing from removal on a case by case basis, that is what this court in reno noted was deferred action enforcement discretion. but when the executive is transforming unlawful presence into lawful presence, and granting eligibility for work authorization and medicare -- justice kagan: let me make sure i understand that. you're saying that the government could do this case by case, one by one with respect to
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all the people in the class, but that the government cannot identify the entire class and say we're forbearing from enforcement. is that correct? general keller: while that would be a harder, tougher case, i do believe that they could do it class based if they were simply forbearing from removal. justice kagan: so that's what i asked originally. if they were simply forbearing from removal, and there was not work authorization attached to it, and there was not social security or any other benefits attached to it, are you conceding that? general keller: in this case, given that they are removing 400,000 people a year, we admit that they could do forbearance from removal. but what they can't do is grant authorization to be in the country. there's a -- justice ginsburg: can i can i ask you specifically? you have a statement in your brief, and that's it says that the executive could give cards, identification cards to all these people saying "low priority." are you adhering to that? is that what you mean?
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these people you're objecting to work authorizations, social security, but the government, not one by one, but to give everyone who fits into this category a card that says low priority? general keller: the government, as part of its enforcement discretion, could do that. but that's very different than what they're doing here where they're granting lawful presence. and that matters because that's why we have to grant driver's license. that's why they get -- justice kagan: general, are you are you just referring to that single phrase in the dapa memorandum? is that what you're referring to? because, general verrilli, of course, says you could strike that phrase today if you wanted to, that that phrase really has no legal consequence whatsoever, that all this document does is do exactly what you said, which is to grant forbearance, to tell people we are you are not our enforcement priority, we are not going to deport you until we say otherwise, which we can tomorrow too.
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general keller: that lawful presence phrase is key because that's the first time in a deferred-action program the executive has taken that position. but even if that phrase were struck, that would still not cure the defect. and the reason is because what the executive is doing when they're granting deferred action is they are affirmatively granting a status. and we know that from their own benefits regulations, which say this is h.c.f.r. 1.3. sub a says lawfully present qualifies if you're in deferred action status. and then sub b says, well, just because we're forbearing from removal, that doesn't necessarily mean that you're lawfully present. and so what is going on here is a transformation of deferred action from what this court recognized in reno to something far more than forbearance from removal. it is granting a status, and that status then entails certain things beyond even medicare and social security. for instance -- justice kagan: i guess i really did want to know, just take out the work authorization, take out the social security, and take out that phrase.
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can the can the government say to all of these people, and say it all at once, not one by one, yes, you're a low -- all of you are low priority, and we will not be coming after you, and we will not deport you unless we change our minds. general keller: and, justice kagan, they can do that, and they can do that under the unchallenged prioritization memo. but what they can't do is say it's deferred action that grants a status under the benefits regulation -- justice kagan: i think that's just a label. can they do that? general keller: it is a label, but it's a label that congress created -- justice kagan: well, my hypothetical is -- i mean, you're suggesting that the label has some legal consequence. and my hypothetical is we just say to these however many million people it is, you will not be deported unless we change our minds. can they do that? general keller: if that's all they were doing yes. but as soon as they link it -- justice kagan: even though it's many millions of people they could do that? and they can do it all at once. general keller: yes, as long as they're not abdicating. and here, we are not challenging
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the prioritization -- justice kagan: ok. so if that's right, then it seems to me your real gripe here and you -- maybe it's a real gripe your real gripe here is to the work authorization piece and to the benefits pieces. is that right? general keller: and the granting of lawful presence, because that is what's going to -- justice kagan: well, and that's just a label that general verrilli says they could strike out in a moment. general keller: well, that's their position, but that's wrong. and the reason it's wrong -- justice kagan: well, it's their memorandum. general keller: it is their memorandum. [laughter] general keller: and it's -- justice alito: but isn't it a statutory term? general keller: it is -- justice alito: does the term "lawful presence" appear in statutes enacted by congress? general keller: it does. it appears in iirira, the reentry bar, it appears in the social security and medicare -- it appears in the gun possession statute. "lawful presence" allows an alien to possess guns. that's the oriana case that we cite from the fifth circuit. and their treating it is also allowing advanced parole, which we now know apparently some daca recipients have gotten green cards and a path to citizenship. justice kagan: but then it seems
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to me, general keller, that your that what you should be attacking is not dapa. what you should be attacking is the work authorization regulations that the dhs, or before that the ina, has had for 30 years. or you should be attacking other connections that dhs is making with respect to these people, but not dapa itself. general keller: but justice kagan, i think it is dapa itself that we're challenging. and the reason why is because that is what is transforming unlawful conduct into authorized lawful conduct -- justice ginsburg: where does it say that in dapa? we have the dapa directive. i didn't see anything in it about work authorization or about social security. general keller: the dapa directive does not mention social security. it does mention work authorization. this is pet. app. 413a. and i'll quote from it -- "deferred action means that for a specified period of time, an individual is permitted to be
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lawfully present in the united states." now, the executive wants to take the position that that has no legal consequence. of course, the olc memo at j.a. 76, and this has been misquoted in their reply brief -- said that what's going on with tolerated presence is it is the forward action will be toleration of an alien's continued unlawful presence. now, if it's 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 and gun sorry they can't get medicare, social security, gun possession. justice ginsburg: you tie the driver's license to work authorization? let's say somebody is in this deferred status but isn't working. do they -- under texas law, do they get driver's licenses? general keller: under texas law and this is our texas statute if someone is authorized to be in the united states, they're eligible for a driver's license. justice ginsburg: and it sounds like they don't have to have any work authorization. general keller: that's correct. they need to be authorized to be
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in the country. but to give some context to how this works, we have to rely on the federal government's immigration classifications. i mean, we determine whether someone is eligible for a driver's license. we run that through the federal save background system. so we ask the federal government, is this individual authorized to be in the country? they say yes or no. justice roberts: well, the government also says you don't have to do that, or maybe you don't have to do that and maybe or not they won't sue you. but why don't you go ahead and not give them driver's license? general keller: well, i think, as your honor had suggested before, that we are in a catch 22 here. either we have to not incur millions of dollars of financial harm, which is a quintessential article iii injury, or we have to change our law and somehow we have to come up with a different background check system. we wouldn't have a uniform policy. justice sotomayor: 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 you do what? general keller: you would go to
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a department of motor vehicles. you would show the documentation showing who you are and that you're eligible for a license. now, in the context of aliens and this is at j.a. 377 to 382 outlining the process, then the state verifies that the individual has authorization to be in the country. and that's sort of the federal -- justice sotomayor: all right. now, i do know, because i've experienced it, that lines are very long at dmv's. [laughter] sometimes people wait the entire day. and i know that they leave the next day when they haven't gotten to them. and they keep coming back. it's not an ideal situation. 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
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spend all this money? why can't you just have your regular process and let people wait online? general keller: well, first of all, under the federal real i.d. act, if our state's driver's license recipients want to be able to use that license to get through airport securities, tsa security, there has to be integrity in the license for the federal government. and so we have to check whether an alien is actually -- justice sotomayor: fine. i was just saying, why do you have to ramp up? this i mean, 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's already a built-in profit from profiting licenses of $25, that you really don't know if you have to add all this personnel, because every five million
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people are not going to walk into dmv in one day. and that the numbers are going to be much less no matter what, because not everybody not all 5 million are going to 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 line? general keller: yeah. so this is at j.a. 377 to 382. and the reason is, is because there's going to be a spike in the applicants for driver's licenses, and there are much more to do than simply granting a license. there would have to be processing the paperwork, making other determinations. but in any event, that -- justice sotomayor: but you do that in the speed 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 as fast or as slow as it wanted to do it. general keller: well, and here, we have a fact-finding that we would incur these costs. neither parties or my friends on
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the other side of said that this clear error. the budget document -- justice sotomayor: this is a jurisdictional standing question. general keller: it is a jurisdictional standing question. justice sotomayor: do we just accept at face value something that might not be true? general keller: but we have -- justice sotomayor: can we give you standing just on the basis of you saying, i'm going to do this when it makes no sense? general keller: we have a fact-finding here. they have not alleged it's clear error. we also have declarations in from wisconsin and indiana that have not been challenged. the bottom line is, if we're going to have to issue more driver's licenses, it's going to cost more money. justice roberts: justice breyer. justice breyer: i would like to ask a question. the only thing i found here is about money, really. if there's something else that's worrying you, it's sort of hidden. but money is money; i understand that. and my question is about standing. and this is technical, but it's important to me. looking at the briefs, awful lot of briefs, senators, both sides.
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awful lot of briefs from states, both sides. members of congress. why? because this has tremendous political valence. 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 -- [laughter] justice breyer: unless, luckily, they're overruled. and a few have been. they're submerged like icebergs. [laughter] justice breyer: the one i'm thinking of is frothingham v. mellon, massachusetts v. mellon. and there, in those cases, the federal government had given something to some people. there 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
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sorry massachusetts lost, but lo and behold, it did. that's just because i'm from massachusetts. [laughter] justice breyer: 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, cannot just sue on that basis. and as for the state, it cannot represent you parens patriae
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because this is between the federal government and the citizens. they're the ones who have to pay. and as far as massachusetts is concerned, again, bringing up to a case that they won, that was their own coastline. and that's not money. that's 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 you see my point. and i want to know how you get around that, frothingham, massachusetts, v. mellon, that when you give a benefit here, hurt the taxpayer via money over there, he doesn't have the kind of interest that gives him standing. general keller: first, we're raising financial harms from our own state's fisc. that's not a parens patriae. and we're also raising sovereign harms, and that's massachusetts v. epa. we have ceded to the federal government the authority to determine who's lawfully present
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within the borders of the 26 states. now -- justice breyer: well, sovereign harms, you realize, would follow a fortiori, because if a state cannot sue and its citizens cannot 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 cannot sue just by announcing it requires a change in law in general, or because it requires -- hurts our sovereign interest, for then every case of political disagreement where states disagree would come before the court. general keller: well, but i think a lot of those cases would be taken care of through causation requirements, injury-in-fact requirements, and the zone of interest test, for instance, the adjusted gross income example and the veterans benefits example that the other side has brought up. i think that all those cases would be screened out through the zone-of-interest test. here, we put forward over a thousand pages of evidence into the preliminary injunction record with over a dozen declarations and have
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fact-findings establishing exactly what arizona v. united states said, which is that the states bear the consequences of illegal immigration. and when we can come to court and show a concrete injury and a policy that is causing that injury, and by enjoying that policy, we wouldn't have to incur either the financial harm or the sovereign harm, that's precisely when -- justice sotomayor: well, but that -- general keller: you have article iii cases -- justice sotomayor: that really pits the states against every federal agency. and any harm, financial harm that indirectly flows from a change in policy would be subject to attack. let me give you a prime example. ok? 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. too big to fail. texas reasonably doesn't want to invest money in companies that
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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 don't think we should. ok? why can't the states sue that federal agency and say the law mandates that you tell us who's too big to fail? general keller: i don't think states would be protected by laws governing which banks are too big to fail, but states absolutely are protected by immigration laws saying who is lawfully present within our borders. and i think so that would be
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weeded out under the zone of interest test. so even if -- justice sotomayor: we already said in arizona v. 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. general keller: and that's precisely -- justice sotomayor: you're not in the zone of interest of this of this of the immigration law. general keller: oh, we absolutely are, and that's precisely why i am standing here. because as the court recognized in arizona, just because the federal government pervasively regulates immigration, that doesn't mean that the states don't have a significant interest in who's within their borders. we have an easily identifiable sovereign interest on who's within our borders. however -- justice ginsburg: but the state can't remove anyone, and we still go back to the basic problem -- 11.3 million people. congress is not appropriating money to remove more than what is it? four million of them. so there are these people that are who are here to stay no matter what. and you have conceded that the federal government can say, low priority, here's your card. not going to deport you unless we change our mind. so the only thing that's
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involved is the work, and you haven't challenged that separately. you're challenging dapa. general keller: and dapa itself purports to grant not only work authorization, but also transform unlawful conduct into lawful conduct. justice ginsburg: we've already gone through that. we've we have agreed that 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. general keller: but it's not just an unfortunate slip. when they're granting deferred-action status, under their regulations, that is lawful presence. so they want you to take out "lawful presence" from the dapa memo and pretend "lawful presence" isn't in there. but then when you go into the regulations -- justice kagan: but then why aren't you challenging the regulations? i mean, 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
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is the nonenforcement part of this. your real challenge is to the regulations, the fact that nonenforcement leads to a certain set of results and yet you're not here challenging those regulations. general keller: well, insofar as you'd conceive of our case of challenging those regulations, it would be challenging them as applied to dapa, but when congress -- justice sotomayor: the problem is that you haven't exhausted administratively, and we always require you to do that. there isn't an exception, as i understand it, under the apa, for your failure to exhaust your avenues in the agency first. general keller: well but this is we are challenging dapa. we are challenging that memo. justice kagan: can i please. go ahead. general keller: and when we bring forth that suit, which only occurred as of november 20, 2014, just because we're challenging dapa's granting of deferred action doesn't mean in the four narrow categories that congress has passed statutes allowing deferred action 9 for vawa self-petitioners, t- and u- visa applicants, and widows and
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widowers that somehow we'd have to also be challenging -- justice kagan: do you think this? suppose that instead of doing dapa, dhs had decided to go one by one by one and it just you know, it sent a notice to each person. do you think at that point that that dhs could also say, and this will include work authorization because of our preexisting regulations? general keller: insofar as they were granting lawful presence, no. work authorization, i think at most, you'd look at, well, has there been congressional acquiescence to this minimal program -- justice kagan: i guess i'm not sure i understood the first part of that because let's just, like, take out the labels. just it notifies a single person, you're low priority. we're not going to deport you unless we change our minds. and by virtue of preexisting regulations, you now can work on the books. is that legal? could dhs do that? general keller: i don't think there's statutory authorization. there may have been
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congressional acquiescence to a practice in a very small cases that's bridging lawful -- justice kagan: see, that's interesting because i thought and as you said, there's not statutory authorization with respect to that, and i thought your entire argument is that they can't do this, except for statutory authorization. and now you're saying, well, in some cases they can do it. general keller: well, justice kagan, we have multiple arguments. the first is a statutory argument. and our backup argument, which is a response to the executive's congressional acquiescence argument, is that at most, congress would have acquiesced to a practice of very small uses that were bridged -- justice kagan: and how about this? how about dhs doesn't do it one by one. how about dhs says, it's senseless to do it one by one. we should use some categories. here's the category. you've been here for 25 years. you're entitled to not entitled. you can stay unless we change our minds. so that's the category. so it's a smaller category, but, you know, there's some there's a lot of people in that. general keller: if there was no previous lawful status or an eminent lawful status, there's no way congress has acquiesced to that. and if i can back up --
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justice kagan: so wait a minute. so that's important. so dhs could not say to all the people who have been here for 25 years and perfectly law abiding, congress could not say to those, you know, tens of thousands of people, let's say, not millions, tens of thousands, all right, you we won't deport you unless we change our minds, and you can work, you can feed your families, you can do that. congress dhs could not do that? general keller: congress could. dhs does not have statutory authority right now, of carte blanche authority to grant lawful -- justice kagan: so this has nothing to do with the scope of this policy. this has nothing to do with, oh, how many millions of people are in this policy. you're saying even with respect to a much smaller policy of the kind that dhs or its predecessor agencies have done literally every year for the last three decades, that all of that was ultra vires. general keller: mr. chief justice, my time is up. justice roberts: please, you may answer the question.
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general keller: 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? it also goes to when the 1987 work authorization was justified, the executive was telling everyone through the administrative process that this was for a minuscule number of people, and it wouldn't affect the labor market. and this also brings to light that here, the executive didn't even use notice-and-comment in promulgating this sweeping their theory is that they can grant deferred action where there's not going to be lawful status, that no court can review it, and they didn't even use notice-and-comment procedure. that is unprecedented, is a sweeping assertion as justice jackson said in youngstown. "it is the duty of the court to be last, not first to give up the separation of powers." justice roberts: thank you, general. general keller: thank you, mr. chief justice. justice roberts: ms. murphy.
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ms. murphy: mr. chief justice, and may it please the court, three years ago the executive asked congress to enact legislation that would have given it the power to authorize most of the people that are 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 that it has had the power to achieve the same -- justice sotomayor: excuse me. was that really all was that part of a package for a pathway to citizenship? ms. murphy: it was not a pathway to citizenship. it was a pathway to lawful presence in the country that would have allowed individuals to have a legal status, to remain this country, and congress has not created a legal status for the category of individuals covered by dapa. justice sotomayor: that's correct. why do you think this is a legal status in the way that that bill imagines? ms. murphy: 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
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partular to c.f.r.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 regulations. it's 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. justice roberts: so why don't we just cross why don't we just cross out "lawfully present," as the sg has suggested? ms. murphy: you can't cross it out and achieve what dapa is supposed to achieve, because what really matters in dapa is that it is allowing the grant of deferred-action status.
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whatever the executive wants to label that, under its own regulations, deferred-action status is equated with lawful presence. so if you cross it out of the dapa memo, it's still part of the regulatory scheme that says once we've taken this extra step, not just of deferring the removal of you, but of putting you into this 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. justice ginsburg: but you would agree with the clause that says low priority, that that nothing about work authorization, nothing about social security, if you are low priority, which means we'll probably never get to you because congress hasn't given us the money to remove you. ms. murphy: well, 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.
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but that's all 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 as to you, 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 that, under our own regulation, changes your eligibility -- justice roberts: well, we'll hear in a second -- justice kennedy: why wouldn't the appropriate way for texas to proceed have been to challenge the regulation under the apa -- i think it's section 553 and then if there were concern about notice-and-comment taking too long, asking for a preliminary
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injunction? ms. murphy: i don't think that's the way that it actually makes sense for this to proceed, because there's nothing inherently problematic about a regulation that ties deferred-action status to work authorization. congress has passed multiple statutes -- justice kennedy: well, but the point the point of the suit, i guess i'm not going to tell people how to design their suit the point of the suit would be the areas of discretion have been so vastly changed that the regulation now has been has been superseded. ms. murphy: and i don't mean to suggest that that's not a way you could challenge. but i don't think it's 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's the abuse of deferred-action status. that's not a power that includes the power to grant deferred action status to individuals who are on a class-based program -- justice ginsburg: then you disagree with general keller, because i think he did say came up a few times, it's in his brief you could give an i.d.
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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. ms. murphy: what i would say is we would have concerns if this case were challenging just the enforcement priorities memorandum, and we would have the same concerns if you had that and invited people in and gave them an enforcement priority card. that's not what this case is challenging. so ultimately, whether the house has concerns about the enforcement priorities memorandum is really beside the point here, because what this case is challenging is the dapa memorandum that goes beyond the mere enforcement discretion -- justice sotomayor: so can we can we take it break it down? ms. murphy: sure. justice sotomayor: are you arguing that the executive does not have the power to defer to defer action of removal against this class of aliens?
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ms. murphy: it all depends by what you mean by "defer action." justice sotomayor: i just said deferred action, but they're not -- ms. murphy: well, i can't answer the question unless i understand 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 the time, such as the voluntary departure statute that no longer is a path for executive -- justice breyer: can i can i ask
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you this, then? because you're an amicus; you're not a party. it's texas who's the party, and they've made their objections. but suppose we played suppose i picked up your thought and also coupled it with what the sg said, cross out the 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 benefits, 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 s.g.'s concession or
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agreement or desire to strike those words out. does that work or not, in your opinion? ms. murphy: i'm not sure i completely -- i'm sorry. justice breyer: if i am not clear, i will not repeat it, but you can forget it. ms. murphy: no, no. i want to be responsive. [laughter] i just want to be sure i understand the question. i mean, i think -- i guess my point is that i don't think anything, either in texas' view of the case, or in our view of the case, that turns on these words "lawful presence" being in the dapa memorandum, 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's 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.
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again, c.f.r.8, c.f.r.1.3, it specifically says the decision not to pursue a removal proceeding does not render you lawfully present. so it matters. you know, the words that were used here, and the program being created, matters. it's not enough to have mere forbearance. you need this additional step to achieve what the executive wants to accomplish. justice sotomayor: so your position is that in 1989, when george h.w. bush granted deferred enforced departure for chinese residents after the tiananmen square situation, that he acted illegally? ms. murphy: no, because that program was justified on a different power than the power here. it was deferred that the deferred enforced departure in article ii -- justice sotomayor: but there was no statutory authority for him to do that. ms. murphy: it is a power that the executive has always grounded in article ii foreign affairs power.
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a nationality, country-based concern power. now, there's currently a statute on the books, the temporary protected status statute, that says it is the exclusive authority through which the executive can grant nationality based, but -- justice sotomayor: that came after this. ms. murphy: right. and at the time, that statute didn't exist -- justice sotomayor: at the time, there was no statutory authority. ms. murphy: whatever was happening before 1990 doesn't tell you very much about what congress has acquiesced in when congress passed a statute in 1990 that said these are the circumstances under which you can grant -- justice sotomayor: i appreciate that. and that may be what congress does here. it may come back and say deferred action is limited in this way. but it hasn't yet. so assuming that we have a history of deferred action for categories of people, then what you're really arguing about it
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and you and i stopped, or 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's unconstitutional? ms. murphy: no. because there are statutes on the books that say deferred action status also comes with work authorization. so, of course -- justice sotomayor: except that the statute says that the those people, deferred action, can be granted under the statute -- ms. murphy: yes. justice sotomayor: or by the attorney general. ms. murphy: i'm not -- justice sotomayor: the ones if you're striking out by the attorney general? ms. murphy: i was talking about different statutes, not 1324a(h)(3). i was talking about the statutes that actually refer to deferred action.
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and they say that the executive can grant deferred action and work authorization. so there's nothing inherently problematic about a regulation that implements congress's precise understanding that in the circumstances where the executive is authorized to grant deferred action -- justice kagan: ms. murphy, suppose something is not statutorily authorized. suppose this is a version of the hypothetical that 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? ms. murphy: 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. because in the past, i mean, there have been this kind of ad hoc de minimis, case by case use of deferred action status. justice kagan: ok. so suppose, then again, same kind of question that i gave to general keller. suppose that there was a policy, but it was of much less
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significant scope. let's say a policy that 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? ms. murphy: no. there is not any congressional authority that allows it, and there is no past practice like it. justice kagan: but this is very significant, right? no past practice like it? i mean -- ms. murphy: there's not any past practice. justice kagan: what was that family -- ms. murphy: that was not a -- justice kagan: policy fairness? ms. murphy: 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 past deferred action program that was for a category of individuals that had no path to loss of status. justice kagan: so, but this is important. because you're basically saying that dhs, going forward, any administration cannot have any kind of policy, even if it's limited, much more limited than
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this kind of policy is, that allows undocumented aliens to work. ms. murphy: congress has passed a statute that says if you are living in this country without legal authority, you cannot work. that's congress's policy judgment in 1324a. justice kagan: that's -- ms. murphy: you may disagree with -- justice kagan: yeah, yeah, yeah, i understand the point. all, i guess, i'm just saying is this would be an enormous change in practice. ms. murphy: 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 this country. justice ginsburg: is that true of all other deferred actions mentioned in the appendix, the one that the congressional research service did? ms. murphy: yes. most of those are not deferred action programs. they're extended voluntary -- justice ginsburg: i mean, they are different. ms. murphy: there's really there's only about four deferred action programs that were class-based. those all were path to lawful status.
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u visas, t visas, people who held f1 visas during hurricane katrina. justice roberts: thank you, counsel. five minutes, general verrilli. general verrilli: thank you, mr. chief justice. first, on standing, i would note that they have no answer to our redressability point. you didn't hear one today. they don't have one. second, even if you think they got over the article iii hurdle, there's just no way that this license cost injury constitutes something within the zone of interest in any provision within the apa, and they haven't tried to establish that. and then third with respect to standing, i think justice breyer's point about the analogy between the kind of theory that they are advocating here and taxpayer standing and parens patriae is dead on correct. this would invite exactly the same kind of flood of litigation that you have always said article iii is designed to prevent, and if you want proof of that, it already exists. texas is already using this theory to sue the united states based on the resettlement of syrian refugees in texas, and that will just be the beginning. now, justice alito, you raised a couple of points i want to get to with some specifics.
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you asked about whether an employee with a deferred action work authorization could sue if an employer refused to hire. i would direct your honor to u.s.c.1324b. actually, congress has determined the situations in which an employee well, with an 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 is on the side where you don't. justice alito: well, i was asking about section 1981. general verrilli: well, but i think that if you have a you'd have a hard time making that claim given that congress has made that kind of a judgment. now, with respect to another point your honor made justice alito: so your position is that that there could not be a suit under 1981. general verrilli: what i'm saying is that congress made a judgment there that that bears very directly on it. but now, with respect to another point that your honor raised about specific statutory references to lawful presence, my friends on the other side made a huge deal about this, in particular c.f.r.1.3, which i think they cite seven or eight times. i urge you to go to look at it. i urge you to, in fact, read the rulemaking order that went along
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with it from 1996. what you'll see what it says, that it applies to one thing and one thing only. that's the accrual of social security benefits under section 1611(b). and the rulemaking order and we quoted this in our reply brief specifically says that although we're counting deferred action as lawful presence for the purpose of accruing social security benefits for the reason that if you can work lawfully, you ought to be able to accrue benefits. this does not confer any lawful status under the immigration laws. it specifically says that. and so we can argue about whether the executive has thewee executive has the authority in that narrow sense. we think we are right, but that is on the dog. if the phrase was stricken from the guidance -- justice alito: if the phrase was
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stricken from the guidance, for eligibility, for federal benefits. justice alito: the only federal -- none, those two statutory references. gen. verrilli: as i said, that is the tale on the dog. if i can go to the merit. repeatedly, you have heard it referred to statutory observation, that is flat wrong. there is a district case and he can read the opinion in that case, which we referred to, is describing as extra statutory paid the other key point that statutory. the other key point mother theory about the scope of you can get work authorization is that either congress has to say to get work authorization. decideneed to get dhs to
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whether people in this category can get work authorization. forget about deferred action, there are millions of people to now,ork authorization under existing law, who could not get it if that were the proper interpretation. millions of people are in these proceedings, for cancellation of removal. hundreds of thousands of people have parole and another of those people qualify. that is why in 1987, they rejected it. frankly is a reckless suggestion. asylum do notave have a pathway to citizenship. gen. verrilli: exactly. there are paths that have allowed people to get work authorization. >> how many people are we talking about? gen. verrilli: millions. there are millions.
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the adjustment of status? gen. verrilli: 4.5 million. that is huge numbers. >> thank you general. the cases committed. >> now reaction to monday's argument from advocates on both sides. we will hear from members of congress. all in favor of the president's executive action and from an opponent of deferred deportation. and we would hear from attorneys who argued the case. this is a half hour.
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>> my name is luis gutierrez. i am a member of congress from the state of illinois. the case has been submitted to the supreme court. i think we did really, really well. we did well on the law and we did well because the american people support this pathway. today, clearly, they had no argument. the fact is, millions of people live in the united states in the shadows, and they drive. they drive and they should drive with drivers licenses and insurance. the fact that millions of people in the u.s. work, they should work and pay taxes to the federal government and work. it seems today, clearly the law was on the side of the people and the president of the united states has taken action. it was clearly established in the court that -- the only difference today was that barack obama forced the issue.
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every time a state does not like what the federal, what the administration does or what this legislature does, the congress of the u.s., you can go -- cannot go into court and sue them. what the president did was lawful. it was passed by the congress of the united states. it allows the president of the united states to take the action that is being considered today. i will say to everybody that i am looking forward. i am very optimistic that next june, there will be 4 million people signing up not only for driver's licenses, but to protect their families. >> i thought the argument this morning was very encouraging. i am the ranking member on the immigration subcommittee in the house of representatives. i thought the arguments were very encouraging. i think that the justice nailed it when he pointed out that this
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was a political dispute between texas and the president. texas is allowed to proceed every time the state disagrees with the president, and they will be filing a lawsuit. this should not be before the court, number one. number two, they made it abundantly clear the ability of the president to grant deferred action is long-standing and to deny that would be an extraordinary departure from law and history. so, i am optimistic that the court will find that there is no standing for texas to proceed and if they are allowed, that that what the president did was lawful. >> i am senator bob menendez. i believe that many of the justices questioned exposed the political theater going on here.
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the reality is about the standing question, which dominated and amount of time for the justices, there is no question that for 50 years, from eisenhower to the current president, the president has used executive actions on immigration, time and time again. we see a set of circumstances that the argument that a potential cost to the state of texas, or to other states, would open the floodgates in which any action of an administration or for that matter and act of -- any act of congress would then create a flood of lawsuits that would come to the united states supreme court. so i do not believe, and i think the justices will come to the conclusion, that texas and the other states do not have standing, on a question that is clearly immigration law and is the discussion of the use of whether or not to deport someone. and the second thing, congress has failed to act if in fact it wanted to limit this discretion, it could do so. but it has not and for various decades now, that discussion has existed -- discretion, has
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existed. i hope the justices will come to the conclusion the questions brought up in the first place, no standing. congress has -- no standing. congress has been silent on the issue. we cannot have a floodgate of lawsuits at the end of the day simply because her as a cost. -- simply because there is a cost. if that is the case, it will become a pathway to give millions of people an opportunity to have some form of status while we find out in congress what our national law should be. thank you.
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>> ok. >> good morning. good afternoon. ok. >> two steps back, ok. >> ok. >> come closer. >> ok. >> i will open it up and pass it on. good afternoon, my name is maria and i am the executive director of the national immigration law center. this morning, our communities,
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our families, we walked into the supreme court with so much hope. we are leaving confident. we know the law is on our side. the supreme court is on our side as many of the justices said, and we are on the right side of history and the law. there are some difficult questions. but again, we are leaving confident that the federal government made its best argument. and we will prevail. we have a number of directly affected individuals here that were in the courtroom. this is probably one of the most diverse audiences in the supreme court. we had several dozen people whose futures are directly impacted by the supreme court
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decision. they sat there patiently hearing each of the arguments. we want to hear from them directly. first, we will hear from someone who traveled with her mother from los angeles and traveled here, because her mother is eligible. sophie, do you want to say a few words? >> yes. [speaking spanish] >> hello. my name is sophie. i am 6-years-old and i am an american citizen. we are united by a mission. we want the same rights or all. we want protection for all immigrants. we want immigration rights for all. [applause] [speaking spanish] >> ok. >> hello. my name is sophie. i am 6-years-old and i am an american citizen. we are united by a single mission. we want the same rights or all. we want protection for all
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children and immigrants. we want immigration rights for all. i have the right to protection. i have the right to stay with my parents. i have the right to to live without fear. i have the right to be happy. give me the opportunity to achieve my goals. lots of children have dreams like me. i have faith that you as parents and as citizens will make the best decision. thank you. thank you for listening to the voice of law. >> thank you for being here. i want to thank governor abbott for starting this. i want to thank my fellow attorney generals, some of whom
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are here today. specifically, i want to thank doug henderson from nebraska. this is an amazing opportunity and an amazing day for us. our efforts to stop the president's illegal immigration plan goes back to a simple idea, one person does not have unilateral authority to change the law or make a new law. today we argued the case strongly for the rule of law. if we allow a president, this one or a future resident, no matter the political persuasion or their party, to make changes to the law without congressional approval, we will end up with a perverted constitution. so today was a strong day for defending the rule of law and we are grateful for that opportunity. we are happy to answer any questions to scott keller or me.
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[indiscernible] >> we are here defending the constitution and we are here defending the constitution, so whether we have people out here or not is not relevant. any other questions? [indiscernible] >> you know what, i am encouraged today. i feel like the justices are going to support article to of the constitution which requires the faithful execution of the law and the president is not have the authority to make law. [indiscernible] >> we had questions from almost all of the justices. thomas did not ask the questions i am aware of. >> what about the question of [indiscernible] -- why not go after the -- you seem to be going about kind of -- why not challenge the memo itself? >> did you hear the question? she wants to know why --
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can you ask it again? >> why not challenge the november memo and the drivers licenses? >> this case has always been about the separation of powers. it transforms unlawful conduct into lawful conduct. the president thinks he has the power to do that and that you trouble every american. -- that should trouble every american. we have power from the congress to protect our liberties. i would like to read a quote. two blocks from here is a monument, robert a. taft. that is why we are here today. >> do you think the supreme
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court may have some bearing on whether they want to reach such a monumental decision? >> i do not have a crystal ball. i know we made strong arguments today and we feel confident. any other questions? thank you very much. >> good morning. i am president and general counsel of -- and we were granted argument time this morning and the joined solicitor general and defending president obama's use of his presidential prerogative, which has been exercised by many of his predecessors over the years to set priorities and immigration enforcement. his guidance issued in november 2014 was an exercise of that long-standing authority.
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the justices this morning seemed very concerned in vigorous questioning as to whether the state of texas had a right to be in court to challenge that exercise of discretion. the questions also reflected confusion about what exactly the state of texas is challenging, since it has conceded in its briefing that the president has the authority through the secretary of homeland security to determine how to arrange and enforcement resources to determine that certain folks will be low priority and not to be removed, even though that is a protection that can be revoked at any moment. 90 minutes of argument went fairly quickly. because of the many issues involved, all of them revolving around why the state of texas
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having decided long ago, to have or provide subsidized divers licenses, determined to oppose those who would receive driver's licenses under the deferred action guidance. others revolved around whether the president has authority, given that it has historically been exercised by 70 others and what exactly texas was -- they seemed to assign some magical importance to language used in the guidance. i'm available to answer any questions. >> what was your sense of the chief justice's comments and where he might fall? >> it is always hard to determine where a justice might fall, but he was very interested in the questioning, much of it surrounding the standing of the state of texas and work authorization. whether that relates to the state and whether or not they
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are authorized to dispute. it was an honor to represent the three jane doe's. these are very hard-working mothers raising families. and include a united states citizen in south texas who the -- want the opportunity provided by the guidance to step forward and to seek discretionary relief. that is all the guidance would provide and we are hopeful that in june, the president will be able to implement that guided and provide relief from daily fear. thank you. [indiscernible] >> i think it is possible the justices could move before june, simply the end of june is the outside of when the expectation will come. >> at this point there is no way to expedite their thinking. they have a little over two months to put it all together in an opinion. who knows how many. we certainly hope that was a decision comes, the opportunity will present itself to immediately implement the guidance. >> first and foremost, the standing issue. will we know beforehand -- therefore the rest of the case is mute? >> if they decide there is no standing, then the case is over and the district judge has nothing else to do but district -- but dismiss. it is our hope that they will struggle with the questions before standing and conclude that texas does not have a kind of concrete interest that is
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traceable to the guidance and is regrettable by their claim to strike down the guideline. no, not necessarily. it is a matter about however long the justices take to make their decisions into writing, because we expect their supreme court to justify their decisions in writing and release it. >> what are the real world impact for your clients? >> to be free of the daily fear that they may not come home one day. or that the parents of a child will be put into removal and they will be separated and they will have to make itself choice, do you leave your u.s. citizen children here, the country of their birth and citizenship, or do you take them with you to a country that is less familiar? it is that daily fear that ways -- weighs on the minds of those eligible for daca and this releases them from the daily fear. thank you. >> i am steve king of iowa. i serve on the house judiciary committee where i have since 2003. i also serve on the constitution subcommittee. i brought a number of the amendments on the house floor, and also an amendment that passed the house to defund the administration's defense of this case that was just argued before the supreme court. i think these points are very simple. the white house has argued that they have prosecutorial discretion. when you read through their documents, it is her a clear that even from the beginning, they created groups or classes of people that would give why get amnesty by the president and the president went to chicago and said that he had changed the law. so this separation of powers argument before the court, you have the confession of the president that he had gone outside the bounds and changed the law. the white house has obviously granted broad, sweeping amnesty to people under daca and the memos and they cannot make the argument legitimately that this is an individual basis only, so they have already crossed the line on two big issues. they are not exercising
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prosecutorial discretion and the president cannot change the law. i have concluded and will take any questions. hearing none. [indiscernible] >> thank you. >> i would not agree. the federal statute declares that when an officer who is charged with enforcing immigration law, they shall place them up for review. that is what the law requires. how does congress have to write a law to get the president to actually make sure this is executed? we have argued this sense brock -- since barack obama became president. i talk about this with conservative friends. tell me how the president can violate the constitution? this is a grievance to the supreme law of the land. we have a president who carries zero guilt about violating his role in office. this is political and he gets away with it. if he could, he would legalize millions of people that he thinks will vote for his party. this is about millions of undocumented democrats in the minds of barack obama and those on the left. for me, this is about conserving our country. [indiscernible] >> i am not that optimistic. we were there today. we need more of a 5-4 decision. this is an example of what we will get if we let the president name the next justice of the supreme court. we will get another sotomayor, focusing on the policy and not be legal issue. it is important for us to hold the line until next november and the elected president can choose who they want. if i were on the judiciary committee or even in the united states senate, i would vote no on the confirmation hearing on every one of them because the constitution is a living and breathing document. it has to be understood, if not, the constitution will no longer be what are rounding fathers produced. america will pull out. [indiscernible] >> i don't want to be critical of the argument presented by
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texas before the court. i am grateful that they are here. i have taken action against every single one of them. i have tried defund every single one of them. taxpayers are funding these programs. so, the minority in the senate can block action. if we had a vote in the senate, the president would have had to confess that the american people are right and he is wrong or veto a bill. so, this is not hard to understand. what is appalling is that you can have justices in the supreme court you have difficulty understanding and interpreting the constitution, and how they can or will decide if policy discussions are part of a constitutional argument. that just saddens my heart, thinking we could have another justice that is arguing policy rather than the constitution when it comes to constitutional questions. that is not their job. [indiscernible] >> how do you predict the supreme court these days? when i came to town, i could. i understood the justices, the constitution, the case laws. i had a pretty good handle on being able to predict the decision of the supreme court. now, in this court it is almost impossible to protect because -- predict because you cannot go back to the constitution as your guide. >> thank you all so much. we appreciate it. >> got to go. [loud chatter] ♪ >> the washington journal, live every day with news and policy issues that affect you. coming up on saturday morning, we will be joined by phone to
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>> the washington journal, live every day with news and policy issues that affect you. coming up on saturday morning, we will be joined by phone to discuss the impact of united health's decision to leave the affordable care act by 2017. we will examine the cost from both subscribers and insurers. and then we will be joined to talk about the recent policy proposal geared toward helping working women. also, the center for global policy solutions, the president and ceo talks about her -- boosting priority should.

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